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CCPC Minutes 11/06/2008 R November 6, 2008 TRANSCRIPT OF THE MEETING OF THE COLLIER COUNTY PLANNING COMMISSION Naples, Florida November 6, 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 1. Wolfley ALSO PRESENT: Jeffrey Klatzkow, County Attorney Joseph Schmitt, CDES Administrator 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, NOVEMBER 6, 2008, IN THE BOARD OF COUNTY COMMISSIONERS MEETING ROOM, ADMINISTRATION BUILDING, COUNTY GOVERNMENT CENTER, 330 I T AMIAMI TRAIL EAST, NAPLES, FLORIDA: NOTE: INDIVIDUAL SPEAKERS WILL BE LIMITED TO 5 MINUTES ON ANY ITEM. INDIVIDUALS SELECTED TO SPEAK ON BEHALF OF AN ORGANIZATION OR GROUP ARE ENCOURAGED AND MAY BE ALLOTTED 10 MINUTES TO SPEAK ON AN ITEM IF SO RECOGNIZED BY THE CHAIRMAN. PERSONS WISHING TO HAVE WRITTEN OR GRAPHIC MATERIALS INCLUDED IN THE CCPC AGENDA PACKETS MUST SUBMIT SAID MATERIAL A MINIMUM OF 10 DAYS PRIOR TO THE RESPECTIVE PUBLIC HEARING. IN ANY CASE, WRITTEN MATERIALS INTENDED TO BE CONSIDERED BY THE CCPC SHALL BE SUBMITTED TO THE APPROPRIATE COUNTY STAFF A MINIMUM OF SEVEN DAYS PRIOR TO THE PUBLIC HEARING. ALL MATERIAL USED IN PRESENTATIONS BEFORE THE CCPC WILL BECOME A PERMANENT PART OF THE RECORD AND WILL BE AVAILABLE FOR PRESENTATION TO THE BOARD OF COUNTY COMMISSIONERS IF APPLICABLE. ANY PERSON WHO DECIDES TO APPEAL A DECISION OF THE CCPC WILL NEED A RECORD OF THE PROCEEDINGS 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 - SEPTEMBER 18,2008, REGULAR MEETING 6. BCC REPORT- RECAPS - SEPTEMBER 23, 2008, REGULAR MEETING 7. CHAIRMAN'S REPORT 8. CONSENT AGENDA ITEMS A. Petition: CU-2006-AR-II046, VI Ltd. Limited Partnership, represented by Richard Yovanovich of Goodlette, Coleman, Johnson Y ovanovich & 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'" acres, is located at 11125 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 DeseIem, AICP) B. Petition: CU-2007-AR-I2619, 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 I I, Township 49 South, Range 25 East, Collier County, Florida. (Coordinator: John-David Moss, AICP) 1 9. ADVERTISED PUBLIC HEARINGS A. Petition: PUDZ-2007-AR-12097, The Covenant Presbyterian Church of Naples, Inc. and Florida Community Bank, Inc., represented by Michael R. Fernandez, AICP of Planning Development, Inc., are requesting a rezone from the Residential Single-family (RSF-l) Zoning District to the Community Facilities Planned Unit Development (CFPUD) Zoning District for a project to be known as Heavenly CFPUD, which would memorialize the existing church uses and would permit redevelopment consistent with a master site plan to a maximum of 100,000 square feet of houses of worship, children and adult day cares, a Pre-K through 3,d grade school, and various accessory uses; and an additional 20,000 square feet of children and adult day cares, Pre-K through 3rd grade school and accessory uses contingent upon Conditional Use approval. The 15.93-acre subject property is located at 6926 Trail Boulevard, and comprises the entire block bounded by Ridge Drive, West Street, Myrtle Road and Trail Boulevard in Section 3, Township 49 South, Range 25 East of Collier County, Florida. (Coordinator: John-David Moss, AICP) CONTINUED FROM 10/2/08 B. 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 (loDe) Section 5.06.04 c.1., which requires a minimum separation of 1,000 lineal feet between signs, to allow a sign separation of 66", feet, 40"' feet, 156cl feet, 66", feet,71+ feet, and 96", feet. The seventh Variance is from LDC Section 5.06.04 C.I., 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 C. Petition: BD-2008-AR-13305, Peter D. Donahue, represented by Ben Nelson, Jr. of Nelson Marine Construction, Jnc., is requesting the addition of a boatlift to slip number one in an existing 24-slip dock facility that protrudes 44 feet and six inches into the waterway. Proposed change includes adding a boatlift, extending it approximately J 0 feet further into the water for a total distance of approximately 54 feet and six inches from the mean high waterline (MHW). The subject property is located at 4895 Bonita Beach Road in Hickory Bay West, a condominium, in Section 5, Township 48 South, Range 25 East, Collier County, Florida. (Coordinator: Ashley Caserta) D. Petition: PUDA-2008-AR-13494, Kite Kings Lake, LLC, represented by D. Wayne Arnold, AICP, of Q. Grady Minor and Associates, P.A. and Richard D. Y ovanovich, Esq., of Goodlette, Coleman, Johnson, Y ovanovich and Koester, is requesting a PUD Amendment to modify the permitted commercial uses within the Kings Lake PUD (Ordinance No. 82-52). The 9.63-acre subject property is located at 4890 Davis Boulevard, in Section 7, Township 50 South, Range 26 East, Collier County, Florida. (Coordinator: John- David Moss, AICP) 10. OLD BUSINESS A. To have the Collier County Planning Commission (CCPe) review and consider two proposed ordinances as follows: I. 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: .IeffKlatzkow, County Attorney; Jeff Wright, Assistant County Attorney) II. NEW BUSINESS 12. PUBLIC COMMENT ITEM 13. DISCUSSION OF ADDENDA 14. ADJOURN 11/6/08 cepe AgendalRB/sp 2 November 6, 2008 CHAIRMAN STRAIN: Good morning, everyone. Welcome to the November 6th meeting of the Collier County Planning Commission. If you'll all please rise for the pledge of allegiance. (Pledge of Allegiance was recited in unison.) Item #2 ROLL CALL BY SECRETARY CHAIRMAN STRAIN: Okay, roll call by our secretary. COMMISSIONER VIGLIOTTI: Mr. Thomas Eastman? MR. EASTMAN: Here. COMMISSIONER VIGLIOTTI: Tor Kolflat? COMMISSIONER KOLFLA T: Here. COMMISSIONER VIGLIOTTI: Brad Schiffer? COMMISSIONER SCHIFFER: I'm here. COMMISSIONER VIGLIOTTI: Mr. Midney? COMMISSIONER MIDNEY: Here. COMMISSIONER VIGLIOTTI: Good morning. COMMISSIONER MIDNEY: Thank you. COMMISSIONER VIGLIOTTI: Donna Caron? COMMISSIONER CARON: Present. COMMISSIONER VIGLIOTTI: Commissioner Strain? CHAIRMAN STRAIN: What, I don't get a good morning? But I'm here. COMMISSIONER VIGLIOTTI: Good morning to you. I said good morning to you before. CHAIRMAN STRAIN: Boy, Paul is the only one that gets good morning during that. COMMISSIONER VIGLIOTTI: Commissioner Murray? COMMISSIONER MURRAY: Here. Page 2 November 6, 2008 COMMISSIONER VIGLIOTTI: Commissioner Wolfley? COMMISSIONER WOLFLEY: Here. COMMISSIONER VIGLIOTTI: And Commissioner Homiak? COMMISSIONER HOMIAK: Here. CHAIRMAN STRAIN: Threw you off, didn't I? COMMISSIONER VIGLIOTTI: Yeah, you did. I just lost my whole train of thought right there. Item #3 ADDENDA TO THE AGENDA CHAIRMAN STRAIN: Okay, addenda to the agenda. We have our bimonthly continuation of the Heavenly PUD again. So I think this is the third or fourth time. But if anybody's here for the Heavenly PUD, which is in Pine Ridge, it is being continued until -- December 4th was what was in our request to continue. So it should be at least that time, if not later. So if anybody's here for that matter, it will not be heard today. Item #4 PLANNING COMMISSION ABSENCES While we're on the agenda -- well, let's go to the planning commission absences, and we'll discuss some upcoming meetings. We have comprehensive staff here today to ask us about some dates in January and February to review the CIE and the 10-year water facilities plan. And Randy, or whoever's going to do it, I don't know who's representing compo planning to discuss this issue, but you wanted to be first up, you are. So -- and your guy's not here. But it's pretty straightforward. They're looking at dates for January 16th and Page 3 November 6, 2008 January 20th in the afternoons only in this room. And then makeup dates if need be on January 29th or February 3rd. And I need to ask the commission if they have any preferences or time frames or conflicts on those dates. (No response.) CHAIRMAN STRAIN: And the 16th and the 20th of January in this room -- well, the 16th is a Friday, the 20th is a Tuesday. They will start in the afternoon, so I would assume sometime between 12:00 and 1 :00, 12:00 or 1 :00, whatever we set, we'll go from there. MR. SCHMITT: We would have the room after 12:00, so we could start at like 12:30, whatever time you want to start. CHAIRMAN STRAIN: I would suggest, if there's no conflicts from the planning commission, we just nail it for the 16th and 20th, both afternoons, and get it done. It may not take both, but if we have both reserved, we shouldn't need more than two afternoons to do it in. MR. SCHMITT: Note that your regular meeting is on the 15th of January. That's -- and I believe we have six petitions scheduled for the 15th of January. And then you'll meet on the 16th. The 20th was an alternate date. Again, that was just the afternoon. But the intent was to meet on the 16th. That way we would have it ready to bring back to you for your regular meeting on the 5th as part of the summary agenda. CHAIRMAN STRAIN: Well, you know, in the other alternative, instead of the 16th, which is the day after our regular meeting, if we did -- if the first meeting we had was scheduled for the 20th in the afternoon, if we needed a carryover, we could do the 29th. Neither one of those weeks we have another meeting scheduled. That might make it easier to -- MR. SCHMITT: Martin Luther King holiday, just so you know, is the 19th. So ifanybody's planning any type oflong weekend, the 19th is a holiday. CHAIRMAN STRAIN: Well, it gives them more time to read Page 4 November 6, 2008 the document then. MR. SCHMITT: David, was the 20th one of the dates available? Was that a -- yeah. CHAIRMAN STRAIN: 20th and 29th are both available in the afternoons. MR. SCHMITT: 29th becomes very difficult for us to get something back to you in summary for the 5th, because those books are going out -- normally on the 27th or 28th we're sending you documents for the consent -- well, for the consent agenda on your regular meeting on the 5th of February. So the 20th would be -- would be the preferable date. Actually the preferable date would be the 16th, but we'll take the 20th, if that's what you'd prefer. CHAIRMAN STRAIN: I don't mind the 16th and the 20th as a backup to the 16th. But I'm not sure how the rest of you all feel about how much reading we may have. Now, there's six items scheduled for the agenda on the 15th, from what we're told. MR. SCHMITT: Yes. CHAIRMAN STRAIN: But at this far in advance, six usually don't hang in there. MR. SCHMITT: That's correct. CHAIRMAN STRAIN: We might get down to two. MR. SCHMITT: That's correct. CHAIRMAN STRAIN: What is the feeling of the panel? COMMISSIONER CARON: I'm good with the 16th and the 20th. CHAIRMAN STRAIN: Is everybody else okay? COMMISSIONER WOLFLEY: Yes. COMMISSIONER VIGLIOTTI: Yeah, I think it's best to -- CHAIRMAN STRAIN: Okay, well, let's do it the 16th and 20th, Randy. Page 5 November 6, 2008 MR. COHEN: Thank you. CHAIRMAN STRAIN: Would you send out confirmation e-mails and time to start? MR. SCHMITT: Yeah. And we'll have the advertisement done for those -- for the date. The 16th is the primary, and then of course you could always continue it to the 20th. COMMISSIONER KOLFLA T: Mark, what is the time on the 16th and 20th? CHAIRMAN STRAIN: Well, they would start after 12:30. 12:30 or 1:00, Tor, whatever staff feels is the appropriate time to start we'll make that happen. MR. COHEN: We will send out the confirmation e-mails, and we appreciate your consideration early on this morning. Thank you. CHAIRMAN STRAIN: Okay, thank you, sir. MR. SCHMITT: Those are the only dates of availability of this room. Otherwise we'd be back over at Horseshoe sometime and-- CHAIRMAN STRAIN: No, those dates work. We're good to go on those dates. Okay, the next meeting of the planning commission is on the 20th of this month. That would be our regular meeting. Does anybody know of any conflicts they may have where they may not be here? (No response.) CHAIRMAN STRAIN: Okay, good. Item #5 APPROVAL OF MINUTES - SEPTEMBER 18,2008, REGULAR MEETING CHAIRMAN STRAIN: With that, we will move on from planning commission absences to approval of minutes of September 18th at the regular meeting. Page 6 November 6, 2008 Is there a motion to approve? COMMISSIONER VIGLIOTTI: So moved. COMMISSIONER CARON: Second. CHAIRMAN STRAIN: Motion made by Commissioner Vigliotti, seconded by Commissioner Caron. Comment? (No response.) CHAIRMAN STRAIN: All in favor, signify by saying aye. COMMISSIONER SCHIFFER: Aye. COMMISSIONER MURRAY: Aye. COMMISSIONER HOMIAK: Aye. COMMISSIONER KOLFLAT: Aye. COMMISSIONER MIDNEY: Aye. CHAIRMAN STRAIN: Aye. MR. WOLFLEY: Aye. COMMISSIONER CARON: Aye. COMMISSIONER VIGLIOTTI: Aye. CHAIRMAN STRAIN: Anybody opposed? (No response.) CHAIRMAN STRAIN: Motion carries. Item #6 BCC REPORT - RECAPS - SEPTEMBER 23, 2008, REGULAR MEETING CHAIRMAN STRAIN: Ray, do you have a BCC report? MR. BELLOWS: Yes. The Board of County Commissioners heard the conditional use for the public facilities adjacent to the Moraya development. That was approved by the Board of Zoning Appeals by a 5-0 vote. The board also heard a PUD rezone for the North Church -- or Page 7 November 6, 2008 the Naples Church of Christ mixed use planned unit development -- MR. SCHMITT: That Moraya Bay was not approved. It was approved to continue it. MR. BELLOWS: Oh. Motion to -- yes, it was -- sorry. CHAIRMAN STRAIN: That's a minor technicality. MR. SCHMITT: Minor technicality. It was a motion to continue that item. It will be heard at the December meeting, along with the other two petitions associated with that. It will be -- at the December 2nd BCC will be the Moraya Bay conditional use for the restroom, conditional use for the -- or the variance for the trellis and the conditional use for the beach club. All three will be heard at that meeting. At least tentatively scheduled. Just correcting you, Ray. MR. BELLOWS: Yeah, thank you. The North Naples Church of Christ mixed use PUD, that was approved, and it has an Ordinance No. 08-62, so I know it wasn't continued. And that was approved 5-0. CHAIRMAN STRAIN: Thank you, sir. Item #7 CHAIRMAN'S REPORT CHAIRMAN STRAIN: Okay, chairman's report. I have two items. The first one I want to mention is we have a young man in the audience today auditing our planning commission, or reviewing it to make sure we stay on track. And I think the gentleman's name is Jeff O'Donnell? MR. DONAHUE: Jamie Donahue. CHAIRMAN STRAIN: Jamie Donahue. Well, I was close. I had the J and D right. Welcome, and I hope we entertain you today. We'll try. Page 8 November 6, 2008 The second item I have to discuss is some paperwork that we've all received concerning the RLSA cancellation of the meeting. Now, as you all know, there was a Phase II report scheduled to be discussed by this board on December 1 st. The Phase II report followed the Phase I report that we heard on May 1st of2008. And if you recall, during that meeting very clearly we asked numerous times of the applicant -- or not the applicant, I'm sorry, the chairman of that group, as well as comprehensive planning about a series of questions that we had. And I know Ms. Caron had specific questions, I had specific questions, Mr. Murray I think did, and others had. They were given nine pages, I believe, of questions during that meeting. And it was very clear that we wanted those questions answered as part of their Phase II report. And we even asked the Board of County Commissioners to stipulate such, which was done. Last week the RLSA committee voted to combine the Phase II report with the Growth Management Plan amendments into one event and go straight first to the BCC and then supposedly back to us. The downside of that is if you've taken a Phase II report, which according to their management plan was supposed to have very specific narratives and discussions, and combine them automatically into the finished product of the Growth Management Plan, you're really not getting the benefit of a -- at least in my opinion, the benefit of an open discourse in response to our questions. You're basically going to have the questions answered by what they believe are the GMP results. I didn't anticipate it coming this way. When we were -- when they were before us, in fact, at that meeting I'll read something that was said. Chairman Strain: The point I was trying to make with my question was now that we've got the committee and the committee has accepted the fact they're going to try to respond to the questions that Page 9 November 6, 2008 we imposed by these groups and myself, I wanted to make sure that you guys didn't get close to the end and say, you know, darn it, we just don't have time. It's important that everything gets addressed is what I'm trying to say. Now, we predicted it. They assured us. And the response from staff and from them was that they would come back to us. And last week they voted, from what I understand, to change the process. It is going to go to the BCC I guess with their request. I'm relaying all this information to you so that if you have any need to discuss this with the commissioners that have appointed you, you certainly feel the -- you might have some more of the background to do so. I know their effort is to expedite the process. I'm not sure in these times why we need to do that. And I think the problems that we've all seen on this board was from expediting the original Growth Management Plan for Collier County back in '89 when it shouldn't have been. So that's my thoughts on it. You have paperwork from other people. I know two commissioners that would like to speak, Ms. Caron, then Mr. Wolfley. COMMISSIONER CARON: Yeah, I just wanted to comment that I was the one that made the motion that we receive and accept that Phase I report. But it was with -- specifically with the stipulation that the nine pages of questions submitted by at the time Commissioner Strain and Ms. Ryan from The Conservancy be addressed in the Phase II presentation before this body. And Mr. Hamel, as well as Mr. Greenwood, all assured us and agreed that it would be coming back, the Phase II report would be coming back to us for a thorough review. And I would just like to suggest that we may formally have you as the chairman write a letter to the BCC stating that we prefer to have it come back -- Page 10 November 6, 2008 COMMISSIONER MURRAY: I'll second that. COMMISSIONER CARON: -- as we were assured. COMMISSIONER MURRAY: I second that. CHAIRMAN STRAIN: Before we have a motion and a second, I wanted to finish with, though, the panel discussion. And Mr. Wolfley, did you have a comment you wanted to make? COMMISSIONER WOLFLEY: Yeah. I had passed out some information that you may not have had. CHAIRMAN STRAIN: Did Cherie' get copies? COMMISSIONER WOLFLEY: It's right here. I haven't gotten down there yet. Mr. Klatzkow may have one, you guys can have one. As you know, I'm on the RLSA committee. And I just want to assure you that there was a dissenting vote for that directly to the BCC. And we can probably imagine who that would be. And it's opened my eyes to this process, more so than even the planning commission, because it's -- you know, you can see how these things can get railroaded and jammed forward without the knowledge of and reasoning why. And it's -- hopefully with the material that I passed out, you'll see the reasoning, and you'll see some of the backup and why this happened. But I'm in full agreement with -- I think that Mr. Strain ought to -- Chairman Strain ought to send a message to the BCC. I know I'm going to be talking to my commissioner, and I hope everybody here talks to their commissioner. Thank you. CHAIRMAN STRAIN: Thank you. And I did talk with Al Reynolds, because he was the individual who initiated this consent with the RLSA. His point to me was that the Phase II report in their eyes -- or his eyes, maybe; I don't know if he was speaking for the whole group -- was to be now the rewrite of the GMP. I expressed to him that that's a little bit putting the cart before the Page 11 November 6, 2008 horse, because the public ought to have the right to respond to the narrative and the concepts of the RLSA and how that has developed over the last five years first, before we go right in to writing rules. Because if you jump to the second step, it's almost like acknowledging the first step is an agreeable point. And I think that discourse needs to happen before the second step does. And I expressed that to him, so we're in disagreement on that point. Go ahead, Mr. Schmitt. MR. SCHMITT: Can I put on the record for clarification, Mr. Greenwood is the staff liaison to that committee. That committee was a board appointed committee. The staff provides logistics and administrative support, logistic administrative support to that committee. The committee is a board committee, and we will -- we take direction based on the committee's vote. And we will take that to the Board of County Commissioners in an executive summary. And certainly then the Board of County Commissioners can so direct to do with what they want to with both the report or any of the comments. But it's not my place to circumvent the authority of that committee. And I just want to make sure you understand that staff is reactive in this role and it's not that we don't have any responsibility or authority from -- or I'll say responsibility, but authority in steering that committee one way or the other. And as David knows, it was a vote of the committee and all we're doing is responding to the vote. CHAIRMAN STRAIN: Thank you very much, sir, we appreciate it. With that, there's been a motion made by Ms. Caron, seconded by Mr. Murray that the chairman write a letter to the Board of County Commissioners expressing our concerns over this alternative process, which I will certainly do if the committee wishes that. All in favor of that motion, signify by saying aye. Page 12 November 6, 2008 COMMISSIONER SCHIFFER: Aye. COMMISSIONER MURRAY: Aye. COMMISSIONER HOMIAK: Aye. COMMISSIONER KOLFLAT: Aye. COMMISSIONER MIDNEY: Aye. CHAIRMAN STRAIN: Aye. MR. WOLFLEY: Aye. COMMISSIONER CARON: Aye. COMMISSIONER VIGLIOTTI: Aye. CHAIRMAN STRAIN: Anybody opposed? (No response.) CHAIRMAN STRAIN: Motion carries, 9-0. Item #8A PETITION: CU-2006-AR-II046, MORAY A BAY BEACH CLUB CHAIRMAN STRAIN: Okay, on to bigger and better things. The consent agenda items. We have two of them on today's agenda. First one is Petition CU-2006-AR-II046. It's the VI Limited Partnership for the Moraya Bay Beach Club. Any comments on the consent document that's been submitted for our approval? COMMISSIONER MURRAY: Yes. CHAIRMAN STRAIN: Mr. Murray? COMMISSIONER MURRAY: I can't comment on the document per se, but in terms of a vote, I was not present for the conclusion of the meeting, I missed a number of bits of information, so I would ask the County Attorney to confirm that I believe that I'm not able to vote in this matter. MR. KLATZKOW: That's correct, sir. CHAIRMAN STRAIN: Okay, are there any comments on the Page 13 November 6, 2008 document itself? (No response.) CHAIRMAN STRAIN: It was a tie vote at the time. It's going forward with the documentation indicating that -- our preference on that. So I don't know if anything else should be done. If there's no comments, is there a motion to recommend approval of that item on the consent agenda? COMMISSIONER WOLFLEY: So moved. CHAIRMAN STRAIN: Mr. Wolfley made the motion. Seconded by? COMMISSIONER VIGLIOTTI: Second. CHAIRMAN STRAIN: Mr. Vigliotti. Is there any comments? (No response.) CHAIRMAN STRAIN: All those in favor signify by saying aye. COMMISSIONER SCHIFFER: Aye. COMMISSIONER HOMIAK: Aye. COMMISSIONER KOLFLAT: Aye. COMMISSIONER MIDNEY: Aye. CHAIRMAN STRAIN: Aye. MR. WOLFLEY: Aye. COMMISSIONER CARON: Aye. COMMISSIONER VIGLIOTTI: Aye. CHAIRMAN STRAIN: Anybody opposed? (No response.) CHAIRMAN STRAIN: Motion carries. And show Mr. Murray abstained. 8-0. COMMISSIONER MURRAY: However, I would have made one point, that had I voted, I probably would have voted in favor. Item #8B Page 14 November 6, 2008 PETITION: CU-2007-AR-12619, K.O.V.A.c. ENTERPRISES CHAIRMAN STRAIN: Okay. Petition CU-2007-AR-12619, K.O.V.A.c. Enterprises is the next item on the consent agenda. Are there any comments from the planning commission on this particular item? COMMISSIONER MURRAY: Same thing, sir. CHAIRMAN STRAIN: Mr. Murray will be abstaining for the -- COMMISSIONER MURRAY: Yes. CHAIRMAN STRAIN: -- same reason that he previously abstained. Although we may get a dissertation afterwards, I'm not sure. COMMISSIONER MIDNEY: I wasn't here for the vote either. CHAIRMAN STRAIN: Mr. Midney wasn't here for the vote, so we have two abstentions that will occur. And I have mentioned to staff, there are two issues that I wanted to make sure were clarified. And I know 1.D.'s here, so why don't we start addressing number seven and number eight. Number seven in the development conditions talks about the southern buffer that was supposed to be more lush planting material in order to really provide a buffer to the businesses to the south. If you recall, we moved the preserve area -- which really was a needless exercise to have a preserve in the middle of the industrial park -- to the south part of the site, have it combined in a green space area in which more vegetation could be planted to provide a better buffer for noise and dust and everything else. And that seemed to go over well with the people that were here that day as well. I'm worried that seven doesn't get us here. And for the record, I'd like to know if there's any way of clarifying it. MR. MOSS: Sure. For the record, John-David Moss, Department of Zoning and Land Development Review. I spoke with the county landscape architect about this, and we've Page 15 November 6, 2008 revised the language. The second sentence in number seven, after where it says abutting uses, period. The next sentence where, make that a small "W", so this will be a continuation of this sentence. Where this buffer. And then we're going to delete intersects with the .37-acre preserve, planting shall be native species and. We're going to delete all of that. And so the provision will read, where this buffer shall not count towards those plantings required to recreate the preserve. That way the buffer will be separate from the preserve. And that was his main concern as the viability of that preserve. Because of all the dust that's going to be traveling, he thought that it would better to have the Type B buffer separate from the preserves, because that's actually what's going to capture the dust passing to those commercial uses to the south of the operation. CHAIRMAN STRAIN: Okay, but now let's -- if we look at the plan, that creative preserve area in the south, you're saying that the landscaping material does not count towards the plantings required to recreate the preserve. Yet they're still going to be required to recreate the preserve. MR. MOSS: They're going to be required to recreate the preserve. But the problem with Exhibit C, when it was revised, they located the preserve on top of the Type B buffer. And those really shouldn't intersect at all, they should be two separate areas. CHAIRMAN STRAIN: Okay, but if you -- the concern was a recreative preserve does not provide a lot of -- it could be very sparse. That doesn't help the residents -- MR. MOSS: That's right. CHAIRMAN STRAIN: -- the business to the south. So how is relieving the language in there that you're going to have to recreate an area specifically as a preserve help? MR. MOSS: Well, the preserve is just going to satisfy the Page 16 November 6, 2008 requirement of environmental staff. The Type B buffer is going to satisfy the concerns of the residents that dust will not be able to travel on their properties. The landscape architect felt that the Type B buffer was going to be the most effective barrier between the uses and that the preserve should be planted in that location to assist with screening out windborne materials, but it's not going to provide the same sort of protection that a Type B buffer would. CHAIRMAN STRAIN: I had thought that this area -- the idea of recreating a preserve in an industrial park that never had one there in the first place doesn't make a lot of sense. And it was acknowledged there are no endangered species living -- MR. MOSS: That's right. CHAIRMAN STRAIN: -- in that industrial park. So I'm not sure why we're putting a member of the public through this effort when all we're really trying to accomplish is more vegetation for both dust, debris and noise blowing from the property onto the properties to the south. Why are we still focusing on this idea that we got to create a preserve? Because now you're talking various strata and species of plant material that is really incompatible with that area. There's no need for it. Where's the practical point there? MR. MOSS: It was just to fulfill a requirement of environment. From my position, the Type B buffer is really what's going to prevent dust from traveling onto those sites south of the property. And that was my concern. Again, it was environmental services that have LDC criteria requiring a preserve to be recreated on the site. And according to your recommendation at the last hearing, it was better to put it there so that it could assist somewhat with the dust. CHAIRMAN STRAIN: Does anybody else on the panel have any recollection of the direction? Page 17 November 6, 2008 COMMISSIONER CARON: Well, I just know it's a requirement. We moved it so that it would be helpful. And we all acknowledged that the buffer was the most important part of it. But yeah, they are required to recreate that preserve. CHAIRMAN STRAIN: I think it's kind of hard to fix it at this meeting, but your language is better than what was there, so I guess we should go with it. Although I wish I had understood the intent more at the time we discussed it. Because I see honestly absolutely no reason to recreate a preserve in an industrial park, especially one of .37 acres. MR. MOSS: Right. CHAIRMAN STRAIN: It does nobody any good but spend money. Ms. Caron? COMMISSIONER CARON: You know, I wish we had the transcript so that we could refer back to it in discussion, and we don't have that yet. CHAIRMAN STRAIN: Well, on -- COMMISSIONER CARON: I don't believe. CHAIRMAN STRAIN: Mr. Hancock, you're the representative of the applicant at the time. Would you mind -- do you have any problem with the language that's being put forth by staff as a correction to number seven? MR. HANCOCK: W e'lllive with it. But I don't think it's consistent with the discussion that we had. And what we talked about at the meeting was to -- and I'm sorry, for the record, Tim Hancock with Davidson Engineering. What we had talked about is instead of recreating a preserve of three strata, which doesn't make a lot of sense, was that we'd focus on the upper and midstory -- CHAIRMAN STRAIN: Right. MR. HANCOCK: -- within the preserve, which would have the Page 18 November 6, 2008 greater effect. And now what we're doing is we're saying -- and we agreed to the Type B buffer within -- you know, in that same area. So we'd have a Type B buffer and then the balance of the preserve would be focused on midstory and upper story plantings instead of groundcover to have the effect that was desired. What we're now doing is we're actually asking for a .37 -acre preserve outside of the buffer, which is actually more land for something that everyone felt didn't make a lot of sense to start with. My suggestion as a cleanup to this would be that in addition to a required Type B buffer that the balance of the creative preserve area focus on midstory and upper story vegetation to achieve the desired buffering effect. I believe that is 100 percent consistent with the direction of the planning commission at our prior hearing. CHAIRMAN STRAIN: I agree with you, that certainly seems more in line with what I recall. And I appreciate you reiterating that to us. I would like to get this language redone correctly. Let me see if there's any objections to that. I think what you're proposing sounds reasonable. Go ahead, J.D., did you have something else to add? MR. MOSS: I do. I just wanted to say Susan Mason is here and she just wanted to let you all know of the requirements in the LDC of these recreated preserves, which she feels might conflict with what's being recommended. MS. MASON: Good morning. For the record, Susan Mason with Environmental Services. I'm not sure it would really conflict, I just wanted you all to understand that recreative preserves have a larger plant material requirement than landscaping requirements. The trees have to be a minimum of 14 foot in height. And spacing may be different. I don't know what the spacing is in a Type D buffer. Page 19 November 6, 2008 It's to be planted naturally. And it's larger midstory plants with very close spacing, and also understory plants. And from my conversations with landscape reviewers, they said that it's actually much more dense than most buffers are as far as landscaping. I can't really answer the specific details, but it is larger plant material than the landscape code normally requires, and it is rather dense planting, too. CHAIRMAN STRAIN: Are slash pines considered something you could put in a recreative preserve? MS. MASON: Yes. It has to be a native vegetation that's appropriate to the site where whatever the elevation, final elevation is going to be, and it does have to be a native vegetation. CHAIRMAN STRAIN: So they could go out and buy buckets of slash pine and put them in the ground. MS. MASON: That would be something that would be accepted by environmental staff. CHAIRMAN STRAIN: Right. And that doesn't provide any buffer at all. And that's the concern. I would rather see us put midstory and upper story canopy trees as suggested by the applicant to a point that we have a better buffer in an area that's more practical for a buffer than a recreative preserve. So I'm still in favor of suggesting that we provide the language as suggested. MR. MOSS: Mr. Hancock suggested that he and I get together and work on this language and maybe bring it back to you in a half hour's time, if that's okay? CHAIRMAN STRAIN: That's fine. We have to wait for a break between one of the other cases, but -- MR. MOSS: Perfect. CHAIRMAN STRAIN: -- that would be better. And we have one other point to discuss. I know this is just a clarification. On number eight it says the first 250 of the site's entrance Page 20 November 6, 2008 drive shall be paved. I went back and checked my notes and in two different locations I show the number 150. It doesn't -- I don't think it's a big deal, but I want to make sure that if it's supposed to be 150 and that was the motion, that that's what we put there. But I don't know if that got changed in discussion. Did you review the tape? MR. MOSS: I tried to review the tape. Unfortunately the complete hearing is not uploaded. But I did speak with Mr. Hancock about it, and that was his recollection as well, that it was 150. So that is a typo there. It should be the first 150 feet in number eight. COMMISSIONER CARON: I think we can easily just take a measure of the throat, because that's what it's supposed to be. Whatever that measurement is, whether it's 150 or 250, it's whatever the throat is -- MR. MOSS: That's right. COMMISSIONER CARON: -- is what we agreed on. CHAIRMAN STRAIN: Would you guys check that during your time and -- MR. MOSS: We sure will. CHAIRMAN STRAIN: -- then when you come back between, we'll clean it up. Okay. COMMISSIONER SCHIFFER: Mark, on that point. CHAIRMAN STRAIN: Mr. Schiffer? COMMISSIONER SCHIFFER: Yeah, David, also bring back what's the distance of the adjoining property along that roadway. Because the intent was to pave at least that distance. MR. MOSS: Okay. COMMISSIONER SCHIFFER: All right, thank you. Item #9B Page 21 November 6, 2008 PETITION: SV-2008-AR-13374, NAPLES GRANDE BEACH RESORT CHAIRMAN STRAIN: Okay, thank you. And with that, we'll come back and visit that one in a little while. In the meantime, we'll move on with our regular hearing. The first one that was supposed to be up today, and again, I'll repeat, the Covenant Presbyterian Church, also known as the Heavenly CFPUD on Pine Ridge Road (sic) has been continued to at the earliest would be December 4th or later. So if you're here for that one today, that will not be heard. We'll be moving straight into Item 9(B), which is the Petition SV-2008-AR-13374, the Naples Grande Beach Resort, requesting seven variances for signage issues. This was continued from October 2nd to today. All those wishing to testify on behalf of this item, please rise to be sworn in by the court reporter. (Speakers were duly sworn.) CHAIRMAN STRAIN: Are there disclosures on the part of planning commission? COMMISSIONER VIGLIOTTI: Yes, I do. My son works for a company, a vendor that supplies services to the hotel, but this does not affect him in any way, shape or form, nor would it affect my opinion of voting on this matter. CHAIRMAN STRAIN: Anybody else? (No response.) CHAIRMAN STRAIN: Okay, is there a presentation by the applicant? MR. HANSEN: Good morning. For the record, Hunter Hansen, Managing Director of the Naples Grande Beach Resort. And Mr. Chairman and Commissioners, thank you for hearing me today. You'll see that I don't have my graphic in front of me. J.D., maybe you can help with that graphic. Maybe we can -- this will help. Page 22 November 6, 2008 I don't know how to use the equipment very well, so you can guide us through this a little bit. We're looking at two different issues. I'll start with the first, the fairly simple one. A little bit of background. Before the name change and change of ownership, the name of the resort was The Registry Resort. There was a large "R" on the east facing side of the building that could be seen for miles. There were also small letter "r"s on the columns that are flanking the entrance of the resort that you have in your paperwork, and is shown here on the screen. When the ownership changed and the name changed, we removed the "R" from the east facing side of the building, therefore eliminating visibility from the building within a couple mile radius. So as new customers or even existing customers are driving down Seagate Drive, there was no visibility as to what that tall building represented and what it was. We did replace the letter "R"s that flank on the column of the entrance to the letter "N"s, and we thought those were just simply signs that would not be obtrusive. We also developed and installed what we call a low monument sign. It's sign A on your paperwork that shows Naples Grande Beach Resort. Weare in violation of some ordinances because those three signs, signs A, Band C, are within 100 feet of one another. We didn't think that the little "N"s -- we replaced the "R"s on the columns with "N"s. They're approximately three by three. I think you'll see in your paperwork what the exact measurement is. We didn't believe that those "N"s were really in -- we didn't understand they would be in violation, because we were just replacing them from the previous letter "R"s. So we think that we just -- we would like to have those letter "N"s remain. We think that it's important as people drive down Page 23 November 6, 2008 Seagate Drive, because there is no large visibility on that east facing tower any longer that customers can actually see what they're driving into. And it's a simple design. It's only a three by three-foot square. They are not obtrusive. And it is just more of an architectural feature versus a SIgn. I'd also like to add that in doing some research, our neighbors up the street that is also a very large well known resort in the community have a very similar logo'd letter on their columns as you face -- as you drive into their resort. So there is some precedent there, I believe, that these signs were permitted at some time in the past. That's my story on the first set of variance petitions we are submitting. And I believe staff recommends that those "N"s be allowed. CHAIRMAN STRAIN: Okay, are there any questions of the applicant? Mr. Kolflat? COMMISSIONER KOLFLA T: I don't have a question, but I did do some surveying of the LDC, and I'd like to give some commentary on the intent and purpose of the LDC relative to signs. LD Section 5.05 -- 5.06.01(A) states that in general, and I quote, increased numbers in size of signs distract the attention of motorists and pedestrians and interfere with traffic safety, and the indiscriminate erection of signs degrades the aesthetic attractiveness of the community, closed quote. The LDC goes on further to state that, the intent and purpose of the sign code is to authorize the use of signs that meet the following five criteria. Would you put that photographed one that I gave you up, please, Ray. This is a photograph of the entrance to the hotel. And you can Page 24 November 6, 2008 see the large sign there in the center of the end of the driveway up there just about in the middle of the photograph. In looking at this, and consider the compatibility with the surroundings is one of the requirements of the sign code. And the surroundings are residential. The grouping of four different size, shape and type of signs, all within the small area in residential district is not compatibile with the surroundings. It is residential to the north, south and east of this site. Appearance gives it a commercial use rather than a residential use with a grouping of signs. Number two, the signs shall not endanger public safety or unduly distract motorists. In traversing up the entryway, motorists and pedestrians will pass four different signs in a short 150- feet length of roadway. They will be unduly distracted and endanger public safety. Three: Signs should be appropriate to the type of activity to which they pertain. Naples Grande is primarily a hotel. Its ancillary activities such as multiple dining facilities, spa services, et cetera, are primarily for the hotel residents. These services, as now offered to the general public, are not appropriate to the primary hotel function, which is a hotel. These ancillary services could be placed on such spare space of the existing main sign. Could you put up item two that I gave you, please, Ray. This is a closeup picture of the main sign there. Signs should also be large enough to convey sufficient information and small enough to satisfy the regulations. Well, this sign can be visually seen 150 feet up the roadway where I took the last picture. The main existing sign as it is meets this criteria. The sign can be seen about 150 feet from the roadway. However, the permitted sign area is even greater than the actual sign area and more text could be added, if necessary. Page 25 November 6, 2008 Five: Signs should be reflective of the identity and creativity of the individual occupants. The addition of the fourth sign on this relatively small area is not reactive of creativity. Here again, the underlying purpose and intent of the LDC is to prevent the proliferation of signage as is evidenced since the entire sign code Section 5.06.00 limits the quantity of signage. No less than four pages of the code are devoted under a common heading maximum number of signs allowed, which lists limits on different types of all signs. Four signs that are confined within a small area is not reflective of creativity. And I believe that this petition does not follow through with the intent and purpose of the LDC. CHAIRMAN STRAIN: Okay, Mr. Wolfley? COMMISSIONER WOLFLEY: When I was reviewing this I was thinking that I had forgotten totally that The Registry had been sold, but I -- in looking at this, I've been down there in the end, been in to many conferences there. My thought is because of the location where it is, it's kind of a strange deal, because if you miss the hotel, you're going to go right into a residential area. I find it pretty critical to have this sign that's shown up now so people don't pass it and go on into the residential areas. I just think it's good looking, it seems compatible to me, and I just wanted to add that. CHAIRMAN STRAIN: Are there any other comments? Mr. Schiffer? COMMISSIONER SCHIFFER: Yeah, my question is this: I think the biggest problem is the Strip House sign, which is out wandering, you know, on the lawn there. I have no problems with the monograms on the column, and I kind of share your feelings, are these really signs anyway or just a tasteful little monogram. But would you have a problem pulling the Strip House in past Page 26 November 6, 2008 those signs? MR. HANSEN: Well, I was going to get into that discussion secondly after this discussion, talk about these three signs first and then go to the fourth sign. That's certainly a possibility. And again, I'll get into more explanation of that as I get into the next discussion. COMMISSIONER SCHIFFER: I'll wait. I'll wait. I'm sorry. CHAIRMAN STRAIN: Go ahead, Ms. Caron, then Mr. Murray. COMMISSIONER CARON: Yeah, I was just going to say that -- and I think I said this at the last meeting, I have no problem with this main Naples Grande Beach Resort sign at all. And if the Strip House Restaurant can be listed on that sign, I have no problem with that either. I agree with you, that I consider the columns an architectural feature more than anything else, and I don't consider it a sign, so I have no problem with the columns either. My main problem is with the Strip House Restaurant sign being out on Seagate Drive. MR. HANSEN: I certainly understand that, Commissioner. And I'll address that in a minute, but I certainly understand your consider. COMMISSIONER VIGLIOTTI: Mr. Murray? COMMISSIONER MURRA Y: I'm going to also join the chorus and suggest that the monograms as they've been noted, they're fine, they're an identity. This is a business and yet it's in residential, and it provides residential services as well as commercial services. It's the beast that exists because we like it to exist. The sign that I'm looking at on the visualizer now is I think tasteful, effective, and I would have to agree that if we -- if you really do want the restaurant's name, then you would have to withdraw that from the area to make -- perhaps this is a good location for it. Thank you. CHAIRMAN STRAIN: Mr. Vigliotti? Page 27 November 6, 2008 COMMISSIONER VIGLIOTTI: I agree with everything else, with all the other commissioners, this really is a nice sign, doesn't cause a problem, and the letters on the columns are more architectural. But Ray, I have a question for you. Suppose the hotel changes names and they want to change the "N" on the columns or change the graphics on this sign. Would they have to come through this process again? MR. BELLOWS: For the record, Ray Bellows. The sign variance can be tailored to the individual current owner requiring any subsequent owners to come in for another variance, or you can tailor it to run with the property and the sign. So like any other pole sign, when there's a change of use, they just get their permits. COMMISSIONER VIGLIOTTI: Okay, no, I'd like to then just bring that up in case it changes again, they want it changed again back to an "R" or a "Q" or an "L" or a "W", I don't want to see them go through the process again. MR. BELLOWS: Mr. Schmitt raises a good point, too. If the sign code changes, then they would have to comply with any changes in the code as new signs or replacement signs. COMMISSIONER VIGLIOTTI: That's fine. But under normal circumstances, they could just -- MR. BELLOWS: That's correct. COMMISSIONER VIGLIOTTI: -- get a permit to change the letters. Okay. CHAIRMAN STRAIN: Any other comments before the petitioner -- MR. SCHMITT: As long as they stay within the size. COMMISSIONER VIGLIOTTI: Exactly. In other words -- MR. SCHMITT: If they change the -- COMMISSIONER VIGLIOTTI: -- here the issue was "R" to "N"s. Page 28 November 6, 2008 MR. SCHMITT: Yes. CHAIRMAN STRAIN: Any other comments before the petitioner continues? (No response.) COMMISSIONER VIGLIOTTI: Okay, sir. MR. HANSEN: Thank you, Mr. Chairman. If I could again just have a few more minutes about the controversial sign and that's the Strip House Restaurant sign. And I very much understand your concerns, but I'd like to provide a little bit more background, provide some perhaps different understanding. The Strip House Restaurant has been in the hotel approximately one year. It is very different than other specialty restaurants in other resorts hotels, because it's a leased restaurant. It's a third party. The ownership of the hotel does not own or operate that restaurant. Specialty restaurants in large resorts really require significant revenue from the public in order to maintain their business. A specialty restaurant like this would really need about 70 percent of their volume, that's 7-0 percent of their volume from the outside, versus hotel guests to maintain their liquidity. Otherwise, the restaurant would not financially do well. If specialty restaurants do not get that kind of volume from the outside, they become lost leaders in a resort. Especially restaurants that are owned and operated by resorts that are lost leaders, the resort is willing to accept that restaurant as a lost leader because it just adds more value to the total resort. In this case because the ownership is a third party, they will not -- if they don't make money over a period of time, they will go out of business. There are approximately 70 employees in that restaurant and they are a complete separate entity. So I'm really speaking on their behalf. In order to maintain their volume, they're seeking visibility and Page 29 November 6, 2008 they're seeking some awareness in the community. And again, as people drive down Seagate Drive, although someone has called them and made a reservation and knows the address at 475 Seagate Drive, as people are driving down Seagate, you don't really know where 475 is until you make that right-hand turn into the resort and you see the 475 on the monument sign. So unless a previous guest has been there before and they know the restaurant is in the confines of the Naples Grande Beach Resort, they really are looking around for an address of where is 475 Seagate Drive in looking for this restaurant. Therefore, the proposal to install this low monument Strip House Restaurant sign just outside the entrance is so that people driving down Seagate have some visibility as to where this restaurant is located. Yes, restaurants like other businesses can advertise in the newspaper and they can have direct mail campaigns and things like that, and all of these ads state the address of the restaurant. But again, unless you're driving down Seagate Drive, you don't know where 475 is, you will have no idea where that restaurant's located. And again, we could put that sign inside the entrance, to your point Mr. Commissioner. We could do that somehow. But until -- if you picture yourself driving down Seagate Drive, this sign you're seeing on the screen is not immediately visible as a straight-on shot. You really have to turn right to see that as you're coming to the entrance. The only thing you see as you're driving on Seagate Drive are those "N"s on the column, with no visibility of the entrance. So there's -- that's our reasoning or our recommendation as to why we would like to have some sort of visibility on Seagate. Otherwise, in all likelihood this restaurant may go out of business. CHAIRMAN STRAIN: Mr. Murray? COMMISSIONER MURRAY: Sir, if this restaurant were in fact a lost leader owned by the hotel corporation, would you have had any Page 30 November 6, 2008 difficulty in placing that information on your sign that we're seeing in the viewer right now? MR. HANSEN: I'm sorry, Mr. Commissioner, I don't quite understand your question. COMMISSIONER MURRAY: Sure. If in fact, rather than this be a separate entity business, had it be a lost leader, as you portrayed it could be, would be, if it were your restaurant would you have a need still to have it out into the residential area, into the right-of-way, so to speak, for people to see, or would they not perceive it as being Naples Grande restaurant? MR. HANSEN: Mr. Commissioner, if I owned that, it would be nice to have that sign outside the entrance. Not necessary to have, because it would be a lost leader, so I wouldn't consider it in my total, total financial perspective. COMMISSIONER MURRAY: Right. So -- MR. HANSEN: It would be nice to have, not necessary to have. COMMISSIONER MURRAY: So the hinge here is that you're trying to make sure that the restaurant that you have sustains. MR. HANSEN: Correct. COMMISSIONER MURRAY: And I can appreciate that. But I will agree with my fellow commissioner who indicated that it is a residential area, and from the photo that was shown, it appeared that from 150 feet away, as the statement was made, a person can, who is looking for 475, be able to visualize the address. And I'm not sure whether or not you're suggesting by the way you're offering it that you're looking for capture traffic, that you're looking for somebody who might be driving by and say, oh, here's a restaurant. I'm not sure in that area what that would all get you anyway. It would seem those persons -- and this is conjecture, I recognize it -- those persons who are going to suggest that they meet at the Strip House say, it's at the Naples Grande, and they're going to know that Page 31 November 6, 2008 somehow. I recognize that somebody driving along might be tempted to go into the Naples Grande for sustenance, if they happen to have seen the Strip House sign outside. But they may just as likely see it from inside. So I think -- I know that from my point of view, if you were more in favor of accepting the premise that it belongs somewhere closer to that sign or perhaps on that sign, I think you might do well with this commission. But I'm just guessing that. MR. HANSEN: Thank you. CHAIRMAN STRAIN: Mr. Schiffer? COMMISSIONER SCHIFFER: Yes. Ray, would you put up Tor's photograph one? And while he's doing that, in your development you have a freestanding restaurant. Is that the Strip House now, or is it within the lobby of the hotel itself? MR. HANSEN: The restaurant itself, sir? COMMISSIONER SCHIFFER: Yes. MR. HANSEN: The restaurant is within the columns, back up in the area of the resort, yes. COMMISSIONER SCHIFFER: But in recall, there's a freestanding restaurant. In other words, it's not in the actual building of the hotel -- MR. HANSEN: That's correct. It's one of the floating buildings. It used to be called the Brass Pelican Restaurant, if I recall. COMMISSIONER SCHIFFER: Okay. So as we're looking down this road here, you see your main sign in there. What if you put this up on the grass to the left of that; in other words, behind the columns? I mean, I kind of like the idea of getting it off of the street and getting it behind your monogram column somewhere. Is that a location -- I mean, you could see -- MR. HANSEN: It's certainly a possibility. Page 32 November 6, 2008 COMMISSIONER SCHIFFER: I think if you do put it there, by the way, put an arrow to make sure they don't drive up the lane backwards. MR. HANSEN: Right. COMMISSIONER SCHIFFER: But the biggest problem and the only problem I have with this application is -- I think the sign's okay. The fact that it's contrasting the taste of your other signs, I understand that, I think. But I do think it should be inside your property more than -- at least behind your entrance gate -- MR. HANSEN: Okay. COMMISSIONER SCHIFFER: -- than out in the residential neighborhood. Thank you. CHAIRMAN STRAIN: Mr. Wolfley? COMMISSIONER WOLFLEY: The sign is on your property, correct? MR. HANSEN: Yes, sir. COMMISSIONER WOLFLEY: Okay. I'm just wondering, is the issue of the sign the location of it? Do we have a picture of where the sign is now? That's it right there. Okay. Is it that right there that we're objecting to, Strip House, with no restaurant? And they've added the restaurant. But, I mean, is it the name or is it the sign? CHAIRMAN STRAIN: It's each one of us will have our own decisions on that, Mr. Wolfley. I mean, you have -- COMMISSIONER WOLFLEY: I wasn't expecting an answer, I just -- COMMISSIONER MURRAY: Just rhetorical. CHAIRMAN STRAIN: Do you have anything any other -- COMMISSIONER WOLFLEY: No, that's it. I'm sorry. Thank you. CHAIRMAN STRAIN: Any other questions? (No response.) Page 33 November 6, 2008 CHAIRMAN STRAIN: Sir, I've got a couple -- or actually, Ray, I think the question may be more of you. MR. HANSEN: There's a better shot, thank you. CHAIRMAN STRAIN: Is this considered an accessory use to the hotel? MR. BELLOWS: The restaurant? CHAIRMAN STRAIN : Yes. MR. BELLOWS: Yes. CHAIRMAN STRAIN: Then it would have benefited from the reduction in parking? MR. BELLOWS: I'd have to check the site plan, but I assume it would, yes. CHAIRMAN STRAIN: Do you know why the reduction in parking was placed in the code for restaurants that are amenities or associated with -- accessories to hotels? MR. BELLOWS: Yeah, it's basically an accessory to the hotel, which is the main driving force for people going to the facility. CHAIRMAN STRAIN: Okay. And the accessory use computation for a restaurant is 50 percent of normal requirements. Why did we pick 50 percent? MR. BELLOWS: I'd have to do some research on that. I can't tell you offhand. COMMISSIONER CARON: The point I'm trying to make is this restaurant's reliance on predominantly outside activity of what you indicated earlier was 70 percent. I would think then the parking may have a problem, because we're only giving you 50 percent of the parking. You only would have provided 50 percent of the parking if you labeled this as an accessory use to the hotel. Second of all, I've lived in this community 30 years, and The Registry before your company took it over was built a long time ago. I live 12 miles, 15 miles out and every morning I get up and I can look down the road and there's this gold dome shining at me, or copper Page 34 November 6, 2008 dome or whatever you want to call it. That's a pretty significant landmark in this community. And if anybody wants to find a restaurant associated with that hotel, I think it's pretty easy to designate where it's at. So I'm not sure the sign is needed to tell people that you're at that hotel more than it is to pick up pass-by traffic, which I'm not sure is the intent to get your 50 percent above what you're supposed to be supplying from the hotel itself based on the parking calculation. And so from that point of view I'm not sold yet on the need for sign D at all, where it's at or even moving the location, so -- MR. HANSEN: Mr. Commissioner, if I could please respond to your comments. CHAIRMAN STRAIN: Sure. Go right ahead. MR. HANSEN: The first comment about the accessory -- I'm not familiar with that term but I guess it's the number of parking spaces for the restaurant. The exact location of the Strip House Restaurant was previously a restaurant. It was previously called the Brass Pelican. It was owned and operated by the hotel. It was a lost leader. It had the same if not more seats than this Strip House Restaurant does. So relative to seats in the restaurant versus the parking ratio, that really has not changed. The second comment, Mr. Chairman, people like yourself that have been in the community for a length of time certainly know what the building stands for. There are a large number of customers that have been to the hotel for the first time that have never -- from outside of Naples. Half of our business is convention and group related, which are coming from all parts of the states and all parts of the country. So at least 50 percent of our customers, if not more, are not Naples residents and don't really know the building as well as you do, SIr. CHAIRMAN STRAIN: Well, and I understand. I just -- I'm not quite sold on the need for that sign yet. Page 35 November 6, 2008 MR. HANSEN: I understand. CHAIRMAN STRAIN: I'm not -- I certainly have no problem with all your other requests. But that one is still, I'm just not -- I haven't seen the need. MR. HANSEN: Well, we're certainly sensitive to the name and essentially the location, and that's why we tried to make the sign as professional and unobtrusive and low and good looking and unobtrusive as we possibly could and still obtain our objective. CHAIRMAN STRAIN: Okay, any other questions of the applicant? COMMISSIONER MURRAY: Yeah, I just want -- CHAIRMAN STRAIN: Mr. Murray? COMMISSIONER MURRAY: -- to make one comment. Looking at that photo, the sign may in your mind may be unobtrusive, but it stands out from the property. MR. HANSEN : Yes, sir. COMMISSIONER MURRAY: And that's where my problem is personally. It -- I don't have a problem with the name. Anybody can read in anything they want in a name. It's a catchy term; I suppose it's intended as such. But I do have a problem with the fact that it seems to me anyway to be rather glaring right outside your monuments. And it really is an intent to show here's a commercial establishment, come and eat. And that's fine, except that I think personally it belongs inside to be able to make that point. And I don't know where you can put it in there, but -- I don't know. That's a problem I'm having, too. MR. HANSEN: Yes, sir. CHAIRMAN STRAIN: Okay, any other questions of the applicant? (No response.) CHAIRMAN STRAIN: Thank you, sir. Page 36 November 6, 2008 MR. HANSEN: Thank you very much. CHAIRMAN STRAIN: We'll hear staffs report now. MR. HANSEN: Thank you, Mr. Chairman. MR. MOSS: Thank you, Commissioner. For the record, John-David Moss, Department of Zoning and Land Development Review. I would just like to draw the commission's attention to the letter that was received on October 15th contained in Appendix One of the supplemental staff report. I would also like to say that with the recommendations and stipulations made by staff, this project would be consistent with the GMP and the Land Development Code. I would also like to draw your attention to the new conditions of approval dated October 20th, 2008 that are contained in the ordinance. And note that we did make the corrections about the separations between the signs. And staff is still just recommending approval of signs A, Band C and not D. If you have any questions, I'll be happy to try and answer them. CHAIRMAN STRAIN: Any questions? COMMISSIONER SCHIFFER: Yes. CHAIRMAN STRAIN: Mr. Schiffer? COMMISSIONER SCHIFFER: John-David, ifhe brought the sign inside and essentially beyond the monogram signs, do you have any thoughts on that? Is it the location of it or just the sign itself? MR. MOSS: It's the sign itself. They could put that information on the existing Naples Grande Beach Resort sign there, but they can't have a separate sign on the property. So it doesn't matter if it's out where they have it located now or if they move it interior to the property. COMMISSIONER SCHIFFER: It still requires a variance. But you still would probably object to it then even though it's -- I mean, I think the in -- the reason they make the sign -- the two signs are Page 37 November 6, 2008 designed exactly in contrast of each other, and I think that's the intent, that the restaurant's in contrast with the hotel. But the -- so if we brought it back in, you would still be objecting to it, do you believe? MR. MOSS: I still think it would fail to meet the purpose and intent of the sign ordinance. COMMISSIONER SCHIFFER: Okay. And then the other question is these monograms. Do you think those are signs or just somebody puts a decorative letter on the column? Do you really treat it like a sign? MR. MOSS: No, I'm with you on that. I think it's just a decorative embellishment. I don't think it's really a sign, even though the LDC considers it one. COMMISSIONER SCHIFFER: Okay, thank you. CHAIRMAN STRAIN: Mr. Kolflat? COMMISSIONER KOLFLAT: Yes. If you remove those decorative elements, would that pile revert to an accessory structure? MR. MOSS: No. COMMISSIONER KOLFLA T: Why not? It's about as large as a shed you could have as an accessory structure physically. Just because it's not hollow doesn't mean it's not a structure. COMMISSIONER SCHIFFER: It's a wall. MR. BELLOWS: For the record, Ray Bellows. It's a structure but it's not a -- wouldn't be classified as a sign. More of a wall type of structure. And it still would be allowed. A colonnade would also be allowed. COMMISSIONER KOLFLA T: Does it stay within the setback, the front yard setback -- MR. BELLOWS: A wall can go within the setback. CHAIRMAN STRAIN: It would be an architectural feature-- MR. BELLOWS: Yes. CHAIRMAN STRAIN: -- more than it would be a building. MR. BELLOWS: Correct. Page 38 November 6, 2008 MR. MOSS: And for the record, I've never received any objections or heard of any complaints about those columns from the community. CHAIRMAN STRAIN: Any other questions? Mr. Vigliotti? COMMISSIONER VIGLIOTTI: Yeah, I was going to ask you that, if there's been no objections from the community. MR. MOSS: No. COMMISSIONER VIGLIOTTI: I'm not a big fan of signs, but the restaurant I think may need a sign and possibly in that area. There's been numerous restaurants went out of business within a few miles of that. And major restaurants: Ruby Tuesday's, Silver Spoons, Kona Grill, Macaroni Grill. And having another restaurant close I don't think helps anybody. Restaurants provide jobs. They in addition pay taxes, they pay the intangible tax, and I don't think a small sign in this area is going to hurt anybody. CHAIRMAN STRAIN: Okay, anybody else? Mr. Midney? COMMISSIONER MIDNEY: Yes, I'd like to echo what Mr. Vigliotti said. I think the Strip House sign is tasteful and I think they need it to promote their business. CHAIRMAN STRAIN: Okay, Ms. Caron and Mr. Wolfley. COMMISSIONER CARON: Yeah, I think it's very easy for the Naples Grande to put the Strip House signage on their own sign. They can lease it to them if they don't want to give them the space. But that sign has plenty of room to move and accommodate the Strip House Restaurant signage there. So I think there are things that can be done that would be perfectly fine with the community and with the variance process. Thank you. CHAIRMAN STRAIN: Okay, any other questions before we go Page 39 November 6, 2008 to public speakers? Mr. Wolfley? COMMISSIONER WOLFLEY: Yeah, I just want to also go along, I think the sign is fine just where it is. If anything, I would move it closer to -- further away from the hotel to differentiate it. But I think it's fine the way it is. Possibly it's the red, but the red is part of the logo. If it were green, it'd blend in. But I think it's appropriate and just fine the way it IS. CHAIRMAN STRAIN: Any other comments before we go to public speakers? (No response.) CHAIRMAN STRAIN: Okay, Ray, do we have any public speakers? MR. BELLOWS: No one has registered. CHAIRMAN STRAIN: Is anybody here from the neighborhood that would want to speak and didn't know they had to register? (No response.) CHAIRMAN STRAIN: Okay, Ms. Caron? COMMISSIONER CARON: Then I'll make a motion. CHAIRMAN STRAIN: Well, let's close the public hearing. I'm sorry, I thought you had another contribution. COMMISSIONER CARON: No, no, that's fine. CHAIRMAN STRAIN: Okay, with that we'll close the public hearing and we'll entertain a motion. Ms. Caron? COMMISSIONER CARON: Yes. I move that Petition SV-2008-AR-13374, Naples Grande Beach Resort, be approved as per staff recommendation. COMMISSIONER MURRAY: Second. CHAIRMAN STRAIN: Motion made by Commissioner Caron, seconded by Commissioner Murray for approval with stipulatingp Page 40 November 6, 2008 staffs recommendations. Discussion of the motion? We'll start with Mr. Kolflat and work our way across. COMMISSIONER KOLFLA T: I've listened to all the comments. The problem I still have is that the LDC lists eight general guidelines and evaluative criteria to be followed by the CCPC and the BCC when considering a variance. I think this is a required charge on our part. It's not something discretionary that we can ignore it. In reviewing this petition relative to these guidelines, there are no special conditions peculiar to the land of structure characteristics. Staff report and site inspection concur that the existing permitted sign is visible from the roadway and of sufficient size to advertise both the hotel and on-site steakhouse. Two: There are no special circumstances such as preexisting conditions relative to the property. Removal of an existing illegality is not justification for a variance. Three: A literal interpretation of the LDC will not work an unnecessary or undo hardship on the applicant. As the staff report states, the applicant retains its existing principal sign in its present location and can include text advertising on the site steakhouse. Applicant contends there is still a hardship and that the sign would have to be replaced in order to add the restaurant name. And I would like -- Ray, could you please pick up this paper I'd like to put on the overhead? CHAIRMAN STRAIN: J.D., you could have made it up here quicker. It's coming. A slow train. COMMISSIONER WOLFLEY: The bucket brigade. COMMISSIONER KOLFLA T: I should have picked a younger man. And can you slide that up so the yellow highlighted part would be readable, please? Can you identify that, Ray, for the people watching it? Page 41 November 6, 2008 MR. BELLOWS: There's no highlighted-- CHAIRMAN STRAIN: That one didn't have highlighting on it as we passed it along, Mr. Kolflat. COMMISSIONER CARON: J.D., would you come up and get the yellow highlighted one and save us? COMMISSIONER KOLFLAT: Give me that other one back, please, too. What I'd like you to refer to is the yellow highlighted part which pertains to the determination of a hardship. Relative to a variance, a legal hardship exists only in those cases where the property is virtually unusable or incapable of yielding a reasonable return. Replacement of this sign does not meet this standard of hardship. And for your information, that memorandum is to the Board of County Commissioners dated January 23rd, 2006, and is authored by Jeff Klatzkow as an interpretation of what constitutes a legal hardship. This in no way can I see as construed as a legal hardship whatsoever. Furthermore, the variance will not be in the minimum allowing a reasonable use of land, building or structure since the permitted sign is 13 percent larger than the existing actual sign. In other words, there's -- room on that permitted sign that he has is to enlarge the sign, if you would like, and also add more text to it. Granting the variance will definitely confer on the applicant a special privilege denied to others in the area. 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 physically induced conditions that ameliorate the goals and objectives of the regulation, such as natural preserves, lakes, golf courses, et cetera. Lastly: In granting a variance, the four signs concentrated in a small area would create the impression of a commercialized area in Page 42 November 6, 2008 the center of residential districts to the south, north and east and be inconsistent with the Growth Management Plan. The CCPC is charged to consider these eight guidelines and evaluative criteria, and I think we should follow these as is our direction. Based on the preceding analysis, I believe we have no other choice than to deny this variance. Thank you. CHAIRMAN STRAIN: Mr. Midney? COMMISSIONER SCHIFFER: What about me? CHAIRMAN STRAIN: Oh, I didn't know you wanted to comment. COMMISSIONER SCHIFFER: I thought you were going to run down the line. CHAIRMAN STRAIN: Only to those that raised their hand, but go ahead, Brad. I'm sorry. COMMISSIONER SCHIFFER: Anyway, first of all, I don't really think there's four signs here. There's two signs here. One is the main, the Naples Grande sign, the other one is the Strip House that's floating around. I'm going to be voting against the motion, because I believe we could find a location for that beyond the columns inside the property. And if the motion fails, I'll be making a motion to that effect. CHAIRMAN STRAIN: Okay, Mr. Midney? COMMISSIONER MIDNEY: I'll also be voting against the motion for the reasons that I stated. CHAIRMAN STRAIN: Ms. Caron? COMMISSIONER CARON: Yeah, I believe that for the purposes of making this determination, Mr. Kolflat, that we are adhering to the guidelines that we are supposed to be adhering to. The main sign is not an issue. We're not approving the outside sign, the separate freestanding restaurant sign. And I think that the columns with the letter "N" on them, which have been there forever Page 43 November 6, 2008 and a day, I consider them merely architectural features and not signage. So I believe that what staff is supporting is the way to go. Thank you. CHAIRMAN STRAIN: Mr. Vigliotti? COMMISSIONER VIGLIOTTI: Would the motion maker want to add the fact that if the hotel does change the sign, they can change the "N"s and the "W"'s or "Q"'s or whatever may be down the road, rather than come through this process again? COMMISSIONER CARON: I think it's unnecessary right now to do that. I don't think the Naples Grande is going away, and if and when that's necessary, then whoever can-- COMMISSIONER VIGLIOTTI: Then they've got to come in for another variance? COMMISSIONER CARON: Yeah, but it will be somebody else and they'll have to deal with whatever the issues are. It's -- you know. COMMISSIONER VIGLIOTTI: Again, I have to repeat, I'm not a big fan of signs, but a small sign is a little price to pay for another empty restaurant. We have a lot of empty restaurants and it doesn't look good. We're a tourist town. When tourists come down and see all these empty restaurants, it doesn't help anybody. Unemployment, people lose jobs, we lose taxes. I think it should go through just as is. CHAIRMAN STRAIN: Mr. Murray? COMMISSIONER MURRAY: I had been hoping that the representative of the Grande would have offered to include the sign on the sign that's within the -- denoting the Grande. Not doing that, I joined in the motion to accept what those three signs -- or I agree that monuments, the obelisks, are -- they're just monograms. The true sign is in the back. We're complying with the LDC by hearing this and evaluating it. And irrespective of the fact that we're losing businesses, that's happening throughout the country. No one likes to see that. But we do Page 44 November 6, 2008 have some rules about how we want our community to look, and in my view I think a restaurant that serves the Grande should be clearly more contained within its property. And I've said it three times. COMMISSIONER CARON: Mr. Wolfley? COMMISSIONER WOLFLEY: I just have a question. Should the vote all be in favor of Ms. Caron's initiative and I vote against it and it passes, will that mean that it looks like I didn't want any signs there at all? I would only be voting for what the hotel wants, in other words, both signs, the monograms aside, the two signs, inside and outside the columns. I'm in agreement, I just think the signs ought to stay the way they are. If I vote against it, will it -- when it goes to the commissioners, are they going to know that I wanted all signs or think that I didn't want any? CHAIRMAN STRAIN: First of all, the motion was to support staff's recommendations. COMMISSIONER WOLFLEY: Exactly, which is -- CHAIRMAN STRAIN: So you need to know that's what the motion's for. The record speaks for itself. If you have objections and you state them on record, that's fine. Mr. Bellows, you had a comment? MR. BELLOWS: Yeah. I just wanted to add that we would note in the executive summary to the board your concern. And if you just were in favor of the other signage but not the Strip House or the other way around, we would reflect that. COMMISSIONER WOLFLEY: Okay, thank you. CHAIRMAN STRAIN: Ms. Homiak? COMMISSIONER HOMIAK: Yeah, I'm in favor of the motion as it is, but I don't know if it could be amended or -- I don't know, maybe Brad said he was going to make another motion after that that the Strip House sign be included on the Naples Grande sign? Page 45 November 6, 2008 CHAIRMAN STRAIN: I think that can be done without a vanance. COMMISSIONER HOMIAK: If they can, they can, or if they don't, they don't? CHAIRMAN STRAIN: It can be done without a variance. So there's no need -- I mean, if that's the motion, it's still moot, because they could combine the signs and do that anyway. I think that's part of what Ms. Caron's argument was. But I mean, Ray or somebody, is that a true statement or not? MR. MOSS: Yes, it is, they could put that information on the existing Naples Grande Beach Hotel sign. And in fact, that sign can even be enlarged a little bit to include the text. CHAIRMAN STRAIN: Mr. Wolfley, wait till Ms. Homiak gets done. MR. MOSS: And that could be done according to the LDC with no variance required. COMMISSIONER HOMIAK: All right, thank you. CHAIRMAN STRAIN: Now, Mr. Vigliotti, then Mr. Wolfley, then Mr. Schiffer. COMMISSIONER VIGLIOTTI: If the petitioner would suggest that he would take the Strip House sign and put it next to the Naples Grande -- COMMISSIONER WOLFLEY: I don't think it would look good. COMMISSIONER VIGLIOTTI: You don't suggest that? COMMISSIONER WOLFLEY: I don't think it would look good. COMMISSIONER VIGLIOTTI: Because I know, Brad, you had suggested that? COMMISSIONER SCHIFFER: Yes. CHAIRMAN STRAIN: Mr. Vigliotti, any changes to the Page 46 November 6, 2008 number of signs or the size of the signs would have to come back through the process. So you may want to suggest that today, but we wouldn't know the outcome of that till it went back to staff to analyze it as to what variances may be needed. The distances would change because you now have two signs instead of one. I'm not saying it's wrong or right, I'm just saying we can't reengineer it here at this meeting today, so -- COMMISSIONER VIGLIOTTI: I thought that's where Brad was gomg. CHAIRMAN STRAIN: He might. But we're not discussing Brad's motion right now, we're still discussing Ms. Caron's. And Mr. Wolfley, I think you were next, then Brad, then Ms. Caron. COMMISSIONER WOLFLEY: Yes, sir. I was just going to say, John-David, is there any restrictions to -- I mean, in other words, they can take the Strip House Restaurant or just the Strip House and put it underneath their Naples Grande sign? MR. MOSS: It has to be on the face of that sign. COMMISSIONER WOLFLEY: On the face of it, but it could be red, it could be -- MR. MOSS: Right, right. COMMISSIONER WOLFLEY: -- exactly like the-- MR. MOSS: There's no problem with the way it's contained in the exhibit. COMMISSIONER WOLFLEY: Okay. And that would be his fallback position ifhe had to take the sign that's outside the pillars, he could do that? MR. MOSS: He could mount it on the face of that sign, uh-uh. COMMISSIONER WOLFLEY: Okay, thank you. CHAIRMAN STRAIN: Mr. Schiffer? COMMISSIONER SCHIFFER: And John, stay there. My point is be careful what you wish for. He could make that Page 47 November 6, 2008 sign bigger, too, correct? He may not be -- it's a huge property. So I mean, what you may wind up with here is between these beautiful monogrammed signs you have a billboard right in the center there. So I'm still a fan of the separate sign walking around near it, but enough on that. CHAIRMAN STRAIN: Ms. Caron? COMMISSIONER CARON: Well, I think that -- you know, that extreme is sort of a red herring, because they are obviously not going to do anything to affect their main business in a detrimental way. They have the right to increase the size of the Naples Grande signage without a variance. They have the right to put the Strip House on the Naples Grande signage as it exists right now today and/or on an extended sign. So the Strip House has -- and the Naples Grande all have options, and so I would hope I would get support for the neighborhood. CHAIRMAN STRAIN: And I have just a comment. And Ray, I may need your reading on this, or J.D.'s. So I understand the motion, staffs recommendation is to approve variance one, two and three, which involve signs A, Band C, and to modify variance seven from four to three; is that correct? MR. MOSS: (Nods head affirmatively.) CHAIRMAN STRAIN: Could you say yes for the record so we know -- MR. MOSS: I'm sorry. Yes. CHAIRMAN STRAIN: Okay, thank you. With that in mind, I will support the motion. I don't -- and the reasons I will support it is in reference to what I don't see qualifies sign D. I see no need for sign D, no special conditions, no hardship, no unreasonable uses left if it's denied, it would confer a special privilege, there are no natural conditions that dictate the need for it, and it is inconsistent with the intent and purpose of the LDC. Page 48 November 6, 2008 Now we've all been heard, we've all voiced our opinions. I'm going to ask for a motion -- we have a motion and it's been seconded. Mr. Kolflat, do you have something else? COMMISSIONER KOLFLAT: Could you restate the motion, please. CHAIRMAN STRAIN: Ms. Caron made a motion to support staffs recommendations. COMMISSIONER CARON: To support staffs recommendations. COMMISSIONER KOLFLAT: Thank you. CHAIRMAN STRAIN: And I'm going to ask by signifying aye and raising your hand. All those in favor of the motion, signify by saying aye and raising your hand. COMMISSIONER KOLFLA T: This is for or opposed? CHAIRMAN STRAIN: This is -- COMMISSIONER CARON: This is for the motion. CHAIRMAN STRAIN: -- for the motion to support staffs recommendation. COMMISSIONER CARON: Aye. CHAIRMAN STRAIN: Aye. COMMISSIONER HOMIAK: Aye. COMMISSIONER WOLFLEY: Aye. COMMISSIONER MURRAY: Aye. CHAIRMAN STRAIN: One, two, three, four, five. All those opposed? COMMISSIONER KOLFLA T: Aye. COMMISSIONER SCHIFFER: Aye. COMMISSIONER MIDNEY: Aye. COMMISSIONER VIGLIOTTI: Aye. CHAIRMAN STRAIN: One, two, three, four. Motion carries 5-4. Page 49 November 6, 2008 Sir, you got three and a half. So good luck with the BCC. MR. HANSEN: Thank you. CHAIRMAN STRAIN: Thank you. We have about 20 minutes before a break. It would be a good time to finish up the consent agenda item. Mr. Hancock, are you here? MR. SCHMITT: Mr. Chairman? CHAIRMAN STRAIN: There he is. MR. SCHMITT: Just for clarification, I don't know if Mr. Kolflat was confused. For the record, the staff recommendation was for the signs except for the Strip House sign. That was a recommendation of denial. And I thought that's what you had -- MR. BELLOWS: It was the other way around. It was approval of the signs but not the steakhouse. MR. SCHMITT: Right. It was approval of all the signs, excluding the steakhouse sign, which was a denial. And I thought that's what he put on the record. But then he voted against it. So I just want to make sure and clarify that that was your extent. CHAIRMAN STRAIN: Mr. Kolflat, the motion was to approve the big sign that says Naples Grande, the one that was in the center of your position, and the two on the side and that's all. COMMISSIONER KOLFLA T: I was against the motion. MR. MOSS: He was against the column signs. Is that correct, Commissioner? COMMISSIONER KOLFLA T: Yes. I'm against it because it's not in accordance with the guidelines that the County Commission has given us to follow in coming up with eight criteria -- MR. SCHMITT: I understand. COMMISSIONER KOLFLAT: -- to support at this time. No one has defined to me what a true hardship is that violates what was told me by Jeff Klatzkow in that memorandum that this is Page 50 November 6, 2008 not a true hardship. MR. SCHMITT: Okay. Just for clarification. Thank you. Item #8B PETITION: CU-2007-AR-12619, KO.V.A.C ENTERPRISES- CONTINUED CHAIRMAN STRAIN: Thank you, sir. Mr. Hancock and J.D., have you guys come back with some language for the consent agenda item involving the KO.V.A.C. Enterprises? MR. HANCOCK: While J.D. switches from one to the other quickly -- CHAIRMAN STRAIN: Now, before we go too far, we normally don't swear in since this is data that's going to go on record. Would you mind swearing both of them in for this matter. (Speakers were duly sworn.) MR. HANCOCK: Mr. Chairman, I've put some language together and worked with John-David while he was handling the item before you previously. And I think we've come to something that contains the spirit and intent of what this body directed us the last time. Through the assistance of the BCC administrative staff what we've done is kind of retyped items seven and eight on the conditions page. Item seven to read: To screen views of the piles and to help prevent dust from traveling offsite, a Type B buffer shall be provided along the site's southern and southwestern boundaries at the interface of abutting uses. Where this buffer overlaps, the .37-acre preserve type B minimum plantings shall be maintained at all times within the buffer area. Page 51 November 6, 2008 The balance of the creative preserve shall consist of approved native mid-story and canopy species to achieve the desired buffering for properties to the south. CHAIRMAN STRAIN: Okay. MR. HANCOCK: Item eight, the only change to item eight was to change 250 to 150 as the third word of the first line as it reads before you today. And I do have a copy for you, Mr. Chairman. CHAIRMAN STRAIN: Okay. Mr. Wolfley? COMMISSIONER WOLFLEY: Did you get the measurement of that, in quotes, throat? MR. HANCOCK: Yes, sir, it is 150 feet. COMMISSIONER WOLFLEY: That's what I thought. No problem. CHAIRMAN STRAIN: Mr. Schiffer? COMMISSIONER SCHIFFER: And the property line dimension is? MR. HANCOCK: That's the 150 feet. COMMISSIONER SCHIFFER: Okay, thank you. MR. HANCOCK: Yes, sir. CHAIRMAN STRAIN: Okay, so I think the revised language is more in line with what we had recommended. And certainly the 150 now IS. SO does anybody have any problems with this item with the recommended language that's on the screen in front of us? COMMISSIONER WOLFLEY: Nope. CHAIRMAN STRAIN: Okay, it's a consent item. All those in favor of the motion? I know two people are going to be abstaining. All those in favor, signify by saying aye. COMMISSIONER SCHIFFER: Aye. COMMISSIONER HOMIAK: Aye. COMMISSIONER KOLFLAT: Aye. CHAIRMAN STRAIN: Aye. Page 52 November 6,2008 MR. WOLFLEY: Aye. COMMISSIONER CARON: Aye. COMMISSIONER VIGLIOTTI: Aye. CHAIRMAN STRAIN: Anybody opposed? (No response.) CHAIRMAN STRAIN: Motion carries, what is that eight to -- COMMISSIONER MIDNEY: Seven. COMMISSIONER CARON: Seven. CHAIRMAN STRAIN: Seven to nothing. Two abstaining, Mr. Murray and Mr. Midney abstained. And I have the copy of this for you when we get going. Okay, with that, we normally take a break around 10:00. We'll take it now since it's a good time in between, and we'll come back and resume with the second item on our agenda which is the boat lift, Peter D. Donahue boat lift. So we'll take a break until five minutes after 10:00. (Recess. ) CHAIRMAN STRAIN: Okay, welcome back from break, everyone. Next item up on today's agenda is Petition BD-2008AR-13305, Peter D. Donahue, requesting the addition of a boat slip to slip number one in an existing 24-slip (sic) dock. All those wishing to participate in this hearing, please rise and be sworn in by the court reporter. (Speakers were duly sworn.) CHAIRMAN STRAIN: Disclosures on the part of the planning commission? COMMISSIONER KOLFLAT: I went and visited the site and I also discussed the matter with Mr. Donohue, who is the owner of the property . CHAIRMAN STRAIN: Okay, anybody else? (No response.) Page 53 November 6, 2008 CHAIRMAN STRAIN: Okay, with that, will the applicant please proceed with the presentation. MR. NELSON: Good morning. It's still morning, right? Okay, good. Ben Nelson, for the record, Nelson Marine Construction. We've applied here on this multi-slip facility to -- for an extension of 10 feet in order to put a boat lift in an existing slip. And I'm going to switch gears on you here. This is a representation. You can see to the far -- right over towards -- this is going well. Right over towards this end right here is where the boat lift, proposed boat lift is right here on that end of the facility. All these finger piers that you see there are all around 12 feet long. They're considerably short. There's a restriction there that the boats can't be any longer than 22 feet long, the hull of the boat, in this area here. And stick with me here. I'll need your help again there. This is the drawing, kind of a closeup of the drawing. It shows the positioning of the boat lift right there, the proposed lift. This is the existing finger pier right here. And you can see there that what we're doing it is actually sticking out an extra 10 feet into the water. At the bottom there, you see that shows the water depths. The water depth at the bow of the boat, whether it's sitting in the water or whether it's on the lift, of course, is approximately 1.8. That's how deep it is at low tide, which is around one foot, nine inches deep. Towards the stern of the boat it's going to be about three-and-a-half feet deep. So that's the view there. I'm now going to put a drawing there that shows how the boat sits on the lift, would sit on the lift. If I do that right. Whoops, upside down. All right. As most of you know that have a boat, the center of gravity of a boat is not in the middle of the boat, it's about two-thirds November 6, 2008 towards the back because of the motor. And so when it sits on a boat lift, that has to be towards the center of the lift. That's the 22-foot boat, and it shows how it would sit in the slip. Now, this is how it would sit in the slip regardless ifthere was a lift or not. If there was no lift there, it's going to float in the water there. And as you can see, it's going to protrude into the waterway that distance regardless. Regardless if there's a lift there, regardless if there's not a lift there, that's how the boat will sit there. The applicant just wishes to put a boat lift there for the obvious reasons that anybody would want a boat lift in Florida. There's sufficient room there, there's sufficient depth for his boat. And the next one I want to show you is the positioning. I don't know how good an aerial this is. I'd like to show you how it's positioned -- yeah, see how that shows up. Yeah, not too bad. All right, you can see the arrow that says project site. That's where it is in relationship to the bay. There's Hickory Harbor down this way is another condominium with some other slips. The route for the boats to come along is come along towards the back of these slips along here and then go out towards the bay out this way. So this particular site is at the very far end down towards this way. That's probably almost as far away from there as you could possibly get. Just a couple additional things here. In my opinion, I think in staffs opinion -- staff, I won't speak for you, I'll let you do your own speaking. But I don't believe there will be any impact on view here, I don't think there will be any impact on navigation. The bow's going to be sitting like I said on approximately one foot, nine inches of water, the stern in about 3.6 inches of water. And basically with the width of the waterway there, at around 3,150 feet, I don't think that a 10-foot protrusion is too much to ask for. And I would answer any questions you'd have. Page 55 November 6, 2008 CHAIRMAN STRAIN: Questions ofthe applicant? Mr. Kolflat? COMMISSIONER KOLFLAT: Yes, Mr. Nelson. MR. NELSON: Hello. COMMISSIONER KOLFLA T: I have some questions, but in the interest of time I've written them out, so I'll read them through so we can move through them quickly. Does slip number one area and structure revert to a single-family lot upon purchase from the condominium? A little interest in the ownership here. Because originally all of these boat slips were owned by the condominium. And I understand Mr. Donahue now owns just slip number one. MR. NELSON: I'll take your word for it. I think that that's exac -- I think that's what it is. Mr. Donahue outright owns slip number one? Yes. COMMISSIONER KOLFLA T: Does that include also the land underneath the water, the submerged land? MR. NELSON: I know that the state does not have any deed or any rights to these lands. The state doesn't. So I don't know about owning the land underneath the slip. But it's just kind of a fee simple thing, I think. COMMISSIONER KOLFLAT: Well, the width of the land that now is owned then by Mr. Donahue, is that about twice the width of the boat? MR. NELSON: The width? COMMISSIONER KOLFLAT: Width of the land if you -- MR. NELSON: It would just be the individual slip I think is what it would be. COMMISSIONER KOLFLAT: So it would be as wide as between the two piers there, that's -- MR. NELSON: Yeah, halfway between the two piers, yeah. Page 56 November 6, 2008 COMMISSIONER KOLFLAT: The reason I ask is the criteria addresses single-family units as well as multi-family unit slips. And this then I think would fall under the single-family one, because it would be just one person that owns it. MR. NELSON: It would probably more likely still fit under the multi-family. That's the way it was treated through the process, and it's been treated as a multi-family slip, so -- but I can let staff address that probably better than 1. COMMISSIONER KOLFLAT: Well, one thing in looking at this that concerned me when I went down and inspected it was whether this petition would set a precedence for installation of similar lifts in the other 23 similar slips. In other words, is there any protection on that from the -- MR. NELSON: Well, I can't speak as to setting a precedent. I think each individual one would have to be treated as its own entity there. I want to show you another aerial to give you some idea of what we're dealing with here. Hold on. I'm going to get seasick here watching you do that. Okay, this is kind of interesting. This is a view of the bay right here. If I make a mistake and point out the wrong site -- can you zoom in a little closer? Okay, that's good. There are a considerable number of boat slips with docks. These two -- this is weird. These are further down the way. And these particular slips down here all have boatlifts on them. Every one of them have boatlifts. And these are further down the way. The subject site -- this is hard to do. The subject site is right around in this area right here. None of these have boatlifts that I'm aware of. But there are, you know, a few boats in there. So this would be the first boatlift in this slip. But all of these, all of these down this way, as far as I can tell, have boatlifts. So it's not unusual for that general vicinity for the multi Page 57 November 6, 2008 slips to have that, just not at this one place. COMMISSIONER KOLFLA T: Well, since all those 24 slips are so similar, my only concern was the possibility of establishing a precedence in this petition that would prevail. I recognize they would have to come before the commission for approval, but still they would possibly -- with precedence. MR. NELSON: Okay. COMMISSIONER KOLFLA T: But let me go on, in could, another question I had on this. The application, Page 3 of 8, calls for application to be accompanied with the site plan to scale showing dimensions and locations of existing and proposed dock structures. The plan that you had there before, if you could go back to the overhead plan of the slip? That's the one. Does that -- the dimensions that are missing there, and in the interest of time I've scaled and would like confirmation or correction for the record of what those dimension are. As I've scaled it, the existing finger pier widths are three feet wide. Do you concur with that? MR. NELSON: Yes. COMMISSIONER KOLFLA T: The existing finger pier lengths are 12 feet, four inches long. Do you concur with that? MR. NELSON: Yes. COMMISSIONER KOLFLAT: The existing finger pier separations, that is, the distance between the two piers, each pier, is 20 feet, do you concur with that? MR. NELSON: No, they vary. They vary considerably. They go anywhere from 20 -- I believe are 20 feet anywhere to 22 feet along there. We have a survey that kind of shows those distances. So they're not real symmetrical. COMMISSIONER KOLFLAT: Now, if you could put on that overhead that shows the cross-section elevation of this slip. There it is, Page 58 November 6, 2008 down in the bottom. Now, I scaled off that lift height, the top of that lift height is 10 feet above the finger tier (sic). Do you concur with? MR. NELSON: No. Generally the lift -- the top of the beam is around six feet to six foot, three inches above the deck. That's the usual heighth. COMMISSIONER KOLFLA T: So this would be six feet rather than 10 feet. MR. NELSON: Approximately six feet. COMMISSIONER KOLFLAT: Well, according to the scale I came up with 10 feet, so I appreciate the correction. Now, on the other overhead that you had, not the aerial but the other one that shows the waterfront site plan. If you could you put that up. MR. NELSON: This one? COMMISSIONER KOLFLA T: Yes, that one. Now, how many spaces in there between the finger piers do you come up with? MR. NELSON: Looks like two, four, six, eight, 10, 12, 14, 16, 18,20,22 in between the finger piers. And then if you count the outsides of them, it would be 24. COMMISSIONER KOLFLA T: So that's how you come with the 24. One boat is moored on the outside of that last finger pier; is that correct? MR. NELSON: Yes, there's opportunity for that. COMMISSIONER KOLFLAT: Even though the catwalk does not go that far. MR. NELSON: Yes. COMMISSIONER KOLFLAT: Well, the drawing shows there I think of276 feet. COMMISSIONER WOLFLEY: 86. MR. NELSON: Yeah, 286 feet. Page 59 November 6, 2008 COMMISSIONER KOLFLA T: But if each finger pier was three feet wide and there were 12 slips so to speak for 24 width, that would be 276 instead of286. Well, it's not an important amount because it's so much -- MR. NELSON: Yeah, like I said, they're pretty inconsistent, so COMMISSIONER KOLFLAT: All right, what is the length of boat of the LOA? MR. NELSON: I beg your pardon? LOA? COMMISSIONER KOLFLAT: What was the LOA of the boat that you're going to put there. COMMISSIONER MURRAY: Length overall. MR. NELSON: Oh, I'm a marine contractor, I don't know that, right? CHAIRMAN STRAIN: Mr. Kolflat hates acronyms. MR. NELSON: Whoops. So much for my 30-year resume there. I'm going to mark that out there. The overall length of the boat probably would be, including the motor, would be about 24 feet. We figure 22-foot boat, which is the hull, the maximum hull length that you could have in there, with another two feet of motor sticking out would probably be about 24 feet. COMMISSIONER KOLFLA T: So the LOA would be 24 feet. And the draft is what? MR. NELSON: I think the hull depth is going to be about one foot, six inches, the actual hull depth. And then, you know, with outboard motor, you know, you bring the motor up or down, probably the maximum depth for the motor would be three feet, if you put it down. COMMISSIONER KOLFLAT: So it could be anywhere from two and a half feet to three foot? MR. NELSON: Foot and a half to three feet. Page 60 November 6, 2008 COMMISSIONER KOLFLAT: Now, this 7,000-pound Alamo hoist that you reference kind of intrigues me, because I've had a lot of boats in my lifetime, but I've never seen -- MR. NELSON: I'll give you my card before I leave. COMMISSIONER KOLFLA T: Can you describe this Alamo hoist that you're going to have there? MR. NELSON: Yeah, it's a standard four-post lift. And what it is, there's an aluminum cradle with bunks and it's a cable lift, electrical, so it picks it up. You come in and there are wooden bunks that support it like a boat trailer. So yeah, it's a pretty standard lift for the area. COMMISSIONER KOLFLA T: Are there straps underneath or hard copy? MR. NELSON: You can do either one. In this case we're assuming that we're going to be able to do the aluminum cradle. But there is an option to do the straps there if the water depth is really shallow. You know, if it becomes a problem, we can just put straps underneath it. COMMISSIONER KOLFLA T: And the overall height would be the same regardless of what it was -- MR. NELSON: Regardless. COMMISSIONER KOLFLAT: Will any maintenance or repair activities be performed with the vessel in the elevated position? MR. NELSON: No, it would be virtually impossible for that to happen, unless it's just minor, you know, inside the boat. COMMISSIONER KOLFLA T: So you plan no maintenance activity there. MR. NELSON: I wouldn't think that there would be anything there. COMMISSIONER KOLFLAT: Will the lift have a canopy top? MR. NELSON: No. COMMISSIONER KOLFLA T: Could it have a canopy top in Page 61 November 6, 2008 the future? MR. NELSON: Not without permission of the association. And I doubt that that would happen. As a matter of fact, I could pretty much guarantee that that wouldn't happen. COMMISSIONER KOLFLAT: I have just a few more, in can get my papers in order. You submitted with your petition an agreement with the Department of Environmental Protection. Do you recall that? MR. NELSON: Yeah, sure. COMMISSIONER KOLFLA T: Could you turn to that? Because I will have some questions on that. MR. NELSON: While I'm looking for it, go ahead -- oh, I found it, look at that. That was an accident. Go ahead. COMMISSIONER KOLFLA T: It has a big seal on the center, the State of Florida. MR. NELSON: Yep. Yes, sir, go ahead. COMMISSIONER KOLFLA T: Okay, under one there under that agreement, it states that this condominium association in putting the slips in will have construction of 16 boat slips. Now, that differs from the 24 that you're putting in. MR. NELSON: Okay, yeah, you're looking -- we've got several DEP agreements. The DEP exemption that we have is a different document. You're looking at the one that is for the docks itself, the older agreement? COMMISSIONER KOLFLA T: I'm looking at the one you put with your packet that I received. MR. NELSON: I think both of them were put with the packet? Yeah, I think both of them were put there. There are actually two DEP agreements. The one is for the original permits for the dock. And then the other one, we actually went and got an exemption from the DEP for the individual lift. That one's included in the packet as well. Page 62 November 6, 2008 But go ahead and ask me the question. COMMISSIONER KOLFLA T: There was a discrepancy between the 16 and the 24 boat slips that concerned me. I mean, you've got two documents. One here, your petition says 24 boat slips and the State Department document says 16 boat slips. My concern being has the Department of Environmental Protection reviewed the 24-slip one? That's on item one on the first page of that -- MR. NELSON: Okay. Yeah, I can't account for that, because the drawing that accompanies that does correctly indicate the 24 slips, so COMMISSIONER KOLFLAT: I have a copy here, if you'd like to -- CHAIRMAN STRAIN: Sir, I'm sorry, we can't have comment from the audience, unless you want to come up and use the speaker. You're more than welcome to. MR. NELSON: Yeah, anyway-- COMMISSIONER KOLFLAT: Well, I have trouble with the lack of consistency between the documents that say the number of slips we're talking about. CHAIRMAN STRAIN: Okay, well, why don't we go on-- MR. NELSON: I think staff can probably help you with that question, if you want to go ahead and finish with me and then -- COMMISSIONER KOLFLAT: Well, let's continue with the same document. Go to Page 2, down item 14 on the bottom of that. Do you have that? MR. NELSON: Well, what's your question? Because I'm having a hard time finding any of this anyway. So go ahead and ask me. COMMISSIONER KOLFLA T: Well, I can let you use mine, if you want. MR. NELSON: No, that's okay. Ask -- what would you like to know. Page 63 November 6, 2008 COMMISSIONER KOLFLAT: Well, it says only boats drawing 1.5 feet or less shall be allowed to moor at the docking facility. MR. NELSON: Yeah, I think this was a 1988 document. It wasn't unusual for them at that particular time to put restrictions on the hull depths. COMMISSIONER KOLFLA T: But does this document still apply? MR. NELSON: I don't believe it does. And when I talked to people at the DEP -- I don't believe it does at this particular time, because the state lands doesn't really have jurisdiction over this particular body of water right now. But regardless, I think the hull depth, the actual hull depth on this boat is consistent with that. COMMISSIONER KOLFLA T: Well, the hull depth that you testified to is three feet -- MR. NELSON: 1.5 feet. COMMISSIONER KOLFLAT: And it says it must be less than MR. NELSON: Foot and a half. COMMISSIONER KOLFLAT: -- one and a half to be used-- MR. NELSON: The hull depth is a foot and a half. CHAIRMAN STRAIN: Mr. Kolflat, could you pull your speaker closer to you? I didn't know you're -- how long you're going to take, but we need to be able to hear more of what you're saying. COMMISSIONER KOLFLAT: Okay. Well, here again I'm concerned because one document says one thing and another document says a different time and there's nothing that says that the Department of Environmental Protection document no longer exists. MR. NELSON: I do think it's consistent with that, though, I believe. And if this applicant's not consistent with it, then there's a whole lot of people in trouble down there, so -- Page 64 November 6, 2008 COMMISSIONER KOLFLA T: That's all the questions I have, Mark. CHAIRMAN STRAIN: Mr. Schiffer, then Mr. Murray. COMMISSIONER SCHIFFER: One question I have, and you can -- you have a drawing that shows the property line. The work you're going to be doing is over the property line for the condo. Is that a concern or is that -- MR. NELSON: No. And, you know, there is an inconsistency. Mark Allen's survey shows that property line out in the water, but I believe it's Trigo drawing shows that it's not. Here we go. You never can have enough paperwork here. See, that was the original survey used for the deed permit. And as you can see, it shows that it's not going to be when we scaled that off there. So there is a little discrepancy in that positioning, so -- but regardless, regardless of where that property line is, because state lands has no jurisdiction over it, it doesn't matter. COMMISSIONER SCHIFFER: Okay. So you could build in-- MR. NELSON: Sure. COMMISSIONER SCHIFFER: -- over the line? MR. NELSON: Absolutely. And it's not at all uncommon for that to happen. COMMISSIONER SCHIFFER: Second question is, are you going to extend the dock itself, the wood walking surface? MR. NELSON: No. COMMISSIONER SCHIFFER: And then can you put up that one picture you have where that boat's sitting on the lift. And in your request, you're measuring to the center line of the lift itself, the support for the lift. Should you be actually asking for a little more area? Because I think -- and maybe John-David can answer this, but I think it's the actual boat length itself that we have to establish here today. MR. NELSON: I don't understand your question. Rephrase that, Page 65 November 6, 2008 if you would. COMMISSIONER SCHIFFER: Well, in other words, the dimension you're requesting takes you to the center line of the lift pile. MR. NELSON: Oh, I got you. I got you. COMMISSIONER SCHIFFER: And you're actually going to go sticking out a little bit more. And just, in other words, should we be adding a little bit more on there? MR. NELSON: I don't know. That's a good question. The request was to -- for the request to be to the end of the piling there. But if the boat's sticking out over the end of that, so -- COMMISSIONER SCHIFFER: And all of your dimension are to the center of that pile so -- MR. NELSON: Yeah, center pile. So -- COMMISSIONER SCHIFFER: -- we might want to tweak-- MR. NELSON: -- I think that -- yeah. I think that it's a good point. And when we do these, we actually go to the outside of the piling. So actually it wouldn't be done as drawn there. We always try to err on the side of safety and come back this way a few inches, because there's nothing worse than being turned down and have to redo it because it was four inches over the line there, so -- COMMISSIONER SCHIFFER: And I'll wait for Ashley, because I think we might want to measure to the boat itself. Thank you. CHAIRMAN STRAIN: Mr. Murray? COMMISSIONER MURRAY: Mr. Nelson, Commissioner Kolflat had a series of questions, and one of them that piqued my interest, and you made a response when he asked you if there'll ever be a canopy and you said well, I don't think so, it pretty well precludes that because of the condo. MR. NELSON: Right. COMMISSIONER MURRAY: However, you also indicated that Mr. Donahue bought the property in fee. Does he not have heir rights? Page 66 November 6, 2008 I would assume that he does. And my point here is this, and maybe it's answerable, and perhaps not. But in terms of the condominium, I can't imagine that the condominium association has any document that presumed that such an event would occur. And so I do not know. Ifhe's the owner of that, solitary owner of that particular one, I don't know that you can make that statement. And it's important to us, and I'm not merely being picky. Because there have been requests for covers, and those requests I believe this body agreed that those types of things can be put on there. So you are basically saying that it can never happen. I think you need to go on the record to be absolutely certain that you know that as a fact. MR. NELSON: Well, I mean, what I'm basing that on is before -- it's been my experience that in these situation, regardless if someone owns the slip or whether they just have first right to use it or whatever, you still -- we still had to get permission from that condominium to put the lift in. Because it's the -- he doesn't own the dock. He just owns the rights to the slip is what you own. COMMISSIONER MURRAY: So he doesn't own it in fee then. MR. NELSON: He doesn't own the land or anything like that. He owns the slip. COMMISSIONER MURRAY: Okay, well, then that's the mistake -- MR. NELSON: As I understand it. COMMISSIONER MURRAY: Okay, then, it's a different story entirely. MR. NELSON: Thank you for the question. CHAIRMAN STRAIN: Mr. Midney? COMMISSIONER MIDNEY: I'm just curious, why does this slip need a lift and the other 23 in this section don't? MR. NELSON: I think it just boils down to the other people Page 67 November 6, 2008 haven't asked for one. COMMISSIONER MIDNEY: They're not intending to get a longer boat or a bigger boat than the other ones? MR. NELSON: No, you know, I think it just varies in there. You'll see different size boats along in there. To be quite frank with you, most people don't go through this process, they just go ahead and let their boats sit in the water rather than go through the process. And my client here just wants to be able to pick his boat up. These docks have been here for quite a long time, I guess since 1988 or whatever, and it's just -- it's more of a trend to start adding these boatlifts. And unfortunately for this board, you probably see more of these throughout the county because of that. Most people, including the DEP -- the DEP would rather see you have the boat sitting out of the water than have it sitting in the water. Just environmentally it's the best thing to do. COMMISSIONER MIDNEY: There's no restriction on boat length or boat draft here? MR. NELSON: There's a restriction on boat length, the 22-foot hull length here. COMMISSIONER MIDNEY: Thank you. MR. NELSON: And like I said, there is the foot and a half hull depth restriction in that '88 DEP permit. CHAIRMAN STRAIN: Any other questions of the applicant? Mr. Kolflat, and Ms. Caron next. COMMISSIONER KOLFLAT: Could you put that overhead again showing the entire frontage of dockage with the catwalk on it? MR. NELSON: That one? COMMISSIONER KOLFLA T: No, the other one. That's the one. Yeah, that's correct. Now, as I understand it from being -- visiting and talking with Mr. Donahue that the channel from the boats down to the east of this would traverse along the front of this. And which number slip would Page 68 November 6, 2008 they make the left-hand turn to go out of the bay? Can you identify that by how many from his slip there would be to make a left-hand turn ? MR. NELSON: Well, being on open waterway and depending on the tide, there's all kinds of different ways to get across that bay. But, you know, a lot of people would probably argue that they will hug the fronts of those docks almost down towards the end and then cut across wherever they can. I want to put a picture on here, it's not a very good one, that shows a boat coming in. And I'm not going to tell you that this is typical, because there probably may be no typical way to really come in and out of here, but let me put it up here. Or let me let him put it up there, since I don't know what I'm doing. Now, the slip in question is right over here. Right about there. That's where the slip is. And you can see that the bank is all the way over towards this site over here. So people will actually come along here probably and then turn at some point. And you know what? The fact of the matter is -- I'd like to point out again that whether there's a lift there or whether there's just a boat there, it really -- the boat sticks out further than the lift would. So they're going to have to drive past the boat, even if it's sitting in the water or if it's sitting on the lift. In my mind, regardless. COMMISSIONER KOLFLA T: But my understanding with Mr. Donahue when I visited with him down there was that people coming from the left side, which is the east, would go along the front there but they would make a left-hand turn to get out of the way long before they reached his slip number one. It might be slip number five, slip number six, slip number eight. And my question was: Can you identify for me which number slip it is they would be making the left-hand turn? MR. NELSON: No, I can't. Because you know what? People are -- some people are going to insist on going all the way down past the Page 69 November 6, 2008 end and some people are going to probably turn earlier than that. And people here in the audience will probably tell you where they're likely to turn at. But I would argue that it's probably not relevant, mainly because if there's going to be a 22- foot boat there sitting in the slip, and there is going to be one sitting there, they're going to have to drive past it one way or the other. It's -- it just is. Whether there's a lift -- if you don't approve the lift today, the boat's going to sit in the water and they're going to have to drive past the boat. If you approve the lift today, they're going to have to drive past it. COMMISSIONER KOLFLAT: The point I'm trying to make in defense of your client, Mr. Donahue, is that boat traffic coming from the left will make a left-hand turn long before it gets near his slip or boat. So the property of interfering with any kind of a channel, whether it's chartered or not chartered or just using a general nature is very remote and not possible. MR. NELSON: Yes. And I think that this boat here probably represents Mr. Donahue's opinion of where that they -- the traffic usually goes. And if you -- it's probably -- the direction that the boat's coming in at, they're probably going to be ending up intersecting where the boats are that you see sitting in the slips, it's probably going to come in probably at that fourth or fifth slip there. So it's probably consistent with the conversation that you had with Mr. Donahue. COMMISSIONER KOLFLAT: Right. Thank you. MR. NELSON: You're welcome. CHAIRMAN STRAIN: Any other questions before we go to staff report? Ms. Caron. Sorry. COMMISSIONER CARON: Yeah, looking at that picture right Page 70 November 6, 2008 there, none of the boats in those slips come out beyond the end of their slip other than the motors themselves kind of hang, it looks like. COMMISSIONER MURRAY: They do. MR. NELSON: I've got another picture. An actual picture here. It's kind of hard to tell from that angle, to tell you the truth. But I can guarantee you, they're not 12 feet long. Typical boat there is going to be -- very seldom are you going to see a boat shorter than 18 feet long anymore. I mean, it's possible. But usually they'll be 18 to 22 feet long. So here's a picture -- my lovely assistant. Thank you very much. MR. BELLOWS: Vanna. MR. NELSON: You don't pay him for this, do you? COMMISSIONER CARON: That is a much better picture. MR. NELSON: Now -- and you can see the end of the dock there and you can see some of the other vessels down the way sticking out, pontoon boats, other boats sticking out past there. So it's just typically that's what you'll see there. I'm not going to tell you it's the best dock design in the world. It's obviously not. I can't tell you why they were made to that length there, but obviously they weren't anticipating 12-foot long boats. I mean, I don't think that that was -- because they put the restriction at 22 feet long. But there you have it, so -- COMMISSIONER CARON: I did want to just clarify one thing that you said, that the draw on Mr. Donahue's boat would be anywhere from 1.5 to three. MR. NELSON: Approximately, yes. COMMISSIONER CARON: Okay. I think Mr. Kolflat is right, you are under a DEP agreement that says specifically that only boats drawing 1.5 or less, not or more, not or three, shall be allowed to moor at the docking facility for the life of the facility. So Mr. Donahue should just be aware of that. That's the agreement he's under right now. MR. NELSON: Right. And that isn't the only restriction on Page 71 November 6, 2008 there, too. There are signage and all kinds of things that-- COMMISSIONER CARON: Absolutely. MR. NELSON: -- the condominium is responsible for doing there. COMMISSIONER CARON: It goes on for 17 or 18 items. MR. NELSON: Yeah, there's a lot. COMMISSIONER CARON: I just want to make sure he's aware and that his boat is complying. MR. NELSON: Thank you. CHAIRMAN STRAIN: Anybody else before we go to staff report? (No response.) CHAIRMAN STRAIN: Okay, Ashley? MR. NELSON: Thank you. CHAIRMAN STRAIN: Thank you, sir. MR. NELSON: Let me clean up my mess here. MS. CASERTA: Good morning. For the record, Ashley Caserta, Department of Zoning and Land Development Review. This is an existing multi-slip facility, and there's no additional decking being proposed. They're proposing to protrude an additional 10 feet. And I just want to put on the record that the protrusion is only for slip number one, and any additional lifts that would be proposed to go out into the water further than what is existing would be required to come back for another dock extension. Commissioner Schiffer, your point that the vessel protrudes into the water past the lift would be applicable. The dock facility does include the vessel. And the protrusion requested should include the vessel. That was not shown within the application. That's the first time that's been shown. COMMISSIONER SCHIFFER: Mr. Chair? CHAIRMAN STRAIN: Well, Mr. Murray had his hand up first. Page 72 November 6, 2008 But if you want to respond to her direct inquiry of your comment, go right ahead. COMMISSIONER SCHIFFER: So Ashley, essentially the dimensions shown should be greater? Because it does have to include the actual boat itself, correct? MS. CASERTA: Yes. Within the application, the protrusion was shown to the edge of the lift. And there was no vessel shown sticking out past the lift. COMMISSIONER SCHIFFER: I think actually it's shown to the center line of the support for the lift, the pile. CHAIRMAN STRAIN: Pull the mic. closer to you, Brad. COMMISSIONER SCHIFFER: Yeah, it was shown to the center line of the support for the pile. So, I mean, are we allowed to lengthen that at this hearing or does that affect the advertising, or what's the -- MS. CASERTA: I'll have to check into the advertising. County Attorney, I'm not sure if you know that, or-- MR. KLATZKOW: We didn't have any issue with the advertising. We did look into it. CHAIRMAN STRAIN: Well, she's suggesting if it has to go to 13 feet in lieu of 10 feet, is that going to change the ad. MR. KLATZKOW: No, this -- okay. MS. CASERTA: That could be revised within the resolution and would come back. COMMISSIONER SCHIFFER: All right, thank you. CHAIRMAN STRAIN: Mr. Murray? COMMISSIONER MURRAY: Yes, hi, Ashley. Reference Page 8, please. MS. CASERTA: Of the application? COMMISSIONER MURRAY: Of your staff report. Staff recommendations page. MS. CASERTA: Yes. Page 73 November 6, 2008 COMMISSIONER MURRAY: Just a couple of questions on there. I noted on here items one through four. Are they not already there? Is that not already in place, those requirements? Reflectors, dock numbers, manatee protection signs. MS. CASERTA: Well, two through four would be number one we added, which reads the extension is granted exclusively for slip number one, and wouldn't apply to the rest of the slips. COMMISSIONER MURRAY: Well, that I can appreciate. But my question there would be the question of ownership. I think it's more exclusive right, but that's all right. But regarding corresponding permits, reflectors, dock numbers, manatee protection signs, I recognize you just put them in there to be sure, but are they not there already? MS. CASERTA: They should be. I didn't check for them-- COMMISSIONER MURRAY: You didn't visit the location? MS. CASERTA: But yes, it's an existing facility, and those requirements would be in place. COMMISSIONER MURRAY: Okay, under number five, we're speaking about all prohibited exotic species, as such term may now or hereinafter be established in the LDC, shall be removed from the subject property. If he has exclusive use of a slip, what exotic species do you expect him to have that he'd have to deal with? Because this one relates directly -- to you said exclusive use. I know it's been asserted ownership, but let's say exclusive use. What exotic species would he be dealing with? Especially hereinafter. You're effectively requiring of this individual or subsequent exclusive right to use person, in perpetuity you're saying that they have to effectively comply with a certificate of completion? What all are we doing there? MS. CASERTA: That is a standard environmental stipulation. COMMISSIONER MURRA Y: I know. Page 74 November 6, 2008 MS. CASERTA: And that would be -- I guess it's subject to the entire property. Susan Mason may be able to answer that a little more clearly. COMMISSIONER MURRAY: Well, I think it needs to be answered or it needs to be removed, quite frankly. I don't think it belongs there. And then also under number seven we talk again about prohibited exotic vegetation shall be removed from the site. I recognize that it's a matter of some convenience to take things from -- and put them in. But I think in this case we probably shouldn't do that. Susan? MS. MASON: Good morning, again, for the record. Removal of exotics is required for any type of development in the county, and maintenance in perpetuity is also a requirement. On a site like this where it's largely water, if it ever silted in there might be some exotics that would be removed. But I would believe mostly the maintenance of the site. The property owner isn't going to want any vegetation growing where his boat slip is. He's going to keep it maintained and cleared so a boat could come in there. It is a requirement of the LDC whether or not the condition was put in there that exotics would have to be removed. COMMISSIONER MURRAY: I guess I must just have woken up, because honestly, I don't remember this being in any of the boat dock set of recommendations. MS. MASON: It's a standard part of our checklist. And I don't know if it always has been put in staff reports or not, but it is a requirement. COMMISSIONER MURRAY: Well, I don't know. In this case this gentleman is attempting to put in a lift. He already has a right to use the water, and the posts between or whatever. I don't get the exotic species part of it. But what I'm concerned about is the hereinafter portion of it that Page 75 November 6, 2008 -- subject property shall be removed and prior to issuance of required certificate of completion. MS. MASON: Whenever the building department does inspections on anything, part of their review, and I believe sometimes it's maybe even some staff from the engineering department, when they go out and do the reviews, they make sure -- excuse me, inspections -- that exotics are removed prior to C.O. or whatever kind of certificate of completion is -- COMMISSIONER MURRAY: In the water. MS. MASON: Wherever it's done. I don't -- I don't know of any time there would be exotic vegetation in a boat slip area. I doubt that . , It s -- CHAIRMAN STRAIN: Why don't we just short-circuit this and drop -- and strike staff recommendations five and seven. COMMISSIONER MURRAY: That's what I'm trying to get to. CHAIRMAN STRAIN: I know, and I think you're right. And this is kind of silly, because the property in question is boat slip number one, which is under water. So Mr. Murray, you're 100 percent right, it's something that if we've missed it before I hope we don't miss it again. So thank you for pointing it out. Mr. Wolfley? COMMISSIONER WOLFLEY: You just did it. MS. CASERTA: I believe that was requested by environmental staff to be added -- CHAIRMAN STRAIN: Right. It's impractical and it doesn't surprIse me. MS. ASHTON: -- for this petition. CHAIRMAN STRAIN: Are there any other questions of staff? (No response.) CHAIRMAN STRAIN: With that, is there any public speakers, Ray. Page 76 November 6,2008 MR. BELLOWS: No registered speakers. CHAIRMAN STRAIN: Anybody in the audience wish to speak? Sir, you have to come up and identify yourself for the record. MR. DONAHUE: I'm the applicant, Peter Donahue. CHAIRMAN STRAIN: Were you sworn in at the time we-- MR. DONAHUE: Yes, I was. CHAIRMAN STRAIN: Okay, thank you. MR. DONAHUE: I have a few handouts that may be helpful, just kind of give you an overall picture of -- some of these have already been put on the overhead. COMMISSIONER KOLFLA T: Did your wife vote? MR. DONAHUE: Yes, we voted. CHAIRMAN STRAIN: Those are all pictures that have been on the overhead, yes, sir. MR. DONAHUE: Correct, they have been. I guess to answer Mr. Kolflat's question about setting a precedent, I am the only one in this situation where I own a slip. The developer, when they originally built this condominium, set aside -- he sold two slips to individual unit owners. And I own one slip. The other slip is to the west of me, at the very end. So there will be no precedent set, because everything else is a limited common element. It is for the use -- and same thing at Little Hickory Bay. Any of the unit owners can use the slip, first come/first serve basis. And they cannot improve the slip because they don't own it. It is a limited common element. I am the only one that owns the slip. As far as the draft of my boat, it is not 1.5. That's almost a sailboat. I probably don't draw more than 12 to 18 inches of water. And with a boat down it may be 1.5. But I own a 19-foot, six-inch Hurricane deck boat. I'm probably going to get a 20- foot fishing boat, but it will not have a draft anywhere close to 1.5. Page 77 November 6, 2008 No canopy. I have no problem whatsoever, if you want to approve this with the restriction that there'll never be a canopy added. I know that I own this slip subject to the rules and regulations of the condominium association. Anything else I would do would have to be subject to the approval of the condominium board. The main point I'd just like to point out is whether my boat is in the air or in the water, it will have the same distance off the dock. And people do not come all the way down to my end of my dock to go out into that bay. There is plenty of room to turn way before they get to my dock. And again, whether it's in the air or in the water, it protrudes out the same distance. And if you have any questions? CHAIRMAN STRAIN: Any questions? (No response.) CHAIRMAN STRAIN: Thank you, sir. With that, we'll close the public hearing and entertain a motion. COMMISSIONER SCHIFFER: I'll make it. CHAIRMAN STRAIN: Mr. Schiffer? COMMISSIONER SCHIFFER: I move we forward Petition BD-2008-AR-13305 to the Board of County Commissioners with a-- well, wait a minute, it ends here. COMMISSIONER CARON: This is it. COMMISSIONER SCHIFFER: That we approve BD-2008-AR-13305, with the following revisions to the staff recommendation. I think changing the 10 feet to 13 feet. Changing the 54 feet to 57 feet. And I guess removal of four and seven -- CHAIRMAN STRAIN: Five and seven. COMMISSIONER MURRAY: Five and seven. CHAIRMAN STRAIN: That's the exotic language. COMMISSIONER SCHIFFER: Okay. Yeah, four looks like it Page 78 November 6, 2008 on mme. CHAIRMAN STRAIN: Four? COMMISSIONER SCHIFFER: I'm looking at the actual resolution. CHAIRMAN STRAIN: Oh. MS. CASERTA: It's different in the staff report and the resolution, I just realized. But I noted which ones you were talking about. CHAIRMAN STRAIN: Okay, Mr. Schiffer, if you go look at the exact resolution, you're right, it's four and seven. You know what one we're -- the two exotic ones. MS. CASERTA: Yes, I noted them. They're five and seven I believe in the staff report. COMMISSIONER MURRAY: Second. CHAIRMAN STRAIN: And Mr. Schiffer, did you have any more conditions? COMMISSIONER SCHIFFER: No, that's it. CHAIRMAN STRAIN: Okay, Mr. Murray seconded. Now discussion. Mr. Kolflat? COMMISSIONER KOLFLA T: Yes, I'm going to vote for the motion for the following reasons: Section 5.03.06(E)(1) states that boat dock facilities shall not protrude more than 20 feet into the waterway. The facility in this petition extends 54.5 feet into the waterway. Therefore, primary criteria one is not met since the literal interpretation of 11.17.94 as the most restrictive applies. Primary criteria two is met since ample water depth is available for safe launching and mooring. Primary criteria three is met since navigable channel turns away before reaching slip number one. Primary criteria four is met. Primary criteria five is met, since facility will not interfere with Page 79 November 6, 2008 the use of neighboring docks. Secondary criteria one is met, since slip is legal, nonconforming in use, and lift addition is a modification of existing use. Secondary criteria two is met since facility allows reasonable access without the use of excessive deck area. Secondary criteria three is met since owner of slip number one also owns upland of slip and boat width is greater than those waters of no merit or barren. Secondary criteria four is met, since large growth of mangroves along waterfront block out the view of the moored boats; the beautiful stand of mangroves there that block out the view, if anyone has objection to a boatlift view. Secondary criteria five and secondary criteria six are both met. So I'll be voting for the motion. CHAIRMAN STRAIN: Okay. Is there any other comments on the motion? (No response.) CHAIRMAN STRAIN: All those in favor, signify by saying aye. COMMISSIONER SCHIFFER: Aye. COMMISSIONER MURRAY: Aye. COMMISSIONER HOMIAK: Aye. COMMISSIONER KOLFLA T: Aye. COMMISSIONER MIDNEY: Aye. CHAIRMAN STRAIN: Aye. MR. WOLFLEY: Aye. COMMISSIONER CARON: Aye. COMMISSIONER VIGLIOTTI: Aye. CHAIRMAN STRAIN: Anybody opposed? (No response.) CHAIRMAN STRAIN: Motion carries 9-0. Mr. Nelson, thank you, you won one. By the way, was it Nelson Page 80 November 6, 2008 Construction that built those original docks? MR. NELSON: No, it was not. CHAIRMAN STRAIN: I kind of knew you'd say no, but thank you. COMMISSIONER KOLFLA T: They're awful good looking, though. CHAIRMAN STRAIN: Okay, that takes us on to our third item. And it's going to take longer than possibly the time we have before we break for lunch. And just in case it does, I want to make everybody aware that we take lunch about 11:45. We tried a few times thinking we'll be finished with something and finish it before lunch, but it ended up taking till 1 :00 or 2:00. So we tried to adhere to about 11 :45. So if we don't finish this by then, we may take a break, if we're not very close to the end of it. Item #9D PETITION: PUDA-2008-AR-13494, KITE KINGS LAKE, LLC CHAIRMAN STRAIN: With that in mind, the next item up is PUDA-2008-AR-13494, Kite King's Lake LLC, the King's Lake PUD. All those wishing to testify on behalf of this item, please rise to be sworn in by the court reporter. (Speakers were duly sworn.) CHAIRMAN STRAIN: Okay, are there disclosures on the part of the planning commission? COMMISSIONER CARON: Yes. I had e-mail correspondence with Mr. Y ovonovich. CHAIRMAN STRAIN: Okay, Ms. Homiak? COMMISSIONER HOMIAK: Yes, I've had a phone conversation with Mr. Y ovonovich, an e-mail, and conversations with Ron Cummings and ENCA, East Naples Civic Association board Page 81 November 6, 2008 members. COMMISSIONER CARON: I'm sorry, I should include Mr. Cummings. CHAIRMAN STRAIN: Did you finish yours, Karen? MR. SCHMITT: We couldn't hear her on the microphone. CHAIRMAN STRAIN: Okay, you want to repeat that, just so we're clear, then Ms. Caron's got a clarification. And then Mr. Murray, then Mr. Vigliotti. COMMISSIONER HOMIAK: I had a phone conversation with Mr. Y ovanovich, an e-mail from Mr. Y ovanovich, phone conversations with Ron Cummings, and I also spoke with the East Naples Civic Association board members. CHAIRMAN STRAIN: Ms. Caron, did you want to clarify? COMMISSIONER CARON: Yes, I just wanted to clarify that I also received correspondence from Mr. Cummings. CHAIRMAN STRAIN: Mr. Murray, did you have something? COMMISSIONER MURRAY: I had a conversation with Mr. Y ovanovich. COMMISSIONER VIGLIOTTI: So did 1. I also had a conversation with Mr. Y ovanovich. CHAIRMAN STRAIN: Okay, and I had a conversation with Mr. Cummings, Mr. Drumm, Mr. Y ovanovich and Mr. Arnold, all about issues that will be discussed and repeated here today. No further disclosures, we'll go forward with the presentation by the applicant. MR. YOVONOVICH: Good morning. For the record Rich Y ovonovich, on behalf of the petitioner. With me are Eric Strickland with Kite Realty and Wayne Arnold with Grady Minor and Associates that can answer any questions you might have regarding the petition. The King's Lake PUD was approved in the early Eighties, in 1982. And the list of permitted uses in the PUD are more generally described versus the SIC Code method that we're doing now in PUD's. Page 82 November 6, 2008 We were looking at putting in a health club in one of the vacant spaces within the existing shopping center, and the existing generally described uses didn't clearly identify that use. So we are attempting to amend the PUD to add that specific use, and at the same time put the PUD in a format that we're all accustomed to using, which is the use of SIC codes to describe the types of uses that would be allowed on the property. I believe you all have a November 5th memo to John-David Moss from Ron Cummings regarding the King's Lake PUD. Do you all have that? CHAIRMAN STRAIN: It was passed out to us I think sometime this morning. MR. YOVONOVICH: Okay. And we've got it as well. And what that does -- we got Mr. Cummings' October 29th letter indicating some uses they do not like, or did not like or wanted some clarifications. We responded to that with changes to the PUD document to address their concerns. And then they've produced this November 5th memo basically saying okay, they've reviewed our response and they still have the following additional comments. And you'll find those comments on Page 2 of the memo. Essentially we don't have any objections to their requested revisions to the last document we provided to them. So except for there's two clarifications we want to make. They're item number seven on Page 2. And I think they agree is we can have convenient stores, we just can't have convenient stores with gas pumps. So we would make it clear that we can have convenient stores without gas pumps. And then on item nine I think the correct terminology should be video tape rental except adult moves of any kind. I don't know that x-rated is the right terminology, and I don't think they have any objections to that clarification to the videotape rental uses. So I hope -- I believe -- I think we're in agreement with the Page 83 November 6, 2008 comments from our neighbors in King's Lake. Again, we're just trying to clarify the PUD to bring it up to the current terminology we're all used to using when looking at what uses are allowed or not allowed on that commercial portion of the PUD. We're available to answer any questions you may have regarding our request and our agreement with the community. And of course we would come back at the consent agenda to make sure we properly clarify the PUD to address the comments in the November 5th memo from the residents. And with that, that's our presentation, and we're available to answer any questions you may have. And staffs recommending approval and I think the community is now comfortable. And we hope that you all can also recommend approval to the Board of County Commissioners. CHAIRMAN STRAIN: Okay, are there questions? Mr. Schiffer? COMMISSIONER SCHIFFER: Rick, just a quick question to start. In our packet we got two copies of section six in strike-through version. Which one's the up-to-date one, and which ones should we be using? They are a little different. MR. YOVONOVICH: The one that goes with the ordinance in your packet, which would be -- I believe if we're in the -- it would be the last three or four pages. COMMISSIONER SCHIFFER: Okay. So the standalone one, ignore that. MR. YOVONOVICH: Yes. John-David says yes. CHAIRMAN STRAIN: Well, let me suggest something. There was one attached to the staff report. COMMISSIONER SCHIFFER: Right. CHAIRMAN STRAIN: And the staff report is dated more recently than the document you submitted for your original Page 84 November 6, 2008 application. So I was wondering, wouldn't the one with the staff report reflect the most recent? MR. YOVONOVICH: I believe what John -- can I ask John-David to make sure we're all on the same page, literally, to address which version? I believe it's the ordinance, the '08 ordinance, which is the last document in my package. There's an '08 ordinance, and then the strike-through follows that. And I believe that's what John-David is saying is the most recent version for us to work from and then address the community's concerns from that document. CHAIRMAN STRAIN: That's correct. When you said last, the last one in my packet is the one you provided originally with the application. MR. YOV ANOVICH: Ours our -- we have a different order. CHAIRMAN STRAIN: I wanted to make sure we weren't looking at that one versus the one now you're saying is the right one. MR. YOVONOVICH: Okay, okay. Yeah, it's just an ordering. COMMISSIONER SCHIFFER: Okay, that's all I had. CHAIRMAN STRAIN: Ms. Caron? COMMISSIONER CARON: Yeah. On the list of uses, under one, amusement and recreation services. Category 7911. Are you intending disco techs? MR. YOVONOVICH: Well, I would imagine that that probably falls -- COMMISSIONER CARON: I mean, I know you're a party animal, but -- CHAIRMAN STRAIN: How do you know that? MR. YOVONOVICH: You know, I have no response to that. COMMISSIONER CARON: His reputation precedes him. MR. YOVONOVICH: I have -- well, that may be my twin. COMMISSIONER CARON: Evil twin. MR. YOVONOVICH: Yes, there's the evil side. It's the bad November 6, 2008 witch that's up here on this shoulder. I would think that if we need to make that clarification, we can. But I would say that that's probably a bar, and we're specifically prohibiting bars as an allowed use on this property. So I would say a disco tech probably is in that category versus a dance studio, you know, ballet and things like that. COMMISSIONER CARON: I'm just reading from the SIC Code book. MR. YOV ANOVICH: Okay. COMMISSIONER CARON: So disco techs, except those serving alcohol, are listed there. MR. YOV ANOVICH: Let me put on -- we have -- if! could put on the visualizer, this is our proposed response to their October 29th, which will have to be further refined, but we had already eliminated bowling alleys. In the seven 7911 we're only asking for those four uses. CHAIRMAN STRAIN: She -- just as I was concerned, the document that we had talked about that was at the end of our packet, that's the one Ms. Caron was referring to. Your newer updated one did eliminate 7911. MR. YOVONOVICH: Right, okay. Okay. COMMISSIONER CARON: Yeah, go ahead, because I had lots of notes from -- CHAIRMAN STRAIN: Okay, Ms. Homiak? COMMISSIONER HOMIAK: At the neighborhood meeting, were all of these -- anything that was under on some of these, like business services you have a number of different SIC numbers there. Was every specific thing listed for the people to see what was under them, or just the number? MS. ARNOLD: If! might, I'm Wayne Arnold with Grady Minor. And at the neighborhood informational meeting we had at the Page 86 November 6, 2008 time filed the original application. We were schedule for hearing, and that's the point at which we had that neighborhood informational meeting. Since that time we have further restricted these uses. We've clarified some of those uses and further restricted them, but I think we went over with them essentially what our application was. I don't believe we've -- COMMISSIONER HOMIAK: But they didn't specially see every -- a list of everything that could possibly be there under those numbers? CHAIRMAN STRAIN: Well, the list that they passed out today reflects that they must have, because the numbers in between are some of the numbers that show up on the list that don't show up on the read-out in front of us. So somebody apparently went into the SIC and looked at those ranges, because some of the numbers that aren't here are from those ranges within the numbers that you don't see. MS. HOMIAK: Right. CHAIRMAN STRAIN: So somebody had them. I don't know if it was at the meeting, though. MS. HOMIAK: What I'm asking, if the people saw them at the meeting, not -- MS. ARNOLD: I don't -- I mean, we had them with us, and there were a couple of people who were interested enough and knew enough about SIC codes to talk specifically about it. Since that meeting obviously somebody had contacted John-David, and we also made available to anybody who wanted them electronic copies. I know our office provided copies to at least a couple of different residents who had e-mailed saying can you please keep us up to date, so we've provided electronic copies to those people who requested it. CHAIRMAN STRAIN: Any other questions? COMMISSIONER SCHIFFER: Just -- Page 87 November 6,2008 CHAIRMAN STRAIN: Mr. Schiffer? COMMISSIONER SCHIFFER: Rich, in the strike-through, you're going to take out the minimum off-street parking requirements. Essentially that means it defaults to the current Land Development Code; is that right? MR. YOVONOVICH: Yes, sir. COMMISSIONER SCHIFFER: The current Land Development Code, not the one at the time of this PUD. MR. YOVONOVICH: Correct. COMMISSIONER SCHIFFER: Why aren't you taking out off-street loading and unloading spaces and do the same with that? Is there a different requirement in the PUD than is in the current LDC? MR. YOVONOVICH: I don't know the answer. Wayne, do you? COMMISSIONER SCHIFFER: While he's doing that, Rich, the concept of current, does that mean the LDC in effect today that you're taking this off or whatever is in effect in the future when somebody's building something now? MR. YOVONOVICH: Let me look at the beginning of the document. I don't see the -- in some -- this is an older PUD, and I'm looking at the very beginning of the document. In some of -- in some of the older PUD's it makes specific reference to the PUD in effect at the time the PUD was adopted. I don't see that language in there. COMMISSIONER SCHIFFER: Okay. So that would mean 10 years from now if somebody's trying to use one of these activities when he's applying for that permit, he will be providing parking as per the code 10 years from? MR. YOV ANOVICH: It appears to be that way, Mr. Schiffer. We haven't asked to change any of those provisions within the PUD document. COMMISSIONER SCHIFFER: Then I guess the only question Page 88 November 6, 2008 is why is the loading not struck. MR. YOV ANOVICH: We're looking. But I'm assuming since it didn't -- since it had that requirement there and didn't specifically reference an existing code at the time, there either was not a standard at that time or it was different than what the standard was. COMMISSIONER SCHIFFER: Right. MR. YOV ANOVICH: So, I mean, I'm -- in an abundance of caution to make sure we -- since it's an already built shopping center, I don't want to run the risk of creating an inconsistency. COMMISSIONER SCHIFFER: Right. Okay, thank you. CHAIRMAN STRAIN: Anybody else? Ms. Caron, did you -- COMMISSIONER CARON: Yeah, well, I'll make a correction, and I think I e-mailed you this correction on what is now number eight, depository and non-depository institutions. I think it's groups 6021 through 6099, not 199. MR. YOV ANOVICH: Right. And if you -- if you look on the visualizer, we've made that correction to 6099. COMMISSIONER CARON: All right, I'm looking at what-- MR. YOV ANOVICH: I know. We've -- again, we've been working with -- there were some comments we'd gotten from the community on October 29th. We've done one revision to the documents and we'll do another based on their November 5th memo. And you'll see all of that at the consent agenda. COMMISSIONER CARON: And so basically you're in agreement 100 percent with this list. MR. YOV ANOVICH: Except for the two things I said. I wanted to clarify convenient stores, without gas pumps we agreed to, and use -- instead of x-rated, we would use the word adult videos. CHAIRMAN STRAIN: Any other questions of the applicant? (No response.) CHAIRMAN STRAIN: Richard, let's start on page -- the second page of section six, top, number one. You have bowling centers, 7933. Page 89 November 6, 2008 They're very loud -- MR. YOV ANOVICH: We've eliminated them. CHAIRMAN STRAIN: Okay. You have, on number 20, liquor stores. Do you need liquor stores? MR. YOV ANOVICH: Yeah, I think we already have one. We have one there. CHAIRMAN STRAIN: Okay, I'll leave that in. Personal services. And I didn't bring my -- I forgot my book. So Ms. Caron -- COMMISSIONER CARON: Got it. CHAIRMAN STRAIN: 7217 I had marked and 7219 and 7221. Could you tell me what those are? COMMISSIONER CARON: 72 -- CHAIRMAN STRAIN: In the back there's a table that just lists the uses. COMMISSIONER CARON: That's easier than going to-- MR. YOV ANOVICH: You said 19,21 and-- CHAIRMAN STRAIN: 7217,7219 and 7221. 7217 is carpet and upholstery cleaning. MR. YOV ANOVICH: Right. CHAIRMAN STRAIN: 7219 is laundry and garment services, NEC, which is anything that doesn't fall under any other category. And 7221 is photographic studios -- no, that's the wrong -- that one's okay, I'm sorry. So I was just -- the two heavier cleaning industries are like power laundries are heavier in nature, they've got more equipment, they run more chemicals, and I was just wondering if you needed those. MR. YOV ANOVICH: Well, that's where you would find tailor shops, storage of furs, cleaning of furs. That's what 7219 lists. It lists dressmaking, fur garment cleaning, repairing and storage, garment Page 90 November 6,2008 alteration and repair shops, hand laundries, pillow cleaning and renovating. CHAIRMAN STRAIN: What about 72177 MR. YOV ANOVICH: 7217 was carpet cleaning and repairs. I mean, it was not an issue that the neighbors raised as an issue. CHAIRMAN STRAIN: Okay, I'm just -- if they didn't, then I don't -- COMMISSIONER CARON: Well, then what it says here is dry cleaning and laundry pickup stations only. So I don't think they could have any of the heavier -- CHAIRMAN STRAIN: That's in the reference to 7212, I think. And then they go in and say -- then it goes groups and it lists the other groups, and that's the only -- but if the neighborhood's not concerned about it, I don't need to be. COMMISSIONER WOLFLEY: Chair? CHAIRMAN STRAIN: Yes. COMMISSIONER HOMIAK: I don't know that the neighborhood really knows all of what is under each of one of these numbers, that's my point. I don't think that they -- right here you have -- after that it says including only. So that means that's it. CHAIRMAN STRAIN: That's for 7299 only. Because that comes after the comma. So it says comma, 7299, including only car, title and tag service, et cetera. I'm just wondering if it -- COMMISSIONER HOMIAK: I don't think that people are aware of that. COMMISSIONER SCHIFFER: Of course not. COMMISSIONER HOMIAK: And they don't know -- I just don't think people are aware of everything that's under all of these numbers. And it's not clear to the whole community. I just really don't think that's -- MR. YOV ANOVICH: Well, I got the impression, and it may be a wrong impression, that Mr. Cummings went through the list and Page 91 November 6, 2008 they identified the categories that they didn't like. And they were very specific in their responses as to the list within the subheading the things they didn't like. And so I think at least the individual or committee that looked at the individual lists knew what they were doing as far as the analysis goes. COMMISSIONER HOMIAK: I still don't think the community is aware of all that could happen. I mean, to me it looks -- there's just way too many changes for something that's supposed to be a shopping center to supply services to the surrounding communities that are all in -- they're all linked together. You know, Lakewood, the Glades, Winterpark, Queens, Park, they can all go there for specific services, and this is just -- makes me think that, you know, the property could be for sale at some point and all torn down and something else put there. CHAIRMAN STRAIN: Do you know if during the -- you had said you were at the civic association meeting. Did they -- during that discussion did they understand about the SIC codes? COMMISSIONER HOMIAK: They were in agreement with the -- what the community had written on the list that they didn't want there. But I don't -- I still don't -- I don't think that they are aware of everything that's under each of these numbers. I don't think that they -- you know, they didn't-- MR. YOV ANOVICH: Well, the existing PUD provides for laundry and dry cleaning pickup establishments and self-service laundries; that's in the current PUD. CHAIRMAN STRAIN: Right. MR. YOV ANOVICH: And it also provides for tailoring, millenary garment alteration or repair. So those are uses that are already in the PUD that we're just establishing the SIC Code that goes along with that. Same thing with the general category of financial institutions. I Page 92 November 6, 2008 mean, we're trying to put it in the -- we took what was there and tried to put it with the appropriate SIC codes that you all are familiar with. CHAIRMAN STRAIN: Ms. Caron? COMMISSIONER CARON: As long as you're not adding anything to those SIC codes. In other words, if you're using the original list of uses and you are trying to apply a SIC code. Sometimes when you apply the SIC code, it also gives you additional uses that were not anticipated by the original -- MR. YOV ANOVICH: And we tried to not do that by the limitations that we put with the SIC codes. And it changes. I mean, we took out -- for instance, you can have today a cocktail lounge. We took that use out, because that's been -- is no longer customarily accepted in a shopping center. So we tried to modernize it to what's been going through the process recently. CHAIRMAN STRAIN: Mr. Murray? COMMISSIONER MURRAY: Yeah, I have a question relative to the civic association meeting. I guess we have to ask Ms. Homiak. Was there a motion made in any way in support -- in other words, I'm trying to find out if this is a civic association acting on behalf of the community, or was the association just given information? COMMISSIONER HOMIAK: They were given information and the board was supporting the King's Lake community. COMMISSIONER MURRAY: By motion? COMMISSIONER HOMIAK: Yes. COMMISSIONER MURRAY: There was a motion made. COMMISSIONER HOMIAK: Yes. COMMISSIONER MURRAY: I don't have a problem with modifications that are being spoken of, but this PUD was a C-1 through C-4 use, and staff said let's get together and see if we can make this right by -- you know, it's not going to get built out any further. I have no objections to what changes are being asked for. I don't know whether or not in NIM's do we actually go through every Page 93 November 6, 2008 detail in the SIC codes? MR. YOV ANOVICH: We bring the SIC code book with us, we tell them what we're doing. And if there's any question -- for instance, if they said what does boat dealers group 5551 include within the 5551. We'll open up the SIC code book and say okay, the following eight things -- and I don't even know if there are eight things in the 5551 right now -- are within that category. And then we'll have that level of discussion. But do we prepare and hand out a matrix of every sub-use within those categories? No, we don't typically do that in a neighborhood information meeting. COMMISSIONER MURRAY: But anyone there can ask a question and can obtain the information that they want; is that correct? MR. YOV ANOVICH: Sure, sure. COMMISSIONER MURRAY: Okay. CHAIRMAN STRAIN: Okay, Richard, let's go back to the beginning. You struck bowling centers. Under 7997 -- and this is trying to make sure in case the neighborhood didn't read all the SIC codes, we got this as tight as need to be. 7997 is one of your catchalls. Memberships, boards and recreation clubs, could we indicate inside use only? MR. YOV ANOVICH: Sure. CHAIRMAN STRAIN: Okay. Number three, automotive services, group 7542, car washes. That's a real intense use. In fact, we have special sections of the LDC just to prohibit car washes in a certain manner. Do you really need car washes? MR. YOV ANOVICH: We can get rid of that. CHAIRMAN STRAIN: Number six, building materials, hardware and garden supply groups, 5231 to 5261. Were you planning on putting a Home Depot or a Lowe's in there? Not that they're -- I Page 94 November 6, 2008 mean, they're great stores, I go in them constantly. But this is a small shopping center and that would be rather inappropriate for a smaller shopping center. It would be number six on your list. MR. YOV ANOVICH: Yeah, we have hardware store only. I don't believe we -- I don't believe the lumber yard use falls within that category . CHAIRMAN STRAIN: True Value or Ace Hardware is what you have? Because those are fine. MR. YOV ANOVICH: Yes, yes. CHAIRMAN STRAIN: It's your bigger big box that has a lot of odd hours and more noise and delivers. MR. YOV ANOVICH: Mr. Strain, number 12 I think might give you a little level of comfort on that issue. CHAIRMAN STRAIN: Warehouse clubs and discount retail superstores. That would mean you couldn't come in with your typical Target and Wal-Mart here, right? MR. YOV ANOVICH: Right. I think that the warehouse clubs -- CHAIRMAN STRAIN: But I'm more worried about Home Depot and a Lowe's and a building materials, hardware and garden supply under number six is what I'd be concerned about there. Do you have any problem limiting number six to hardware stores, not outside -- no outside sales? MR. YOV ANOVICH: Do you have a problem with garden supply? CHAIRMAN STRAIN: I don't think that's a problem. MR. YOV ANOVICH: And so you just want no outside -- CHAIRMAN STRAIN: Well, lumberyards and uses like that. MR. YOV ANOVICH: No lumber? Why don't we say no lumberyards. CHAIRMAN STRAIN: That works. I think that would be better. COMMISSIONER WOLFLEY: Big box hardware store. MR. YOV ANOVICH: Unfortunately we don't have a definition Page 95 November 6, 2008 of big box. COMMISSIONER WOLFLEY: Sure. Of course you do. I hear it all the time. CHAIRMAN STRAIN: Number nine, eating places. You have eating places and drinking places. And I know that they were in the previous one in the sense that it was under cocktail lounges. Did I hear you say you're limiting -- there's no standalone drinking bars? MR. YOV ANOVICH: That's correct. We only -- it says eating places and drinking places, only cocktail lounges in conjunction with a restaurant. So the standalone bar that was previously allowed is no longer. CHAIRMAN STRAIN: And hopefully if we get through the noise ordinance this afternoon, then you'll come under that noise ordinance, so that would take care of any neighborhood noise that we have. MR. YOV ANOVICH: Me personally, or -- CHAIRMAN STRAIN : Yes. COMMISSIONER VIGLIOTTI: Yes, you specifically. CHAIRMAN STRAIN: That's it for the uses. I did go through, Karen, the SIC Code and tried to figure out which ones were problematic. I don't know if I would have looked at them the way the neighborhood necessarily would, but I tried to find some of those. And most of them have been caught. For example, the neighborhood has cut numbers 8731, 8734, 9222, 9223, and a series of other in-between numbers. So that's a good sign. At least somebody has looked at them and suggested those are inappropriate. Richard, I want to ask you about that. The first document we received from the neighborhood association, they had a series of numbers that they objected to. For example, under No. 22 on your sheet, they had number 7261, which would fall in between 7219 and 7291. They had struck 7261. Page 96 November 6, 2008 MR. YOV ANOVICH: And we have as well. CHAIRMAN STRAIN: Okay, where did you take that into consideration? What document -- do you have a doc -- MR. YOV ANOVICH: I have an interim document that obviously we don't hand out anything. After you get it we pair it after. CHAIRMAN STRAIN: That's a good move. Stops the continuance. MR. YOV ANOVICH: Yeah. We have prepared that document based upon their October 29th letter. And then we responded to them. We wrote deleted, modified, depending on the response. CHAIRMAN STRAIN: So those numbers that were in their first letter, you've included those as exceptions to the groupings that you had in your document that we currently have in our packet; is that right? MR. YOV ANOVICH: Correct. We have modified the document you have to take -- to delete several of the items and then modify them. And then they looked at that document and that generated their November 5th memo. And with further modifications based upon their review of our response to October 29th, they narrowed it down to nine other items to which we have no objections to those further clarifications other than what I had stated. CHAIRMAN STRAIN: Okay, so the -- go ahead, Ms. Caron. COMMISSIONER CARON: Well, I think -- so then we need to go to the final page of their second letter. And it says -- so you have -- you agree with all of their restrictions on this page, or -- MR. YOV ANOVICH: Yes. And deletions. CHAIRMAN STRAIN: On number seven, Richard, the convenience stores with gas, and number nine, x-rated is substituted with adult. COMMISSIONER CARON: And -- understood. But hotels and motels? Page 97 November 6, 2008 MR. YOV ANOVICH: That's listed as a conditional use in the PUD document. COMMISSIONER CARON: And it will still be -- MR. YOV ANOVICH: Yes. COMMISSIONER CARON: -- in the new document? MR. YOV ANOVICH: Yes. CHAIRMAN STRAIN: No, it's not listed as a conditional use in the original document. MR. YOV ANOVICH: Actually, it's an easier -- CHAIRMAN STRAIN: You're trying to put it in-- MR. YOV ANOVICH: -- process than the original document. CHAIRMAN STRAIN: -- as a conditional use, and you know I'm going to be objecting to that in a minute. So before you give her the affirmative answer and she says yes, let's talk about that. COMMISSIONER CARON: No, I'm not going to say yes, because -- CHAIRMAN STRAIN: Let's talk about that when we get to it. COMMISSIONER CARON: -- I don't think it should be in here from the beginning. CHAIRMAN STRAIN: What the list that Ms. Caron just brought up does, it says in the beginning they have removed most of the troublesome uses. So it doesn't repeat the ones they previously had objected to. That's what I'm pointing out. We don't see those removed. You're telling us you have an interim document that has removed those. And in addition you agree to all the additions of one through nine with those two word clarifications. MR. YOV ANOVICH: Correct. CHAIRMAN STRAIN: Okay, I understand that, and I think we got that. I think it's easy enough to check because we have the original letter. Going on to your uses on the last page, 6-4, up on top it talks about accessory uses and structures customarily associated with the Page 98 November 6, 2008 principal uses and structures, including but not limited to uses and structures that are accessory and incidental to the permanent uses within this PUD. Isn't that kind of redundant, one definition being used for itself all over again? Why do we need A? Why wouldn't you just say accessory uses and structures customarily associated with principal use and structures, period. MR. YOV ANOVICH: I think it sounds okay what you're saying, but let me -- CHAIRMAN STRAIN: That cuts out some of your legal billing verbiage, but -- we're trying to get -- MR. YOV ANOVICH: I won't be able to be a party animal anymore. CHAIRMAN STRAIN: I know. What is two in there for, when it's already in up above on number nine? MR. YOV ANOVICH: You know, that's a good question. But we have historically put it in both places, both under the permitted uses and the accessory use. I'm not saying that's necessarily an appropriate practice, but we've historically put them in both places. CHAIRMAN STRAIN: But if you want to go by history, we don't need to change the PUD. So now that we are, why don't we correct it? And if it's not needed, let's just not have the redundancy. MR. YOV ANOVICH: Delete number two, you're suggesting? CHAIRMAN STRAIN: Right. MR. YOV ANOVICH: Okay. CHAIRMAN STRAIN: And now we get to the fun one. The property may be used for the following, if approved. And it basically said -- it said before, a majority of the coastal area planning commission, which means there are certain uses that go through the planning commission, depending on how much of a change they are Page 99 November 6, 2008 within a PUD. And it's either a -- there's several -- there's a minor change, an insubstantial change and a substantial change process. Minor change is staff. An insubstantial, like a small map change or something on a PUD can go strictly to the planning commission. And then there's a substantial change which goes through the whole process. I'm not sure what C's process was back in 1973, but I don't like the idea of taking a conditional use process and adding it to a PUD when if you want any of the conditional uses, why don't you just amend the PUD since it's a similar public process? Why are we making it a separate second zoning process within one zoning process? I think that's a mistake. And I know I spoke to you about it and you're smiling, so you must have some kind of answer. MR. YOV ANOVICH: We -- I understand, Mr. Strain, and we don't have an objection to amending the PUD versus having a conditional use process. CHAIRMAN STRAIN: Okay. So Item C would basically be gone. And if you want any of those uses, you just come back and amend the PUD. MR. YOV ANOVICH: And we'll amend the PUD and come -- I mean, the conditional use I'd be going through essentially a very similar process anyway, so -- CHAIRMAN STRAIN: Right. Okay. COMMISSIONER CARON: Good, because I certainly would want motes to come through as a PUD amendment. CHAIRMAN STRAIN: Motes? COMMISSIONER CARON: It says here, hotels and motes. MR. YOV ANOVICH: Well, see, the motel is actually a permitted use, it's just the mote around it that -- CHAIRMAN STRAIN: Okay. So on the consent agenda, whenever it comes back, C would be struck. And that is the extent of Page 100 November 6, 2008 the questions I have at this time, pending anything staff might throw into the mix. MR. YOV ANOVICH: That's the problem with spellcheck, you know. Doesn't catch it when you actually spell a correct word. CHAIRMAN STRAIN: Okay, any other questions of the applicant before we go to staff presentation? (No response.) CHAIRMAN STRAIN: Okay, J.D.? (Speakers was duly sworn.) MR. MOSS: Thank you. For the record, John-David Moss, Department of Zoning and Land Development Review. I just wanted to point out what was stated on Page 3 of the staff report, that this project is consistent with the Growth Management Plan. Because it was approved -- or found consistent by policy, it allows the property to be rezoned, provided that the new zoning district is the same or lower intensity than the existing, and that the overall intensity of the commercial land uses allowed by the existing zoning district do not exceed the new one. And all of the originally approved uses were found to be C-1 through C-4 uses, so staff, both comprehensive planning staff and I, went through all of the uses and found them to be consistent with the C-1 through C-4 uses. And Commissioner Homiak, when we did attend the NIM meeting, these uses were not broken down like you see here. I'm the one that went through the document and kind of broke them down further than they were. Because those SIC codes are so confusing to people and you don't really know what they represent. But the community that -- the homeowners association group that did review the document, I mean, they're very savvy, they had an SIC code book and they did go through these one by one. So I know that they are satisfied with everything that's being proposed, except for Page 10 1 November 6, 2008 the recommendations that they cited in their most recent letter. So if we're going to incorporate those changes, I think they'll be happy now. CHAIRMAN STRAIN: Okay. Any questions of staff? Ms. Homiak? COMMISSIONER HOMIAK: The letter that went out, the first letter that went out for the meeting, did it just say that King's Lake -- they were looking for a change to put in -- so that they could put a fitness center in. MR. MOSS: To change the commercial uses, they didn't specify a fitness center, I don't believe, but it was definitely discussed at the NIM that that was their priority, because they actually had a representative from the fitness center there. COMMISSIONER HOMIAK: This type of thing -- this wasn't-- MR. MO: No, no. COMMISSIONER HOMIAK: -- included in the letter, it was just that they want to put a fitness center in -- MR. MOSS: Right. COMMISSIONER HOMIAK: -- and that was what the meeting was for. MR. MOSS: Right. But they did -- as Mr. Y ovanovich mentioned, they did discuss what some of the other uses were. If anyone had a question about what the specific SIC Code represented, they did explain it to them. But those codes are really cryptic, and I don't think people understand what they are. But it's not unusual for applicants to do this. It's done all the time. So what they did is not atypical. COMMISSIONER HOMIAK: And so this was advertised properly for all -- MR. MOSS: Yes. COMMISSIONER HOMIAK: -- these changes just with that letter -- Page 102 November 6, 2008 MR. MOSS: Yes. COMMISSIONER HOMIAK: -- for the fitness center? CHAIRMAN STRAIN: Okay, any other questions of staff? (No response.) CHAIRMAN STRAIN: Ray, do we have any public speakers? MR. BELLOWS: No one has registered. CHAIRMAN STRAIN: Do you want a rebuttal to staffs negative comments? MR. YOV ANOVICH: No. CHAIRMAN STRAIN: Okay, it's my understanding then that you have -- you're going to create an interim document that will basically strike most if not all of the items on the first letter from the community, subject to the clarifications in the second letter, subject to the text changes that you brought up to us. MR. YOV ANOVICH: Correct. CHAIRMAN STRAIN: And that you also understand the comments that we've made during this meeting in regards to some additions and strike-throughs that we talked about in eliminations. Are you -- MR. YOV ANOVICH: Yes. CHAIRMAN STRAIN: Okay. Based on that, and there's no public speakers, we'll close the public hearing and either entertain a discussion or motion. Mr. Vigliotti? COMMISSIONER VIGLIOTTI: I'd like to make a motion to approve based upon all the changes that we've here discussed. COMMISSIONER MURRAY: Second. CHAIRMAN STRAIN: Okay, motion's been made and seconded. Motion made by Mr. Vigliotti, seconded by Mr. Murray. Motion was made based on the discussion that we just had. And I want to reiterate the discussion so that the motion maker accepts it, and that is that the first letter issued by the neighborhood with their Page 103 November 6, 2008 objections will be incorporated into the corrections on the uses, subject to the further refinement of those corrections that were in the second letter, with the exception that in the second letter there are two textual changes, Mr. Y ovanovich suggested for clarification, which seemed logical. And then also subject to the walk-through that we just had over some additional verbiage and strike-throughs on the usage and the accessory definitions and the conditional use application. COMMISSIONER VIGLIOTTI: Yes. COMMISSIONER CARON: Is that your motion? COMMISSIONER VIGLIOTTI: Yes. CHAIRMAN STRAIN: Mr. Murray, is that where you-- COMMISSIONER MURRAY: I have a question. The two letters, were they authored by the same individual? COMMISSIONER CARON: Yes. MR. YOV ANOVICH: Yes. And I think probably the better way to phrase it is that we'll revise the PUD to be consistent with their 11-5 letter. Because what happened was, you know, I think they had asked for the elimination of -- on the 29th, they had asked for the elimination of -- where did the letter go? Did you pick up my 29th letter? CHAIRMAN STRAIN: Richard, before you go there, I have no problem with referencing that it be consistent with the 11-5 letter, because that to me takes preference -- MR. YOV ANOVICH: Yes. CHAIRMAN STRAIN: -- over the earlier one, because it talks about -- MR. YOV ANOVICH: Because there was give and take back and forth and the 5th is -- yes, that's what I -- CHAIRMAN STRAIN: But the problem I have is the second letter doesn't reiterate all of the concerning numbers on the first letter, and the documents we've received from staff don't include those, so Page 104 November 6, 2008 they're not on record here today. I know you're working on an interim document, we know what the numbers are, but we want to make sure the motion includes you incorporating those to the extent that they're refined in the November 5th letter. COMMISSIONER MURRAY: Right. MR. YOV ANOVICH: Gotcha. CHAIRMAN STRAIN: Motion maker and the second-- COMMISSIONER MURRAY: Now we have a good motion. CHAIRMAN STRAIN: -- both accept. Okay. Any other discussion? (No response.) CHAIRMAN STRAIN: All those in favor of the motion, signify by saying aye. COMMISSIONER SCHIFFER: Aye. COMMISSIONER MURRAY: Aye. COMMISSIONER HOMIAK: Aye. COMMISSIONER KOLFLA T: Aye. COMMISSIONER MIDNEY: Aye. CHAIRMAN STRAIN: Aye. MR. WOLFLEY: Aye. COMMISSIONER CARON: Aye. COMMISSIONER VIGLIOTTI: Aye. CHAIRMAN STRAIN: Anybody opposed? (No response.) CHAIRMAN STRAIN: Motion carries 9-0. It will come back for consent. COMMISSIONER SCHIFFER: Mr. Chair? CHAIRMAN STRAIN: Yes, sir, Mr. Schiffer. COMMISSIONER SCHIFFER: Before we go on to something else, could we discuss this concept of SIC codes? I agree with the concern you have. First of all, all of us are probably looking them up as we review Page 105 November 6, 2008 the report. I do it on a computer, you do it in the book. What a wasted task, nine of us doing the exact same thing. The neighbors, it's very easy to blind something behind the numbers. So could we see if staff could come up with a way that when SIC codes are referenced in an application that there's some sort of a summary sheet that summarizes it? Now, my suggestion in the computer world would be build a data base that would note that a number's used and would print out, you know, at least the line description. Like you say, in the back of the book there is a simple description. But to have everybody looking them up, to have -- the community mayor may not be able to look them up, or know how to look them up. CHAIRMAN STRAIN: Well, let me suggest something. On Page 427 of the SIC Code is a line-by-line narrative of what each number means. I'm not suggesting that you put it in the PUD, because it would make the PUD many pages long. But for every number in a grouping that isn't defined in the PUD, if the applicant was required in part of their PUD submittal to just list the number and what it was next to it as a supplement document that could be passed out to us, it certainly would help resolve the concern that Brad has. And I share his concern. Because you've got to pull these books up and look. The best source of that, though, is starting on Page 427 of the SIC and it goes for about 20 pages. And it's basically a summary. It's short. But if you need further refinement, then you can go into the body of the book. COMMISSIONER SCHIFFER: And I think the summary -- I mean, it's easier for one member of the staff or the applicant does it than it is for nine of us, how many neighbors, how many other staff members are doing it. We're really wasting time on that. Thank you. CHAIRMAN STRAIN: Okay. Page 106 November 6, 2008 COMMISSIONER MURRAY: I would make a thought on that. CHAIRMAN STRAIN: Go ahead, Mr. Murray. COMMISSIONER MURRAY: Is it more appropriate for the staff to take on that work, or would it be more appropriate -- MR. BELLOWS: For the record, I-- COMMISSIONER MURRAY: Or would it be more appropriate for the petitioner? MR. BELLOWS: Historically, about -- I would say it was about eight to 10 years ago staff did provide copies of the SIC codes with each application. However, that became very problematic for the planning commission at that time, so we stopped doing it. But I like the idea of revising our application process to require the applicant to provide a summary of the overall group heading that explains what the many numerous uses are underneath that particular group -- CHAIRMAN STRAIN: Well, if they supply that pursuant to starting on Page 427 like when they say 7217, it says there carpet and upholstery cleaning. If you want to know what that says in the whole paragraph you can go into the heart of the book to get that. That would be too burdensome to supply. But just to make a listing -- it wouldn't even take a page for these PUD's to make a listing of every number in those groups that applies and have it listed there so everyone readily could see gee, I wonder if that means something I don't think it means, they could look further if they wanted to. I think it would save a lot of time. Mr. Schiffer's 100 percent right, it might be something you ought to consider looking at. MR. BELLOWS: Yeah, can I study it and get back to you at your next meeting -- CHAIRMAN STRAIN: Yeah, I would hope you would. MR. BELLOWS: -- and I will have some recommendations. CHAIRMAN STRAIN: Okay, sounds good. Page 107 November 6, 2008 Brad, does that work for you? COMMISSIONER SCHIFFER: I'm fine, thank you. CHAIRMAN STRAIN: Okay, and rather than get into the noise ordinance, we will go to lunch and come back here at 12:35 and start the noise ordinance at that time. (Lunch recess.) Item #10 OLD BUSINESS CHAIRMAN STRAIN: Okay, everyone, we hopefully are all back from lunch, at least enough of us to continue on with the meeting. We're done with our public petitions. The last item on today's agenda, it says old business, it really means ancient, ancient, very old business, and it's the noise ordinance that we started, I don't know, a year and a half ago. Hopefully today we may be to some point where it can be concluded. So with that in mind, Jeff, you provided us with a new write-up. I'll certainly -- if you have any opening comments, and whenever you feel like it, we'll just start and go through a page at a time then like we have before. MR. WRIGHT: Okay. Thanks, Mr. Chairman, Commissioners. For the record, I'm Jeff Wright. I just wanted to point out that Lisa Schott, our noise consultant, is not here. And this has been throughout this process kind of a twin effort with the legal and the technical. We're kind of a little handicapped on the technical side of things, but we'll do our best to answer your questions. CHAIRMAN STRAIN: Well, we learned so much last time that we may have -- be able to give her some pointers, so -- Page 108 November 6, 2008 COMMISSIONER WOLFLEY: Technically handicapped. CHAIRMAN STRAIN: Okay, we just start through the document then? And I guess we'll take the definitions section all in one lump. Anybody have any questions in the definition section of the document? Which really takes us over to Page 8. So the first eight pages of the document. Mr. Schiffer? COMMISSIONER SCHIFFER: I have a question just to start. Jeff, one of the things that we were going to do last time, and there's a lot of technical stuff here. Has anybody ever done a test based on this calibration of any of the known noise violators, or potential noise violators? Have we ever done any tests yet? MR. WRIGHT: Well, I know that they have readings, for example, from LaPlaya. I'm not sure if that's what you're talking about. COMMISSIONER SCHIFFER: Well, that's a start, yeah. Okay, when we get there, we'll get there. But, in other words, one of the things that -- the most important thing is we're going through the words. The words are starting to really get old. But the point is we have no idea whether this works. We've never shot these numbers at a sound source, so -- you know, if that's been done at the appropriate time, that will be great, but -- MR. WRIGHT: In coming up with these standards, we deferred to the consultant and she did a review of national standards and what are the reasonable national standards and that's what we are using in this ordinance. COMMISSIONER SCHIFFER: Okay. I guess we'll wait till the right time. CHAIRMAN STRAIN: Okay. Well, the first eight pages are definitions. Mr. Kolflat? Page 109 November 6, 2008 COMMISSIONER KOLFLAT: No, not definitions, but weren't you going to consider the possibility of having a demonstration here of different sound levels that we could get a feeling for what they represented? MR. WRIGHT: Yes, the consultant had said that she's able to do that. I guess it's a bit of an effort. She couldn't be here today. But if you want to recommend that she come back with that, I'm sure she could do it. She's also indicated for the BCC that she'd be prepared to do the same. CHAIRMAN STRAIN: Well, I would rather reserve that request until we finish and then see if the need -- because it's expensive to keep bringing people in. And if she can be brought in to finalize any final tweaking in front of the BCC with a recommendation from us, that might be as sufficient. So we'll just see where it goes as we get through this document then. So back to the first eight pages. Any other questions on the definitions? (No response.) CHAIRMAN STRAIN: Ifnot, we'll move to Pages 8 and 9. Anybody have any questions on Pages 8 and 9? (No response.) CHAIRMAN STRAIN: Page 10? (No response.) CHAIRMAN STRAIN: Page II? Page 11 starts our first table. It's table one, which talks about the sound level limits. Any questions? (No response.) CHAIRMAN STRAIN: Jeff -- go ahead, Ms. Caron. COMMISSIONER CARON: No, go ahead. CHAIRMAN STRAIN: Jeff, at the last meeting, we asked that Page 110 November 6, 2008 we have a consideration of some special areas of the county. And the lady that was here from Corkscrew, which is predominantly an agricultural area, was commenting about how the agricultural operation next door, even though she's agricultural, is real problematic for them. And we actually recommended that you come back or somebody come back with some kind of way of looking at how those unique areas could be addressed. I don't see that on this table. How did that get handled? MR. WRIGHT: Well, I spoke with our consultant about it and reviewed some of the relevant law. And I have most sound ordinances. There are some exceptions, but most will set the residential at the lowest level. And they don't carve that residential further out and have especially quiet areas, which I think is what you're getting at. And the reason for that is, for example, environmental laws have been overturned where they're biased to bring more polluters into a particular area. And there's some concern that it might have the effect of directing all sound noise into certain spots and away from other spots, and we might end up with some legal problems related to that. And using the environmental laws as an analogy, those laws are often challenged and have been turned over where they kind of direct the pollution to a -- somewhere. If you look at noise in the same -- in an analogous way, it is a form of pollution, an annoyance, that we could run into problems. And that, combined with the lack of models in other jurisdictions makes us very reluctant to have separate quieter than residential zones. Not to say it's not possible to do that. I found an example in Massachusetts, for example, where they do have -- they kind of address it by saying no more than 10 dB above the background sound level. And they call them sensitive sound areas. I just don't see the support for that in the case law and in other jurisdictions to feel confident going that way. CHAIRMAN STRAIN: See, I think the problem's a little Page 111 November 6, 2008 different here. In the agricultural area we have homes. There are homes out there. They're on -- especially in the Corkscrew area, the homes are on, you know, bigger, maybe estates size tracts, but I believe they're agriculturally zoned. And because they're in that agricultural zoned area, the decibel levels, even though they're residential dwellings, by this table wouldn't we be looking at a 75,87 decibel level? MR. WRIGHT: We would be. CHAIRMAN STRAIN: Okay. Is there a way that we can except out agricultural areas that are used for residential and that within the property boundaries of the residential tract they have to resort to the residential readings here? MR. WRIGHT: We could. And again, I just -- I'm not 100 percent comfortable that that will withstand legal challenge. I'm just afraid that it will direct the noise into other areas, and some people that might be affected by that would speak out and say that they're being treated differently under law and affected differently adversely. COMMISSIONER CARON: Well, doesn't any of these do that? I mean, okay, the residential area in the top line has lower levels than the agricultural area. So if you want to operate and do some kind of noise, you're not going to go in the residential area, you're going to go into one of the other areas that are already directing noise to specific areas. I'm just wondering how that differentiates from what you just said. MR. WRIGHT: Well, we can say that -- you can discriminate based on zoning. Discriminate is probably not the best word, but differentiate standards based on zoning. Where we don't have that zoning boundary to guide us, it gets a little bit dicier. And that's where you run into -- I can't find case law that would support discriminating on another basis, a tract basis, for example. Not to say it's not doable, but without firm legal foundation for Page 112 November 6, 2008 it, I'm not 100 percent comfortable. CHAIRMAN STRAIN: Go ahead, Ms. Caron, then Mr. Midney. COMMISSIONER CARON: But what is to say that the agricultural zoning area should be at 75 as opposed to 65? MR. WRIGHT: Well, I think this might be -- Lisa kind of looked at models around the country and Florida, and I think that she -- based on traditional use of agricultural, they tend to have more machinery and louder equipment. So therefore the generally recognized standards kind of crank it up in those agricultural versus residential. And another way of putting it is residential always has the lowest noise levels. I realize -- COMMISSIONER CARON: Well, I was sort of picking something halfway in between. It's not the 60 and 55 that our traditional residential would have but, you know, it's what the commercial tourist area would have. Just something that would make it less, because we do have a hybrid here. We have areas that are not just ag., it's residential with an underlying ago zoning. MR. WRIGHT: I agree. COMMISSIONER CARON: So I don't know why we can't just pick a number. CHAIRMAN STRAIN: I think we're going to have to explore that a little more. Mr. Midney was next, then Mr. Vigliotti. COMMISSIONER MIDNEY: I think in the north we used to have something called hospital zones where noise was restricted. If that would be legal, it would make sense to have something like a ecotourism zone in respect to noise. Because at Corkscrew I know sound travels very well through the cypress swamp, and you wouldn't want to have something on the borders of that area that was noisy. CHAIRMAN STRAIN: Mr. Vigliotti? Page 113 November 6, 2008 COMMISSIONER VIGLIOTTI: Back to the schedule. You come up with residential, the change would be at 10:00 p.m. Then you go to commercial tourism, and you still hold it at 10:00. Wouldn't it make sense to make that later? 11 :OO? MR. WRIGHT: It's really a policy call. COMMISSIONER MURRAY: Why would you want to go longer? COMMISSIONER CARON: Yeah, why would you -- COMMISSIONER MURRAY: Maybe somebody would react if you said sooner. COMMISSIONER VIGLIOTTI: Okay. CHAIRMAN STRAIN: Ray, Joe, or whoever would know how to answer this, getting back to this agricultural issue. The RLSA, the entire eastern lands are all agricultural. When they go in for their stewardship credits and they get the right to build there, does the underlying zoning of that land change, or is it still ago with an overlay? MR. SCHMITT: Well, you create an SRA, which is essentially equivalent to a PUD. So you do create zoning through the stewardship recelYmg area. CHAIRMAN STRAIN: So when they do that, their property, because it's then more or less rezoned into a residential district, the ago adjacent to them has to be restricted to the residential impacts when it hits the tract line of this residential number here, right? MR. SCHMITT: I would doubt that. And the reason I say that, and I -- CHAIRMAN STRAIN: Wow. MR. SCHMITT: Yes and no. But that's a legal opinion. But I have to say that the ago which was out there, and it's been operating for years and years and years. Let's say it's an orchard, orange groves or tomatoes and, you know, they're running pumps for irrigation or whatever. Page 114 November 6, 2008 Because something comes in, it's the old analogy, which came first, the airport or the residential. I go back when Dulles Airport was built, that type of thing. I can't through my rezoning now all of a sudden create restrictions on something that's been operating for years and years and tell that farmer you no longer can now plant. Because the dividing line between the RLSA or the SSA -- I'm sorry, stewardship receiving area, SRA -- and let's say right at the edge of the SRA are the tomato fields. They still have every right to operate as an ago organization. Now, there may be distances associated with that. Ms. Caron? COMMISSIONER CARON: Well, I think we've taken care of that. On Page 24 it says exceptions for existing operations. And I asked the question, so it's which came first, and not the zoning. So if it's been ago and suddenly homes move in -- MR. SCHMITT: That's correct. COMMISSIONER CARON: -- you know, operating ag., not fallow ago But if it's not just zoned ago MR. SCHMITT: Right. COMMISSIONER CARON: But if somebody's had an operation, then -- is operating a business, then they take preference whatever was there first. That's what we were told the last time around. MR. SCHMITT: Right. It's -- but it's -- there are certainly places in the county where you're -- you have homes that are in ago areas. I think it -- and I turn to Jeff and Jeff. I think it's going to be somewhat difficult legally to now because somebody built a house all of a sudden create and put a new requirement on what may have been ago for 30, 35 years out there plowing fields and operating a tractor. Those kind of things do create noise. MR. KLA TZKOW: You have a Right to Farm Act that would protect this. If I have an existing farm operation, just because Page 115 November 6, 2008 somebody builds a house across the street because it got rezoned, that's not going to put me out of business. CHAIRMAN STRAIN: Okay. So then the noise ordinance, what you're saying, there's no way that you can write the noise ordinance to protect a lady like presented to us last time in Corkscrew who lived in an ago area and was complaining about the ago operations next door to her. MR. KLATZKOW: You know, I don't know what to tell you. When you live in an urban area, you get urban noise; when you live in an agricultural area, you get -- MR. SCHMITT: Exactly. MR. KLATZKOW: -- agricultural noise. I mean, it's -- CHAIRMAN STRAIN: I just want to make it clear for the record, Jeff. MR. KLATZKOW: Yeah. CHAIRMAN STRAIN: Because the question's going to come up. I mean, people are going to say, why didn't this fix this? And we want to have an answer. MR. KLATZKOW: Because quite frankly, if we want to lower the decibel level, okay, to the point of whispering, everybody's going to be out of compliance. I mean, these are national standards that we've been given us, and if we lower them, I mean, Joe's shop is going to be running with code enforcement non-stop. It's just what we are. It's what everybody is. MR. SCHMITT: Well, it becomes a law that's almost unenforceable. And I understood exactly what she was saying, but it's sort of the caveat emptor, let the buyer beware. They bought out there. Yes, there are going to be pumps, there are going to be other ago type of impacts. I just don't know how we can prevent somebody from not being able to farm or operate in what has always been ago MR. KLATZKOW: I bought my house near Gulf Coast High School because I wanted my kids to be close to school. And every Page 116 November 6, 2008 Friday during football season I get the announcements, and -- you know, I can tell you, even when my lanai doors are closed, when Gulf Coast goes to touch down who scored that touchdown, you know, whatever. I'm a good mile away. I mean, you know, it's just -- it's what I chose to do and now I've got to deal with that noise. CHAIRMAN STRAIN: Mr. Murray, Mr. Wolfley, Ms. Caron, then Mr. Homiak. Mr. Murray? COMMISSIONER MURRAY: Yeah, the comment would be absolute silence is guaranteed upon death, I think. But all property, all land, rather, is zoned ago in Collier County. That's the base zoning. So how would you get to a differentiation? Somebody builds a house residential here, they've changed the zoning, all around them there's ago I just -- I don't want to repeat what Mr. Klatzkow has just said, but that's my view too. Weare a changing society and a certain amount of ambient noise is going to grow. I might feel bad for the lady who suffers the problem of the noise, but I think we have to learn to live with each other, the so-called social contract. Thank you. CHAIRMAN STRAIN: Mr. Wolfley? COMMISSIONER WOLFLEY: I don't recall her complaining about the farming operations, I only recall her complaining about the noise from partying and so on. But I just don't recall a farming issue. I mean, that would have been moot to me. That's all. CHAIRMAN STRAIN: Ms. Caron? COMMISSIONER CARON: Well, I think that part of the issue is just that the way things are worded now, in the ago area it's 75 under the A scale and 87 under the C scale at all times. Why isn't it appropriate to do 75 during the day and 65 at night? MR. WRIGHT: That's another policy decision. There's nothing wrong with that. COMMISSIONER CARON: Again, that's -- you know, Mr. Page 117 November 6, 2008 Klatzkow's example of moving in next to the school is sort of like people moving in next to airports, you do have to have some awareness. But at that school, they're not there at 3:00 in the morning creating the same kind of noises that he can hear even with his doors and windows closed at 3 :00 in the morning. COMMISSIONER MURRAY: Can I make a comment, please? CHAIRMAN STRAIN: Well, Ms. Homiak was next, then Mr. Schiffer, then Mr. Murray. COMMISSIONER HOMIAK: I was -- my comment was just the same as Mr. Wolfley's, actually. I don't remember the woman saying anything other than she was complaining about the partying on the weekends. CHAIRMAN STRAIN: Mr. Schiffer? COMMISSIONER SCHIFFER: And two things. Donna, at night in agricultural, if there's a freeze coming in, they're going to be making a lot of noise out there. The -- Jeff, one thing, though. Here we are with the numbers. How do we know what these numbers are going to do? I mean, we don't -- do we have any field tests? In other words, can you -- you know, we have some classic concerns with noise. Has anybody gone out and tested those sites with this data so we could see if it works? Because, I mean, we're going to study the outdoor seating. If we're not picking up noise violations, then why -- you know, then the numbers should maybe be changed. But if they're sufficient or -- MR. WRIGHT: We do have some data to guide us. It's not really air tight. But Dave, for example, has readings at LaPlaya. Lisa, who you met at the last meeting, has her old report on her work at Stevie Tomatoes that contains detailed decibel readings. I'd be happy to distribute that just for your edification. COMMISSIONER SCHIFFER: And it has A and C also? MR. SCRIBNER: No, we don't have the C scale. MR. WRIGHT: I think it's just octave band is what she used. Page 118 November 6, 2008 A and octave band? MR. SCRIBNER: These readings that we took, we took using the decibel, the A scale. We have not adopted -- the ordinance hasn't adopted the C scale. And the C scale, in very simple terms, takes the octave band and the decibel levels, puts them all into one unit. And it doesn't change the actual what you hear, it's just a measurement, a simpler measurement so that people can get a noise meter, use the C scale. Because we have a lot of people who call up and say hey, I took a noise reading and it's 87 decibels. That's way in violation of the ordinance. Well, they're using the C scale. And our ordinance, as it's written right now, is all in the A scale. I have -- and unfortunately I thought it was in your packet, and I apologize that it's not. I've got some handouts I'll give to everybody. These are some of the readings we've taken as part of the LaPlaya issue that came up, and taken across the water. It's taken from 560 feet, which is the property line of the complainant in this issue. And taken on different days. And you can see some ambient readings, as well as with the source on. Back to the issue of agricultural noise. We have not had any readings taken from Mrs. Gay's property, because when we've gone out there the noise that she was complaining about wasn't audible. I can tell you from experience in some other agricultural issues, usually what comes up is a pump running, and they'll have a pump going 24/7. And I had one in North Naples that we got a complaint on. We contacted the farmer. They built a very simple little box around it, alleviated the issue, problem solved. We try and work with farmers. We try and work with everybody to resolve the issues rather than just going forward and trying to cite someone. And usually we can come up with some solution. Sometimes it may be as simple as putting a piece of construction equipment in front of a pump to block the noise. We did that down in November 6, 2008 Lely. So if you'd like, I can hand out this and you can all get an idea of what some of the noises that -- decibel levels that we're running into. CHAIRMAN STRAIN: Mr. Murray, did you have a question you wanted to ask while it's being handed out? COMMISSIONER MURRAY: Well, it had to do with -- I wanted to answer Commissioner Caron, and it was about the pumps. I mean, at all times, because if the pump sounds at 75 decibels, it would operate 75 decibels throughout the night as well as throughout the day, and that would be a basis for saying at all times. That was the thought that came to my mind. But the gentleman stole my thunder. COMMISSIONER WOLFLEY: Chair, I've got one thing. Chair, did you recognize me or did you hear me? CHAIRMAN STRAIN: I'm sorry, I didn't hear you, Dave. COMMISSIONER WOLFLEY: Oh, okay. I've got one. CHAIRMAN STRAIN: Go ahead, sir. COMMISSIONER WOLFLEY: We've got -- in going through this thing, we've got to keep in mind that there are people out there that have to administer what we come up with. And two of them are sitting here in the audience. They've got to have a way to find out and figure out when they get a complaint and they go make a call on the complaint, figure out if they are in fact in compliance or they're out of compliance. And I think that's the point I was trying to make by getting some typical sounds that we hear every day and finding out the decibel levels. Because that's what these guys are going to be coming up against. Unless we're going to issue a few hundred meters to everybody, it's -- I mean, we've got to keep this simple and somehow be able so that the law enforcement officers can actually do their job effectively. I just feel for them. Thank you. CHAIRMAN STRAIN: Mr. Vigliotti? COMMISSIONER VIGLIOTTI: My concern, as Joe Schmitt has said, we don't want to create a document that they can't enforce Page 120 November 6, 2008 because it's too strict and then we accomplish absolutely nothing. CHAIRMAN STRAIN: Mr. Schiffer? COMMISSIONER SCHIFFER: So looking at this thing, and David, everything was done before 10:00, but essentially there's no violation prior to 10:00. Yet some of these, especially at the bottom, if they started to occur after 10:00, then you would have grounds for a violation. MR. SCRIBNER: Potentially. I can't say that, because you have to take into consideration what the ambient noise is. And as you remember through this ordinance, you have to do a subtraction based on what the ambient noise is versus the source on noise is, and there's an adjustment made. COMMISSIONER SCHIFFER: So procedure-wise, how would you get an ambient reading if the noise is occurring? Would you come back some other time? MR. SCRIBNER: No, what we would do until the noise is off, we might do -- walk down the street to an area that doesn't have that noise source readily available. We'll take the noise in the neighborhood. We may go down the street quarter of a mile, take the noise so we can get an idea of what that noise is. COMMISSIONER SCHIFFER: You could maybe go on the other side of the building or something? MR. SCRIBNER: You could go on the other side of the building, yeah. COMMISSIONER SCHIFFER: And then let's say we came up with a number. We would then subtract -- and it's on the next chart, I guess. MR. SCRIBNER: Based on what your ambient noise is and source on, you have to go through a mathematical calculation, yes. COMMISSIONER SCHIFFER: Now, since the A scale was always there and we're not changing the numbers on it, you have not been able to flag any of these supposedly nuisance noise sources, so Page 121 November 6, 2008 you're really counting on the C to bring these things in then. MR. SCRIBNER: Well, I didn't include in this because they're multiple tables. There were no octave band violations involved in this case. Usually with -- octave bands measure the frequency, and it's usually the low bass. In other words, we talked about that at the last meeting, that thumping sound. It's usually the lower basses that we'll find a problem with. And in this case here that we presented, we didn't have those issues. They were primarily voices and some music in the background, but it wasn't the low bass. COMMISSIONER SCHIFFER: But can we just do this one? You do have an ambient reading. Let's pretend that's the reading you got that day of 46, and let's pretend these lower ones are at night. Would this is be a violation? MR. SCRIBNER: Well, you'd go to your table. And I believe it's -- ifthere's a difference of nine, you subtract -- COMMISSIONER SCHIFFER: Zero. MR. SCRIBNER: -- zero. So 57 after 10:00 would be a violation. COMMISSIONER SCHIFFER: You would do it, okay. MR. SCRIBNER: These readings were taken before these time periods, because this is the time the complaints were coming in. COMMISSIONER SCHIFFER: Right. And I'm just trying to get a hyp -- so in other words, essentially there is a condition where you would be able to get a violation at LaPlaya, if numbers are around or similar. I mean, I'm not saying you will, but you could. MR. SCRIBNER: Clearly you could have a violation there. We haven't identified one as yet. COMMISSIONER SCHIFFER: In the Stevie Tomatoes situation, and Jeff referenced the study they did, is that something that you think this new system would generate a violation for? MR. SCRIBNER: For one thing, they have no amplified music Page 122 November 6, 2008 out there. The issue's going to come up with voices. And as we've got in the ordinance right now, reasonable use of a human voice unamplified. And it's all going to come down to that what is reasonable use, you know, unamplified human voice. COMMISSIONER SCHIFFER: And that's a non-metered test? MR. SCRIBNER: I would -- you know, I'd hate to stand here and say oh, this is going to solve the Stevie Tomatoes issue. Because if it did, I'd be asking for more money. COMMISSIONER SCHIFFER: But it's not in your pay scale. COMMISSIONER CARON: And you'd be getting it. COMMISSIONER SCHIFFER: But isn't that section of code with the unreasonable voice, isn't that in there already? I mean -- MR. SCRIBNER: Yes, it is. Yeah, we've added that. That's been added in. COMMISSIONER SCHIFFER: Okay, we worked it. But in other words, you had that opportunity prior to even this -- MR. SCRIBNER: No, that was not in the previous code. COMMISSIONER SCHIFFER: Okay, that's not -- okay. All right, then let's wait till we get there. Thank you. CHAIRMAN STRAIN: Mr. Vigliotti? COMMISSIONER VIGLIOTTI: I'm concerned and confused. This whole noise ordinance for the most part was redone and we're working on it because of the Stevie Tomatoes problem. And you're saying that this may not even resolve that problem or address it properly. MR. SCRIBNER: Well, I think I would be remiss if I said that you're going to solve a zoning issue with a noise issue. And really, it comes down with that. COMMISSIONER VIGLIOTTI: Okay. MR. SCRIBNER: Probably not what anybody wants to hear, but that's the realty of it. CHAIRMAN STRAIN: Okay, well, let's move on and we'll get Page 123 November 6, 2008 through it the best we can and decide what the best way to proceed is. Page 12 and 13, they're not even full pages because of the cross-outs. Anybody have any questions on 12 and 13? (No response.) CHAIRMAN STRAIN: How about 14 and 15? Mr. Schiffer? COMMISSIONER SCHIFFER: Jeff, just to make sure it's clear is that within mixed use projects you're going to be able to have sound violations that Collier County would be dealing with, as opposed to the homeowners association or whatever governing thing would be below Collier County in there? MR. WRIGHT: Yes. In addition, I think that there are going to be two separate ways to address the noise complaint. If you live in a place that has private covenants that address noise, you can always rely on those. It's a private remedy. But from the code enforcement department's perspective, this ordinance would be their tool, not the HOA documents. COMMISSIONER SCHIFFER: Okay. I mean, I kind of have a concern going -- because mixed use projects are going to have noise. I mean, you live above a restaurant by choice, you know, it's going to happen. So in other words, Collier County's going to start coming in and being called upon to protect people in that situation when essentially isn't it the -- I call it a homeowner, but the local government for that. I mean, should we get involved in that or should we just stay out of mixed use areas? MR. WRIGHT: Well, I feel that if we weren't addressing the mixed use context, the question would be why aren't you addressing the mixed use context. Now, if you're the person, the victim of sound and you have two remedies available, maybe that's a good thing for you. You can go to Page 124 November 6, 2008 your HOA, maybe that's more effective than calling code enforcement, I don't know. But under this, you can call code enforcement and address the sound issue if you live in that setup, in that setting. CHAIRMAN STRAIN: Anybody else on Pages 14 and 15? (No response.) CHAIRMAN STRAIN: If not, we'll move to 16 and 17. COMMISSIONER MURRAY: I have on 16. CHAIRMAN STRAIN: Go ahead, Mr. Murray. COMMISSIONER MURRAY: And 17. Construction sounds. And it's the -- I guess the second sentence down where it says construction equipment that must be operated near a residentially zoned area. We've tried often to qualify distance. Near is -- I understand the intent, but why did we choose near? Could we choose a better word, a better description? MR. WRIGHT: I agree, near is vague. I'm not sure why we chose it, and I'd be open to any suggestions for maybe a-- COMMISSIONER MURRAY: Well, I first wanted to find out whether you intentionally had it or whomever had it there intentionally, because they didn't prepare to give you an alternative at this point. But I just wondered. It seemed. So we'll take that under advisement. Let's go to 17 then. COMMISSIONER SCHIFFER: Well, Mark, 16 I still have-- CHAIRMAN STRAIN: Well, I said 16 and 17 at the same time, so let's let Mr. Murray get finished and Brad, we'll get you next. COMMISSIONER MURRAY: And then under 17 where I'm pointing to item three where it speaks to exceptions and, you know, it's the issue that Donna Caron has raised and I have echoed about federal, state and county governments. But we also hire businesses, we hire companies to do our construction work. Does that extend that authority to those companies as almost as though they were our Page 125 November 6, 2008 agents, or they are in fact our vendors then or -- I'm trying to think of the right word -- contracted party. Do they -- are they an extension of the government in that context? MR. WRIGHT: I think if they're hired to do government work, they would be -- COMMISSIONER MURRAY: I do, too. MR. WRIGHT: -- an agent of the government. COMMISSIONER MURRAY: That's why I'm asking that. So we're exempting them, and I know that's always become an issue, a touchy point. Well, I don't know, I think that that is one step further down the road to not a good thing. MR. WRIGHT: If! can clarify, that exemption is an exemption from the emergency construction permit requirement. It's not an exemption from the sound level limit stated in the ordinance. So they still have to comply with the sound level of -- COMMISSIONER MURRAY: And I got it. I mean, I appreciate that and I recognize that it's probably something that you can't do much about, and I won't focus on that one. And I'll try to work on a better word for nearer than in that other one while you're talking. Thank you. CHAIRMAN STRAIN: Mr. Schiffer? COMMISSIONER SCHIFFER: Jeff, the phrase at the bottom of mixed use project it states, for purposes of this ordinance -- the top of Page 16 now -- sound level limits applicable to mixed use projects shall only apply to sound affected residential land uses or zoning located outside of the mixed use project and shall not apply to residential within the mixed use project. And that's conflicting with the thing we talked about on the other page where it's located within the same mixed use project. Is there -- I mean, I like the part that it doesn't include it. But if you look at the start on E, the first sentence of E and the last sentence Page 126 November 6, 2008 before the chart, aren't they conflicting with each other? MR. WRIGHT: I think, and maybe I should clarify and ifneed be fix the language. But what the intent is for mixed use projects is to set a sound level limit that's lower, based on the enclosed unit. Now, if they're -- let's just say a mixed use project has commercial and residential. You want -- let's just say they're stacked on top of each other and the residential is a victim of noise, so they call up code enforcement, close all the doors and do a measurement based on this scale. Now, if there's residential property located outside of the mixed use project, as mixed use project is defined, then these lower levels would not apply to that. The normal levels would apply. And that's what we're trying to capture with that last sentence. These levels -- these lower levels apply only to the sound affected within the mixed use project and not outside of it. Outside of it you have higher levels. COMMISSIONER SCHIFFER: But if you look at the sentence on the top of the page, it's essentially saying the opposite of that, isn't it? MR. WRIGHT: I see what you're saying. It should maybe be -- clarify what the actual intent here is. The intent is to not have it -- have these lower levels apply within the mixed use project but not to residential areas that are located outside of the mixed use project. That's the intent. And I could make a note to look at the language and make sure that there's no ambiguity. COMMISSIONER SCHIFFER: That sentence is actually saying the opposite of that. It's actually stating that it doesn't -- it applies to residential units -- it does not apply within it. But let's just go to the concept here. What you're saying, we're going to have a concept of higher decibel ratings; within enclosed residential units, the doors are all closed, we're going to have a lower Page 127 November 6, 2008 standard -- meaning a higher standard -- but I mean lower decibel ratings within those units only in mixed use projects? MR. WRIGHT: Yes. And multi-family projects. They both have that lower level. And the idea -- this is a little bit beyond my expertise, but what I was told is that when you're in an enclosed unit, you generally have a lower ambient level and you can base your readings on lower levels. COMMISSIONER SCHIFFER: Okay. I just -- COMMISSIONER MURRAY: Can I get -- CHAIRMAN STRAIN: Just a minute. Ms. Caron, she was next, then I'll get Mr. Vigliotti and Mr. Murray. COMMISSIONER CARON: I'm not objecting to these levels. I'm just wondering why for regular residential those levels can't be 53 and 45 instead 60 and 55. CHAIRMAN STRAIN: Table one. Why couldn't we use those same for residential on table one? COMMISSIONER SCHIFFER: Aren't we at a property line on table one? MR. WRIGHT: Well, I think the whole idea is you're inside of a box where everything's closed, and the sound that you do hear is going to be easier to hear if you're inside of that box. So that's why they lower those levels for measurement purposes. Now, if we put those lower levels, the 53,45 levels, if we move those over to the residential in table one -- I think that's what you're suggesting? COMMISSIONER CARON: Uh-huh. MR. WRIGHT: I think it would have a huge impact on residential areas and their ability to make sound. I mean, conversation alone is in the 60 range. So I mean, you'd have trouble with virtually any regular type of sound that's around the conversational level and above. Now, if you're inside of a closed residential dwelling, a mixed Page 128 November 6, 2008 use and you hear let's say the coffee shop's got a musician playing and you think it's too loud and you close all the windows, now if you spoke, that would be about 60. Now, if you hear those sound levels exceeding 53, it's basically saying that that commercial venue below me is so loud that it's like having someone talk to me in my own place. And that's why those levels are a little bit lower. CHAIRMAN STRAIN: Mr. Vigliotti, then Mr. Murray. COMMISSIONER VIGLIOTTI: I'm really concerned again about this three-story -- the mixed use project with the residential. When they buy, they know what they're buying, and I don't want to make it too strict or too stringent on them when they buy a residential unit above a cafe or above a coffee shop. CHAIRMAN STRAIN: Mr. Murray? COMMISSIONER MURRAY: Yeah, I've been working to see if I could come up with something better on this business, and I'll give you something, we should relate to it a little bit more. My first thought, well, maybe we should just require shielding regardless, and that would be a burden on some equipment, but perhaps not. I guess the intent here is that near the residential -- now, near of course is a judgment call because somebody could be a mile away, somebody could be 100 feet away, and that's what's disturbing about that. But the intent here, if I understand it correctly, is that we want to make the sound muffled enough that somebody who might complain will have a reason to complain. That doesn't make sense, my sentence, but I think you understood what I'm trying to say. And I'm just wondering if we can't just -- can we require that they shield it if they're anywhere proximate, if that's -- and I don't want to be vague either, but I'm struggling -- anywhere proximate to residential zoned properties? Does that make sense? MR. WRIGHT: Oh, it makes really good sense. I know what Page 129 November 6, 2008 you're saying. And what we did with the amplified sound, which we'll get to in a little bit, is we don't want to be arbitrary, but we do want to base this on something reasonable and we have 2,500 feet that we felt was reasonable. COMMISSIONER MURRAY: Yeah, that's what I called to your attention that we tried in the past to relate. But 2,500 feet under certain circumstances, you know, it could be 250 feet, too. Because the word near is the one that kicked it off for me. And proximate may not be much, much better, but proximate does convey something a little bit closer than near, because -- I think. You've got to be a grammarian here in order to do this job. MR. WRIGHT: Well, I think -- I mean, near and proximate to me are synonomous. But I think -- I like the idea of an objective distance. And I think maybe 250 feet. I want to talk to the noise consultant to make sure that she can nod at the suggestion of a certain distance. If she can say 250 feet's reasonable, we can at least say that we have an objective opinion. COMMISSIONER MURRAY: Yeah, I think that would be better than the two words that were used, yes, thank you. CHAIRMAN STRAIN: On the table three, the residential dwelling unit in the mixed use project, you're talking about inside ratings; is that what I heard you say? MR. WRIGHT: Yes. CHAIRMAN STRAIN: On table one, when we talk about the readings for the various other zoning districts, we're talking about outside readings; is that right? MR. WRIGHT: Yes. CHAIRMAN STRAIN: Could we add the inside readings as another subset to residential? And that accomplishes a balance between and consistency between what residential is expected to be, whether inside -- whether they're in a mixed use project or outside. Page 130 November 6, 2008 MR. WRIGHT: It makes sense to me. I'm not sure if there's technical issues with it. But I think you're saying that two standards would apply, inside and then outside. CHAIRMAN STRAIN: Right. And then if the people across from LaPlaya go into their homes, shut all their windows and doors and they have an inside problem that exceeds that decibel level, then that's another avenue to which they could explore as far as having a violation. MR. WRIGHT: It makes sense to me, and I'll make a note to discuss it with the consultant to see if there's any problems with that. CHAIRMAN STRAIN: Let's move on to Pages 18 and 19. Anybody have any questions on those two pages? (No response.) CHAIRMAN STRAIN: I do on Page 18, Jeff. Under G-1, the fourth line down, it talks about a one -- towards the middle of the line, a one-time site specific amplified sound permit will be required for any commercial business or nonresidential land use. Can you explain to me how that works? What's -- I just don't -- I'm trying to understand how this one time would work. Do they actually come in and apply for a permit and they say we're going to make this much noise and they get a permit to make that much noise? MR. WRIGHT: Well, if they come in and ask for a permit saying that they're going to be amplifying sound, then they would get a permit for that. And until they violate the permit by violating the sound ordinance, they would be able to operate without having to come back to the county and ask for annual permission. Now, that's something that's up in the air as to whether it's annual or one time, but -- CHAIRMAN STRAIN: Okay, well, that's what I was getting at. So the one -- that's why I didn't understand why it was just one time, but you haven't -- that's another where we could go annually or every five years or whatever. Page 131 November 6, 2008 MR. WRIGHT: Yes. And I had a note this morning from Ross Gochenaur. I don't want to speak for the zoning folks, but they might have a preference as to one or the other. MR. BELLOWS: For the record, it's my understanding that permitting a nightmare would be greatly problematic for an annual -- a one-time permitting thing seemed to be a much more fair way and-- CHAIRMAN STRAIN: I don't have a problem with that. The annual didn't seem -- I mean, that just seems a huge cost expense that's not needed. No, I wasn't trying to go there, I just want to make sure I understood what the sentence said. On Page 19, on 6-A, fifth line, has a new sentence that starts, this distance will be measured according to a survey, if provided by the applicant or by the official zoning map, aerial photograph, other reliable or accurate means. So if the survey -- if the applicant doesn't provide a survey, then who pulls up the other document, staff, and they just scale it on the document? MR. WRIGHT: Yes. CHAIRMAN STRAIN: Okay. Under denial, the only basis for denial shall be a prior application -- adjudication of violation. And that is on that property by that applicant, or can it be on that property by a different owner or by a different or subsequent operator or something like that? MR. WRIGHT: Well -- CHAIRMAN STRAIN: I mean, if one guy violates it, it precludes anybody from ever operating on that property again? MR. WRIGHT: What we were trying to capture is the same amplified sound activity. Regardless of whether or not the ownership changes hand, you would have whatever that approved activity is. If there's a violation of the ordinance relating to that approved activity, then we could deny them when they ask for a permit. CHAIRMAN STRAIN: As long as the activity stays the same, it Page 132 November 6, 2008 doesn't matter who the owner is. Yeah. MR. WRIGHT: I believe that's how it's written now. It's something that we could change, though, that's why we're here. MR. SCRIBNER: One of the things we wanted to capture is to make sure that if someone came in and got an amplified music permit and were found in violation, they didn't turn around and just sign the business over to their husband or their wife and then get another permit and we're back in the same place that we were to begin with. CHAIRMAN STRAIN: I'm there. That's all, I was just trying to understand. MR. WRIGHT: Mr. Chairman, if! may point out on Page 20 at the top, change of ownership or change of business will not invalidate the permit, so long as the use remains the same. CHAIRMAN STRAIN: Right. Okay, let's move on to Page 20 and 21. Are there any questions on 20? Mr. Murray? COMMISSIONER MURRAY: On item nine, enforcement, it refers to provisions of section 6-B, and when I went to 6-B I got really confused. Maybe I just don't understand what I'm doing here, but I went to Page 23, which is section six, and I don't know what happened. MR. WRIGHT: This is -- it's a drafting issue. If you'll see on Page 23, for example, you have the title in the ordinance in bold that this is section six of the ordinance, but it changes section seven. And within that section seven that we're updating, there's a reference to subsection 6-B. And I believe at subsection 6-B is where you'll find your sound level limits. COMMISSIONER MURRAY: Well, help me, get me to that, because I looked all over. MR. WRIGHT: It would be Page 9, right in the middle. And if you look at Page 8, you'll see kind of the flow of this drafting, where there's a section five which amends section six. Page 133 November 6, 2008 COMMISSIONER MURRAY: Whoa. Okay, Page 8 on my document. MR. WRIGHT: Yes. And on Page 9 you'll find the specific 6-B that the cross -- COMMISSIONER MURRAY: Well, I wasn't smart enough to go there. Sorry about that. COMMISSIONER CARON: I don't think I got that either. You're not alone. CHAIRMAN STRAIN: Any other questions on 20, 21? (No response.) CHAIRMAN STRAIN: If not, we'll move to 22 and 23. Anybody have any on those two pages? (No response.) CHAIRMAN STRAIN: 24 and 25? COMMISSIONER MURRAY: Yeah. CHAIRMAN STRAIN: Mr. Murray? COMMISSIONER MURRAY: Okay, under L, operation of equipment. I know we talked about mosquito fogging and we talked about refuse collection. I'm not sure we wanted to include it in that part of it. We're going to now make it that mosquito fogging is not possible? You don't mean airplane fogging here, do you? MR. WRIGHT: Well, I tried to make a change to reflect this concern that you have. And if you look at the top of Page 24, I added including noise from mosquito fogging aircraft -- COMMISSIONER MURRAY: Yeah. MR. WRIGHT: -- to that exemption for aircraft. Now, the context of that paragraph L you're referring to is residential and agricultural type of activities, including mosquito fogging. So the implication there is it's the handheld version, not the airplane version. COMMISSIONER MURRAY: Oh, okay. You know what? I Page 134 November 6, 2008 didn't pick that up until this very moment. But the other question about refuse collection, Waste Management gets out real early, we know that from the Stevie Tomatoes document. Can we -- is that going to be something that's going to create more trouble than it's worth? You would know best on that. MR. SCRIBNER: They're still subject to the noise ordinance, those early morning pickups. This exempts them during those hours that they wouldn't be subjected to the noise limits. So they're picking up refuse at 4:00 in the morning, they're going to have to comply to the noise limits. CHAIRMAN STRAIN: Good. COMMISSIONER CARON: Yeah. COMMISSIONER MURRAY: Well, we saw a video, and unless it was highly amplified for our benefit, and I don't think it was, I don't see how they can comply. And then you folks have to be there at the moment in time when that occurs -- MR. SCRIBNER: Right. My understanding is they're working on a separate solution to that, that particular Stevie Tomatoes. But I have another commercial property that we're working with right now that has that very same issue. And, you know, I'd love to be able to tell Waste Management that they can't pick up trash before 7:00 in the morning, it would solve a lot of issues. COMMISSIONER MURRAY: Well, I'm not sure I want to prevent them from doing a job that they need to do early in the morning. What I'm concerned about is whether or not we have a realistic -- you know, if I could turn to it and say this is not realistic, somebody who's in the business of doing that for a living can also maybe neutralize this ordinance. MR. SCRIBNER: This says they can do it between 7:00 and 10:00, they don't need to conform to decibel limits. After those hours, if they're picking up at 3:00, 4:00 in the morning, they're going to do it Page 135 November 6, 2008 quietly or they're going to be in violation of the ordinance. CHAIRMAN STRAIN: But in regards to Stevie Tomatoes, that's more along the lines in which you said earlier. That issue that they're picking up there is a zoning problem. When that SDP was approved or when that PUD was approved, one of the things that we should have looked harder at, and every board should now look at it and they probably will, is the location of dumpsters and making sure the separation is further into the heart of the project and not along the perimeter where they keep wanting to stick these things, where they're closer to residential. MR. SCRIBNER: And it's not only looking at what's there to mitigate that, but the distance -- you could have a long distance between a commercial property and a residential property. And Carillon Shopping Center is an issue that we're dealing with right now. They've got water behind that shopping center that's letting that sound carry right across into that residential area. And we're having to deal with that as we speak. And dumpster issues are one of them, sweeping parking lots, another issue that we run into. They sweep parking lots 2:00,3:00 in the morning and making noise. COMMISSIONER WOLFLEY: Which you can't do during the day. MR. SCRIBNER: Right. CHAIRMAN STRAIN: Any other questions on 24 or 25? (No response.) CHAIRMAN STRAIN: Ifnot, we'll move to 26, 27? (No response.) CHAIRMAN STRAIN: Okay, the next two are 28 and 29. Pages 28 and 29, anybody have any questions? (No response.) CHAIRMAN STRAIN: Okay, the next section is Pages 30 and 31. Page 136 November 6, 2008 COMMISSIONER MURRAY: Yeah. CHAIRMAN STRAIN: Mr. Murray? COMMISSIONER MURRAY: I still have a problem with confiscatory practices. I think they are a double slippery slope. I know you've kept it in here probably after due consideration, but -- and I understand the intent, I truly do. But I worry about going down that slope of confiscation. Confiscation of people's properties is a serious act, so I don't know. And then further on D you have lawful possessor. And I appreciate that, that's somebody who is entitled to have jurisdiction or responsibility. But they're punishable no matter who does it. So in other words, it's like the classroom teacher, all right, if nobody admits it the whole class stays after school. I don't know, is that theory still working today? Is that a good one? MR. SCRIBNER: Well, from an enforcement perspective, we want to make sure that we don't become property managers. The county should not be in the business of trying to deal with tenants and owners of property and getting in the middle of that. We hold the owner of the property responsible. If they've got a bad tenant, they need to deal with that tenant. And that's really what we're looking at in not only this ordinance but in other ordinances. COMMISSIONER MURRAY: But do you not deal with that bad tenant? MR. SCRIBNER: We certainly do. We will have the noise violations. There may be a business operating there, but if we've got the responsible property owner, we involve them in the process also. It's not going to be just with the tenant and code enforcement or the county, we're going to get the property owner involved too and make them a stakeholder in the whole issue. COMMISSIONER MURRAY: I do appreciate that. You do have to get to the person who's really responsible to hold them Page 137 November 6, 2008 accountable, I do. But I'm just wondering, there's so many potential circumstances. Being reasonable, I think we'll be okay, but I still have a great deal of trouble with this confiscation part of it. I gave you an example. I know you probably didn't want to have to deal with that example, but I think it's a valid type of thing. Do we have any other confiscatory practices in Collier County? MR. SCRIBNER: From a code enforcement aspect, I can't think of any right off the top of my head. I can tell you, we have not confiscated anything. And code enforcement would not confiscate. As you notice, the ordinance is very clear, it's a special magistrate -- COMMISSIONER MURRAY: Yeah, I understand. MR. SCRIBNER: -- or the Code Enforcement Board that would order anything like that. CHAIRMAN STRAIN: Isn't the confiscation after three convictions -- three more or less adjudications of violation? So that's someone who is flagrantly violating numerous times before they -- and they're found guilty of those three times, and then the final conclusion is you're not going to stop, we're going to stop it for you by taking away whatever it is you're causing the noise with. COMMISSIONER MURRAY: Well, make no mistake, I'm not in favor of the person who is the baddie in this case. I'm only concerned with the unintended consequences of allowing something as a practice that can be misused. And that's where I'm coming from, not in favor of the person who's repeatedly violating the law. MR. WRIGHT: If I may, Mr. Chairman. CHAIRMAN STRAIN: Sure. MR. WRIGHT: We had comments from the public pointing out other jurisdictions that say just take the equipment away when they're making noise. So this is an attempt to strike a balance between those concerns and reality. It does give the option for confiscation, may be compensated, shall be grounds for confiscation. Hasn't ever been used Page 138 November 6, 2008 and it probably is not going to be a route -- COMMISSIONER MURRAY: I would guess 99.9 percent of the people who were threatened with that would tend to obey. And I guess I'm going to drop my argument on that one. COMMISSIONER WOLFLEY: The key word is may. CHAIRMAN STRAIN: On your Item B on Page 30 about the middle where it's underlined board and special magistrate or court following the, and it says third adjudication, could you just add the words of violation? MR. WRIGHT: Yes. CHAIRMAN STRAIN: Okay. COMMISSIONER MURRAY: Oh, and I have one other, please. CHAIRMAN STRAIN: Go ahead, Mr. Murray. COMMISSIONER MURRAY: Under D, let me read it to you and see if it makes sense to you. It shall not be a lawful defense to assert that some other person caused such sound, but each lawful possessor or claimant of the premises shall be responsible for operating or maintaining such premises in compliance with this ordinance and shall be punishable, whether or not the person actually causing such sound is also punished. I think there's a word missing in here. Somebody shall be punished or the act shall be punishable. Do you understand what I've just referenced? MR. WRIGHT: Yes. I think the act is a good suggestion. The offending act. COMMISSIONER MURRAY: Right, that's all. CHAIRMAN STRAIN: Okay, Pages 32,33, anybody have any questions? Mr. Murray? COMMISSIONER MURRAY: 33. Just a question on that Section 13, use of loudspeakers. Other or other purposes. Are we working into the world of political speech by any chance? Page 139 November 6, 2008 Loudspeakers or public address systems used to produce sound signals from any source for either advertising or other purposes may not be operated. Political speech, does that get into it? MR. WRIGHT: No, that's a good point, because we are also doing the sign ordinance, and when you do specify advertising type message or noise versus some other type, you do run into a content based restriction. So I think that's a great point. I'm going to circle that and make sure that -- we don't want to be drawing distinctions between -- among content of the message, unless we have to. COMMISSIONER MURRAY: I think so. CHAIRMAN STRAIN: Pages 34 and 35, anybody have any questions? COMMISSIONER SCHIFFER: Thirty-five. CHAIRMAN STRAIN: Mr. Schiffer? COMMISSIONER SCHIFFER: Jeff, on parenthesis four on 35, it's exempting lawful businesses, professional occupations. Now, this section 12 is sound complaints without using a measured device. Does this give an argument to somebody, again, the infamous Stevie Tomatoes, that in their lawful use of an outdoor bar these noises that they're generating are essentially something to be expected from that business? MR. WRIGHT: I think so. I think you're absolutely right, it is typical to the business. Now, either way we're going to have -- you know, with the noise itself coming from voices, I'm not sure that measuring without the use of a device would be something that we'd be doing out there. I would agree, though, that it is kind of typical to that type of a business. Again, we run into that zoning problem. COMMISSIONER SCHIFFER: This is the defense, yes. And then since this is the last page, one other question, and it does on the prior page reference residential, as per section six, and it Page 140 November 6, 2008 defines residential as a couple classifications. One is if it's I guess habitually slept in or something, or habituated. What would we do with a caretaker that is allowed in industrial zoning and stuff like that? Should we exempt that residential thing or not? In other words, there are situations where caretakers -- and I guess go back to section six, the first -- MR. WRIGHT: I think I understand your question. Where are the boundaries around that habitually occupied residential use. COMMISSIONER SCHIFFER: Yeah, Section 6 would be A, parenthesis one. Should we put an exemption for caretakers? The code calls them caretakers. They're clearly allowed in certain -- but it's mostly industrial areas where you would expect it to be noisy. I mean MR. WRIGHT: Well, I think that a caretaker would have a very good argument, regardless of where they're located, that they are -- especially if they sleep there every night, that they're occupying habitually occupied sleeping quarters. Regardless of where they're at, those shall be considered residential use. There is some question about where are the boundaries for that. Is it the property line? And that's not addressed here. But I think in the case of a caretaker, we can add the word caretakers. COMMISSIONER SCHIFFER: Well, do we want to -- I was thinking of exempting caretakers; in other words, not to include caretakers. Do we want to provide this kind of noise protection for a guy sleeping in the middle of an industrial zone? I mean -- MR. WRIGHT: Well, foreseeably it seems that the caretaker would probably be working for that same sound generator. And if he really wants to raise a stink, he might not be sleeping there. COMMISSIONER SCHIFFER: Well, he could be the caretaker across the street in, say, a mini storage or something and he's watching -- you know, he's asleep at night; he's got nothing to do with that business. Page 141 November 6, 2008 I don't know, I just think if the caretaker section is really allowed for industrial kind of things for more security, I don't think we need to give that guy the same protection that these other residential areas would have. That's all, thank you. CHAIRMAN STRAIN: Okay, we're at the end of that document. The second document back is the outdoor seating document that we stopped talking about a long time ago. Hopefully the results are that the noise ordinance covers and takes care of any issues that could be created by an outdoor seating ordinance, and then we don't need to establish a separate outdoor seating ordinance, we can establish a noise ordinance that addresses the issues to the extent they can be addressed and the noise ordinance goes by the wayside. I think after the discussions and hearing some of the comments from staff, I'm not sure anything we do is going to get us a solution to the problems that we have that are based on zoning. But this is probably a far better document than the one that's currently in place. Ms. Caron, then Mr. Vigliotti. COMMISSIONER CARON: Well, I'd like to hear from the Sheriffs Department again and see where they think we're going with this and is it going to help them or not. They're the ones who get the complaints. And are we solving issues or not? Or are they going to get the same complaints over and over and over again and say the same thing to these poor people who cannot sleep at night, I'm sorry, there's nothing I can do about it, lady. I mean, I want solutions. MR. BAKER: Sure. For the record, my name's Mark Baker, I'm currently the captain of the patrol division, Collier County Sheriffs Office. What you have in front of you that's been worked by several people -- and I'd like to thank Jeffs work on it, and Dave Scribner, code enforcement, along with us working to massage this where we Page 142 November 6, 2008 can have something that's definitely livable, will more than likely pass Constitutional muster. One of the things that helps us as the sheriffs office was when you all planned and rewrote the rewrite to decriminalize the noise ordinance and make it a civil penalty in front of the special magistrate. That gives us a lot of leeway that when we do arrive on scene -- and most of our calls come in residential areas for a loud neighbor or a loud party or they've set up a band or DJ. on the lawn. This helps us, because we get there and we obviously hear it and it's loud, raucous, jarring and it's out of time, out of manner, out of place, unreasonable for this type of noise, we go up there and tell them to turn it off or we -- an officer discretion will always play into that. We give them a chance to extinguish the noise or pack it up or quiet it down or whatever the case may be to solve that community quality of life Issue. Should they choose not to do that and we come back or even at that first initial response, which generally we try to educate the personnel first, the offender, educate them first, engineering and education enforcement is basically Sheriff Hunter and Sheriff Elect Rambosk's philosophy. So if you can't do it with engineering, meaning some of the businesses that we've had that we've working with code and engineering, education on what's going on around, then it becomes the enforcement issue. With being able to go in there and just cite the offender the civil citation and have them appear in front of the magistrate, that helps us tremendously. Will it solve the zoning problems that you guys are talking about today? Probably not. And again, it depends on what the noise is and is it unreasonable. Does that answer your question? COMMISSIONER CARON: Strictly from a noise standpoint, Page 143 November 6, 2008 will the Pebblebrook neighbors be helped? Strictly from noise, not from zoning. MR. BAKER: If you're talking about the human voices outside, no. COMMISSIONER CARON: So it doesn't matter what time of day or night, when people are sitting outside screaming and laughing and swearing and whatever else we can find on those tapes, this will not help those people. MR. BAKER: Different point. If they're breaching the peace and we have a complainant and we arrive there for a disturbance type of issue where their peace is being breached, then it would require a sworn statement from them, as well as the witnessing officer must witness that and agree that this is a breach of the peace to cite that person with a state statute of breach of the peace, which would require the offending person to also provide testimony in the county court as to that violation, as well as the officer's own witness of that. They would have to witness that violation. In areas regardless of what location it is, if people are at a location watching Sunday night football and the game ends and they walk out of that establishment in the parking lot, some hundred people and they're talking about how well their team did, that's probably not going to rise to the level of unreasonableness to cite a person that we could identify in that group that's causing a loud, raucous, jarring nOIse. CHAIRMAN STRAIN: Mr. Vigliotti? COMMISSIONER VIGLIOTTI: No. CHAIRMAN STRAIN: Oh, I thought you had something. Anything else, Ms. Caron? COMMISSIONER CARON: Well, I'm just -- you know, I keep trying to think of the examples. I know that the Sheriffs Department was called out to a condo in Imperial for -- and I don't remember the name of -- Jack's Bait -- Page 144 November 6, 2008 MR. BAKER: Jack's Bait Shack. COMMISSIONER CARON: -- Shop is it -- yeah, Bait Shack. Is what we have, is that going to be solved here? MR. BAKER: We worked with code enforcement and Jack's Bait Shack as far as bringing in acoustical engineering. Although we didn't work as their agent, we tried to put all parties together, the offended party, as well as code, and Dave Scribner can help us with that. We took several readings at different times. And the violation -- and please correct me if I misspeak -- the noise meters that we use in the Sheriffs Department does have those as well. Not every member, but we have an amount. We take the readings and then they have to go back and be downloaded into a piece of machinery that reads that out. Now, we have worked with them. Now, at times they've not been in violation when the person has made the complaint. So if there's no violation, there's no violation to be cited. COMMISSIONER CARON: Right. MR. BAKER: And that's just where we're at. I mean, we can't obviously enforce something that's not a violation of an ordinance or a law. COMMISSIONER CARON: No, I understand. But you did have violations. MR. BAKER: And I believe they did have two there. MR. SCRIBNER: Yes, we did. We did have a couple of violations there. They were cited. And we worked with them afterwards. And really, what the violation was is the back door was being left open. Music was going out through that door. Just keeping the door shut solved the problem. But they were cited several times. COMMISSIONER CARON: In a lot of these instances, it usually can be something pretty simple. But unless you all are there to tell people to do this, they won't do it. And people then will continue to call, and we shouldn't be using our resources, our sheriffs resources Page 145 November 6, 2008 or even code resources that way if it's as simple as shut the door. MR. SCRIBNER: Well, I wish I could teach common sense, but that's not always possible. We have been able to work with that particular establishment. And I don't know that we've had a complaint for a year or two -- COMMISSIONER CARON: Good. MR. SCRIBNER: -- on that place. But others pop up. I mean, I could name a half dozen right now that we have complaints about. And we're taking a more active approach. Not waiting for complaints to come in, we're actually sending people out with the Sheriffs Department, taking noise readings around different establishments to establish noise levels. And if we find some issues that are coming up, we're getting on them before it becomes a problem. COMMISSIONER CARON: Let me ask the Sheriffs Department, do you have equipment that has both the A scale and the C scale? MR. BAKER: Yes, we do. COMMISSIONER CARON: So all of your equipment is that. And you say a good majority of your officers have that equipment, or what? MR. BAKER: I don't know a number offhand. We have so many in each district. And as you know, the county's divided into six districts. So if we have a -- the one good thing about this noise ordinance that's drafted, we have those specific areas where we don't have to use the meter. Now, if we have a repeat offender such as a business, then that makes it easier for us to coordinate with code, have them come out and let's work this as a case file to where we may even have a nuisance abatement issue here or some other remedy, like I said, with the engineering and education enforcement. So a long-term established business there or a business that's Page 146 November 6, 2008 creating noise, we definitely probably do not take action right at that time if the officer does not have a meter present. But they would document that incident. And if it meets the loud, raucous jarring, obviously we can have them tone it down or we could now cite them. COMMISSIONER CARON: Sure. MR. BAKER: But if we don't feel like we're on solid ground with citing them due to the ordinance or the officer's discretion, then we put together a case file and we work with our partners to try to solve that case. COMMISSIONER CARON: Okay, great, thank you. CHAIRMAN STRAIN: Commissioner Schiffer? COMMISSIONER SCHIFFER: And I don't, Dave, you can answer it, you mentioned you were at the Bait Shack and there were times where you couldn't cite them. But obviously were they making a nuisance at that time? In other words, what I'm trying to get at is we really want an ordinance that if they're a nuisance, if they're making noise, they are disturbing, that the ordinance will catch it in the reading. MR. SCRIBNER: I can tell you that any time we found a violation of the ordinance, we cited them for that. We gave them one opportunity, we came back a couple of times, found violations. I think they got two citations. And it's the residents behind there. I wouldn't say -- I mean, some people are obviously going to think it was a nuisance. I don't know what happens when people leave the bar sometimes, that's an issue, cars squealing in the parking lot. But we addressed it whenever we found the violation. COMMISSIONER SCHIFFER: But when you were standing there and it's to you a nuisance just by your own personal instincts and you -- were you getting readings that would cause a nuisance, or were there times when you felt it was a nuisance but the readings just aren't coming in? Page 147 November 6, 2008 MR. SCRIBNER: I didn't take the readings myself so I can't testify what the noise level was at that particular location. COMMISSIONER SCHIFFER: Was that a frustration maybe the Sheriffs Department has? Do you stand in situations where it's obviously a nuisance, it's obviously annoying, yet your equipment is not giving you the numbers you need to cite it? MR. BAKER: This ordinance will allow us to cite them. Because if the officer feels it's unreasonable, loud, raucous, jarring, then we -- and we can find the offending party and we witness that, we will cite them a citation that they would have to appear in front of the magistrate. COMMISSIONER SCHIFFER: Okay. And you're familiar with the Stevie Tomatoes situation a little bit? MR. BAKER: Yes, sir. COMMISSIONER SCHIFFER: So if you were standing in the neighbor's yard, would you cite these people out there screaming? MR. BAKER: Well, and again, you're talking about officer discretion, what they find to be unreasonable. So it is a subjective standard. The problem is, is when that group lets out, and I know we want to focus on Steve Tomatoes, but it could be any establishment. When a group of people walk out talking about how well their team did or whatever they're happy about, all those voices together at one time in a concrete environment of that cul-de-sac is probably going to be loud. Now, is it going to be raucous, jarring and unreasonable for the time, the location and the activity? I can't attest to that unless I'm there. Now, if somebody's in the parking lot yelling obscenities, jumping up and down, and we have somebody who's saying hey, this person's out of control, they're breaching my peace, then obviously we have a state statute that we can fallen (sic) under as far as if they'll give us a sworn statement and we witness that. We can take care of Page 148 November 6, 2008 that issue. COMMISSIONER SCHIFFER: And I don't think we're concerned about the spontaneous, you know, situation like people leaving the bar. Maybe that happens periodically more than it should, but it's the -- I think the thing that's constant that's disturbing them. Let me ask David a question. David, the -- and I live in a situation near a club where the music's fine, you could barely hear it inside, but obviously they took the trash out every half hour and at that time you heard it. Would this ordinance stop that? Because remember, there is the instantaneous thing. In other words, the timing of this might be that if the guy opens the door and closes it, we wouldn't ever have a citation. MR. SCRIBNER: Intermittent noise. The this ordinance isn't made to make things absolutely quiet. I would be remiss to try and tell you that it would be a violation or wouldn't be without actually being there. I can't make that judgment at this point. COMMISSIONER SCHIFFER: So there's nothing in here that would force them to build a foyer or something to stop that noise. MR. SCRIBNER: Again, if I went out there and I saw this happening, and even if it wasn't a violation, our policy has always been to go and talk to the owner of the business and say you want to be a good business person, you want to succeed in this community, you've got to get along with your neighbors. And most business operators are very in tuned to taking care of their neighbors. Some better than others. But for the most part we have businesses that do complain. We have a lot of businesses in this community that are very well within the noise limits. And we just have a few that have some issues. And some comply, some work at it, and others we'll deal with. COMMISSIONER SCHIFFER: All right, thank you. CHAIRMAN STRAIN: Okay, Mr. Vigliotti? COMMISSIONER VIGLIOTTI: The only statement I wanted to make is I agree with you that this noise ordinance seems to be Page 149 November 6, 2008 something that the Sheriffs Department thinks will work better and so does everybody else, so I see no need for the seating ordinance at this time also. CHAIRMAN STRAIN: Okay, with that, Ray, do we have any public speakers? Thank you, gentlemen. MR. BELLOWS: No speakers. CHAIRMAN STRAIN: I see Doug even shaking his head no. That means he blesses this, accepts this and says it's the greatest thing since sliced bread, so -- COMMISSIONER SCHIFFER: Mr. Chair? COMMISSIONER CARON: We must have done something wrong. CHAIRMAN STRAIN: Okay. What I'd like to suggest is we finally get this off our plate. And we've made some -- it's going to come back on a consent for some tweaks that we've suggested. I think out of everything we've talked about, the only one I -- Mr. Murray had a couple of cleanups to some language. We talked about adding -- I mentioned one where we added a violation after adjudication. But the idea of adding the inside decibel levels from table three to table one, is that the consensus of this group as well? COMMISSIONER SCHIFFER: Well, we could, yeah, maybe reference on the bottom of table one that it also has to meet that or something. CHAIRMAN STRAIN: I don't care how it's done. Is that okay with anybody? COMMISSIONER CARON: Yes. COMMISSIONER SCHIFFER: Yes. COMMISSIONER MURRAY: As long as it's not technically invalid, I can support that. And I think that you had indicated you wanted to make sure -- MR. WRIGHT: I'll check on that, yes. Page 150 November 6, 2008 COMMISSIONER MURRA Y: -- that it was not a problem. CHAIRMAN STRAIN: Okay, are there any other concerns that we have? Mr. Schiffer? COMMISSIONER SCHIFFER: I do. And Doug was not in the room when this was being done. Doug, in the mixed use projects -- can you come up one second and let me ask you a question. Doug, is it your understanding that the mixed use -- and the concern I had is that the first sentence of it on Page 15, and the last sentence that starts on Page 15 seemed to conflict with me. But is it your intent that this is an ordinance to be used within a mixed use project, as opposed to the mixed use project to the surrounding neighbors? MR. LEWIS: Doug Lewis, for the record, with Roetzel and Andress, here on behalf of Lutgert. The intent is that the sound generating source within a mixed use and where you have a sound receiving site, residential unit within a mixed use community, if those are in the same, then the intent that these standards would apply. When you're within the mixed use, you would look at these indoor standards. When you have a situation where you have a sound generator from within a mixed use, a commercial business, projecting sound outside of the mixed use project into an abutting residential community, then the table one limits would apply. COMMISSIONER SCHIFFER: Okay. In other words, remember that last sentence, let me read it read quick: For purposes of this ordinance, sound level limits applicable to the mixed use project shall not apply to the sound affected residential land use. Okay, I -- all right. If you're comfortable with that. Because I know you represent clients that build mixed use units. Okay, then I'm comfortable with it. CHAIRMAN STRAIN: Okay, we have reached a level of Page 151 November 6, 2008 comfort, although maybe not complete happiness. We need a recommendation to forward this document so it can come back on consent to the BCC with the discussions as noted, and the same recommendation to dismiss -- recommend dismissal of the outdoor seating ordinance. COMMISSIONER VIGLIOTTI: So moved. COMMISSIONER WOLFLEY: Second. CHAIRMAN STRAIN: Mr. Vigliotti made the motion as stated, seconded by Mr. Wolfley. Is there any discussion? Ms. Caron? COMMISSIONER CARON: I would just say, somebody needs to hang on to that outdoor seating in case we run into additional problems. CHAIRMAN STRAIN: And as we go on, if this needs -- if the history shows or examples in the field show it needs to be tweaked, I'm sure code enforcement will be back here recommending changes, and it will be easier to change this than it would be other things. So you still have that protection. Okay, with that we'll call for the vote. All in favor, signify by saymg aye. COMMISSIONER SCHIFFER: Aye. COMMISSIONER MURRAY: Aye. COMMISSIONER HOMIAK: Aye. COMMISSIONER KOLFLA T: Aye. COMMISSIONER MIDNEY: Aye. CHAIRMAN STRAIN: Aye. MR. WOLFLEY: Aye. COMMISSIONER CARON: Aye. COMMISSIONER VIGLIOTTI: Aye. CHAIRMAN STRAIN: Anybody opposed? (No response.) Page 152 November 6, 2008 CHAIRMAN STRAIN: Motion finally carries 9-0 after 18 months or more. So glad this one's put to bed. MR. WRIGHT: Thank you. CHAIRMAN STRAIN: Or at least comes back on consent. Hopefully that's simple. With that, there's no new business, there's no public comment. Is there a motion to adjourn. COMMISSIONER VIGLIOTTI: So moved. CHAIRMAN STRAIN: Mr. Vigliotti. Seconded by? COMMISSIONER WOLFLEY: Second. CHAIRMAN STRAIN: Mr. Wolfley. All in favor? COMMISSIONER SCHIFFER: Aye. COMMISSIONER MURRAY: Aye. COMMISSIONER HOMIAK: Aye. COMMISSIONER KOLFLAT: Aye. COMMISSIONER MIDNEY: Aye. CHAIRMAN STRAIN: Aye. MR. WOLFLEY: Aye. COMMISSIONER CARON: Aye. COMMISSIONER VIGLIOTTI: Aye. CHAIRMAN STRAIN: Anybody opposed? (No response.) CHAIRMAN STRAIN: We're adjourned. Thank you. ***** There being no further business for the good of the County, the meeting was adjourned by order of the Chair at 1 :52 p.m. Page 153 November 6, 2008 COLLIER COUNTY PLANNING COMMISSION Mark Strain, Chairman These minutes approved by the board on presented or as corrected as Transcript prepared on behalf of Gregory Reporting Service, Inc., by Cherie' R. Nottingham. Page 154