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CCPC Minutes 10/16/2008 R October 16,2008 TRANSCRIPT OF THE MEETING OF THE COLLIER COUNTY PLANNING COMMISSION Naples, Florida October 16, 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 Karen Homiak Donna Reed-Caron Tor Kolflat Paul Midney Bob Murray Brad Schiffer Robert Vigliotti David J. Wolfley ALSO PRESENT: Jeffrey Klatzkow, County Attorney Joseph Schmitt, Community Development and Env. Services Ray Bellows, Zoning & Land Development Review Thomas Eastman, Director of Real Property, School District Page 1 AGENDA Revised COLLIER COUNTY PLANNING COMMISSION WILL MEET AT 8:30 A.M., THURSDAY, OCTOBER 16, 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 MAYBE 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 PRESENT A TIONS 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 PERTAINING THERETO, AND THEREFORE MAY NEED TO ENSURE THAT A VERBATIM RECORD OF THE PROCEEDINGS IS MADE, WHICH RECORD INCLUDES THE TESTIMONY AND EVIDENCE UPON WHICH THE APPEAL IS TO BE BASED. I. PLEDGE OF ALLEGIANCE 2. ROLL CALL BY SECRETARY 3. ADDENDA TO THE AGENDA 4. PLANNING COMMISSION ABSENCES 5. APPROVAL OF MINUTES - AUGUST 28, 2008, LDC MEETING; AUGUST 29, 2008, GMP MEETING; SEPTEMBER 4, 2008, REGULAR MEETING 6. BCC REPORT- RECAPS - Not Available at this time 7. CHAIRMAN'S REPORT 8. CONSENT AGENDA ITEMS A. 9. ADVERTISED PUBLIC HEARINGS (NOTE: Item 10-A , OLD BUSINESS - Noise Ordinance, to be heard prior to 8-A) A. Petition: CU-2006-AR-II 046, VI Ltd. Limited Partnership, represented by Richard Y ovanovich of Goodlette, Coleman, Johnson Yovanovich & Koester, P.A., requesting a Conditional Use for the Moraya Bay Beach Club to allow a private club in the Residential Tourist (RT) zoning district and the Vanderbilt Beach Resort Tourist Overlay district (VBRTO) of the Collier County Land Development Code (LDC), as specified in Sections 2.03.02.E for the RT Zoning District and 2.03.07.L. for the VBRTO. The proposed private club will be located within the residential building. The subject property, consisting of 4.96::1: acres, is located at ]] 125 Gulf Shore Drive, on the corner of Gulf Shore Drive and Bluebill Avenue, in Section 29, Township 48 South, Range 25 East, Collier County, Florida. (Coordinator: Kay Deselem, AICP) CONTINUED FROM 9/4/08 1 B. Petition: CU-2007-AR-12619, K.O.V.A.C Enterprises, LLC, represented by Tim Hancock, AICP, of Davidson Engineering, is requesting a Conditional Use for a refuse system in the Industrial (I) zoning district, as specified per the Collier County Land Development Code (LDC) Subsection 2.03.04.c.16. The +/- 3.73-acre subject property is located at 1995 Elsa Street, Section 11, Township 49 South, Range 25 East, Collier County, Florida. (Coordinator: John-David Moss,AICP) CONTINUED FROM 10/2/08 C. Petition: SV-2008-AR-13395, Immokalee-Wood, LLC, represented by Michael R. Fernandez of Planning Development, Inc., is requesting a variance from the Land Development Code (LDC) Section 5.06.04 c.1. to reduce the minimum separation of 1,000 lineal feet between signs to allow a sign separation of 276 ::l: feet. The subject property is located at 2600 Immokalee Road, Section 25, Township 48 South, Range 25 East, Collier County, Florida. (Coordinator: Nancy Gundlach, AJCP) D. Petition: SV-2008-AR-13374, Naples Grande Beach Resort, represented by Hunter Hansen, requesting seven variances. The first six Variances are from the Land Development Code (LDC) Section 5.06.04 C.I., which requires a minimum separation of 1,000 lineal feet between signs, to allow a sign separation of 66::l: feet, 40::l: feet, 156::l: feet, 66::l: feet,?]::I: feet, and 96::l: feet. The seventh Variance is from LDC Section 5.06.04 c.1., which permits a maximum of two pole signs per street frontage, to permit a maximum of four signs along a street frontage. The subject property is located at 475 Seagate Drive, in Section 9, Township 49, Range 25, Collier County, Florida. (Coordinator: John-David Moss, AICP) CONTINUED FROM 10/2/08 10. OLD BUSINESS A. To have the Collier County Planning Commission (CCPC) review and consider two proposed ordinances as follows: 1. To amend Ordinance Number 90-17, known as the "Collier County Noise Ordinance", codified as Chapter 54, Article IV, of the Code of Laws and Ordinances of Collier County, Florida, which Ordinance subsequently was amended by Ordinance Numbers: 93-77, 00-68, 04-15, and 07-61 that is intended to provide sound levels that are not detrimental to life, health, enjoyment of his or her property; and 2. A proposed Ordinance providing for a permit to authorize the operation of outdoor serving areas; specifying outdoor serving area permit application requirements; providing for suspension of such permit; providing for operating regulations; providing for conflict and severability; providing for inclusion in the Code of Laws and Ordinances; providing for repeal of three specified ordinances; and providing an effective date. (Coordinator: Jeff Klatzkow, County Attorney; Jeff Wright, Assistant County Attorney) II. NEW BUSINESS 12. PUBLIC COMMENT ITEM 13. DISCUSSION OF ADDENDA 14. ADJOURN 10/16/08 eepe Agenda/RB/sp 2 October 16, 2008 CHAIRMAN STRAIN: Good morning, everyone. Welcome to the October 16th 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 BY SECRETARY CHAIRMAN STRAIN: Okay. Let's see if you can remember the roll call. COMMISSIONER VIGLIOTTI: Commissioner Kolflat? COMMISSIONER KOLFLAT: Here. COMMISSIONER VIGLIOTTI: Commissioner Schiffer? COMMISSIONER SCHIFFER: Here. COMMISSIONER VIGLIOTTI: Commissioner Midney is absent. Commissioner Caron? COMMISSIONER CARON: Here. COMMISSIONER VIGLIOTTI: Chairman Strain? CHAIRMAN STRAIN: Here. COMMISSIONER VIGLIOTTI: I'm here. Commissioner Murray? COMMISSIONER MURRAY: Here. COMMISSIONER VIGLIOTTI: Commissioner Wolfley? COMMISSIONER WOLFLEY: Here. COMMISSIONER VIGLIOTTI: And Commissioner Homiak? COMMISSIONER HOMIAK: Here. CHAIRMAN STRAIN: Okay, thank you. Made it through that. MR. KLATZKOW: Tough day. CHAIRMAN STRAIN: We're just beginning. Page 2 October 16, 2008 Item #3 ADDENDA TO THE AGENDA Addenda to the agenda. There are some changes. And the first of which is Item 9(D) has been continued due to a sign, I guess a sign wasn't placed on the property? Mr. Kolflat, I understand that you may have some input on that? COMMISSIONER KOLFLAT: Yes, I visited the site in anticipation of it being heard today, and there was no visible sign there. So I talked to the chiropractors, asked where the sign was located. They said there had not been a sign there since this issue had been brought up. So I contacted John-David Moss, the principal planner, and so advised him. CHAIRMAN STRAIN: Ray, is somebody on staff supposed to be checking these when they come in for variances and conditional uses? MR. BELLOWS: The process requires that the applicant provide documentation of the posting of the sign. And we had a coordinator at one time that worked with our principal planner, and that coordinator position was eliminated. The planner assumed that responsibility. And I'll follow up with John-David to make sure that he's double-checking for that. (At which time Commissioner Midney enters the boardroom.) CHAIRMAN STRAIN: Okay. And if you wouldn't mind, from now on in our packet whatever evidence they provide you, to show that. If you provided it to us in the packet, it would be helpful. MR. BELLOWS: My understanding, some planners are doing that. But we'll make sure everyone -- CHAIRMAN STRAIN: Thank you. MR. BELLOWS: -- follows that same process. Page 3 October 16,2008 CHAIRMAN STRAIN: Good catch, Mr. Kolflat. The other item on the agenda that's going to change -- well, it's not a change, it isn't clear, though. The 10(A), old business, that will be the noise ordinance, that is going to be the first thing heard today. So when we start our hearing, we will not be starting with the Moraya Bay Club, but we'll be staying with the noise ordinance. And the experts involved in the noise ordinance have to leave early, and they can only be here for the first part of the morning. Ironically, for those people that are here from Vanderbilt Beach for the Moraya Bay Club, a lot of the noise ordinance issues have generated as a result of issues in your area. So as you hear the discussion of the noise ordinance, if you have any input, we certainly would welcome your comments. Item #4 PLANNING COMMISSION ABSENCES Planning Commission absences. We have -- the next regular meeting is November 6th. Does anybody know if they're not going to be here on November 6th? (No response.) CHAIRMAN STRAIN: Oh, Mr. Midney, welcome. COMMISSIONER MIDNEY: Sorry. CHAIRMAN STRAIN: That's okay, you travel farther than anybody. Okay, with that we'll assume we have at least a quorum or more for the 6th. Next week, Wednesday, Thursday and Friday we have the annual review of the AUIR in conjunction at a workshop with the Productivity Committee. The meetings will be held over at the developmental services conference room. Page 4 October 16, 2008 And the Productivity Committee attends in cycles of three, usually. They each group of them have taken a specific section. So they'll be coming and going during the meeting. Does anybody know if they're not going to make it to that meeting next week? COMMISSIONER MIDNEY: I'll miss Wednesday. CHAIRMAN STRAIN: I think for the benefit of this board, if for any reason there isn't a quorum any particular day, I don't see any reason we can't continue with the meeting and hear the facts and, you know, discuss the A UIR. And then the next time this board gets together with a quorum -- COMMISSIONER MURRAY: I don't think you can do that. CHAIRMAN STRAIN: No? MR. KLATZKOW: No, no, no, no-- CHAIRMAN STRAIN: Well, the Productivity Committee does that, and that's why I was wondering why we-- MR. KLATZKOW: Right. You're the Planning Commission. I would much prefer that you guys meet with a quorum. CHAIRMAN STRAIN: So what that means then, that if during the AUIR meeting if we don't have a quorum, we can't hold the meeting? MR. KLATZKOW: I don't want the AUIR process tainted by any allegation that you didn't have a quorum. I really -- CHAIRMAN STRAIN: Well, then how does the Productivity Committee -- MR. SCHMITT: There's no statutory requirement for the AUIR to go through the local planning authority. MR. KLATZKOW: I understand that, Mr. Schmitt, but I do not want any issue there with lack of a quorum. If you don't think you're going to have lack of a quorum, let's discuss it now. CHAIRMAN STRAIN: I think by acknowledgment today we're probably going to have a quorum. But what I -- and the only reason I Page 5 October 16, 2008 thought about it, Jeff, is that the Productivity Committee does not maintain a quorum during that meeting. I've not seen a problem with that. What they do is they take it back to their group as a whole and then they vote on it with a write-up that's submitted later. Is that okay for them to do then, now that you've raised the question? MR. KLATZKOW: You and I will have a discussion off-air about this process. But I do not like -- I do not like when any committee meets without a quorum. CHAIRMAN STRAIN: Understand. Okay, well, then next week it will be a quorum or the meeting won't be held. So we'll go from there. Item #5 APPROVAL OF MINUTES - AUGUST 28, 2008, LDC MEETING; AUGUST 29, 2008, GMP MEETING; SEPTEMBER 4, 2008, REGULAR MEETING Approval of the minutes. We have three sets of minutes. The first one is August 28th, LDC Meeting. Is there a motion to approve or change? COMMISSIONER VIGLIOTTI: Motion to approve. CHAIRMAN STRAIN: Made by Mr. Vigliotti. Is there a second? COMMISSIONER CARON: Second. CHAIRMAN STRAIN: Seconded by Ms. Caron. Discussion? (No response.) CHAIRMAN STRAIN: All those in favor, signify by saying aye. Page 6 October 16, 2008 COMMISSIONER SCHIFFER: Aye. COMMISSIONER HOMIAK: Aye. COMMISSIONER CARON: Aye. COMMISSIONER MURRAY: Aye. COMMISSIONER VIGLIOTTI: Aye. COMMISSIONER WOLFLEY: Aye. COMMISSIONER MIDNEY: Aye. COMMISSIONER KOLFLAT: Aye. CHAIRMAN STRAIN: Aye. Anybody not approve? (No response.) CHAIRMAN STRAIN: Okay, motion carries 9-0. The next set is August 29th, 2008. It is the GMP Meeting. It is there a motion to approve? COMMISSIONER CARON: Motion to approve. COMMISSIONER VIGLIOTTI: (Indicating.) CHAIRMAN STRAIN: Ms. Caron made the motion, seconded by Mr. Vigliotti. All those in favor, signify by saying aye. COMMISSIONER SCHIFFER: Aye. COMMISSIONER HOMIAK: Aye. COMMISSIONER CARON: Aye. COMMISSIONER MURRAY: Aye. COMMISSIONER VIGLIOTTI: Aye. COMMISSIONER MIDNEY: Aye. COMMISSIONER KOLFLAT: Aye. COMMISSIONER WOLFLEY: Aye. CHAIRMAN STRAIN: Aye. Anybody opposed? (No response.) CHAIRMAN STRAIN: Motion carries. And the last one is September 4th, 2008 regular meeting. Motion Page 7 October 16, 2008 to approve? COMMISSIONER CARON: Motion to approve. COMMISSIONER VIGLIOTTI: (Indicating.) CHAIRMAN STRAIN: By Ms. Caron, seconded by Mr. Vigliotti. Discussion? (No response.) CHAIRMAN STRAIN: All in favor, signify by saying aye. COMMISSIONER SCHIFFER: Aye. COMMISSIONER HOMIAK: Aye. COMMISSIONER CARON: Aye. COMMISSIONER MURRAY: Aye. COMMISSIONER VIGLIOTTI: Aye. COMMISSIONER MIDNEY: Aye. COMMISSIONER KOLFLAT: Aye. COMMISSIONER WOLFLEY: Aye. CHAIRMAN STRAIN: Aye. Anybody opposed? (No response.) CHAIRMAN STRAIN: Motion carries 9-0. Item #6 BCC REPORT - RECAPS - NOT AVAILABLE AT THIS TIME There are no BCC reports or recaps at this time. Chairman's report. I'm just going to need aspirin before the day's over. There are no consent agenda items for today's agenda. Item #10A Page 8 October 16, 2008 OLD BUSINESS - NOISE ORDINANCE And with that we'll move into Item 10(A), the noise ordinance. We'll receive certainly a presentation by staff. Discussion. As everyone knows, this has been floating around for probably nearly 18 months. I don't know how many drafts. This particular one I had reviewed with staff to some extent. I have a feeling it's not going to get through on the -- rewritten the way it is. So we'll go through page by page after staff makes any kind of introductory comments they'd like to make. So whoever the staff member is in charge of this, it's yours to bring up. Mr. Schmitt? MR. SCHMITT: Mr. Chairman, I have instructions from the board to show a tape first. Do we want to do that now? CHAIRMAN STRAIN: Only if you've got popcorn. MR. SCHMITT: It's a short tape. CHAIRMAN STRAIN: Oh, okay. MR. SCHMITT: So maybe the popcorn won't be ready. But let me try it. It's not playing, Ray. COMMISSIONER MURRAY: It's waiting for the popcorn. (Tape played.) CHAIRMAN STRAIN: That's Stevie Tomatoes. MR. SCHMITT: Okay. I think that the board's intent was to provide that tape to you. It was part of the public comments during the discussion on the Pebblebrooke settlement agreement at the last Board of County Commissioner meeting. The board wanted to make sure you were aware of the impacts -- or at least to use that and to ask questions based on that as we go through this noise ordinance, whether this ordinance will prevent some of what you just saw. So we can discuss it as we go through the ordinance as well. Page 9 October 16, 2008 CHAIRMAN STRAIN: Okay. And in talking with staff, I had asked that same question yesterday. And I think the resolution was it has to be viewed in combination with the structural elements that are being proposed. So maybe that's how we ought to think about it as we move forward. MR. SCHMITT: Yeah, for the record, the Board of County Commissioners did approve a settlement agreement which included an eight-foot wall to continue around the back. I do not have the drawings with me. But there would be an eight-foot masonry wall around the back of the building. And the dumpster location would move further north on the property somewhat away from where you saw the dumpster; it would be that location where it said the dumpster further from the building. And then there would be significant landscaping placed as a buffer between the residential properties and the commercial property. So that settlement agreement's in place. I suspect those plans to be in within the next I would guess seven to 14 days, and then hopefully the developer will get started on some of the -- or at least on that project to mitigate some of the impact of that development with the residential properties. CHAIRMAN STRAIN: In coming up with the elements that you've suggested or that are being suggested to be added to help with this kind of noise, was any kind of sound expert involved in whether or not the effectiveness of those will have an impact that everybody's expecting? MR. SCHMITT: Good question. And I would have to defer to Dave Scribner. Dave can probably discuss that. David, I know your folks have been out there taking readings. I don't know if anything there would have triggered a noise violation. MR. SCRIBNER: For the record, David Scribner. I'm the Investigative Manager for Code Enforcement. Just to give you a little history on Stevie Tomatoes, we actually Page 10 October 16, 2008 started working with the owners of that property several years ago trying to mitigate some of the noise issues. And the wall came up in the very beginning. And what we ended up doing -- and the owners of that plaza did engage the services of a noise consultant, and it's Lisa Schott. A group of people got together and paid for her outside of county funds to do a noise study on that property to look at ways of mitigating the noise. And some of the issues -- and Lisa can address those for you today -- was the shutters that were -- she recommended to be put up and some other issues. But that's been an ongoing problem. And whether or not what's taking place now is going to mitigate that noise, I will defer to Lisa. I think she's the expert on that and she can probably give you a better sense. CHAIRMAN STRAIN: Well, it's real good that the noise expert who helped with this noise ordinance was the same one who helped with the design of these mechanical features to help with this Stevie Tomatoes issue, because I certainly would like to hear for the record if the combination of the two are going to have any impact or what kind of impact they're going to have. MR. SCRIBNER: Right. I just want to make it clear for the record the work that she did for the Stevie Tomatoes issue was outside of any contract she had with the county. We did not pay for that. That was not out of County funds; that was paid through private funds. CHAIRMAN STRAIN: Well, but hopefully using the same person it was more or less done in knowledge with what was moving forward with the noise ordinance. So maybe the two combined will have a better impact. So thank you. MR. WRIGHT: Morning, Commissioners, Mr. Chairman. For the record, I'm Jeff Wright, Assistant County Attorney. And I'm here just -- I wanted to point out that the noise ordinance is a tricky animal. There's a lot of competing interests. Page 11 October 16, 2008 And what we've done is try to sit down with everybody, the Sheriffs Office, citizens, the development community and staff, and come up with something that everybody can agree to. And obviously that's a challenge. But we've made quite a bit of progress in the past few months. I wanted to point out a couple of people that are here this morning. Lisa Schott is our sound consultant. Dave Scribner you just saw. Ross Gochenaur is a staff member who deals with permitting questions relating to this draft ordinance. Doug Lewis is also here, he's been very helpful in providing private sector comments. And Commander McDonald from the Sheriffs Office is here as well. So I'm happy to answer any questions you have on the noise ordinance. And depending on what type of question it is, we might have to have one of those individuals field it. CHAIRMAN STRAIN: Normally we take the ordinance page at a time. Is that okay with everybody on the commission? (No response.) CHAIRMAN STRAIN: Before we do that, though, if Lisa could come up and explain to us as we go through the pages of the ordinance we can better understand the impacts and how this ordinance, as well as the physical things you've suggested for the Stevie Tomatoes application would fit, so then we know if the ordinance is as effective as we think it needs to be. MS. SCHOTT: Good morning. I'm Lisa Schott, President and Principal Acoustical Consultant of Quietly Making Noise, based in Orlando, Florida. I want to clarify though that I was engaged by the Collier County Board of Commissioners -- Board of County Commissioners a few years ago to do a noise survey in the Pebblebrooke community near Stevie Tomatoes. I had hoped to work with either the owner of the plaza or Stevie Tomatoes on their noise mitigation options, but I have not been Page 12 October 16, 2008 engaged to do so. So I think there was unfortunately a misunderstanding by Mr. Scribner that I had worked on those mitigation measures. I have not. I made some recommendations in my previous contract for the county on what that owner could do, but those recommendations haven't exactly been implemented as originally recommended. And I haven't been involved for at least -- I don't know the exact date, but I think it's been two or three years since I've been involved in that project. CHAIRMAN STRAIN: Okay. So the recommendations that -- I think one here showed a concrete wall and some other things that were being discussed, and we heard that mentioned. So those -- you didn't have any -- those weren't your recommendations? MS. SCHOTT: We did early on. A few years ago we did discuss a wall and we discussed shutters. But then I have not been involved in the design. And for instance, acoustical shutters is a product that I have a patent pending on, and they did not purchase those from me. So I don't know what type of shutters those are. They're either not acoustical shutters or they're possibly infringing on the patent. So I don't know what the situation is there and I don't want to say anything that would vouch for what they're doing as being good or bad, because I haven't had any involvement in that. CHAIRMAN STRAIN: Then the way the noise ordinance has been structured then, let's say that the structural elements that you weren't involved with that aren't -- we didn't count those for the Stevie Tomatoes thing. This noise ordinance that we're about to work our way through, would it have any impact on the Stevie Tomatoes situation? MS. SCHOTT: Good question. I think the noise ordinance goes a long way in preventing many of the issues that have occurred there from happening on future projects. But I think I would ask Jeff for some support here on how it would be implemented and enforced on Page 13 October 16, 2008 existing projects. MR. KLATZKOW: Mr. Chairman, could I just note that there's a distinction between zoning issues, which is really what Stevie Tomatoes is, and noise issues in general. And I don't know that you can solve noise issues when you have zoning questions. As an example, this board went into Smart Growth where we were getting mixed units between commercial and residential. And they're going to -- that's going to require a different tact than say Golden Gate Estates with the noise. So I'm just asking, don't confuse the zoning problems we might have here and there with overall county noise issues, because they don't mix. CHAIRMAN STRAIN: Right. And I think what I was trying to do is that for the benefit of this board and those members of the public following this, is to make it clear what this noise ordinance in front of us would do about the most prominent example that's occurred recently, and it's probably on everybody's mind, which probably originated the most focus on this ordinance as not having enough application as we would have hoped it had. It's being rewritten specifically because of the example of Stevie Tomatoes. And that's fine. But if it's not going to have the impact on that, we still will want to pass something. But I'd like to at least let everybody know that this isn't going to be the cure-all if it's not going to be for that application. That's all I'm trying to find out. Because based on my conversations yesterday, with -- Jeff, with you and other members of staff, there are issues in here that don't seem to address the Stevie Tomatoes situation. And I think your reaction yesterday was that they don't, they have to be looked at in combination with the physical features. And I just want to make sure that everybody realizes when we get done reviewing this and it gets made into law, if it does, that it Page 14 October 16, 2008 may not be the thing that we're then allowed to send out code enforcement to say stop the noise. This may not be the way to get there, may not get us there. And if that's the case then I think everybody just needs to know that up front. MR. WRIGHT: Well, Mr. Chairman, as I explained, it's tricky to balance all the interests involved. Stevie Tomatoes doesn't involve amplified sound. You're dealing with human voices. And the first amendment allows people to express themselves with their human VOIce. So in no way is this ordinance going to be a panacea, a cure-all to all the problems that exist relating to noise in Collier County. It's our best effort to do that. We've improved some of the features that the police -- the Sheriffs Office, for example, has the ability to cite somebody rather than arrest them or charge them with a crime. They can charge them with a citation, a code citation, which they've expressed is a benefit to them and it makes enforcement a little bit easier. We've also changed the definition of the exemption for the human voice. We've qualified it to read, the reasonable use of the unamplified human voice, which is intended to -- if you're reasonably using the human voice in an unamplified way, you're exempt from this ordinance. But if you're unreasonably using the human voice, potentially you would be subject to enforcement. So it's almost impossible to address these things in an airtight fashion, but we've done our best to attempt to do that. CHAIRMAN STRAIN: And I don't disagree with your statements. I'm just wanting -- my biggest concern is that when this gets sent on to the BCC it's sent to them clearly acknowledging that it's not going to cure the problems that it may have started for. And if that turns out to be the case, I just want to make sure everybody knows it. Mr. Schmitt? Page 15 October 16, 2008 MR. SCHMITT: Yeah, just to refresh everyone's memory, and not to go through the entire history, but you recall, the noise ordinance was moving parallel with the outdoor seating ordinance. Outdoor seating amendment to the LDC morphed into an outdoor seating ordinance. That ordinance went to the board. The board sent that back to you. It's not part of your packet today. It will be next time it comes back, this ordinance along with the outdoor seating ordinance. Because two things the board wanted: Your opinion on the noise ordinance and then your recommendation as to whether to proceed with the outdoor seating ordinance. Which was, as you recall, a little bit different twist. That was an annual permit application process for outdoor seating. And certainly outdoor seating in this part of the country is desired by a lot of restaurants for a lot of reasons. One, to enjoy the weather, also the prohibition of no smoking in restaurants has promoted outdoor seating. So you'll have that as well, because I've got to bring both back to the board, both the outdoor seating ordinance and the noise ordinance. And you recall they were almost blended together. Now the two are separated. So that was the piece that more dealt with Stevie Tomatoes, the outdoor seating ordinance and whether the outdoor seating became a -- was deemed to be a public nuisance. CHAIRMAN STRAIN: Well, my -- hopefully the goals today will get us as best we can an ordinance that can apply to a situation like the people in Pebblebrooke are experiencing, because it's not one anybody should have to live with. Ms. Caron? COMMISSIONER CARON: Yeah. So basically what we're saying is that with this ordinance it's a going forward ordinance. It's not going to solve a Pebblebrooke, it's not going to solve issues in Page 16 October 16,2008 Vanderbilt Beach, it's not going to solve issues at Imperial Golf, it's not going to solve issues at the Uptown Center with Pelican Larry's. Those things are not going to be solved by this ordinance. This is a going forward ordinance so that in the future we won't be creating -- MR. SCHMITT: No, ma'am, that's probably not correct, because they're -- COMMISSIONER CARON: Exactly, so -- MR. SCHMITT: This ordinance, if they exceed the noise decibel levels as measured by the enforcement officers, then this ordinance becomes in play. Where Jeff was saying Stevie Tomatoes, the unique difference there is the noise you heard has nothing to do with amplified sound. There's no TV's playing on -- as far as sound, there's no music. What you heard on that tape is human voices. COMMISSIONER CARON: Right. And this is not just amplified sound. MR. KLATZKOW: If we're going to zone outdoor seating adjacent to residential neighborhoods, you're going to have issues that this ordinance will not be able to address. CHAIRMAN STRAIN: But this ordinance, based on what Jeff was saying and what I have read, does address certain levels of human voice, certain types of human voice. And that's kind of why this whole thing is being highlighted this morning and that video was needed, is because if the problem is what we saw in this video, as we go through this ordinance if we can find ways to tweak it and tailor it so that those issues can be addressed, then we may accomplish more than just going forward, we may actually accomplish something that can be applied to existing situations, which I think we all would like to see. COMMISSIONER CARON: Which is -- yeah, otherwise I think it's an exercise. CHAIRMAN STRAIN: So with that then, if there are no other questions on that issue, why don't we just move through the document as we normally have. Page 1 7 October 16, 2008 Pages 1 and 2 are mostly introductory pages. Then we get into the definitions on Page 3. So let's take one, two and three. Mr. Murray? COMMISSIONER MURRAY: Okay, on Page 3, I just reference for you ambient noise, and then I reference Page 6 where you speak about noise having a meaning. And noise -- in one case we talk about sound, and the other case we talk about noise, and I'll go further in that in a minute. Then the other issue is amplified sound where you have device which electronically, and I recommend that you put or mechanically, interpolate or mechanically in that. And then background music means any music or other sound played in a public space. What about a private space, doesn't that apply as well? MR. WRIGHT: Well, background music, we did need a definition for it. And I went to Lisa for language, and Lisa came up with this language. We can always -- COMMISSIONER MURRAY: Well, I'm asking you with your judgment as an attorney, wouldn't you say private space is also applicable? MR. WRIGHT: Sure, I don't see any problem with including private space. I guess the idea is that the public would be listening to it. COMMISSIONER MURRAY: All right. Returning to the ambient noise thing, where the issue came up was trying to understand noise and sound. In one instance we talk about sound, in another instance we use a sound meter and we talk about noise. And I think that that's going to create some questions throughout this document. I'm not sure I can qualify a question to you directly, but I point this out because I'll reference it as we go through the pages. Thank you. Page 18 October 16,2008 CHAIRMAN STRAIN: Okay, we're on the first three pages. Anybody else? Jeff -- oh, go ahead, Mr. Wolfley. COMMISSIONER WOLFLEY: I just had issues putting this into perspective. It was talking about A-weighted and C-weighted networks. And seems like throughout this whole document it's all subjective. I mean, whether my voice is amplified or not, whether or not -- you know, how close I am to the microphone has to do with how loud I am. Now, I couldn't tell the difference between this A and C-weighted. I didn't get it. And my other points are, you know, regarding the Stevie Tomatoes, I imagine if you're inside and they're enjoying a football game and they've had five beers, then it's pretty subjective to what noise is. Because, you know, you have one beer, two beers, another loudmouth and another loudmouth. So you've had four of them and so, I mean, it gets louder and louder, if you know what I mean. For an officer that's called to a scene about noise, how is he going to determine -- I mean, is everyone going to carry around a noise meter, sound meter? I mean, how can you determine? This is so subjective, I can't wrap my hands around this thing. MS. SCHOTT: Well, I think the subjectivity is limited by the fact that there are only certain types of sounds that can be cited if the enforcement officer does not have a sound level meter. And those are delineated in one section. Basically animals and off-road vehicles. Otherwise the sound level meter is needed. And that's how we take the subjectivity out of it, by requiring a measurement. And then that measurement gets compared to the maximum limits that we've established. COMMISSIONER WOLFLEY: Right. We're going to be getting into here, they have two or three or four -- not you, but the document has two, three or four typical sounds that had -- and certain dB levels. Page 19 October 16, 2008 And I just -- we'll get into that as it goes, but the subjectivity I had an issue with. MS. SCHOTT: May I offer an explanation on the A-weighted versus C-weighted? They are two different measurements. You can measure them at the same time on a sound level meter or very close in time. The A-weighted sound level takes all of the frequencies that the human ear can hear and applies a weighting, either negative or positive weighting to that frequency based upon how well our ears hear that sound. We hear middle frequencies very well, say 500 to 2,000 hertz, and that's for the human voice -- most of the frequencies of the human voice occur. So there's either a positive weighting or not much weighting in those frequencies. We don't hear low frequency and very high frequency very well. So there's a large negative weighting in those frequencies. This is all done internally within the sound meter. So the A-weighting is the best representation of the sound level that is heard by the human ear. Because it gives a large negative weighting to low frequency noise, we also use the C- weighting, because we're concerned about low frequency bass music. People complain about what they call boom cars, you can hear the low frequency all the way down the street. Well, the A-weighted sound level doesn't address that very well because the low frequency gets a large negative weighting. So the C-weighted sound level hardly has any weighting at all, and it gives us an idea of how much low frequency noise there is in the environment. So when we use the A and the C together, we get the audible sound level and another reading that indicates how much low frequency noise there is. And the two together give us the right enforcement capability to regulate not only human voice and air conditioners and things like that that make mid-frequency noise, but Page 20 October 16, 2008 also the low frequency bass noise. So those are not -- we're not mixing those values, they are two separate values that have to be measured in order to provide us the right tool for enforcement. COMMISSIONER WOLFLEY: I'm going to be getting into that vehicle and sub-woofers and so on a little bit later, but okay, thank you. CHAIRMAN STRAIN: Page 3, several questions. If you go to the amplified sound, the last sentence. For purposes of this ordinance amplified sound does not include background music. And as I mentioned, Jeff, I'm concerned that by leaving it to not include background music, people have a tendency if they want to circumvent that process to declare everything background music. And I understand you've got a definition down below that, but is there -- how do we get around that? MR. WRIGHT: What we're trying to do, Mr. Chairman, is to not require, for example, Publix who's playing holiday jingles outside from having to get an amplified sound permit. That's-- CHAIRMAN STRAIN: And I agree with you, and I think that's fine. But what ifPublix decided to take that holiday music outside and crank it up to, I don't know what scale, but the high -- a loud scale so you can hear it 2,500 feet away. Is that still background music? MR. WRIGHT: I hear you, that's a valid question. I think that what we could do here is, given the goal and given your concern, we could come up with something that just doesn't -- maybe further qualification of the term background music. CHAIRMAN STRAIN: Could we set a decibel level to it so that background music shall not exceed a certain level so that it's qualified in a manner that is non-offensive then? Because that's what it's supposed to be, it's supposed to be mood-setting background music. Is that an acceptable way to look at it? MS. SCHOTT: That can be done, yes. Page 21 October 16, 2008 CHAIRMAN STRAIN: Okay. The reason I'm going there is if this goes into law and it starts to be enforced, between the Sheriffs Department, code enforcement and everybody, I can see a lot of people trying to challenge it if they come under the gun on this thing, and why give them an out if we can avoid it, so -- MR. WRIGHT: I agree that the decibels would take the subjectivity out of it. MS. SCHOTT: Well, I think the reason the amplified sound is defined is to determine who is required to get an annual permit to play amplified sound. So that's the only place that it's used and the reason we didn't want to require businesses to get an annual permit for background music. So -- CHAIRMAN STRAIN: Well, I agree with you, I don't think they should. I mean, that's -- no, you're on the right track. I just -- because of the way the law works and people can wiggle out of things, why don't we just say background -- put a decibel level to background mUSIC. MR. WRIGHT: In the definition. I agree, Mr. Chairman. CHAIRMAN STRAIN: And we're there. When you get down to background music, the definition reads, means of any music or other sound played. Since we are referring to amplified sound, could we simplify that definition by referring to amplified sound that does not exceed "X", and we're back to decibels in a definable term that can be measured by all those enforcing this code, or is background music something that necessarily cannot be amplified? I can't imagine how it could be background if it's not amplified, but -- MS. SCHOTT: I could envision either situation, amplified or unamplified. You may have, for instance, an acoustic guitarist playing background music that's not amplified, or a piano-- CHAIRMAN STRAIN: Well, it's a suggestion. I think there's a lot of ambiguity, and Mr. Wolfley hit that in an overall context to this Page 22 October 16, 2008 document. And as we go through this, there is going to be a lot of examples of that. COMMISSIONER MURRAY: Point. CHAIRMAN STRAIN: Mr. Murray? COMMISSIONER MURRAY: I would be very careful, however, because -- and I used the word private before because I was thinking about somebody having a party and they're on their property. Now, a small parcel of property, the sound is, you know -- the adjacency, you're going to have problems people perceiving it if you set a certain level. Background music at K - Mart with a large parking lot, you know, you have some degree. So I offer that you really have to give consideration to it. Once you fix a number, then an awful lot of potential unintended consequences can occur as well. I realize that's a hard place and a rock, but that would be my suggestion on that. And there are occasions, because we have here 60 decibels, which is in the range of the human voice. Go up to 65, you're now in violation for the human voice. And I think it's contextual what you said earlier about the human voice, where it is, when it is and how it is. So I'd be very careful. CHAIRMAN STRAIN: Jeff, I think if you take the background music definition combined with a change in the amplified sound and reference a decibel level that background shouldn't exceed, I think we're there. I have some other concerns in that definition but they would go away with a maximum decibel level plugged in there somewhere. So I'll just forego any of those others until we see what comes out of that suggestion. On Page 4, are there any questions on Page 4? COMMISSIONER MURRAY: I do. CHAIRMAN STRAIN: Mr. Schiffer? COMMISSIONER SCHIFFER: The first one, continuous noise. Page 23 October 16, 2008 How could a sound, you know, continuous sound not be part of the ambient sound? That's-- MS. SCHOTT: Well, there's two definitions that go together, continuous noise and intermittent noise. And that is -- a continuous noise could be a noise that occurs for perhaps 10 minutes or an hour or two hours that is not normally part of the ambient. It's still continuous during that time and not fluctuating. COMMISSIONER SCHIFFER: Okay. So you'd be able to isolate it by testing when it's off, testing when it's on. MS. SCHOTT: Correct. COMMISSIONER SCHIFFER: Okay. The other question, down at the bottom, equipment. Generator is not on that list. Is that on purpose or -- MR. WRIGHT: That's not on purpose. We could add it. It's actually taken from -- it was embedded in the ordinance. We moved it over to the definitions section as-is. So we could add generators. I think that it fits in the context of those other items that are listed. COMMISSIONER SCHIFFER: And then my other question is multi- family consisting of two or more, and -- MR. WRIGHT: We have -- again, that was moved from another location. We need to delete the clause beginning with the word within, all the way to the end of the sentence of that definition, so -- COMMISSIONER SCHIFFER: So we stop at fixture, and then the rest of it gets stricken? MR. WRIGHT: Correct. COMMISSIONER SCHIFFER: Then I'm done, thank you. CHAIRMAN STRAIN: Mr. Murray? COMMISSIONER MURRAY: Yeah, the decibel, I -- this was very challenging here, so I went into Wikipedia and I got something a little bit better, maybe. And I gave it to my fellows on the board here to look at, but -- CHAIRMAN STRAIN: Which one? Did you pass this out then? Page 24 October 16,2008 COMMISSIONER MURRAY: I did, yes. CHAIRMAN STRAIN: Okay. COMMISSIONER MURRAY: And I -- CHAIRMAN STRAIN: Did you give one to the -- for the -- you got -- okay, good, thank you. COMMISSIONER MURRAY: My only point here is that while I don't necessarily suggest that this is the right one, it was my effort to try and find a better way of expressing it because of this poor brain here. This was a little challenging. I mean, we can understand the words, but conceptualizing it is a little challenging. And I'm not thinking about myself being the person concerned ultimately because it's that person who has the C meter and the A meter and their judgment in what they have to do in explaining it to somebody. Is there any better definition that we can come up with this? MS. SCHOTT: Well, as you can see, a lot of the old definition has been stricken because I felt that that was very confusing. So I'm the one who authored the new wording to be technically accurate. And this is the definition that is most commonly used in the world of acoustics. I will be glad to look at your Wikipedia definition and see if it, number one, it's technically accurate, because anyone can edit Wikipedia. COMMISSIONER MURRAY: Yeah, I understand. MS. SCHOTT: And also if it's better, we'd certainly be glad to incorporate that. COMMISSIONER MURRAY: Well, that I understand. Thank you. And I think Joe Schmitt, I had given him a copy for review, you might want to take a look at that. And then down where -- the word equipment. My note here is why not commercial or industrial. Why is equipment not included applicable to commercial or industrial? Because at the end it says or Page 25 October 16,2008 associated with multi-family building comprised of two or more residence dwellings. CHAIRMAN STRAIN: We're striking all that language. After the word fixture, everything gets stricken. COMMISSIONER MURRAY: I didn't hear that. See, these things don't always work right. COMMISSIONER WOLFLEY: Speak up, would you, please? COMMISSIONER MURRAY: Okay, where did we strike? CHAIRMAN STRAIN: After the word fixture, second line. COMMISSIONER MURRAY: Thank you. That's my question for that, thank you. CHAIRMAN STRAIN: Any others on Page 4? (No response.) CHAIRMAN STRAIN: Jeff, up on top, continuous noise, last three words, for the period of observation. I would suggest that we make that a standard instead of a reference, meaning on the next page you talk about a one-minute period for certain things. If that's what the period of observation needs to be, why don't we put a definitive in there, either as a minimum or maximum. MR. WRIGHT: I'm fine with that. I spoke with Lisa about it this morning. Her only caution was if we wanted to change some of the periods of observation within the text of this ordinance, the way it's worded currently we would be covered for that. If we specify a time frame within that definition, then -- CHAIRMAN STRAIN: Okay. Well, never mind then, I'll just withdraw the question. And then the other one we just got. So that's it. We're on to Page 5. Anybody have any questions on Page 5? COMMISSIONER MURRAY: I do. CHAIRMAN STRAIN: Mr. Murray? COMMISSIONER MURRAY: I'm going to have questions on just about every page. Page 26 October 16,2008 Down in intermittent noise, my note here can be less than but still annoy. Intermittent noise means a noise whose sound pressure level exceeds the ambient noise level at either regular or irregular intervals. Is it not true that it can be less and still annoy? MS. SCHOTT: Are you asking if a -- can a noise be less than the ambient and still annoy someone? I suppose if they are already annoyed by the existing ambient noise level, then yes, I suppose that could be true -- COMMISSIONER MURRAY: So the subjectivity is growing in this context, yeah. MS. SCHOTT: Well, but this is just defining intermittent noise or you could think of it as fluctuating noise, not a noise that annoys. CHAIRMAN STRAIN: Well, I was trying to understand, we have an ambient noise level, if you will, okay, and we perceive it as sound, okay. In this room there's an ambient noise level, there's AC running and there's people coughing and so forth, all part of the contribution of it. So you're describing a noise whose sound pressure level exceeds the ambient noise. So I suppose a person who coughed loudly, that would be -- is that intermittent noise? MS. SCHOTT: Yes. COMMISSIONER MURRAY: So if we assess or assign a decibel level to noise and a person coughs, they may exceed sound level and be guilty of an infraction? I mean, that's my concern about so stringently applying decibels to it as an absolute. So that would be something to consider. Thank you. CHAIRMAN STRAIN: Questions on Page 5? (No response.) CHAIRMAN STRAIN: Jeff, pursuant to our prior discussion, I believe the intent of the last definition, you were considering changing it. Page 27 October 16,2008 And Ray, I think you had the suggestion that the mixed use project really means mixed use structure. Because any project that has commercial in it with residential may be considered a mixed use project. And I wanted clarification on that. Is that still what you're thinking? MR. WRIGHT: I spoke with Doug Lewis this morning, who provided this language, and he said that we should have enough wiggle room to figure something out. I like the idea, but I might have to defer to Ray for the specific concern, structure versus a development. CHAIRMAN STRAIN: Well, there's a huge difference in the way you would apply the internal parts of this particular ordinance. If it's a structure and you have restaurant downstairs versus residential upstairs, that's a whole different connotation than Pebblebrooke where you have a commercial part with a residential part. So I just want to make sure we're clear on where it applies. And that definition does bring in a lot of different areas within the context of this whole ordinance. So before this is all over, I think we need to get a reading on that, what you're planning to do, because that's a main definition of the whole thing. Page 6, anybody have any -- go ahead, Brad -- COMMISSIONER SCHIFFER: Mark, you brought up a question. So you're going to change that to be a mixed use proj ect is a structure with multiple occupancies as opposed to the whole development having it? MR. BELLOWS: For the record, Ray Bellows. The concern that I had when reading this documents was that we have projects like Mercato, for example, that have commercial on the first floor and residential above. That is a true multi-use structure. A project like Pebblebrooke has a commercial tract with buffers Page 28 October 16, 2008 separating it from the residential tract. There are different issues in regards to how noise travels from floor to floor, versus from building to building through tracts and buffers with fences and the like. COMMISSIONER SCHIFFER: But my point is you could have a mixed use proj ect, you could have a totally residential building across the street from a commercial building with restaurants and noise. So, you know, that's still a mixed use project. If you call it structure, you're separating those two buildings when I don't think that's what we should -- MR. BELLOWS: No, you make a good point. There is PUD's, we have the designation mixed use planned unit development, and that's when the PUD itself contains both commercial tracts and residential tracts. However, there's a -- for determining sound, you're going to have a more difficult time dealing with sound when commercial is under our residential building or residential above commercial. It's a whole separate issue. COMMISSIONER SCHIFFER: But I think Pebblebrooke, based on this definition, is two different developments. So this would certainly not apply as a mixed use. You couldn't combine those two developments. Aren't they independently developed? CHAIRMAN STRAIN: Well, before you go too -- let me-- Brad, your question is exactly why the issue has come up. If you turn to Page 18, item four, and notice the last line. It said, mixed use projects shall apply only to sound effectuated residential end uses or zoning located outside of the mixed use project and shall not apply to residential uses or zoning within the mixed use proj ect. That's why I asked the question. Because if you read that, and Pebblebrooke is a mixed use project, then it doesn't apply to the Pebblebrooke project, and that concerned me. So I brought the question up saying if you mean mixed use project, how does this fit the problem that this all came about from. Page 29 October 16,2008 And that's when Ray suggested it should mean mixed use structure, or he suggested that. And that may be a resolution, but it does change things. COMMISSIONER SCHIFFER: But structure's a problem because that isolates one building. Mixed use project's going to have multiple buildings in it, probably. For example, let's go back to Mercato. I'm on the residential thing. Above the store, the stores are quiet, but it's the movie theatre across the street that's bugging me in another structure. You know, that's -- I shouldn't be able to complain. And -- because there are, you know there's different governing things within a mixed use project, and that's where they should be complaining, not at the -- MR. BELLOWS: That's a good point. And I think maybe the answer is that we're talking about mixed use structures and mixed use tracts, tracts that have both commercial and residential uses on the same tract. Pebblebrooke doesn't have that situation, and that's where the difference lies. COMMISSIONER SCHIFFER: But when Pebblebrooke was developed, was it developed as a mixed use project? MR. BELLOWS: Yes, it was. COMMISSIONER SCHIFFER: And the site that the restaurant is on, was that shown as part of that development? I always understood that that was residential that they flipped through a PUD, they -- MR. BELLOWS: Well, the original PUD had a commercial component to it and -- a much smaller size. And the amendment increased the size of the existing commercial tract to include what was basically a residential part -- future residential part of that PUD. CHAIRMAN STRAIN: Yeah, the part that Stevie Tomatoes is on was an expansion of the original. But it always was a mixed use. COMMISSIONER SCHIFFER: Okay, so based on this definition, it would be part of the mixed use project. So they really -- Page 30 October 16, 2008 because I think the concern is, and when Jeff mentioned it, if somebody moves into the second level above a restaurant in a mixed use Smart Growth thing, they've got to realize the noise is going to be different than if they're out in the middle of a field somewhere. And we shouldn't be getting involved in that complaint. CHAIRMAN STRAIN: Right, which is why this definition needs to be fixed -- MR. BELLOWS: Yeah, that was my concern-- CHAIRMAN STRAIN: -- somehow. And fixing it, that's the point I think we've both now come up with. MR. BELLOWS: And I think maybe the solution is talking about mixed use tracts along with mixed use structures -- COMMISSIONER SCHIFFER: Well, try to avoid the-- MR. BELLOWS: -- versus an overall PUD that is mixed use. COMMISSIONER SCHIFFER: I think the word structure is going to get you in trouble, that's my only point. I'm done. CHAIRMAN STRAIN: Okay, Page 6, anybody have any questions on Page 6? Mr. Schiffer? COMMISSIONER SCHIFFER: In the definition of multi-family, you say two or more units. Now, just to drag building code into it, the building code is three or more units would be a multi-family. Is your concern that like in a duplex the noise between the tenants in that duplex, is that what you're trying to pick up here, or MS. SCHOTT: Actually, the building code for sound transmission is two or more units. COMMISSIONER SCHIFFER: It is? MS. SCHOTT: Yes. International Building Code and also Florida Building Code. So yes, this would apply to duplexes. COMMISSIONER SCHIFFER: But under the definition of Page 31 October 16, 2008 multi-family in -- MS. SCHOTT: Yes. COMMISSIONER SCHIFFER: Okay, all right. Second thing, noise. It appears that noise is only something that annoys. I mean, so, much like -- so I guess noise is in the ear of the beholder or something that -- MS. SCHOTT: That's true. And as the traditional definition, we normally use the word sound for all sounds, and then noise is normally considered sound that annoys. COMMISSIONER SCHIFFER: Okay, all right. COMMISSIONER WOLFLEY: To who? COMMISSIONER SCHIFFER: Well, it's in the beholder. I mean, if I'm quietly playing a clarinet and I've never played one before in the corner there, I'll be annoying. So that would be -- MS. SCHOTT: It's always a difficult issue. What some people find pleasing sound others find is a disturbing noise. That's always -- COMMISSIONER SCHIFFER: Okay, thank you. CHAIRMAN STRAIN: Mr. Murray? COMMISSIONER MURRAY: Yeah, under pure tone, just explain why we would need this as a definition in here, how it impacts in any aspect of the document. MS. SCHOTT: This would come into play for instance if you had let's say a commercial establishment that for some reason was emitting -- COMMISSIONER MURRAY: Harmonic? MS. SCHOTT: -- an alarm or a tone of some sort, that's what a pure tone is. And pure tones can be -- they're more noticeable by the human ear, so they can be more disturbing and more annoying in some cases than general broad frequency noise. COMMISSIONER MURRAY: Again, returning to the area of the ambient sound, a pure tone is discernible in an ambient situation, Page 32 October 16, 2008 right? MS. SCHOTT: Depending on the decibel level, it can be, yes. COMMISSIONER MURRAY: Right, right. MS. SCHOTT: It's usually more easily discernible. COMMISSIONER MURRAY: On a higher the decibel level -- or actually you can get to a certain point and it ceases to exist, except for dogs, right? Sound -- noise to the dog, the tone. MS. SCHOTT: Oh, yes, right. You can get up into high frequencies that we can't hear. COMMISSIONER MURRAY: But what I'm driving at is that you could have a tone, pure tone at a low rate -- MS. SCHOTT: Yes. COMMISSIONER MURRAY: -- and hardly discernible; is that right? MS. SCHOTT: Yes, you could. COMMISSIONER MURRAY: So what is it we're trying to capture? What machine, what A-weighted or C-weighted machine will qualify pure tone? MS. SCHOTT: There are many machines that emit pure tones. The reason it's defined -- COMMISSIONER MURRAY: No, no, no, I'm sorry. What testing device, A-weighted, C-weighted, will be able to register pure tone? MS. SCHOTT: Oh, actually, in order to determine a pure tone by this definition, you have to have a sound level meter that will measure octave band sound pressure levels. COMMISSIONER MURRAY: That's three meters so far, right? MS. SCHOTT: In most meters --let me take this back. Most meters that acoustical consultants have, and I know that your code enforcement department has, will measure all three. The only meters that typically won't are the very inexpensive meters you can buy at a place like Radio Shack. Page 33 October 16, 2008 COMMISSIONER MURRAY: Okay, that's important to note, I think, for us, that you're talking about there is such a thing as a meter that can register more than -- or at least these three sounds, these three MS. SCHOTT: Yes. And your code enforcement department already owns them. COMMISSIONER MURRAY: That's important for me to know. Thank you. CHAIRMAN STRAIN: Page 7, anybody have any questions on Page 7? COMMISSIONER SCHIFFER: Just one. CHAIRMAN STRAIN: Go ahead, Mr. Schiffer. COMMISSIONER SCHIFFER: In the real property definition, you use the word imaginary line. And I think I know why you're doing that, but -- for the description of a lot line. Now, in the building codes, and again we have an imaginary line, means something else. So is that the intent here, or is the intent just to try to come up with a definition of what a lot line is that -- MR. WRIGHT: This definition's been in the code for a while, and there really wasn't a whole lot of focus on changing it. I think the idea is to capture the concept of get the visual line for the property boundary . COMMISSIONER SCHIFFER: Thank you. MR. WRIGHT: But I'm happy to give it a closer look, if you think that's necessary. CHAIRMAN STRAIN: Page 8. Anybody have any questions on Page 8? (No response.) CHAIRMAN STRAIN: Page 9? COMMISSIONER SCHIFFER: Well, I do. CHAIRMAN STRAIN: Go ahead, Mr. Schiffer. COMMISSIONER SCHIFFER: In the definition of vehicle, it's Page 34 October 16, 2008 transport or drawn upon a highway. Should we change that to roadway? I'm just -- could somebody be defending themselves by saying that I'm not on 75, I'm on your neighborhood street? And then -- you see what -- I'm sorry, it's on the second line towards the end. And legally that may make sense. So you'd judge that, but it says transport or drawn upon a highway. Would that mess up a category or MR. WRIGHT: I agree with you. A lot of those things wouldn't be allowed on a highway. So roadway would be more appropriate. COMMISSIONER SCHIFFER: And then the next line where it says including and it starts to list everything. Should we say but not limited to, or do you think that's obvious, the word including? You see that, Jeff? MR. WRIGHT: I think it's always safe to say but not limited to. COMMISSIONER SCHIFFER: Okay. And then the other thing is you don't have lawnmowers. Now obviously is that on purpose or you want to exclude lawn -- I guess the roadway -- well, I have a friend who drank a lot and he drove his lawnmower up to the 7- Eleven quite a bit, so -- (Laughter.) MR. WRIGHT: I think the farm labor vehicle would be a tractor. But an actuallawnmower would not be a vehicle. COMMISSIONER SCHIFFER: Okay. Well, that will make him happy. Thank you. CHAIRMAN STRAIN: Okay, we're on Pages 8 and 9. Any other questions on Pages 8 and 9? (No response.) CHAIRMAN STRAIN: Jeff, on the top of Page 9 where you refer to number five, public and private schools, colleges and universities, all those are considered residential uses, which means for the level that you'd be measuring them. Page 35 ------_.,"-',.,,'""""'-,._--_.,"',._-""--_._.._~,-- October 16, 2008 However, a lot of our noise that we have complaints from come from football teams shouting at night, games going on, noise from stadiums, things like that that are within those facilities. So are the ancillary facilities to all those also going to be weighted at the residential use level on number five? Is that the intent? MR. WRIGHT: I think that if the ancillary use is literally part of the school, then it would fall under this language. However, there really wasn't a whole lot of examination done as to whether or not this would apply to stadiums, and it may be worth further investigation. And maybe we should hammer out a specific provision to stadiums, because I don't believe that this covers that situation. CHAIRMAN STRAIN: I don't know if we want to stop football games at stadiums, that's not where I'm going. I just want to make sure that if it's to be a measurable level or to be excluded or however it's to be applied it's addressed in this ordinance, so -- and I didn't see it anywhere, so that's why I'm asking the question. Ms. Caron? COMMISSIONER CARON: I think they're excluded further on in this document, if I'm not -- I certainly don't have a tag so I wouldn't MR. WRIGHT: It may be Page 25 at the bottom where there's an exemption for authorized school, park or playground activities, sporting events included. CHAIRMAN STRAIN: Yeah, I've got it noted down. Okay. I should have caught that. Thank you, Ms. Caron, that's a good point. Okay, any questions on Page 10? COMMISSIONER WOLFLEY: I do. CHAIRMAN STRAIN: Mr. Wolfley? COMMISSIONER WOLFLEY: I think that -- would it be helpful if we could just get a rule of thumb chart here to list certain things that we hear every day and put a level to that so that we can put Page 36 October 16, 2008 some substance to this ordinance? So in other words, anyone can read it and say well, a typical car horn is this loud, you know, the traffic on 1-75, you know, although being a drone, I mean, it can -- drowned out, but, I mean, what is the level of that standing 100 feet away or whatever. We all know what that sounds like. Or the ringing of bells outside of a discount store during the holidays. I mean, you know, although permissible they're loud and can be obnoxious. Not that I disagree with it. Or a police siren, we all know those are very loud. And how loud is it? Humans cheering at a football for a team at a sports bar, how loud is that? MS. SCHOTT: I have a document I call a noise thermometer that I thought I had distributed at the previous meeting, but perhaps I haven't. Unfortunately I didn't bring a copy of it again. But yeah, there are -- I do have a standard noise thermometer that would show you probably a dozen different noise sources and what the decibel levels are. COMMISSIONER WOLFLEY: We typically hear a baby cry in a restaurant, you know, things like that that we all could relate to. Am I the only one that thinks that will be helpful or -- MS. SCHOTT: Are you suggesting that to be put in the ordinance or just that you would like to see something like that? COMMISSIONER WOLFLEY: I think that ifsomeone's going to try to defend themselves with an ordinance, there should be some rule of thumb in there, I mean, other than saying well, my meter said this. It's like getting arrested for going 38 in a 35 or something. Well, that was his meter. Well, what's a good rule of thumb for the sound? I think it would be helpful. Maybe I'm the only one. But I would sure think that if I'm trying to defend myself because I was driving down the street with my sub-woofer or whatever blowing and I got a ticket, that I'd need to be Page 37 October 16, 2008 able to defend myself. CHAIRMAN STRAIN: How would listing in this code that a sub-woofer may be too loud give you any help in defending yourself? I mean, maybe for your personal benefit Mr. Wolfley could use a list. And if you have such, you might want to give it to him so that the next time this comes forward if after you read the list there's a valid reason in which it may apply to this, then it might be a better time to consider adding it. COMMISSIONER WOLFLEY: Well, Chair, it's due to the subjectivity of almost every one of these clauses. And that's what we've been discussing mostly, everyone's issues have been that it's so subjective we can put a thumb on the thing. MR. KLATZKOW: You've got a choice. Your choice is either have a sound ordinance that is strict, all right, which I think is what this community wants. In which case you will have some subjective standards. Or you can have an ordinance that is not strict, in which case we make everything objective. And it depends what you want. If you want something that's 100 percent enforceable but that's going to give you a lot of noise in this county, however, we can give you that and we won't have any subjectivity here. COMMISSIONER WOLFLEY: Well, one thing I don't want-- MR. KLATZKOW: We have a provision here that refers to loud and raucous noise, for example, all right. And yes, that is as subj ective as you get. But there are times when somebody's driving an ATV behind your house, for example, that it's just loud and raucous and you want to do something about it. Or the boom box in the car driving by. And I agree that is subjective, but if you want something that I think comports with what the community wants, that's the trade-off here. COMMISSIONER WOLFLEY: Well, if we're putting together a Page 38 October 16, 2008 law, the last thing I want is a law that can't be enforced. Then why even do it? It's a waste of time. MR. KLATZKOW: But that's like I can give you a sign ordinance that's 100 percent constitutional and you'll have neon signs and you'll have Girls Here signs and everything else. I mean, the more strict you get, the more likely you're going to get somebody challenging it, and sooner or later the more likely you're going to get a sympathetic judge. I mean -- COMMISSIONER WOLFLEY: But why should we put something together that no -- well, I guess I'm putting it too far, but why have more laws if the laws can't be enforced? CHAIRMAN STRAIN: That's why we're here today is to go through this and tweak it to a point. Mr. Wolfley, you made a suggestion about adding something to the ordinance. I'd like to see what the response is first without putting it in to see if it's worthy of putting in so the rest of us can weigh in on your concern. Is that fair enough? COMMISSIONER WOLFLEY: Sure. CHAIRMAN STRAIN: Page 10? Mr. Schiffer? COMMISSIONER SCHIFFER: I guess one thing is in the ANSII thing there. And I think it would be good if you put the title of the ANSII thing also, the ANSII standard you're referencing. In that standard does it require multiple tests or -- what you're kind of -- when you go into an ANSII standard, you're hiding a lot of things. But in other words, when the person's making this test, is it done multiple times or you just do it once, pack up and go home, or -- MS. SCHOTT: This ANSII standard doesn't specify one or multiple times. So the ordinance requires a minimum of a one-minute -- a single one-minute measurement. COMMISSIONER SCHIFFER: Is that good? Should we have -- shouldn't we test it a couple of times while we're there, while we're set Page 39 October 16, 2008 up or -- MS. SCHOTT: I think as a requirenlent it's good the way it's written. I think code enforcement will certainly take multiple measurements when they feel it's necessary. It all depends -- when I go out and do testing, for example, it depends upon the nature of the sound. If it's continuous and steady, then I may determine that technically one measurement is sufficient. If it seems to be fluctuating over time, as you would have with any sort of entertainment venue, you would take many measurements over a long period of time. But I think as a requirement a single one-minute measurement is sufficient, and it should be left up to the -- either enforcement officer or the person taking the measurement. COMMISSIONER SCHIFFER: But you did leave that up to someone's judgment. Shouldn't we -- in other words, if the sound isn't continuous, shouldn't we require multiple tests? MS. SCHOTT: I really don't see any way we could predict every situation. And I'm afraid that by making this more specific and trying to define how many measurements you take in various situations, we will cover only a small percentage of the possible situations out there. There won't be guidance for other situations. And it would be extremely cumbersome to try to define -- beyond the way it's written now to try to say okay, for situation A you have to take 10 measurements, for situation B you have to take 20. There's just no way we could predict that. Some of these types of decisions have to be made based upon the experience and expertise of the tester. COMMISSIONER SCHIFFER: But the tester could be being hired by the person who's trying to refute the claim. So, for example, I could be the tester, I'm out there, I'm standing, I'm all set up and I do my test. But it's only a noise when the guy opens the door to the back of the bar that I -- you know. So in other words, I could say I did what Page 40 October 16, 2008 you said, you said go out there, take one test for one minute. I was out there one minute, ran the machine and I didn't pick up anything. MS. SCHOTT: Well, of course each person is going to try to put their data in the best light possible, that's always the case. So you may have the situation you're describing but then the enforcement officer has the responsibility of determining if at another time there was in fact a violation, and that may require measurements at various times. MR. SCRIBNER: For the record, David Scribner. I can tell you that as a practice we take multiple readings. The only time I can think that we would had one reading is if we took a reading and then for some reason weather played a factor. If it started raining we wouldn't be able to take a second reading. What we would probably do is go back the next day when the weather cleared and take another reading. We want multiple readings to show a pattern. COMMISSIONER SCHIFFER: Okay. Thank you, I'm done. CHAIRMAN STRAIN: Mr. Murray? COMMISSIONER MURRAY: Yeah, up at the top there you have the first three lines of -- lined out. And then you have the second. Then it begins, in order to file a complaint, the complainant must provide his/her name, address and phone number. Is that still true? I thought that the code enforcement -- that was changed by policy. Code enforcement does not expect to receive a name and phone number, address; is that true? MR. SCRIBNER: This is one of the few ordinances that we have that require people to leave a name and address. We want to know the noise affected site. F or instance, you may have a neighbor to a bar who is not offended by the noise that comes from that bar, but maybe the neighbor down the street does. So we want to make sure that we find out where the noise affected site is and we take the noise reading from that site. COMMISSIONER MURRAY: Do you have any other Page 41 October 16,2008 exceptions to the policy that the Commissioners made? That's interesting, I thought they changed the policy. So you're saying -- MR. SCRIBNER: This isn't policy; this is part of the ordinance. COMMISSIONER MURRAY: I said, this current ordinance does require somebody to provide their name and address. Okay, I don't personally have a problem with it, but I was just curious about that. Thank you. MR. SCRIBNER: What we didn't want is -- and we have this in other issues where we will have competitors complain that are not affected by the noise or the sound at all. And this is one way that -- we have people that we go to and find what their issue is, where the issue is. And we take it because we don't know exactly where the noise affected site may be. COMMISSIONER MURRAY: Well, I could give you an example of that. I live probably a mile or two away from Lely High School and I hear the band practicing sometimes, and I think it's wonderful. MR. SCRIBNER: Exactly. COMMISSIONER MURRAY: God, I hope we don't do things like cutting that type of thing out. MR. SCRIBNER: Right. COMMISSIONER MURRAY: Thank you. CHAIRMAN STRAIN: Mr. Kolflat? COMMISSIONER KOLFLAT: Getting back to what Commissioner Schiffer brought up on this question of one measurement. Will the statement one or more measurements solve the problem? Apparently the code enforcement doesn't always do more than one, and this leaves it open that it could be one or more. MS. SCHOTT: I'm trying to think of possible unintended consequences of that. We do currently say a minimum of one, one-minute duration. Page 42 _._____~__.__~._^~.__.__..._,_"",_>_H~,._.,.~..~_.._..._>._.____ October 16,2008 I'm sorry, a measurement of minimum one-minute duration, which allows you to do more at your option. So I think we already addressed that. COMMISSIONER KOLFLAT: Just by virtue of it being a mInImum. MS. SCHOTT: Right. Saying minimum or saying one or more I think is accomplishing the same. COMMISSIONER KOLFLAT: I didn't know whether it might clarify it or not. Apparently not. CHAIRMAN STRAIN: Okay, we're on Page 10. Jeff, I had mentioned to you a concern that the underlining in the top of that page may not work with all zoning districts in regards to setback because we have zero lot lines and we have lots in some cases that are narrower than 50 feet. I'm not asking you to respond to it now, but you might want to take a look at that in reference to that issue so that when this comes back we can see if that was a -- if there's a consideration needed to be addressed there. MR. WRIGHT: Okay. CHAIRMAN STRAIN: Page 11. Anybody have any questions on Page II? COMMISSIONER MURRAY: Yes, sir. CHAIRMAN STRAIN: Mr. Murray? COMMISSIONER MURRAY: I had -- I don't know, ma'am, did you get that sheet that I handed out? He gave it to you? MS. SCHOTT: Yes, I did. COMMISSIONER MURRAY: Okay. And this is particularly why I'm concerned. We have residential, 7:00 a.m. to 10:00 p.m. The human voice runs from 40 to 60 decibels. So in other words, if I'm at 61 decibels I'm breaking the law. And I find this very challenging, to say the least. MS. SCHOTT: Keep in mind, it's at the property line of the Page 43 October 16, 2008 property receiving the sound. COMMISSIONER MURRAY: Well, I'm sure that would be true. But let's say you have a circumstance which is going to happen, I'm certain, where you have condominium people living next to each other, people in townhomes, people in various situations, they will not be concerned with property line because that would be hard for them to distinguish it. They're concerned with the sound, they're concerned with the noise. How do we deal with that? Because how do you go in -- I mean, my neighbor next door who is hard of hearing keeps the TV loud. It's going to exceed the voice level because the person can't hear the voices very well. How will we deal with that? MS. SCHOTT: In the condominium situation that will fall under the multi-family requirements, which start on Page 14. And the way that's regulated is not at a property line, because that wasn't appropriate, as you mentioned. We require specific limits within the condominium that's receiving the sound. So the way that is handled is not only a person -- the builder, the designer of the building has to design the tenant separation walls to be sufficiently built to reduce the noise a reasonable amount. If the -- if one neighbor is particularly loud, that wall may not be sufficient. So the controls are not only limiting the amount of sound one person can make, but also the design that has to be incorporated into that building in order to accomplish these final levels. But you can see here the level inside a condominium or any multi-family dwelling cannot exceed 53 decibels during the day and 45 at night. COMMISSIONER MURRAY: Human voices -- MS. SCHOTT: Normal human voices will not be a problem with that. COMMISSIONER MURRAY: Human voices run from 40 to 60. I live in -- Page 44 October 16, 2008 MS. SCHOTT: Right. COMMISSIONER MURRAY: -- a condominium -- let me finish. I live in a condominium upstairs. If they have entertainment on their lanai on a nice November or December day, they have their doors open and I have my doors open, they make it challenging for me to hear my TV. I try to, you know, make sure I don't abuse them. What I'm getting at is that I realize that we talked about subjectivity, and I appreciate all that we're attempting to do here, but I'm just wondering, are we setting our decibel numbers so low that we are going to actually precipitate problems? Or is this something that you can testify as the expert that this is universally accepted throughout the United States? MS. SCHOTT: These levels are universally accepted. And these are also the levels that you have always had in your ordinance. The levels have not been changed. COMMISSIONER MURRAY: That doesn't -- MS. SCHOTT: And you haven't had -- COMMISSIONER MURRAY : We're here because we're looking at the noise that -- MS. SCHOTT: No, I understand -- COMMISSIONER MURRAY: -- you know, I mean -- the ordinance because it needs to be modified. So you're testifying, actually, that this is universal throughout the United States? MS. SCHOTT: Yes, these are generally accepted levels. COMMISSIONER MURRAY: I'm amazed. Okay, thank you. MS. SCHOTT: And if I might address the condominium issue. The building code does require tenant separation walls and floor ceiling systems to provide a sound transmission class rating of at least 50. This is not directly related to decibels, but it's roughly a reduction of 45 to 50 decibels between units. So our 53 limit during the day, add another 50 decibels onto that, Page 45 .II. . ~ . October 16,2008 that would say that the next door neighbor would have to be at 103 decibels, roughly, in order to violate this ordinance. And that's quite loud. Now, the situation would be different if the windows are open. And so your noise ordinance may say okay, if you're playing a stereo or if you're having a party or talking very loudly, you may have to close your windows so that you're not in violation of this ordinance. COMMISSIONER MURRAY: I know. We have lanais, and the lanais are open and people should have a good time and they should have the opportunity to entertain and talk and laugh and enjoy their evenIng. I just am concerned that it doesn't become an opportunity for people to be cranky and grumpy. That's all, thank you. CHAIRMAN STRAIN: Mr. Schiffer, then Ms. Caron. COMMISSIONER SCHIFFER: My question was the building code thing you explained, thank you. CHAIRMAN STRAIN: Ms. Caron? COMMISSIONER CARON: Yeah, I think you've just answered my question as well. You said that these sound levels have not changed -- MS. SCHOTT: That's correct. COMMISSIONER CARON: -- from the code as it currently stands. So my question to you is how are we helping all the situations that we're in now that code and the Sheriffs Office can't do anything about if we're not changing these levels, if we're not making these levels more strict? MS. SCHOTT: Well, in many ways, actually, by -- through some of the other phrases and clauses that have been included. F or instance, we talked about outdoor seating before. And there are new requirements within the annual permit section that require all businesses within 2,500 feet of residences to obtain a permit. Page 46 October 16,2008 COMMISSIONER CARON: Right, I understand. So I go get a permit, but these noise levels haven't changed from today whether I have a permit or not. So how is that helping us? MS. SCHOTT: Well there are also new limits on hours of operation for businesses within the 2,500 feet that were not there before. That's one of the strong -- COMMISSIONER CARON: We're relying on things like hours of operation and permits more than on the actual noise levels. MS. SCHOTT: Well, because -- I think you're starting from good sound level limits. And as I mentioned, they're very similar to many other communities. So we didn't feel a need for those to become more stringent, just the ways that enforcement can be done. COMMISSIONER CARON: I'm just -- and again, I'mjust curious, because it seems in the past we've had a great difficulty with enforcement, based on these numbers. Our code enforcement people go out and, you know, get these readings and we have people that are extremely affected by the noise that's happening, and yet code says I'm sorry, I can't do anything about it because the noise levels are "X" and they're not surpassing them. So I just -- I don't want to put a lot of extra verbiage in here if we're not going to actually solve the issue. I think we should be getting stricter on these things, frankly. CHAIRMAN STRAIN: And maybe by way of example, let's take -- Stevie Tomatoes is the easiest one to use. We have Stevie Tomatoes. Between it and the residential we have a preserve area, and then we have the residential area. Based on the sound levels that you have here, on the Stevie Tomatoes site to the edge of their property line on their side of the property line it would look like from 10:00 on they could have a dBA of 60; is that a true reading of that? MS. SCHOTT: Well, we have to be concerned only about the receiving property. They don't have a limit -- commercial business Page 47 October 16,2008 does not have a limit at their own property line. It depends on what the adjacent property is. CHAIRMAN STRAIN: Okay, so then you would have to go to the residential property to ignore the preserve? MS. SCHOTT: Right, this would apply -- yes, this would apply at the boundary in that case between the residential and the preserve. CHAIRMAN STRAIN: Okay. So then you would go to the inside edge of the residential property, you'd put your meter in, you'd come back at say 10: 15 and they would have a less than 55 decibel level, 54, say, they'd be okay. MS. SCHOTT: Right. CHAIRMAN STRAIN: Okay. Will the dumpster enclosure, for example, the dumpster being lifted and dumped and all that banging, will that exceed the 55? Because they would do that prior to 7:00 in the morning. And then would some of the noise you heard in that tape -- and I know you can't make a sound judgment, but does the type of noises we generally heard on that tape exceed the decibel levels we see here? And that's what I'm trying to get to, because if -- and Ms. Caron's absolutely right, if we still have a problem because the decibel levels are placed too high and they should be lower, then maybe we ought to be looking at that. MS. SCHOTT: It's possible that the dumpster was in violation. And the reason I say that is if you look at Page 14, paragraph C.2, we do allow for non-repetitive impulsive sound, like the banging of that dumpster, to occur up to five times an hour during daytime hours only. At night that has to meet the nighttime noise level limits. I didn't take the readings of any dumpsters being dumped there, but it's possible that that was in violation. CHAIRMAN STRAIN: The rest of the sounds you would typically hear from a bar that's say 1,000 feet away, would you expect them to be underneath these decibel levels like the video showed, do Page 48 October 16, 2008 you think? I know it's really subjective for you to answer that. I think that we're trying to get a handle on what we're saying is right or wrong. MS. SCHOTT: Depends on the size of the crowd and what's going on in the bar. And unfortunately I didn't take any readings there when they had amplified sound on the outdoor seating area. But amplified sound through loudspeakers of a TV or stereo or even a live performance is probably more likely to violate this ordinance than even a crowd of human voices. More likely. It's possible that a crowd of human voices could be in violation, but it would have to be sustained loud levels of voices because of our measurement period of one minute. So sustained noise would be more potentially in violation than an occasional shout. CHAIRMAN STRAIN: I know this is probably impractical to even consider doing, but Mr. Wolfley's concerns about how this applies is a good point. One of the best ways we could ever learn is to go somewhere and actually have it set up so that we can hear the sound differences in these decibel levels over different periods of time and see what it means. But I don't have any way of accomplishing that. I don't know if you've got something that is -- there's a living example that is available. MS. SCHOTT: The easiest way I've done that in the past is to bring in a loudspeaker system into a room like this and play different levels for you. CHAIRMAN STRAIN: Can you do that with the acoustics in a room and amplifying everything as well as -- because this is not the typical way you'd hear it, possibly. Is it -- MS. SCHOTT: Right, it would certainly sound different than it would in an outdoor environment, but it could give you an idea. I mean, I would -- what I would do would be set up a loudspeaker system, have a microphone right in front of you and then verify the Page 49 October 16, 2008 decibel levels as I adjust the sound. I have done that in the past. And this is a fairly good room for that. I've done that kind of a demonstration in a large reverbing courtroom in the past, and that's not such a good environment. But you have acoustical ceiling and carpets and it could be done. It would be hard to do it I think out like, let's say you go out in your community, we would probably be driving around for hours trying to find the sound levels that you wanted to listen to. CHAIRMAN STRAIN: Okay. Mr. Schiffer, then Ms. Caron. COMMISSIONER SCHIFFER: On that topic with the non-repetitive sound on Page 14, wouldn't you be able to set the machine up, and as these people are yelling you could -- you know, one guy goes over the thing and you've got within an hour five. So as soon as you hit five or an hour, wouldn't you have captured the violation at that point in time? MS. SCHOTT: Yes, you can do that. Integrating sound level meters are capable of doing that. COMMISSIONER SCHIFFER: Right. So in other words, you really would catch -- if those shouts exceed the limits, you would catch them. MS. SCHOTT: Yes. COMMISSIONER SCHIFFER: Thank you. CHAIRMAN STRAIN: Ms. Caron? COMMISSIONER CARON: Well, I was just curious about the 6:59. We have a couple of instances where we have a whole minute in our lives where we can do anything we want, and I just wondered why that was. We can all scream together or whatever it is. (Laughter. ) MS. SCHOTT: Well, would 659.59 be better? Then you'd only have one second. Or we can round to the nearest minute. COMMISSIONER CARON: In the rest of them it says from 10:00 p.m. to 7:00 a.m. and from 7:00 a.m. to 10:00 p.m. on charts Page 50 October 16, 2008 that when you go further along in this document. And I just thought it was amusIng. MS. SCHOTT: We can do it either way, however you'd like. Also, I mean, the same issue comes up on decibels. If you're at 60.1, is that a violation? If you're at 54.9. Normally the custom is to round to the nearest minute or decibel. CHAIRMAN STRAIN: Okay, let's turn to Page 12. Any questions on Page 12? Mr. Kolflat? COMMISSIONER KOLFLAT: On the top paragraph there, the bottom part of it, you indicate five dBA or dBC. The quantitative number of five only precedes dBA, it does not precede dBC. Now, if you go to Page 9, down at the bottom of the paragraph there, last paragraph, you do have the number five dBA or five dBC. F or consistency, shouldn't you repeat the quantitative number or not repeat it? MR. WRIGHT: Yes, we'll make that change. COMMISSIONER KOLFLA T: Thank you. That appears in several places on Page 12. More than once. CHAIRMAN STRAIN: Okay, any other questions on Page 12? (No response.) CHAIRMAN STRAIN: Page 13 is all crossed -- well, the top's the only thing that's not crossed out. COMMISSIONER MURRAY: I have a question. CHAIRMAN STRAIN: Mr. Murray? COMMISSIONER MURRAY: My note here is we do this because. The difference alleged violating sound level and ambient sound level. We put a correction in because we recognized that there's a certain degree of inaccuracy as a result of a human interface with a machine that may also need some adjustment or qualification? MS. SCHOTT: No, actually, the correction is made because when you take a sound level meter out to take a reading, you're Page 51 October 16, 2008 measuring all of the sound in the environment, which is the sound from the machine or the commercial business that's being created, plus the wind rustling the leaves in the tree and the dogs barking and the neighborhood noises that exist in the ambient. So we recognize that the person making the noise cannot control all these other sounds. And if they're -- the sound that the person is emitting is close to the ambient, there needs to be a correction made to subtract out all of that other noise that is not due to the person generating the noise. COMMISSIONER MURRAY: And I appreciate that. Mr. Schiffer also, when he talked about the intermittent noise, and you mentioned a sound integrating device, does the Collier County Code Enforcement and deputy sheriffs, do they have such a device? MS. SCHOTT: Yes. COMMISSIONER MURRAY: Thank you. CHAIRMAN STRAIN: Page 14? Are there any questions on Page 14? (No response.) CHAIRMAN STRAIN: Page 15? COMMISSIONER MURRAY: Yes. CHAIRMAN STRAIN: Mr. Murray? COMMISSIONER MURRAY: Again, my question here -- I'll read my notes first. Okay, 53 dBA, again, normal human voice. Laughing would be higher, right? The volume the sound made would be higher than that. So in other words, if I get up in the morning and my wife cracks a joke and I laugh earlier than 7:00 a.m., I violated the law. That's what it comes down to, isn't it? MS. SCHOTT: No, again, this applies at the adjacent property receiving the sound, not at the property on which the sound is being generated, even if there's two people there. Page 52 October 16, 2008 COMMISSIONER MURRAY: Well, obviously someone's going to assert it before I could be visited by somebody. So I'm already presumed that's in effect. And I'm relating to November, December, January, February, where our doors are open and so forth. Many people are early risers. I just want to -- I'm going to keep on harping on the point if I have to about -- I'm going to give you an analogy that doesn't exactly strike. But I once read a book about -- short book, but it was about a village that lived in the Alps that -- the village was in the Alps and the people who lived there were very concerned with avalanche. So over a course of a long, long period of time they all learned to whisper. Nobody ever said anything very high for fear of the avalanche. And one day somebody came and they made a mistake and made a loud noise and an avalanche happened going down the other side of the mountain. So that's a concern about what we have, what we put in effect that impacts people. We have to do it the right way. And I respect everybody's efforts here. Whether we go high or low in the dBA, we're trying to find the right answer. MS. SCHOTT: But keep in mind too, the reasonable use of the unamplified human voice is exempted. MR. WRIGHT: So in the case of cracking a joke, you'd have a defense. COMMISSIONER MURRAY: Well, there you go. See, now when you get down to E, where you say enclosed residential dwelling unit, what do you exactly mean by enclosed? Is this when the door's closed and the windows are closed? MR. WRIGHT: Yes. And this question has come up. I've talked with Lisa this morning and we've agreed that we're going to change that language, enclosed, to make it clearer. And it will be as follows: With all doors and windows closed -- I'm sorry, completely enclosed by walls and roof with all doors and windows closed. Page 53 October 16, 2008 COMMISSIONER MURRAY: I think that makes more logical sense. Being enclosed is really arguable. Thank you. CHAIRMAN STRAIN: Mr. Schiffer? COMMISSIONER SCHIFFER: Yeah, my question was enclosed. But Jeff, I'm having trouble with reading one line. You see where it says, no sound tested by equipment shall violate this subsection or ordinance unless? I read that over and over, and I know it occurred before. It just seems clumsy to me. I mean, wouldn't it be better to say, no sound tested by this equipment violates this subsection? I read it and sometimes it makes it sound like you're demanding this thing to violate the section, you know. MR. WRIGHT: This came up at the first time through, and we have since modified the language to make clear that it's a two-part test. It has to exceed the sound level limits in Table 3 and also exceed the ambient sound by five. So that's what's intended there. If it's clumsy, we can always make it less so. COMMISSIONER SCHIFFER: I think what's clumsy is when you're -- you know, you're telling the equipment -- it's just a tense of shall violate this unless. I mean, if you just -- why do you have shall in there when you could just say no sound tested by equipment violates this subsection or ordinance unless? The word shall just -- because normally we use that someplace else to require somebody to do something. In here it's -- I'm not sure what its power is. MR. WRIGHT: I agree. So it will be equipment violates. That's smoother. I'll make the change. COMMISSIONER SCHIFFER: Thank you. CHAIRMAN STRAIN: Anybody else? (No response.) CHAIRMAN STRAIN: Jeff, in an effort to save time, I had gone Page 54 October 16,2008 over a lot of issues with you. I'm not going to repeat them here today now. It's going to take -- MR. WRIGHT: We have captured them all, mostly cosmetic-- CHAIRMAN STRAIN: I know you have, it'll just take too much time, so let's move on to Page 16. Page 16? COMMISSIONER MURRAY: Mr. Chairman? CHAIRMAN STRAIN: Mr. Murray? COMMISSIONER MURRAY: Yeah, I -- when you spend your time going over these things, that's good, and you've now indicated that you have other issues. Maybe the board could benefit from the insights that you have. Not that I want to sit here for any great length of time beyond reality, but you're actually making a separate arrangement with somebody to change something we will not have heard or known about. CHAIRMAN STRAIN: Well, Mr. Murray, when it comes back to us in re-write, if you object to capitalization of definitions and grammatical changes, you can make all the objections you wish. COMMISSIONER MURRAY: Oh, that's fine. I wish you had said that in the first instance, that would have been nice. Thank you. CHAIRMAN STRAIN: I just don't want to waste this board's time on things that I can resolve and read myself and that don't involve the general issues at hand. And when I can do that, I'm going to be doing that in the future, Mr. Murray. COMMISSIONER MURRAY: Well, fine, sir, I just would expect that you would tell us that those were, though, the minor changes so that we wouldn't presume that there was something else. CHAIRMAN STRAIN: Let's go on to Page 16. Does anybody have any question on Page 16? COMMISSIONER MURRAY: Okay. CHAIRMAN STRAIN: Anybody? Page 55 October 16, 2008 COMMISSIONER MURRAY: I do. CHAIRMAN STRAIN: Mr. Murray? COMMISSIONER MURRAY: Down under B, where you have here, and welfare -- let's see, it's one, two, three -- it's the fourth line that I'm concerned about, the use of the word designee. And you say, interest of public health, safety and welfare may apply in writing to the county manager or his designee. I would say to you to eliminate the word designee there. The county manager is the one it should be brought to. If you bring it to a designee, you now have the county manager perhaps unaware of the issue. We know it's going to be a designee. Do I make myself understood? MR. WRIGHT: This is in effort to be consistent. You make yourself very clear. Just consistent. A lot of our ordinances do have this language with county manager or his designee that basically allows the county manager to delegate this to someone else. COMMISSIONER MURRAY: Yes, but being consistent doesn't always make it grammatically valid or instructionally valid. And I think in this instance that -- in this instance in particular, if somebody asserts an emergency and they go to Joe planner -- and I'm being sarcastic, I know -- but they go to somebody who is other than the county manager, who may very well have the authority to do that, and if the county manager doesn't know about it as such, then it becomes a matter of repercussion. That's the concern I have. If I'm incorrect, that's fine. But I believe I'm right. CHAIRMAN STRAIN: Page 17. Anybody have any questions on Page 1 7? COMMISSIONER MURRAY: Yeah, on Page 17. CHAIRMAN STRAIN: Mr. Murray? COMMISSIONER MURRAY: At the bottom there, that distance must be measured and so forth. This is except a mixed use, Page 56 October 16, 2008 right? This is the one where you made a modification, is it? MR. WRIGHT: That's correct. And I just want to point out before we get too far into the details of the permitting, we do have an alternative that seems to be very attractive to everyone I've run it by. So I just didn't want you to -- I'd be remiss if I didn't mention that on the front end. COMMISSIONER MURRAY: Okay. That was the concern I had. Thank you, sir. CHAIRMAN STRAIN: Ms. Caron? COMMISSIONER CARON: Yeah. Excuse me. Number three, exceptions. Why is it that we're excepting the government from everything? If this noise affects the rest of the world, why does county government get to be offensive without any -- MS. SCHOTT: County government doesn't require construction COMMISSIONER CARON: We do this all the time. We except ourselves. MR. KLA TZKOW: Well, I think I can partially answer that. I don't know if Nick's around or not. But we do do emergency road work, we do do emergency public utilities work, we -- COMMISSIONER CARON: Right, but there are already exceptions for those things in here. MS. SCHOTT: I think this section is just saying that government would not have to get a construction permit. But the last phrase there that's underlined said the activities must still be in compliance with this ordinance. COMMISSIONER CARON: So it is saying -- where does it say just a permit? MS. SCHOTT: I think that was the intent anyway. This whole section deals with getting construction permits, does it not? MR. WRIGHT: I believe under 2.B there's a -- I think this is Page 57 October 16,2008 what Mr. Murray was focusing on earlier, the ability to get an emergency construction permit. It's the fourth line down. And then construction activities by government are exempt from that requirement. However, they still have to comply with the sound ordinance, the levels in the ordinance. COMMISSIONER CARON: All right, thank you. CHAIRMAN STRAIN: Okay, before we go on to the next page, let's take a break till 10: 15. (Recess. ) MR. SCHMITT: You have a live mic. CHAIRMAN STRAIN: Okay, everyone, welcome back from our break. We were moving at lightning speed. COMMISSIONER WOLFLEY: Snail speed. CHAIRMAN STRAIN: And we're on -- Page 16 is where we left off. I just want to make sure there's no other questions on -- actually, it was 17. Wow. Let's just go that -- let's just take that one page while we can. Any other questions? Mr. Kolflat? COMMISSIONER KOLFLAT: I spoke with you a little bit about this confusion on the exception that was raised by Ms. Caron. CHAIRMAN STRAIN: Could you move your mic. a little closer to you, sir? Thank you. COMMISSIONER KOLFLAT: Would you explain that again to me? MR. WRIGHT: Yes. Mr. Kolflat pointed out that logically this section that begins on Page 16, it's labeled F, construction sounds, there are three sub-paragraphs, one, two and three. And Mr. Kolflat pointed out that they don't seem to be organized in a logical fashion. And I suggested to him that I would make it so it is organized and logical. And my immediate thought is to move the exception to Page 58 October 16, 2008 the front of this to qualify that the construction activities by the government are exempt from the following, and then list the two requirements there that are in numbers one and two. So spiff it up and make it more logical I think was his general suggestion. COMMISSIONER KOLFLAT: Thank you. CHAIRMAN STRAIN: Ms. Caron? COMMISSIONER CARON: So in other words, government is exempt from 1 as well as 2.A and B? MR. WRIGHT: That's the intent, yes. CHAIRMAN STRAIN: Okay, we'll move to Page 18. COMMISSIONER MURRAY: Yes, sir. CHAIRMAN STRAIN: Mr. Murray? COMMISSIONER MURRAY: Right at the top up at residential amenities where you talk about places like clubhouses, you could have them enclosed, you could talk about recreation centers, same things. Pavilions, maybe not. Swimming pools, especially if they're occupied by children, I can't imagine them not violating the ordinance, based on the numbers that we're talking about. Do we have sound recordings? Do you -- as an expect, have you recorded sounds up, say, in the north park, you know, the Sun 'N Fun Lagoon and so forth? Not that it's close to anybody's situation, but we do have Golden Gate Park, we do have others, and we have -- more than anything else, we might have somebody's private pool. And I wonder, do we have any kind of exception for things like that? MR. WRIGHT: I'm looking at Page 25. Again, this came up in the context of the stadiums, authorized school park or playground activities. Now, Chairman Strain pointed out that within that paragraph parks aren't culled out. And I think that would be the appropriate place Page 59 October 16, 2008 to put parks and address the Sun 'N Fun Lagoon question. COMMISSIONER MURRAY: Good, I'm glad he caught that. But my concern would be more about since we're talking about it being residential amenities, where swimming pools fall into this is that issue that I'm trying to raise is qualify. You know, we do have common pools for different developments and so forth. I'm just trying to understand whether or not the ordinance will become a problem for communities in trying to deal with the grandkids come down, somebody doesn't like that there's grandkids, they make a noise, they call code, somebody takes and puts a meter on it and we have somebody cited, and I'm not sure who, maybe 12-year-olds. I don't know, have we given consideration to that? MR. WRIGHT: Well, first of all, there's more of a desire to regulate the commercial setting, because that's where this comes up more often where we have a need for an amplified sound permit. Now, as I mentioned earlier, if you look on Page 20, there's an alternative. And the more I look at this alternative and discuss it, the more attractive it appears to be -- COMMISSIONER MURRAY: I agree with you, by the way. MR. WRIGHT: And if we go with that it might get rid of the need for addressing and culling out those other -- COMMISSIONER MURRAY: All right, I agree with you. Thank you on that. CHAIRMAN STRAIN: Mr. Schiffer? COMMISSIONER SCHIFFER: On the commercial, you use the word habitable. I think occupied would be better. Habitable means the residential space. Occupy-able ( sic) would be any space that's allowed to be occupied. Habitable is a subset, but -- MR. WRIGHT: Triggered by a Certificate of Occupancy; is that the -- Page 60 October 16, 2008 COMMISSIONER SCHIFFER: No, just occupy-able means -- at least in building codes it makes sense. And then my other question is in residential you don't require an amplified sound. But I can see a situation where somebody could have parties and stuff with rock bands and stuff like that, the baby boomers . . are movIng In. So would that not be something that an adjoining property could have a problem with? MR. WRIGHT: Well, I believe in the case ofa rock band, they would probably be just plain old exceeding the sound level limits, and there wouldn't be any -- COMMISSIONER SCHIFFER: So they would never have to get the amplified permit for those particular parties and stuff or -- in other words, what you're saying below is that if you're indoors and you're making such noise that you're violating the sound ordinance then, you know, you're going to have to start getting amplified sound permits to come under control. I think that could apply to some situations in the residential. Obviously the clubhouse. On the patio they could have a once-a-night AC/DC party or something and that wouldn't be good to a guy within 2,500 feet. MR. SCRIBNER: For the record, David Scribner, Code Enforcement. I think the object of the amplified music permit was to give us some leverage so that if people violate it, we can revoke the permit on a commercial establishment and really take care of that. The issue with a residential rock band, as Jeff said, if we get those complaints, we go out and either code enforcement, the Sheriffs Department addresses those issues and brings them before the Code Enforcement Board. The amplified music permit is more for those ongoing commercial establishments, that we have another tool to use in order Page 61 October 16, 2008 to bring them into compliance. And I'm not sure how that would work in residential. COMMISSIONER SCHIFFER: Only like if the clubhouse had repetitive stuff, I think they should be getting amplified permits too. But what you're saying is you're going to go out, if they have a party once a month that violates it, you'll be out there once a month giving them a citation. MR. SCRIBNER: Yes, yes. If we get complaints about it, yes, we'll do that. COMMISSIONER SCHIFFER: Okay, thank you. CHAIRMAN STRAIN: Okay, we're on Page 19. Anybody have any questions on Page 19? COMMISSIONER MURRAY: I do. CHAIRMAN STRAIN: Mr. Murray? COMMISSIONER MURRAY: Okay, I'm looking at six, and I'm looking at the alpha to the delta. And my note to myself, as it gets later it gets quieter and these sounds will seem louder. If you look at that, you're talking about distances. You know, during the day the ambient noise is level, the ambient noise is higher. At night it gets quieter. How do we -- do we have a provision for that? I mean, I hope that if we're going to adjust hours of operation that we'll put that on the permit so that people will know at least that they are constrained for distances so that they have something that they're aware of. Because I realize you're trying to fix a situation, but I think if we do not have that kind of information on a permit or some attachment to the permit, we actually put people in a strange situation. I think I'm right and I think that most would agree that over time in the evening it gets quieter and quieter and it's easier to hear sounds that you might not have heard 2,500 feet away. MR. WRIGHT: Mr. Chairman, if I may make a point, related point. Page 62 October 16, 2008 When you see 6.A through D, dealing with the distance in times, that I viewed as problematic. And that's one of the -- COMMISSIONER MURRAY: Thank you. MR. WRIGHT: -- reasons that we came up with the alternative. And just for your information, there's a problem with over-breadth. For example, an establishment can be quiet, but it would have to shut down at 9:00 no matter what, due to its physical location, not due to noise. And we want our regulation to be more narrowly tailored to the goal of addressing sound and peace in the community. So the alternative that I've put forth eliminates that potential for over-breadth, which is a basis for challenging an ordinance like this. COMMISSIONER MURRAY: Okay, great. All right, super. Thank you. CHAIRMAN STRAIN: Ms. Caron? COMMISSIONER CARON: We don't have a copy of that yet, though. MR. WRIGHT: It's on Page 20 of 35. COMMISSIONER CARON: Oh, I'm sorry, yes -- MR. WRIGHT: In the bracket in bold. COMMISSIONER CARON: -- and I had a note about it. Thank you. CHAIRMAN STRAIN: Mr. Schiffer? COMMISSIONER SCHIFFER: One thing with these distances and everything, we don't really clarify what the distance is. For example, if I'm across water from something, I'm going to get more sound than if there's a preserve between me and that something. Is there any way in here that in the approval of this that that can be considered? I mean, 2,500 feet of a body of water could carry that sound. MR. WRIGHT: We have Ross Gochenaur here to answer that one. Page 63 October 16,2008 MR. GOCHENAUR: For the record, Ross Gochenaur, Zoning and Land Development Review. First I'd like to point out that I'm totally in support of the alternative that Jeff mentioned, and that would be no criteria. I think that that's greatly preferable to what I tried to come up with as objective criteria, but I feel that they're flawed for a couple of different reasons. If you decide to go with the criteria, for example, and you use the distance across water, would you treat that as -- if you had water between the sound and the residential community, you're saying that that 2,500 feet should really carry the same restriction as 500 feet across land? COMMISSIONER SCHIFFER: That's what I don't know, Ross. And we're in the approval criteria. You might be the one making these approvals. Would you take into consideration that -- this is waterway, but would you be trapped by the 500 feet? And maybe I guess we should just bow off and look at the alternate anyway and -- MR. GOCHENAUR: Well, to be honest, when I built in the mitigating factors, that was basically to cover a situation where you would have somebody who was close enough to residential that they would have to shut down at 11:00, but we wanted to take into consideration that there could be a 10-story building between the music and the residential. I didn't take into consideration the possibility that distance across water could actually amplify the sound and have a reverse effect. I feel that's one of the flaws, and again, that's one reason why I support Jeffs alternative here. COMMISSIONER SCHIFFER: Thank you. CHAIRMAN STRAIN: Any other questions on Page 19? (N 0 response.) CHAIRMAN STRAIN: Move to Page 20. And that is the page Page 64 October 16,2008 with the alternative, so I think we need to have discussion if that's the way we would suggest this be modified to. Then we need to let the staff know that. So any comments on Page 20? COMMISSIONER MURRAY: If that's -- CHAIRMAN STRAIN: Mr. Murray? COMMISSIONER MURRAY: In the sense of what you were just saying, I would support alternative F. I think that does help a great deal in this regard. CHAIRMAN STRAIN: Anybody else? Ms. Caron? COMMISSIONER CARON: Well, I guess my only comment gets back to the actual levels that we're using for enforcement as to whether this is going to end up being an effective ordinance and solve the issues. CHAIRMAN STRAIN: Will the alternative versus the other F change the -- be changed by any impacts of the levels then? I guess that may be another way of approaching your concerns? COMMISSIONER CARON: No, I think they don't do that. They have nothing to do with levels. I'm just saying going to the alternative is fine by me, except overarching this is I'm not sure we're actually solving what we're trying to solve. CHAIRMAN STRAIN: Okay, so I think the consensus is from the board that F is a more viable alternative to go to, but we still have concerns about the magnitude of what's allowed to begin with. So we probably will have to go back and visit that or have some more input on that as far as how normal they are versus what the public may expect. I'm not sure how to get there with that. I know we talked about a live example, but we'll have to -- I'm not sure -- MS. SCHOTT: Is that something you'd like to address now or later? Page 65 October 16, 2008 CHAIRMAN STRAIN: Let's get through the rest of the ordinance and hit that as an overriding point to discuss at the back end. On Page 21, it's all crossed out. Are there any questions? (No response.) CHAIRMAN STRAIN: Page 22 is the same way. Page 23. Any questions on Page 23? (No response.) CHAIRMAN STRAIN: Okay, Page 24. COMMISSIONER MURRAY: I'm sorry, Mr. Chairman, I have one. CHAIRMAN STRAIN: Mr. Murray? COMMISSIONER MURRAY: On Page 23 under F, and where it says, any other noise resulting from activities of a temporary duration permitted by law for which permission has been granted by the county. Should we be consistent here again by saying county manager? Because in one other place I noticed we did have the administrator of CDES in here. MR. WRIGHT: I would agree the consistency -- we should aim for that. We'll make sure they're consistent. COMMISSIONER MURRAY: That was your intent, though, right, it's under the County Manager's purview -- MR. WRIGHT: Yes. COMMISSIONER MURRAY: -- and whatever structure he organizes. COMMISSIONER SCHIFFER: Mark, one quick. CHAIRMAN STRAIN: Go ahead, Mr. Schiffer. COMMISSIONER SCHIFFER: And Jeff, up at the top where it says, are exempt from the sound level limits, do you think you should you add of 6.B, just to be really clear? Or is it -- MR. WRIGHT: We'll make a specific cross-reference. COMMISSIONER CARON: I'm sorry, where were you, Mr. Page 66 October 16, 2008 Schiffer? COMMISSIONER SCHIFFER: I was up at the permitted uses, and there's an added line, and are exempt from the sound level limits. But it's really of 6.B that they are. CHAIRMAN STRAIN: The question that Mr. Murray raised about a change, what was the -- permission has been granted by the -- now what do you think you're going to say there? COMMISSIONER WOLFLEY: County manager. MR. WRIGHT: County manager or his designee. And I know you don't like that term, but -- CHAIRMAN STRAIN: Well, his designee is used in all aspects of our code. So I -- and the county manager doesn't sign anything that I've ever seen from a permit, so I'm not sure that is applicable in this instance. But what I'm wondering is, is it the county manager or his designee that give permission, or is it the county system that gives permission? I'm just mincing words, but-- MR. WRIGHT: Well, theoretically I suppose that the Board of County Commissioners could grant this permission. So it might be appropriate to leave it as county, that way we'd cover that possibility. CHAIRMAN STRAIN: That's what I was suggesting, so -- I think you just need to take a look at it and make sure it's right, that's all. Page 24. Are there any questions on Page 24? Ms. Caron? COMMISSIONER CARON: Under I, obviously code doesn't regulate vehicles when they're on the road, but the Sheriffs Office does; is that correct? MR. WRIGHT: That's correct. COMMISSIONER CARON: Under L, we have all of the normal things that have to be taken care of, tree trimming and limbs and mowing and whatever. Why would the hours of operation extend to Page 67 October 16, 2008 10:00 p.m. for any of those kinds of daylight hour jobs? MR. WRIGHT: That's a great point. In fact, I don't know if Mr. Thomas is still here. Milt Thomas, a citizen, has raised the same concern. Who is out cutting their lawn past sunset even? And that is not a change that we're comfortable just making on our own. But if you'd like to note that recommendation, we could keep it in the text-- COMMISSIONER CARON: I really think we need to get daylight hours in here for this kind of thing. COMMISSIONER SCHIFFER: Donna? CHAIRMAN STRAIN: Go ahead, Mr. Schiffer. COMMISSIONER SCHIFFER: But there is mosquito fogging, and that's -- from my experience, I've only seen that at night, so -- COMMISSIONER CARON: They come early in the morning, actually. But okay, it may require two paragraphs then. MR. WRIGHT: Exactly. We could split them. COMMISSIONER SCHIFFER: Wouldn't mosquito be a government action? COMMISSIONER WOLFLEY: Well, not if you're doing it for a certain -- CHAIRMAN STRAIN: Mr. Wolfley? COMMISSIONER WOLFLEY: Not if you're doing it for a certain property under this context. Tree trimming and mosquito fogging, that's a personal thing, not a governmental -- I think that's what you meant, correct? COMMISSIONER SCHIFFER: Yes. CHAIRMAN STRAIN: Any other questions on Page 24? COMMISSIONER MURRAY: Yeah, just one. CHAIRMAN STRAIN: Mr. Murray? COMMISSIONER MURRAY: More out of curiosity than anything else. And I understand it, I think. Not -- at H, you're not including scale model aircraft. The assumption being that the scale Page 68 October 16,2008 model aircraft will have their own area someplace and they'll be under a permit, or what? MR. WRIGHT: I think that these are -- COMMISSIONER MURRAY: Or a conditional use or what? MR. WRIGHT: These are exemptions. COMMISSIONER MURRAY: Yeah, I understand that. So you don't want to exempt model aircraft. So they do exist, there are people who have that hobby. What are we doing, are we throwing them out into space, or what? MR. WRIGHT: They're subject to the normal sound level limits. They're subj ect to the ordinance, unlike other aircraft. COMMISSIONER MURRAY: However, by virtue of them being (makes humming noise) they aren't going to exceed the normal sound level. Are we simply eliminating them as an entity, or -- MR. WRIGHT: I can't speak as to what their levels would be. If they're too high, we can enforce the ordinance against them. If there've under the sound level limits, they would be able to get off the hook. MS. SCHOTT: So it depends on the proximity to the nearest residential property. COMMISSIONER MURRAY: Do the 2,500 feet apply? MS. SCHOTT: I'm not sure what a noise level ofa remote control aircraft is. I agree with you that they're loud, but -- COMMISSIONER MURRAY: Ifwe're gong to excise them, if we're going to accept it, if we're going to preclude their people using their hobby, shouldn't we know what it is we're doing? MS. SCHOTT: I don't believe that we're precluding anyone from using that hobby. We're just saying that they must meet the same sound level limits that we've applied at residential property boundaries. So if you can run your remote control aircraft and it's no higher than 60 dBA during the day at the nearest residential property, then it's acceptable. Page 69 October 16, 2008 And depending on how loud that aircraft is, you might have to be 50 feet or 500 feet or 5,000 feet away from the nearest residence. COMMISSIONER MURRAY: Bad law. CHAIRMAN STRAIN: Ms. Caron? COMMISSIONER CARON: Yeah, under M, the exceptions for existing operations. I'd like to look at the last line. It says, in these instances the noise ordinance pertaining to industrial/commercial boundaries shall govern and the business shall not be required to meet those noise levels pertaining to residential boundaries. So it is -- you're making this a which came first thing, not a zoning issue. So someone can't come back and claim but my zoning is commercial so I should be allowed to do this. It would be what was there first, the houses that are next to you now or you as the commercial operation, correct? MR. WRIGHT: Correct. COMMISSIONER CARON: Good, thank you. CHAIRMAN STRAIN: Page 25? Anybody have any questions on Page 25? COMMISSIONER WOLFLEY: Chairman, I-- CHAIRMAN STRAIN: Mr. Wolfley? COMMISSIONER WOLFLEY: Under N, I just had that word reasonable again. Amplified human voice. I raised three kids through the teenage years, and there's a little bit of a difference what's reasonable and what's not in that kind of a household. MR. WRIGHT: A lot of effort went into this, because the Sheriffs Office had its view, there was a lot of different views on this. What we ended up doing was looking up several ordinances, and we went with the Tampa provision. They have this exact language, this exact exemption in Tampa. They have a lot of issues with noise in Tampa. And I've talked to the code enforcement prosecutor from Tampa who wrote this language maybe 10 years ago. Page 70 October 16, 2008 And I said, have you ever had a problem with it? And he said, no, because reasonable is intended to be an objective standard. The ordinary person, a reasonable person in the listener's shoes, would they find that noise to be the unreasonable exercise. So judges like reasonable because it's an objective standard, and we can present that to a court or a tribunal knowing that. COMMISSIONER WOLFLEY: Okay. No, I think I understood it. And I found raising three children through the teenage years, most of it was annoying and unreasonable. So I understand. CHAIRMAN STRAIN: Okay, are there any questions on Page 26? COMMISSIONER SCHIFFER: I do, Mark. CHAIRMAN STRAIN: Mr. Schiffer, then Mr. Kolflat. COMMISSIONER SCHIFFER: One thing we did is with the church chimes, we took it out. Do you think we should add R, which would be church bells and chimes? MR. WRIGHT: That's a hot button in the literature. There's not a whole lot of case law, but the literature suggests you shouldn't allow church bells to ring and other bells not to ring. So we didn't want to qualify it by saying religious institutions can ring bells but non-religious institutions can't. So we just said chimes and bells. COMMISSIONER SCHIFFER: Well, what happens if a church has chimes and bells? It's going to be -- I mean, you're going to be -- I guess they have to meet the sound ordinance so they have quiet chimes and bells? MR. WRIGHT: Now, these are exceptions again, and noises of bells and chimes. So if a church rings its bell and we come after them and try to enforce the ordinance against them, they would have this defense, that they're exempt. COMMISSIONER SCHIFFER: Where do you see that exemption? Page 71 October 16,2008 MS. SCHOTT: Page 23. MR. WRIGHT: Yeah, Page 23. COMMISSIONER SCHIFFER: But what you did by taking out chimes and stuff, you essentially set up that these are really safety -- these are -- I would read that to say these are devices that enunciate, you know, emergency sprinkler systems, emergencies with maybe, you know, lift stations, stuff like that. You honestly think that -- because everything else, noises of safety signals, warning devices, emergency pressure -- so you want to include it in there. I guess what I'm saying is can't we -- if you want to take bells and chimes and make that a separate thing, then maybe -- but your point is that some restaurant could come in and say I have my restaurant bells, and you couldn't say you're not allowed to do that? You can't say church bells and chimes; is that what you're saying? MR. WRIGHT: You can, but you run the risk of a First Amendment challenge. CHAIRMAN STRAIN: But I think what Mr. Schiffer is saying is you need to delineate it that it isn't an -- you're not talking about an emergency type of bell and chime like you'd have on the back of a truck or something else. You're talking about a decorative or some kind of aesthetic bell and chime. And maybe a separate section so it's clearly not part of that emergency section might be a better way to put it. MR. WRIGHT: Another thought that comes to mind is the word non-emergency before the word bells. COMMISSIONER SCHIFFER: Well, there are -- you know, sprinkler systems have gongs that are essentially a bell, they're -- you know, and you really don't want those, but that are run by the flow of water. So I think that's what it looks like you're saying you're allowed there. But, I mean, I would just start a separate category if you want to Page 72 October 16, 2008 do it, you think. But what happens if a guy really says the theme of my restaurant is Hell's Bells or something and he's ringing these bells all night long, and he'd be exempt. I don't know. MR. WRIGHT: I understand what you're getting at. And what I'll endeavor to do is specify the safety warning emergency stuff in one provision and then separate bells and chimes, finesse the language and bring it back -- COMMISSIONER SCHIFFER: Why don't you say church and see if we start having a problem with it. I mean, if you say church, the restaurant guy doesn't see that as a loophole. Ifhe wants to go to court and play with it, then we'll deal with it then. But the intent is to have nice -- the ability for a church to have chimes and bells. CHAIRMAN STRAIN: Well, if you're going to leave it just churches, you don't need to change the language then, just leave be like it was. COMMISSIONER SCHIFFER: Except that it's in -- well, yeah. But I do think you should separate emergency enunciation and church bells in a separate category. CHAIRMAN STRAIN: Mr. Kolflat? COMMISSIONER KOLFLAT: No, it's been answered. CHAIRMAN STRAIN: Okay. Ms. Caron? COMMISSIONER CARON: Well, I was just going to say, can't you use the catchall such as churches? You know, chimes and bells such as associated with churches -- MR. WRIGHT: That's great. COMMISSIONER CARON: And then you don't trigger anything, but you make it clear the intent. MR. WRIGHT: I think that's a great idea. And I'll incorporate that into the second of the two paragraphs. CHAIRMAN STRAIN: Page 26? Mr. Wolfley? Page 73 October 16,2008 COMMISSIONER WOLFLEY: Regarding Q, the raceway facilities and activities at the Immokalee Regional Airport. Once again I get into many times at an eighth mile, people go to it because of the noise, you know, because of the exhaust and that level of noise. Just as at the fairgrounds when there are demolition derbies. I mean, if it didn't have any loud noise to -- you know, crushing and -- you know, people wouldn't go. So I guess I'm trying to figure out, is this -- I couldn't quite get a handle on this one as far as if they're supposed to stay below 60 dB at their events. Is that what it's saying? CHAIRMAN STRAIN: Jeff, before you go too far, this is the same language that was in the code. The only problem is there's four sections, four sentences that have been deleted from it. Those sentences are supposed to go back in because they were deleted from a pnor page. And from what I understand from the code enforcement people, there have been no issues with this in Immokalee. So when those sentences get put back in, I think it makes it whole again. It's then consistent with what they've lived with and what they wanted from originally in the ordinance. Go ahead, Mr. Wolfley. COMMISSIONER WOLFLEY: So I guess my point was that regarding the nearest home, there aren't many homes right around that area. Now -- and what makes me think of this is the Naples Airport, homes kept getting built closer and closer to the Naples Airport and they started complaining about the noise. And it was the old what came first. Well, the airport, because it had been there for many years. Homes just infilled. And they started complaining. So we got quieter planes coming in. Now, is the same thing going to happen here for these drag races? I mean, we're just going to end up going through this thing Page 74 October 16,2008 agaIn. MR. WRIGHT: I think the intent of this, and I wasn't in the front row for the history, but I think the intent is that there's a drag strip out there, it's got to comply with this. However, we're leaving a crack in the door in case they want to come back and get an approval to do more than what they're doing right now. That's the way I read this. COMMISSIONER WOLFLEY: Thank you. CHAIRMAN STRAIN: Mr. Murray? COMMISSIONER MURRAY: I realize about the raceway, and I think that's fine, but what's missing here is the swamp buggy, which happens only three times a year, and then one other item that occurs once a year, which is monster trucks. And I'm aware that there have been complaints, these things do make a lot of noise, it resonates quite a distance sometimes. But it happens so rarely that it does engender complaints. If we're making an exception, as it were, for the raceway, should we not consider making an exception -- even though I recognize it's there before somebody else was built, you have that clause in here. But because of the nature of it, the occurrence is only infrequent. Should we make some kind of a notable exception so that those who are trying to enforce the law have something to explain to somebody? MR. WRIGHT: I would point again to this exception for authorized school, park or playground activities, sounds emanating from any authorized, dot, dot, dot, sporting event, entertainment event or authorized event. I think that the truck pull I'm not sure about, but I think the swamp buggy would fall into that as an entertainment event that's been approved -- COMMISSIONER MURRAY: Well, monster trucks is also an entertainment to some -- okay. And there's good money paid to see it and it's very crowded, so it gets a lot of people. And I think it's Page 75 October 16, 2008 something that has to be related to if we're going to -- I don't understand. I guess maybe I do understand. Under Q, raceway facilities was an attempt to try and provide for a future element; is that correct? MR. WRIGHT: I believe so. Keep the door open. COMMISSIONER MURRAY: Okay. So in other words, we're construing that monster trucks, although new in the sense than it's only several years old, is essentially a component of swamp buggy? MR. WRIGHT: I think maybe a better way to put it is the swamp buggy and the monster truck are entertainment events, whereas the raceway facility is kind of a use that may seek permission in the future. COMMISSIONER MURRAY: That makes sense to me, thank you, SIr. CHAIRMAN STRAIN: Page 27, it's all strike-outs. Page 28 is almost all strike-outs except one sentence. Page 29? COMMISSIONER MURRAY: I do. CHAIRMAN STRAIN: Mr. Schiffer? COMMISSIONER SCHIFFER: On Section A, or Section 10.A, it says upon adjudication. Should we define there from who's going to be doing that adjudication? This is the first time it shows up. Further on it's discussed, but -- MR. WRIGHT: I'm sorry, you want to define the term adjudication? COMMISSIONER SCHIFFER: Well, it says upon adjudication. By who? I mean, we do discuss it later, I realize. MR. WRIGHT: I agree, we could plug in those same tribunals after the adjudication in that top line. COMMISSIONER SCHIFFER: And then down below it says, each day the violation's committed or permitted to continue. Should we put from what point? Or, Jeff, if you feel comfortable Page 76 October 16, 2008 with that, because these are matters you deal with a lot, you know, I'll just quickly bow to that. If you're comfortable. MR. WRIGHT: I'm sorry, I lost the spot. COMMISSIONER SCHIFFER: Well, it would be down on the -- underneath the box, the first sentence. And it's committed to continue. And my thought was should we put from what point it continues? But again, you're in code enforcement. If you find that that's okay, because it's defined later, 1'11-- I'm good with that. MR. WRIGHT: I hear what you're saying. I think that if we said each day such a violation is committed shall constitute a separate offense. I don't know that permitted to continue helps at all. COMMISSIONER SCHIFFER: Okay. CHAIRMAN STRAIN: Mr. Murray? COMMISSIONER MURRAY: You know, my comment was essentially the same, because I -- further citations including the day upon which the original citation was issued. I guess the language you just related I think may solve that for me because of what you're attempting to say here. I wasn't sure whether you were saying -- using the word further citations, whether that really represented the same cite-able offense or other citations, I'm not sure. So that's why I considered it as an issue. Would you please repeat the language that you said in answer to Commissioner Schiffer's-- MR. WRIGHT: Well, now that I look at it, this is how it reads in the draft before you. Each day such violation is committed or permitted to continue shall constitute a separate offense. I think the permitted to continue, let's just say it's a broken generator, a broken air conditioner that's really loud. That's something that you didn't necessarily commit that violation but you're allowing it to continue. So I think the idea is that you don't get a free pass the second Page 77 October 16, 2008 that you're cited. You get cited and if it keeps happening, you'll get cited again. That's what this is intended to capture. COMMISSIONER MURRAY: So the words further citation is that reference, that's what you're saying there? MR. WRIGHT: Exactly. COMMISSIONER MURRAY: Including the day upon which the -- I guess that's what throws me, including the day. So in other words, further -- okay, further citations means not only the day we first found out about it but every day thereafter, that's what you're really saying there? MR. WRIGHT: Yes. COMMISSIONER MURRAY: Okay. All right. I just didn't understand it that way. Thank you. CHAIRMAN STRAIN: Mr. Midney? COMMISSIONER MIDNEY: What if somebody's having a really noisy party and they're playing loud music and it goes on, you know, past 10:00 or something like that and I complain and the police come and they tell them now you've got to turn it down. I don't see anything in here about a warning. Is there anything here where they don't necessarily have -- if they turn it down right away they don't have to get a fine? MR. WRIGHT: I don't know that there's language in here, but I know that the enforcement folks -- and Commander McDonald, he might want to chime in on this one. But they do use their discretion. They're not out to just give people tickets, they want to be able to communicate. But I don't want to speak for him. He might give us his approach. MR. MCDONALD: Good morning. My name's Bill McDonald with the Collier County Sheriffs Office. We give our officers discretion, especially in minor non-criminal events. If you force a warning or you say that a warning is always on the first offense and it's very egregious, we're pretty much stuck with ai Page 78 October 16, 2008 warning on the first offense and probably should have been cited. I'm comfortable with the way it's written that officers will use appropriate discretion and warn the offenses that merely require warning and a reminder to turn it down, you've got neighbors. And I'm comfortable with it anyway. COMMISSIONER MIDNEY: I'm comfortable with the way it is now, because, you know, there is the thing about the warning. But in reading this, I don't see anything here where it says warning. MR. MCDONALD: I think I have a different copy of the ordinance. I know it set provisions for the first violation that's cited. That's the -- yeah, violation of an annual permit. That's specific. Because it goes into problems after a warning. In the other section, I believe -- is this where we're at? This is actually for a first violation. That's for a first cited violation. If it's not cited, it's not a first violation. Or wouldn't be a first or second or third violation. It would be -- COMMISSIONER MIDNEY: Are you on Page 29? MR. MCDONALD: Well, I'm not sure because mine's numbered different. Yes, sir. CHAIRMAN STRAIN: I'm sorry, Mr. Wolfley? COMMISSIONER WOLFLEY: E, I think will answer the question. MR. MCDONALD: Any person violating a provision of this ordinance shall upon adjudication be subject to a fine not exceeding $500. And then there's the guideline for the magistrate, first violation, second violation, third or more violation. CHAIRMAN STRAIN: Mr. Wolfley just pointed out, though, on our Page 30, Number E, if you read that, it might answer your question. Towards the end of it especially, it talks about the way an enforcement agent or officer could look at it. Page 79 October 16,2008 COMMISSIONER MIDNEY: But I see where is says for which an annual permit has been issued. What if somebody's just having a party and they didn't get a permit? MR. WRIGHT: If I may, we're not codifying the requirement to give a warning, but we're aware that the enforcement people out in the field do have that discretion. You do see a reference to a warning in the annual permit, that language I think on Page 31. But that's not what you're talking about. I think to answer your question is they have discretion and this is not codified. COMMISSIONER MIDNEY: Well, how can you have discretion that's not codified? It has to be written, otherwise it would seem to me as though if it says fine, it has to be fine. MR. MCDONALD: Well, the discretion comes in the enforcement of it. Once it's enforced, the fines are dealt with. The ordinance is no different than any of the hundreds of traffic statutes that are out there that a deputy stops a violator on any given day for a minor speeding infraction and issues a written warning. There's nothing in the statute that says a warning's okay. The officers have just chosen not to take an official enforcement action that would go into court and start proceedings or points on license and so on. And the ordinance I don't believe is any different than that. COMMISSIONER MIDNEY: Okay. Just as long as it's something that is legal and that will be, you know -- MR. MCDONALD: Absolutely. COMMISSIONER MIDNEY: -- universally applied. CHAIRMAN STRAIN: Mr. Wolfley, did you have anything else you wanted to follow up, or is that your only comment? COMMISSIONER WOLFLEY: No, sir. CHAIRMAN STRAIN: Page 30. COMMISSIONER MURRAY: Yes, sir. CHAIRMAN STRAIN: Mr. Murray? Page 80 October 16,2008 COMMISSIONER MURRAY: Okay, I'm looking at B, and it speaks of confiscatory practices. And my question to you would -- there are two parts to the question. If the offending item were a radio in a car, would we confiscate the radio or confiscate the car? And the question would be what would we do with the asset after that? Would we convert it into income for the county? MR. WRIGHT: Well, first of all, the car, if it's moving, the county wouldn't -- code enforcement department wouldn't have jurisdiction over it, that would be a Sheriffs Office issue. But if there was impoundment -- and I believe this language has been in the ordinance for a while. We've never exercised it. But it is a tool that can be used. As to the specific procedures, how that would go about, I think it would just be a remedy that you would get from the tribunal. COMMISSIONER MURRAY: Jeff, it's very clear, it says, be grounds for permanent confiscation by the code enforcement board, special magistrate or court. Now, if the vehicle were off-road, as is indicated in here that code enforcement officers may issue a citation for it if it were off-road and in violation, then it falls under the code enforcement board and the special magistrate. My only question, though, really runs to what is the offending item and which one do you do? Do you take the radio or do you take the car because it has a radio in it? If you're going to have law that has certain tenets to it, they ought to be applicable and valid. That's my question. I don't care if it's been there for 1,000 years. MR. WRIGHT: I think that in the context of a car, you'd probably be able to -- it would be tough to confiscate the whole car -- COMMISSIONER MURRAY: I agree with you. MR. WRIGHT: -- I think the only straight-faced argument you Page 81 October 16, 2008 could make would be the radio and the speakers that go with it. That's all you would be aiming to confiscate. I think beyond that you'd be getting in trouble. COMMISSIONER MURRAY: So in other words we intend to leave that in there so that that would be the ultimate penalty beyond any personal penalty? MR. WRIGHT: Yes. And my only concern is with the word shall. I think we should temper that, given discretion. But we've added the word shall be grounds for permanent confiscation. So the tribunal has discretion. COMMISSIONER MURRAY: Okay. Under E, where you say County Sheriff, I would suggest you use deputy or his deputy. I don't know that they use designee. And then I would be curious as to other authorized enforcement agency. What are we contemplating there? What other authorized enforcement agencies are there that would be involved in such a thing? Is it just a catchall? MR. WRIGHT: Yes, it is a catchall. Theoretically there could be domestic animal services or some other entity called in. But it is a catchall. COMMISSIONER MURRAY: Okay. Because on the second line from the bottom where it says, issue to notice to appear or to arrest. And I just wondered who all has the authority. I mean, anybody has the authority to arrest if they have the courage to do it. However, only a deputy has the official authority to arrest, being charged with knowing the codes and statutes, et cetera. So with -- that does come into the other authorized enforcement agency. I just wonder if that's where -- if it's appropriate, should it be broken out, be more definitive, more clear; separate the powers, because the police have the police powers. MR. WRIGHT: Yes, you're right. Arrest is just a Sheriffs Office function, code enforcement--l Page 82 October 16, 2008 COMMISSIONER MURRAY: I think if they were separated and sub-categorically, they would be better. CHAIRMAN STRAIN: Jeff, everywhere you've got the word adjudication, you're going to follow it by of a violation, right? MR. WRIGHT: Yes. CHAIRMAN STRAIN: Thank you. Page 31, anybody have any questions? (No response.) CHAIRMAN STRAIN: Page 32? COMMISSIONER MURRAY: Wait, I'm still working here. Under number four, where in the ordinance I found it, I, okay, county manager or his designee. Okay, thank you very much. I solved my own problem. CHAIRMAN STRAIN: Page 33? COMMISSIONER SCHIFFER: I do. CHAIRMAN STRAIN: Mr. Schiffer? COMMISSIONER SCHIFFER: Jeff, what you've done, you've taken all of the lists out there. Yet in C you reference the above listed. Should you put in there classified as residential use instead, which is -- MR. WRIGHT: I'm not really clear on what you're suggesting. COMMISSIONER SCHIFFER: Well, B has -- you note that this is only applying to classified residential uses, and you've stricken everything else. And then in C you reference the above listed, which is essentially what you've stricken. MR. WRIGHT: Yes, there's a couple of ways to address this. And the Chairman brought this to my attention yesterday. I think that we could just incorporate that same list into the paragraph below it, that way we would capture all those listed items. That's one way. I'm open to other suggestions as well. COMMISSIONER SCHIFFER: Well, are you going to put these listed items back in? MR. WRIGHT: I think if we're making reference to the listed Page 83 October 16, 2008 noise-affected site, we're going to have to bring in the list. COMMISSIONER SCHIFFER: Okay. Because my second question is why strike it, but you're going to bring it back in. MR. WRIGHT: Yes. In order to use the word list, we have to have the list. COMMISSIONER SCHIFFER: Or instead of use the word list, use -- classify it as residential use. MR. WRIGHT: Can we leave that as an either/or, we will fix that? COMMISSIONER SCHIFFER: Well, is the intent to provide it at these uses that were listed? I mean, you struck them out, so I assume you no longer want this to apply this to hospitals. If you do, don't strike it out. Is the intent not to provide the ability to do this non-tested thing at these other uses? MR. WRIGHT: I think the intent is to keep these listed items and regulate them in what we will do as paragraph C, put the list into paragraph C. That way we haven't lost those items. COMMISSIONER SCHIFFER: I'm confused -- okay, I'll wait for the next version. CHAIRMAN STRAIN: Okay, any other questions on Page 33? (No response.) CHAIRMAN STRAIN: 34? COMMISSIONER MURRAY: Yeah, point, if I may. CHAIRMAN STRAIN: Mr. Murray? COMMISSIONER MURRAY: On four, exceptions, you do reference above listed class. So when you look at the first thing, you'll probably want to qualify this too. You see where I'm talking about? Second line under four. Thank you. CHAIRMAN STRAIN: Okay, we have one outstanding overall encompassing issue, and that is the sound levels in which we allow Page 84 October 16, 2008 noise to be generated right from the get-go. And that's on the table on Page 11. I might recommend to the board that before we go into discussion on that that we find out if we have any public speakers to get any input that's available out there. And Ray, do we have any public speakers? COMMISSIONER MURRAY: And Mark? CHAIRMAN STRAIN: Mr. Murray? COMMISSIONER MURRAY: We're also going to return to alternative section F as a conversation, if I'm not mistaken. CHAIRMAN STRAIN: I thought we already had settled that. I don't know why -- COMMISSIONER MURRAY: You said at the time -- I'm pretty sure you said we'll return to that, it's overarching. CHAIRMAN STRAIN: I said that we would return to the discussion of the decibel levels on Table 1. COMMISSIONER MURRAY: Oh, then I misheard you. Thank you. CHAIRMAN STRAIN: Ray, how many public speakers do we have? MR. SCHMITT: Ray is handing out a packet that came in to the commissioners. This is to be accepted as a public speaker, but it's a written info that just came in from a constituent. Again, you can take that with you. You certainly don't have to read it. He's not here, but they wanted that inputted into the record, their feelings on the ordinance. You have three public speakers. CHAIRMAN STRAIN: This is from Mrs. Gay? MR. SCHMITT: Yes, I don't have one -- CHAIRMAN STRAIN: Ms. Gay, are you -- she's here. She may want to speak. MR. SCHMITT: Oh, I'm sorry, she's here. I don't have her -- Page 85 October 16, 2008 CHAIRMAN STRAIN: We'll catch her then. We'll ask you to speak, even if you're not registered. MR. SCHMITT: She's registered to speak, and we'll call Mary J. Gay first, followed by Bruce Burkhard and then Doug Lewis. CHAIRMAN STRAIN: We do have a time limitation, but we try not to be too strict with that. We're more inclined to want to hear what you have to say. So as long as we don't get too sidetracked, we'll be okay. MS. GAY: Like I said in my notes to you all-- CHAIRMAN STRAIN: You have to say your name for the record and then go forward. MS. GAY: Let me get settled down here, I'm sorry. Good morning. My name is Mary Jane Gay, and I'm also talking for Truman Gay. We live next door to Corkscrew Sanctuary. It's a prestine area. And we have fought over the years to try and keep the noise down. Can you hear me okay? And a lot of times these people, they have parties out there. They have bands. And I'm talking about like two miles away in my house I can hear the words. I have called -- I call the Sheriffs Office, they come out, they don't seem to do anything about it. Sometimes they tell me, well, they'll quit at 1 0:00. Well, 11 :00, 12:00, 1 :00, even 3 :00 and 4:00 and sometimes all night they still go on. And you're all talking about fines. I don't think any of those people out there have ever been fined. And also I had one time a deputy told me, he said, if I have to come back again, I will take the man to jail. Well, the deputy would have done that, but his sergeant said oh, no, no, we don't want to do that. But anyway, back to my issues. I think in and around Corkscrew we need to change the decibels from 75, 24 hours a day, seven days a week. Are you aware how loud 75 is? Has anyone listened to 75 for Page 86 October 16, 2008 hours? You have tourists that come, plus we moved out there to enjoy the peace and quiet and listen to the birds and things, and we have a lot of unique things on just our property, because we're next door to Corkscrew. But another thing too is you all were talking about the road vehicles. That should also be put in there for on private property and private roads. See, a lot of the roads out there are private, like Chickadee, Honeybee and all of those. One night at midnight these people are out there in four-wheelers. I called the Sheriffs Office. He said oh, well, we can't go down there because it's a private road. And finally I said, but it's a noise nuisance law. And he finally came out and he finally closed them down. But another thing is on Sundays we have a lot of problems with people running machinery. I'm talking about heavy equipment and all that and things on Sundays. And that should be changed also. I'm sure everybody's entitled to enjoy, do what they want. But once if the noise leaves their property, and that's considered noise nuisance from the old Tommy laws that used to be there. And you're talking about people talking. When they have these parties, the more they drink, the later in the night, the louder they get. And the police tell me, hey, I can't do anything about them laughing and doing all this, but yet it's loud enough that it keeps us awake. But like I said, it needs to -- and in your -- there, you talked about pumps. You took out the vibration. Why? Because one morning this lady up the road on Purple Martin, she called me and she said, Mary Jane, come up here. She has a watercress farm next to her, which is her property and their property joins. That morning -- and I've heard the pumps many times at my house which I'm like, I'll say, a mile away or half a mile away. That morning at her house the pumps were registering on her little meter of Page 87 October 16, 2008 65 decibels. In her chair -- I sat in her chair in her house, and it was like you was in a vibrator. So that needs to be addressed. And it's been very damaging to her health. And also, I think that we shouldn't have to always depend upon these meters. I think it depends on the person. If they can't enjoy, as you all said here, the peace and quiet of the area, then you can't always rely upon those meters. I had a problem with some drums. I called, and Gary Dantini, which used to be in code, and David Butler came. They were playing the drums like a half a mile away, and I could hear them in my house. I couldn't even enjoy my radio. They came with the meter. I watched the meter before it started, the drums started, you didn't see the meter move. But whenever he started to playing the drums, the meter still didn't move. So to me these meters aren't always the best thing. And like my husband says, the ears is one of the best things is how -- if I can't enjoy my peace and quiet then, you know, that's where that we need to put those things back in there. And also, this noise is also I think damaging to the wildlife. Because when we have a lot of loud noise, the wildlife leaves. They go off to another area. They don't like a lot of noise. Does anyone have a question that they'd like to ask me? CHAIRMAN STRAIN: No, but we're going to do some follow-up with the county staff on your concerns. MS. GAY: I think that -- I brought this map. This is Corkscrew, around Corkscrew. And if you all want, I can get a better one or make you a copy. That I think this area should be made and change the decibels in as the prestige area. A long time ago I had a problem with some roosters and geese and guineas and all next door. And I called the Sheriffs Office, and Solomon from Immokalee, he came out. And we sat down by my pond and he said, you know, Mary Jane, he said, this is the most Page 88 October 16, 2008 prestige area we have in Collier County. He said, it needs to be preserved. And he went over there that next day and made those people do a lot about with the roosters and things. But I think in our area here that we need to change and lower, because we have a lot of tourists coming. You don't want to hear -- if you're coming --like if you're going somewhere to enjoy the birds and peace and quiet, you don't want to hear a bunch of motors running and a bunch of loud music and all this stuff. You want to enjoy the birds and things. And I appreciate you all letting me talk, and I think I covered all that I have. But it's inhumane at 75. My husband said it's inhumane listening to 75. I know, I was at my friend's house for like a half an hour, and we listened a half an hour at 65, and it was very nerve-wracking. It just like, you know, it just unravels your nerves. I don't know where you all have ever had to listen to the noise for hours, but it can be very, very detrimental to your health. And another thing, we sometimes have problems. As I said, we got a lot of good deputies out there, but sometimes we have problems with them enforcing the laws. And sometimes when I read them the law, they kind of get upset with me. For instance, I had one -- and then I'll quit. I had one, the people across the road from me, my house sits on 10 acres, I sit back 330 feet off the road. I shouldn't have to listen to other people's noises. But this man was playing his loud music, and I could hear it over there in my breezeway. I called the Sheriffs Office. The man came out, he wouldn't go in there. Finally I went out to the road and I said, hey, here's this 2007-61. Oh, I know the law, he says. I'm sorry, I don't mean to criticize him, but he's, oh, I know the law. And I said, well, then go in there and shut him down. Page 89 October 16,2008 Well, I don't hear it, it's not very loud. I said, please, come up to my house. Finally he did go in and shut him down. I appreciate you guys, you're doing a great job and thank you so very much and have a great day. CHAIRMAN STRAIN: Thank you, ma'am. And we're going to follow up right now with Jeffbefore we go to our next public speaker. And Jeff, what I'd like to do -- she brought up many good points. I certainly understand what she's saying, I live in the same area, general area, and at night when I first moved there you could sleep at night with your windows open and not have to have your air conditioning on. In fact, I didn't have air conditioning. N ow you've got to have air conditioning and all your windows closed, because the night sound travels so much in our rural area. That happens, a lot of it, because of the agricultural nature of the area. And I certainly would like to see a lowering of the decimal points for residential uses in ago that are adjacent to ago that is nonresidential. And I think the example is the pumps, as her first concern. Most of the Estates or areas like that are either zoned ago or rural estates, which is considered ago in a lot of ways. And when you're right next door to an agricultural operation, if the decibel level is allowed to be 75, that is way too high. That's not compatible to the residential levels in other parts of the county. Is there a way to get it there? MR. WRIGHT: Well, it kind of depends. Because they might have a vested right to that use, to that noise that goes with the use. And they also might have an exemption under the Right to Farm Act, which is something that kind of bumps out of the way from a regulatory standpoint. But I think that if we were to isolate a specific geographic area, we could probably analyze whether or not we could lower those Page 90 October 16, 2008 limits. Some of the sound emitters might have defenses to any new regulation is what I wanted to highlight. CHAIRMAN STRAIN: I think that would be a good thing to look at and come back to us with a recommendation on. MR. WRIGHT: So should I say that Corkscrew Island Sanctuary? CHAIRMAN STRAIN: Ms. Gay, if you could at some point get your information to Jeff and we could look at the zoning application that is in and see where it falls in the county. And maybe it's broader than just her area because of its zoning there, and maybe it does fall in other areas. There's other areas out there that are split up like hers in the larger tracts outside of the Estates that may be applicable to that. It's something I certainly believe is warranted to look at. Her other issue on ATV's, I believe this new language kind of addresses that. I know that Commissioner Coletta was insistent on seeing that A TV's get addressed. MR. WRIGHT: I'm sorry? MS. GAY: I had a problem next door. It wasn't an ATV. I don't know what it was. It was something homemade. But she'd go voom, voom, voom, for hours, you know. CHAIRMAN STRAIN: Let me just take the items you've brought up one at a time. MS . GAY: Could I say one thing about -- nothing against the farming, but if you read the Florida Statutes, it's an old one, 82-24, it says in there that the farmer's operation will regard to noises, odor, dust or fumes. And that means that they cannot do these things to disturb the neighborhood. CHAIRMAN STRAIN: Okay. And I think when -- if you need to get Jeffs number so that when he does the research in response to your concerns he can come back with as much knowledge as possible to address what needs to be addressed. Page 91 October 16,2008 MS. GAY: We've been talking some. He's a good guy, yeah. CHAIRMAN STRAIN: See, you had something positive today. MR. SCHMITT: You don't know him very well. MS. GAY: Oh, I don't know him very well? CHAIRMAN STRAIN: Oh, you don't know him very well. That's what your boss just said. Okay, the other issue on ATV's, I know Commissioner Coletta has been very concerned about that. It's been an issue out in District 5. In reading this, I believe you've expanded on the ability to crack down on A TV noise. Is that what this intention was based on in this ordinance? MR. WRIGHT: That was our intention, yes. And talking to the Sheriff -- I'm not sure if the Commander needs to get up here again. But they seem comfortable with their ability to do more, and namely their ability to issue a citation, rather than having to do the misdemeanor criminal route, which is a lot more labor intensive for them. So that's a plus for the A TV noise. CHAIRMAN STRAIN: Okay. So Ms. Gay, thank you. When this comes -- MS. GAY: Sir, can I ask one more question? Who issues these permits for these people to have parties with loud bands and amplified bands? CHAIRMAN STRAIN: In a residential area, I doubt if they even apply, if there is a permit. It's not a special event. They just have it as a use on their property. I'm not sure they have a right to be as noisy as they're being, and that's probably why this law can come into effect and hopefully stop that. MS. GAY: Appreciate it. You guys are doing -- everybody's doing a great job. CHAIRMAN STRAIN: Thank you, ma'am. MR. SCHMITT: Bruce Burkhard, followed by Doug Lewis. Page 92 October 16, 2008 CHAIRMAN STRAIN: Is Doug our last speaker? MR. SCHMITT: Yes, for this item. MR. BURKHARD: Good morning, gentlemen, and ladies. CHAIRMAN STRAIN: Got two now. MR. BURKHARD: My name is Bruce Burkhard and I represent the Vanderbilt Beach Residents Association. And what I'd like to do is just put on the record a little bit of anecdotal evidence about the noise problems that we have in our residential area. We're in an area that's kind of unique. It's a combination of single- family dwellings, condominiums, zoned for R T, as well as individual homes. We have a problem with LaPlaya, and specifically with their party room, which is on the lagoon side of Gulfshore Drive. The problem primarily comes about during the cooler weather months when they have the doors open, and typically it will happen on weekends when they have wedding parties. And as the lady previously was talking about, as the evening goes on and the people get drunker, the noise gets louder. We also have amplified noise very often from either music or D.J.'s. The noise carries extremely well over the water. In fact, it's probably even amplified as it crosses the water. And I think this problem needs to be addressed. One of our residents in particular has a problem. He's immediately across the water from the party room. And he has two little children, and they're very often subj ected to foul language carrying across the water from people standing out on the verandas as they've been drinking. It's a serious problem. The noise even carries down to my house very often in the winter months, and I'm probably a quarter of a mile to half a mile away. So it's not just the people immediately acrossc Page 93 October 16, 2008 from this party room, but people all along that waterway. So I think the noise ordinance needs to be tightened up. The lower you get the decibel count, I think the better for all of us. Thank you. CHAIRMAN STRAIN: Thank you, sir. Jeff, I need to ask you a couple comments about that, if you don't mind. The -- Mr. Schiffer brought up a point earlier, and it was well made, that there's a distance -- there's an issue when sound travels across the water. Is there any way that in instances where there's water adjoining a commercial or nonresidential facility -- I shouldn't say nonresidential, because under this code a hotel is considered residential -- but of a meeting facility or such that Mr. Burkhard is talking about where the measurement can be made at the property line where it borders the water instead of across the water? And the reason I'm concerned is because by the time that sound travels across the water, it is still loud to the people who have to live across from it, but it may not be at the decibel level that we're talking here. But it would only -- and generally if you didn't have the water, it may not carry so far at a higher level than it would if it had a buffer like a tree, landscape, or wall or something like that. MR. WRIGHT: I'm going to call Lisa up here just because it sounds like it has a technical ring to the question. CHAIRMAN STRAIN: Thank you. MR. SCRIBNER: For the record, David Scribner. I just wanted to interject something. I'm familiar with the LaPlaya issue and the very problems that it presents. And there's no -- as I recall, the deck is on a second story. And I don't believe there's much room between the edge of the building and the water, if there's any water -- any area there. Page 94 October 16, 2008 So taking an adequate noise reading, even on that property, wouldn't give you a true sound reading. It's probably -- in all reality, it's probably better across the bay, because I'd be under the deck taking a reading on that particular subject. Now, if it was on the ground level, we certainly could probably do that. And we have tried working with LaPlaya. They have been less than what I would say cooperative in trying to resolve that. But we have taken numerous noise readings across the bay from that property. And yes, I know the voices are annoying, but they haven't risen to the level of a violation. CHAIRMAN STRAIN: Is there anything in the new ordinance that can be modified or suggested that would help with this situation? Because the fact that some of the residents had to go to the effort to file a lawsuit for this kind of noise, I mean, they shouldn't even have had to get to that point. I'm just wondering amongst the three of you, and you all specialize in this kind of thing, is there something that can be changed on this ordinance that helps those kind of situations more directly? MR. WRIGHT: I'd like to know the lay of the land where the water body -- is there property lying in between the water body and the sound-affected site? CHAIRMAN STRAIN: No. In fact, I'm familiar with it. What you have is the LaPlaya going up to the edge of the seawall. Then outside the seawall you have a submerged land lease where they now have docks. You have a body of water that -- I don't know how many hundreds of feet wide it is before you get to properties that have cul-de-sacs that butt lots right up on seawalls adjacent to the body of water. So you've got commercial, a body of water and then residential. And the body of water varies in width. And the intensity over that water I think is an absolute concern. It's justified, so -- MR. WRIGHT: I think it's something that we could come up Page 95 October 16, 2008 with, but I want to make sure I understand the technical side of things. MS. SCHOTT: Well, it is true that noise traveling across water travels much more efficiently, can be reflected off the water and possibly even louder than it would have been without the water there. That is a fact. We can certainly set different levels for that situation. I have never seen that in another noise ordinance before, but it certainly could be done. You'd have to define how much water, you know, would cause this new lower limit to apply. We'd have to hammer out all the technical details, but it could be done. CHAIRMAN STRAIN: Go ahead, Mr. Schiffer. COMMISSIONER SCHIFFER: Doesn't wind also carry sound? MS. SCHOTT: Yes, various environmental effects, including wind, can affect the sound. And in fact it can change from day to day. If you have a house that's a half mile from a noise source, you may hear it more clearly on some days than others. And that's ground effects, water, wind, temperatures, temperature inversions, humidity, lots of different factors. COMMISSIONER SCHIFFER: But one of the things we're doing here, we're adding the decibel C rating. Do you think that might clear up some of these problems? This is new to the code. Do you think that will help, or what kind of -- MS. SCHOTT: The C-weighting is new, but it is a replacement for the old octave band sound pressure limits. And they both accomplish -- they're both intended in this ordinance to accomplish the same thing, which is to regulate the amount of low frequency noise. So that would address bass noise from bands or D.J.'s at events. COMMISSIONER SCHIFFER: Thank you. CHAIRMAN STRAIN: Jeff? MR. KLATZKOW: We're measuring the decibel level from the standpoint of the person who's complaining, all right? It either exceeds Page 96 October 16, 2008 the decibel level or it doesn't. The fact that there might be a lake there or a field there or trees there or whatever, I don't think it makes any difference. They're either above the decibel level, in which case it's a violation, or they're not, in which case it's not. You're not going to get peace and quiet. This is an urbanized area. I don't know how else to say this. I know people want to be able to sleep with their windows open and everything else, but as you get more and more people here, you're going to get more and more noise. That's just how it is. CHAIRMAN STRAIN: Ms. Caron? COMMISSIONER CARON: Well, I think as far as the wind issue is concerned, isn't that part of what our correction is for, the correction you have on Page 13? MS. SCHOTT: The background correction? No, not directly. But I agree with what was stated. You know, we've set limits. And if -- the limit at the property boundary, it really shouldn't matter what the conditions are off of that property. COMMISSIONER CARON: Well, apparently that's not the way it's been measured, because code enforcement just got up and told us that they couldn't get a reading because they were trying to do it from the LaPlaya property. COMMISSIONER WOLFLEY: He said potential. COMMISSIONER CARON: He said he'd be under-- MR. SCRIBNER: No, let me clarify. I was saying that it had been offered that maybe we could take the noise reading from that property. We have not taken any readings from that property. We've taken it from the noise-affected site. And we are constrained by winds. If it's too windy, we're not allowed to take that reading; we won't get an accurate reading. I think it's 11 miles an hour. We actually measure the wind prior to taking readings, and we document that. CHAIRMAN STRAIN: Mr. Schiffer? Page 97 October 16, 2008 COMMISSIONER SCHIFFER: David, while you're there, what readings did you get on the closest property, or especially the one that was having trouble with the -- MR. SCRIBNER: I don't recall. But I do know that we've been out there several times. I've been out there myself taking readings, and this is probably more than a year or two ago, and they were well under -- they were still under the limit. Although you can hear the voices. And there's no question, we had people coming out onto the deck, there was some sort of a function going on. And it wasn't amplified music, it was voices that were traveling right across that bay, and it was like you were standing not too far away from them. COMMISSIONER SCHIFFER: But you couldn't give us the number? Do you remember? MR. SCRIBNER: I couldn't give you the number right now, but it was under the limit. And we were out there at about -- I think it was about 8:00 at night on a summer night, so it would have been the daytime limit of 60. It was somewhere under 60 decibels. COMMISSIONER SCHIFFER: Because Mark, here's the problem. If we knew like, for example, at Pebblebrooke if somebody was filming it and testing it, we would know -- have a reference as to what that sound level was. In this case if we knew what these sound levels are -- because other than that, I just can't judge what a decibel rating means. CHAIRMAN STRAIN: Well, you know what's interesting, we've heard someone from the urban area describing a problem with sound travel that is identical to the sound, the problem that we heard of someone from the agricultural rural area with the same kind of problem. And I'm wondering if we're trying to blend too much into one -- into a limited number of categories that don't fit every circumstance. And I know we can't fit every circumstance, but it seems like we may Page 98 October 16,2008 have a lot more of this other circumstance that we didn't specifically address, and that is sound in areas that are -- where it travels more readily, where it's more open, where there's more, I don't know, issues that make sound seem louder. And I'm wondering if there's -- Lisa, from your experience have communities ever looked at these, and I -- pristine areas, let's say, for sound where this changes occur, where we've now got urbanization but it still travels like it was in a serene peaceful area? MS. SCHOTT: Well, typically what I've seen in every other noise ordinance is that the residential limit is the most stringent limit. I haven't seen any that carve out another area that would be quieter than that. I think you have to keep in mind what is the goal of the sound level limits in this ordinance. If you were to lower the limits to levels where sound couldn't be heard outdoors, you would essentially eliminate all business and all residential mechanical equipment from your county. I mean, noise ordinances are not -- the levels that are set are not intended to create an environment of complete quiet. And people have different levels of sensitivity to noise. The levels that you have in your ordinance are reasonable. And as I mentioned before, they're generally accepted. I see these levels all over the United States. To go lower would create a tremendous amount of unintended consequences by requiring established businesses that have been designed to meet these levels to now implement additional controls. And it would probably eliminate a lot of businesses from being able to move into this area, because they simply couldn't comply, it would be cost prohibitive. So I think the point of this is you have to keep your goal in mind. Are we trying to set levels so that it's as quiet as a forest or to set reasonable levels in a community for the majority of people to be Page 99 October 16, 2008 able to enjoy peaceful enjoyment of their property. CHAIRMAN STRAIN: But Lisa, there's something else. We're trying to homogenize all the particular noises for a particular use, like residential. Mr. Murray, I see your finger. What I'm more concerned about is if we take the residential uses that are affected by differences in location and then change the levels there within, for example, across water or in areas that are not as densely inhabited as our urban area, is there a way to look at it as a sub-category to the residential that's here for more definition for the residential circumstances? MS. SCHOTT: Well, as I mentioned before, you could-- technically you could do that, but I question why from a policy standpoint you would want to do that. Because if I'm at a residence that is across water from a noise source, my limit is still 55 decibels at night and 60 in the day. Why should my limit be lower than the person who is across a preserve from a noise source, for example. If everyone is being treated equally, if the levels are kept the same, and if we keep the levels the same, that may mean that the noise source that is across the water has to be quieter than the noise source that is on the other side of a forest. But the receiving level being the same I think is more fair. CHAIRMAN STRAIN: Mr. Murray? COMMISSIONER MURRAY: You know, you have a violating source. It was built -- whatever it may be, it was built in 1960. Got a house that was built across the water in 1959. You got another house that was built in 1961. Complaints come in from both of those sources. The one you can't acknowledge because it says you were there first. And the other one says wait a minute, I was here first, you should shut the noise. I submit that there are some problems that border on, if not in fact happen, are unsolvable in terms of the social contract between human beings. Page 100 October 16, 2008 And I think the more stringent we make this, the more likely it is that the statute or the ordinance would be stricken for being prohibitive for human behaviors. So I hope that we use good prudence on this one, that's my statement. CHAIRMAN STRAIN: Ms. Caron? COMMISSIONER CARON: On Page 25 when we were talking about exemptions, and under N it said the reasonable use of the unamplified human voice. So if we're talking about this instance here, for example, of the LaPlaya, and there are people out on that deck and they are hollering and laughing and screeching and swearing and whatever else, you know, is happening around midnight. Would that now be an unreasonable use and would the Sheriffs Office be able to do something about that? MR. WRIGHT: Well, it ends up being a factual question. And really, it comes down to whether or not you could with a straight face say to a judge this is an unreasonable use. Because, for example, a barbecue on a Saturday afternoon with voices being the sound, that's no problem. But a barbecue at 3:00 in the morning would be an unreasonable application of the unamplified human voice. So it all comes down to will the tribunal buy the argument that this is unreasonable. And it should be an objective standard based on the average ordinary person is this unreasonable. And having a barbecue, probably not. Hanging out at the LaPlaya clubhouse, probably not. Now, if it's one lone person at 3:00 in the morning or a group of people at 3:00 in the morning, it probably gets closer to being unreasonable. And the more unreasonable it is, the easier it is to prosecute under this ordinance. CHAIRMAN STRAIN: Is there a way to look at sound that impacts residential because of its travel characteristics in the area in which it is? And I'm talking specifically Ms. Gay's issue, for example. Page 101 October 16, 2008 The travel characteristics of a party a mile or two away is what affects her. And that same travel characteristics wouldn't necessarily apply in a densely packed urban area or something like that or on a different time of day. Just like the travel characteristics of the sound across the water at Vanderbilt will have more of an impact to the homes directly across the water than if it was confined in a commercial center somewhere else of a different nature. Is there any way to look at it through that angle? MS. SCHOTT: I hear what you're saying and I understand your thinking on this. But my thought is, yes, the sound might be louder at the homes directly across the water, but is it within the acceptable limits? You know, I guess I'm struggling with the concept of if we give any -- if we establish lower limits for a situation where the travel path -- it's just not logical to me. Because what we should be interested in is what is the final resulting sound level that is occurring on that residential property. Regardless of how it gets there, over water, through a forest, there might be a temperature inversion on one day that actually can create higher sound levels at a greater distance. You can't regulate all those different types of paths. I probably couldn't even identify all them for you. If I identified them, there would be another that would occur in some specific situation. I think what we need to be concerned about is the resulting sound level at the residence, and is that an acceptable level, regardless of how the noise gets there. CHAIRMAN STRAIN: So the choice keeps going back to if we want to do something of a nature that changes this, it's a matter of affecting those sound level limits that you've established. MS. SCHOTT: I think so, yes. CHAIRMAN STRAIN: I'd like to get this issue completed by lunch, so let's hear -- we have one more public speaker, Ray? Page 102 October 16, 2008 MR. BELLOWS: Yes. MR. SCHMITT: Doug Lewis. CHAIRMAN STRAIN: By the way, Doug, thank you for your assistance with staff to get the ordinance to what it is today. Because we've got a much better job so far than we've had in the past. And it's getting there. And that's also for Jeff and David and everybody else on the staff who helped to get us here today. It's a much better product so far. MR. LEWIS: Thanks to staff as well, they've done a great job. Good morning, Commissioners. My name is Doug Lewis. And for the record, I'm an attorney with the law firm of Roetzel and Andress. I'm a registered lobbyist. I hadn't planned to comment today. We do represent Barron Collier and do work for LaPlaya. I hadn't planned on commenting on behalf of that client today. I will say for the record I'm happy to visit with staff and talk to Jeff in particular about any concerns or comments. I think it's important to think about, you know, this concept that we really kind of need to grapple with, that when you put commercial and residential together in close proximity these are the kinds of things that happen. I just think it's important to understand that. It is zoned RT, and these are the kinds of noises that occur. Now, with that, there maybe some things we can look at. I just think it's important to bear in mind there is ongoing litigation between the parties, and ultimately that will work itself through. To my knowledge, and you may correct me if I'm wrong, code enforcement, I'm not aware of any violations that have occurred. You're talking about an establishment that's been constructed and built. And it's insightful to think about at what point do we impose these restrictions, how do we address these anticipated issues before they become an issue. So those are some things to think about. Again, I'm happy toh Page 103 October 16,2008 work with staff to address any comments. I am here today representing the Lutgert Companies with respect to Mercato, and I'm here with Robert Lilkendey with Siebein Associates. Siebein is an acoustical firm, it's established back in 1981, and they have their primary office in Gainesville. I'm happy to have his input on any questions you may have. They're very difficult issues that you're dealing with, and there are a lot of nuances, as we've seen. And I would like to commend staff for their efforts. They've involved the stakeholders, they've listened. And I think as a result we're going to have I think a better ordinance that again addresses these competing interests of all of the members of the community. Specifically I wanted to comment on the issue of the Mercato concept. It's a mixed use. And I do concur, there was some discussion earlier on about out-parcels, these commercial out-parcels that you see at a place like Pebblebrooke where you have platted lands. And I'm not real, real familiar with the details at Pebblebrooke, but I am familiar with these concepts of these commercial out-parcels. Then you have maybe a residential tract and there's some buffering between the two. I think it's very important to draw a distinction between that type of a development, and I think you can clearly see that there is a distinction between that and the mixed use where you actually have within that zoning designation, you have residential on top of commercial. And that's really what we're getting at with respect to Mercato. Very, very distinct from having a zoned commercial tract and a separate residential tract behind it where you have Pebblebrooke. And I do agree with the concerns that have been expressed here in that regard, and they are very real issues, but I think what we're saying here in essence is that this new ordinance acknowledges that we don't have a one size fits all approach to sound. We acknowledge October 16, 2008 that in places like mixed use communities where we encourage commercial to be -- residential to coexist and residential on top of commercial that there's an expectation that there's going to be other public policy considerations like traffic and other great things that we have in these environments, but that there will be higher sound level limits. As such, mixed use and town center communities should be treated differently, and they are, and we appreciate that acknowledgment, to enable them to function as they were intended to function, to comply with the noise ordinance, which is what they want to do and to have greater certainty in their development. And I think that these enhancements certainly accomplish that. You know, outdoor activity and lifestyle, as members of the Planning Commission have said, is why many residents say why we come to Naples. It's a great thing that we offer down here with the weather that we have. And encouraging these types of activities in the right locations serves a very significant and important public purpose. With respect to the alternative F section -- and I would want to commend the staff for their insight on this. And we've put a lot of thought, there's been a lot of vetting on this. And staff has indicated that in essence that this alternative where we would -- where it would read that permits will be granted unless prior adjudication of violation of certain ordinances (phonetic) has occurred. If things are working, there aren't problems, that you would get your permit. That under this alternative, compliance with the sounds level limits would be required, and violations of the ordinance would result in the repeal of that permit. Staffhas said that this process would be simpler, it would be less resource intensive for the county staff, and it would be less burdensome on business. And I would concur with that. I think there's some real wisdom and insight. Page 105 October 16, 2008 And I think in addition this concept of a one-time permit I think is very wise. Because again, for those same purposes of again reducing cost to the taxpayers in the county, the businesses, reducing demand on county staff. So I think those are things that our client would support and appreciate staffs effort there. Finally, I did want to comment just very briefly and highlight what the County Attorney's Office indicated, which I agree, I have some real concerns. And your County Attorney's Office has indicated that in the context of commercial speech that when we have these overly broad, very hard and fast 500 feet you've got to shut down the amplified sound at 9:00, 501 feet, you're able to have that amplified sound to 11 :00, that those are some real concerns that they've expressed in that. I just want to remind the commission I would concur with that. I think that certainly when you -- when we've had multiple discussions at the staff level about this, how did these distance requirements get there, why are we saying that at 500 feet -- is there some measurable drop-off on dBA's between 500 and 501 ? You can envision a development where you have the development projected into the commercial, the commercial area and the residential behind it and you could be operating well below the dBA, dBC and still be required to shut down at 9:00 or 11 :00. Certainly Mercato would be impacted. I think what we were trying to say with staff in that context was look, if you're in a mixed use community, we don't think that a permit would be required in that context. I would agree with that. You're in that community. Certainly with respect to Mercato, we know there are residences within that 2,500 feet and we would have to get a permit as it relates to ensure that those residences that are outside the mixed use are protected. And our client's comfortable with that, it's reasonable and it makes sense. With that, I think those are primarily our comments, and we do Page 106 October 16, 2008 appreciate the amount of time. There's a lot of time that has been put into improving. I don't think we're there just yet, but I do appreciate the efforts. CHAIRMAN STRAIN: Thank you, Doug. Again, thanks for your participation. Mr. Schiffer? COMMISSIONER SCHIFFER: Doug, quick question. Within Mercato, if there's a noise issue between in this case tenants or owners, that would be resolved solely within the government of Mercato, correct? If they appealed that, where would they go? Would they go directly in the court? They wouldn't come into the county, would they? MR. LEWIS: Well, first of all, that's not totally correct. I just want to make sure we're clear. We have in essence a recognition that we are going to have sound level limits within a mixed use, it's not a free-for-all. What we recognize is those sound level limits need to be a little higher. And we want that. It's important for the developer to make sure that the residents are happy. It's a very fine line that they walk between the commercial and the residents. What we've done is we've said the point of measurement will be within the enclosed unit. So when you live in that area, and if you're in an upstairs condo and you're across the street from a -- we're not going to measure it from your balcony outside, we're going to have you close the doors, close the windows and then we're going to do a test. And if it's above the dBA, dBC, then you've got a violation and they would be cited. And they should be cited. So hopefully that answers your question. COMMISSIONER SCHIFFER: My question is if they don't come to agreement, and I guess they get into a litigation, they go directly in the court, they don't come into the Collier County system? Page 107 October 16, 2008 MR. LEWIS: My answer to you was rather they get cited because they violated the county noise ordinance, and you take it from there. You can -- if a permit was required, you could pull the permit. There's fines. COMMISSIONER SCHIFFER: I'm within Mercato. I live across the street from a restaurant let's say that's under the theatre. That restaurant's making noise. I complain. We have all the associations that I complain with. You may be in my unit testing. And I guess we use -- is it the same decibel rating that the Collier code is? CHAIRMAN STRAIN: I think he's talking about deed restrictions that you might have within your unit, buyers -- or disclosures you may have made upon sales. Certainly your company would have wanted to deed restrict properties or put covenants in place to protect themselves and their tenant downstairs from the tenants upstairs. So I think maybe that'd be part of what -- MR. LEWIS: Sure, sure. There are clearly notices that are in the prospectus, and you're moving into a mixed use community. But to your point, in your ordinance, in your ordinance, in the mixed use environment they have to comply with the sound level limits that are set forth for the mixed use. And they're all enumerated. And Donna's got them there. And essentially what you're doing is the distinction is you're saying we're not going to measure in the mixed use from the property boundary . We're going to measure, like we do condos, from inside the enclosed unit, and we're going to recognize that the dBA's, the dBC's are going to be a little higher. It's not going to be out in the rural area where you can hear birds and things are really quiet, you don't hear a lot of that noise. COMMISSIONER SCHIFFER: Kind of what I was getting at. If they can't resolve this in-house within the Mercato governing system, do they go into the Collier system or do they go to court? Would they -- I mean, if I'm the guy across the street and I'm not happy with the Page 108 October 16, 2008 outcome of all this stuff and I believe that -- you know, maybe it doesn't matter. I mean-- MR. WRIGHT: Well, I'd like to clarify, if I could. In the Mercato or mixed use setting, the proverbial mixed use setting, somebody is playing the music too loud downstairs, so they call code enforcement. They shut all the doors and windows and measure. And let's say there is a violation. There's a remedy in this ordinance for that. There's specific levels that cannot be exceeded. So that's one route and would end up in a code enforcement proceeding, which has its own provisions for appeals. There might be other remedies inside Mercato by virtue of the private restrictions. But this ordinance does provide a remedy for that situation, even if it is all in-house. COMMISSIONER SCHIFFER: I had the impression that mixed use was exempt from the ordinance, but I guess not? MR. WRIGHT: No, it's pulled out and there's a specific paragraph with levels for mixed use. COMMISSIONER SCHIFFER: Okay, thanks. CHAIRMAN STRAIN: Thank you, Doug. Members of the commission, we normally break at 11 :45. I would like to finish this before we break for lunch. So if you don't mind? Mr. Murray? COMMISSIONER MURRAY: Yes, sir. I wanted to clarify, because I thought we hadn't yet concluded on the alternative section F. I thought you made the comment that there was consensus for that. And I may have misheard you. I would like this board to understand or to let me know at least whether there is consensus for alternative F, versus the other strictures, so that we have the proper marching orders for Jeff for what we're going to go forward with. CHAIRMAN STRAIN: We asked that question earlier, and I Page 109 October 16, 2008 thought the affirmation was that alternative F was the way to go. Does anybody disagree with that? (No response.) COMMISSIONER MURRAY: See, I didn't hear that. I apologize. Thank you. CHAIRMAN STRAIN: Then the only caveat to alternative F is Table 1. And there was going to be a final discussion on whether or not there's a suggestion to lower the decibel limits or raise them or do whatever we want to do on Table 1. So far I think the changes to Table 1 would center around the circumstances of that special zoning area such as what Mrs. Gay lives in. And you're going to look into that and possibly come back with another possible zoning use or category to add to that table, to effect basically residential adjacent to agricultural. COMMISSIONER MURRAY: One final -~ I'm sorry. CHAIRMAN STRAIN: And then the discussions we had with Mr. Burkhard and everybody else, we now need to decide if we want to adjust Table 1 at all or have any discussions in that regard. Mr. Murray, you had something else? COMMISSIONER MURRAY: Yeah, I had one final question on that. For Ms. Gay, who lives I think -- that's right, yes, who lives out in the boondocks, is it -- it's not required that when the meter reading is taken that she enclose her -- MR. WRIGHT: No. COMMISSIONER MURRAY: No. It's clear that that's a differentiation there. MR. WRIGHT: You would measure from at or within-- COMMISSIONER MURRAY: Because they're taking the -- it's different in the urban area versus the suburban or the rural area. But that's the only distinction. I agree with the Chairman that we don't have adequate -- we really do probably need to make a differentiation somewhere, but we do not have that. Thank you. Page 110 October 16, 2008 CHAIRMAN STRAIN: Mr. Kolflat? COMMISSIONER KOLFLAT: Yes, what was the basis of the determination of the values for the decibel A and C? Is that based on the survey of various others counties, or how did you arrive at those quantitative values? MS. SCHOTT: Well, two things. These are the levels that you have had at least since 1990, perhaps before that, but we started from the 1990 ordinance. So these are the same levels that were in there on the dBA scale. COMMISSIONER KOLFLAT: There was no other type of analysis or comparison to see if -- MS. SCHOTT: Yes, I did benchmarking of noise ordinances from many communities across Florida, as well as across the United States. And these are very typical levels. COMMISSIONER KOLFLA T: Thank you. MS. SCHOTT: The C-weighted values were calculated from your old octave band sound pressure level limits, so meaning that they are equivalent in terms of loudness. COMMISSIONER KOLFLA T: But there was no other testing to determine the subjective impression of these noise levels? MS. SCHOTT: Well, I'm very familiar with what these noise levels sound like, so I was -- to me it's not a subjective assessment of whether these are the appropriate levels. But the answer to your question is it's the levels you've always had and also benchmarking of other ordinances. COMMISSIONER KOLFLA T: But for us to make a determination, would it be helpful to have us have that same exposure that you have to a degree? MS. SCHOTT: Right, that came up before. As I said, we can do that, if you're interested in doing that. COMMISSIONER KOLFLAT: I don't know, Mark, if you have any feeling on that or not, whether that would be of value or not. Page 111 October 16, 2008 CHAIRMAN STRAIN: You're talking about doing a live example. And I think if we were to, first of all consider that, we should only do it with the consensus from the BCC that they wanted us to go into that extent. And the reason I'm pointing that out is because it may be something they would want to do since they're the final deciding body. And that would be a costly and time consuming affair for the county and the consultants involved. So I'm not sure if it's as effective for us as it would be for them. So that's kind of where I'm at with it. COMMISSIONER KOLFLAT: We'll, I'd have to be honest and say that I have no way of judging these values whether they're right or wrong from what we've heard so far. CHAIRMAN STRAIN: I'm not sure by putting a speaker on the front of the podium in a room like this will give us the effect that you're looking for in regards to trying to understand what Ms. Gay's going through and what Bruce Burkhard's area is going through. Mr. Schiffer? COMMISSIONER SCHIFFER: You know what I think might be good is if Mr. Scribner has data on -- I guess he's been out to Pebblebrooke, he's out to Connor's area, he's been out there. I'd be curious to see what numbers he's coming up. Because obviously one thing we know, he's coming up with numbers less than this ordinance. So essentially using the decibel procedure isn't working. The only other procedure we really have is that Section 12 which is, you know, measurement without a thing. So maybe we should be focusing on that. But could you do that, Mr. Scribner? I mean, could you show us the kind of readings you get at these trouble locations? MR. SCRIBNER: We can certainly pull those records and find out what the readings were. COMMISSIONER SCHIFFER: Because like, for example, if Page 112 October 16,2008 you're getting a 59 and 60's, that's one thing. If you're getting a 39, then obviously the decibels is not going to be the way to go. MR. SCRIBNER: It certainly wasn't 39. I can tell you that I've taken measurements out in the Estates on a quiet evening with no noise source and they're 60 decibels, just from the crickets and whatnot that are going on out there. CHAIRMAN STRAIN: Mr. Klatzkow? MR. KLATZKOW: I think your expert here could probably confirm this. But if you drop these decibel levels, you're going to be putting a lot of people out of compliance the second that ordinance gets signed. MS. SCHOTT: Yes, I'd agree with that. These are relatively quiet levels. Again, I go back to, you know, it's not going to -- they're not as quiet as a forest, and people will hear things on their properties, so that's -- but I don't think that's the goal is to make it as quiet as a forest. CHAIRMAN STRAIN: Mr. Wolfley, then Ms. Caron. COMMISSIONER WOLFLEY: Again, I brought this out initially. Ifwe could just -- and it's not necessarily for the people that -- like policemen or whatever, but if we could get like -- what is the level in a typical area of a car horn blowing or of a medium sized dog barking, so we can get a -- it's to the offenders. Let's say I have a party and I don't think it's too loud because I've had five or six beers or something, which I don't do, but if they -- well, you're louder than the car honking outside to your neighbor. Okay, I get it now, okay, I'm loud, turn it down. It's just we're having a hard time relating to what 60 dB's is. Is that a car horn blowing? MS. SCHOTT: Yeah, I understand. I wish I had my noise thermometer here to show you more than one level. But I can tell you that if I was sitting across the table from you, let's say in a conference room without amplification, the sound of my Page 113 October 16, 2008 voice would be between -- it's typically between 60 and 70 decibels -- COMMISSIONER WOLFLEY: Really? MS. SCHOTT: At that close distance, yeah. COMMISSIONER WOLFLEY: I would have never thought that. MS. SCHOTT: Ifwe all are all quiet for a moment in this room, you can hear the air conditioner, you can hear some things down the hall. The level here is probably between 45 and 52. COMMISSIONER WOLFLEY: No kidding. Well, see, I never would have thought. I would have thought it was 20 to 30. Okay, there you go. That helps. MS. SCHOTT: The quietest sound I think I've ever measured was actually out in a forest, and it was -- there were no insects that day and maybe a little bit of wind blowing. It was in the high 20's. So some people think zero is the threshold of hearing. Zero doesn't exist in nature. Like I said, the very quietest forest may be in the 20's. I've been inside a very quiet residence before that was in the 20's, but that's without the air conditioners running, no lights on, because lights buzz and make noise as well. Nothing going on in that home. CHAIRMAN STRAIN: Ms. Caron? COMMISSIONER CARON: If those dB levels are so good, and as Mr. Klatzkow says, if we tried to lower them we will suddenly throw everything into a panic here in Naples, then where is it we go from here? Is it just that people aren't enforcing these levels? We have problems, we have Pebblebrooke, we have lawsuits, we have this poor woman calling code enforcement every Saturday night, whatever it is. If the Sheriff can't take this new ordinance and if our code enforcement people can't take this new ordinance and effect change, then we're just spinning our wheels here. So I just want to make sure that we're actually going to effect Page 114 October 16, 2008 change. Are the people at Imperial Golf Estates whose homes back up to the restaurant and bar, are the people's homes who back up to Pelican Larry's on Immokalee, are they going to be helped by this ordinance? Or are we just saying I'm sorry, everybody meets the 60 dBU (sic). CHAIRMAN STRAIN: You know, that question I think had been asked, too. And I think your points are right. Part of it is a zoning matter, I think what Mr. Klatzkow said. And that becomes an issue. And maybe that's how part of this is going to have be figured out. MR. KLA TZKOW: The other thing is you have nuisance issues here. And we are suing Pebblebrooke, and it is based on nuisance. And you know, LaPlaya may be a nuisance. You know, that's another Issue. CHAIRMAN STRAIN: Go ahead, Mr. Schiffer. COMMISSIONER SCHIFFER: And I think, Donna, the measurement system hasn't worked or it would have. So why are we focused on it still? Every week we come to the same conclusion. If it would have worked, it would have worked. But I do think Section 12 is where we have to play, and that's where, for example, the nuisance is. They mention the concept of an individual with normal sensibilities making judgment. Maybe we should elect somebody to be that person once a year and -- but the point is, is that I think if we're going to solve the problems, it's going to be solved in Section 12, it's not going to be solved in getting some electronic device, because it would have worked before. Oh-oh, here comes the person with normal sensibilities. MR. SCRIBNER: I just want to point out, I made this comment the last time. If you go to -- in Section 12, number four, and I don't want the board to be -- on Page 34. I don't want the board to be misled that somehow we're going to apply that to Stevie Tomatoes because it's lawful business or profession. COMMISSIONER SCHIFFER: Well, I'm not saying it's perfect Page 115 October 16, 2008 now, but I'm saying let's not focus on the equipment side of it, let's focus on Section 12 and work Section 12 to be what we want. We're fooling ourselves to think it's going to happen with your device. And the joke is maybe there is somebody that is the one that makes these judgments, and people can discuss judgments with them. CHAIRMAN STRAIN: For David and Lisa and Jeff, you guys did a great job to get us 50 percent of the way, whereas before we had fallen flat on every attempt. So honestly, I think this document is a lot further than any of the previous documents. I think the points that we've made here at this board, the testimony you heard from the public and the direction you've gotten, and the most recent one by Commissioner Schiffer on Section 12, that may be a way to look for a solution to some of the problems we heard. That should give you enough to come back in a rewrite tweaked to some of these concerns. And I know that everything may not be accomplished, but let's try to accomplish 80 percent and then we're as far as we can go with this one. And hopefully some other codes will come into play. I believe that's where we can leave this for today's discussion. Is that consistent with everybody on this panel? MS. GAY: Mr. Strain, may I say something? CHAIRMAN STRAIN: As long as it's short, Ms. Gay. Come on up and use the speaker. We've only got a brief time here. MS. GAY: To me and my husband, this is what we've always said, listen to your ears. And if you had LaPlaya, and these people are complaining, complaining, complaining, there is a problem. Then listen to them. Don't listen to these machines. I agree with this gentleman. You don't listen to these machines because they don't always work right. But what I'm just saying, listen to your ears. If it's too loud for you, you're saying back again, well, it's for the first part of your thing saying that it's for the health and welfare -- Page 116 October 16,2008 CHAIRMAN STRAIN: Ms. Gay, we understand where you're going. We'll get there. Give us a chance to get there. MS. GAY: I know you will. I appreciate it. CHAIRMAN STRAIN: And we'll do the best we can and hopefully come back with something that helps. It may not cure but it will help. MS. GAY: But instead of relying always like she'S saying on these decimal (sic) meters, let's listen to the people's ears of who's complaining. CHAIRMAN STRAIN: Right. MS. GAY: Thank you. Have a good day. CHAIRMAN STRAIN: A lot of people don't have such good hearing, though. And Mr. Murray sometimes is one of those because he has trouble hearing a lot of things. So anyway -- I don't mean that bad, I mean he actually has -- COMMISSIONER MURRAY: I didn't take it bad -- CHAIRMAN STRAIN: He does have a hearing aid, and that does cause a problem for the speakers up here. So it's all a matter of who's listening to it. And we have to qualify and quantify that hearing. And that's where we're going next. So with that, I think we've given as much direction as we can on this. We'll come back here in one hour. We'll resume with the Moraya Bay Club at 1:00. (Lunch recess.) MR. SCHMITT: Live mic. CHAIRMAN STRAIN: Okay, welcome back everyone from our lunch break. And we will finally move on to our regular agenda. Our regular agenda of at least hearings. Item #9A PETITION: CU-2006-AR-II046, VI LTD. LIMITED Page 11 7 October 16,2008 PARTNERSHIP First one today is item 9(A), Petition CU-2006-AR-ll 046. It's VI Limited Partnership, also known as the Moraya Bay Beach Club. All those wishing to participate in this hearing, please rise to be sworn in by the court reporter. (Speakers were duly sworn.) CHAIRMAN STRAIN: Are there disclosures on the part of the Planning Commission? We'll start with Mr. Kolflat. COMMISSIONER KOLFLAT: None. CHAIRMAN STRAIN: Brad? COMMISSIONER SCHIFFER: Yes, I talked to Richard Bing, Bruce Burkhard, Al O'Brien and Doug Fee. CHAIRMAN STRAIN: Paul? COMMISSIONER MIDNEY: (Shakes head negatively.) CHAIRMAN STRAIN: Donna? COMMISSIONER CARON: Yes, I've spoken to the petitioner and the petitioner's agents and various members of their team. I've spoken to community members, Bruce Burkhard in particular. CHAIRMAN STRAIN: And I spoke to Richard Yovanovich and Bruce Burkhard. Not at the same time. Mr. Vigliotti? COMMISSIONER VIGLIOTTI: I had a telephone conversation with Mr. Y ovanovich. COMMISSIONER MURRAY: And Mr. Bing called me. Brief conversation. CHAIRMAN STRAIN: Mr. Wolfley? COMMISSIONER WOLFLEY: Yes, I spoke with Mr. Y ovanovich over the phone. CHAIRMAN STRAIN: Ms. Homiak? COMMISSIONER HOMIAK: Yes, I also spoke with Mr. Page 118 October 16, 2008 Y ovanovich. CHAIRMAN STRAIN: Okay, with that, this is a continued item from the last time we heard it, which was I believe a couple of weeks or more ago. We had asked the applicant to do some research, bring back some more information, which they have provided to us in our packet. And with that, Mr. Yovanovich, you can move forward. MR. YOV ANOVICH: Thank you. Look at my notes. Good afternoon. For the record, Rich Yovanovich on behalf of the petitioner. We have the same people here at the meeting that we had last time. Mr. Jerry Griffin, who represents the property owner, Karen Bishop, Anne Miller, Reed Jarvi and Jay Milanfi (phonetic) are here to answer any questions you -- Jay Westendorf. Milanfi, wrong client. Jay Westendorf with Omega is here to discuss any questions you may have regarding the civil engineering related to the project. Where we left off last time, there were some questions regarding parking for the beach club itself. There was a discussion about employee parking. And I'll address that one first. The required parking, we have 72 units, the required parking for those units would be 144 spaces for the units, as well as two additional loading spaces. So the parking related to the residential portion of the building would be 146 parking spaces. The approved site development plan has 157 parking spaces on it. We have eight employees, so we have three extra spaces on-site to address employees related to the beach club. As we had discussed at the last meeting, there was a concern that the employees might utilize the county's park and the parking facilities associated with the county's park as part of meeting our necessary parking. So from an employee standpoint, we can accommodate the employees on-site through the additional parking spaces we have on Page 119 October 16,2008 the premises. Then there was the question of what parking was actually going to be necessary for the members. Now, the members are the unit owners within the condominium building, and we've agreed to limit the outside membership to developments that have an existing shuttle stop within it, so people, as you will recall, we prohibited any members from driving to the club. So we will no longer need some type of an off-site parking area, because we're going to limit those memberships to communities that have an existing shuttle stop within that community. So we don't need to provide any parking related to the members themselves because they're all coming by shuttle. And as we discussed, there's two shuttles per hour. So coming and going for those two times, we'll have a total of four trips on the road network to bring people to the beach club. The next issue, and it's in your packet and I'll put it on the visualizer, was -- you all have this, but for the benefit of the audience. You asked us to prepare an exhibit that shows the -- what I'll call the private portion of the beach versus the public portion of the beach, as we discussed. Everything seaward of the erosion control line is the public's portion of the beach, and everything landward of the erosion control line is private property. There was beach renourishment done, so since public funds were utilized for that beach renourishment you established an erosion control line and the public benefits from any new beach as a result of that renourishment proj ect, and we get to keep basically what we had prior to that. This exhibit is the recreated dune area that we're required to do as part of the project. And -- Karen, you'll probably have to help me with the line, but -- MS. BISHOP: The dashed line. This line right there. MR. YOV ANOVICH: We have another exhibit in the packet of Page 120 October 16, 2008 information that shows the line better. But on this exhibit where my pen is, there's a dashed line that goes like this. That's the erosion control line. So everything from this direction is private. Everything from this direction is public. The mean high water line is further west. And so keeping that vision, I will put up an exhibit that shows better the erosion control line. And on this one it is -- this dotted one? This dashed line right here is the erosion control line, and this is the mean high water line. So as you will be able to see, there is still plenty of what I'll call public portion of the beach for the general public's use of the beach area. There were some concerns that we were somehow utilizing this petition process to take over the public's portion of the beach, and we are not doing that. We will be limiting our use to the beach that is the private property of the condominium building and the club. The -- another concern was the -- how were we going to address the monitoring of people who are coming. We will both monitor that through the shuttle driver keeping track, but there's also when you check in, you have a card swipe, so you swipe that. So we'll be able to know through the card swiping how many people are there. And we'll be able to monitor when they leave, because they'll swipe on their way out, as well as the shuttle driver will be able to keep track of who he's bringing and who he's taking away. So we will be able to monitor the limitation of the 250 outside individuals in that manner. The -- there was a concern about the county was still listed as an applicant. We had taken care of that, but the staff report had not. So the staff report has been revised to delete the county as an applicant. There was a request for additional information on how LaPlaya operates. We have provided that information to the Planning Commission. The LaPlaya is a private club. People drive to the Page 121 October 16,2008 LaPlaya to go to that club. So from a traffic standpoint -- in reviewing the minutes, I think they said they can have between three and 500 people coming to events. I'm assuming that's related to the private club. But in any event, people will be coming to that private club and driving their vehicles to get there, versus in our particular case they won't be allowed to do that. There'll be four, like I said, four total shuttle trips per hour. So from a transportation standpoint, we are much less of an impact than the LaPlaya's private beach club. And I believe the LaPlaya was cited as a positive example of how a beach club operates up in that area. So we think we're better than that through our operational limitations. Going through my checklist, make sure I -- the final issue was -- and I hate to say the word noise, considering what took a while this morning. But we -- I'm going to describe how the current Floridian Beach Club operates, and then I think we're willing to make sure we come up with the same restrictions. The current Floridian Beach Club, and we're willing to do this here, is we do not allow boom boxes or any private radios. You can have an I-Pod with ear phones, you can do that at the Floridian Club, and we would agree to those limitations here, obviously. We do have some speakers around the pool where we play music at a lower level, background music, and we'd like to be able to do that here. And then they have the occasional event out there where there is actually live entertainment provided, and we could agree to the number of times and time frame for those as part of this. But this is not ever envisioned to be a noise producer to where it would be, you know, adversely impact the residents to our south, the residents to our east. And I guess -- let me put the site plan back up. I can't see anything with the glasses. Where's the -- the beach Page 122 October 16, 2008 club is internal to the building. Golly, this is terrible. The beach club is internal to the building, as well as the use of this pool area here and the beach related to it. So where the beach club is, entertainment inside obviously is going to be a non-issue because it's internal to the building and will not generate any external noise. Any entertainment that could happen at the pool, people to the east are -- the building's going to block it and people to the south, buildings are going to block it as well. But keeping that in mind, we obviously are subject to several regulations, including the noise ordinance, whatever form it may take. But we also are agreeable to limiting the number of times we can have outdoor entertainment. So -- and we'd like to work with the Planning Commission on crafting what would be acceptable, based upon the discussions we had at the last hearing. With that, I think I've highlighted where we left off. And I think we've provided all the information that was requested at our last hearing. And with that, we're available to answer any questions you may have regarding our request for the private beach club. CHAIRMAN STRAIN: Are there any questions from the Planning Commission? Mr. Murray? COMMISSIONER MURRAY: On the monitoring plan, you use the term logging in and logging out electronically. Will you -- that generates a record, presumably. MR. YOV ANOVICH: Yes, sir. COMMISSIONER MURRAY: Will you be retaining those records? MR. YOV ANOVICH: Sure. So you can come verify, if you wanted to audit, you'll be able to do that. COMMISSIONER MURRAY: And I note here where it says, Page 123 October 16,2008 and maybe this is unnecessary language, it says the club manager and personnel will ensure ongoing compliance. You said that people would be required to come in and however they'll do it magnetically, pass card or whatever, and on going out. Is it such that they have no option but to go through a single doorway, or -- MR. YOV ANOVICH: I believe that's the case for the external members. Obviously the internal members are already there, live there, yes. So I think we have controlled access don't we, to the club? Yes. COMMISSIONER MURRAY: I guess what my question is really trying to understand, is that a redundancy or a need by the statement the club manager or personnel will ensure. If the electronics performs and the internals are already there, what will those two entities, those two people -- MR. YOV ANOVICH: Well, it's a belt and suspenders approach, if you will. We have three checks. You've got the shuttle and the driver, you've got the checking in and out through the magnetic card, and you've also got your management staff who know that there are those limitations. So we were trying to provide redundancy so people would know we were not exceeding the requirements. COMMISSIONER MURRAY: And I understand that. What it provoked in me was the question why would you need that redundancy if you're already accomplishing your purpose? MR. YOV ANOVICH: Well, theoretically you wouldn't, but it's . ., -- agaIn, It s -- COMMISSIONER MURRAY: Well, I'll let it stand. But I think you -- I hope you take my point. MR. YOV ANOVICH: I understand. CHAIRMAN STRAIN: Anybody else have any -- Mr. Schiffer? COMMISSIONER SCHIFFER: Rich, a couple of concerns that came up. One is that a lot of people are going to be using this because it's a beach access, so there could be a lot of congestion of beach users Page 124 October 16, 2008 at this access point. Are the beach users allowed to go north without any charges? I know the state owns that property. MR. YOV ANOVICH: I don't know if the state charges you to take a right turn as you get off the public access that we provided to the county for the general public. I don't know, I've never used it. Does anybody know if they charge you to use the -- they don't charge you to go use the state -- MR. CONNOLLY: Yes, they do. That's not right. MR. YOV ANOVICH: Joe, I just said I didn't know the answer. I was told back here. You can correct it. CHAIRMAN STRAIN: When you get time to speak can you come up to the microphone when we call you. Other than that, I'm sorry, you can't shout out from the audience. MR. YOV ANOVICH: It doesn't change because, let's not forget, the public has the right to use this beach regardless, whether it's the members, whether this club's approved or not, the people who will be our members will have the right to come use the public beach whether they can go north for free of charge or pay a fee or head south, they'll still be coming to the beach. What we view this is we're actually going to limit the area that they'll be utilizing and freeing up the public's portion of the beach because we're opening a private property for those members to utilize, versus public property. COMMISSIONER SCHIFFER: The reason I'm asking it is that we're looking at congestion of beach users. And if that's not the case -- Mr. Chairman, could that person answer that now or do we have to wait -- CHAIRMAN STRAIN: I'd rather wait until public speakers. Let's finish with the presentations like we normally do. COMMISSIONER SCHIFFER: That's fine. Okay, let's discuss the shuttle a little bit. One of the things we're doing here that's strangei Page 125 October 16, 2008 to me, and the strangest thing is the lack of data on the shuttle. But we're replacing Land Development Code amendments with a private bus system. So where are the pick-up points going to be for these shuttles? Describe that a little bit. MR. YOV ANOVICH: The pick-up point is we anticipate that one of the communities that would be potential members is the Dunes community. The shuttle would go inside of the Dunes, pick the people up within the Dunes, then drop them off at the -- and again, when we talked about this last time, it will either be at the county's roundabout, and if that roundabout is not built, then they'll drive in to the project itself, drop people off. But that will be the pick-up and drop-off points. COMMISSIONER SCHIFFER: When you said that the members of this could be any community that has parking already, essentially a residential condo is an example of that. So there will be multiple -- but my point is -- MR. YOV ANOVICH: And we talked about this last time, and let me make it clearer. It's a Signatures Communities, which would be the Dunes or the Cocohatchee Bay project that is yet to be built. But those are the anticipated two developments that would receive the shuttle service. COMMISSIONER SCHIFFER: So testimony, nobody outside a Dunes community, or a Signature community, however -- MR. YOV ANOVICH: That's -- we're willing to accept that. COMMISSIONER SCHIFFER: And are these people, everybody who buys into this community, are they automatically a member? MR. YOV ANOVICH: I don't know that we've gotten to that level of detail yet. I don't know that we really need to get there at this point. COMMISSIONER SCHIFFER: But the potential is that they would be -- MR. YOV ANOVICH: The potential. Right, and then there's the Page 126 October 16, 2008 cap, don't forget. We can't have any more than 250 people there outside of the residents of this building at anyone time. COMMISSIONER SCHIFFER: I'm having -- you know, the cap, I appreciate that, and it is, I know, 250 is the members with a guest can't exceed 250. But the uncontrollable thing is that people in the condo can have unlimited number of guests -- MR. YOV ANOVICH: They can do that today -- COMMISSIONER SCHIFFER: -- just because of their rights today, correct. So the membership is not going to come with the purchase of a unit? MR. YOV ANOVICH: I didn't say that. I said we don't know. We don't know the answer yet. COMMISSIONER SCHIFFER: Let's go back to the bus a second, the timing of that, what kind of a schedule? Is this something that someone will go to the lobby and call the shuttle to come or is there a bus route or what is happening? MR. YOV ANOVICH: There's a bus route. And there'll be twice an hour pick-up at the Dunes or Cocohatchee -- and/or Cocohatchee Bay and twice an hour drop off. And it's going to be as scheduled as you can, based upon, you know, going to and from the pick-up places. COMMISSIONER SCHIFFER: And the bus will operate only the hours the club is open, or didn't we sayan hour before and -- MR. YOV ANOVICH: We talked, there was going to be an hour before and an hour after. COMMISSIONER SCHIFFER: How are handicapped people going to be accessing the beach club? MR. YOV ANOVICH: Our vehicles will be handicap accessible. COMMISSIONER SCHIFFER: So no handicapped person is going to be driving to the site to park on-site. MR. YOV ANOVICH: No, sir. Remember, we said everybody has to arrive by the shuttle. Page 127 October 16,2008 COMMISSIONER SCHIFFER: On-site you have all of the staff. And how did you come up with the staff calculation? MR. YOV ANOVICH: That's what our experience says we're going to need to operate the club. We have experience with one right now, so -- COMMISSIONER SCHIFFER: Okay. And then what are you going to do at the shift change. Because kind of like hospital, restaurants tend to -- MR. YOV ANOVICH: We stagger it now, so we would be able to stagger it so that it's not a total shift change. COMMISSIONER SCHIFFER: Okay. Okay, let me just-- another question. Back to the membership a second. The club's going to obviously have a bar. It's a beautiful bar design. Is it going to have a liquor license? What kind of license is it going to have? MR. YOV ANOVICH: The license we have will allow us to serve the full range of alcoholic beverages. COMMISSIONER SCHIFFER: Okay. Is it going to be a private -- profit or nonprofit will this beach club be set up? MR. YOV ANOVICH: Do you know, Jerry? I think the goal is to make money. COMMISSIONER SCHIFFER: Okay. I have some questions for staff, but I'm done. Thank you. CHAIRMAN STRAIN: Mr. Kolflat? COMMISSIONER KOLFLA T: This shuttle will operate from 6:00 in the morning till midnight; is that correct? MR. YOV ANOVICH: Our hours for the external -- I guess, yes, 6:00 a.m. and then to -- our hours of operation are 7:00 a.m. for the -- till basically 7:00 p.m. dusk, dark, for the external portions of the club, and then 7:00 a.m. to 11 :00 p.m. for the internal portions of the club. COMMISSIONER KOLFLAT: But the shuttle runs an hour before -- MR. YOV ANOVICH: An hour before and an hour after. Page 128 October 16, 2008 COMMISSIONER KOLFLAT: So that will be from 6:00 in the morning till midnight. MR. YOV ANOVICH: Yes, four trips an hour. COMMISSIONER KOLFLAT: Right. Now you also say that the arrival in private vehicle other than shuttle is prohibited. Explain to me how you're going to enforce that. MR. YOV ANOVICH: Well, they will not be able to -- if we see them doing that, we'll have to deal with that, and eventually maybe they'll lose their membership as a form of enforcement. We honestly, through experience now, is why would you drive your vehicle, park at the county's park and walk here when you can get on the shuttle, come to the club, have fun, get on a shuttle and go back? We don't think that it's going to become an issue of people wanting to drive there, because we're limiting who can be members, and it makes good common sense to take advantage of the free transportation from your own personal safety standpoint as well. So we don't think it's going to become an enforcement issue. COMMISSIONER KOLFLAT: But the club membership will be compliant then on enforcing this or following of this rule; is that right? MR. YOV ANOVICH: It's like -- yeah, well, every rule that's out there, we have to rely on people to be willing to follow the rules. COMMISSIONER KOLFLA T: Thank you. CHAIRMAN STRAIN: Any other questions of the presentation? Ms. Caron? COMMISSIONER CARON: Yeah, I'd like to go back to the number of parking spaces for a minute. You said you have currently eight spaces for employees. MR. YOV ANOVICH: We have 157 spaces, 146 of them are required. We're going to have we believe eight employees is what we need, we can go up to 11 employees and still have sufficient parking. COMMISSIONER CARON: You believe that eight employees Page 129 October 16, 2008 will be inclusive -- MR. YOV ANOVICH: It will be within that number of 157 -- COMMISSIONER CARON: -- of the beach club and whatever management staff that you have to have for the tower, the beach tower itself? MR. YOV ANOVICH: Yeah, the condominium itself, remember, the county has decided that the appropriate number of parking spaces for the residential aspects of this is 144 spaces. COMMISSIONER CARON: Right. MR. YOV ANOVICH: And then two loading. So we've satisfied that. Now, the beach club operations, we're going to need eight employees for the beach club. COMMISSIONER CARON: Got it. MR. YOV ANOVICH: And then we have 11 extra spaces, so those are the numbers. COMMISSIONER CARON: But please answer my question, which was is that inclusive of any employees you need for the tower as well as for the beach club? MR. YOV ANOVICH: The answer is yes. The total number of parking -- CHAIRMAN STRAIN: Richard, the condominium association will have to have a director, a manager, and some maintenance people. Are they included in the eight? I think that's what -- MR. YOV ANOVICH: No. CHAIRMAN STRAIN: Okay. COMMISSIONER CARON: They're not included. MR. YOV ANOVICH: No, they're not. But their parking is included in where the county came up with its requirement of two spaces -- COMMISSIONER CARON: For the 146. MR. YOV ANOVICH: Yes. I'm sorry, I think I was hearing the question, I just wasn't answering it the way you -- Page 130 October 16,2008 COMMISSIONER CARON: Okay. MR. YOV ANOVICH: Can I -- let me, before you -- I know you're about to -- we have gone back, and I'm going to say this, but we're not in yet to get the SDP modified. But we've looked at the SDP and we can increase that number of parking to 165 spaces. But I don't have that approved yet, and I didn't want that to be -- I didn't want to throw that number out there because it's not fact today. Fact today is 157, but we could find eight more spaces, and we'd have to modify the SD P to do that. COMMISSIONER CARON: Okay, because my point is that the 144 doesn't give you any parking for your management staff or the guy that's going to run the health club, or the secretary, because you're promising your residents two parking spaces each. That accounts for the 144 spaces. Those are residential owner spaces, those are not employee spaces. So I was just trying to get to how many people are going to be employed here that need to have parking. MR. YOV ANOVICH: Not including the beach club, we expect three or four additional employees to be there. COMMISSIONER CARON: Okay. So three or four of them. And then how many for the beach club? MR. YOV ANOVICH: That was the number eight, eight or nine. COMMISSIONER CARON: Eight for the beach club, eight or nine for the beach club, okay. Thank you. Now, the shuttle. We've established now that the only outside members will come from either Cocohatchee Bay to be developed, now called Moraya Bay, and/or the Dunes. MR. YOV ANOVICH: Dunes, correct. COMMISSIONER CARON: The Floridian Club that you already own down the street, what's the square footage of that? MR. YOV ANOVICH: Karen, do you know the number of the square foot? W e'lllook that up, it's -- Page 131 October 16,2008 MS. BISHOP: 2,300 square feet. COMMISSIONER CARON: The club is 2,300? MS. BISHOP: Plus or minus. MR. YOV ANOVICH: Yeah, about 2,300 square feet. MS. BISHOP: It's on the top of the plan. COMMISSIONER CARON: Okay. And then you probably got what, another 1,000 for the pool or something. MR. YOV ANOVICH: It says the pavilion is 2,312. COMMISSIONER CARON: Okay. MR. YOV ANOVICH: And the pool is 1,010 square feet. COMMISSIONER CARON: Okay, so another 1,000 for that. All right. But that is -- and that is a commercial operation, because it's in conjunction with the motel across the street, correct? MR. YOVANOVICH: Yes. COMMISSIONER CARON: Okay. Thank you. CHAIRMAN STRAIN: Is that it? Anybody -- COMMISSIONER CARON: That is it through this minute. I've got to get through -- go ahead, you can go ahead, ask questions. CHAIRMAN STRAIN: Mr. Schiffer? COMMISSIONER SCHIFFER: Rich, back to the parking. What is the maximum amount of parking that's required for this? MR. YOV ANOVICH: The maximum? COMMISSIONER SCHIFFER: Yes. In other words, obviously the club itself, I mean, everything is 144 plus two loading, plus eight, plus four. But I'm looking at the study and it ends up it has like internal capture for the beach club. But that doesn't make any sense. MR. YOV ANOVICH: I know. And I regret we even did that. Because this is unique in the sense that -- and we talked about this at the last meeting. The code technically says if you have a pool that serves a residential community, you're supposed to provide parking to that, but usually the pool is separate from that. And nobody is driving to this pool so you really don't need parking for that. Page 132 October 16, 2008 And then we were trying to under -- we tried to be conservative in figuring out how much parking do you need for the beach club, taking into account that 72 unit owners are automatically members. So I wish we had never done that study. The bottom line is we don't need any parking for the outside members because they're all coming by shuttle. And we don't need any parking for the internal members because they already live there. And what do we really need, we need parking for the unit owners, we need parking for our employees. And I'm hoping that we've clarified that number to come up with really how many parking spaces we need on-site, so that the community is sure that we're not using the county's park parking lot to satisfy our residential needs and our beach club needs. COMMISSIONER SCHIFFER: What I'm looking for is the gross number of parking required. Because that's what we're substituting the bus line for. MR. YOV ANOVICH: The gross number. COMMISSIONER SCHIFFER: So would that be 244, which is the 104 you calculate for the -- which is in your study, which you gave us the exact same study. You're right, you did promise not to do that recapture, but you gave us the same study you had before. C comes up with 104 spaces for the club. That's taking into account the dining areas at one to 100, assuming that this is a fraternal club, and the outside pool area. So the demand of the club would be 144 -- 104 cars, correct? MR. YOV ANOVICH: Well, I know -- is that right, Jay? I remember what we did is remember we went on the number of seats, because that resulted in a higher number, versus square footage. And we have 250 seats, and it's one per -- COMMISSIONER SCHIFFER: So that's 65. And then you-- MR. YOV ANOVICH: Which is 83. COMMISSIONER SCHIFFER: Eighty-three, I'm sorry. No -- Page 133 October 16, 2008 yeah. MR. YOV ANOVICH: Okay. So we -- COMMISSIONER SCHIFFER: Here's what I'm trying to find. I'm trying to find -- let's pretend you had all the parking lots available in the world. How many parking spaces would you be building for this club? MR. YOV ANOVICH: Well, I guess if you were to factor in the swimming pool area and the seats, that would be 104. COMMISSIONER SCHIFFER: And then the 146, which is the units plus the two. MR. YOV ANOVICH: They're already there, we wouldn't be providing any. COMMISSIONER SCHIFFER: I'm trying to come up with a gross number -- MR. YOV ANOVICH: Remember, it's based on square footage. So square footage is -- it's not number of members. The LaPlaya is not number of members, it's square footage. COMMISSIONER SCHIFFER: I'm fine with 104 for the club. Now I'm just trying to add to that what's required for the apartment-- or the condos, which is 144 plus two -- MR. YOV ANOVICH: Plus two, which is 146. COMMISSIONER SCHIFFER: So 250 parking places -- MR. YOV ANOVICH: If you did it all on-site -- COMMISSIONER SCHIFFER: We wouldn't be having this conversation about parking. That's fine. The answer, I got the answer I'm looking for. All right, thank you. CHAIRMAN STRAIN: Ms. Caron? COMMISSIONER CARON: Yeah, I had one more thing. The shuttle buses that are running every two hours, is there a problem in having those buses actually stop at your condo front door, as opposed to in the turnaround, in the community turnaround? Because I just want to make sure that we're not preventing any Page 134 ,.. '~""~W'_'H"'''._''''__il-...__ " _.,__.....'"'_ . .. rr..._ October 16,2008 public access or delays by having these buses stop there all the time to unload people. This is supposed to be auto turnaround and not a bus stop. And so is there a problem with you taking your buses up to the front door and dropping them off? MR. YOV ANOVICH: I don't know the answer. I need to talk to my client. I hadn't -- COMMISSIONER CARON: Okay, will you find out? MR. YOVANOVICH: Yes. COMMISSIONER CARON: Thank you. CHAIRMAN STRAIN: Anybody else? Ms. Homiak? COMMISSIONER HOMIAK: I just have a couple of questions of -- about the lounge. And it says there's fixed glass around the -- is it -- does it continue to the terrace, between the terrace and the dining area, or does that open up? MR. YOV ANOVICH: Does the terrace and dining area open up? It's fixed glass. COMMISSIONER HOMIAK: All fixed glass? So the possibly amplified entertainment you will have would be around the pool? MR. YOV ANOVICH: External, you mean? MS. HOMIAK: Yes. MR. YOV ANOVICH: We could have -- the answer to your question, I guess your question is if we had it inside would we open it up or be able to open sliding glass doors and have it go out. The answer to that is no, we won't have that ability, so -- MS. HOMIAK: Okay, thank you. CHAIRMAN STRAIN: Anybody else? Richard, what kind of arrangements do you have with the property owners that are going to be handling this off-site parking for the club? MR. YOV ANOVICH: Arrangements? They already -- at the Dunes they already have shuttle stops because they take shuttles now Page 135 October 16,2008 to the Floridian Club. So there would be another membership opportunity for them. So they're already accustomed to that. And then obviously when we get around to developing Cocohatchee Bay, Moraya Bay, we would provide that information to them. CHAIRMAN STRAIN: The reason I'm asking, I -- I would have mentioned this to you had I thought of it earlier, but in your discussion over all the parking issues that I've just heard, I remembered there was a section of the code that deals with off-site parking of different ownerships. And in that section of the code it requires a minimum 10-year lease agreement between the property owners, and that's to be reviewed by the County Attorney. I'm not sure it applies here, but I would like to know from county staff and from the County Attorney. I'll give you the section. It's 4.05.02.K.2. So while we're continuing on with this discussion, if you guys could take a look at that to make sure that I haven't missed something in the way the arrangements are with the off-site uses to make sure that those people don't object to your using their facility as a point of drop-off and pick-up for this club. That would be helpful to know too, so there's nothing tripped up down the road. Your answer to the employee parking spaces, in listening to that, I had done a calculation, and I relayed that to you. MR. YOV ANOVICH: Right. CHAIRMAN STRAIN: I didn't realize, but the documents you gave us in this most recent book are not the ones that are approved, they're the ones that you have in for approval. Because they come up to 165 spaces. MR. YOV ANOVICH: I'm going to have to -- I -- ask her to -- okay, apparently we gave you two documents. We gave you the approved, which is the second set, and that's the 157 calculation. And it should have a date. If you look at the lower Page 136 October 16,2008 right hand, it should start with sheet 1 of 13. CHAIRMAN STRAIN: Let me shorten this for you. There's a tab here that says parking calculations. And behind that tab are two sheets that reflect 165 parking spaces -- MR. YOV ANOVICH: That's the plan I was telling you we just did and we would submit to increase. And then behind that you should have another set that's the actually approved at 157. CHAIRMAN STRAIN: Gotcha. MR. YOV ANOVICH: Does that help? CHAIRMAN STRAIN: Well, yeah. I just want to understand which -- I do have the newest one. In the parking calculations tab, and I know that you may have answered some of this to Brad, so if I'm being redundant just say it's been resolved, and that's fine. Under Item A, private club, summary of uses, you don't list the beach area, which I'm sure you'll have chairs out there that will accommodate people in addition to all the other areas, is that -- MR. YOV ANOVICH: No, because I'm capped at 250 seats. CHAIRMAN STRAIN: Okay. And so whether those seats are occupied or not, the rest of the people there are still capped at 250, regardless of whether -- MR. YOV ANOVICH: Right. And that's why I wasn't even sure we should be dealing with the pool area, because within the 250 seats as well. So that 104 from a standpoint is, I'm capped at 250 people coming to the premises from not being there. If you looked at a one per three, that's 83. CHAIRMAN STRAIN: That's no problem-- MR. YOV ANOVICH: No, I know that. I had a look from someone else. CHAIRMAN STRAIN: Under part D, on-site parking, I brought this up to you when I saw you before, that it shows 36 spaces are Page 137 October 16, 2008 required for on-site. Did you already explain that to Mr. Schiffer as to what that means, or is that something you need to -- MR. YOV ANOVICH: I think that was the internal capture number that I think we wish we never included in the calculation. CHAIRMAN STRAIN: Okay, so the 36 spaces on-site are no longer part of -- well, it's after the internal -- I guess it could be part of the internal capture. MR. YOV ANOVICH: When you net it all out, I think that 104 is an overstatement, but at least it's an overstatement versus an understatement. How's that? CHAIRMAN STRAIN: But all said and done, your intentions, the only additional traffic this club would generate is for the employee parking that would be in that building. Is that what you're -- MR. YOV ANOVICH: Correct -- CHAIRMAN STRAIN: And the shuttle-- MR. YOV ANOVICH: -- and the four shuttle trips per hour. CHAIRMAN STRAIN: I'm rushing through the rest of my questions. The plan that shows the improvements to the Dunes system, it shows the colored one with the bright orange on it, I think I've got my answer now. That outside line that's there wasn't labeled property line, but I assume that line that shows 200 and then 210 feet is now the property line, based on the second drawing you put up there. Okay. MR. YOV ANOVICH: And keeping in mind that there's sandy beach beyond the property line. Because it does look like we're somehow blocking the flow of pedestrian traffic. But that's in fact not the case. CHAIRMAN STRAIN: Has staff had a chance to look at that reference in the code that I provided, or the County Attorney's Office? MR. BELLOWS: Yes, I did have a chance to read it over. I don't Page 138 October 16,2008 think it applies in this particular case, though. It's dealing with parking exemptions for properties under different ownership, the county manager or designee may approve parking on continuous lots that are under different ownership. The site development shall be submitted to the County Manager or designee, which includes -- and it talks about showing a 10-year lease agreement between property owners. CHAIRMAN STRAIN: You're not being picked up by the mic., Ray. MR. BELLOWS: My reading of this is more -- that's for a different type of off-site parking situation than being proposed today. CHAIRMAN STRAIN: Why? I mean, what I'm concerned about, and I didn't really think of this until I heard some of the explanations today, if you have three different condominiums, or four or five or however many are going to contribute to the shuttle operation, their condo docs would have to disclose to them that some of their property is going to be utilized -- because they're going to end up maintaining their property from whatever cost it would be to have the additional traffic of a shuttle going in and out, the weight of that, the people waiting for it, where they're going to sit and things like that. Those things, I'm wondering if they're all anticipated by the other ownerships. And if they have been, that's fine. Does this then 10-year lease agreement though need to be in place to assure us that the requirements of that shuttle being able to get there and pick up don't run into some kind of confrontation with the condo commandos that generally pop up in these kind of things and decide they want to negotiate a deal for you to be there? MR. KLATZKOW: Commissioner? MR. YOV ANOVICH: Well, it's already in place really -- I'm sorry? MR. KLATZKOW: Mr. Yovanovich will correct me if I'm wrong. My reading of these is that let's say you had a fixed locational Page 139 October 16, 2008 business and you needed a parking lot but you didn't have enough land of your own for the parking lot, so you got into a transaction with your neighbor to get the required parking for that particular business. What they're doing is they're getting into arrangements with other communities that there'll be a shuttle from that community to their private beach club. Now, if that community has problems with it, he can't run his shuttle. I mean, at the end of the day, he won't have a shuttle -- MR. YOV ANOVICH: And they won't -- right. And they won't be members. MR. KLATZKOW: Yeah. MR. YOV ANOVICH: So -- and it's already -- Mr. Strain, there's already a shuttle in operation at the Dunes, and we can obviously make sure that there's no issue at Cocohatchee Bay, since it's not developed yet. But I think that from an operational standpoint, I think it self-polices itself, because if they say no then they lose an opportunity to be members of the beach club. CHAIRMAN STRAIN: Okay. I hear what you're saying. The noise issue, we have heard testimony -- you're convenient today being here after the noise ordinance. We heard testimony this morning about issues already up there from noise in that area. You guys decided to make this a residential facility, and expecting it to be such, including the people that live within that tower, a lot of unnecessary noise outside down below would be problematic or could be problematic for the people in the tower or for residents in the area. And the answer that I got from your response here, that it's going to be consistent with the noise ordinance, we already know that doesn't work. So I understand what you're trying to do, you're looking for outside entertainment. I'm wondering why you need it at all. MR. YOV ANOVICH: Well, I think there could be -- Page 140 October 16, 2008 CHAIRMAN STRAIN: It's not background music, by the way. I understand what that is, so let's go beyond that. MR. YOV ANOVICH: Let's take first -- let's answer the first -- take a step back. There's full disclosure through the condominium documents when people are buying these units, that we're requesting a private beach club. So they know that going in. And these are expensive units, so you're dealing with what I like to believe are sophisticated buyers who understand that there could be a beach club down there. Going to the next question -- so I just want you to understand there's the disclosure. CHAIRMAN STRAIN: You want to finish the answer to that one first by another answer? MR. YOV ANOVICH: Sure. CHAIRMAN STRAIN: Okay. If you're buying a unit there and I read a disclosure, and I've read many of them, that says there's going to be certain activities you're going to be accepting as a member of -- or as joining that condo group. Disclosures usually don't get so finite as to say, and the pool area will be part of the club and the pool area has the opportunity to have outside amplified music and noise and bands and reggae bands, whatever they want. Are you saying -- MR. YOV ANOVICH: Good point. No, no, no. Hang on. The pool -- by the way, the pool was part of the disclosure as part of the club but the next -- how about this, we will have -- CHAIRMAN STRAIN: What's this, make a deal? MR. YOV ANOVICH: No. Let me go in the order I was going to present it, and then we can talk about it if we need to do let's make a deal. But I wasn't -- we expect -- so the disclosure's there and we understand the issue of did they sign on to parties every night? No. So how -- what we expected was to ask for a limited number of Page 141 October 16,2008 events that we can have outdoor entertainment, because you know, you have 4th of July or you have your different holidays where it's customary to have that. But we'll further limit it to we can't do that without the condominium association's sign-off first. So that way at that point you know the condo's approved it before we have the event, so -- with outdoor entertainment -- so there's not that conflict of it happening all the time. And they could say no. If they say no, we don't have them at all. CHAIRMAN STRAIN : You pluralized the word associations, what condominium associations are you referring to? MR. YOV ANOVICH: The condominium association, I should have said, Moraya, the Moraya Bay -- what's the name of the condo, Moraya Bay -- I think it's Moraya Bay Beach Towers Condominium Association. But it would be the residential association for the condominium. CHAIRMAN STRAIN: How many units have to be sold before control is lost by the developer? MR. YOV ANOVICH: Oh, boy, now you're talking about the statutes. I don't know exactly under that statute when that happens. Mr. Strain, I don't know. I'm not a -- but there's a statutory scheme where you lose control. I think it's not to exceed seven years at the worst case, and then there's a number of units. CHAIRMAN STRAIN: And the neighboring condos -- we got another deal? MR. YOV ANOVICH: I feel like I'm bidding against myself. I'm just going -- MR. KLATZKOW: Take the box. CHAIRMAN STRAIN: You want to tell us what the latest is? MR. YOV ANOVICH: You're ready? Okay. I guess we're not going to do it. We don't want any. CHAIRMAN STRAIN: That would simplify life. No outside-- Page 142 October 16, 2008 MR. YOV ANOVICH: Okay, we don't want any outdoor amplified music -- CHAIRMAN STRAIN: Above that defined as background. MR. YOV ANOVICH: Right, the background and the I-Pods and things like that. CHAIRMAN STRAIN: That helps. Anybody else have any questions? (No response.) CHAIRMAN STRAIN: Okay, we'll ask for staff presentation at this point. MS. DESELEM: Good afternoon. For the record, my name is Kay Deselem, I'm a Principal Planner with Zoning. You have an updated supplemental staff report that is dated October 16th in the lower left corner. And it goes over the issues that were to be addressed in today's continuance. There are 11 items on there. Most of those were to be addressed by the petitioner, and he has done so. And there are several items that were to be addressed by staff. That discussion begins on Page 2 of that supplemental staff report, and it's Items six, eight and 11. And we have provided to you our assessment of those issues. And I'll assume that this is part of the record. I won't reiterate it. I will say, however, that I do have the affidavit of posting and the photos that are required for the signs. And I did receive two additional letters from persons regarding this petition, one of which I got today. And I believe that one was also e-mailedto Mark Strain. It is from the NP AA Civic Association, signed by Barbara A. Bateman. And it -- if you like, I can read it into the record. I do not have copies to share with everybody, because I'm working from a laptop. But it does ask me to make this e-mail available to you. But obviously like I said, I didn't have time to do that. Page 143 October 16, 2008 But to go on, it says, on behalf of the Naples Park Area Association, we are supporting the Vanderbilt Beach residents in their opposition to the conditional use permit of the Moraya Bay Beach Club, the canyonization effect of the building is overwhelming and hideous looking and overpowering for the area. The population in the area is maxed out with not enough places to park. Weare approaching season and of course on holiday and weekend trying to get to Vanderbilt Beach, traffic is in gridlock, lined up with autos idling away with pollutant gas fumes and cars parking everywhere and anywhere. Adding more density and traffic for the MBCC condo owners and outside members presents greater problems for surrounding communities trying to access Vanderbilt Beach and Delnor Wiggins Pass park. With only 75 parking spaces and four handicapped spaces at Connor's Park, plus taking away the approximate 10 public parking spaces next to Moraya Bay Beach Club, pray tell, where are the beach goers going to park. Weare requesting that the Planning Commissioners deny the conditional use permit of the beach club. And that's the end of that 1 etter. The other letter I did forward to you, and hopefully you do have copies of that. Other than that, I have nothing else. If you have any questions, I'd be happy to address them. CHAIRMAN STRAIN: Any questions of staff? Mr. Schiffer? COMMISSIONER SCHIFFER: Kay, the two things, one of the things on here, the first thing was is the concept of this is, as they testified today, it's going to be a privately owned for profit club that's added to this use. So remember, we discussed thoroughly and Ross sent a letter saying that it's no different than a hotel. But do you believe this has Page 144 October 16, 2008 really become a mixed use property by the addition of another business into this building? MS. DESELEM: No, sir, professionally speaking, I do not. COMMISSIONER SCHIFFER: Okay. Because this is a new business in there, I mean, it has different membership and everything. Even though the people who live there can use the facilities, it's become an amenity for them also. Okay, the other issue is, this second level of parking. What happened in the review of this thing, and you sent the documents, is that to get the additional story, and the neighbors are not happy with the height of this building. So to get that additional story, they used the waiver that would allow you to take parking off your site, bring it inside and raise the building to hold that parking. Yet the parking is not much of this floor. I mean, is there any requirement of what else can be on that floor with the parking when you use that waiver process? MS. DESELEM: I'm not aware of any, no. COMMISSIONER SCHIFFER: So I can design a building and I can go for this waiver, put one parking place up in there and fill the floor up with whatever use I want to? MS. DESELEM: I don't know that to be the case either. I'm really not -- I wasn't involved in that particular information. They did provide you what they used to get that approval. And it clearly showed the amenities proposed on that second floor, as far as I know. COMMISSIONER SCHIFFER: But that second floor was given to them. The height was given to them to put parking. And -- MR. BELLOWS: For the record, Ray Bellows. COMMISSIONER SCHIFFER: -- there's hardly any parking. MR. BELLOWS: My understanding of -- my reading of the LDC concerning this exemption of height, it doesn't have a percentage of parking. It just says if you provide the parking under building for two stories, then that's what you're accredited toward the building Page 145 October 16,2008 height. I agree that it could be perverted to get extra height if you put one space in. But the cost of engineering the building to structurally to put a stall in there and the drive access up there, I don't know that they're a great trade-off in that regards either. COMMISSIONER SCHIFFER: Well, it would be. It would be an excellent trade-off if it would be used every day. The way the thing is worded, it says that it can only raise the building to the extent necessary to provide the parking. We've raised this floor almost 13 feet. Obviously that wasn't to provide the parking. And the impression of that clause could also mean than it's only allowed for parking. I mean, there's nothing in there that says you can raise the building to the height to provide the parking and the beach club or any other facilities. Mr. Chairman-- CHAIRMAN STRAIN: I was just going to say who goes -- Richard, then Mr. Schmitt. MR. YOV ANOVICH: I want to -- first of all, I'm not sure that it's relevant to today's discussion, but I do, Mr. Schiffer, want to address a point. And that point being the residents not being happy with the height. When we dealt with the Burt Harris settlement, and I believe you have the minutes of that Burt Harris settlement as part of your record, I was specifically asked what was the height of that building going to be as a result of the settlement. And Page -- this is on June 14th, 2005 on Page 21 7, I said the building height was going to be 135 feet. CHAIRMAN STRAIN: Richard, the height is not part of this conditional use discussion -- MR. YOV ANOVICH: I understand. But I just -- CHAIRMAN STRAIN: -- so I don't know ifMr. Schiffer was going there. I think he was trying to talk about the uses of the second floor that would or should not be allowed based on the code. Page 146 October 16, 2008 MR. YOV ANOVICH: I know. But he said the people were unhappy with the height. I just wanted to make sure that in the spirit of full disclosure that's exactly what it came in at -- COMMISSIONER SCHIFFER: I agree, you did give a maximum actual height. You also gave a maximum zoned height of 90. By lifting this up, that lifted that zoned height up in this case 12 feet, certainly much higher than you needed for parking. The reason I think it's relevant is that, you know, are we giving away parking spaces -- I mean, essentially that free area is for parking. I mean, you've used it for amenities to the tower already, and now that's where you want to put the beach club. CHAIRMAN STRAIN: Mr. Schmitt, you had a follow-up question that you wanted to ask? MR. SCHMITT: Yeah, I was just going to follow -- I just wanted to put what Mr. Y ovanovich already said during the settlement agreement, it was clearly identified to the Board of County Commissioners, as well as an elevation drawing. The elevation drawing showed parking and amenities on that second floor. Mr. Y ovanovich clearly defined what the height would be of that building, and that was the criteria that staff used to evaluate this site plan. And I know this is not an element of the conditional use, but I want to put on the record that the plan was reviewed and approved solely based on the criteria in the LDC and in the settlement agreement. And if there were objections to anything that was reviewed in regards to that SDP in relation to how it was approved or why it was approved or what criteria, we're long past any opportunity to file an appeal. But certainly members can take that to the board if they so wish. But it is what it is. There's no criteria to define percentage of parking on a level. There is parking on that level and that level also includes the lobby, Page 147 October 16, 2008 the elevators, and of course a portion of it includes the amenities. COMMISSIONER SCHIFFER: Is that document part of the settlement agreement? Because if it is, you never gave us that when you gave us the settlement agreement. MR. SCHMITT: No, that was not. What was shown in the record was a elevation drawing. I have an e-mail that has that elevation drawing. I could try and display it on the screen. CHAIRMAN STRAIN: We have a copy of the settlement agreement, which sheds all drawings, except for one showing the boundary line up by the club. So doesn't legally -- I mean, what is legal, the drawings that they showed prior to the agreement or the agreement speaks for itself? MR. KLATZKOW: The agreement is the agreement. But like Joe said, we're past that at this point, I think. COMMISSIONER SCHIFFER: Well, obviously the building's built, we're way past that. But the concern I have is we're going into area, area that's shown I think on that drawing that's part of -- the beach club is now eating into some of that parking. MR. SCHMITT: Also there was a transition in the plan of this facility. At one time it was -- when the settlement agreement went to the board, there was contemplated to be two separate buildings, one building for the beach club and restroom and then the main building would of course be the condominium and the amenities. That changed. There's a long history of why that changed. One, and most significant, was that they were told in no uncertain terms that staff would not support any FEMA -- or staff would not support any variance request for a variance of the FEMA height required for the construction of any habitable floors below the FEMA elevation. And that sort of did in the separate building. And of course you know what happened with the result of the restroom, it was designed to be built above FEMA. COMMISSIONER SCHIFFER: But Joe, here's the problem I'm Page 148 October 16, 2008 having with what you're saying. You're saying you had a lot of negotiations that obviously we're not privy to. And then a settlement agreement was made which we were given and told to make a judgment based on. But why are we caring -- I mean, is there promises made during that -- you're saying look at that, look at that, that shows that it was always understood that there wouldn't be all parking. I mean, actually looking at that, we are eating into some of the area that even that shows as parking. How many parking spaces does that drawing show? MR. YOV ANOVICH: There's 36 spaces on the second floor. COMMISSIONER SCHIFFER: Which is about the same we have, I think. (At which time, Commissioner Murray exits the boardroom.) MR. YOV ANOVICH: I don't know about this new -- I'm just saying there's 30 -- COMMISSIONER SCHIFFER: Okay, so we lost some. MR. YOV ANOVICH: No, no, we met -- we met the park -- this is not the extreme that you're describing where we only put one parking space up there so we can somehow create more building area for the development. And don't forget, when you put parking under the building, you're also required to increase your open space, so there's the trade-off for that as well, which we've done. And this parking area, we met the parking requirements, it's not just one space to get another floor for the building. COMMISSIONER SCHIFFER: But it's not -- it's a smaller percentage than the other uses you put on that floor. So Ray, you're the -- you know, from the department, what you're stating is that the way that's written -- Ray Bellows, are you listening? MR. BELLOWS: I'm listening. Page 149 October 16,2008 COMMISSIONER SCHIFFER: That the way that's written is that you can lift your building, all the designers in town can be listening, you can lift your building that additional story and that level does not have to be fully parked. You can get a floor to floor height, whatever you want, has nothing to do with the parking. And that's what's allowed. MR. SCHMITT: That's no different than was the -- the Cocohatchee was designed, Coconilla, other projects where there's two stories parking. Normally the second story has the entry way , the elevators, those kind of functional spaces that have to be above the FEMA elevation. COMMISSIONER SCHIFFER: Correct. MR. SCHMITT: But do provide access and entry to the habitable floors. COMMISSIONER SCHIFFER: So when the neighbors saw 90 feet -- now remember, back at that time everybody thought we were going to get a nine-story building. The fact that you're saying even at that time there was evidence to prove to them that there was going to be this additional story. MR. YOV ANOVICH: There was always two -- when we were meeting with the neighbors, there were two levels of parking and 10 levels of residences above that. And then we went back and forth because the overlay said 75 feet and they tried to get us down to eight levels of residences over the parking. And we compromised at the nine level of residences over the parking. That's what we were discussing when we met with these people. The height is 135 feet. We could have put the rec. facilities on top of the roof, which would not under the code count against height but would have put the building above the 135 feet we promised. We stayed at the 135 feet. And there's nothing in the code that says that that second level has to be 100 percent parking. Page 150 October 16,2008 And we were asked to bring the club into the building. Because the residents, when we originally came through with the conditional use, it was external, and the feedback we got from the community was bring the club in, inside the building, which we did. And we put it in space that's on the second level of parking. So we've stayed within the height we told the community it was going to be, we stayed within the setbacks that we told the community, and we brought the clubhouse inside the residential condominium because the community at our neighborhood information meetings and in publications said bring it inside. So we've kind of done what we were asked to do and what we -- MR. SCHMITT: Can I just show -- CHAIRMAN STRAIN: Yeah, tell us how this picture factors into everything. MR. SCHMITT: This picture is the picture that was presented during the public hearing that involved the settlement agreement. I neither support nor defend it other than the fact that this is what was presented to the board and this is what was used to review the project, along with the settlement agreement. And you can see clearly where it says second floor, and I'll point. And this is what was used. It can -- CHAIRMAN STRAIN: What's that crosshatched area right below the words second floor, all that diagonal lined area? MR. YOV ANOVICH: That's the ramp. CHAIRMAN STRAIN: So the ramp was shown? Okay. MR. YOV ANOVICH: Yeah. MR. SCHMITT: That was the elevation drawing that was shown during the public hearing. Now, I can't tell you whether it was made clear or not, but the settlement agreement was approved. COMMISSIONER SCHIFFER: And Joe, is the top floor the 11 th floor? Page 151 October 16, 2008 Joe, if this was being shown there, why wouldn't this have been included in the settlement? Why wouldn't you include that sketch? Why would you verbally describe something -- MR. YOV ANOVICH: Because we took -- remember, I was being coached at that meeting in the back. And it originally had 11 stories. And when we were talking about it, he said take the top two floors off and that will result in the 135 feet in height. So that's the coaching I was getting back then to come up with the height when Commissioner Halas asked me what the height was. Why it didn't become an exhibit, I don't know. Nobody thought that that was important. The really important part was, because what was unknown at the time was the turnaround, how was that going to affect the site plan and we all wanted assurances on, because that was the unknown at the time, was the turnaround. COMMISSIONER SCHIFFER: Last question on this topic. Is the number of parking spaces shown on the drawing prior to the settlement the same as it is today on the second level? MR. YOV ANOVICH: My guess is there's probably a little bit less because there's less -- COMMISSIONER SCHIFFER: You don't have to guess. We can count. MR. YOV ANOVICH: I don't know. That's not the floor plan, I don't believe, I think that's just the -- COMMISSIONER SCHIFFER: No, no, there is a floor plan that you just showed, remember, and I kept saying it looks like it's eating into that parking -- MR. YOV ANOVICH: I think that's the current -- COMMISSIONER SCHIFFER: Here's the current now. CHAIRMAN STRAIN: The plan that's on the screen is the one that's in for approval. MS. BISHOP: It's not in yet. Page 152 October 16,2008 MR. YOV ANOVICH: That's the one we're going to submit for the 165. COMMISSIONER SCHIFFER: Right. There's 35 spaces on the second level of that plan. MR. YOV ANOVICH: For the revised 165 number, yes. CHAIRMAN STRAIN: That has 36 on that-- COMMISSIONER SCHIFFER: Is there? CHAIRMAN STRAIN: Well, down below it says 36. I'm not sure -- 15 and 21, yeah, 36. COMMISSIONER SCHIFFER: 15 and 19 on mine. CHAIRMAN STRAIN: It's dated September 23rd, 2008? No revisions? COMMISSIONER SCHIFFER: Well, it's -- hold on. Where's yours coming from, the parking? CHAIRMAN STRAIN: From the parking calculations tab. It shows on the bottom under the word, it says second floor parking, proposed parking layout for 36. COMMISSIONER SCHIFFER: 15 and 21, okay. So we get 36 spaces. How many are shown in that -- you have that drawing, just find it again and I can count. CHAIRMAN STRAIN: What drawing are we talking about? COMMISSIONER SCHIFFER: I'm just looking for the drawing -- you showed us a drawing, here's what we showed everybody before the Burt Harris claim was written up -- and how many does -- CHAIRMAN STRAIN: Blow that up a little bit. COMMISSIONER SCHIFFER: Keep coming, keep coming, 47. So we're cutting even from that concept. Well, actually, even more, if you look at what's up front going up on the ramp. In other words, to get that second level, here you're showing 47. We're cutting that by about 10. Actually, more than 10. 10, I mean-- MR. SCHMITT: There's 45 right now on the drawing that we have. Page 153 October 16, 2008 COMMISSIONER SCHIFFER: My point is that that ability to get that additional height is to provide parking, not to provide beach clubs. Obviously parking has associated things like elevator lobbies and all the other goodies. And, you know, even here from what you're showing, you're providing less parking on the current plan than then. But I said it was my last question, it's done. MR. YOV ANOVICH: Just in response, the elevation we showed said parking and amenities, okay. So let's put it in the context. It's not like we didn't say it was going to be parking and amenities as part of the settlement. COMMISSIONER SCHIFFER: Well, what I'm saying-- MR. YOV ANOVICH: There are fewer spaces than what was shown before, yes. But we did show that it was parking and amenity level on the second level, which is consistent -- COMMISSIONER SCHIFFER: And I'm saying you should have labeled it amenities and some parking, you know. That's all, I'm done. CHAIRMAN STRAIN: Okay, are there any other questions of the staff or of the applicant at this time? (No response.) CHAIRMAN STRAIN: Kay, this was the time we're asking you questions but you kind of got lucky. MS. DESELEM: I'm losing track of whose on first here. CHAIRMAN STRAIN: I don't blame you. Any questions of staff? Ms. Caron? COMMISSIONER CARON: Yeah, I had asked a question about the GMP and consistency with the GMP based on the staff report last time around. This time around they just changed it but without any explanation. MS. DESELEM: They reviewed the information, the current application information, and determined that yes, indeed, it is Page 154 October 16, 2008 consistent. Whether it be limited to the residents or not. Because if I recall correctly, the original one says if it was implied that it was only for the residents. And they looked at it in light of removing that clause to say that yes, it is consistent. COMMISSIONER CARON: Well, I understand that they removed the clause. I want to know why they thought that was appropriate to remove the clause or why they had it in there to begin with. And I never heard from anybody on that issue. MS. DESELEM: I gave them -- I forwarded to comprehensive planning staff the most current information we have, which shows it being shared with other entities. They had reviewed based on their original assumption that it would just be limited to this particular project, Moraya Bay. So I don't know what thought process they used to come up with the conclusion they did. All I can say is this is the memo that now states that it is consistent. CHAIRMAN STRAIN: Anything else? MS. DESELEM: That memo is Attachment 1 to the supplemental staff report. COMMISSIONER CARON: In the LDC, if you go to the RT district. MS. DESELEM: I'm sorry, I didn't hear you. COMMISSIONER CARON: In the LDC, if you look at the RT district, it says that that district is to provide for tourist accommodations and support. So hotels and motels and whatever you need to support those facilities, and multi-family uses. Everywhere in the code where you look at multi-family, it says that the uses shall serve the immediate needs of whatever that use -- the multi-family. Will you explain to me why you think this does that? MS. DESELEM: It doesn't -- in saying immediate needs, it doesn't necessarily limit it only to the residents of that project. Page 155 October 16, 2008 Immediate needs can be of the area, the entire R T area. It could be the beach area. And that is identified in the Vanderbilt overlay as an allowable use as well. COMMISSIONER CARON: I understand that. That's not-- MS. DESELEM: So I don't think that there's a conflict. In my mind there isn't a conflict. It doesn't need to be limited to just this project's residents. COMMISSIONER CARON: Okay. CHAIRMAN STRAIN: Anything else? COMMISSIONER CARON: Not right now. CHAIRMAN STRAIN: Okay. Thank you. If no other questions of staff, Ray, is there any public speakers? MR. BELLOWS: Yes, we have five speakers. The first speaker is Doug Fee, to be followed by Joe Connolly. COMMISSIONER SCHIFFER: Mr. Chair, could I have the fellow that -- I don't know if he's even registered -- that raised his hand about the cost of going north on the beach? CHAIRMAN STRAIN: Sure, he can come up when he's called. Is the park service gentleman on the list, Ray? MR. BELLOWS: What's his name? At the end of the public speakers we'll ask that he come up and address your question. MR. FEE: Good afternoon, Commissioners. For the record, my name is Doug Fee. I appreciate the time to speak today on this matter. What you have on the visualizer is a map of the area up in North Naples pointing out the two PUD's, Cocohatchee Bay and Dunes PUD. Both of these PUD's were mentioned by Rich Yovanovich as locations where the shuttles may originate. And what I'd want to make sure of is in your approval that the resolution specifically states where these shuttles will originate and drop off. And if there are any added communities in the future, that they would come back and amend that conditional use to include those communities, okay? And I think it's important just to make sure that Page 156 October 16, 2008 we have that documented. What I want to point out here is when Cocohatchee Bay was approved back in December of 2000, that came only months after The Dunes had gone forward with an amendment to The Dunes PUD. They added some units at The Dunes. You can see here, I circled the two projects. The land is abutting, okay? Even though there's water between the two projects, technically they're abutting properties, there is a letter in the county records from the southwest regional Planning Commission that stipulates that they would not have to go through a DRI process if they followed five stipulations. And one of the stipulations in the letter mentions that they cannot market common amenities. We have a beach club that's not part of the communities of these PUD's. However, if they are shuttling from these two communities, it seems to me that they now are marketing to their members, to their unit owners, this club. And I want to raise that issue just because it's in the record. The DRI requirements may have changed today, but back when these PUD's were approved they were stipulated that they wouldn't have to go through that process, but they needed to make sure they didn't market these amenities. Okay. I do have a question raised about the membership. I think it's important to know whether it's a membership that one pays, i.e., an initiation fee and a dues, and/or if these are included as you buy a unit in any of these PUD's that would be conditional use. Profit or not for profit. I'm an accountant, and I'm not trying to sell my services, but I have clients that are restaurants as well as I have clients that are private clubs. There are different liquor licenses for each of those types of businesses. One is more expensive and it's open to the public. One is less expensive and it's only available to the club members, okay, they're H-l or H-7, that's the application. I think it's important to know that so that if it's a for profit, which Page 157 October 16, 2008 is what has been stated, is it going to be open to the public? I can tell you if it's a not for profit, if they were a not for profit, they could not be open to the public, it would only be the members. So I wanted to raise that issue. Another issue is in the neighborhood informational meeting, Mr. Griffin specifically told the audience that the sand in front of the private beach club would be available to the public. N ow I know there's a reconfiguration here, and I wanted to figure out where exactly the sand is today versus they were talking about a dunes restoration. Are they taking quite a bit of that sand and restoring the dune, which I'm not opposed to at all, but is there going to be sand behind the dune that would be available to the club members but not necessarily be available to the public, when at the public information meeting he stipulated that the sand would be available to the public, that they wouldn't be kicked off, okay? So I want to make sure that -- the only other thing I'd say is if there's a way to make sure there's a provision in there that, let's say, two years from now that we could come back and review this, not hoping there's any problems, there may not be any problems, but in case there were, having the ability to review it and then grant it for another five years or however long you want to do it. I don't know that the conditional use, does that -- is that permanently out there and it cannot be revoked? If there's a way to somehow have a review period. And those are my comments. Thank you very much. CHAIRMAN STRAIN: Okay, thank you. We'll try to get some of them responded to. Ray, has staff done an analysis to see if this project breaches any DRI threshold issues? MR. BELLOWS: I believe that's something Kay needs to answer. MR. SCHMITT: The question that Doug referred to was the sharing of amenities but the amenities is not on the properties that Page 158 October 16,2008 were identified with The Dunes or Cocohatchee, so I don't even believe it applies. But I've got to turn to Kay, because the way the wording -- the way he described it and the wording, I listened to it, was no shared amenities. But the amenities are not being shared on the either of the two properties that he discussed. Of course the amenity is being shared on now what is called the Moraya Bay property. CHAIRMAN STRAIN: Well, when you aggregate properties you come under possible DRI thresholds. If aggregation occurs within a certain distance, I think it was three miles, it could be less, you have to -- you then qualify for what's called aggregation, and you fall under the DRI threshold rules. But those thresholds have changed over the years and whatever they are currently today is what would be applicable here. Do we know what the density count or the threshold -- have any of the thresholds been broached by these projects? MS. DESELEM: For the record, Kay Deselem. I don't know the date of the letter. If he said, I didn't hear it. But the thresholds for Collier County did go up in the early 2000's. And it's now 1,000 units unless you're -- I'm sorry, 2,000 units unless you are within two miles of a boundary to another jurisdiction or something like that. And the aggregation rule can be used to determine if a project is -- and DRI, if you call it A, B, C and X, Y, Z but they share common things so that people can't get around the DRI thresholds. But I would have to see the letter to see what the date of it is and see what information was provided at that time. I don't know. But in my opinion, we did not get an interpretation at any kind from the regional planning council. But I don't believe that this project, even in conjunction with the ones that are controlled by the other petitioner, would trigger any DRI thresholds. MR. FEE: If I could, Doug Fee here. It uses the term marketing. It prohibits the marketing of those common amenities. So it doesn't Page 159 October 16, 2008 talk about where it's located-- CHAIRMAN STRAIN: Doug, you had your time. Just sit down for a minute. I can ask those questions, I was about to. There is more to a DRI threshold than simply unit count. You have to -- and distance -- you have to also look, just like Doug was saying, at marketing. Common management is another one. Common usage of facilities. I think from a criteria of whether or not they qualify to be a DRI, they trigger criteria, but I don't know if they trigger the density thresholds. Because without the density thresholds, the trigger doesn't matter. MS. DESELEM: Exactly. And I think that because they've changed the numbers for Collier County in recent years based on the increase in population that that document may no longer be a concern, because aggregation doesn't kick in because it doesn't have enough units overall to be applicable. CHAIRMAN STRAIN: Could you make a note to verify that when you get a chance. MS. DESELEM: I certainly will. CHAIRMAN STRAIN: The other couple -- I tried to make notes when Doug was talking so I may miss a few, and I'm sure somebody else here will know it. Public or not. And that was an issue concerning the liquor license. I need you to say for the record whether you're public or not and if your liquor license coincides to a public license or a non-public license. MR. YOV ANOVICH: We're in for a private beach club, not a public beach club. We're in for a private beach club. CHAIRMAN STRAIN: Wasn't your commitment in this prior meeting that you would seek no members outside those PUD's that you're in control of? MR. YOV ANOVICH: We said that then and we said it again today, it's those two projects. Page 160 October 16,2008 CHAIRMAN STRAIN: So even if you had a liquor license that could open to the public, you're still going to be closed to the public because you're limited to those people that live in your current facilities. MR. YOV ANOVICH: We're limited to members only. I will not be able to go there unless I'm a member, and our membership is limited to those two off-site developments. CHAIRMAN STRAIN: And can you explain this sand versus the public issue that came up. MR. YOV ANOVICH: Yeah, where did my exhibit go? The issue came up in regards to we always knew we had to build this revegetation, okay. So water-ward of the revegetation, there's white sand. And obviously on that white sand there's not a line that says property line. We told people if they happened to come over onto what was our private property, we weren't going to kick them out. CHAIRMAN STRAIN: So the area that's shown as rope and bollard fence, from that point westward, even though it's on your property, the public will be able to use it. MR. YOV ANOVICH: Yes, if they put their chair there, we're not going to boot them out. That's what we said. COMMISSIONER SCHIFFER: Mark? CHAIRMAN STRAIN: Yes, sir. COMMISSIONER SCHIFFER: Richard, point to the mean high water line on that. Run your finger up it. MR. YOV ANOVICH: It's not on that one. COMMISSIONER SCHIFFER: Okay, but where does that-- remember in the other scheme, your brown -- the westerly part. Where would that be? Where your thumb is? MR. YOV ANOVICH: Yes, it would be in this area right here. COMMISSIONER SCHIFFER: So in high water there's not that much width at that point that's public then. Page 161 October 16, 2008 MR. YOV ANOVICH: It's about 100 feet wide, between the mean high water line and the line I just showed you. CHAIRMAN STRAIN: Rich, the dark line on this plan between the two erosion lines, that's your property line, right? MR. YOV ANOVICH: That's our property line. CHAIRMAN STRAIN: Okay. Now flip over to the plan. The property line on this one is that same dark line, and it's wider and narrower, depending on from north to south where you go. Does that help? COMMISSIONER SCHIFFER: Okay. But then look up at the top. The brown area is touching that line, correct? MR. YOV ANOVICH: Right, but remember the property line is before the erosion control line. Now, the erosion control line is landward -- I mean water-ward. COMMISSIONER SCHIFFER: Go to the next one now, because it doesn't -- so pull down so we can see the northern property line. MR. SCHMITT: Brad, I'll make it clear that the requirement for the revegetation was to match the properties to the north and south. That was a requirement. And the properties to the north and south actually have -- and I believe to the south is actually planted grass to the south. So it's already treated almost like it's private property to the south, which we require them to match that dune line. COMMISSIONER SCHIFFER: But if it's -- in other words, remember, that was touching the property line, which is your dark black line here at about where that easement is on the top, right? Yes. So there's hardly any distance. That's not 100 feet, Rich. It's more like 30 feet maybe. What's the width of that right-of-way? It's -- the 20 foot right-of-way, so -- MS. BISHOP: It's about 50 feet. COMMISSIONER SCHIFFER: -- it's about 30 feet. Well, we Page 162 October 16, 2008 have hopefully a measuring device in the building. But in other words, around that point you're going to walk all the way down to that distance close to the mean high water. I've asked if you can go north and you guys say it's okay. Somebody in the back's going to tell us something else, maybe. So the public, everybody coming to this beach access has to walk around that tip and maybe go south. MR. YOV ANOVICH: You know, Mr. Schiffer, if you could convince environmental staff to shrink that tip, we'll be happy to do it. This is the revegetation plan that we were required to build. And we've got to build that regardless of there being a private club or not. So if we could skinny that up to somehow make it easier for people to head south, we're all for it. MR. SCHMITT: This is the original property, and I apologize to interrupt, but you can see where the state park property is and their dune line, and the property to the south. When this came in for review, one of the requirements, requirements by the state as well -- and Susan, I can have Susan come up and discuss this if you want further -- but of course the old hotel almost went up to the dune line, I believe, Rich, and you don't have the footprint of the old hotel, but one of the requirements we had was to restore that dune line and match it to the properties to the south and to the north. If you are directing that we crop some of that off, then we will do so. We'll make that note to the board. But I don't know if we can get through state approval on that. I'm looking to my staff for that. MR. YOV ANOVICH: State we're okay with. We know we can get through the state. COMMISSIONER SCHIFFER: The reason I'm bringing it up is that this is a public beach access. It's going to be a major public beach access. And the fact that we're pinching it so tight there, and then the fact that we're being asked today to add 250 people to that same area, that's the question. Page 163 October 16, 2008 MR. SCHMITT: Again, it was a motel before that, hotel, motel. I have no idea what was there before. That's why the beach is pretty much designed the way it is. But the requirement was to match that dune line to the north and the south. MR. YOV ANOVICH: I can assure you from a carrying capacity of that beach, the fact that we've gone to this residential development plus the beach club, there's a lot less people on that beach than was there when the Vanderbilt Inn was there. And it was a motel, hotel with a cheekie bar and everybody there. So from a -- if you want to look at it is there an increase today over what's been in the past, I can assure you there's been a decrease. And we provided the public access with the 20- foot access. So we're helping the public get to the beach. COMMISSIONER SCHIFFER: And the point is that -- I'm really curious what we can do about people being able to go north. That's a big concern. Because there's no sense getting to the beach if-- who wants to go to Jones beach when, you know, we're at a density that doesn't meet the experience. CHAIRMAN STRAIN: On this particular plan you have here, see the dark line out to the left out by the water. Is that the property line? It is? COMMISSIONER SCHIFFER: This right here? Is that what it . J ? IS, oe . MR. YOV ANOVICH: That's the original property line, yes. CHAIRMAN STRAIN: Could you put the plan that's colored on, the orange coloration. Now, the orange coloration, the revegetation goes all the way out to the original property line. Now put the other one back on. COMMISSIONER SCHIFFER: Yeah, good point. CHAIRMAN STRAIN: If you line up with the vegetation to the north for dune revegetation, do you need to go that far out? MR. YOV ANOVICH: This is from the property appraiser's Page 164 October 16,2008 aerials. So as far as total accuracy I wouldn't rely on it as far as that-- if they put the property line there as being totally accurate but -- MR. SCHMITT: It's not. MR. YOV ANOVICH: Okay, so -- so I would say Mr. Strain, I wouldn't rely on that hard line on the aerial. CHAIRMAN STRAIN: Just want to make sure that the statement was it was to line up with the dune to the north. And if that's what it's doing, that's fine. If we've asked for something beyond that, I would hope we're not doing that. MR. SCHMITT: No, we are not. It's just to line up with that vegetation to the north so it blends in to both the vegetation to the north and the south. COMMISSIONER SCHIFFER: Mark, let -- CHAIRMAN STRAIN: Yes. Cherie', we're going to take a break in about three or five minutes here, okay? COMMISSIONER SCHIFFER: So Joe, you can testify that the edge of that line was solely determined by your staff, and that they've got the most beach that they could possibly get -- MR. SCHMITT: Correct. COMMISSIONER SCHIFFER: -- subject to -- in other words, Richard would probably give us more beach if it was up to him -- MR. SCHMITT: That north section, I can crop it off -- MR. YOV ANOVICH: I'm here to help. MR. SCHMITT: -- you direct it, you put it as a stipulation and that's what we'll present to the board. COMMISSIONER SCHIFFER: Well, you do know everybody walking there heading south is going to walk it off before long anyway. MR. SCHMITT: No argument. You stipulate it, we'll do it. CHAIRMAN STRAIN: We had tried to finish up with the questions from Doug. Did I miss anything that needs to be addressed? Page 165 October 16,2008 Okay, with that, let's take a 15-minute break and be back here -- well, 17 minutes. Back here at 2:45. (Recess. ) CHAIRMAN STRAIN: Okay, everyone, welcome back from our break. We had left off with public speakers. And Ray, if you'll call the next speaker, please. MR. SCHMITT: Could I for clarification, because of the question, can I -- for clarification because of the question that was asked, I wanted to make sure that you all understood what was happening here. This is the original building. This is of course the footprint for the new building. This is the Collier County coastal construction setback line. This is the area. All this is where we're requiring the beach to match the dune line, the dune line to the north and the dune line to the south. You can see at one time this was parking, which it is no longer. And here was parking here. This is the building. CHAIRMAN STRAIN: Can you slide that down a little so we can see the north part where that point is that -- COMMISSIONER SCHIFFER: Or zoom out, yeah. MR. BELLOWS: We can't zoom it out anymore, further zoom out. MR. SCHMITT: But this is the end of the old hotel and parking. And the requirement was for the developer to match the vegetation and dune line to the north and to the south. And that's why -- this is pretty much that roped area, or whatever you call it, bollard and rope. CHAIRMAN STRAIN: No, that's my -- that's where I've been having my problem. See that dark, black line you have around, that slashed line? MR. SCHMITT: Down here. CHAIRMAN STRAIN: I'm assuming that's the property line. Otherwise I don't know why anybody would show it on this plan. If Page 166 October 16,2008 you look at the -- MR. SCHMITT: That is the property line. CHAIRMAN STRAIN: Okay. Now, if you look at the orange plan and look at where the dune location is here, on the orange plan you've got that northern property line intersection as to where you're going with your revegetation, which is many feet westward of where the dune seems to be. MR. SCHMITT: But some of this has been replanted as well. This is -- this was into the park area, and of course the right-of-way has been replanted and revegetated. And all the requirement is is to try to match -- and this is what you're referring to, all the way down to here. CHAIRMAN STRAIN: Right. Look at the difference. MR. SCHMITT: All we're requiring is to match the dune lines to the north and the south. CHAIRMAN STRAIN: Okay. Well, then Mr. Schiffer's issue is correct, we won't have that issue up on the north because there's no vegetation to that point of the north. MR. SCHMITT: No, what I'm saying is some of this has already been revegetated. CHAIRMAN STRAIN: Mr. Wolfley? COMMISSIONER WOLFLEY: May I just say, there's been a couple of tropical storms and hurricanes since that original -- this plan that he's got, the big one has been done? And there's been quite a lot of realignment due to wind and waves and so on, so it's kind of a tough issue there. CHAIRMAN STRAIN: Well, if there's been a lot of realignment from tropical storms and waves, it would be even less vegetation to match up to then. COMMISSIONER WOLFLEY: Well, I think they replanted on the north. MR. SCHMITT: They replanted. Page 167 October 16, 2008 CHAIRMAN STRAIN: All I would suggest is that if you're going to match to something to the north, someone needs to field verify that something to the north is there to match to. How's that? MR. YOV ANOVICH: And we -- okay. We've done that, but we'll -- CHAIRMAN STRAIN: Okay. Now, public speakers. Ray, or somebody could call the next public speaker. MR. BELLOWS: Joe Connolly, to be followed by Alexander O'Brien. MR. CONNOLLY: For the record, my name is Joe Connolly, and I live at 10633 Gulfshore Drive. And I'm vice president of the Vanderbilt Beach Residents Association who are opposed to the Beach Club. And first of all, I want to thank you all for your service. After sitting out here since 8:30 this morning, you all really deserve a whole lot of credit, and I know you don't get that much, so thank you very much. MR. SCHMITT: Joe, can you make sure you have the microphone? Thank you. We're -- yeah. (Microphone fell.) MR. CONNOLLY: Don't know what -- CHAIRMAN STRAIN: Wait till you get the bill for that. MR. CONNOLL Y: You mean my tax money won't take care of it? COMMISSIONER WOLFLEY: The whole thing's going to go. MR. SCHMITT: Speak right into it. There you go, thank you. MR. CONNOLLY: Prior to the September meeting we had a meeting with Mr. Bing and Mr. Griffith at their request at the Beach Club that they now have. And then when we came to the meeting here in September, it was like a different world. The initial meeting with them, this new beach club was for the Cocohatchee Towers, not -- The Dunes was Page 168 October 16, 2008 never mentioned. And the parking lot, which hasn't been mentioned today, was not mentioned, although it was in September. So now today we're getting The Dunes and the Cocohatchee Towers on the scoreboard. But The Dunes already has a beach club. Are you going to run two beach clubs, or are you going to have one beach club? CHAIRMAN STRAIN: You'll have to direct the questions to us and we'll ask the applicant. MR. CONNOLLY: Well, that is the question, are they going to have two. Because The Dunes is for the other beach club. That's what they said. This was for the Cocohatchee Towers, which was some time off. Now, if you look at the beach club they presently operate, they have 100 feet on the beach at the very widest part of Vanderbilt Beach. And Vanderbilt Beach, as you get down to Wiggins Pass, narrowly tapers and gets narrower and narrower and narrower as you approach Wiggins Pass. So even though they have 400 feet on the beach at Moraya Bay, they don't have half the width of the beach they have at their other beach club. And now they're going to encroach on that. I mean, they say it's their property, it is. And if they're going to put all their umbrellas and chairs and paraphernalia down there and serve the drinks on the beach in there, there's only a little narrow strip, like one lane of road that's really going to be available to the public. So there couldn't be a worse possible place for beach clubs. I'm not opposed to beach clubs, I'm opposed to this one because of where it's located. At a public access next to Wiggins Pass Park the county's going to expand their parking to get more people to go to the beach. And unless the good Lord opens up the Gulf, they're not going to have anyplace for them to go. So I don't think it's right. And they say 275 members. Remember, there's 140 people Page 169 October 16, 2008 going to be living in the building and they can go to the beach without going to the beach club. So you've got 350 or 400 people that could be down there. On the parking issue, nobody has asked where the people that live there, where are their guests going to park? Are they going to have to go to The Dunes and be shuttled in to visit the owners of the condominium? There's no guest parking that's been mentioned. So in all this is a poor scheme and a wrong place. And I don't think with the commissioners always preaching beach access, beach access for the public and more importantly for the tourists, is the way they look at it, is that, you know, you're narrowing where they can go to the beach. I didn't say privatize. Rich mentioned it last time. But that's really what it sort of amounts to. So we are opposed to the beach club very, very much. Thank you for your time. CHAIRMAN STRAIN: Sir, Paul's got a question, and then I have a -- Paul? COMMISSIONER MIDNEY: Yeah, so you're opposed to them having any kind of a club there at all? MR. CONNOLLY: And busing people in, yes. You're going to have 150 people living in the building, plus their guests and that which, you know, that's pretty much going to fill up the beach. And the beach is not that wide. CHAIRMAN STRAIN: Sir, I've got one question. You had said previously they were originally going to limit themselves to the Cocohatchee proj ect? MR. CONNOLLY: That's what they told us, this beach club was to service the Cocohatchee Towers. CHAIRMAN STRAIN: Have they ever modified the number of people that they're going to be using this club for as far as numbers go? MR. CONNOLLY: No, no, it was 275, and they were going to Page 170 October 16, 2008 bus them in. And they were going to also have The Dunes Club. And it's like -- I think it's 150 members. And they say that they have to close it during the season it gets so crowded. They had some problems down there with the neighbors and that, but I think they've resolved most of them. And they also gave the neighbors membership in the Beach Club, and I think that helped a little bit. CHAIRMAN STRAIN: Thank you very much, sir. Okay, Ray, next public speaker? MR. BELLOWS: Alexander O'Brien. UNIDENTIFIED MEMBER IN THE AUDIENCE: I think he left. MR. BELLOWS: Okay, Bruce Burkhard. CHAIRMAN STRAIN: I think he left, too. MR. BURKHARD: Good afternoon, Commissioners. Bruce Burkhard, Vanderbilt Beach Residents Association. I'd like to start off by giving you a little bit of background on this whole project, and maybe get a little bit of a feel for the genesis of our opposition to the project and the reason that we think that it's a bad project and should not be given a conditional use. We started as a community late in 2001, and we were trying to seek major revisions in the LDC pertaining to the R T district, residential tourist district. Our little narrow strip of land, centered on Gulfshore Drive, was still and still is a target for developers. We suffered from many questionable rulings by the county staff. The LDC was changed numerous times without any input from local citizens. In effect we had no control over what was happening in our neighborhood. We successfully achieved a building moratorium in January of 2002, so you can see this has been going on for quite a while. A consensus through a series of meetings developed to preserve the Gulf. And what we wanted to do was try to preserve the Gulf, the Page 171 October 16, 2008 lagoon and sky vistas; in other words, our water views. We wanted to reduce permitted building heights to something consistent with the average of all the buildings in the R T zone, which was and still is about 50 feet of real height. Our goal was to improve air and light movement, thereby reducing the condo canyon effect. Many other practical ideas were put forth to preserve and improve this unique place where residents live, work and play. The process dragged on for about three years and cost our association well over $50,000. We ended up with maximum building heights of75 feet of zoned height. And many other criteria were added as well to what we now call the VBRTO, the Vanderbilt Beach RT overlay. Progress never seems to come easy, however. By the time the overlay paperwork was done, the old owners of the Vanderbilt Inn, the site we're talking about today, threatened the county with a Burt Harris claim. Under the gun, the county settled rather than fight. Compromises were negotiated and the zoned height of 90 feet was signed off on. Our residents all understood that 90 feet was the top -- on top of 15 feet of FEMA elevation. I have no recollection of this 135-foot height that they've been talking about today. My recollection was it was a 90-foot building on top of FEMA. Be that as it may, it's a large building. So then administratively the second floor parking that Mr. Schiffer has been talking about was added on to what is higher than what the overlay originally permitted, 75 feet plus say 15 feet for FEMA. So what we're dealing with now is a monolithic monster of almost 135 feet real height, far, far from the 75 feet that we thought we had won in our overlay. Another hard won feature was an improvement in setback requirements. The idea was that we would have increased green space Page 1 72 October 16,2008 and improved site corridors. The front and year yards were increased to half of the building height, and that amounts to about 45 feet. Sounds good. But a huge, ugly concrete ramp sits in the middle of the front area. There'll be very little greenery visible in this area. Side yards are also half the building height. We now have balconies jutting out into the setbacks. Five feet, in fact. And the top floor balconies even have a solid roof over them which seems to us to contravene the LDC which doesn't allow for a roof over a balcony proj ecting over a setback. Obviously this adds to the massive character of the building. The development has absolutely maxed out this site. Our whole overlay has been overturned, we feel. Is the developer satisfied that he's squeezed all he possibly can out of this site? Apparently not. He's now before us asking through a conditional use to be permitted to increase the intensity of use even further. They want a beach club, essentially a bar and a restaurant, along with exercise facilities and a swimming pool. They will also be staking a claim to a generous portion of what has heretofore been used as a public beach. When the Vanderbilt Inn was there, although it technically was private property, the public freely used the entire beach. Now we're being told that part of it is going to be fenced off, duned off, unavailable to the general public. And even if the public were allowed in there, I don't think they're going to be feeling welcome. I think there are going to be cabana chairs and towel boys and everybody else walking around that they're probably going to discourage the public from using that area of the beach. So they're going to move to a more convenient part of the beach, either to the right up into the park where technically they're supposed to pay a dollar entrance fee. There's a sign right there at the south end of the park that says go to the ranger station and pay a dollar to enter Page 1 73 _,,,,,,,,~,..._,,~_._..._._,.,,,,, .....tr ...-.-., "" .",_,;"".~"","".""___~""___,__,.~__..^___......-___;_.."",._",,,,-, .......,.,-_..~<.""~_.._,~,~_'"._~N_~"_.___ October 16,2008 the park. It's probably not going to happen. The park's probably just going to be beat out of the dollar, unless they get a guy out there policing it. The other option would be for the people to walk a narrow gauntlet through the cabana chairs and to the beach to the south of this fac ili ty . So due to the circumstances that I've mentioned, our association feels that we and all of the public are adversely affected due to the breaches and the spirit of our VBR TO conditions and the loss of public beach access. We believe the existing building, by adding a beach club, is incompatible with the adjacent properties and other property in the district. Please keep in mind that this property stands alone all by itself as an RT property at the very north end of Gulfshore Drive. It's surrounded by residential RMF -16 properties. That's the real character of the neighborhood, RMF residential, not really a touristy commercial area. No other condo in the area has or would have the high level of people coming from the outside into the immediate neighborhood. It also seems to us that this high intensity proj ect will have a deleterious effect on the traffic situation on Bluebill Avenue and will have a negative economic effect on the properties in the adjacent Baker-Carol (sic) Point properties. We have raised the lack of parking at the facility as a negative and an indication that the site has been already maxed out. As we read the LDC, Part 4.05.01, we don't believe that the remote parking concept being promoted to permit the CU is consistent with the LDC at all. And the -- I have a copy of the LDC for 05.01, and it says the intent of the section is the public health, safety, welfare, comfort, order, appearance and so on, general welfare, require that every building and use erected shall be provided with adequate off-street Page 174 October 16, 2008 parking facilities for the use of occupants, employees, visitors, customers or patrons. It must provide off-street loading facilities as well. We haven't even discussed that. But that's another whole issue that we need to talk about. In design standards 4.05.02, item J, all off-street parking facilities shall be located on the same lot that they serve or on a contiguous lot under the same ownership. And I think you were talking a little bit about that before, Mr. Strain. That is zoned for use as a parking lot. So here right in the code it's directing you to put parking at this site. And the county is in the process, if this conditional use were approved, to forget about that, waive the LDC, be inconsistent with the LDC, and just charge ahead with this bus shuttle scheme. Earlier you were referring to exemptions, and the exemptions is they talk about the various criteria for exemptions to this on-site parking. What they all seem to indicate, that the parking will be in the immediate vicinity of the building, of the facility that's being used, in this case the Beach Club. They talk about okay, we can have off-site parking across the street as long as it's not designated as an arterial or a collector roadway. We kind of have a similar situation to that with LaPlaya. They have their parking not right on the site of their beach club but across the street. And they've obviously qualified for this waiver to do that. So there are various levels. The BZA, after review and recommendation by the Planning Commission, may approve a parking exemption under the following circumstances. And there are a list of circumstances. But the implication is that parking be nearby and across the street, not miles down the road. So again, they seem to be disregarding the LDC. And one of the criterias they need to know for this waiver, the Page 175 October 16, 2008 distance of the farthest parking space from the facility. Which would seem to indicate that they're looking for how far do people have to walk to get from the parking lot to the facility. And in this case clearly they're not going to be doing that. They talk about pedestrian safety as a consideration. And they -- right now with this busing scheme, the idea is to drive down through the -- near the park entrance through a circle where other people will be circling around and dropping people off. And pedestrian safety might -- should be a consideration, as well as vehicular safety, something that you would have to look at if you were granting any kind of a parking waiver. And also, this turnaround area actually is possibly a problem somewhere down the road. And down the road, what we're talking about is the requirement for a drop-off place. If you're running a bar and a restaurant, you're going to have to have liquor being brought in, food brought in and dropped off, various other -- napkins, various other things that you're going to need to run your restaurant and bar. And the only place that I see that that's a possibility that they're going to be using will be this turnaround circle. And we already have a problem on Gulfshore Drive at the Turtle Club site where delivery trucks park virtually in the middle of the road and unload their beer and wine and food and so on. And it creates a problem for residents in that area as they traverse up and down Gulfshore Drive. The same is true for the LaPlaya Beach Club and restaurant and bar. Their delivery trucks also project out into the road and create traffic problems. The third -- the last item that hasn't been addressed as far as I know as far as this beach club goes is that bicycle parking is a requirement. It's a little thing, it's not a big deal, I'm sure, but that has not been addressed anywhere that I've seen in any of the paperwork. So basically what we're doing, we're asking for a vote to deny this conditional use due to a lack of consistency with the LDC, Page 176 October 16,2008 parking, traffic flow problems, effect on the neighborhood and compatibility with adjacent RMF-16. And that's all I have. CHAIRMAN STRAIN: Thank you, Bruce. I'll do some followup questions was staff, so -- and I'll ask them. I made notes. MR. BURKHARD: Okay. I can't hear you very well, anyway. CHAIRMAN STRAIN: Oh, I'm sorry. Yeah, I'll run by staff with a couple of your concerns and see where we stand. MS. DESELEM: Did you want me? CHAIRMAN STRAIN: Yes. Kay, the bike rack issue. I know it's a small issue, but isn't that something required through the SDP review? MS. DESELEM: Yes, sir, it is. CHAIRMAN STRAIN: Okay. Loading spots. They won't be using that turnaround because they have two loading spots tucked away back into the side of the building in the south, if I'm not mistaken. MS. DESELEM: That is my understanding also. That doesn't preclude from somebody like U.P.S. or somebody from stopping the way they normally do in the travel lanes. I mean, they do that. CHAIRMAN STRAIN: Right. Well, so do landscaping and-- MS. DESELEM: But as far as loading spaces-- CHAIRMAN STRAIN: -- everybody else. MS. DESELEM: -- they comply. CHAIRMAN STRAIN: Okay. The other thing on this parking area issue, if they were to have parking within -- say off-site within a walking distance of the project, which I think that's what our code tries to regulate somewhat, that if you're going to have off-site parking, you still got to be able to walk safely to the site where you're going. In this case they have distant parking with a shuttle. But if they had off-site parking within a location closer to the building, that then would trigger traffic impacts for the immediate area; whereas, that Page 1 77 October 16, 2008 doesn't happen with the shuttle and the distant spaces further away. MS. DESELEM: That would be my understanding. The shuttle would be a reduction rather than an increase. CHAIRMAN STRAIN: I understood the argument about the parking being off-site. In fact, I think -- I brought it up earlier. My concern was I think it would make it worse, not better if it was close by, because you'd be generating more traffic. And that -- that's just my thought on that, and I wanted to understand staffs perspective on it. MR. BELLOWS: No, for the record, you are correct, the traffic impacts would be greater for parking facilities close to this particular club, because you're having more vehicles use Vanderbilt Beach Road or the other roads coming to get to this point versus a limited shuttle servIce. CHAIRMAN STRAIN: Mr. Midney? COMMISSIONER MIDNEY: Yeah, I have a question, please. Are we allowed to consider -- he was bringing up about the compatibility with the neighborhood. I'm thinking about the compatibility with the state park immediately to the north. Even though the state park is not county property, is that an issue for us to consider? MS. DESELEM: It's still a neighbor. COMMISSIONER MIDNEY: Okay. CHAIRMAN STRAIN: Ms. Caron? COMMISSIONER CARON: Question as to the loading spaces. Is there any requirement to have additional loading spaces, since there are two separate uses going on here now? MS. DESELEM: Not that I'm aware of, no, ma'am. COMMISSIONER CARON: So it wouldn't matter what the intensity of the use was, two loading spaces on this site. MS. DESELEM: My understanding, if you believe that the private club conditional use would necessitate the need for additional loading spaces, we could require it as part of that in your Page 178 October 16, 2008 recommendation. COMMISSIONER CARON: Okay. CHAIRMAN STRAIN: Okay, Mr. Schiffer? COMMISSIONER SCHIFFER: Where is the loading spaces for the restaurant now? CHAIRMAN STRAIN: If you look at the first floor parking, A-I, if you look on the bottom of the page in the right-hand side, there are two spaces, and they go all the way to the south. That black line on the bottom is not the property line, it's just an aesthetic line to be underneath the title. COMMISSIONER SCHIFFER: Okay. On the opposite end of the building is where the purveyors are going to drop off food and stuff? CHAIRMAN STRAIN: Well, that's what it shows. COMMISSIONER SCHIFFER: That might have made sense for the apartment building, maybe, but -- MS. DESELEM: Also, I might mention that they do need an amendment to the approved SDP for this use. And that will be evaluated at that time. COMMISSIONER SCHIFFER: Let me see if I can -- do we have a site plan -- well, that can't be it because a large truck would block the access to the garage, so -- so the only drop-off and loading zone for the restaurant is such that you would block the access driveway and it's on the opposite end of the building. MS. DESELEM: I'd have to look more close. Did you want me to respond to that or are you just making a statement? COMMISSIONER SCHIFFER: No, don't respond. COMMISSIONER WOLFLEY: It's kind of their problem. CHAIRMAN STRAIN: Are there any other questions before we go to the next public speaker? Ray, would you -- go ahead, Ms. Caron. Page 179 October 16,2008 COMMISSIONER CARON: Well, actually, I sort of do want a response. Because you said -- the amendment that they're coming in for now for that parking, is that just a parking amendment or is that other things that the neighborhood doesn't know about? MS. DESELEM: I'm talking about an amendment to the SDP to allow the use because it wasn't addressed, just part of the original. COMMISSIONER CARON: Right. And also the additional parking? MS. DESELEM: Yes. MR. YOVANOVICH: Yes. MS. DESELEM: They have not submitted yet. All those issues will be addressed at that time, along with compliance with any conditions that the board might impose. COMMISSIONER CARON: Mr. Connolly brought up guest parking for just guests of those who live in this tower. Since you're taking all the extra spaces away to give to the club, what's the accommodation for -- I guess I'm really not talking to you, Kay, I'm actually talking to -- MR. YOV ANOVICH: The code requires two spaces per unit, which includes guests. They only get one assigned space per unit. The residents are -- they're assigned one. So there's the -- the guest spaces are accommodated through the two per unit required by code. COMMISSIONER CARON: Really? Okay. So if I buy a condo in this building, it's only going to come with one space? MR. YOV ANOVICH: Yes, ma'am. One assigned space. One assigned space. In response to some of the comments made, we scaled off, because there's been some confusion about where -- CHAIRMAN STRAIN : You're saying your prior testimony was inaccurate? MR. YOV ANOVICH: No, I said there was two spaces per -- Page 180 October 16, 2008 CHAIRMAN STRAIN: No, I'm talking about this plan you've got here. Because this is exactly what I had suspected is the -- MR. YOV ANOVICH: What I -- what we're tying to show you here is the property line is the dotted line. CHAIRMAN STRAIN: Right. MR. YOV ANOVICH: The dune line where it ends is about 60 feet from the mean high water line, okay? We just wanted to put that -- we've scaled it off since that to clarify it's not that little -- it's not, you know, one body wide. You have 60 feet between where the dune ends today, or the dune we're being required to build and the mean high water line. So I just thought that would be helpful in explaining what's actually out there as far as sand you can walk on. CHAIRMAN STRAIN: The prior question, I thought the result was that that line that's indicated by the dimensions was told to be the property line. So in actuality the property line is further out, which now does provide that this does line up more in alignment with the dune to the north. So now that makes sense. MR. YOVANOVICH: Yes. CHAIRMAN STRAIN: Okay. Any other questions before we go to the next public speaker? Ray? MR. BELLOWS: Kathy Robbins. CHAIRMAN STRAIN: How many more speakers do we have after Ms. Robbins, Ray? MR. BELLOWS: This is the last one. CHAIRMAN STRAIN: Okay. We'll then we'll ask the gentleman from the forestry department or parks or wherever he's from. MR. ROBBINS: Thank you, Commissioners. My name is Kathy Robbins. I live at 10525 Gulfshore Drive in Vanderbilt Beach, and I represent Vanderbilt Beach Residents Association. I'm the secretary. Page 181 October 16,2008 And as Joe Connolly and others have mentioned, we are against this club as an inappropriate use for basically a residential building. A comment was made by Mr. Yovanovich that the community said at the first meeting, bring the club back into the building. We said nothing of the sort. We don't really care about the club, other than we don't want it -- we did not want it on top of the restroom, which was the original proposal for the club. They were going to put the restroom, if you recall, at grade level and then the club was going to be the second story of that. The -- I notice that the second level of parking has extra height allocated to it, and that was true from the get-go. And I'm not sure you needed that much extra height for just amenities. Since things -- since plans that this developer proposes seldom end up as proposed, I'm wondering if he had something in mind from the get-go. Which is one reason why we are against this club. Because even though they describe it in plan A today and we approve it as plan A, it's going to end up different, I can tell you that. Nobody has mentioned what happens when people don't observe the rule about taking the shuttle to the beach club. They said well, they're going to park in the county parking lot. I live on Gulfshore. I know they're going to park along the street, okay? They do it at the Floridian Club when it gets crowded, on holidays, they nose into the parking lot across the street in that little motel, their tail sticking out on Gulfshore. You know, it's a zoo getting up and down Gulfshore. To say nothing of the trucks that were mentioned before, the delivery trucks. LaPlaya, Turtle Club, this place is going to have delivery trucks. And the construction trucks now is making it very difficult to get by that intersection. Another comment I have is quite often I'll call a friend and say meet me at the club for lunch. How are you going to meet somebody at this club for lunch? You know, if I'm a member of the club, I'm Page 182 October 16, 2008 going to ride the shuttle. What am I -- you know, what's my friend going to do? They're going to have to come to my house, get on the shuttle and then go. They won't be able to meet me at the club for lunch. So that's a problem that hasn't been addressed. And as I mentioned, things always turn out somewhat differently . We're a little suspicious, and that's why we would ask you, do not approve this plan. Thank you for your tolerance. CHAIRMAN STRAIN: Thank you. Richard, a question to respond to the points just raised. How are you going to be stopping folks from driving to the club, both folks who are members and their guests? MR. YOV ANOVICH: Okay, first of all, the guests will have to go meet their member at their member's residence and ride the shuttle with them. She will -- I will -- CHAIRMAN STRAIN: How will you enforce that? MR. YOV ANOVICH: How will we enforce that? We -- well, if we see members violating the rules, we will cancel their membership. CHAIRMAN STRAIN: In a previous meeting I thought you indicated somehow that if people didn't come off the shuttle as club -- for the club, they weren't going to be allowed in the building, meaning the only way they get in is from the shuttle. You had some idea how you're going to monitor that and I thought you had said bar codes or something. MR. YOV ANOVICH: We have the swiper. CHAIRMAN STRAIN: Right. Now, that's important. Because if you've got that -- and I thought that's what you said at the prior meeting, which is not what you seem -- MR. YOV ANOVICH: We did. CHAIRMAN STRAIN: -- to be saying -- MR. YOV ANOVICH: We did. The answer to that question is yes. Is there a possibility that someone could park in the county Page 183 October 16, 2008 parking lot, walk over and use their swipe card? Ifwe catch that person doing that, we will be in a position to terminate their membership. CHAIRMAN STRAIN: That's not what I understood from the last meeting. It was my understanding from the last meeting that you would have the ability to monitor everybody that goes in there with a bar code coming off the shuttle, that it wasn't dependent on someone sneaking in. MR. YOV ANOVICH: No, no, we're not dis -- I think we're saying the same thing, Mr. Strain. Every member is going to have a card to be a member to get through, okay? CHAIRMAN STRAIN: Right. MR. YOV ANOVICH: So when they come off the shuttle they'll swipe their card and they'll be allowed in the gate. I guess can someone park -- not ride the shuttle, they're still going to have a card, okay. Oh, swipe on the shuttle first? Okay, then the answer is they have to swipe their shuttle first to get on the shuttle and then to get into the club, so they won't be able to cheat the system, is what I'm being told. CHAIRMAN STRAIN: That's what I -- that's closer to what I-- MR. YOV ANOVICH: Okay, I get it. CHAIRMAN STRAIN: -- thought we understand. Any other questions before we go to the next public speaker, which is Brad's? Go ahead, Ms. Caron. COMMISSIONER CARON: Well, just as a point of order. Mr. Griffin's been making some comments, but he was not sworn in, and so I think that probably should happen. He was out of the room when CHAIRMAN STRAIN: He hasn't been making them on record. He's been talking to his client. Page 184 October 16, 2008 COMMISSIONER CARON: All right, through you? Okay. Fine, if that counts. I had a question about the other clubs in the area. Your other club, for example, which we know is like 3,300 square feet. And LaPlaya is what? Do you know what size that club is? MR. YOV ANOVICH: I know one of the -- because we talked about it. One of the square footages was 5,000. COMMISSIONER CARON: 5,800? MR. YOV ANOVICH: Let me -- COMMISSIONER CARON: Is that what we talked about, 5,800? That's my recollection. MR. YOV ANOVICH: There was -- okay, the club and dining, lounge chairs is 5,850. Locker rooms, 1,500 -- COMMISSIONER CARON: No, it's just the -- we're doing apples to apples. So it's around 5,800. MR. YOV ANOVICH: And then the pool is 937. Poolside dining is 350. And then -- those are what I would call the pool and poolside dining and the club dining and lounge terrace, I would say. COMMISSIONER CARON: So about 8,000 altogether. MR. YOV ANOVICH: Right, and we're about 7,000 altogether. COMMISSIONER CARON: Okay. All right. CHAIRMAN STRAIN: Okay, would the -- I think that's it at this time, Richard. Will the gentleman from the park service mind coming up and addressing a question from Commissioner Schiffer? You just need to identify yourself for the record. MR. STEIGER: Good afternoon. My name's Robert Steiger and I'm the park manager at Delnor-Wiggins Pass State Park. THE COURT REPORTER: Were you sworn in? MR. STEIGER: No, I was not sworn in. Page 185 October 16, 2008 CHAIRMAN STRAIN: Please. (Speaker was duly sworn.) THE COURT REPORTER: Would you spell your name, please? MR. STEIGER: It's S-T-E-I-G-E-R. CHAIRMAN STRAIN: Okay, Brad? COMMISSIONER SCHIFFER: Well, yeah, my question was, since this is going to be a public access, a lot of people are going to be coming down perpendicular to the water. When they hit the water, is there any regulation they have about going north? MR. STEIGER: Well, once they step over the boundary line, they're in a state park. And we have signs posted to let people know that they are in a state park with rules and regulations and that there is an entrance fee to pay upon entry to the park. COMMISSIONER SCHIFFER: So an honest person would see that sign, go to your booth, give the guy how much money? MR. STEIGER: It's a one dollar entry fee if you walk in. Or if you own an annual pass, which we sell, then that's good also. COMMISSIONER SCHIFFER: Okay, how much is the annual pass? MR. STEIGER: Annual pass is $40 plus tax for an individual, or $80 plus tax for up to eight people. COMMISSIONER SCHIFFER: Okay. But the answer they gave that it's free access is not to your understanding. MR. STEIGER: There is no free access into the state park. COMMISSIONER SCHIFFER: Thank you. CHAIRMAN STRAIN: Thank you very much, sir. Appreciate it. MR. YOV ANOVICH: I'm a little con -- does that mean you can't walk on the beach for free? I think that's -- that was the question that was asked of us. CHAIRMAN STRAIN: Come back, sir. Thank you. MR. YOV ANOVICH: I mean, I'm just trying to -- I don't know, Page 186 October 16, 2008 I've never walked the beach up there going north. CHAIRMAN STRAIN: Does your restriction line go all the way into the water, or is it just above the mean high tide line? MR. STEIGER: No, we also have a boundary line. Public domain means below mean high tide, that it's a public access and we don't charge an entry fee to walk along that area. CHAIRMAN STRAIN: Mr. Schmitt? MR. SCHMITT: I'm going to add to that. And just for background, I'm a former District Commander for the U.S. Army Corps of Engineers. And federal experience in dealing with all sorts of activities along U.S. navigable waters and U.S. waters, normally the boundary is the vegetation line. So we would have to have legal opinion on that. Because there is no prohibition of preventing anybody from walking along the beach. But if you walk north and you turn and go west above the vegetation line or into the property itself, then they can be charged. But even if the property line extends onto the sand, as long as you are between the water and the vegetation line -- you'll have to check the law, but my understanding is that there are no restrictions, and you're protected by U.S. law. So we would have to verify that. CHAIRMAN STRAIN: But I think for the purpose of what Brad wanted to get at, we've got the answer here today. And that's what we want to stay focused on. Brad, are you -- COMMISSIONER SCHIFFER: What I'm thinking is that I'm a citizen of Collier County, I walk out to the thing. If I look to the north and there's nobody and I look to the south and it's Jones Beach, I'm going to go north, and I don't want to have any problem with this guy. So where do I get in trouble with him? I mean, obviously if I stay below the mean high water line I feel comfortable, not that that's the most obvious thing, but I feel -- you're not going to give me trouble with this? As soon as I hop up on the beach with my chair, you Page 187 October 16,2008 might have a conversation about a dollar, right? MR. STEIGER: We could. We probably won't. COMMISSIONER SCHIFFER: Joe says you can't until I walk into your bushes. MR. SCHMITT: Well, I'm not an attorney. I would defer that. But based on my experience, normally the control line is at the vegetation line. Anything above the vegetation line would be deemed state park or federal park or whatever the entry level fee was. But if you're on the beach and you're on sand, normally that is deemed public access, open to the public anywhere, any place. COMMISSIONER SCHIFFER: Rich, can I -- CHAIRMAN STRAIN: Yeah, I mean, we got to stay on the object of the conditional use here. I mean, whether they charge to get in the park or not, I don't care. It has nothing to do with this conditional use, but go ahead. COMMISSIONER SCHIFFER: Well, it does to me because, you know, the concern that all the residents have in that area is the intensity of use on the beach. If he's going to draw a line and limit it, that's a -- he's taking away half of the beach that everybody imagines. Rich, could you guys work some sort of a deal that never becomes an issue? Can you buy a -- do something that -- so that everybody who comes down that access way has no concerns about walking north? I mean, I don't know what it would be. MR. YOV ANOVICH: Mr. Schiffer, I don't even know how to begin to address that with the state to address that. And, you know, my point is this: You got that issue regardless. This is -- you're going to have -- in our opinion, you're going to have the same amount of general public coming to this portion of the beach with or without the beach club. Because the two communities that this -- are going to be open in membership, their closest public access that again we've provided is this portion of the beach. So they're either going to -- they're going to probably now drive their cars and use the Page 188 October 16, 2008 county park to access the, quote, public beach, and they're going to be on the portion of the beach that the whole general public is competing for. With the beach club alternative they're going to come there by shuttle instead of by car and using up public parking spaces, and they're going to stay on the private beach facilities and not compete for the, quote, narrow portion of the public's beach because they'll be members of this condominium. So we believe it will actually increase the public's ability to get to the beach. And it's also less than what was there before. And if it was working okay there before with the Vanderbilt Inn with its many hotel rooms where you're -- I can guarantee you during season they were putting more than two people per room in there. And I know that that chickee hut was well attended; I may have even seen some of you there. So, I mean, from a beach-carrying perspective, I think that's a red herring. I think that's being thrown out there to say that this beach club is somehow taking the public's access away from the beach when this new project is a lot less beach intensive than what was there before and is creating beach parking, because we're providing a shuttle. So I mean, I think a lot of those issues are red herring issues and will be there -- if the beach club or not, you'll have those issues regardless. With the beach club it's better. COMMISSIONER SCHIFFER: I'm not so sure. Because I think, you know, there comes an area that there's a big hassle to get access to the beach. Your people from The Dunes aren't going to want to go there either. But anyway, there is an issue here. People do have to pay to walk to the north. MR. YOV ANOVICH: They've always had to pay. COMMISSIONER SCHIFFER: But -- I mean, so what we're Page 189 October 16,2008 really saying here, when I make a suggestion on this, I'm going to make a judgment on only land to the south. MR. YOV ANOVICH: So tell me what I can do to -- COMMISSIONER SCHIFFER: Well, why can't you work-- MR. YOV ANOVICH: -- I'm going to pay 80 bucks for everybody in the public? CHAIRMAN STRAIN: No, and honestly-- COMMISSIONER WOLFLEY: Forty. CHAIRMAN STRAIN: -- we're getting far astray here of what this conditional use is about. And if there's park lands to the north and they have to monitor it and charge people, everybody's well aware of that. I don't know if we can regulate that with a conditional use. If you want to vote no on a conditional use because it's too close to a public park, that's your option if that's the reason you have, Brad. But I'd rather not beat this to death over an issue that's not going to change between the two of you talking for the next two hours, if you wanted to talk about it. So I'd like to move on. COMMISSIONER SCHIFFER: I'll vote no then. Thank you. CHAIRMAN STRAIN: Mr. Kolflat? COMMISSIONER KOLFLAT: Mr. Schmitt mentioned he was not an attorney and gave an opinion. Why don't we ask our county attorney if he has an opinion as to whether that land is public or not. CHAIRMAN STRAIN: I don't know if the county attorney is familiar with how state lands regulates their boundary line. Jeff, it's up to you if you want -- again, I'm not sure where we're going with all this. MR. KLATZKOW: You know, I leave for a little bit and we're up the beach here. COMMISSIONER KOLFLAT: Well, some people say the public is entitled to land up -- MR. KLATZKOW: I don't know how the public can't just go onto the beach without having to pay this guy, to be perfectly frank Page 190 October 16,2008 with you. But if a guy in a uniform's going to come up to you and say, you know, it's $5.00, please, I don't know how you say no either. I think that's the reality. CHAIRMAN STRAIN: Thank you, sir. Are there any other questions of the public speakers before we go into rebuttal by the applicant? Ms. Caron? COMMISSIONER CARON: Yes, I was going to ask if Mr. Y ovanovich had talked to his client about dropping people off at the entrance to the building, as opposed to the turnaround. MR. YOV ANOVICH: We can agree to that condition. CHAIRMAN STRAIN: Okay, Mr. Yovanovich, do you want 10 minutes for any kind of closing comments? MR. YOV ANOVICH: Is that my limit? CHAIRMAN STRAIN: We've got to have some limits today, because it's gone on for hours. MR. YOV ANOVICH: Mr. Strain, and -- we don't need 10 minutes. I think we've -- I think the issues that have been raised are compatibility issues. The residents of this condominium project are fully aware that they'll be sharing a private beach club with non-resident members. I haven't heard anybody mention that they thought it would be inappropriate to have these facilities available just for the residents of the condominium themselves. I don't think that's an issue at all. I think it's the outside membership. And so from a compatibility standpoint, is it compatible with the residents who are living there? They're saying yes, because they're buying the units, and they understand that. And there's economies of scales that benefit them by having outside members to help defray the costs of the restaurant and the food service and the drink service. So from a compatibility standpoint, internally, yes, it makes sense. From a compatibility to the neighborhood, it makes sense there Page 191 October 16, 2008 as well. Weare reducing beach traffic and competition for the parking spaces at the county park. With our shuttle service, those people will be able to ride a shuttle to our private beach club and not use county spaces to compete for beach access. This project -- it's almost as if you're penalizing this project for being a good neighbor and providing a 20- foot wide beach access for the overall community to have access to the beach. Because had we not done that, we wouldn't be talking about the general public's ability to get to the beach. So this project is what made beach access available to the general public. And now what you're saying is in doing that we don't want you to make it easier for a limited portion of that general public to use that public access point. You're saying if you allow 250 non-resident members to have access through this beach via shuttle and the ability to get food and a drink at this condominium, no, you can't do that. But if you want to not provide those services, it's okay for everyone in The Dunes and the Cocohatchee Bay to come to this site by their own vehicle and use and compete with the beach access. It doesn't make any sense to us to say to this property owner, thanks for making beach access available to everybody, but because you've done that we're going to limit who can come on your premises to access the private portion of the beach. That doesn't make any sense to us. We heard concerns about traffic. I think that we've laid those issues to rest. Weare -- and the example they cited as a good example of LaPlaya, we're far less traffic than LaPlaya has to this area of the beach from both on the road and on the beach itself. We believe we've met all of the criteria for a conditional use. And remember, a conditional use is a permitted use on the property. Unless you don't meet -- unless there's certain factors that say you shouldn't have this use there. But it starts as a permitted use. We've met the criteria. Your staff says you've met the criteria. Page 192 October 16,2008 We've had our professional staff and you've had your professional staff testify that the criteria have been met. You haven't had any professional staff testify to the contrary. The issues have been raised regarding beach access and who will be using the beach. Those same people are going to be using the beach regardless. And you have questions about transportation. We've shown that we're reducing transportation impacts. Your staffs recommending approval. We've done everything we've been asked to do through the public process. There was a newsletter, and I don't remember who published the newsletter, but there was a newsletter that was published by one of the organizations up on Vanderbilt Beach that said move the beach club inside. They didn't want that outside beach club. We did that. We moved it inside. We've I believe addressed every concern about access and abuse of the membership of using this beach access point. The remaining issues are not issues that would lead to a determination to not approve the beach club. The state beach has, to my knowledge, has never -- and I think some of you can probably testify to this yourselves, charged for people walking on the beach from the south to the north. So I think that's a -- it's a non-issue. If there was something I could do to grant these people amnesty who decided to go right instead of left, I'd be happy to do that. But I think that's probably a non-issue from the state's perspective. And I think he said that too, he said probably not. So I think that's really not an issue either. I think there's more than enough access to white sand for the general public with this beach club, and we're asking that you recommend to the Board of County Commissioners approval of our conditional use with the beach club with all of the stipulations and conditions we've also agreed to today, even regarding the area of dropoff of our members. Page 193 October 16, 2008 And with that, I'm again available. I hope we've clarified any of the issues. If you'd like us to come back with a drawing to show a reconfigured dune, we'll be happy to do that, because of the concerns that may have been raised about that. CHAIRMAN STRAIN: Okay, comments? (No response.) CHAIRMAN STRAIN: Richard, I made some notes. I want to ask you where you stand on these. I believe you agreed that there would be no outside amplified music or amplified sound except that as defined as background music in our noise ordinance. MR. YOV ANOVICH: Correct. CHAIRMAN STRAIN: That the conditions provided and relating to the parking and shuttle service as provided in this package will all be incorporated and met as conditions of the conditional use. MR. YOVANOVICH: Yes, sir. CHAIRMAN STRAIN: The off-site parking locations would be limited to the existing parking areas in the Cocohatchee and the Dunes PUD. MR. YOV ANOVICH: Yes. CHAIRMAN STRAIN: That the public will be allowed on the beach property west of the dune re-vegetation area. MR. YOV ANOVICH: On our private beach property, west -- yes. CHAIRMAN STRAIN: Wherever that dune re-vegetation-- MR. YOV ANOVICH: I just want to -- well, they're already allowed on the public portion. I just wanted to make it clear that we would allow them on our private portion. CHAIRMAN STRAIN: And that the drop-off point for the club will be at the entry to the building, not the turnaround. MR. YOV ANOVICH: Yes. And I think that actually will make it easier to monitor anybody who tries, besides the double swipe. Page 194 October 16, 2008 CHAIRMAN STRAIN: Okay. Well, those are the notes that I made. And I wanted to make sure that the applicant had an understanding of those before we went into discussion. If there's no other comments, we can close the public hearing and we can have discussion or entertain a motion, whichever is preferred. Mr. Schiffer? COMMISSIONER SCHIFFER: No. CHAIRMAN STRAIN: Oh, I thought you were doing that. Mr. Vigliotti? COMMISSIONER VIGLIOTTI: I'd like to make a motion of approval with staffs recommendations and the recommendations that we just discussed with Mr. Y ovanovich and Chairman. COMMISSIONER WOLFLEY: I'll second that. CHAIRMAN STRAIN: Okay, there's been a motion made for the stipulations by staff and the five stipulations that I just requested of Mr. Y ovanovich for confirmation. It was seconded by Mr. Wolfley. Is there any discussion with the members? Ms. Caron, Mr. Midney and Mr. Schiffer. COMMISSIONER CARON: Yeah, I think that there is a real compatibility issue here. Because if you take a look at the other clubs in the area, they're primarily connected with commercial operations. Their own Floridian Club is only 3,300 square feet. The LaPlaya is about 8,000. That's at a major hotel. The Turtle Club, I don't know, we hadn't asked staff to come up with a figure for the Turtle Club, so I don't have that. But again, these are all hotel and resort or hotel/motel properties. And this residential tower now wants over 8,000 square feet for this club. And it's rather ironic, because in the case of this petitioner they went to great lengths to say change what was commercial, the old Vanderbilt Inn property, to residential. They wanted residential. And Page 195 October 16, 2008 there were obvious, you know, financial benefits to them for doing this. But now they want to have it both ways. And the attempt with this conditional use is to create not a private club serving just the residents but to create a very large club facility, restaurant and bar, in this what is a residential building. I think alarms should go off for everybody that it's taken multiple variances to even get to where we are today. First there was the height variance to provide the second level of parking. Then there was the trellis variance. And essentially we're now being asked for another variance which is with the parking requirements. We're being asked to accept the busing scheme. At some point I think we have to realize that this proj ect -- if this project were appropriate, it wouldn't have been so difficult to accomplish, and it wouldn't require a variance around every corner. I think additionally we also had discussion earlier in the day about noise compatibility. And I think that you may find that there are going to be some noise issues for these residential units with respect to this very major club. And that's -- those are my comments. CHAIRMAN STRAIN: Mr. Midney? COMMISSIONER MIDNEY: My comments are that this is a conditional use, and I see it as an intensification. I think also that it's incompatible with the neighborhood. Especially I really don't have too much contact with the hotel side of Naples, but we do use the state park, which has been rated as one of the finest state parks in the whole United States. And I think that this intensification is incompatible with the neighborhood. CHAIRMAN STRAIN: Mr. Schiffer? COMMISSIONER SCHIFFER: My point is, you know, Rich is saying that punishing them for the 20 feet, but the 20 feet was something that you got in the settlement agreement. And I don't believe the settlement agreement mentions anything that guarantees Page 196 October 16, 2008 you -- CHAIRMAN STRAIN: This isn't rebuttal for you, Richard, so-- MR. YOV ANOVICH: I know. I'm just going to ask if I can-- CHAIRMAN STRAIN: No, let -- COMMISSIONER WOLFLEY: No. CHAIRMAN STRAIN: -- Mr. Schiffer finish. We'll continue-- COMMISSIONER SCHIFFER: But anyway, the 20 foot comes from the settlement agreement. And it has nothing to do with whether you're allowed to do the beach club or not. If there was an assumption you could do it, I don't think -- you know, the neighbors had an assumption. It states that the maximum zoned height of the building can be 90 feet, yet staff somehow felt that that would allow them to use the optional method to get that higher. And then the conditional use, it isn't -- you know, it's a matter of -- the conditional -- this is definitely a use that's allowed, but it's an additional use. In other words, we have a residential use, now we have a conditional use to allow a club added to it. I mean, next thing you know we could want a nursing home put in the center courtyard. So the point is, we have to judge whether these two uses over-intensify the site. And that's why I'll be voting no. CHAIRMAN STRAIN: Are there any other comments? Mr. Wolfley? COMMISSIONER WOLFLEY: I just want to say with this over-intensification, I think it's sort of a down -- it is definitely to me a downgrade from the Vanderbilt Inn. There's not nearly as much traffic there or will be as much traffic as there used to be. I mean, it was a real problem trying to find, you know, illegal parking to get onto -- into the club back there, but we somehow managed. And -- as I found out it was illegal. I always used to park in those 11 or whatever illegal spaces. It was perfect. But I think it's a much lower -- much less intense than it had been. So I think it's a much better use, personally. Page 197 October 16, 2008 COMMISSIONER SCHIFFER: Can I say something, Mark? CHAIRMAN STRAIN: As long as it isn't rebuttal to him. If you got -- COMMISSIONER SCHIFFER: Well, it is rebuttal. CHAIRMAN STRAIN: We're into discussion -- okay, go ahead, Mr. Schiffer. COMMISSIONER SCHIFFER: I mean, the concern -- CHAIRMAN STRAIN: We've gone all day with this. COMMISSIONER SCHIFFER: But the neighbors really have the exact same concern, they're afraid that people are going to be doing the exact same thing that happened at Vanderbilt Inn is finding ways to stick a car in the neighborhood. And that's the fear of the neighbors today. COMMISSIONER WOLFLEY: But -- CHAIRMAN STRAIN: Go ahead, Mr. Wolfley. COMMISSIONER WOLFLEY: I'm kidding. CHAIRMAN STRAIN: No, that's okay. COMMISSIONER WOLFLEY: No, I'm fine, I'm good. CHAIRMAN STRAIN: Hey, what's good for one is good for all. If there's no other comments, my -- I'm going to support the motion. I find it consistent with the GMP, consistent with Land Development Code and consistent with the Vanderbilt Beach overlay. I know that in the past I've tried to throw everything I could at this, but I can't find where there's a reason based on the code that it should be denied, so therefore I am supporting the motion. Mr. Schmitt? MR. SCHMITT: Yes, I just want to clarify, there may be an issue with the entry . You had one of your stipulations to use the main entry . And I know Nick -- there may be concerns with exit -- ingress and egress from that point, rather than using the turnaround. And I just want to make sure that that is reviewed by -- from a traffic Page 198 October 16,2008 perspective. CHAIRMAN STRAIN: Well, I didn't hear Nick get up here, and I'm not asking him to now. COMMISSIONER VIGLIOTTI: No. CHAIRMAN STRAIN: The applicant had offered it and we're going to leave it that way. MR. SCHMITT: All right, then leave it -- we'll leave it that way. If they -- CHAIRMAN STRAIN: There's been a motion made and discussed. Any -- we'll call for -- all those in favor, you're going to have to raise your hand and signify by saying aye. COMMISSIONER VIGLIOTTI: Aye. CHAIRMAN STRAIN: Aye. COMMISSIONER WOLFLEY: Aye. COMMISSIONER HOMIAK: Aye. CHAIRMAN STRAIN: All those against? COMMISSIONER KOLFLAT: Aye. COMMISSIONER MIDNEY: Aye. COMMISSIONER SCHIFFER: Aye. COMMISSIONER CARON: Aye. CHAIRMAN STRAIN: Motion is tied 4-4. You'll have to go to the board with the motion as defined. You can tell the board why we're split up like we are, give them stipulations for and against, anything you -- staff would have to do in that regard, so -- MS. DESELEM: I just -- if I may. For the record, Kay Deselem. I just wanted you to clarify a couple of the things. You had made mention of some over -- all-encompassing statement about and everything else included in the information that we got. And I need a little bit more specific information in order to write that up. CHAIRMAN STRAIN: Kay, we were provided two packages. Page 199 October 16, 2008 These are the two packages. In here over a course of I don't know how many meetings they have answered many questions concerning the parking, how they're going to get -- where the parking's going to be, which is off-site, and the shuttle process to use it. Two times an hour, they're going to have bar codes, monitor people coming off the shuttle, how they're going to keep track of them. That's the kind of stipulations we don't have time to rewrite here today that I expect staff to bring back on consent. MS. DESELEM: Okay. And you want those included in the conditions. CHAIRMAN STRAIN: Actually what about consent on a tie vote, Mr. Klatzkow? MR. YOV ANOVICH: We don't come back, do we? We're done, aren't we? MR. BELLOWS: For the record, I think we should, just to make sure. MR. KLATZKOW: I think we should. I think this is going to be just as intense before the Board of County Commissioners, and I'd like to make sure that the stipulations are accurate. And while I've got the mic, Mr. Kolflat, did you give reasons for your denial for the record? COMMISSIONER KOLFLAT: Intensification. CHAIRMAN STRAIN : You've got to use your speaker, Mr. Ko I flat. COMMISSIONER KOLFLA T: More intensifi -- higher intensification. MR. KLATZKOW: Thank you. CHAIRMAN STRAIN: Okay, so we'll come back on consent. What basically you'll do is outline the stipulations of the four that had -- were affirmative and then any comments from the negative that would normally be shown in your executive summary. MS. DESELEM: One other clarification I was going to ask you Page 200 October 16, 2008 about. A lot of the information we had and in staffs condition as well, it said that the use of the private club by non-Moraya Bay Beach Club residents shall be limited to those persons who reside in a community that provides on-site parking. In your motion you specifically listed it to two projects. Was that your intent? CHAIRMAN STRAIN: That's right, I did. MS. DESELEM: Okay. I just wanted to make sure. Thank you. CHAIRMAN STRAIN: Thank you. With that, before we -- we're going to move on to the next one. COMMISSIONER CARON: I need conditional use forms. COMMISSIONER VIGLIOTTI: They're working on it. COMMISSIONER CARON: Good. Thank you. COMMISSIONER WOLFLEY: One minute. Item #9B PETITION: CU-2007-AR-12619, K.O.V.A.C. ENTERPRISES, LLC CHAIRMAN STRAIN: Okay, next petition up is CU-2007-AR-12619, K.O.V.A.C. Enterprises, for a refuse use system in the industrial zoning district on Elsa Street. All those issue wishing to testify on behalf of this application, please rise to be sworn in by the court reporter. If you're going to provide testimony, please rise. (Speakers were duly sworn.) CHAIRMAN STRAIN: Disclosures on the part of Planning Commission? Anybody? (No response.) CHAIRMAN STRAIN: I had a brief conversation with Mr. Hancock. So other than that? (No response.) Page 201 October 16, 2008 CHAIRMAN STRAIN: Okay, sir, it's all yours. MR. HANCOCK: Good afternoon, Mr. Chairman, Commissioners. I pray to God this is a slightly simpler application. Tim Hancock, with Davidson Engineering, for the applicant, K.O.V.A.C. Enterprises. K.O.V.A.C. Enterprises is represented also by Ms. Tina Langham, who was just outside when we swore in, so if she does need to speak at any point, we'll just ask that she be sworn in at that time. Tina's the daughter of Kenneth Vaughn, who started this recycling operation. Also in attendance is Karo Vaughn, Kenneth's son, and also is Martha Vaughn, Kenneth's widow. Karo is the day-to-day operator basically of the site, so any operational questions Karo can help us out with. As you can see from the zoning map before you, the project is located on Elsa Street in the Pine Ridge Industrial Park just a little bit to the west of Janes Lane. And let me give you an aerial, a color aerial that might be a little more helpful to you as to the current condition. As you can see from this aerial, there are operations in the immediate area of this particular operation that deals with storage and processing of materials. You may notice in the supper left-hand corner, if we zoom out just a little bit on that, you'll see actually there's a concrete batch plant up to the upper left. It's also nearby in the industrial park. The request before you is a conditional use request to permit what is called a refuse system per SIC Code 4953. But in actuality it's a concrete recycling operation. The functions performed on the property are rather straightforward. Concrete, brick and stone products that are part of the construction waste-stream are brought on-site and dumped in piles. The material is sorted. Steel such as rebar is removed, and the Page 202 October 16, 2008 material is crushed using a single portable crusher into small pieces suitable for use such as road fill, landfill cover and the like. The material is then loaded and hauled off-site. Each truckload of material that's brought onto the site is charged a fairly low fee when compared to what the Naples Landfill would charge them to dispose of only concrete, brick and stone products. Customers are charged by the truckload for hauling the material off-site for their use. This operation began in 2001 by Kenneth Vaughn. At the time Mr. Vaughn, or K. O. as he was better known, was a private contractor working for Florida Power & Light. He used this property which he purchased in 1997 to store materials on and for some of the equipment that he used in his contracting work, and then started a small crushing operation, which has certainly grown along with the construction industry in Collier County . Businesses such as this one serve an important purpose, in that if this material were not recycled it would end up in our landfill taking up space and prematurely expanding the areas needed for other types of residential waste. The fees charged by the landfill for accepting concrete are fairly high. A typical 20-ton truckload would cost in excess of $1,000 to tip at the landfill. Whereas operations such as this typically charge 100 or $150 or maybe as much as $300 in order to have that material dropped off. There are only three places in coastal Collier County that accept this material, or at least that I'm aware of. One of them's at the end of Yahl Street in this general area. It was permitted back in 1981 under provisional use. However, it does not have a crusher on-site. They charge by the truckload or by the ton and when they get enough material, they'll have somebody bring a portable crusher on and crush it and then Page 203 October 16, 2008 dispose of the material. They're really not in the concrete recycling business as much as they are -- and I believe they're a subsidiary of Waste Management at this time. Almost more of a transfer site. There is another site in the county that has done this kind of work in the past, but you might check on that, indicates that the zoning is not adequate. This rezone is an effort to bring the site into compliance, to adopt some operational standards that previously did not exist. Subsequent to this conditional use, a site development plan will have to be approved and the site improvements will have to be put in place after the approval of the SDP. This effort is in response to a code enforcement case that originally cited Mr. Vaughn for not having an approved site development plan. Subsequently they found out a conditional use would be required also. I'd like to point out that the refuse system SIC Code 4953 also includes things like landfills and toxic waste handling. And when you look at the totality of 4953, I can understand why it's a conditional use. When you look at the operation of crushing concrete and hauling it off-site, yet in the same industrial park under industrial zoning without a conditional use you can manufacture concrete block, you can make concrete. The two are very similar in the byproducts and the operational characteristics. It was Mr. Vaughn's dream to create a business on this site and allow that business to provide for his children through its operation. And he was a pretty simple straightforward guy and was not terribly enamored with the bureaucracy he found in trying to get this thing put through the system, and he just about gave up prior to his passing in 2006. But upon his passing, the responsibility to address these issues fell to his wife and children, and we're here today to try and make that Page 204 October 16, 2008 happen. While it's our believe that the use is entirely consistent with the zoning district and the land uses that currently exist in the industrial park today, such as concrete plants, storage yards and materials processing of a varying nature, we also understand that there are operational characteristics of this use that have to be recognized. This type of operation is noisy and it's dusty at times. These points, along with others, were raised by neighbors at the neighborhood information meeting, and particularly those that are immediately to the south of the property. The current operation has a portable crusher which is stationary but sits on rubber tires. And in the aerial before you, the crusher is located right about where I'm pointing right here. So it's fairly close to the properties that are along this southern boundary. Material that's brought into the site basically goes to the center of the site where it's dumped, and from there it is then put into piles, put into the crusher. And, you know, the crusher makes noise, period. And what we -- one of the concerns we heard about and we'll address them are basically noise, visual aesthetics and vibration. On the issue of noise, in addition to where the crusher sits on the property, as trucks come in to be loaded to haul off, they also sit in that same general area. And we all know that diesel engines, while they're idling, can be a little on the loud side also. I've stood next to this crusher and had a conversation with somebody. But if you put a diesel truck next to it and have the two running at the same time, you start to understand the complaints of the neighborhood. What we've tried to do is put together an operational plan that will address these issues. This operational plan resulted in the stipulations you see before you in your staff recommendation of approval. And primarily what we've tried to do is take the crushing operation and move it 200 feet to Page 205 October 16, 2008 the north and east to where you see in between the two small ovals. That's where the crusher would sit. Additionally, the vehicle loading area would be adjacent to that crusher. So what we've done is we've taken the existing condition of the crusher and the trucks being closer to those businesses and moving it to the north and east where it's going to provide less noise and be more on the compatible side. We can't eliminate the noise, but by moving it to this location we certainly feel we can reduce it. A second complaint we had was airborne dust. We propose two ways of dealing with this. One is that spray heads will continue to be employed full-time on the top of the crusher to reduce the airborne particles coming out of the crusher. This crusher, if you look at it, it looks like the back end of an 18-wheeler. It's got wheels on the back of it, rubber tires and it sits on top of a platform. And it's got basically a bin or a shoot on the top of it. Inside of it are just hammers. And it's not fancy, but it works. The concrete is dropped inside, which is crushed with the hammers. There are two systems, one of which has always been employed and one of which that will be employed in the future and that is that there's water that runs into the center of that crusher while it's operating. That typically keeps most of the dust and debris from coming out of the top of the crusher. It's it also outfitted with spray heads on the top edge of the crusher. And those have at times not been operational. Part of our operational plan is to ensure that both of those systems are working at all times that the crusher is in operation. F or aesthetics and additional dust control staff has recommended using a five-foot hedge along the south and west property lines, in addition to the trees which will be planted one on every 30- foot center. The applicant has agreed to doing this along the southern Page 206 October 16, 2008 property line adjacent to the existing businesses. However, we'd like to clarify that when we talk about the western property line, I hope we're talking about the area here along the entry road. To put a five-foot hedge on this property line adjacent to a lime rock graded rock on the Kirkoff s property doesn't seem to me to make a lot of sense. So I'd like to at least request the clarification that what we're talking about is an additional five-foot hedge along the south property line here and along the western property line here to address those businesses nearest the operation. One other concern we had from Mr. Brett, who's one of the adjacent businesses was a security. Apparently at some point somebody had driven onto the site, cut through the fence to the back of his business and burglarized his business. We have agreed to basically fence and lock the operation when somebody's not on-site to try and reduce the possibility of that happening again. And lastly, in an attempt to address the visual concerns, and I'll think you'll hear some of that today from even a property owner that's on the south side of Elsa Street, in addition to the vegetated buffer, the applicant has agreed to a height limitation for material piles of no more than 40 feet. That is 10 feet below the existing permitted height in industrial zoned districts. With these controls in place and the site being brought up to current code for landscaping and parking, we feel the concerns of the neighbors are being addressed in a cooperative and reasonable fashion and that the site will operate in a manner consistent with and in a more compatible fashion than the existing permitted uses that are currently in operation in the park today. The last item I wish to discuss with this body is the native preserve requirement that is being required of this site. We have no ability to prove that the site was legally cleared. Mr. Page 207 October 16, 2008 Vaughn used it for storage and whatnot starting in 1997. And there was vegetation, some vegetation on the site at that time. The calculation provided by staff, and we don't dispute the calculation per the Land Development Code, is .37 acres of preserve is going to have to be recreated on this site. The location of the preserve that staff has recommended is in the northwest corner. The basis for that recommendation, as I understand it, is because there's vegetation immediately to the west. That vegetation is not in a preserve. It may be at some point if that property comes in, but right now it's not. On that basis and that basis alone, we submitted our master plan showing the preserve in that location. We do think we have a better plan, though. A .37-acre preserve, as this body has laboriously discussed over the last four meetings, is not exactly habitat. It's basically just a way to find a spot and put aside some trees and vegetation so that things aren't mowed down 100 percent. NUlnber one, we would like to have the opportunity to mitigate off-site at a one-to-one ratio if possible and acceptable to the county. If that option is not available, our plan B, if you will, is to create the .37-acre preserve on-site but adjacent to the property owners to the south. If you agree that we're not really going to create habitat here one way or the other, all we're going to do is create vegetation, then the location shown on this plan to me serves to be a better neighbor than what staff is recommending. And it is our request that if we do create preserve on-site that it be located somewhere that it does more than just stand as a tree, but will hopefully create more buffering and more compatibility with the off-site properties. In wrapping up, we ask you accept staffs findings in their staff report and approve the application before you with a clarification in increased buffering, as noted on the south and west, and the Page 208 October 16, 2008 opportunity to either mitigate off-site at a one-to-one ratio or at least locate the preserve in the location shown in the exhibit before you. With that, I will do my best to address any questions you may have. CHAIRMAN STRAIN: Okay, Mr. Vigliotti? COMMISSIONER VIGLIOTTI: How long has this operation been running and in effect? MR. HANCOCK: It's been running since 2001 or 2002. CHAIRMAN STRAIN: Mr. Wolfley? COMMISSIONER WOLFLEY: There was another issue, Mr. Hancock, regarding the -- at the neighborhood information meeting regarding the vibrations. Somebody said that there are cracks in the stucco building that he believed were from the vibrations caused. I know you mentioned several times about rubber tires-- MR. HANCOCK: Yes, sir. COMMISSIONER WOLFLEY: -- which would mitigate that vibration. Do you feel that's still a concern? MR. HANCOCK: Mr. Brett, who had that concern, is an honorable man. I've worked with him on other projects. And I don't doubt that he has felt vibration at times. My personal experience with this operation is that I've stood next to that thing, and I don't feel the vibration through the soles of my shoes standing 50 feet from it or 20 feet from it. However, we think -- what we've tried to do is by moving it 200 feet to the north and east further away from his property, we've done everything that we can. And by having a portable crusher on tires instead of a hard mounted crusher in a foundation, we think that vibration is dampened and greatly reduced. COMMISSIONER WOLFLEY: Indeed. MR. HANCOCK: So I hope that those two things are sufficient to address his concerns. Page 209 October 16, 2008 COMMISSIONER WOLFLEY: And one other thing. I do think this diagram here would be a better preserve -- location for the preserve area, due to those offices right there. MR. HANCOCK: Yes, sir. We don't anticipate off-site mitigation to be an easy process. So in all likelihood, if this plan is what we move forward with, we prefer this, because we think it makes us simply a better neighbor. COMMISSIONER WOLFLEY: Right. And my last thing is that, you know, we're always asked how it affects the neighbors, you know, does it look good, does it smell good, does it sound good and all this. And I -- this area, you know, beauty is in the eyes of the beholder. I've had people that are upset about solar panels, about windmills. Well, I happen to think that's beautiful. So, you know, I think this is perfectly appropriate. Thank you. MR. HANCOCK: Thank you. CHAIRMAN STRAIN: Mr. Kolflat? COMMISSIONER KOLFLA T: Yes. You mentioned you have Type A buffers. Your plan drawing shows this to be five feet, whereas the standard that I have, the width is 10 feet standard. MR. HANCOCK: The Type A buffer in the industrial zoning district is a five-foot width. COMMISSIONER KOLFLA T: It is five, not 10. MR. HANCOCK: Yes, sir. The only place we'll have a 10-foot buffer is along Elsa Street it becomes a Type D buffer adjacent to a right-of-way. That is still-- it's a Type D but it's 10 feet in width with one tree every 30 feet on center. COMMISSIONER KOLFLAT: And that has a hedge also, doesn't it? MR. HANCOCK: Along Elsa, yes, sir. COMMISSIONER KOLFLA T: Along Elsa. MR. HANCOCK: Yes, sir. COMMISSIONER KOLFLA T: What is the maximum pile Page 210 October 16, 2008 height permitted in the zoning district? You said it a little earlier and I forgot. MR. HANCOCK: Currently piles or stockpiles are not regulated specifically or individually, so you have to go with the building height, which is 50 feet. We're proposing a reduction in that by 10 feet for our pile height. Again, mainly because the folks across the street had great concerns about if the operation -- how big can be too big. We thought by putting a height limitation on the piles, we could limit the amount of material on the site at anyone time that way. COMMISSIONER KOLFLAT: Now, according to the neighborhood information meeting notes, there was a question about looking into how to make entrance and driving paths better (sic) minimize dust. Have you done anything in that regard? MR. HANCOCK: Yes, sir. Contained in the stipulations in the staff report before you is a requirement to water the working areas of the site at least twice daily. Again, today we're under no standard. Under this operational plan we'll have the standard, so that includes all drive areas, unpaved drive areas. And any of the piles that are being worked that day, what they have is the ability to move sprinklers on those pile areas and to wet them down. And the operational plan includes wetting them down at least twice a day. So that's a minimum standard. If dust is being created, we will try and do more and more. As a matter of fact, we're going to try and get a well on-site because the county water is so expensive to do this. If we can get a well from a surficial level, it will allow us to do it more and cheaper, and that's our goal. COMMISSIONER KOLFLAT: Now, one of the neighbors expressed concern regarding building cracks due to the crusher operation. Have you investigated that any further with him? MR. HANCOCK: Mr. Brett's building is the one we're talking Page 211 October 16, 2008 about. And I'm sure he'll address that with you. It's an older building. You know, my only experience with this operation is standing there when it's running. As to whether or not his building cracked because of the crusher operation or it cracked as thousands of buildings have in Florida for no apparent reason, it's hard to say. What I can tell you is that, you know, I've worked around mines where blasts occur. I know what vibration feels like. And in standing in a close proximity to his business, it did not -- I didn't sense any vibration through the ground at that time while the crusher was operating. We're going to make that better by moving it 200 feet away. Beyond that, the fact that it's on rubber tires as a dampening effect, I'm not sure there's much more we can do, sir. COMMISSIONER KOLFLAT: Now, when I inspected the site, there was a huge pile probably 40 feet high of debris, and it looked to me like it was in the northwest corner of the property; is that correct? MR. HANCOCK: Yes, sir, that would be the highest pile at this time. COMMISSIONER KOLFLAT: And what the plan is, is to reduce all of that debris and make that into a preserve area? MR. HANCOCK: Well, that's where staff would like the preserve to be. COMMISSIONER KOLFLAT: I think your suggestion to spread this preserve area down and more in the boundary is a much better solution for that area up there, because the siting around it is -- the only place to really worry about is to the south I think where the neighbors are. The other site's just as bad as the area for appearance as this one is. MR. HANCOCK: Yes, sir. Ifwe're going to lose .37 acres of land to a preserve, let's at least do it where it can help the neighbors out. COMMISSIONER KOLFLAT: I think it's an excellent Page 212 October 16,2008 suggestion. MR. HANCOCK: Thank you. CHAIRMAN STRAIN: Mr. Schiffer? COMMISSIONER SCHIFFER: Tim, one thing: You want to locate the crusher more towards the eastern property. Why wouldn't you bring it over towards the casting next door? In other words, wouldn't it be -- I think where it is north-south is fine. Why wouldn't you have slid it to the west boundary? Because the eastern boundary has offices and other kinds of uses. MR. HANCOCK: Primarily ultimately when this site operates what we'd like to have is we'd like to have the -- the way this type of business runs is you may not get a lot of folks who need material for three or four days in a row. And then you get a phone call at 10:00 at night saying I'm going to have 20 trucks there tomorrow. And so you have -- you want to make sure there's queuing on the site for those trucks. By putting it in the northeast corner we've allowed internal queuing of those trucks at the point furthest away from those businesses, which would be along the northern property line. And so that's why it made the most sense to me to be up there. The other reason is those buildings adjacent to it are enclosed. For example, Darcy's business, you know, it's auto repair, and they open the back door, because I wouldn't want to work in there without that back door open. And, you know, so that's a different kind of operation. The buildings that the crusher would be close to now are enclosed more so, and we thought that just made more sense. COMMISSIONER SCHIFFER: Okay. I mean, you could move it and get the same travel distance. I mean, I don't think -- MR. HANCOCK: We could circulate the other way, sir. And I don't think we really have a care about that. And if it's this board's desire to move it to the west instead of the east side, we can just Page 213 October 16, 2008 reverse that rotation. COMMISSIONER SCHIFFER: Right. I think you can do it. The storage area. Looking at the aerials, it looks like containers and stuff like that. What is that, just, you know, nothing really organized but just a place where people can put trailers, stuff like that, just -- MR. HANCOCK: Yes, sir, it's fence secured storage. You know, again, we have a real need for that in the community. COMMISSIONER SCHIFFER: But it's not -- yeah. It's not material. I mean, you're using that. The work area is where you're moving all your material around, correct? MR. HANCOCK: That's correct. The storage area is just as we indicated, it's just for storage of, you know, equipment and materials for others. COMMISSIONER SCHIFFER: Okay. And then the other issue is do you need a building on the site? There's a statement here that the office work is done not on the site; do you have another office in the neighborhood. Well, what is the real desire in terms of buildings and stuff? MR. HANCOCK: Ultimately what you see here is what we'd like to accomplish, which would be to have a small operational office as people come in with a couple of parking spaces. Understand, this is not a consumer-based business. You know, the vehicles that come on the property are there to either drop something off or pick it up. But ultimately we'd like to have a small office on the property with a restroom in it. But the point being right now they have an office on Shirley Street. You're looking at the operators. Ms. Langham is a pharmacist by trade but is a mean front end loader operator also. And there's one or two other folks that will work on the site. But they have facilities nearby. We're just trying to keep the cost down as long as we can. Page 214 October 16, 2008 COMMISSIONER SCHIFFER: But do you -- I mean, you're looking at the conditions. Do you need the building? I mean, do you want to -- I guess you could probably do restrooms with portable and stuff if you really wanted to. MR. HANCOCK: We don't need the building. But what we'll be required to do within 90 days of this being hopefully approved will be to come in with a site development plan, and we'll have to make the decision at that time whether we'll need a building in the first phase or not. And we're just not there yet. The economics are not solid. COMMISSIONER SCHIFFER: Thank you. CHAIRMAN STRAIN: Any other questions of the applicant? (No response.) CHAIRMAN STRAIN: Staffreport? MR. MOSS: Good afternoon, Commissioners. For the record, John-David Moss, Department of Zoning and Land Development Review. The proj ect is consistent with the urban industrial district of the Growth Management Plan, the area in which it's located. It's also consistent with all the applicable provisions of the Land Development Code. And staff is recommending approval of the petition, subject to the stipulations contained in Exhibit B of the resolution. And they're dated September 23rd. One thing I wanted to clarify in those commitments is that -- or excuse me, in those conditions -- was that the buffer should be along the southwest portion of the site. It does say western, as Mr. Hancock pointed out, and it should say southwestern. I also wanted to clarify that the stipulation is for a Type B Buffer, which is trees planted 25 feet on center. Mr. Hancock had said 30 feet. So I just wanted to let you know that the opacity that staff is recommending is greater than what he had stated. But this may all be a moot point if you all decide to move the Page 215 October 16,2008 preserve area to the southern boundary of the site. And I'll be happy to answer any questions you might have about the petition. CHAIRMAN STRAIN: Mr. Vigliotti? COMMISSIONER VIGLIOTTI: J.D., there seems to be a consensus of moving the preserve area down. Do you have a major problem with that? MR. MOSS: I don't. But environmental is the one that recommended that it be located in that portion of the site. So I know Susan Mason is here, perhaps she'd like to make a comment about that. COMMISSIONER VIGLIOTTI: Yes, I'd like to hear from Susan. CHAIRMAN STRAIN: Why? COMMISSIONER VIGLIOTTI: Susan, there seems to be general consensus to move it down. Do you have a major problem with that? MS. MASON: Well, for the record, Susan Mason with environmental review section. The LDC does require that there be off-site connection whenever possible. The only area that would be possible would be if whenever some development of some sort would be coming into that parcel that's to the west where the original preserve location was shown. The preserve -- it is, you know, a small preserve, granted, but there's definitely no possibility for any off-site connection of any type in this plan that's been proposed today. T don't know exactly how it would work. And I heard the time line that Mr. Hancock was referring to. As you know, the LDC amendment allowing off-site preservation won't be going through this cycle. If they stick with that original time line, probably because of the code enforcement case, this really would be an ideal situation for an off-site preservation. But we can't allow that at this time, so -- Page 216 October 16,2008 COMMISSIONER VIGLIOTTI: I don't think they're looking for off-site, I think they're looking for this. Which I think and most other people here think it makes more sense, so -- MS. MASON: I think it serves as a landscape buffer for people, but it \vould not really pre -- it's not as compliant with the code as the original location, but -- COMMISSIONER VIGLIOTTI: Thank you. CHAIRMAN STRAIN: Besides hardworking people, are there any endangered species on this site? MS. MASON: Not that I know of. CHAIRMAN STRAIN: Okay, then the preserve application isn't for any kind of endangered species or anything else, it's just a plann] ng criteria of the code, which is more of an open space criteria. Thank you. Anybody else have any questions of staff? (No response.) COMMISSIONER WOLFLEY: A motion. CHAIRMAN STRAIN: Okay, do we have any public speakers, Ray? Before we go into that, you know what? It's been another hour and a half. We're going to try to get out of here by 5:30 or so, Cherie'. Why don't we take a 10-minute break and come back here at 4:26 and resume, give you a little break. Thank you. (Recess. ) (Commissioner Midney is now absent.) CHAIRMAN STRAIN: Okay, welcome back from our break. And Ray, last time we left off with going to public speakers. Would you please call the first public speaker, please. MR. BELLOWS: The first speaker would be Dan Brett, to be followed by Dorsie Whisman. CHAIRMAN STRAIN: Sir, you need to identify yourself for the record and move forward. Page 217 October 16,2008 MR. BRETT: My name is Dan Brett. I own the property that backs up to the southwest corner of the K.O.V.A.C. Enterprises' property. Right where Mr. Hancock has his pen, that property right there. Okay, the presentation that Mr. Hancock has just brought forward to the board, I agree with most of what the changes are; are a distinct i Inprovement over what the current status is behind us. I've also read the Collier County staff report and agree with most of the recommendations. I wish to address points three and seven of the recommended conditions of approval. Point number three: One thing that I was glad to see is that they identify one crushing machine will be allowed to operate on-site and shall not be located within 200 feet of the property's southern boundaries. This current crusher is located 108 feet off the northeast corner of my building. Up until about four months ago, which was just after the neighborhood meeting we had, if you sat in my office with that crusher operating, you would think you were in southern California experiencing a tremor. I had people sitting in there that wide-eyed looked at me when that was going on. Since the neighborhood meeting, I have seen that they changed the way that their crushing machine is mounted. Yes, it does have rubber tires, but previously that whole machine was sitting on the ground. Now they have the machine suspended, that both ends are up off -- are sitting on the ground and the rubber tires are two to three feet in the air. I ask the Planning Commission to consider requiring this crusher or any future crusher that they may get once this one wears out or if they go and expand this operation and they get a permanent crusher, I ask this Planning Commission to consider requiring that any crusher be placed on an engineered vibration reduction pad which will eliminate the vibration as they do move this from close proximity to Page 218 October 16,2008 me, they will be moving it closer to one of our neighbors. I ask that you seriously consider that vibration pad that the crusher be located on. Point number seven relates to the dust prevention. I ask that the board would consider -- seriously consider to help prevent dust from traveling off-site. I ask the board to consider that the first 150 feet of the two-way access be paved, thus eliminating the mud holes the trucks drive through as they leave, carrying the mud onto the road which dries and the traffic on Elsa Street creates dust that permeates into our buildings, into the showrooms and onto our cars. I appreciate your listening. Thank you very much. CHAIRMAN STRAIN: Thank you. What I'd like to do is get all the public input and then we'll ask Mr. Hancock about the issues when we're all complete. Next speaker, please. MR. BELLOWS: Dorsie Whisman. MR. WHISMAN: My name is Dorsie Whisman. I have the property to the right of Mr. Brett's, directly behind where all the dust and dirt and everything is. But the main thing I'm concerned about is the noise and the dirt. Because I get the dirt and dust from the rear, and it comes around to the front. But I see some of that could be handled by what they're doing here, if this is done here. If they go the other way, I don't see any way of solving it. I mean trees 30 feet apart not going to solve anything. Exhaust, fumes, no dust, no dirt, no smoke. And I have -- like I say, I have a shop with the front doors open and it comes straight through both ways. I get dust in the front and dust in the back. But I think this here would work. And they've worked with me and I try to work with them. I think they can do something like this. I don't know what the environments have got to do with it, but -- COMMISSIONER VIGLIOTTI: Neither do we. Page 219 October 16, 2008 CHAIRMAN STRAIN: We don't either, sir. COMMISSIONER CARON: We don't either. COMMISSIONER VIGLIOTTI: Neither do we. MR. WHISMAN: But, I mean, I guess they do, but I've dealt with them before because I got a campground zoned one time, so I know what they do. But I think what Mr. Brett said is about what I think too. So that's all I have to say. Thanks. CHAIRMAN STRAIN: Thank you, sir. Next speaker, Ray. MR. BELLOWS: The last speaker is Katherine Tarrant. MS. TARRANT: As he said, my name is Katherine Tarrant, and I own Clean Air and Allied Supply that is not to the south located where my neighbors here are, but I'm across the street from them. But I'm directly facing the operation. And the operation, in years prior when it started, was never a problem. But of course after Mr. Vaughn died and it became a bigger facility, it became a major problem for me and my business. Because even though I have warehouses and keep the doors shut and we're primarily a -- we deliver products to customers, it is almost impossible to keep anything clean. And after about a year of this, I had called the code enforcement and called the pollution also. And I was shocked that they both laughed at me, honestly, and they said they saw no pollution problem, nothing, no problem of any sort. So I'm very thrilled that this issue has come to light and is being addressed. So I want to thank you upfront for that. I think plan B is much more acceptable than -- and I'm really pleased that it's advanced this far. I'm still concerned, as has been previously stated, that if it remains a dirt road and it's not paved, we're still going to have dust and dirt from that. Page 220 October 16,2008 The height of 40 feet still allows for a lot of dust and dirt over the trees or the shrubs. I don't know any way to eliminate that either. I wasn't making a suggestion, I'm just saying I don't see a resolution for it. It does -- everything we send out to a customer has to be cleaned prior to going out, even with a warehouse being shut up, because it's just continuous. Even inside our small showroom, the shelves and the products are dirty all the time. And it's this fine mist of dust that somehow gets in. So not only inhaling it, I consider for all my neighbors is not healthy, but the fact that it is a nuisance. So the traffic on Elsa Street, which is a small street in width, is always a bit of a contention. And when there have been heavy use of the trucks, of course it creates more of a problem. But those are my main issues. And it seems as though -- I think something's been provided for water drainage. I think I seen that. That was one of the other things I wanted to bring up. But otherwise, one more thing is that the father had operated only at night, like after 6:00 at night, and before 6:00 in the morning, which we usually open about 6:00. So this never -- was another reason I think it didn't create a problem to -- for myself and the neighborhood. And I think if those hours could possibly be opera -- hours of operation again, it would help to eliminate a lot of the -- what they're doing, the dust and the noise and everything would be eliminated more. Just my thoughts. And thank you for listening. CHAIRMAN STRAIN: Thank you, ma'am. Mr. Hancock, we certainly would like you to respond to the various concerns you heard from the three members of the public that spoke. MR. HANCOCK: Mr. Chairman, Commissioners, I'll just take them as list items. Mr. Brett requested that under number three that the crusher, Page 221 October 16,2008 when relocated, be elevated and placed on -- and his words were vibration reduction pad. That may in fact be a pre-engineering term that I'm not entirely sure what it means standing before you today. But let me tell you what I think we can certainly agree to. That is to elevate the crusher and make sure the crusher rests on either material or a pure foundation that is designed to reduce vibration. And that I'm comfortable with, if that wording is acceptable to Mr. Brett. I think we're trying to get to the same place, but I'm not sure that I can agree to vibration reduction pad without fully understanding if that has a fiscal impact to my client. Under number seven, dust prevention: Paving the first 150 feet of the driveway. And that actually takes us back to about the fence line. And that's something we anticipated doing at the SDP stage, so we're more than happy to include that as a condition. Mr. Whisman, I think we've done about as good as we can do to address his. And the only other comment I heard, the height of 40 feet is something that I think we've already dropped from 50 to 40 and I'm not sure going down to 30 actually is going to have any visual impact to business owners across the street. And since we've agreed to water the working areas of the piles, that should take care of as much of the dust issue is as reasonable. And hours of operation: While we can limit the hours of operation with respect to the truck traffic, as I mentioned earlier, this is a very odd business. And sometimes you get a call late at night and they need a lot of loads in the morning and so you'll be crushing at night. Sometimes you'll get that call that they need it late in the day and you'll be crushing in the morning. So it is an industrial park. We don't limit hours of operation on most businesses within the industrial park, so we simply ask that that be left alone. But I will tell you, it is Karo Vaughn's -- you know, he'd rather Page 222 October 16, 2008 work at night because it's a heck of a lot cooler. And there seems to be some of that, but I'm hesitant to limit those. COMMISSIONER SCHIFFER: Mark? CHAIRMAN STRAIN: Go ahead, Mr. Schiffer. COMMISSIONER SCHIFFER: Tim, one thing. I think the point she was making on the height might make sense. What is the material up at the peak of that? Are these large chunks of concrete or is it a fine dust material? MR. HANCOCK: No, the stuff at the top of the piles, as someone who has climbed those suckers a couple of times to take some pictures, is fairly large pieces. The way in which I think the height of the pile may create dust is when the top of that pile is being worked and pulled down to be set up for crushing. And if we are watering that pile that we're working twice a day, I think that's a reasonable accommodation. We don't want piles of 40 feet. We'd like 'em smaller. They're easier to operate and easier to maintain. One of the problems we've had is we haven't been able to get as much material off-site, because until we resolve the conditional use, we've got potential clients out there like the FDOT and the county landfill that won't use our material, because we need to be okay with code. COMMISSIONER SCHIFFER: But I think if there is fine material and it is up high, it will blow further. I think she -- MR. HANCOCK: It will. Most material up top is larger pieces. The actual fines in the post-crushing material is down lower, and those piles don't get much more than 15 or 20 feet. It's a working pile. COMMISSIONER SCHIFFER: Okay. And then I did like his idea of calling that an engineered vibration pad. That means somebody who's, you know, got a background in vibration is the one who's determining what's the best method. It doesn't have to be expensive, just the best available method. MR. HANCOCK: Again, 1'11-- my lack of knowledge will Page 223 October 16,2008 restrict me on that. We understand the intent that Mr. Brett's trying to get to, and I'm just -- I don't know if that is a set term out there that means it's $100,000 item, or if it's a $10,000 item. I honestly don't know. COMMISSIONER SCHIFFER: Yeah, I think you mean the person who's doing it knows what he's doing I think is the intent. MR. BELLOWS: Yeah, I'd just like to add, we'll coordinate with our engineering staff to see if there are ways that this can be placed so as not to create additional vibrations. MR. HANCOCK: And since we do have to come back in for SDP, if the stipulation is that we will design a pad for the portable crusher or a support system for the portable crusher that is designed to reduce vibration, we're more than happy to do just that. Because your engineering staff will have to review it. CHAIRMAN STRAIN: Ray, would they have to provide an SDP for this site? MR. BELLOWS: Yes. CHAIRMAN STRAIN: Okay. Well, SDP's got to be done by a licensed Florida civil engineer, right? MR. BELLOWS: Yes. CHAIRMAN STRAIN: So if the civil engineer -- if you require on the SDP that this material and foundation vibration reducing pad be shown on the SDP, that means it's going to have to be engineered. MR. BELLOWS: I be -- yes. CHAIRMAN STRAIN: So that would probably fill the bill. Are there any other questions of Mr. Hancock at this time? Mr. Kolflat? COMMISSIONER KOLFLAT: No questions. I'm ready for a motion. CHAIRMAN STRAIN: I have one. I just want to make sure everybody else had theirs. Ray, this preserve area, part of the reason that we've argued that Page 224 October 16, 2008 they needed a buffer was to help with the dust situation certainly visible, and noise. Created preserve areas to me, especially in areas that are more uplands like this, could be very sparsely populated. Do we really want to limit it to a creative preserve area or a landscape buffer area where we could expect better material that could actually fill the area out versus what a preserve might not do? And I'm just throwing that out as a suggestion, because that would actually make it better for the people to the south, because -- and it may end up being the same price, because you're looking at more readily available landscape material. Because the purpose here can't be for a preserve in the middle of the industrial park. So let's just face it, it's going to be a green space with some landscaping in it. And maybe there's a better way to look at that than trying to recreate a preserve that isn't even practical. And I'm just throwing that out as a suggestion. MR. HANCOCK: If I may offer by way of something that may be built into the motion, that the emphasis in the preserve area would be on trees and lnidstory plantings. I don't think groundcover's going to help anybody. But if the emphasis is more on trees and mid-story plantings in the preserve area, that gets us where we want to get to so that we don't have the neighbors upset at us. CHAIRMAN STRAIN: Okay. And Ray, is there -- do we have any issues with that? Do we have -- I don't know if we -- well, this is a conditional use. We just learned in the last one we can change about anything under a conditional use. So why don't we just not call it a creative preserve area, let's call it a landscape -- COMMISSIONER VIGLIOTTI: Buffer. CHAIRMAN STRAIN: -- buffer area and allow for some flexibility in the landscaping. Can you come -- MR. BELLOWS: Well, one concern I have is that there would be some requirement to provide the, what's that, 5.7 acres -- Page 225 October 16,2008 CHAIRMAN STRAIN: .37. MR. BELLOWS: -- were relocated from the northwest corner to the south. Are we going to mitigate that offset one to one then? CHAIRMAN STRAIN: Well, here's what I'm suggesting: If this is a conditional use and we don't have to request deviances to the code because it's a conditional use, we can just approve it as a conditional use. They don't have any preserve on that property now, why make them create a strict preserve when creating a landscape area might be more effective for the people to the south since the preserve is impractical? And if my assumptions from a code viewpoint are wrong, let me know. But if we're wrong on this one, then we're going to be wrong on the last one. So I don't know why we just can't make this a landscape area subject to a little bit more flexibility in the material used. MR. BELLOWS: I think that's acceptable. The only reason I'm hesitant is I think that there is some code requirements for the creative preserve that I'd like to at least run by the environmental staff. I don't see a problem enhancing it with other types of tree vegetation. CHAIRMAN STRAIN: Wait, you run it by environmental staff, they got one thing in mind, create a preserve. Can you run it by Nancy or Mike Sawyer, some of the guys -- or whoever's now -- Bruce McNull, he's in charge of landscaping. MR. BELLOWS: One thing that -- it's not a problem for the Planning Commission to make any recommendation they want and we'll carry that forward. I just can't guarantee that we won't have a staff -- a side note to add to it. MR. HANCOCK: The solution may be that regardless of the planting material, that we place it in a conservation easement. And we may be fully code compliant with that and just having a material difference, literally, in what is planted there, versus what a recreated preserve would have. Page 226 October 16,2008 MR. BELLOWS: I think that will work. COMMISSIONER VIGLIOTTI: That's fine. CHAIRMAN STRAIN: Okay. Well, the point is this is real impractical for preserve -- MR. BELLOWS: I understand. CHAIRMAN STRAIN: -- in its true sense of the word, so let's just be practical and give the people to the south more protection. And if the applicant's willing to do that, in the end it doesn't -- probably would be less costly than trying to recreate native vegetation in a place where it probably will never survive. Let's just be practical and do it right. So that's kind of where I'm going. Anybody else have any questions of the applicant? COMMISSIONER WOLFLEY: No. CHAIRMAN STRAIN: Anybody at this point? (N 0 response.) CHAIRMAN STRAIN: Then we'll close the public hearing and we'll entertain a motion. There is a motion? Mr. Kolflat? COMMISSIONER KOLFLA T: Yes, I move that we approve Conditional Use 2007-AR-12619. CHAIRMAN STRAIN: Is that with staff recommendations? COMMISSIONER KOLFLAT: With all staff recommendations, and the agreement of the landscape area to the south. CHAIRMAN STRAIN: I have some clarifications when we get past the second. Is there a second to that? COMMISSIONER VIGLIOTTI: I'll second that, and add the paving of 150 feet. CHAIRMAN STRAIN: I was going to read that in. COMMISSIONER VIGLIOTTI: Okay. CHAIRMAN STRAIN: Mr. Kolflat, I have three or four things that were brought up that we may want to consider adding. Page 227 October 16, 2008 Number three, where it talks about the crushing machine, we would add to the end of it that the crusher will be elevated to rest on material or a foundation that reduces vibration, as designed by the Florida engineer through the SDP process. COMMISSIONER SCHIFFER: Mark? CHAIRMAN STRAIN: Yes, sir. COMMISSIONER SCHIFFER: One thing on that same one. I think we should suggest that it's the 200 feet from the property southern and eastern boundaries. I think the crusher's never been over on the east side, so the people on the east side -- which is an office building. So I think if it's good enough for the ones at the south -- Tim, what that would do, I think the 200 feet would push it off to the western part. CHAIRMAN STRAIN: That storage area, how wide is that? MR. HANCOCK: Well, it's about 70 feet or more wide and it's on the other side of a 30-foot drainage easement. CHAIRMAN STRAIN: Is there a street between it and the buildings across the way, or not? MR. HANCOCK: There is not. CHAIRMAN STRAIN: Okay. So you're looking at about 100 feet. So you're talking about moving it somewhere 100 feet to the west or putting it on the west side of the property 200 feet north of the southern property line. Is that what we're thinking of? MR. HANCOCK: The problem is when we move it to the far side, we don't have as much staging for trucks. But more importantly it's going to have to be closer to that property line than it is on the east, or else we lose space. COMMISSIONER WOLFLEY: How wide is the property? There's no dimensions here. CHAIRMAN STRAIN: Right. COMMISSIONER SCHIFFER: Tim, what is the width of their property as it hits the street in the south? Do you know how much Page 228 October 16,2008 frontage -- MR. HANCOCK: You mean on -- fronting on Elsa Street? COMMISSIONER SCHIFFER: Yes. MR. HANCOCK: It's a little less than 100 feet. It's about 90 feet, if I'm not -- let's see. I've got to look at my survey. COMMISSIONER SCHIFFER: Then I think 100 -- the point is that the crusher's never been over on the eastern part of the boundary yet. MR. HANCOCK: Mr. Schiffer, we'll move it to the west. CHAIRMAN STRAIN: And to the west is no occupancy. So, I mean -- MR. HANCOCK: We'll move it to the west. CHAIRMAN STRAIN: So it would be 200 feet from the eastern property line and 200 feet from the southern property line; is that what you're agreeing? MR. HANCOCK: Yes, sir. CHAIRMAN STRAIN: Okay. That takes care of the -- we just would add a number three then. It would read: 200 feet from any property's southern and eastern boundaries. And we would add the language about the crusher being elevated on a vibration reducing pad. On number seven in the last line we're talking about a buffer be along the southern and southwestern boundaries. Then nun1ber eight, we would add paving of 150 feet of the entry roadway into the site. Number nine, we want to make sure that we use the site plan that's shown now on the screen in relationship to where the creative preserves will be. And number 10, the planning area that's been talked about for the creative preserves, the intention is to provide more flexibility for the material used within the, quote, preserve area. And that staff would look at that and come back on a consent agenda with an analysis of that. Page 229 October 16,2008 COMMISSIONER CARON: Just one more. CHAIRMAN STRAIN: Yes, Ms. Caron? COMMISSIONER CARON: Just one more thing that Mr. Hancock had n1entioned and that's that the site will now be fenced and locked. CHAIRMAN STRAIN: Will be fenced and-- COMMISSIONER VIGLIOTTI: Will be. CHAIRMAN STRAIN: Yeah. COMMISSIONER CARON: That's what he had -- CHAIRMAN STRAIN: Okay, Mr. Hancock, are those all consistent with your understanding? MR. HANCOCK: Yes, sir, they are. CHAIRMAN STRAIN: Okay, is staff comfortable with the conditions that we've asked to have delineated? I see J.D. nodding his head, and Ray. Okay, with that we'll ask, does the motion maker accept the conditions that we -- COMMISSIONER KOLFLAT: Yes. CHAIRMAN STRAIN: -- just read? Does the second? COMMISSIONER VIGLIOTTI: Yes, I do. CHAIRMAN STRAIN: Okay, all those in favor of the motion, signify by saying aye. COMMISSIONER SCHIFFER: Aye. COMMISSIONER KOLFLAT: Aye. CHAIRMAN STRAIN: Aye. MR. WOLFLEY: Aye. MS. HOMIAK: Aye. COMMISSIONER CARON: Aye. COMMISSIONER VIGLIOTTI: Aye. CHAIRMAN STRAIN: Anybody opposed? (No response.) Page 230 October 16,2008 CHAIRMAN STRAIN: Motion carries -- we're down to 7-0. COMMISSIONER CARON: Again, conditional use forms. CHAIRMAN STRAIN: Thank you all. We do have -- Tim, you do know we do a consent, so see that when it comes back through. Everybody pass in your forms to Ms. Caron. Item #9C PETITION: SV-2008-AR-13395, IMMOKALEE -WOOD, LLC CHAIRMAN STRAIN: Okay, the next item for today is Petition SV-2008-AR-13395 at 2600 Immokalee Road, and it's for a real estate development sign for John R. Wood. All those wishing to speak on behalf of this item, please rise to be sworn in by the court reporter. (Speakers were duly sworn.) CHAIRMAN STRAIN: Disclosures by the Planning Commission. Mr. Schiffer's taking off? Go ahead. COMMISSIONER CARON: Yes, I spoke to Mr. Fernandez. CHAIRMAN STRAIN: Okay. And I had e-mails going back and forth to Mr. Fernandez. I left a voice message at his office, but we never actually spoke. Anything else? (N 0 response.) CHAIRMAN STRAIN: Okay, Mike, it's all yours. MR. FERNANDEZ: Thank you, Commissioners. I know it's been a long day. I'll try to go through this as quick as possible, because it's almost 5:00. What you have -- the drawing that you have before you there is Page 231 October 16, 2008 just showing the location, trying to orient you. This is near the southeast corner of Airport Road and Immokalee Road. It's next to the Sam's. It's part of the Uptown Shopping Center, which is a PUD. The subject property was not platted, but it is part of -- it is a land condo. As you can see, there's two parcels that have been recorded in public records that are in the front of the site, adjacent to Immokalee Road and then at the rear basically accommodates the shopping center. This is an aerial of the existing improvements that are on there. And you can see it's basically an L-shaped shopping center with the two out-parcels. The PUD -- and there's a document in your packet that shows the PUD actually anticipated two out-parcels fronting along Immokalee Road, or provided for the opportunity for that. Talk a little bit more about the context. One of the issues that I wanted to identify was that on the west side of the property adjacent to the Sam's, there's about a 2,300 square foot linear preserve that's a part -- and adjacent to the buffer between the building and the property line. And that's one of the impediments that we have in having signage on that western facade of the existing building. Now I'd like to identify one of the other issues that just only recently came up. The PUD is an older one, and when it was approved it was part -- it was approved on a two-lane Immokalee Road which was scheduled for improvements to a four-lane Immokalee Road. There were conditions in the PUD that provided for that additional right-of-way. Subsequent and thereafter there was the decision to widen Immokalee Road to six lanes, and that was not anticipated in the PUD. And as you can see in this drawing, which was part of the permit for the structure, there was an existing right-of-way line and then you can see this jogging dash line which became the new right-of-way line. Page 232 October 16, 2008 As part of that -- of the six-Ianing improvements, the existing -- the then existing Type D landscape buffer was displaced. I'll also call your attention in a minute to above the edge of shared property line, or the common property line at the right-of-way there are FP &L power lines that are along that edge. And then on the south side of the landscaped area, you'll see that there's also an FP&L easement along a majority of that parking area along that south -- along the south edge. And in between, you'll see in a photograph in a moment, is a water management area. The request that we've brought to you today is for a variance. It's a variance based on hardship in that the building right now is not adequately visible for our client's clientele to find the building. Or for any tenant who would be in that building to find their building. When cars are going in a -- eastward on Immokalee Road, there's no opportunity for signage behind that preserve area. You wouldn't see it. And in fact you don't see it. And what happens is his clients tend to pass up that facility and then end up going past the entrance of the shopping center and thereafter have to make several -- almost a mile down the road do a U-turn and then come all the way back. And there lies the public benefit of having this additional slgnage. So we're basing, like I said, the variance request on hardship and on public benefit. We did a series of photographs that we placed in your packet. You can see that this is the existing wall sign that does exist. And this faces -- this is on the east side of the facade of the building. And it is visible for westbound traffic on Immokalee, but not again for the eastbound. In front of the building you can see that there's trees, and this -- you can see this is date stamped in the photograph. It's been a year more and the trees that front along Immokalee Road also do not allow visibility of the building along that edge. Page 233 October 16,2008 And as I mentioned earlier, you can see the power lines that occur right there adjacent to the sidewalk. So that precludes issues -- or trees in that area. You'll also notice the swale that runs in between. And as I called your attention earlier to the drawing, there's also an easement on the southern edge. Another item that we identified as part of our application but staff did not pick up in their analysis is that there's a differential at four feet right here at the edge between the building and the edge of pavement, or the sidewalk there. And it's even higher as you go closer to the center line of the road. So it's almost six feet by the time you get to the center line of Immokalee Road. So the building is somewhat depressed into the site, as many structures are along Immokalee Road. And this was not anticipated in the four-Ianing condition, it only occurred when they did the six -laning. And you may not be able to tell, but over here at the sidewalk, that's actually a retaining wall that's just about three feet. This is the landscape buffer preserve, if you will. And you can see -- and again, it's another year of maturity. And essentially this vegetation is an effective blockage of visibility of the building. Our client originally made application for the sign permit and had an understanding that it was going to be approved and then found out that it wasn't. He retained our firm and we went -- are going through an SDP amendment process. And originally we understood it was going to be approved and then we found it was not. And the issue really lied on the -- whether or not this was an out-parcel. If this was identified by -- or defined by the LDC as an out-parcel, then it would be entitled to a 60 square foot sign in front of the building. And traditionally it's been our experience and our understanding that condon1inium parcels did constitute a out-parcel. We were asked Page 234 "'. y ~.. ",.""".~-~..."" October 16, 2008 to do a fOD11al interpretation, which we did, and staff made a determination that a condominium parcel essentially is not a out-parcel, cannot be an out-parcel as a shopping center. However, I did wanted to note that in the criteria for a variance, one of the issues -- one of the items that comes up is would granting this variance give us something that others don't enjoy? First we would say everybody has a right to get a variance. But we wanted to go a little bit further. This is a shopping center that's existing at the corner of Pine Ridge and Goodlette. This is the Raymond James Building. This is a Starbucks and another little restaurant next to it. Both these buildings have full signage out front. Both of them are part of a condominium. And you can see that there's no -- there's a parking lot between them. So that in some cases staff has been able to grant such signage in these conditions. That's not a project that our firm did, but there's another one that our firm did over here down the road on Pine Ridge. This is one that's the Steak 'N Shake in the Carillon Shopping Center and next door there's a car wash. This is a condominium parcel. And if you were to go out there, we were to able to permit signage for both of these structures independent, just like we're asking for John R. Wood, and they were condominium parcels. While this is not a shopping center, this is on the North Trail adjacent to Vanderbilt Beach Road. These properties are owned under a condominium that's under one ownership, and these buildings all have and enjoy signage. So basically what I'm trying to say is that there have been instances where businesses have been able to permit under a condominium ownership such signage. Now, the proposed sign that we -- that was submitted by the -- by our client, this is for John R. Wood. But -- and I know, Mr. Strain, you made a comment that it was for real estate signage. Page 235 October 16, 2008 We're actually wanting to get -- this application is for a variance for signage for whatever tenant or tenants are in that building, as opposed to specifically for John R. Wood. And \ve noticed in the conditions that staff was proposing, should you wish to approve this, they were proposing that it be limited to just John R. Wood, basically the existing tenant in the building, who also has a contract to purchase the site. And we don't think that -- that's something that doesn't make any sense. Because if the variance is required for this owner and this tenant and it's in the public benefit to have such signage, it shouldn't be restricted to just this one user, and it should be available to any user. Again, as I said, we're doing this on the basis of hardship and public benefit. On the LDC provisions for on-premise signage, it talks about pole signs and it talks about 1,000 foot separation. And the actual provision that we're requesting is a reduction from the 1,000 feet that would normally be required to 276 feet, which would place these closer together. In the last sentence of the LDC provision that's in our Exhibit J listed, it says in no case shall the number of pole or ground signs exceed 1TIOre than two per street frontage. Th is \vill be the second sign for this proj ect overall, so we will not exceed that standard. There's certain criteria in reviewing this variance that I want to go and review with you. The first and the second talk about are there any special conditions or circumstances that are peculiar to the location size, the characteristics of the land structure or the building involved. And two, talking about are there any special conditions or circumstances that don't result from the applicant. And] 've already identified those to you in that essentially there was a t8king that reduced the amount of land out front. Also, that we Page 236 October 16, 2008 have the preserve requirement that was there. That was some of the only existing vegetation that was available to be saved on the site at the time of the original application. And when they increased the roadway, it raised the roadway. And so now there's a height differential between drivers on the adjacent pavement and the roadway which agai n reduces the amount of exposure that the building enjoys. And if you go through these, and they go one through I believe eight, you'] I see that staff and we disagree in our reviews. Whether or not -- again I already addressed if these provisions, would it grant us some special provision. And I've shown you examples of other projects th;lt enjoy not having to meet that 1,000 foot requirement, and those parcc Is are also not by the interpretation that was made by staff out-parcels. And again, if -- do we need it because is this the most -- if granted, is this the minimum variance that would be required? N o\v. we submitted -- and staff has proposed that if you do approve th; s, that you limit the signage to what we basically submitted~ 'which was that their analysis is 38 square feet of signage. The code \'lould allow us to have 60 feet of signage. And we're fine limiting it 10 that 32 feet of signage, provided that we are not also then going to be enculnbered by the additional landscaping that's being proposed by sta ff. I -- tl:is signage was designed by the sign company working with our cliert ' lith the existing conditions in mind. Should the existing conditio"s change, they'll need that flexibility to have a larger sign to have gre: tcr exposure. The (, ther part of this is the conditions that I've already pointed out to you :\nd that is that the buffer that county staff has requested we install, wll'ch was removed by the county as part of their expansion and we'rr : ndeavoring to get from the county staff through their right-of-'v; y department, the actual agreement where they took that landscar '1 g so that we became a legally existing nonconforming Page 237 October 16, 2008 condition is a condition that we want to retain. We have the hardship, the additional hardship there. A significant cost if we're trying to displace the water management there and to address the FP &L easements, to remove those FP &L easements or somehow otherwise address those. Additionally, our client that we're working for, which is John R. Wood, does not control the entire shopping center and we don't have authority to even agree to put additional visual obstructions in front of the shopping center, because that's not part of our client's agreement with the other condominium owners. In granting this variance will we be in harmony with the intent and purpose of the code? Absolutely. We are doing something that again is a -- under hardship it is also a public benefit. And going further, it's something that similar projects have enjoyed. Are there conditions, physical conditions? We mention again the grade separation in the preserve. And staff determined as we did that granting this variance is not inconsistent with the Growth Management Plan. Relative to the staff recommendation, they're recommending denial of the petition. And again, as you look through those different criteria you'll see that we addressed them at our application packet to you, very much in contrast to how they reviewed it. And I believe we've shown supportive evidence here today that supports our position. Again, the 38 square feet limitation that they would propose, should you want to approve this, is something that we can live with under the existing conditions to which it was designed. That their second condition is suggested to be to limit the name of the business entity located within condominium parcel two. And again, there may be multiple tenants in there or the business entity may not be the same as the tenant name, and so that's not a Page 238 October 16, 2008 usual restriction on signage. The third one is the same thing, the sign shall be removed upon relocation of the subject business or occupancy of the building by a different business. Which I've never seen such a suggested restriction in this case. Again, if it's good enough for us, if the variance is good enough for us, it's good enough for the next tenant. And they will have the same hardship and the public has the same challenges in finding this location, whether it's John R. Wood or some other company or some other realtor or some other firm that may use this facility in years to come. And then in regard to the right-of-way buffer, we noted that to the -- we noted with the approval of this project that staff did initially request the buffer be put in place, but the issue was outstanding at the C.O., subject to further resolution. And the ultimate resolution was that the buffer was not put in place. And we're getting a document from transportation rather to that nonconforming status. Subsequent to this, there's been a couple other SDP's that have been submitted. And that issue of putting that buffer hasn't been raised. We would assume it's for that same reason. With that, I'll be happy to answer any questions that you may have regarding this petition or our presentation, and I would like to reserve the right to respond to any comments that may be raised through staffs presentation or further discussion. CHAIRMAN STRAIN: Mr. Kolflat? COMMISSIONER KOLFLAT: This letter from Susan Istenes, on August 29th, I think 2007. Is that the correct date, or is it 2008? MR. FERNANDEZ: No, again, that's the correct date. This has been in progress, not necessarily with our firm but for about two and a half years. COMMISSIONER KOLFLAT: Did you appeal that official interpretation? Page 239 October 16, 2008 MR. FERNANDEZ: No, sir. At the time our client -- that was -- we were told that there was another better alternative which we pursued at that time that would be more cost effective. So we did not appeal that. Although we had that -- we already had presented the evidence, such as the one at Carillon, prior to that time. COMMISSIONER KOLFLA T: So you did not utilize that avenue as far as an appeal. MR. FERNANDEZ: No, sir, we did not. COMMISSIONER KOLFLAT: Thank you. CHAIRMAN STRAIN: Any other questions of the applicant? (No response.) CHAIRMAN STRAIN: First ofall-- okay, Ms. Caron, go ahead. COMMISSIONER CARON: Yeah, I just had a question. On the preserve area to the west of the John R. Wood building, is that all actually preserve or is it a combination of preserve and landscape buffering? MR. FERNANDEZ: It's a combination of existing vegetation and additional enhancements within the preserve with itself. And then between the building and the preserve there was additional landscaping that was put in to meet other code requirements. COMMISSIONER CARON: Okay, because in driving by here it looks like the preserve portion of it is to the southwest, and that the section -- you know, and I don't know how many feet it was, but continuing toward Immokalee was just some sort of a landscape buffer. MR. FERNANDEZ: Yeah, I think this drawing where you see the hatch, that's the preserve area. Okay? So it extends into the front buffer or up to the front buffer and all the way down to the shared interconnect with the adjacent Sam's project. COMMISSIONER CARON: Okay. So it does go the full length. Page 240 October 16, 2008 MR. FERNANDEZ: Of the building, yes, ma'am. COMMISSIONER CARON: Okay. MR. FERNANDEZ: Yes, it does. And there's like a little break in there. Even in my pictures you saw it. But if you go and take a closer look, you'll see that there's a lot of smaller trees that were planted that were part of the requirements that again are going to continue to grow and obscure further the building. It's something that we did look at. Obviously that was the easy solution, because we still had available square footage, and we would much rather put it there. It would have been a much simpler operation. But again, because of that preserve being there, it really didn't afford us the opportunity. COMMISSIONER CARON: Yeah, in driving by it was why couldn't they just trim some of these trees and put the sign on the building? Because as I say, it didn't look like it was all preserve, it looked like part of it was just a landscape buffer. But I see the -- thank you. MR. FERNANDEZ: As you're well aware, we unfortunately can't -- CHAIRMAN STRAIN: Any other questions? (No response.) CHAIRMAN STRAIN: Mr. Klatzkow, official interpretation was apparently rendered August 29th, 2007. It's gone through its appeals period with no requested appeal. Does that stand as an official interpretation of the law? MR. KLATZKOW: It is the law of this case, yes. MR. FERNANDEZ: Just for clarification, we're not trying to appeal it here, we are just showing that there's other projects that have enjoyed the ability to get signage so it's not being inconsistent to grant one in this case. CHAIRMAN STRAIN: You're not an out-parcel, though. MR. FERNANDEZ: No, sir. And neither were those. Page 241 October 16, 2008 CHAIRMAN STRAIN: Doesn't matter. You can't be, so you have to follow the rules that then apply to the regular -- MR. FERNANDEZ: Yes, sir, and that's why we're here for the variance. Thank you. MR. KLATZKOW: And I did work with Susan on that. And the word distinctions between that and some of the examples that he showed, I do remember that. So it's -- CHAIRMAN STRAIN: Okay. In the sign permit application that was supplied, I notice it said it's replacing an existing sign. Which sign is being replaced? MR. FERNANDEZ: I'm sorry, which one are you referring to? Are you referring to the wall sign? CHAIRMAN STRAIN: I don't know, it doesn't say. It says that MR. FERNANDEZ: I think that was a staff exhibit. CHAIRMAN STRAIN: It was a staff exhibit. It was supplied-- the applicant's name, it was called the sign permit application. I don't know if staff made those out. Usually the applicants make -- MR. FERNANDEZ: Yes, sir, that's a -- staff included that in their packet. We did not include it in our packet. If you look further in I think the next page or two, that's the wall sign application. And I think they put it in there so you could see the size of the wall sign. So that was to -- for the wall sign that's there now, not for the signage that we're requesting. CHAIRMAN STRAIN: Okay, during the preap. transportation noted that the PUD compliant staff has notified the reviewer that traffic counts are due and arterial level street lightings are unfulfilled through the PUD commitment. Is those still outstanding? Are those commitments still not made? MR. FERNANDEZ: My understanding was that -- I don't know the answer, but I understand that it was in progress being addressed by Page 242 October 16, 2008 the condominium association. CHAIRMAN STRAIN: Okay, as far as the condominium association goes, are you -- are they in agreement with this? I mean, is this on a common area of the condo association? MR. FERNANDEZ: Yes, sir. If you look at the actual signature of the authorizing individual for us to be here today, it's on behalf of the association. Our limitation is to address the issue of the signage and the landscaping that would go along the bottom of it and any immediate improvements in that area that would be required. And of course we will have to go through an SDP amendment for that purpose. CHAIRMAN STRAIN: Condo sign-off you have, can you tell me -- that's in our packet provided-- MR. FERNANDEZ: Yes, sir, it is. CHAIRMAN STRAIN: -- by you? Okay, can you tell me what it looks like? MR. FERNANDEZ: It's the application to sign authorization on there by Mr. Dingle. And he represents and is the authorized signee for the shareholders in the shopping center. And there's a list of the shopping center owners, shareholders in your packet. CHAIRMAN STRAIN: What's the name of them? What's the name of the entity that we're trying to seek? COMMISSIONER WOLFLEY: Immokalee Road, Inc. MR. FERNANDEZ: Yeah, Immokalee Wood, LLC, I believe. COMMISSIONER CARON: Immokalee Road, Inc. COMMISSIONER WOLFLEY: Yeah, Immokalee Wood Manager, Inc. Immokalee Wood, LLC. CHAIRMAN STRAIN: What's the difference between Immokalee Road, Inc. and Immokalee Wood Manager, Inc.? MR. FERNANDEZ: In your packet in the application there's a copy of the warranty deed. This is for -- this is under Exhibit F, the warranty deed and corporate ownership documentation. Page 243 October 16,2008 And you'll see there it starts with a warranty deed. And then you'll see the Immokalee Wood, LLC, a Florida Limited Liability Company with the appropriate signatures. And then you'll see -- CHAIRMAN STRAIN : Well, well, well, let's stop there. MR. FERNANDEZ: Yes, sir. I'm sorry. CHAIRMAN STRAIN: The unit, condominium unit number two is the one we're talking about; is that right? Is that the building? MR. FERNANDEZ: That's for John R. Wood, yes, sir. CHAIRMAN STRAIN: Okay. And that's the Immokalee Road, Inc. group, from what I can tell. MR. FERNANDEZ: The Immokalee Road, Inc. group I believe is still the entire entity. CHAIRMAN STRAIN: Well, the warranty deed gives Immokalee Road, Inc. the condominium unit number two of Uptown Center, a Commercial Condominium. So I think Uptown Center, a Commercial Condominium might be the name of the condominium. MR. FERNANDEZ: Of the overall association? CHAIRMAN STRAIN: Right. MR. FERNANDEZ: Yes, sir, I'm sorry. CHAIRMAN STRAIN: Okay, which is the one I've been seeking. If you turn to Immokalee Wood, LLC, the permission -- the limited liability company unanimous consent of members, it's not signed by anybody with Immokalee Wood, LLC. I'm wondering if it needs to be. Maybe the County Attorney can answer the question. MR. KLATZKOW: When we reviewed this, we had no issue as to the application itself. CHAIRMAN STRAIN: Okay. MR. KLATZKOW: We were okay with this. We could look at it again if you'd like, but when we reviewed this, we were okay -- CHAIRMAN STRAIN: Here's what I'm trying to find out. We Page 244 October 16,2008 have a condominium building. They want to put a sign on a common area that's part of the condominium whole. MR. KLATZKOW: That's right. CHAIRMAN STRAIN: The condominium whole has other members in it who already have a marquee out there that if I was another member I'd be wondering why is this guy getting a sign standing by itself, why can't I have one like that too? It sure helps my property . So I'm wondering where the permission is from the other units there who are part of the common area to let -- or to consent that this sign is something they agree to. I find the name Immokalee Wood, LLC on a document, but I don't find the signatures for Immokalee Wood, LLC on that document. I find signatures for Immokalee Wood Manager, Inc. and Immokalee Road, Inc. I also find a reference to a condominium group Uptown Center, a Commercial Condominium, but I haven't yet found their consent, which is what I'm trying to find. MR. KLATZKOW: Well, there's a letter of authorization-- CHAIRMAN STRAIN: Right. MR. KLATZKOW: -- with Immokalee Wood, LLC. CHAIRMAN STRAIN: But Immokalee, LLC (sic) is the building. MR. FERNANDEZ: No, sir. As a point of clarification it's actually the lot area which I showed in one of the early exhibits. And it actually includes the area where the sign goes in. If you'll recall, there were two parcels that were shown fronting Immokalee Road. And the parcel that this building encumbers along with its associate parking areas and landscaping are all part of that condominium unit. So it's not simply just the building. MR. KLATZKOW: And there's a warranty deed here -- CHAIRMAN STRAIN: Right. Page 245 October 16,2008 MR. KLA TZKOW: -- to Immokalee Wood, LLC for the condominium unit number two of Uptown Center. CHAIRMAN STRAIN: Right. And that's signed by Immokalee Road, Inc., a Florida Corporation. MR. KLATZKOW: Right. CHAIRMAN STRAIN: Then Immokalee Wood, LLC is the owner of the property; is that what we're getting at? MR. KLATZKOW: Yeah, I think we're okay on this. CHAIRMAN STRAIN: Okay. Because Immokalee Wood, LLC's consent of members isn't signed by anybody from Immokalee Wood, LLC. But if you guys are comfortable with that, then I guess -- MR. KLATZKOW: We're comfortable with it. We've got other issues with this petition. CHAIRMAN STRAIN: I don't even think you were involved in this when it came through, that's why I'm asking. MR. KLATZKOW: Well, actually, I was involved with this when it first came through. CHAIRMAN STRAIN: Were you? Okay. How high is the sign going to be above the nearest adjacent road? MR. FERNANDEZ: That was on one of the earlier exhibits. CHAIRMAN STRAIN: You had one colored exhibit that-- MR. FERNANDEZ: Yes, sir, that's what I'm looking at right now. It's approximately -- looking at this exhibit there, there's an eight feet to the top of where you can see where the signage is, and then there's approximately a foot and a half of the balance that includes the address of the building itself. CHAIRMAN STRAIN: Okay, what's the actual height of the structure that the sign's going to be placed upon? How's that? MR. FERNANDEZ: So you're looking at a total of let's say 10 and a half feet plus the adjacent grade, which I believe we've measured it around there about four, four and a half feet. Page 246 October 16,2008 CHAIRMAN STRAIN: Okay, it's not -- COMMISSIONER SCHIFFER: Nine feet, eight, Mark. CHAIRMAN STRAIN: Okay, see where your eight feet goes? It goes -- MR. FERNANDEZ: Yes, sir. CHAIRMAN STRAIN: -- up past the two and a half. So the two and a half goes below. MR. FERNANDEZ: That's correct. CHAIRMAN STRAIN: So there's about a foot and a half then on top of that? MR. FERNANDEZ: Yeah, let's say nine and a half feet. And then the grade of where the sign is located is approximately four plus feet below the edge of the sidewalk and the pavement of Immokalee Road. CHAIRMAN STRAIN: Do you have a picture of the marquee sign that's already out there? MR. FERNANDEZ: No, sir, I do not. CHAIRMAN STRAIN: Is there a reason you're not on that sign? MR. FERNANDEZ: Yes, sir. We don't have the rights through the agreements to share in that sign. That sign is limited to the tenants that are actually in the tract that is part of the shopping center and not one of the tracts that is part of the condominium out-parcels, if I can call it that. CHAIRMAN STRAIN: Anybody else have any questions? (No response.) CHAIRMAN STRAIN: Okay, staffreport, please? MS. GUNDLACH: Good afternoon, Commissioners. I'm Nancy Gundlach, Principal Planner with Zoning and Land Development Review. And staff is recommending denial of this sign variance because it does not meet any of the evaluative criteria outlined in the LDC. There are opportunities currently existing on the building thato Page 247 October 16, 2008 the petitioner has not taken advantage of. They are allowed up to 150 square feet of wall signage. Currently there's about 55.4 square feet of wall signage. And as you mentioned earlier, there is a directory sign and that opportunity has not been taken advantage of. And in regards to the site planning of this site, this site, just to give you a little bit of a timeline, it's a relatively new development. It was developed in 2004. I do have the plans, a copy of the plans with me showing -- there's just a lot of hardships that have been self-created in terms it of locating a preserve on the west side of the subject building, and locating large canopy trees on the north side of the building, which fronts onto Immokalee Road. And it's important to note that this building is consistent with the PUD, it's set back 30 feet. And we also have an aerial that shows -- I've got aerials from the past three years. It shows when the landscape -- the required landscape buffer along Immokalee Road disappeared with the roadway widening. And I spoke to the project manager of the Immokalee Road widening project, and he said that they paid $113,000 for the right-of-way taking and losses associated with it. And I also have a copy of a landscape inspector's inspection report that states that the trees are to be planted, on one of his site visits. We're still waiting. And that was a couple of years ago. That was back in 2005. So to conclude, staff is recommending denial of this petition, and I am happy to answer any questions that you might have. CHAIRMAN STRAIN: Questions of staff? Mr. Schiffer? COMMISSIONER SCHIFFER: Nancy, one of the biggest problems is that had they instead of a condominium line drawn in the site, had that have been an actual property line, then this would have Page 248 October 16,2008 been considered an out-parcel; is that right? Or would they have other issues with buffering on that line? MS. GUNDLACH: In order -- the official interpretation elaborates on out-parcels. This -- it has been determined that this is not an out-parcel. There are certain parking requirements, architectural requirements and landscape requirements that an out-parcel site must meet, and this does not meet any of those. COMMISSIONER SCHIFFER: But when they drew the condominium line, is the parking that's required for this building within the condominium line? MS. GUNDLACH: I'm not sure about that. COMMISSIONER SCHIFFER: Okay. Okay, I can maybe ask the applicant later. Okay, thank you. CHAIRMAN STRAIN: Mr. Kolflat? COMMISSIONER KOLFLAT: Yeah, but isn't an official interpretation like an umpire's call? Ifhe says it's a ball, it's a ball, period. MS. GUNDLACH: I'm sorry, can you repeat that, Commissioner? CHAIRMAN STRAIN: Mr. Klatzkow can provide-- MR. KLATZKOW: They had the ability -- they structured this transaction because they did not want out-parcels, which would have had their own requirements in the LDC. Okay, so they structured it as a unified development. And now they're coming in here saying because we condo- ized it we should be treated as an out-parcel. If they wanted to be an out-parcel they should have created an out-parcel. They didn't. They could have appealed the decision. They didn't. Instead they're trying to back door the entire issue by going through this variance procedure. CHAIRMAN STRAIN: So Mr. Kolflat's question is if it's an 01, it stands. MR. KLATZKOW: It stands. Page 249 October 16, 2008 CHAIRMAN STRAIN: It stands unless it's appealed and the appeal succeeds. And in this is case it was not appealed. MR. KLATZKOW: It was not appealed. COMMISSIONER KOLFLAT: Thank you. CHAIRMAN STRAIN: Nancy, the reference in the pre-ap. concerning the street lighting that is unfulfilled, you've said that there's a buffer that's unfulfilled. The street lighting is also unfulfilled at this time? MS. GUNDLACH: I would have to confirm the street lighting. CHAIRMAN STRAIN: Okay. I just was reading it off the application that was provided to us, so -- Okay, any other questions of staff? (N 0 response.) CHAIRMAN STRAIN: Okay, I guess that's it, Nancy. Thank you. And there is no public speakers or there are public speakers? MR. BELLOWS: No public speakers. CHAIRMAN STRAIN: And Brad had a question of Mr. Fernandez. MR. FERNANDEZ: Yes, sir. COMMISSIONER SCHIFFER: Mike, the question I had is that, you know, there is a condominium line, you know, another imaginary line, as is a property line, I guess. Is all the parking for this building within that condominium line? MR. FERNANDEZ: Based on our quick analysis of looking at the building, it appears that it does meet the requirements for parking. In other words, we're allowed to subtract out the perimeter one foot around the edge for the wall thickness for parking. And by doing that, I think it gets us to that number, or we're within one or two would be the worst case scenario, depending on the thickness of the wall. And if that were the -- if we needed to, we could meet that requirement. There is a little green area that could be added too so that Page 250 October 16, 2008 essentially we could meet that requirement. COMMISSIONER SCHIFFER: And then the architectural standards that an out-parcel would have, where do you differ on this building? MR. FERNANDEZ: We started to do the analysis. We were actually encouraged by staff to instead of going that route to go through the interpretation route -- or not the interpretation but the variance route. And again, we're not here trying to, you know, appeal the out-parcel issue. We're basically -- that's why we're here for the variance. And we're basing it on hardship and public benefit. And we do think there's a significant benefit. We should probably be very close. If there's an area that may not meet it, it would be adjacent to the preserve area that's largely strained. Again, if you take a look to the site, it's well landscaped. It's a good-looking commercial building. One story. It sits there very nicely. Those people that try to find it have told our clients again and again that it's difficult to do. COMMISSIONER SCHIFFER: Thank you. CHAIRMAN STRAIN: Are there any other questions? (No response.) CHAIRMAN STRAIN: Mr. Fernandez, you want a few minutes to make any closing statements? MR. FERNANDEZ: Yes, sir. Again, you know, I don't think the issue here is the out-parcel one. There's criteria there. We analyzed it by the criteria. Staff hasn't acknowledged the issues of whether or not there is the preserve or whether -- which is I think one of the listed criteria or items that can be used for that. And then also the hardship of the additional taking that caused the differential in height that again adds to obscure the site. Page 251 October 16,2008 We would love to take advantage, if it were possible, to be on the directory sign. It's not something that we can avail ourselves of. So having said that, I think we've met the criteria for the hardship, we've met the criteria for approval, and we'd ask that you approve this. We haven't seen -- Nancy just mentioned that she has something from staff reviewer that they're still waiting on the landscaping. When we looked at the county records, we didn't find any. We've been talking to county staff, and this is the first we've heard of it. If that's the case, if there's requirements that need to be met, you know, those can be a condition of approval if they indeed are requirements that have not been previously waived or, you know, ones that we can control. CHAIRMAN STRAIN: Okay, no public speakers, we'll close the public hearing and we'll entertain a motion. Mr. Kolflat? COMMISSIONER KOLFLAT: Before I make a motion, I'd like to summarize a little of my thoughts on it. I've written it out so that it will move faster. LD Section 9.04.03(A-H) lists eight general guidelines and evaluative criteria to be followed by the CCPC and the BCC when considering a variance. In reviewing this petition relative to these guidelines, I find: There are no special conditions peculiar to the land or structure characteristics. There are no special circumstances such as preexisting conditions relative to the property. And a literal interpretation of the LDC will not work an unnecessary undue hardship on the applicant. A legal hardship exists only in those cases where the property is virtually unusable or incapable of yielding a reasonable return. And this is not the case. Furthermore, the variance will not be the minimum allowing reasonable use of land, building or structure since the permitted sign is Page 252 October 16,2008 three times as large as the existing actual sign. Granting the variance will confirm the applicant a special privilege denied to others. Granting the variance will not be in harmony with the intent and purpose of the LDC, which is to prevent the proliferation of signage. Continuing: There are no natural or physical induced conditions that ameliorate the goals and objectives of the regulations such as natural preserves, lakes, golf courses, et cetera. Although granting a variance would not be inconsistent with the Growth Management Plan, it would disregard the LDC general guidelines and evaluative criteria to be followed when considering a variance petition. The CCPC is charged to consider these eight guidelines and the evaluative criteria. Based on the preceding analysis, I believe we have no other choice than to recommend denial of this variance, and I would like to make a motion that we deny it. CHAIRMAN STRAIN: Are you making a motion to recommend denial based on the statement you just read into the record? COMMISSIONER KOLFLA T: Yes. CHAIRMAN STRAIN: Is there a second? COMMISSIONER HOMIAK: I'll second it. CHAIRMAN STRAIN: Motion made and seconded. Mr. Kolflat, I don't know, but in your prior life you must have been a judge or an attorney or something. COMMISSIONER KOLFLAT: No, but I've been in court. COMMISSIONER WOLFLEY: Holiday Inn Express. CHAIRMAN STRAIN: I couldn't have said it better. I agree with your findings. And that's my position on it. Ms. Caron? COMMISSIONER CARON: Yeah, I think unfortunately the Page 253 October 16,2008 County Attorney also made it very clear. CHAIRMAN STRAIN: Anybody else? (No response.) CHAIRMAN STRAIN: We'll call for the vote. All those in favor for the vote for recommending denial, signify by saying aye. COMMISSIONER SCHIFFER: Aye. COMMISSIONER KOLFLA T: Aye. COMMISSIONER HOMIAK: Aye. CHAIRMAN STRAIN: Aye. MR. WOLFLEY: Aye. COMMISSIONER CARON: Aye. COMMISSIONER VIGLIOTTI: Aye. CHAIRMAN STRAIN: Anybody opposed? (No response.) CHAIRMAN STRAIN: Motion carries 7-0. And with that, that concludes the regular items on the agenda today. And we will now -- old business was moved up front so we're done with that. Item #11 NEW BUSINESS New business. Is there any new business from the commission? (No response.) CHAIRMAN STRAIN: Hearing none-- COMMISSIONER KOLFLAT: Mr. Chairman? CHAIRMAN STRAIN: Yes, sir. COMMISSIONER KOLFLA T: Under old business, has there been any indication as what date we'll here the Grande Resort sign Page 254 October 16,2008 variance petition? CHAIRMAN STRAIN: Possibly -- it shows on here continued-- when this was continued, I asked staff, they said possibly November 6th. It depends on when they get the advertising and the sign up and things like that. COMMISSIONER KOLFLAT: Okay. COMMISSIONER SCHIFFER: And aren't they going to resubmit some drawings showing the new locations and stuff? CHAIRMAN STRAIN: They should. COMMISSIONER SCHIFFER: I got nothing in my packet. CHAIRMAN STRAIN: That's probably the reason it wasn't ready to go. MR. BELLOWS: That's correct. CHAIRMAN STRAIN: Okay, hearing nothing else, is there a motion to adjourn? COMMISSIONER VIGLIOTTI: So moved. COMMISSIONER WOLFLEY: Second. CHAIRMAN STRAIN: Motion made by Mr. Vigliotti, seconded by Mr. Wolfley. All in favor, signify by saying aye. COMMISSIONER SCHIFFER: Aye. COMMISSIONER HOMIAK: Aye. COMMISSIONER KOLFLAT: Aye. CHAIRMAN STRAIN: Aye. MR. WOLFLEY: Aye. COMMISSIONER CARON: Aye. COMMISSIONER VIGLIOTTI: Aye. CHAIRMAN STRAIN: Anybody opposed? (No response.) CHAIRMAN STRAIN: We are adjourned. Page 255 October 16, 2008 ***** There being no further business for the good of the County, the meeting was adjourned by order of the Chair at 5:35 p.m. COLLIER COUNTY PLANNING COMMISSION MARK STRAIN, Chairman These minutes approved by the Board on as presented or as corrected , Transcript prepared on behalf of Gregory Reporting Service, Inc., by Cherie' R. Nottingham. Page 256