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CCPC Minutes 04/16/2009 R April 16, 2009 TRANSCRIPT OF THE MEETING OF THE COLLIER COUNTY PLANNING COMMISSION Naples, Florida April 16, 2009 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 Donna Reed-Caron Karen Homiak Tor Koltlat Paul Midney ( absent) Bob Murray Brad Schiffer Robert Vigliotti David 1. W oltley ALSO PRESENT: Jeffrey Klatzkow, County Attorney Joseph Schmitt, CDES Ray Bellows, Zoning & Land Development Review Thomas Eastman, Real Property Director, CC School District Page 1 AGENDA Revised COLLIER COUNTY PLANNING COMMISSION WILL MEET AT 8:30 A.M., THURSDAY, APRIL 16,2009, IN THE BOARD OF COUNTY COMMISSIONERS MEETING ROOM, ADMINISTRATION BUILDING, COUNTY GOVERNMENT CENTER, 3301 TAMIAMI TRAIL EAST, NAPLES, FLORIDA: NOTE: INDIVIDUAL SPEAKERS WILL BE LIMITED TO 5 MINUTES ON ANY ITEM. INDIVIDUALS SELECTED TO SPEAK ON BEHALF OF AN ORGANIZATION OR GROUP ARE ENCOURAGED AND MAY BE ALLOTTED 10 MINUTES TO SPEAK ON AN ITEM IF SO RECOGNIZED BY THE CHAIRMAN. PERSONS WISHING TO HA VB WRITTEN OR GRAPIDC MATERIALS INCLUDED IN THE CCPC AGENDA PACKETS MUST SUBMIT SAID MATERIAL A MINIMUM OF 1 0 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 VERBA TIM RECORD OF THE PROCEEDINGS IS MADE, WHICH RECORD INCLUDES THE TESTIMONY AND EVIDENCE UPON WHICH THE APPEAL IS TO BE BASED. 1. PLEDGE OF ALLEGIANCE 2. ROLL CALL BY SECRETARY 3. ADDENDA TO THE AGENDA 4. PLANNING COMMISSION ABSENCES 5. APPROVAL OF MINUTES - MARCH 19,2009 6. Bec REPORT- RECAPS - APRIL 14,2009 7. CHAIRMAN'S REPORT 8. CONSENT AGENDA ITEMS A. Pettion: V A-2008-AR-13977. Tim Chess of McDonalds USA, LLC, represented by Jeffrey Satfield of CPH Engineers, Inc., is requesting a Variance from the landscape requirements of Land Development Code Subsection 4.06.02, Buffer Requirements, in the General Commercial (C-4) and Gateway Triangle Mixed Use Subdistrict (GTMUD-MXD), to allow a modification of the required 7.5-foot wide buffer on the western side of the property; and to reduced buffer widths on the property's northern side from 15 feet to ten feet, the eastern side from 7.5 feet to five feet, and the southern side from 10 feet to five feet. The 0.86-acre subject property is located at 2886 Tamiami Trail East, in Section 11, Township 50 South, Range 25 East, Collier County, Florida. (Coordinator: John-David Moss, AICP) 1 B. Petition PUDA-2008-AR-13792, Naples Botanical Garden, Inc. and the Florida Gulf Coast University Foundation, Inc., represented by R. Bruce Anderson of Roetze1 and Andress LPA; and Margaret Perry, AICP, of Wilson Miller, Inc., are requesting an Amendment to Ordinance Number 03-29, The Naples Botanical Garden Planned Unit Development (PUD), by amending Section 4.14, Design Guidelines; Section 6.2, Development Parameters; Section 6.4, Permitted Uses and Structures to allow interim or temporary structures; Section 6.5 Development Standards so the interim or temporary structures have a greater setback distance than the principal structures; revisions to Section 7.2, Transportation Commitments of the PUD Document; and adding Section 7.6 to provide Deviations from the Land Development Code (LDC). The subject property (171.2:1: acres) is located at 4820 Bayshore Drive at the southwest corner of the intersection of Bayshore Drive and Thomasson Drive, in Section 23, Township 50 South, Range 25 East, Collier County, Florida. (Coordinator: Melissa Zone) C. Petition: PUDZ-2008-AR-13048, Nadesha Ranasinghe represented by Richard Y ovanovich of Goodlette, Coleman & Johnson, P A and Ronald Nino of Vanasse & Daylor, LLP are requesting a PUD rezone from the Estates (E) Zoning District to the Commercial Planned Unit Development (CPUD) Zoning District to allow a 45,000 square foot commercial development including retail, service and office uses to be known as Singer Park CPUD. The subject property, consisting of 5.14+/-acres, is located on Everglades Boulevard south of Immokalee Road (CR 846) in Tract 128 of Golden Gates Estates, Unit 47, in Section 30, Township 47 South, Range 28 East, Collier County, Florida. (Coordinator: Nancy Gundlach, AICP) 9. ADVERTISED PUBLIC HEARINGS A" Petition: BD-2009-AR-14138, Hussein Wafapoor represented by Joshua Maxwell of Turrell, Hall and Associates, Inc., requesting a 10-foot Boat Dock Extension over the maximum 20-foot limit as provided in section 5.03.06 of the LDC to allow a 30-foot dock facility to accommodate one vessel. Subject property is located at 140 Conners Avenue, legally described as Lot 22, Conner's Vanderbilt Beach Estates Unit No.3, Section 28, Township 48 S, Range 25 E, Collier County, Florida. (Coordinator: Ashley Caserta) B. Petition: V A-2009-AR-14139, Hussein Wafapoor represented by Joshua Maxwell of Turrell, Hall and Associates, Inc., is requesting a variance from Section 5.03.06 E.6. to reduce a required side yard setback of 7.5 feet for a dock facility to 0 feet. The subject property is located at 140 Conners Avenue, Section 28, Township 48 South, Range 25 East, Collier County, Florida. (Coordinator: Nancy Gundlach, AICP) C. Petition: PE-2008-AR-14071 Sandbanks LLC, represented by Michael R. Fernandez, AICP of Planning Development Incorporated is requesting a Parking Exemption pursuant to Land Development Code Subsection 4.05.02.K, to allow onsite parking on the contiguous 0.69 acres located at 3114 and 3126 N. Tamiami Trail of Residential zoned land all under common ownership. More than 67 percent (132 of the 195 spaces) of the required parking are located within the commercial zoned portion of the parcel. Subject property is located in Section 22, Township 49 South, Range 25 East, Collier County, Florida. (Coordinator: Melissa Zone) D. Petition: PUDA-2008-AR-13801, William L. Hoover, President of Catalina Land Group, Inc. the Manager of Wolf Creek Estates LLC and Buckstone Estates LLC; and Larry Mayer Abbo, Vice President of Prime Homes at Portofino Falls, Ltd., all of which are represented by William L. Hoover, AICP of Hoover Planning and Development, Inc. and Richard Y ovanovich, of Goodlette, Coleman et al and Josh Fruth of Davidson Engineering, Inc. are requesting a PUD Amendment for Wolf Creek RPUD to revise traffic stipulations. The applicant is proposing to change Section 5.7, Paragraph N and Paragraph 0 of the RPUD Document. Subject property is located on 167.96:!: acres in Section 34, Township 48 South, Range 26 East, Collier County, Florida. (Coordinator: Kay Deselem, AICP) 2 10. OLD BUSINESS 11. ~"'EW BUSINESS 12. PUBLIC COMMENT ITEM 13. DISCUSSION OF ADDENDA 14. ADJOURN 4/16/09 CCPC Agenda/Ray Bellows/cr 3 April 16, 2009 CHAIRMAN STRAIN: Good morning, everyone. Welcome to the April 16th meeting of the Collier County Planning Commission. If you'll all please rise for pledge of allegiance. (Pledge of Allegiance was recited in unison.) Item #2 ROLL CALL BY SECRETARY CHAIRMAN STRAIN: Will the secretary please take the roll call. COMMISSIONER VIGLIOTTI: Mr. Eastman? MR. EASTMAN: Here. COMMISSIONER VIGLIOTTI: Commissioner Kolflat? COMMISSIONER KOLFLAT: Here. COMMISSIONER VIGLIOTTI: Commissioner Schiffer? COMMISSIONER SCHIFFER: I'm here. COMMISSIONER VIGLIOTTI: Commissioner Midney is absent. Commissioner Caron? COMMISSIONER CARON: Here. COMMISSIONER VIGLIOTTI: Chairman Strain? CHAIRMAN STRAIN: Here. COMMISSIONER VIGLIOTTI: Commissioner Vigliotti is present. Commissioner Murray? COMMISSIONER MURRAY: Here. COMMISSIONER VIGLIOTTI: Commissioner Wolfley? COMMISSIONER WOLFLEY: Here. COMMISSIONER VIGLIOTTI: Commissioner Homiak? COMMISSIONER HOMIAK: Here. CHAIRMAN STRAIN: I almost thought you were going to say Page 2 April 16, 2009 Commissioner Ditropa, but -- COMMISSIONER VIGLIOTTI: Yeah, exactly what I was thinking. Item #3 ADDENDA TO THE AGENDA CHAIRMAN STRAIN: Okay, addenda to the agenda. Does anybody know of any changes to the agenda that are needed? Okay -- COMMISSIONER KOLFLAT: Mark? CHAIRMAN STRAIN: Yes, sir. COMMISSIONER KOLFLAT: I don't have a change, but I'd like to talk a little bit about this agenda, and that's the one coming up on the agenda about the boat dock. And I'd like to make a reference to Petition ADA-2008-AR-13731, which was a petition before the Collier County Commissioners to appeal a ruling that we had made about -- in December relative to the Monte Carlo boat docks. And the conclusion of that was that that motion to remand this item back to the Planning Commission with a request for formal interpretation and the reasons for initial denial in accordance with the LDC. During the discussion of that session, there was quite a conflicting argument about the criteria and the application of criteria. And it's difficult for me to understand how we shall apply the criteria until that issue is resolved. And to the best of my knowledge, it has not commissioned us orders to have it remanded, and it has not been executed. COMMISSIONER MURRAY: That's true. COMMISSIONER SCHIFFER: Good point. CHAIRMAN STRAIN: Well, I don't know if -- the County Attorney was the one that provided us with the -- I guess the Page 3 April 16, 2009 interpretation at that time. Jeff, is this something that you could respond to if we were to put it off for a little bit and take it right after the consent agenda items? MR. KLATZKOW: Sure. CHAIRMAN STRAIN: I know you'll need time to refresh your memory on it and it might have caught you off-guard. Because I didn't know anything about it -- MR. KLATZKOW: He talked to staff, not me. CHAIRMAN STRAIN: Okay. Ray? MR. BELLOWS: For the record, Ray Bellows, Zoning Manager. Ashley Caserta has informed me that that petition has been rescheduled for the May 7th Planning Commission. And in regards to criteria, staff is under the opinion that it's -- as the LDC states, that it's a percentage of the criteria, and that all questions should be answered in regards to the criteria provided in the staff report. CHAIRMAN STRAIN: I know, but I think the issue at hand-- and if you guys are prepared to discuss it now and since it was brought up now, that's fine. We're going to discuss it one way or the other before the first case this morning. I think the issue was that during the Monte Carlo boat dock request, the County Attorney I think told us that we didn't have to stick strictly to those criteria, meaning that if someone -- if we had other criteria we want to enter into it for denial or acceptance or whatever, we could weigh that in as well. Is staff in that position now, or has that position changed or have I not stated it correctly? MR. BELLOWS: My understanding, from what I heard from the Board of County Commissioners, they wanted clear evidence of the Planning Commission's recommendations for denial. I think they were confused as to what criteria applied or didn't apply. And so I think it Page 4 April 16, 2009 was remanded back to clear the record of what the vote was. And if you have new information or reasons that you're objecting to, I agree with the County Attorney's position that it can be stated, but that's an opinion and not a reason for denial, necessarily. It should be code-related issues that result in an actual formulation of a recommendation of denial. So my opinion, I think the criteria contained in the boat dock staff report presented to you should be what you use to base your criteria for either approving or denying. CHAIRMAN STRAIN: Mr. Schmitt? MR. SCHMITT: We have no option but to apply the code as written until one, the LDC is amended or two, the board gives us direction on how to apply it. MR. KLATZKOW: No, no, no, no, this is not about changing the code. This is about the way I read the code and the way staff reads the code. Okay? We're all following the code here, Joe. Nobody's saying that the County Attorney's saying to veer off the code or not, all right? So unless we have an official interpretation by staff of the code, I haven't seen one, okay. At this point in time it's just Ashley saying how she reads it, I'm saying how I read it. MR. SCHMITT: I beg to differ. It is not Ashley, it's the interpretation of zoning director. You made an interpretation, Mr. Klatzkow. You brought this up. Staff disagrees with you. Staffis applying the code as written in the LDC. And it's written based on the way it describes, and we've got no further direction. And until we bring that back to the Planning Commission for discussion, we're going to apply the code as interpreted by the zoning director. CHAIRMAN STRAIN: Okay, but part of the code -- the code is -- there's extensive issues in the code. You're focusing on the boat dock extension portions, or the boat dock requirements of the code. Part of the code also is compatibility requirements and a myriad Page 5 April 16, 2009 of other requirements. I think what we understood from our last meeting is we certainly can weigh in on all the boat dock criteria. But if we want to bring another part of the code in into our analysis, such as compatibility, such as what -- as long as we base it on a reasoning within the code, we have the right to do that. Is that a fair statement? MR. SCHMITT: No, it was an issue on the way the code is written, and it's three of one and five of the other. The interpretation was that anyone of them could be deemed a reason for denial, and that is not the way the staff applies it. If you meet as written, then we determine that staff reviewed it and it was acceptable as the code is written, not because of only one issue creating a denial. CHAIRMAN STRAIN: Mr. Kolflat? COMMISSIONER KOLFLAT: Yes, I'd like to cite back from the meeting notes of that commission meeting. On Page 162, Commissioner Halas: Yes, let's send this back to the Planning Commission with guidance so that we can get this thing taken care of once and for all. Commissioner Coyle then said: And I'll second it and ask that it be made clear to them that they not only list the criteria they use in accordance with their ordinance, but list any other criteria which they think is important in their decision; is that okay? Now, it was not prepared here, it was directed to come back to the Planning Commission. We've not heard a thing about this. And that was back in December 2nd. It's been four months. My question is, why haven't we had something up till now and why are we talking about other boat docks? MR. SCHMITT: The question is why haven't you heard that one? It's because it was up to the petitioner to bring that back to the Planning Commission. And that was a discussion with the petitioner. And after resolving it, it's scheduled for a forthcoming meeting. COMMISSIONER KOLFLAT: I beg to disagree. This was a Page 6 April 16, 2009 direction to the staff from Commissioner Halas and Commissioner Coyle in the notes. MR. SCHMITT: Well, it's still up to the petitioner whether they want to withdraw it completely. And so we have not brought that back yet until we've resolved it with the petitioner. It's scheduled for a meeting in May. CHAIRMAN STRAIN: Mr. Schiffer? COMMISSIONER SCHIFFER: The impression I got, that it wasn't petition specific, it was the issue of this criteria has become a problem. When we added that to the LDC, which I think is in 2006, we had a lot of discussion as to whether this was just going to be checking off the scoring. And the staff stated at the time that it wasn't. Yet, you know, Ray just now said yes, it's purely a scoring method. So I think we have to go back to the hearing where we brought it into the code. MR. SCHMITT: We added at that time the criteria for compatibility on -- when we were talking about the impact on surrounding property. And that had to do with, if I recall, boathouses and the impact that boathouses would have. COMMISSIONER SCHIFFER: The way it was worded is that staff had this criteria that they used. And actually with this new hearing you can see the older method, it's stuff that they've added. And they wanted to bring that into the code. The concern was it just became a score card. And, you know, the staff assured us at the time it wouldn't. Ray today actually said it is. CHAIRMAN STRAIN: Mr. Klatzkow, in our review of any boat dock application, I understand what the primary and secondary criteria are, what the requirements are in regards to how many questions have to be positively answered and others that don't. But aren't we allowed then to additionally take into consideration any of the elements of the LDc in regards to that boat Page 7 April 16, 2009 dock or extension or application? MR. KLATZKOW: I think in reaching the determination you can go beyond. There may be exceptional circumstances that may warrant a certain recommendation decision by you guys. CHAIRMAN STRAIN: Mr. -- MR. SCHMITT: Well, my question then is how do we as staff evaluate it and how does the applicant apply if all they have in front of them is the primary and secondary criteria? And that's the way it's reviewed, based on a staff review. CHAIRMAN STRAIN: Joe, I don't -- first of all, I wish this question had come up prior to the meeting here today so both parties could take -- I don't mean the applicant, I mean the county staff and the County Attorney could have gotten together to provide us with an answer rather than surprising it on you today. I did not know this was coming up. It does put a twist in today's meeting, unfortunately. We will still have to plow forward. As far as what criteria staff would have to go by, Susan Murray is the interpreter of the code, if I'm not mistaken. If she has not opined how those criteria apply to date, it would be helpful if she did. MR. SCHMITT: Wait a minute, the criteria apply. It's what , you re -- CHAIRMAN STRAIN: I said limited to just those criteria, though. Because my question is if we can apply the code to boat docks, it goes beyond the criteria. In the code there are compatibility sections and everything else, and there may be issues that we could apply outside the criteria. And if that's not the question at hand today, fine, but it seemed like it was. Because we went outside the criteria last time to apply -- MR. SCHMITT: I thought the question at hand was -- MR. KLATZKOW: The prior discussion I had with the board last time was this: Look, it's not a score sheet. There may be one criteria there that is so overwhelming that you would deny it. For Page 8 April 16, 2009 example, let's say you had a waterway that was 100 feet in length that somebody wanted to put a 90- foot dock in, okay? Well, it doesn't meet that one criteria but it might meet every other criteria. So if you're just using a score sheet, okay, approach you would approve it, but that's senseless, because the dock is just blocking the whole thing. CHAIRMAN STRAIN: I think that's a very good example, and thank you for refreshing my memory at least on that. COMMISSIONER SCHIFFER: And Mark? CHAIRMAN STRAIN: Yes, sir, Mr. Schiffer. COMMISSIONER SCHIFFER: And I'd really like -- Joe, you should go back and look at the public hearing where staff brought this criteria -- the criteria was there. The scoring method staff brought in as an example of how they come up with a recommendation for this board. If we're purely to check whether they did the score method right, then why are they having a public hearing at all? I mean -- and obviously the reason these boat dock -- the extensions come here is to have a public hearing. So if the public hearing is just to check to grade the staff on their homework, then that's not a public hearing. MR. SCHMITT: Yeah. And we've had that debate before, whether some of these should even come to a public hearing and should they just be an administrative approval. COMMISSIONER SCHIFFER: But read the minutes from when it got into the code, the LDC. I would guess 2006. And I think the conversation staff had then with us, the assurances staff gave us of our concern over the score card method is contrary to what Ray said today when he started the conversation off. Ray today believes it's purely a score card. And that was -- MR. SCHMITT: Let me -- COMMISSIONER SCHIFFER: -- assured that that would never happen. Page 9 April 16, 2009 CHAIRMAN STRAIN: Before you guys -- MR. SCHMITT: Let me go back to the issue about the dock protruding over 100 feet. If that were the case, it's not going to meet criteria three, it's not going to meet criteria four and it's probably not going to meet criteria five. So, you know, that's the way the evaluations are done. CHAIRMAN STRAIN: Okay, Joe, I think what the County Attorney has left us with for today is that if any of the criteria are so overwhelming we feel it should not move forward, then we can make that as an exceptional statement and say so. I think that's what the BCC is looking for from us in reverting -- remanding it back to us. And with that, I think we know enough to proceed in today's hearing with the two we have in front of us. Mr. Schiffer? COMMISSIONER SCHIFFER: The only exception is I did watch that hearing. And the impression I got was is because the BCC is getting stuff and it appears like we didn't do our job. And I think what Frank was saying is they are doing their job. And I think Coyle, maybe in reading -- Commissioner Coyle reading specifically we may feel like we're doing our job weakly, we're not explaining these issues. And it was to go back and decide how we're going to do these boat docks. If it is a score card method, let's just make it staff. It's the only final decision this board makes, it's the only reason this board is an official -- you know, we're officers of the county, and this would free up a lot of members to be on other boards, so let's just resolve that and get it over with. MR. SCHMITT: But it still requires -- the public still has the right to come in and present its view as to whether they believe it's going to -- you know, it's going to create a navigational issue as far as existing docks or the waterway. That's why it's still a public hearing. COMMISSIONER SCHIFFER: If you -- Page 10 April 16, 2009 MR. SCHMITT: And then you make a decision, you make the final determination. What that was was an appeal. And when we presented the appeal to the board, it was staffs position that though it was denied, there were certain criteria in the way the code is written that though there were grounds for the appeal, we supported the position that the appeal should be upheld. CHAIRMAN STRAIN: Brad, you guys aren't going to come to a meeting of the minds here at this meeting today. COMMISSIONER SCHIFFER: Okay. CHAIRMAN STRAIN: Why don't we -- we have a standard established by the County Attorney. I think what it basically says is we have the criteria. If even one or more criteria are so exceptional to us, are so abhorrent that they want to get to a point where we feel it's deemed not passable, then we just so state our exception for the record clearly as to why that one is such a strong issue. And that will get us to the BCC with hopefully the information that they need. Is that close in everybody's mind to what we-- MR. SCHMITT: And I think that was the board's intent, so they would know exactly why you disagreed with it. And if it were appealed, then we could articulate to the board why this panel recommended disapproval. CHAIRMAN STRAIN: Mr. Schiffer? COMMISSIONER SCHIFFER: But Joe, we've done that. And the problem with it is we've made our opinion, and it's only one of the criteria and then it goes to the board and the staff is discussing how it still wins because, you know, there's still the other four that passes or something. So that's not what happens. I mean, the conversation with the commissioners gets confusing to them even, because how can they reject it when it only failed one item. CHAIRMAN STRAIN: Well, I think-- COMMISSIONER SCHIFFER: I really think the intent was is to Page 11 April 16, 2009 bring it back and have us study how we do boat docks. And I think when you bring it back, bring it back to when the criteria score method came in to the code. Because that's when the problem occurred. CHAIRMAN STRAIN: Mr. Kolflat, did you have something you wanted to -- COMMISSIONER KOLFLAT: Yes. All I'm trying to ascertain is today how should I view this petition? Should I view it on like the score card method that's been established as far as being in the code and should be followed, regardless if there's any extenuating circumstance, or should we use our judgment and possibly interdict considerations which we think are relevant? CHAIRMAN STRAIN: My thought is that we're not limited to anything. But we have to be explicitly clear as to why we have either found one of those score card elements more appalling than others, or if we bring in other circumstances we have to so state it on the record and state it clearly. It goes then on to the BCC. Staff will have their position, their position is already as it's stated to us, and the BCC will have ours as well as theirs. And the BCC is there to make a decision if there's an impasse. And that's what I think the outcome of this will be. Mr. Schmitt? MR. SCHMITT: I'll go to the first petition on your Page 4. And it's clear. In order for the Collier County Planning Commission to approve a boat dock extension request, it must be determined that at least four out of the five primary criteria and four out of the six secondary criteria have been met. I mean, that -- MR. KLA TZKOW: But it says at least. It doesn't mean if all four are met they have to do it, okay? There's a difference, Joe. Which is why I'm saying, if I can get an official interpretation out of this from Susan, it might be helpful rather than having this back and forth. Then Page 12 April 16, 2009 the board can make a policy decision. MR. SCHMITT: I don't understand. I mean, to me at least four out of the five primary and at least four out of the six. Now, how you apply that, you make -- you provide us. If you deny it, we need to know what your basis of denial is. Because if it's appealed, we need to present that information to the Board of County Commissioners. MR. KLATZKOW: What at least means is that if only three are met, you can't do it, okay. But if five are met, maybe you can, maybe you can't. There's some discretion. If there's no discretion, they shouldn't be hearing it, it should be purely administrative. CHAIRMAN STRAIN: Mr. Schiffer? MR. SCHMITT: All I want is for them to articulate if they deny it so we can present it to the board. CHAIRMAN STRAIN: That's what I'm trying to get to, Joe. And you guys want to debate this. It's the wrong time to do it. I think we've got to establish what we have to do. Mr. Schiffer? COMMISSIONER SCHIFFER: I just want to say, Joe, go back and read your staffs testimony when they brought the numbering part of the criteria. The criteria has been in the code. Your staff had a method of numbering it so that they could have a vote to see whether it's good or bad. They brought that into the LDC in 2006. At that time there was great concern that it would become just exactly what you described. And it was assured to us that it wouldn't. So if it is exactly what you described, then it becomes an administrative thing, we check your homework, the public, the only option they have is to check your homework and that's how it goes. But we've got to figure this out sometime. CHAIRMAN STRAIN: Well, and I would suggest before another boat dock application comes before this board, between the Page 13 April 16, 2009 staff and the legal department, you guys get it resolved somehow. And for today's meeting, we have an overriding health, safety and welfare concern for the public in our LDC, and if anything else we certainly can apply the rules to fit that need. And I think that's how we ought to be proceeding today. Mr. Kolflat? COMMISSIONER KOLFLAT: Can we make a request of the staff that they withhold any other boat dock applications until this issue has been discussed and resolved during the Planning Commission? CHAIRMAN STRAIN: I just asked them to resolve this before any are brought forward. So rather than withhold something, which is more like an action I'm not sure we can take, because it may be a semi moratorium, before anything gets back to us on a boat dock extension, be sure to have this resolved, and that would settle it. Okay? Mr. Kolflat, thank you for bringing it up. Next time if we know a little ahead, we can be better prepared, but I do appreciate you bringing it up. COMMISSIONER KOLFLA T: I worry about the Sunshine Law. Can't ever communicate with -- CHAIRMAN STRAIN: Oh, no, no, I mean to staff. COMMISSIONER KOLFLAT: Okay. CHAIRMAN STRAIN: I mean, it's good to prepare staff for hard questions like this, then they can have some time to do research if needed ahead of time. Item #4 PLANNING COMMISSION ABSENCES CHAIRMAN STRAIN: Planning Commission absences. This one's going to be as long as the last. We have a whole pile of Page 14 April 16, 2009 schedules that I have been handed over the past week to talk about today. As you all know, we have commissions from GMP hearings that David Weeks' department -- or Randy Cohen's department, I'm sorry. And they are in January of -- CIE -- no, they're in January and February of this year. And on top of that, I got a request for the CIE review. Now-- and on top of that I got a request for LDC reviews. I have a series of piles and piles of meeting dates here. What I have done is gone through a year long plus calendar, laid out what we have already okayed for dates, and then went back and saw what available dates were presented in the documents that were sent to me to see which of those dates fit best for this commission, not piling one meeting on top of another. It would be really hard to prepare for a regular meeting and have an LDC meeting the same day. Where they are even the same week that's difficult. In some cases, though, unfortunately that cannot be prevented. So here's what I have I think are the best dates. If you all want to go over all the dates, we can do that, but trying to save time, I'll give you the best dates that I was able to coordinate out of these. The CIE adoption hearings would need to be -- well, we have the adoption and we have the AUIR process. We're looking at two different dates. One was starting in December and the other was starting in January. December Christmas period a lot of people are out of town. We also have meetings already scheduled for December in close proximity to the ones that they had suggested. The two dates that I think would be the best for the Planning Commission are Tuesday, January 5th and Tuesday, January 19th. Does anybody know on their calenders if those are objectionable to them? COMMISSIONER SCHIFFER: Mark, no, you'd have to give us Page 15 April 16, 2009 the dates and we have to come back. I mean -- COMMISSIONER CARON: Yeah. COMMISSIONER SCHIFFER: -- I wasn't prepared for a meeting prophesy today, so -- but give us those dates. CHAIRMAN STRAIN: January 5th and January 19th. So we'll have to put the decision off then till next meeting. On the LDC hearings, if you were to take in those dates as well as the other dates we previously approved and our regular meeting dates, there are three dates that would be in between some of the others that would probably work for us for LDC. The first one is Thursday, January 28th, the second one is Thursday, February 25th, and the third one is Thursday, March 25th. That's not the order that staff had preferred them in, but by stretching them out a month apart the last Thursday of each month it gives us some time in between our regular meetings. Because the LDC is pretty difficult to get through. MR. SCHMITT: May I ask those again, January 28th, February 25th and March 25th? CHAIRMAN STRAIN: Right. Those are -- I had gotten more dates, Joe. MR. SCHMITT: Oh, we've got a lot of them. CHAIRMAN STRAIN: Yeah, they're all intermixed, though. And some are conflicting with the CIE, some are right after another meeting or before another meeting, and I know that's going to make it real difficult for this panel. MR. SCHMITT: And I know some of those dates were -- CIE and transmittal dates were double booked, based on either availability of this room or continuation dates. So you give us those dates, we'll come back with a hard calendar then and we'll lay it all out. CHAIRMAN STRAIN: And the hard calender is still going to show that we have two meetings in some weeks. Page 16 April 16, 2009 MR. SCHMITT: Yes. CHAIRMAN STRAIN: So with the number of meetings we have scheduled for that part of the year, there's no way to avoid it. But this separates them, I believe, as best they can be separated and still give us time to do our reading. Mr. Vigliotti? COMMISSIONER VIGLIOTTI: The dates you've given us are dates that we're going to be here, not choices of them, correct? So we're looking at -- CHAIRMAN STRAIN: Right, those are the dates that if everybody can work with that, those are the dates that are most separated by other dates that we have. And they're all in this room. And those are the ones that I have gone through thoroughly, and hopefully those would be the best we could come up with. MR. SCHMITT: And they're spaced so that there's distance between you and then the board meeting and all those kind of things, so we're just -- COMMISSIONER VIGLIOTTI: No, that's fine. If you worked them out, I'm okay with it. CHAIRMAN STRAIN: Okay. Well, there's the dates, if you all could think about them in your -- for our next meeting. Go ahead. Ms. Caron? COMMISSIONER CARON: Mark, do you have the GMP dates that we -- CHAIRMAN STRAIN: Yes, I do. COMMISSIONER CARON: -- talked about last week? COMMISSIONER MURRAY: Chairman? CHAIRMAN STRAIN: Yes, Mr. Murray? COMMISSIONER MURRAY: You mentioned the CIE and then the AUIR. And if the AUIR is in this room, is it likely that we're not going to meet in conjunction with the Productivity Committee? CHAIRMAN STRAIN: No, that's the CIE as a result of the Page 1 7 April 16, 2009 AUIR. It's a coordination. COMMISSIONER MURRAY: All right. CHAIRMAN STRAIN: The AUIR I'm assuming will still be over in CDES. The other dates that we chose for the transmittal hearings for the 2007/2008 cycle of the GMP was October 19th and October 20th. The adoption hearing was July 19th and July 20th, if we even need those two days for adoption. For the Immokalee area master plan, the dates that were previously accepted were January 29th and February 16th. And then for the adoption hearings, they were October 28th and October 29th. I hope I got that right. But that's as close as I can read off of this one paper I got from our last meeting. Joe, if you could -- MR. SCHMITT: Then yet to be determined will be the RLSA transmittal and adoption. CHAIRMAN STRAIN: Right. And that one in itself will take a long time, depending on how much the commission accepts or does not accept from the Planning Commission. MR. SCHMITT: Our proposal is -- will be discussed next week with the board. And so I want to preface by it will be the board's decision on what takes precedence as far as the GMP amendments. We have the 07/08 cycle, which currently has 10 private petitions, and then we have the Immokalee Area Master Plan, and then we have the RLSA, all of which are GMP amendments. All we want to keep separate. The Immokalee Area Master Plan of course is going to be a document in and of itself. We're going to need at least two days for the GMP amendments, you'll need at least a day or two for the Immokalee. And then the RLSA will be based on where we can -- where the board wants that to fit in. But that's the order we're at, we're going to recommend to the Page 18 April 16, 2009 board. Now, they may decide and put the RLSA first, I don't know. CHAIRMAN STRAIN: Well, when the RLSA schedule, the transmittal hearing of that, will be as a result of the data and analysis that -- MR. SCHMITT: That's correct. CHAIRMAN STRAIN: -- your departments do. MR. SCHMITT: That's correct. That will be a normal submittal and then it will go through staff analysis and presented just like any other GMP amendment. CHAIRMAN STRAIN: But what I was going to say is that that amount of analysis and data, as well as the magnitude of what we reviewed last time versus this upcoming time will be probably as lengthy. Because the analysis and the data in itself will take a lot of time just to read and digest, so -- MR. SCHMITT: Just so you can put your arms around everything, 2010 is also the start of another EAR process. Hard to believe, but we'll be going through the evaluation and appraisal report, which is the report then follows the GMP amendments then follows the LDC amendment. So it's hard to believe we're already into beginning evaluation and appraisal reports. COMMISSIONER MURRAY: We're going to need a raise. MR. SCHMITT: You're going to need more staff, but I don't think that's going to happen. So we may end up delaying that EAR. And if we delay the EAR, we're going to be prohibited from submitting any GMP amendments. So -- CHAIRMAN STRAIN: Understand. Okay, well, let's just move on. MR. SCHMITT: And then one other twist which I'll bring up, since we're talking about it, the legislature may limit GMP submittals of only one a year from the county, only one cycle a year. CHAIRMAN STRAIN: I understand. Page 19 April 16, 2009 MR. SCHMITT: So that may stretch these out even more. So it's just -- we're scheduling them, just so you know what's coming up, because we want to present to the board how we believe this thing should sequence. And of course there may be some outside influence wanting to change that order coming before you. CHAIRMAN STRAIN: Thank you. Item #5 APPROVAL OF MINUTES CHAIRMAN STRAIN: Approval of minutes. There are no minutes with this agenda. Item #6 BCC REPORT - RECAPS - APRIL 14, 2009, REGULAR MEETING CHAIRMAN STRAIN: BCC recaps. Ray? MR. BELLOWS: Yes, on April 14th, the Board of County Commissioners heard the three sign variances for Port of the Islands, and that was approved on their summary agenda. CHAIRMAN STRAIN: And our next regular meeting is going to be on May 7th. Is everybody that is here today know whether or not -- does anybody know they're not going to be here on May 7th? COMMISSIONER WOLFLEY: Possibility I will not. CHAIRMAN STRAIN: Okay, anybody else? COMMISSIONER MURRAY: We have a grand child about to be born, so I'm not certain for myself either. CHAIRMAN STRAIN: You can bring him. Page 20 April 16, 2009 COMMISSIONER WOLFLEY: That would be her. That would be the mother. CHAIRMAN STRAIN: Okay, we'll still have a quorum. Mr. Eastman, let the record show you're here. I'm not sure, did we catch him on -- COMMISSIONER VIGLIOTTI: Yes, I did. CHAIRMAN STRAIN: Okay, thank you. You sit over there smiling all the time, I just want to make sure we know you're there once in a while, Tom. MR. EASTMAN: Thank you. Item #7 CHAIRMAN'S REPORT CHAIRMAN STRAIN: Chairman's report. Muni. Code. I've read the data that was supplied to us last time, and Muni. Code had expected supplemental changes twice a year, January and July. And they charge by page, which is kind of interesting. I also know that they're supposed to be supplied the data. They were supplied all kinds of pages of stuff, including PUD's. I'm so glad they did not go ahead and implement those into the code, because it would have made it even more confusing. But I know Mr. Klatzkow, I understand you're working on this? MR. KLATZKOW: We are very close to having this finalized and done with. CHAIRMAN STRAIN: Okay. I'll just keep checking with you on regular -- until it's -- MR. KLATZKOW: Yeah, right now what we're doing is we're going back to the recodification. We're making sure that every amendment from that point on is adequately reflected in the code. I'm not going back before then. Page 21 April 16, 2009 CHAIRMAN STRAIN: No, but I do know that part of their contract was for us to review the drafts of how they implemented it into the code, so I think that's good, that's what we should be doing. MR. KLATZKOW: That's what we should be doing, yes. CHAIRMAN STRAIN: Right. Thank you, sir. Item #8A PETITION: V A-2008-AR-13977, TIM CHESS OF MCDONALDS USA.LLC CHAIRMAN STRAIN: We have three consent agenda items. First one is Petition V A-2008-AR-13977, Tim Chess of McDonald's, USA, LLC, for the McDonald's at 2086 Tamiami Trail East. Are there any changes needed to consent agenda on that item? (No response.) CHAIRMAN STRAIN: Hearing none, is there a motion to approve the consent agenda for that item? COMMISSIONER SCHIFFER: Moved. COMMISSIONER VIGLIOTTI: So moved. COMMISSIONER MURRAY: I would move to approve. CHAIRMAN STRAIN: Mr. Schiffer, seconded by Mr. Murray. All those in favor, signify by saying aye. COMMISSIONER SCHIFFER: Aye. COMMISSIONER MURRAY: Aye. COMMISSIONER HOMIAK: Aye. COMMISSIONER KOLFLAT: Aye. CHAIRMAN STRAIN: Aye. COMMISSIONER WOLFLEY: Aye. COMMISSIONER CARON: Aye. COMMISSIONER VIGLIOTTI: Aye. CHAIRMAN STRAIN: Anybody opposed? Page 22 April 16, 2009 (No response.) CHAIRMAN STRAIN: Motion carries 8-0. Item #8B PETITION: PUDA-2008-AR-13792, NAPLES BOTANICAL GARDEN~ INC. CHAIRMAN STRAIN: Next consent agenda item is Naples Botanical Garden Petition PUDA-2008-AR-13792 at 4820 Bayshore Drive. Any corrections needed to that on a -- Mr. Kolflat? COMMISSIONER KOLFLAT: Motion to approve. CHAIRMAN STRAIN: Any corrections, anybody? (No response.) CHAIRMAN STRAIN: Okay, the motion's made to approve, Mr. Kolflat. Seconded by? COMMISSIONER VIGLIOTTI: Second. CHAIRMAN STRAIN: Mr. Vigliotti. All in favor, signify by saying aye. COMMISSIONER SCHIFFER: Aye. COMMISSIONER MURRAY: Aye. COMMISSIONER HOMIAK: Aye. COMMISSIONER KOLFLA T: Aye. CHAIRMAN STRAIN: Aye. COMMISSIONER WOLFLEY: Aye. COMMISSIONER CARON: Aye. COMMISSIONER VIGLIOTTI: Aye. CHAIRMAN STRAIN: Anybody opposed? (No response.) CHAIRMAN STRAIN: Motion carries. Page 23 April 16, 2009 Item #8C PETITION: PUDZ-2008-AR-13048~ NADESHA RANASINGHE CHAIRMAN STRAIN: Next consent agenda item is Petition PUDZ-2008-AR-13048, Nadesha Ranasinghe for Singer Park CPUD in Golden Gate Estates. Are there any corrections needed to that item in the -- COMMISSIONER WOLFLEY: Motion to approve. CHAIRMAN STRAIN: -- consent agenda? Mr. Wolfley made the motion to approve. COMMISSIONER VIGLIOTTI: (Indicating.) CHAIRMAN STRAIN: Seconded by Mr. Vigliotti. All those in favor, signify by saying aye. COMMISSIONER SCHIFFER: Aye. COMMISSIONER MURRAY: Aye. COMMISSIONER HOMIAK: Aye. COMMISSIONER KOLFLA T: Aye. CHAIRMAN STRAIN: Aye. COMMISSIONER WOLFLEY: Aye. COMMISSIONER CARON: Aye. COMMISSIONER VIGLIOTTI: Aye. CHAIRMAN STRAIN: Anybody opposed? (No response.) CHAIRMAN STRAIN: Motion carries unanimously 8-0. Item #9A and #9B PETITION: BD-2009-AR-14138 AND V A-2009-AR-14139, HUSSEIN WAF APOOR CHAIRMAN STRAIN: Advertised public hearings. Page 24 April 16, 2009 Mr. Klatzkow, we have two on the same property. One is a variance and one is a boat dock extension. Can we discuss them simultaneously and then vote separately? MR. KLATZKOW: Yes. CHAIRMAN STRAIN: Okay. Does the applicant have any objection to that process? I see the head shaking no. So with that in mind, we'll open the hearings for Petition BD-2009-AR-14138, for Hussein Wafapoor, and that's for a 10- foot boat dock exception. And Petition V A-2009-AR-14139, same gentleman, and that is for a variance for a setback. Both of them are at 140 Conners Avenue. 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? Mr. Schiffer? COMMISSIONER SCHIFFER: Yes, I had conversations with Bruce Burkhard and also asked Ashley to send the application for the adjoining property. CHAIRMAN STRAIN: Ms. Caron? COMMISSIONER CARON: Yes, I had conversations with staff, I had conversations with Mr. Scofield and also Josh, I had conversations with Mr. Burkhard, and have gotten letters that I think we all received bye-mail. CHAIRMAN STRAIN: Anybody else have any disclosures? (No response.) CHAIRMAN STRAIN: Mine were also, I had similar conversations with Mr. Burkhard and with Josh and Rocky. So that's all. With that in mind, we will move forward. Rocky, it's yours. MR. SCOFIELD: Good morning. For the record, Rocky Page 25 April 16, 2009 Scofield, representing Hussein Wafapoor at 140 Conners Avenue, Vanderbilt Beach Estates. Weare here this morning. On the overhead is a location map of where the lot is located near the end of Conners Avenue, tucked back in a little corner. It's pretty unique to Vanderbilt Beach. The owner -- there's currently a small dock there that will be removed, and -- that's the current dock that's on the property right now. The adjacent property doesn't show the whole dock. I have other drawings that will show the next door neighbors in more detail on aerials. But when the surveyors go out and -- they only do what's very close to the property line, so they don't give you the whole picture. Obviously there's docks on both sides, we'll show you those on aerials. This is an aerial I believe you had in your packets that we try to do. We take all the neighboring docks, and on this aerial we give their distances out. And sometimes on this one we gave the square footage and then the distance across the waterway, which is all required distance -- you know, this distance across the waterway doesn't mean a heck of a lot here because it's such a great area. But this shows you -- this is the uniqueness of this lot, how tucked back in this corner it is. The applicant only has 50 feet of seawall, and it's on a curvature. And this is what we're proposing. This is the proposed dock here. This shows the neighboring dock in its entirety on this drawing. The applicant wants to pull in a boat straight in as the neighbor is. They're proposing a 10-foot boat dock extension. The boatlift is located here in the center, which is the longest part that we have to utilize to bring his boat in. There's an access dock proposed on each side of the lift. And since we're discussing this boat dock extension with the variance, they both go together, they can't be separated. So I'm glad we're hearing both of these together. We're asking for a 10- foot boat dock extension out from the Page 26 April 16, 2009 property line. Now, this is measured from the most restrictive point. If you see this dark line and the seawall cap, that's the property line. That's where we have to measure from. So from that dark line near the middle of this boatlift area out to the riparian line out here is 30 feet. And you're losing about a foot here due to the cap that the property line comes back in. The proposed catwalk on the north side of the boatlift is also 30 feet long. The variance on this comes into play on both sides. We -- when you're doing boat docks, you have to do variances from the riparian lines. Riparian lines, as you know, you've all been through a bunch of these, they're extensions of the property line into the waterway that go to the cord of a channel or, in this case, this is a specific case, and riparian lines are dealt with. And I'll tell you again how they're done. When you have an inside radius, especially one tucked back in a corner like this, the way the riparian lines are determined is they impose a circle or a wheel in this area. And then you have the hub of that wheel. And the property lines are drawn out from -- the property lines on this one is drawn to this circle. The circle would be right here. This being the center of it. So this property line is extended to this point, the center of the circle. This property line extended to here. Those are your riparian lines. We're here today asking for the variance of seven and a half feet, this lot being only 50 feet long, the setbacks are seven and a half feet on this property. So we are -- we're asking today for a seven and a half foot setback. And that would be for both sides. Even though this dock, where it hits the seawall here, is about -- oh, it's further than 15 feet away, maybe 18 feet from this property line. When you take this riparian line out to here it hits the riparian line. That's where the variance of seven and a half feet comes into play Page 27 April 16, 2009 on this one. On the other side, on the north side, the riparian line extends directly out from the property line to the center of the circle. So that proposed finger dock on that side would be along the riparian line, which we're also asking for a seven and a half foot variance to go over there. This is an aerial view of how the dock will look, the proposed dock will look if it's built this way in conjunction with the neighbors. And as you can see, it's quite a ways away from the neighbor to the south, and away from everybody else. There's only one person in this scenario that's affected, and that is the neighbor to the north. We've had extensive conversations with this neighbor, the Zieglers. They're quite aware of what's going on here. They did sign a waiver. In your packets -- I don't want you to be confused, there was a DEP waiver, which is not required for this property, by the way, but we did get one signed by them so they know what was going on. The plan was revised since then to decrease the deck area. So this is the plan that's being proposed, what you see right now. The Zieglers have no objection to this. They're aware of what's going on. I have a letter -- I brought a letter today that I'll enter into the record from the neighbor which says, we will be removing the floating jet ski lift. On your -- this has been brought up on the plan. There's a little note by that floating jet ski lift, which was not permitted. It says, to be removed. I know better than to put that on there now. Anyway, we're dealing with that today. This letter that will be entered in is an e-mail we got last night from the neighbors, and it states, we will be removing the floating jet ski lift on Friday, April 17th. We have no objections to Mr. Wafapoor's proposed boat dock extension or variance petition, as long as it stays within the limitations on the proposed plans that we signed. Page 28 April 16, 2009 So that's basically what we're asking for here today. What I want to show you, and I'm sure you're going to hear some -- you're going to hear some discussion today on this variance. The variance is necessary to do this proposed installation. On this -- on the overhead map that shows up in the yellow right here, that's the lot. I wish I could zoom out a little bit more, but that's good enough. I want to bring your attention, this lot is the only lot in Vanderbilt Beach Estates that is like this. It is very unique. There is no other lot like this in the entire Vanderbilt area that has the limitations and restrictions that this does. And when you're considering variances, you're always going to hear that this may be precedent setting, we can't allow this for certain reasons. And I understand a lot of that. However, there's no other lot like this in Vanderbilt. So my estimation, there is no precedence that would be set by allowing what we are proposing here today. There's only one affected party. The views are not affected. We haven't heard anything about views. The neighbor to the north is the only one that's going to have a view of this dock. The neighbor to the south corner of their screen enclosure around their pool, they can see back into the corner. And I'll put the aerial -- there's the view. The next door neighbor around to the north on the other side, they're looking at the dock next to them, which is -- obscures this dock. The views are into the waterway. This is a tucked back corner again. So I would contend that precedence will not be set by allowing the setbacks to go to zero on this proposition here. (At which time, Commissioner Midney enters the boardroom.) MR. SCOFIELD: So the criteria -- if we want to get back to that, the criteria in the boat dock extension. Everything has been met except one criteria, which is number three of the secondary, and that is, is the boat longer than the length of the waterfront property. Page 29 April 16, 2009 Well, in this case it is. We have 50 feet of waterfront property. The boat we're proposing here is 27 to 28 feet in this area overall length. So that does exceed half the water frontage, the length of the water frontage on this property. There's no effects to navigation. Again we're tucked back in this corner. No one is affected by this except the next door neighbor. So that's what we're proposing here today, and I'll be glad to answer any questions that you have. CHAIRMAN STRAIN: First off, let the record show that Mr. Midney is here now. And I'm sure you probably ran into that wreck on Oil Well Road or something. COMMISSIONER MIDNEY: No, I had another appointment. CHAIRMAN STRAIN: Okay. Because I understood there was a pretty bad traffic jam up there. COMMISSIONER MIDNEY: Yeah, luckily not. CHAIRMAN STRAIN: Okay. Mr. Murray? COMMISSIONER MURRAY: Rocky, looking at the adjacent or the next door neighbor's boat dock arrangement there, do you happen to know the depth of that, what size boat could fit in there? MR. SCOFIELD: The neighbor to the north? COMMISSIONER MURRAY: Yes. MR. SCOFIELD: It appears about a 30-foot boat; 28, 29, somewhere in that range. COMMISSIONER MURRAY: That could fit in there or is already presently there? MR. SCOFIELD: No, that could. I did the extension on this property back in '93 for the owners at that time; their name was Newsome. It's now owned by different people. And that dock was put in at that time with the size boat that they had. COMMISSIONER MURRAY: Okay. So they could have a boat equal to the size that would be -- the one that you're currently Page 30 April 16, 2009 representing, the people? MR. SCOFIELD: Yes, absolutely. COMMISSIONER MURRAY: Thank you. CHAIRMAN STRAIN: Any other questions? Mr. Schiffer? COMMISSIONER SCHIFFER: Rocky, what's the reason you need a variance? What's the hardship I guess is the magic question. MR. SCOFIELD: The variance is basically, what I was discussing before, is from our riparian lines. Because when you get into the waterway, then that's what you measure from. It's simple on land, you go from the side property lines or the front and back setbacks. The riparian lines are the property lines, so to speak, extended into the waterway. When you look at this riparian line on the south side, this line right here is the riparian line. These docks extend out -- the variance on this -- there's variances on both sides. Because the docks extend out to this line, that's where we're into the seven and a half foot setbacks from the riparian. Also on this side, it's easier to see, the property line is directly extended out as the riparian line. And that skiff dock, little finger dock, goes along the property line. You know, when we're asking for seven and a half feet -- when it's built obviously it's not on the line, it's back a few inches from the line. So that's the variance request. COMMISSIONER SCHIFFER: And I'm not really focused on the first one you described. And I think the hardship there is the way you measure the riparian line. But you didn't really define a hardship. So what essentially what you're saying is the way the subdivision was platted is your hardship. I mean, for example, your neighbor had no problem and you actually did the layout honoring the seven and a half feet. Page 31 April 16, 2009 MR. SCOFIELD: He's got quite a different configuration also. He doesn't have the -- he's got more of a sweep in the way that lays out onto his property line. We can't begin to do that on ours. He's got quite a bit more distance. COMMISSIONER SCHIFFER: Well, he can go further out measuring 30 feet off the seawall. Because he does have some boundary that comes out of the radius of that circle. MR. SCOFIELD: Yeah. You know, back when those were done, you know, I would -- this riparian line is as a result of -- not my result, but of the surveyors. I would contend that that riparian line, the center of the hub, how it's measured would be out further, probably toward the end of the neighbor's dock. COMMISSIONER SCHIFFER: Right. MR. SCOFIELD: But that's not what the registered survey shows that we have to get and present to you with our packet. It's much more restrictive on this property now, and that's what we're dealing with today. COMMISSIONER SCHIFFER: And I agree with you on that. You're asking for two, you know, variances: One on the -- let's call it the northeast boundary, the one running northeast, and the other one's running northwest. It's the northwest that I'm focused on. I think that you're right, actually if you extend the neighbor's property line straight out this thing would never get in the way of anybody. MR. SCOFIELD: That's correct. COMMISSIONER SCHIFFER: But it's the other one that I have a problem with. And I don't see any hardship, I just see it's just the way the subdivision was platted, it's the way the lot was bought, it's the way the building was built. The neighbor was able to design around it. Why can't you just build the exact same dock? I know it can't be Page 32 April 16, 2009 as long because of the measurement of the 30 feet out, but why can't you build a similar dock that has that seven and a half foot gap, and then the dock as you show on the northern property there? MR. SCOFIELD: Because you can't put a boat in there. You would be restricted to -- I understand what you're saying. The problem is, this boatlift, if you focus on the boatlift, that boatlift needs to go where it is. If it's shifted over into this area, if I were to come seven and a half feet over, the boatlift would be in here and the person would probably be restricted to, oh, let's see, well, probably a 20 -- somewhere in the neighborhood of a 24- foot boat in this area. This is -- and it's also closer to this property, which shouldn't come into effect unless this person wants to build a dock down here near his setback lines in the future. The only -- the thing is, on this dock here I have to have the -- you're in agreement with this side; is that correct? COMMISSIONER SCHIFFER: And let me even say further: The dock you have your pointer on is fine with me. I think the problem is that if you eliminated the other dock, you don't have to have docks on both sides. And then you reduce the size of that lift, that's a pretty big lift, 12 and a half feet. So if you just made it a 10 and a half foot lift and got rid of the other dock, you're in compliance and it's a happy world. MR. SCOFIELD: Well, we'd still be into that side setback. COMMISSIONER SCHIFFER: The southwest -- or the northeast property line we can discuss. But again, my hardship is not that one. MR. SCOFIELD: Okay, the 12 and a half feet is a standard width of lifts. That's what 99 percent of the people get. A 12 and a half foot lift will handle up to a 10-foot beam boat. And that's a standard thing. Can they be cut down? Yes. That narrows your scope of which Page 33 April 16, 2009 boats you can buy as far as beam goes. And that's the reason the owner wants this particular lift, which is a standard lift of 12 and a half feet in that area. COMMISSIONER SCHIFFER: Well, I mean, obviously your neighbor to the north doesn't have it. So he's one of that one percent or whatever, five percent. The -- MR. SCOFIELD: Right. COMMISSIONER SCHIFFER: I mean, then you could move the dock two feet and he'd have it, ifhe really wanted it. MR. SCOFIELD: The owner to the north could have easily had a 12 and a half foot lift at that time. They wanted a lot more deck area. And today that probably wouldn't -- that situation wouldn't fly. Staff would call that -- criteria would say that's excessive deck area. So we're limited to what we can do. COMMISSIONER SCHIFFER: But again, there is no real hardship. I mean, the point you pointed out, just to make sure I'm clear this is your hardship, is the way you have to measure a riparian line is the hardship of this variance. MR. SCOFIELD: That's correct. COMMISSIONER SCHIFFER: Which is essentially the fault of the subdivision. MR. SCOFIELD: Well. COMMISSIONER SCHIFFER: It is. Okay, thank you. CHAIRMAN STRAIN: Ms. Caron? COMMISSIONER CARON: I think we are getting into the heart of the issue. All I've heard here so far is that because this gentleman wants this boat, which is probably not appropriate for the lot he bought, I think he wasn't thinking about a boat when he bought his lot or he would have chosen a different lot in this area. I think that when you buy the smallest lot for boat area that we're talking about, you have to think about the boat that you buy for that Page 34 April 16, 2009 lot. Mr. Schiffer is right, if we go back to the criteria, and we'll go back to the criteria which says that variances should be the minimum that's needed, what you're showing on this plan isn't the minimum. Certainly at minimum, I mean just at first blush would be to say to take out that second pier, the northern pier, I guess is what I'd call it. That's not necessary. It doesn't affect whether he can have a lift or not. It doesn't affect a southern pier and making it to that riparian line. So obviously right now what we're looking at is not the minimum variance. And that's very clear a criteria. So, I mean, I'm not sure, Rocky, but I think this plan needs to be reworked. I mean, I think you can work it for these people, but it certainly looks like it needs to be reworked in order to make it a . . . mInImum vanance. MR. SCOFIELD: So if I'm hearing you correctly, the three-foot wide finger dock along the riparian line on the north side there is -- COMMISSIONER CARON: Well, drawing that out would certainly get you closer. I mean, it would be less of an encroachment on to that side. What -- I mean, if I just look at simple math, if you take three feet off, then you're not asking for a 7.5-foot variance, you're asking for a 4.5. So obviously we can see that we can make this variance less than what you've shown on this plan. And that's just me, that's not you as the siter (sic) and planner of these docks. You could probably make this even better. CHAIRMAN STRAIN: Are there any other questions of the applicant? Mr. Kolflat? COMMISSIONER KOLFLAT: Who owns the property here, and the submerged land there under the docks? Is that owned by the state or the owner? MR. SCOFIELD: No, sir, this is not, this is not state owned. Page 35 April 16, 2009 COMMISSIONER KOLFLAT: It's owned by the owner? MR. SCOFIELD: That's correct -- well, no, it's not owned by either one of them. This is just -- was a dredged area. Is that correct, John? This was dredged and filled area. The state does not lay claim to this property. The owner does not have title to that property. So like a lot of properties around, it's there. COMMISSIONER KOLFLA T: So there is no known owner. MR. SCOFIELD: That's correct. COMMISSIONER KOLFLA T: What is the distance from the end of the dock back to the road, approximately? MR. SCOFIELD: Say that again, please? COMMISSIONER KOLFLAT: The distance from the end of the dock, the seaward side of the dock back to the road. MR. SCOFIELD: To the road? COMMISSIONER KOLFLAT: To the road. MR. SCOFIELD: I'm not understanding what you're saying. CHAIRMAN STRAIN: Well, I think he wants to know all the way to the edge of curb from the -- Mr. Kolflat, can you tell us where you're going with this? COMMISSIONER KOLFLA T: Yes, I can tell you where I'm going. Many people that have boats and lots like this are filling them from trucks with a long hose. They have hoses up to 300 feet long which they transport out to where the boat is. And what I'm trying to ascertain is what is the distance between the road where the truck might be parked and where you'd have to fuel the boat. And all I'm looking for is approximate numbers in that 300 range. CHAIRMAN STRAIN: But it's only a 26-foot boat. Wouldn't they be able to just drive that over to a gas pump? COMMISSIONER KOLFLA T: Well, you can, but it's a more convenient way to get your yacht fueled is to have them come to your lot, basically. You have them put it where it's moored. Page 36 April 16, 2009 CHAIRMAN STRAIN: I didn't see a 26-foot boat as a yacht. But, I mean, that seems like a pretty small boat to be filled up. But that's good, I mean, if you -- hopefully Rocky has an answer. COMMISSIONER KOLFLAT: Well, the size of the boat has nothing to do with where you buy your gas. MR. SCOFIELD: Well, the answer to your question, looks probably about 130 to 140, probably 140 feet. COMMISSIONER KOLFLAT: Okay. So it's within 300 feet. MR. SCOFIELD: Oh, yeah. COMMISSIONER KOLFLAT: That's what I wanted to know, thank you. MR. SCOFIELD: Yeah, very -- I don't know too many people-- I know there are, but for boats this size, most people don't have the, you know, motor fueling system, the people that deliver to your house, for this size. COMMISSIONER KOLFLAT: Well, my experience differs from yours then, that's all. MR. SCOFIELD: I know they do on larger boats where there's a big savings, but -- CHAIRMAN STRAIN: Any other questions of the applicant? (No response.) CHAIRMAN STRAIN: Mr. Kolflat, do you have anymore? COMMISSIONER KOLFLAT: No. CHAIRMAN STRAIN: Rocky, you're asking for a boat dock extension for what? I mean, I know that seems like a silly question. Could you show me on this plan the boat dock extension you're asking for. MR. SCOFIELD: The boat dock extension we're asking for is 10 feet. If you look at this line which represents the seven and a half foot setback? CHAIRMAN STRAIN: Rocky, you're just saying you want 10 Page 37 April 16, 2009 feet for that 30-foot proposed dock, the one that's been mostly focused MR. SCOFIELD: No, no, I need the 30 feet. If you look at this line right here, it says seven and a half foot setback. If you come down here and you measure from the property line out to the end of this line, that's 30 feet. Measured from the property line. That's the extension that we're asking for. The skip dock happens also to be 29 feet within that 30 foot that we're asking for. CHAIRMAN STRAIN: Right, I understand that. That's where I was trying to save you the time. But I understand your explanation. The proposed -- the dock that is to the south is 26 feet. Why didn't you ask for a boat dock extension for that? MR. SCOFIELD: Say that again? Which one? CHAIRMAN STRAIN: Isn't 20 foot the standard length of a dock? MR. SCOFIELD: That's what's allowed without a boat dock extension. CHAIRMAN STRAIN: Okay. How's the one to the south at 26 feet not asking for a boat dock extension of six feet? Or is it and I just missed it? MR. SCOFIELD: Are you referring to this dock? CHAIRMAN STRAIN: No, no. Go back to the other plan. You have two docks: You have one that's shown at 30 feet and one that's shown at 26 feet. MR. SCOFIELD: Well, that's within the 30 feet, Mark. CHAIRMAN STRAIN: Okay, but do you need a boat dock extension for each dock or just one boat dock extension -- MR. SCOFIELD: The boat dock extension covers the property. And what you all approve or disapprove is on this plan. If an extension is granted for "X" amount of feet out, what's ever on that plan is covered in the boat dock extension. CHAIRMAN STRAIN: Okay. So you really need a six-foot Page 38 April 16, 2009 extension if you didn't have the dock to the north, the northeast dock. MR. SCOFIELD: No. No, that's what I've been saying before, I need a 30-foot extension to put the boat in the lift. CHAIRMAN STRAIN: Okay. Even though -- because it goes to the outside of the lift? MR. SCOFIELD: Because if you go through the center part of this lift on this line right here, that's 30 feet long measured from the property line. And the boat usually is a foot, foot and a half from the seawall, so you don't damage it. The outboard motors, the outside will be right at that line. That's the furthest we can stick out. That's why we're asking for that extension. CHAIRMAN STRAIN: Okay. And Ray, from staffs perspective, the one extension request covers both docks? MR. BELLOWS: Correct. CHAIRMAN STRAIN: Okay. That's the only question I had. Thank you. COMMISSIONER SCHIFFER: Mark? CHAIRMAN STRAIN: Mr. Schiffer? COMMISSIONER SCHIFFER: Rocky, one thing. What is the radius of that curve; do you know? Because essentially -- and you measured this way on your application for the northern dock. Wouldn't you just offset that curve 30 feet and it's only those elements that are outside of that that are required to be extended? In other words, you're going to measure to the property line. You would essentially -- to the closest property line. Does it give you the radius of that curve? Is the radius of that curve 24 feet? MR. SCOFIELD: You can turn it around. Could you say that again, please? COMMISSIONER SCHIFFER: What is the radius of the curve property line at the bulkhead? It's C-2, so go to the -- MR. SCOFIELD: Yeah, that C-2 is 49.84 feet. COMMISSIONER SCHIFFER: Okay. So essentially if you Page 39 April 16, 2009 offset that, anything that -- if you offset that, you're 20 feet. Anything outside of that is what you need a variance on, correct? MR. SCOFIELD: That's correct. Whatever you put in -- the dock that is currently in there now would need a boat dock -- actually, it would need a variance, because it sticks out to the riparian lines within the seven and a half foot setbacks. It's a small dock that was there, it was permitted. But way back when that wasn't looked at. The dock was built with a regular permit. Anything you put in here -- you can put a very small dock in that wouldn't comply, but if you put a boat there, then you'd be violating setbacks and distance. COMMISSIONER SCHIFFER: All right. Okay, thank you. CHAIRMAN STRAIN: Anybody else have any further questions of the applicant on either application, the boat dock extension or the variance? (N 0 response.) CHAIRMAN STRAIN: Okay, staff report, please. MR. SCHMITT: Ashley? CHAIRMAN STRAIN: You guys, neither one of you -- you can fight over it later, just someone come up and make a staff report. MS. GUNDLACH: Good morning, Commissioners. I'm Nancy Gundlach, Principal Planner. And I worked on the variance for this particular boat dock, and staff is recommending approval of the variance for the boat dock. And I just had one comment I wanted to make about regarding whether or not this was the minimum variance that would be needed for this particular boat dock. And in staffs opinion it is. And that's because the actual boat dock lift is located in the deepest area of water depth. And in staffs opinion, the dock to the north is needed for maintenance of the other side of the boat. And they've held that to a minimum three foot width. Page 40 April 16, 2009 CHAIRMAN STRAIN: Okay, now you're addressing just the variance, and I'm assuming Ashley is going to address the boat dock extension? MS. GUNDLACH: Correct. CHAIRMAN STRAIN: Okay. So are there any questions of the staff in regards to the variance portion of it only? Ms. Caron, then Mr. Schiffer. COMMISSIONER CARON : Yeah, I just wanted to let Nancy know that it is not necessary to have that pier to the north in order to have the lift and have it operate and be maintained. Only one pier is needed to do that. You can look at multiple docks in the area. It's just not a necessary thing. They can lessen this variance by taking out that northern pier and it will just make it a lesser variance. CHAIRMAN STRAIN: Mr. Schiffer? COMMISSIONER CARON: They still will require one, but it will be less. MS. GUNDLACH: Okay. COMMISSIONER SCHIFFER: My question is to Jeff. Jeff, is the way the subdivision laid out a hardship? Throughout the variance part of this thing, it's discussing yes, it's trying to overcome the layout of the subdivision. MR. KLATZKOW: I'm going to tell you that that's a very subjective question, not an objective question. There's some people who might say that just because you want a bigger boat doesn't mean you have a hardship. There are other people who would have to say well, this lot itself causes, you know, an inherent hardship. It's very subjective. It's up to you. COMMISSIONER SCHIFFER: But isn't the main thing is that this is a known condition -- MR. KLATZKOW: That's one argument-- COMMISSIONER SCHIFFER: -- from creation, and that the person who is buying the dock has this known. They use that same Page 41 April 16, 2009 logic a lot in their report. For example, they're saying the only property that's impacted is the one to the north-- MR. KLATZKOW: A denial here-- COMMISSIONER SCHIFFER: -- and he's okay. MR. KLATZKOW: A denial here is legally defensible. COMMISSIONER SCHIFFER: Okay, thank you. CHAIRMAN STRAIN: Anybody else have a question from staff on the variance application? (No response.) CHAIRMAN STRAIN: Okay, thank you, Nancy. MS. GUNDLACH: You're welcome. CHAIRMAN STRAIN: Let's go with the boat dock extension. MS. CASERTA: Good morning. For the record, Ashley Caserta, Department of Zoning and Land Development Review. I did receive a call from a homeowner I believe across the street, 1259 Conners Avenue. And they are in support. I haven't received anything in writing, however. And staff is recommending approval. If you have any questions, I'd like to answer those at this time. CHAIRMAN STRAIN: Anybody have any questions on the boat dock extension portion of it? (No response.) CHAIRMAN STRAIN: No. Thank you, Ashley. MS. CASERTA: Okay. CHAIRMAN STRAIN: Ray, do we have any public speakers? MR. BELLOWS : Yes, we do. First speaker is Bill Eline, to be followed by Bruce Burkhard. MR. ELINE: I'm coming slowly. Good morning. My name is Bill Eline. I'm president of the Vanderbilt Beach Residents Association. We have about 900 members in the association. And I've been a resident in the county for 20 years. It was very interesting -- and I want to assure you, I wrote these Page 42 April 16, 2009 notes before I got here. Because as president, I must get four or five calls a week, why do the staff constantly consider variances to very good codes? It's very, very expensive. It takes not only everybody here, the staffs time and our time. Now, the problem is my experience in that 20 years, and I've been on all kinds of committees, once a variance is given, the County Commissioners every time we're there will say to the staff, have you granted a variance like this to somebody else? And every time the staff has to say yes. Therefore, when you get a variance, you really have changed the code. And I think our citizens are saying if you want to change the code, make an application, but don't do it through the back door. Thank you very much. CHAIRMAN STRAIN: Thank you. Next speaker, please. MR. BELLOWS: Bruce Burkhard. MR. BURKHARD: Good morning, Commissioners. My name is Bruce Burkhard and I'm the chairman of the Vanderbilt Beach Residents Association Zoning Committee. And what I thought I'd do first is just show you a couple of overheads of the current situation and then go into what I have to say. This is what we have now . You can see the docking to the north. You can see the present conforming dock that's on the property right now. And then I just have a couple of shots of approaches, just to familiarize yourselves a little bit more with the area. We're coming in here with a boat. The Wafapoor property is straight ahead of you. This brings us in a little bit closer to the property. And then that's the existing dock and the waterfront that we're talking about. Page 43 April 16, 2009 I mentioned in an earlier e-mail to all the commissioners that the working philosophy of our association is that we want to see the LDC enforced as closely as possible. And then in the case of a need for a variance or an extension, we should be trying to obtain a minimum number of feet, not a maximum. If the principles of the code are routinely bypassed, it soon has no value, as Mr. Eline just said. In the case of this particular site, it certainly appears that we have a self-created hardship of sorts. The owner bought a somewhat marginal pie-shaped lot with minimum water frontage. Nevertheless, the original owner found it possible to construct a conforming dock. As designed, the present two-pier dock system creates problems with setbacks and also yields an excessive deck area, we feel. We're all aware that the majority of docks in the area with boat hoists have only one pier. I'd add that most of them also have 80 feet of frontage, not the 50 feet that we have here. By removing one pier, we'd get rid of some of the decking and most likely eliminate the need for a site setback variance in the first place. We don't think any of us want to see a recreation of the excessive dock situation to the north. In fact, there's a current code enforcement complaint being investigated right now relating to setback violations on that dock system and also excessive dock length. Again, our desire is to see the LDC followed as closely as is reasonable, allowing for hardships not created by the property owner. It certainly shouldn't be our role, all of us, to make possible for anyone to have everything that he or she might want, even if it's at the expense of their neighbors giving up their rights, which is essentially what's happening. We urge you to deny this extension and recommend that a less obtrusive design be worked on. About seven years ago we had a situation again with the same design firm, a property called Liberty Ventures on Vanderbilt Drive, Page 44 April 16,2009 and we were told at that time, and the Planning Commission was also told, that the only possibility was the design that was being proposed. We disagreed. The CCPC also disagreed. The dock extension was denied. And very shortly after that the attorney for Liberty Ventures came to us and was looking for a compromise situation. We worked with that attorney and also this design firm working for the attorney came up with a much, much better design that was less obtrusive. And it turned out that what they asserted was the only way to design the dock at 60 feet, it turned out they were able to design the dock at about 30 feet instead by just simply turning the dock and shortening a little bit. That achieved everybody's goal, we were satisfied, and ultimately the customer was satisfied. And perhaps we can head in that direction with this as well. As Mrs. Caron indicated, a lot more work needs to be done on this dock, we believe. Going to the criteria, primary criteria, we feel that criteria A, the proposed dock facilities are not appropriate in relation to the waterfront location, the length and the configuration, vis-a-vis the property lines. It's too much in too small a space. One dock hoist would be appropriate, and one dock pier, rather, also would be appropriate, not two. B, the water depth as shown in your staff report does not create a problem if the dock is canted somewhat to the side and moved in closer to the shoreline and the hoist moved to the opposite side. And it would put the hoist in deep water. If any variance is needed with that configuration, it would probably be very minimum. We think the extension fails on item B as well as A. C doesn't apply, D we don't think applies. E, the proposed dock is also on top of the adjacent dock to the north, due to the placement of the property line. The neighbor could not bring a boat along his dock on the south side. Page 45 April 16, 2009 As to the secondary criteria, we think it fails on A. There's no special depth condition that isn't faced by virtually everyone in the Vanderbilt Lagoon area. By going to one pier and probably canting the hoist, that should put the hoist in a relatively deep water situation and make the whole thing operable. Secondary B is proposed with two piers. We do have excessive deck area. There are other means of reasonable safe access for loading and servicing. Item C, by canting the proposed vessel -- by canting, the proposed vessel length should present no problem. D and E probably don't apply, nor does F. So as to primary criteria, we believe the existing configuration fails on A, Band E. On secondary criteria, it fails on A, B, C and E -- rather E actually never applies in the inner lagoon, since there really are no sea grasses that we're aware of anywhere in the lagoon area. CHAIRMAN STRAIN: Bruce, you need to start wrapping it up. We're getting -- MR. BURKHARD: Okay. Well, I also had prepared and thought we were going to handle this as two separate issues, as it was listed, both in the agenda and also. So I have a spiel on the variance. CHAIRMAN STRAIN: Then could you move it -- you've already doubled your time on the first one. We usually let that happen. We understand the criteria, the primary and secondary. I suggest you might not want to waste time on that. We certainly know how to review those. But if you want to go into your variance issue, then after that we'll entertain questions that you may have -- that we may have of you. COMMISSIONER MURRAY: Before he does that, it's relevant to this current issue. CHAIRMAN STRAIN: It's all the same, Mr. Murray, but go ahead. COMMISSIONER MURRAY: Well, he's making a distinctive -- Page 46 April 16, 2009 CHAIRMAN STRAIN: Go ahead, Mr. Murray. COMMISSIONER MURRAY: -- difference, that's why I'm saying that. That's fine. Mr. Burkhard. MR. BURKHARD: Yes, sir. COMMISSIONER MURRAY: Did you take the pictures here? MR. BURKHARD: Yes. COMMISSIONER MURRAY: Did you plumb the depth to determine the depths that are there? MR. BURKHARD: No. You know, we tried that once before. We actually devised a pipe and we measured two feet, three feet -- COMMISSIONER MURRAY: But you didn't do that. MR. BURKHARD: We didn't do it because the Planning Commission told us we weren't experts and -- COMMISSIONER MURRAY: Okay, you didn't do it. MR. BURKHARD: -- our testimony couldn't be considered, so we just don't do it anymore. COMMISSIONER MURRAY: Okay. So then it's conjectural as to what will or will not fit there and what depths are appropriate there. MR. BURKHARD: Well, based on experience of living in the area also, I have a boatlift and I know about -- COMMISSIONER MURRAY: Okay, you've answered my question. I think conjectural -- you've testified to something that's conjectural, not really valid. MR. BURKHARD: Okay, but I'm also pointing out, Mr. Murray, that the package includes depths, a depth chart. And it's asserted in the package that the placement of the lift at that position allows the boat that's proposed to work. And what I was suggesting as far as canting would put the hoist in approximately the same position. COMMISSIONER MURRAY: I thank you. MR. BURKHARD: Yes, sir. Page 47 April 16, 2009 CHAIRMAN STRAIN: Okay, Bruce, if you want to go to the-- MR. BURKHARD: On the zero setback, okay. CHAIRMAN STRAIN: Yes, sir. MR. BURKHARD: Our zoning committee and board all agree that the request is excessive, precedent-setting and unnecessary. It's precedent-setting because later on when somebody else comes in and asks for a zero or a two or a three-foot variance, it's not -- the board is not going to distinguish between whether this variance was granted at a unique location. It's going to simply be stated to you that a variance was granted in the past. And all they're asking is the same consideration. So precedent-setting is an important issue. And to our knowledge right now no such permit's ever been previously approved in the Vanderbilt Lagoon area. The way we read the application, and I think Rocky confirmed, that he's asking for a setback of zero feet from both property lines, or riparian lines, if you will. If permitted, this facility would or could encroach on the neighbors, right to the very property line. I've got good neighbors, but a little distance kind of helps make them better neighbors. And I think that would be the case here. People should not be living right on top of each other. Although a waiver letter apparently exist for the neighbor to the north, that's not the case for the south neighbor. In fact, I was told yesterday that that south neighbor has sent an e-mail to staff and it objects to the zero setback on his property line. The new zero lot line concept being floated here is completely at odds with the existing neighborhood, which already has some very large houses packed on to relatively small lots. This idea sets a precedent that we're very concerned about as a neighborhood organization. And the last thing we need is even further density and the virtual elimination of any side yard separations. This request should be unequivocably denied. Page 48 April 16, 2009 Now, what I did was I took the staff analysis and I went down point by point, Mr. Chairman. And I've listed that, but let me just I guess suffice it to say if it's okay with you that we totally disagree with their analysis. And if you want me to list our disagreement, I can certainly do that. CHAIRMAN STRAIN: Bruce, you've had a lot of time. If you can list it in one minute, then go for it. MR. BURKHARD: No, I won't do that. CHAIRMAN STRAIN: Thank you. MR. BURKHARD: Yes, sir. CHAIRMAN STRAIN: Anything else? MR. BURKHARD: Yeah, one other thing. I had a conversation with Mr. Wafapoor yesterday afternoon by phone, and he indicated to me that he's talked to Turrell & Associates and indicated that he's very willing to compromise, and that he has directed them to try to work out a compromise so that it's agreeable to the neighborhood. He doesn't want to be a bad neighbor. So I'll just enter that into the record. CHAIRMAN STRAIN: I think a compromise is probably where we're going to be heading in our discussions. Thank you, sir. Next speaker, please. MR. BELLOWS: The last speaker, B.J. Savard-Boyer. MS. SAVARD-BOYER: Good morning, Commissioners. My name is B.J. Savard-Boyer. I live in the Vanderbilt Beach area. I sell real estate. And when this petitioner bought this property two and a half years ago, he was fully aware of the dock and the seawall configuration. There are pictures that are put in the MLS listing, and if he went out and looked at the property, he knew what it looked like. There was a dock there. Obviously at that time they were satisfied with having a boat that would fit. Now, to suit their needs they want the neighbors and the community to change the codes that we all live by. Kind of reminds Page 49 April 16, 2009 me of people who buy homes by an airport and later complain about the noise. The noise was present when they purchased the home, but afterwards want the government to correct the problem. We don't see that we have to correct a problem that he agreed with when he bought the property. We would like you to deny this approval or redo it somehow so that it suits all the needs of how we live up there. We have big houses on little lots. We don't need big boats on little seawalls. Thank you. CHAIRMAN STRAIN: Thank you. And that's the last public speaker, Ray? MR. BELLOWS: That's correct. CHAIRMAN STRAIN: Okay. Rocky, if you don't mind, I've got a question, Ms. Caron has a question as well. Ms. Caron? COMMISSIONER SCHIFFER: I do too. CHAIRMAN STRAIN: And then Mr. Schiffer. COMMISSIONER CARON: Go ahead, ask the question. CHAIRMAN STRAIN: I hate to bring up a subject we've dealt a lot with in the past, but the riparian line. MR. SCOFIELD: Okay. CHAIRMAN STRAIN: Just out of curiosity, the neighbor to the south, his property line goes east and west. Why wouldn't the riparian line go east and west? Why would it cut across that little piece of property to box it in like that? MR. SCOFIELD: Across the applicant's property? CHAIRMAN STRAIN: No, the applicant doesn't own that property. Why would that east/west property line between the southern property of the applicant and the applicant's property, why wouldn't it just extend further into the bay, straight east and west? Why does it take a jog to the northeast like that? MR. SCOFIELD: Well, that's what I tried to explain before, how riparian lines are measured there from placing a wheel in these Page 50 April 16, 2009 radiuses, and then you put a hub in the center of that wheel and you extend the property lines from the seawall to that center point. That's how this is done. It works great when you have a big area. This is a very small, tiny area, and that's why he is extremely limited in here. I would have -- my riparian lines would match more closely to the neighbor to the north where the end of his dock is. This is what the surveyor gave us, his interpretation of the statutes, and that's what we had to deal with, so -- CHAIRMAN STRAIN: Okay, Ms. Caron? COMMISSIONER CARON: Yeah, Rocky, I'm going to ask it: It seems from testimony that we've heard and conversations that I've had with you that it may be possible to reach a compromise here. And my suggestion to you is that you continue this until our next meeting and that you meet with your client and with the neighborhood and work on some of the configurations. I suggested one yesterday, but I don't know that that's the best one or the right one. And we proceed after that. That way you don't have to have a denial, you don't have to -- and everybody can perhaps be a lot happier than they are today. MR. SCOFIELD: Okay, I think I'd like to hear some more discussion on that. The owner, I did talk to him, as Mr. Burkhard said, yesterday. He was very upset over all of this. He said, but if I have to give up the dock on the northeast property line along that riparian line, then he said he would go along with that. Now, if that is acceptable, then I'm willing to offer that right now. Couple of things that was brought up by Mr. Burkhard. If you look on the overhead, the existing dock is not in conformity. I said this in my testimony earlier. It hits the riparian line. So there's a lot of things that I can say. Water depths aren't an issue. Whatever I put in here, a boatlift in this area and a boat is going to violate these seven and a half foot areas which you come in from Page 51 April 16, 2009 each side. So we have to get a variance here to put a boat and lift in this area. COMMISSIONER CARON: Yeah, and I understand that. I think everybody can see that. You know, that's not -- but it's minimizing whatever variance is needed in order to accomplish the goal for everybody. MR. SCOFIELD: Yeah. I understand that. And again, I don't see any affected parties. You know, we hear that oh, these other things, which were given in testimony. But this is an area where nobody even knows exists probably when they're boating by . You look back in this corner, you're not going to know if a dock is 10 feet long or 30 feet long. You can't visually see that in this area, I mean, unless you go and poke your boat right in this little nook. So if it's the board's -- if they care to discuss and consider the removal of the skip dock, that would reduce the setbacks along that side, the requested variance to four and a half feet from seven and a half feet, I can today offer that up. CHAIRMAN STRAIN: Cherie', how are you doing for time, if we wait? THE COURT REPORTER: Fine. CHAIRMAN STRAIN: You going to be okay for about another 15 minutes if we wait? THE COURT REPORTER: Yes, sir. CHAIRMAN STRAIN: Okay. Mr. Schiffer? COMMISSIONER SCHIFFER: Rocky, would you put up the Conners subdivision again where you're pointing out that there's no other property that would have similar situations? Rocky, see the dead end canals? Why wouldn't somebody from one of those dead end canals come in here and say the same thing? MR. SCOFIELD: The code specifically deals with dead end canals on 90-degree angles. There's very specific riparian lines that Page 52 April 16, 2009 come out at 45 degrees. But a lot of these properties, though, on these dead end canals wrap halfway around the end of the canal. So they're not subj ected to that. Where the property line ends right at the corner, the 90-degree turn, the code deals with that specifically. So a lot of these properties that go halfway around the end of the canal -- and it's not a problem. We deal with that all the time. This is very specific. COMMISSIONER SCHIFFER: But this may be somewhat unique, but the point is the same logic might apply here. I mean, that's -- why wouldn't somebody come in and want a zero there? In other words, I do think that a precedent could be set here. MR. SCOFIELD: Because I design a lot of these docks and they don't need it. Nobody wants to come to a variance unless they have to. Believe me, they don't want to go through this experience, they don't want to go through this pain. This is a very specific situation, and we think what we're asking for is an okay deal. COMMISSIONER SCHIFFER: But the need, the hardship you described is the way the subdivision was laid out, which means -- MR. SCOFIELD: And that's correct. COMMISSIONER SCHIFFER: -- that's the value of that lot, that means that owner paid less. That means a lot of things that everybody is purely aware. This is not a hidden defect. So, you know, everybody along the line knew that this was there, they knew that that setback would be there. And that's the same condition on every lot in there, I guess, but -- okay, thank you. MR. SCOFIELD: Okay. CHAIRMAN STRAIN: Rocky, if you were to take out that northern proposed dock and you'd only have the one dock to the south, you'd have your boatlift and where the northern proposed boat dock is, instead of all the piling that would support that proposed dock you'd Page 53 April 16, 2009 only have two piling that would be remaining there that would end up supporting the outside limits of the proposed boatlift, is that -- MR. SCOFIELD: That's correct. CHAIRMAN STRAIN: Okay. So you'd take out the deck area, you'd take out all the other piling -- MR. SCOFIELD: Correct. CHAIRMAN STRAIN: There would only be two piling between the existing dock and all the way to the property line. MR. SCOFIELD: That's correct. CHAIRMAN STRAIN: Okay. I mean, that just may work as a compromise. And I'm not sure why we just couldn't do that today, if everybody feels comfortable with it, and then they can come back on consent. So that's just a -- it's just a suggestion I'm making to the panel here. Are there any other questions of staff or of the applicant at this time before we close the public hearing? Ms. Caron? COMMISSIONER CARON: Yeah. No, the only reason I had suggested doing a continuation was that while that seemed like a logical move to me to take out that pier, and that's what I had discussed with Rocky the other day, you know, I don't know if that's really the best thing to do. And if that minimizes the variance to the max. I mean, we didn't sit there and play with different configurations. I just tossed out a suggestion. So -- now, maybe you've had a chance to look at it in the meantime, but that was my reason for saying -- MR. SCOFIELD: Well, we have looked -- COMMISSIONER CARON: -- after you've looked at it. MR. SCOFIELD: Yeah, we have looked at different configurations. Trying to lay a dock along the side here on this curvature and bringing a boat in that way and getting it into a lift is Page 54 April 16, 2009 just not plausible. Straight in and straight out like the neighbors. You can see the shape of this thing. There's only really one way to get in and out of there, unless we were going to an 18- foot little boat without a lift in that area. Obviously it lessens the impact if you take that dock out. We're staying three feet away from the property line there. We're 18 feet -- as the seawall goes, you're about 16 to 18 feet away from the neighbor to the south along the property line. The current dock, existing, sticks out almost the same as that dock on the south side. So the only thing you'd be allowing here basically is to put the boatlift in, and today we have to get the variances in order to do this. CHAIRMAN STRAIN: Mr. Schiffer? COMMISSIONER SCHIFFER: One of the big concerns I have is really voting for a variance that allows zero. Because while those things always appear to be case specific, they're always used someplace that hurts us. What I would kind of like to do is if -- I don't know if we could do this, but allow you to use the extension of the southern property line as the riparian line, stay seven and a half feet off of that, and then deny the variance requirements. You're going to lose it on that center line. And then let you redesign a dock that fits within that. I'm not an expert on riparian lines. I did read a book on it. We had all these debates -- and I don't want to provide testimony, but I'm not sure the centroid applies here. And obviously you're not sure of it yourself. And in those comer lots, those end of canal lots, they do let that line bounce off at a 45, which would be about exactly that. MR. SCOFIELD: Yeah, the lot line ends at the comer. COMMISSIONER SCHIFFER: Right. MR. SCOFIELD: Now, you can do what you want on this. We're -- you know, we're restricted. We have to show rip -- I can't Page 55 April 16, 2009 arbitrarily say where a riparian line is. If you all want to do that, that's fine. If you extend that line out, straight out like you're talking about, you're seven and a half feet. It's a matter of words here. If that makes -- the dock's going to be in the same place. But if it's more pleasing to say that it's seven and a half feet off because you're adjusting that line CHAIRMAN STRAIN: Well, before you go there, Mr. Klatzkow, are we a jurisdiction that can change riparian lines? MR. KLATZKOW: We're going to go by the survey. CHAIRMAN STRAIN: Okay. Let's not-- COMMISSIONER MURRAY: Let's not get into this. CHAIRMAN STRAIN: I think that if we were willing to change a line to accept the dock, that means the dock in that location's acceptable. So let's just move forward and try to resolve this. Mr. Vigliotti? COMMISSIONER VIGLIOTTI: Chairman, I agree with your suggestion, it's a good happy median, both sides wins, and I support your suggestion. CHAIRMAN STRAIN: Are there any other questions before we close the public hearing? Are there any questions of anybody from this panel? (No response.) CHAIRMAN STRAIN: Okay, with that we'll close the public hearing and we'll go for discussion. The suggestion earlier was that we recommend approval with the removal of the northeastern proposed dock, leaving only the two piling to provide for the outside extension of the boatlift. Mr. Klatzkow? MR. KLA TZKOW: I don't think he's agreed to that. I think unless he agrees to that, he's entitled to a vote up or down. CHAIRMAN STRAIN: He just agreed to it a minute ago. Page 56 April 16, 2009 Mr. Scofield, would you come back up and tell us your thoughts on that? I asked you very clearly, but I don't know if it was clearly responded to, so let's just get the response. MR. SCOFIELD: The owner has agreed to remove from this application the three-foot wide by 30 -- actually, 29 feet walkway on the north side of the boatlift. The boatlift would stay as-is, reducing the variance request from seven and a half feet to four and a half feet. MR. KLATZKOW: So we're removing that from the petition right now. CHAIRMAN STRAIN: No, before you go any further, you'd be reducing the variance request from seven and a half feet down to -- okay, down to four and a half feet. MR. SCOFIELD: Right, right. CHAIRMAN STRAIN: But for only two piling. The two outer piling of the boatlift. MR. SCOFIELD: And the beam. CHAIRMAN STRAIN: Well, yeah, I understand that. MR. SCOFIELD: Right, right. Yeah, the drawing you have in front of you, you just remove the shaded dock area, the boatlift stays there. CHAIRMAN STRAIN: Okay. So he has agreed to that proposal. Is that sufficient, Mr. Klatzkow? MR. KLATZKOW: Yes. I just want it on the record. COMMISSIONER SCHIFFER: Mark? CHAIRMAN STRAIN: Understand, understand. Yes, sir, Mr. Schiffer? COMMISSIONER SCHIFFER: Shouldn't we vote on the variance first? Because if that fails, the conversation is a lot different. CHAIRMAN STRAIN: Yeah, that's fine. The variance then pertains strictly to the -- now, Rocky, while you're there, the variance that you're now asking for would be only for the extension -- the two of them: The extension of the southern dock as it goes close to that Page 57 April 16, 2009 riparian line and the outward extensions of the boat lift that would remain after the proposed dock was removed, the northern proposed dock was removed. MR. SCOFIELD: That's correct. To the north the boatlift will extend into the side setbacks four and a half feet. On the south side only to the riparian line that's shown out there, it would come right close to that riparian line. CHAIRMAN STRAIN: Okay. So for discussion purposes from the Planning Commission, is that -- what do we have? If we make a motion to recommend approval for only the south -- the southernmost dock at the zero setback or close to the riparian line setback as shown here, and with the only portions of the boatlift that go beyond the -- go four and a half feet into the variance for the north, we would be taking out the proposed walkway dock. Is that consistent with everybody's thoughts on this? Mr. Schiffer? COMMISSIONER SCHIFFER: I mean, it's going in the direction, but there could be more. In other words, I'm taking the word variance to be a powerful word. And, you know, it isn't the least amount you could do. You could move the whole thing out of that variance. So, you know, I really think the variance should be discussed by itself, should be voted by itself. Rocky says, you know, it is -- CHAIRMAN STRAIN: We're doing that now, Brad, that's what this is about. COMMISSIONER SCHIFFER: Well, I'm still talking. Rocky said it is all words. And the word that I don't want is that we voted for zero setback for a dock. And it's not just -- you know, this is going to reign throughout the whole county. There could be similar lots like this all across the county, we don't know. And-- MR. SCOFIELD: This is a zero setback to the riparian line is Page 58 April 16, 2009 how it should read. To the riparian line. Which is -- riparian lines are lines drawn in the water that aren't, you know, basically in stone as you were talking about earlier. So the variance should read a zero setback to the southern riparian line, as opposed to side yard setback. COMMISSIONER SCHIFFER: I know riparian line is a line in water, a property line is a line in the woods. I mean, they're all invisible, we don't see any of them. But anyway, that's my point is that I really think we should focus on what the variance is and whether we want to do that. If we want to do that, then we can go back from the top. MR. SCOFIELD: Again, if I were here today to just permit the existing dock, I'd be asking for the same thing, because it comes right to that riparian line. CHAIRMAN STRAIN: Okay, let me suggest something then. We're considering a zero setback to the riparian line -- to the south riparian line for the dock only. And we're considering a four and a half variance (sic) to the north riparian line for the boatlift only. Is that a good summary? COMMISSIONER CARON: Uh-huh. CHAIRMAN STRAIN: Okay, does anybody have any further discussion on the variance aspects of this case? (No response.) CHAIRMAN STRAIN: Ifnot, is there a motion regarding the variance aspects of this case from anybody? COMMISSIONER MURRAY: I'll move -- CHAIRMAN STRAIN: Mr. Murray? COMMISSIONER MURRAY: -- approval of the variance as outlined just now. CHAIRMAN STRAIN: Is there a second? COMMISSIONER VIGLIOTTI: I'll second. CHAIRMAN STRAIN: Mr. Vigliotti seconded. Motion's been made to approve, motion's been seconded for the Page 59 April 16, 2009 variance under the terms that we just discussed. Is there any discussion? (No response.) CHAIRMAN STRAIN: All those in favor, signify by saying aye. COMMISSIONER MURRAY: Aye. COMMISSIONER HOMIAK: Aye. COMMISSIONER MIDNEY: Aye. CHAIRMAN STRAIN: Aye. COMMISSIONER WOLFLEY: Aye. COMMISSIONER CARON: Aye. COMMISSIONER VIGLIOTTI: Aye. CHAIRMAN STRAIN: Anybody opposed? (No response.) COMMISSIONER SCHIFFER: Aye. COMMISSIONER KOLFLAT: Aye. CHAIRMAN STRAIN: Those that oppose, raise their hand. COMMISSIONER SCHIFFER: (Indicating.) COMMISSIONER KOLFLAT: (Indicating.) CHAIRMAN STRAIN: Just two. Okay, so the motion carries 7-2. N ow we'll go on to the boat dock -- MR. KLATZKOW: Before we do that, sir, could we get the reasons for the objections? COMMISSIONER KOLFLAT: Doesn't meet the minimum vanance. COMMISSIONER SCHIFFER: Well, it doesn't meet the minimum variance and the platting of a subdivision does not cause a hardship. CHAIRMAN STRAIN: Okay, is that -- does that answer your question, Mr. Kolflat -- I mean -- MR. KLATZKOW: I just want the reasons on the record. Page 60 April 16, 2009 CHAIRMAN STRAIN: -- Mr. Klatzkow, I'm sorry. Okay, with that, the variance is over with. We'll move on to the boat dock extension. Is there a motion on the boat dock extension? And before we make the motion, I guess we should have discussion. The boat docks extension in this case would only be for the southern proposed boat dock, as shown on this plan. The northern one is eliminated from that discussion. MR. KLATZKOW: And if I just may, this is a little bit quirky. If it's approved, it's going to be conditioned on BZA approving your variance, all right? MR. SCOFIELD: At BCC, right, I understand. MR. KLATZKOW: So normally on these things you vote and that's the end of it. But this one's going to be conditioned upon ultimate approval of the -- MR. SCOFIELD: Yeah. CHAIRMAN STRAIN: Okay, so -- MR. SCOFIELD: But Mark? CHAIRMAN STRAIN: Yes, sir. MR. SCOFIELD: Excuse me. If I can -- the boat dock extension is not just for -- well, if you want to look at it that way. But if you look at that southern dock measured out, it's only 27 feet from the property line. We're asking for a 10-foot extension. This is where the boat sits. And to deal where the boat sits, which I explained before, it's 10 feet out measured from the property line in this area right here where the boat sits. CHAIRMAN STRAIN: Understand. So you're -- the boat itself will have a longer extension, due to the shape of the shoreline, but you're still in no case are you going beyond the riparian line. MR. SCOFIELD: That's correct. CHAIRMAN STRAIN: Okay, I think that's -- MR. SCOFIELD: And we lose a foot to foot and a half because the property line's inside the seawall. Page 61 April 16, 2009 CHAIRMAN STRAIN: Okay. So the boat dock extension approval would reference the full 10 feet, but only to the extent that it does not go beyond the riparian line, as shown here. MR. SCOFIELD: That's correct. CHAIRMAN STRAIN: And the northern dock would be eliminated. MR. SCOFIELD: That's correct. CHAIRMAN STRAIN: Mr. Schiffer? COMMISSIONER SCHIFFER: If you offset that property line 30 feet, obviously inside, would any of this boat or lift or anything be outside that? MR. SCOFIELD: I'm not following you. COMMISSIONER SCHIFFER: Offset means that you take a circle -- I mean, it's a good computer term -- where you offset the circle inward. So it would create another circle within that that's 30 feet away from the property line. Got that? I mean -- MR. SCOFIELD: I'm not sure where you're going. COMMISSIONER SCHIFFER: Let me say it this way: Is there, from any measurement whatsoever, that property line going to be longer than 30 feet to any part of this boat or boat dock? MR. SCOFIELD: It can't be. That's what we're asking for. And if it's approved, then 30 feet measured from the property line to the props on the outboard motor, if that's what he's getting, can be no longer than 30 feet. COMMISSIONER SCHIFFER: Okay. CHAIRMAN STRAIN: Okay. So the boat dock extension, based on the discussion that I just heard, will be limited to 10 feet up to the riparian line and would limit -- and the southern dock is the only dock that it would apply to. And that the -- it's all conditioned upon the BZA approval of the variance. Any further discussion? (No response.) Page 62 April 16, 2009 CHAIRMAN STRAIN: Ifnot, is there a motion? COMMISSIONER MURRAY: Recommend BD-2009-AR-14138, boat dock extension be approved based on the statements made by the Chair, which reference the comments made. CHAIRMAN STRAIN: Is there a second? COMMISSIONER VIGLIOTTI: Second. CHAIRMAN STRAIN: Motion made by Commissioner Murray, seconded by Commissioner Vigliotti. Everybody clear on the motion? (N 0 response.) CHAIRMAN STRAIN: Okay, all those in favor, signify by saYIng aye. COMMISSIONER MURRAY: Aye. COMMISSIONER HOMIAK: Aye. COMMISSIONER MIDNEY: Aye. CHAIRMAN STRAIN: Aye. COMMISSIONER WOLFLEY: Aye. COMMISSIONER CARON: Aye. COMMISSIONER VIGLIOTTI: Aye. CHAIRMAN STRAIN: Anybody opposed? COMMISSIONER KOLFLA T: Aye. COMMISSIONER SCHIFFER: Yeah, I'm going to vote against it too, so here we go. CHAIRMAN STRAIN: Okay. So the boat dock extension passes 7-2. You guys want to state your re -- oh, do we need to for this one? Do you want to state your reasons for the boat docks extension denial? COMMISSIONER SCHIFFER: They'll never appeal it so do we have to -- I mean, I'd love to have -- CHAIRMAN STRAIN: He just nodded his head yes, so that's the only reason-- Page 63 April 16, 2009 COMMISSIONER SCHIFFER: I'd love to hear your reasons for approving it myself. But since we have to do it, we have to do it. Primary condition number one fails because it's inappropriate to the waterfront length. Primary condition number two fails because the dock could be redesigned as everything else in the neighborhood to comply. Primary condition number five fails -- no, it does not, I'll leave that one go. Secondary condition one fails because these conditions are typical to the neighborhood. Secondary condition two fails because this would be an excessive dock facility. Secondary condition three fails -- I'm sorry -- yeah, secondary condition -- that's it. CHAIRMAN STRAIN: Okay. Mr. Kolf1at, do you have any reasons? COMMISSIONER KOLFLAT: Yes. My reason is that on Petition ADA-2008-AR-13731, the Collier Commission had a mandate after a vote by all five members of the commission that the issue of criteria be remanded to the Planning Commission for further review and discussion and action. And until that is done, I do not feel competent to judge what is in the petition before me. CHAIRMAN STRAIN: Okay, with that we will -- that's the end of that particular hearing. We'll take a break until 10:30 and we'll resume at that time. Thank you. (Recess.) CHAIRMAN STRAIN: Okay, if everybody will please resume their seats, we'll move on. Item #9C PETITION: PE-2008-AR-1407L SANDBANKS~ LLC Page 64 April 16, 2009 CHAIRMAN STRAIN: Next item up for discussion is Petition PE-2008-AR-14071. It's called Sandbanks LLC. It's at 3114 and 3126 North Tamiami Trail. It's for a parking exemption. 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 the Planning Commission? (No response.) CHAIRMAN STRAIN: Hearing none, the applicant may proceed. MR. FERNANDEZ: Good morning, Commissioners. Michael Fernandez with Planning Development, Incorporated, representing the petitioner on this parking exemption. The site is located on U.S. 41. It borders the boundary with the City of Naples. There's existing commercial. There's a restaurant, if any of you visit this site, and strip commercial to the right of it. The land behind it is vacant and there's an existing home. On the view screen, if you'll take a look at that, you'll notice that the -- you'll notice that the commercial zoning is all C-4 along this perimeter. And you'll see that the C-4 undulates, goes in and out and does not run parallel to U.S. 41. In most cases where you have less depth of C-4, you'll notice that they had C-l T as a nice transition between the higher intensity C-4 and the residential district that's behind it. In our particular case we don't have that. Our client owns all the property that's in question, including the lots that are proposed to be used for the parking exemption. What we've proposed is the design that we believe provides a nice transition between the more intense commercial area and the Page 65 April 16, 2009 residential area that this area abuts. What we're showing here is a well landscaped parking lot with 63 parking spaces that would be utilized to aid in supporting the development that's in the C-4 portion of the site. We wish to note that we've also made some additional commitments that we volunteered. One is that those parking spaces can only support office use. So we're not asking it to be used for restaurant use or retail use. It can only be used for office use; that it's limited to the hours -- regular business hours, which we've suggested be between 7:00 a.m. and 6:00 p.m., Monday through Friday. So essentially it's a weekday parking lot that would support office use, and it will be further designated for use by employees. So again, we see it as a nice transition. The code requires that we have a wall, six-foot wall adjacent to the residential to the east, and a four-foot wall adjacent to the public right-of-ways to the north and south of that parking exemption area. And of course the landscaping that goes along with it provides for significant landscaping and a nice buffer. In addition to that, we added the requirement that all internal spaces will either abut the perimeter buffer or will abut some form of landscape island or tree installation so that again that area feels more landscaped. Now, the entrance to this parking exemption area is going to be of course as required by the code, well within the C-4 parcel, and so that there's no access to the residential areas that abut the parking exemption area. And you can see the two access points that -- one on each side: One on Rosemary and one on Ridge Street. If you were to go out and look at the site today, you'd see that it's very nonconforming. There's a lot of asphalt, there's no buffers. Cars actually back out onto the roadways. We see this as a significant improvement. It would allow us to Page 66 April 16, 2009 do a significant improvement to that area, to that corridor, and join some of the other redevelopment that's happened over the years in that segment of U.S. 41. We also did a study that showed that we could actually accommodate more development that we're proposing just on the C-4 portion by use of the parking garage. In fact, we'd be able to accommodate approximately 85,000 square feet. But also, the parking garage would itselfbe approximately 95,000 square feet plus the additional 85. So now you're talking a very huge building. And we chose not to do that. We think this is a much nicer, more user friendly, more neighborhood friendly concept. There are other projects. One was recently approved. We referenced that in our materials at the comer of -- across from the Northern Trust building. And they have indeed proposed a five-story building with a parking garage, and they have their SDP approved. So, you know, it may be an economically viable alternative for them. We chose to go this route to set ourselves apart from that type of development. The criteria in the LDC has 13 standards that form the basis of review for staff and the Planning Commission. We reviewed that in our application and we went through and we believe we've satisfied all of those requirements and in many cases exceeded them. We note that in the county staff report they too reviewed those same 13 items, and they were fairly consistent with the same conclusions we came to, and again found that they were able to support the petition as proposed. With that, if you have any questions, I'll be happy to answer them. CHAIRMAN STRAIN: Are there any questions? Mr. Schiffer? COMMISSIONER SCHIFFER: Mike, reference number nine, which states that there's a IS-foot width buffer area adjacent to Page 67 April 16, 2009 residential use. MR. FERNANDEZ: Yes, sir. COMMISSIONER SCHIFFER: Collier's term for adjacent includes, you know, for residential uses across right-of-way. Your buffers on that side are not 15 feet. Is that something we should address here? MR. FERNANDEZ: You know, our past experience in the code was that this was the interpretation, that it would be 10 feet adjacent to that right-of-way with the incorporation with the wall buffer. If that's the interpretation that, you know, when we go through the SDP that staff tells us we have to utilize, then we will. COMMISSIONER SCHIFFER: Should we resolve it now? I mean, it's a nice layout. I'm not using it as a hammer, I'm just saying, it's something that -- you know, it is essentially adjacent to residential on those north-south properties also. At least part of the thing is, obviously not the whole thing. So anyway, we don't want to address it? We can wait. But would you then adjust your site plan to fit that or would you prefer to -- MR. FERNANDEZ: Well, yeah, it would be a minor adjustment. COMMISSIONER SCHIFFER: Okay. MR. FERNANDEZ: And it would only impact that area. COMMISSIONER SCHIFFER: Okay. The hours, the 6:00 p.m., I think that's nice, but is that reasonable? So does that mean everybody in the office who's going to work late that night's got to run out and move their cars, or what's going to happen there? MR. FERNANDEZ: We don't see -- you know, it's only a small portion of the parking that's being utilized this way. By 5:00, especially in our community, the vast majority of the parking, they'll be gone. And yes, if they have to move their car, they move their car. But in most cases we don't see that that's going to be a problem at all. You Page 68 April 16, 2009 know, we're off U.S. 41 and the -- and we've done a number of office buildings on that U.S. 41 corridor, and we don't see that being an issue at all. COMMISSIONER SCHIFFER: And then how are you going to control that back parking? Because essentially it's not the whole back parking that's affected here. So, you know, you're not going to go out and -- I mean, for example, there's going to be one drive lane which has the boundary between C-4 and the residential is in the middle of the drive lane. So you can park on one side of that drive lane but you can't park on the other, or what's going to happen there? MR. FERNANDEZ: What -- you know, we found it effective enough that basically those areas are designated for use by employees. And the hours of operation, that's reinforced by the lighting and that there'll be no pole lighting in that area, it's only 42-inch bollards back there. If it became a problem, the opportunity there is to chain off those -- the two drives that go to the back of the rear, and that would take care of that issue. COMMISSIONER SCHIFFER: All right. I mean, is that something you came up with? Does staff require that? I mean, it's not the way you've buffered this, it's not the way you landscaped it. Why is that an issue to restrict the hours? MR. FERNANDEZ: That's something we've offered. We think that it's reasonable. If there had been objections by the public, that's something we would have offered. We were just proactive and feel that that's something that we can live with very easily. COMMISSIONER SCHIFFER: Thank you. CHAIRMAN STRAIN: Mr. Wolfley? COMMISSIONER WOLFLEY: Yes, just one quick question. You're going to tear down the existing building and displace those retailers? MR. FERNANDEZ: Yes, sir. Page 69 April 16, 2009 COMMISSIONER WOLFLEY: Okay. They're aware of what's going on, I take it? MR. FERNANDEZ: Yes, sir, they are. COMMISSIONER WOLFLEY: Is there a -- are you giving them assistance? I think they're probably all renters, aren't they? MR. FERNANDEZ: They are renters. There are leases in place. The provisions -- those leases do provide for what we're proposing. We don't anticipate -- we still have to go through the SDP process, bidding process. We've talked to some tenants, but we're still not there yet. So there's a significant period between now and then to address those items. COMMISSIONER WOLFLEY: Okay, I just -- you know, there's so many retailers going out. I'm hoping that they find adequate locations. MR. FERNANDEZ: Yeah, in fact, if you go out there now you'll see that there's a for lease sign out there. And it would be a short-term lease, but it's available for lease right now. And if you go up and down 41, there's quite a few vacancies. COMMISSIONER WOLFLEY: Right. MR. FERNANDEZ: And, you know, so it's there, and the prices have actually come down. COMMISSIONER WOLFLEY: I saw that for lease sign there. And that was my question, you aren't going to lease it out to somebody that's going to be immediately displaced. MR. FERNANDEZ: Well, again, just like the project that already has its SDP approved across -- the Northern Trust. They have a for lease sign out front and it says short-term lease. And so, you know, that might work for some particular tenant. If it doesn't, obviously it won't lease out. But otherwise it may work perfect for somebody trying to start a business and looking for a short period. COMMISSIONER WOLFLEY: Very good. MR. FERNANDEZ: It's common in these redevelopment Page 70 April 16, 2009 transition areas. COMMISSIONER WOLFLEY: It looks like a great improvement, thank you. MR. FERNANDEZ: You're welcome. CHAIRMAN STRAIN: Any other questions of the applicant? (No response.) CHAIRMAN STRAIN: With that, we'll hear the staff report. MS. ZONE: Good morning, Commissioners. Melissa Zone, Principal Planner with the Department of Zoning and Land Development. I'd like to just state for the record that this application is for an approval of a parking exemption pursuant to LDC provisions. And the applicant is seeking to allow 63 parking spaces of a proposed 195 parking spaces to be placed off-site on the residential single-family RSF -4 zoning district. And this has been reviewed by staff. And the subject 2.55-acre lot is designated urban -- in the urban mixed use district in the urban residential subdistrict as identified on our Future Land Use Map. And the principal site, which has the commercial-- general commercial zoning district is 1.86 acres. And I don't know if there are any questions that the Planning Commission has for me that I might be able to clarify. I'd be happy to. CHAIRMAN STRAIN: Any questions of staff? Mr. Schiffer? COMMISSIONER SCHIFFER: And Melissa, it's that number nine. There's a requirement for 15 feet if you're adjacent to residential. The back part of that is adjacent to residential; don't you agree? MS. ZONE: It is definitely adjacent to residential, and that's why they have those buffers. And if this Planning Commission would like to enhance that requirement, staff will make sure that it is placed in the commitments that are contained, Exhibit C, I believe, of the ordinance. Page 71 April 16, 2009 COMMISSIONER SCHIFFER: That's not exactly where I'm gOIng. MS. ZONE: Oh, I'm sorry. COMMISSIONER SCHIFFER: The little bit of it that's north-south, they too are also adjacent, because across the street the right-of-way is residential. And they're only 10 feet. MS. ZONE: Would you like us -- and I'll make sure that it happens that we extend that buffer to the residential property. COMMISSIONER SCHIFFER: I mean, actually my point, I think this is a really good layout. There's a lot of landscaping, a lot of protection. My concern is actually that you'd -- it would be no benefit to anybody to enforce that on each side of that little area. So does this site plan, which culls it out to be a Type B right-of-way buffer, does that overrule the code requirement that that be 15 feet? MS. ZONE: Necessarily they were looking at it as the right-of-way buffer, and that's how our landscaper reviewed it. Again, this is something that is interpretation. We were looking for a nice linear line, and because there was enhanced buffer we didn't see that there was a great concern. COMMISSIONER SCHIFFER: But, I mean, my question is he's in SDP. Somebody else reads this, they say, whoa, wait a minute, you need 15 feet. Can they say no, we don't, because we approved this plan with 10 feet? MS. ZONE: No, if you look on -- COMMISSIONER SCHIFFER: Let me continue a second. And if they can't, what can we do now to make sure that it is okay in my mind that that stay at 10 feet? MS. ZONE: Right. CHAIRMAN STRAIN: Before you spend a lot of time on this, we -- if we approve this today, we're going to be approving it subj ect to the Exhibit C commitments. The commitments spell out the width Page 72 April 16,2009 of that buffer and how it's going to apply. Do we -- wouldn't that then be the dominating criteria for review is the commitments made by the -- because if not, then that changes the whole ballgame today, and it'd sure be a good question to know. MR. KLATZKOW: Yeah, I think that's my understanding. CHAIRMAN STRAIN: So if we approve it, it's locked in based on the commitment of Exhibit C, which is detailed out to be a 10- foot buffer there. COMMISSIONER SCHIFFER: But nothing in this presentation discusses the fact that they are doing something contrary to the code. So the scary thing about what you said is that in any application, if somebody can get something by us without noting that by the way, guys, I'm doing something less than code, that means that that's going to reign? I mean, that's -- I'm not happy with that condition. But I do -- where I'm going with the 10 feet, if the 10 feet's fine and everybody's happy with it. But my concern, Jeff, was that if we just approve any site plan and the applicant fails to point out deviations from the code, that us approving that accepts that deviation. MR. KLATZKOW: No. I mean, I would strenuously argue that unless there was an expressed deviation made, nobody's going to go through the back door like that. COMMISSIONER SCHIFFER: Okay. And they didn't express this deviation, so that's -- I guess I have enough and it's on the record and -- MR. KLATZKOW: We're good. COMMISSIONER SCHIFFER: Okay. CHAIRMAN STRAIN: Any other questions of staff? (No response.) CHAIRMAN STRAIN: Melissa, I have one. In your recommendations, assuming that this is approved subj ect to the recommendations, your second one, I might suggest some clearer language. Page 73 April 16, 2009 MS. ZONE: Okay. CHAIRMAN STRAIN: I would suggest it reads, the parking exemption commitments (Exhibit C), and as depicted on the conceptual site plan (Exhibit B), of the resolution. MS. ZONE: Okay. CHAIRMAN STRAIN: And that gets the site plan pulled into it as well as the commitment page. Both the exhibits then would be shown as correct references. Because here it wasn't sure that -- I didn't see B being specifically brought in. I'd rather they both be brought in. Does anybody have any problems with that? (No response.) CHAIRMAN STRAIN: Okay, thank you. MS. ZONE: Any other questions? CHAIRMAN STRAIN: No. Do we have any public speakers, Ray? I imagine we don't. MR. BELLOWS: No public speakers. CHAIRMAN STRAIN: Okay. COMMISSIONER WOLFLEY: I have a question. CHAIRMAN STRAIN: Any further -- go ahead, Mr. Wolfley. COMMISSIONER WOLFLEY: Ray, there was a public speaker. Was that for this item? MR. BELLOWS: Yes, sir, he was for this item, but he could not stay for the entire meeting. However, I gave him my card and he just had some concerns on drainage, and I am going to work with him with Stan Chryznowski to answer his questions. COMMISSIONER WOLFLEY: Is that his house on Attachment 1, Page 2 at the bottom? MS. ZONE: I could show you the area where he's at. COMMISSIONER WOLFLEY: I was just wondering if that's his. MS. ZONE: No, he's much farther down. He's several blocks down on Rosemary Lane. Page 74 April 16, 2009 COMMISSIONER WOLFLEY: Thank you. CHAIRMAN STRAIN: Okay, any other questions of staff, any other questions of the applicant, of anybody? (No response.) CHAIRMAN STRAIN: Ifnone, we'll close the public hearing and entertain a motion -- or discussion. Does anybody have any discussion? (No response.) CHAIRMAN STRAIN: Okay, now, Mr. Schiffer? COMMISSIONER SCHIFFER: I'll make the motion. CHAIRMAN STRAIN: Okay. COMMISSIONER SCHIFFER: I move we forward PE-2008-AR-14071, Midtown Point, with a recommendation of approval. COMMISSIONER WOLFLEY: I'll second. CHAIRMAN STRAIN: Motion's been made by Commissioner Schiffer, seconded by Commissioner Wolfley. You're going to need some clarification. Number one is do we accept staff recommendations? Number two, I suggested some clarification of staff recommendation number two that would bring in the Exhibit B, as well as clarify how Exhibit C played out. I need to know if you're going to accept that or not. COMMISSIONER SCHIFFER: Yeah, I do. CHAIRMAN STRAIN: Mr. Schiffer-- COMMISSIONER WOLFLEY: Second approves. CHAIRMAN STRAIN: -- accepted, Mr. Wolfley did. Ms. Caron? COMMISSIONER CARON: And the petitioner offered 7:00 a.m. to 6:00 p.m. Monday through Friday. I think that needs to be in-- CHAIRMAN LEFEBVRE: That's in both the Exhibit C and B. COMMISSIONER CARON: Is it? CHAIRMAN STRAIN: Yes. It's the first one on Exhibit C. Page 75 April 16, 2009 COMMISSIONER CARON: Oh, yes, I'm sorry. Good. CHAIRMAN STRAIN: I had the same note, Ms. Caron, but since it was there, it covered everything. Anybody else have any questions? (No response.) CHAIRMAN STRAIN: All 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. COMMISSIONER WOLFLEY: Aye. COMMISSIONER CARON: Aye. COMMISSIONER VIGLIOTTI: Aye. CHAIRMAN STRAIN: Anybody opposed? (No response.) CHAIRMAN STRAIN: Motion carries 9-0. Item #9D PETITION: PUDA-2008-AR-1380L WOLF CREEK~ RPUD CHAIRMAN STRAIN: Moving along. Next petition is PUDA-2008-AR-13801, William L. Hoover, involving the Wolf Creek Estates LLC for a modification to their RPUD. 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? Page 76 April 16, 2009 COMMISSIONER VIGLIOTTI: I had discussion with Mr. Y ovanovich by phone regarding this petition. CHAIRMAN STRAIN: Anybody else? Ms. Homiak? COMMISSIONER HOMIAK: I spoke to Mr. Y ovanovich. CHAIRMAN STRAIN: Anybody else? Ms. Caron? COMMISSIONER CARON: Yes, I spoke to Mr. Yovanovich by phone. CHAIRMAN STRAIN: He's a real popular guy. I guess I spoke to him too. And I needed some clarification on what it was he was trying to do, and he provided that and I'm sure he'll do it again today. And there was an error on -- or at least what I thought was an error in one of the documents. Mr. Y ovanovich told me he'd send it out to us. I had not received it, so hopefully we're going to have it today or clarification today. COMMISSIONER CARON: It was sent. MR. YOV ANOVICH: Ms. Deselem sent it. CHAIRMAN STRAIN: Okay. Well, I checked yesterday and I hadn't gotten it yet. COMMISSIONER SCHIFFER: I haven't either. CHAIRMAN STRAIN: Mr. Schiffer hasn't either, so-- MR. YOV ANOVICH: I'll go over what the change was then during my presentation. Good morning. For the record, Rich Y ovanovich on behalf of the petitioner. I also have with me George Shapiro from Prime Homebuilders to answer any questions you may have. What we're simply trying to do is amend the transportation stipulations Nand 0 in the existing PUD. The reason that those stipulations were included in the PUD in the first place was actually to provide access to Palermo Cove, which was the exhibit I had on the visualizer. Page 77 April 16, 2009 And this is Palermo Cove right here. And the Palermo Cove PUD had a requirement that they could not go forward with their project until either 951 was complete with the six-laning or they had access to Vanderbilt Beach Road. At the time we were coming through with the PUD amendment for Wolf Creek, 951 was not complete, so they asked for a timing stipulation for the completion of Pristine Drive so they could get to Vanderbilt Beach Road. Well, since that all occurred, the economy has slowed down a little bit. Palermo Cove has not moved forward with its project. Sales have gone a lot slower in Wolf Creek than had been expected. 951 is now complete, so they do have access -- Palermo Cove has access on Wolf Road to 951, so the need for Pristine Drive to serve Palermo Cove no longer exists. And also, the future final subdivision, which will be called Pristine Lakes, which is in this portion of the PUD, which will be served with the extension of Pristine Drive, will be not needed at any time soon. So we've requested to change the stipulation to tie the timing of construction to Pristine Drive to the future projects within Wolf Creek. The existing subdivisions, which is Black Bear Ridge, which is a 100-unit subdivision, already has access to 951 -- has two access points, actually -- and the Porto fino Falls project, which is a multi-family project, also has access to Collier Boulevard off of the existing portion of Pristine Drive. Pristine Drive, the future expansion has been designed, has been permitted, and has not yet been constructed, obviously. It didn't make any sense to spend that kind of money for infrastructure when there's really nothing to be served by it any time soon. So our request is to tie the future phase of Pristine Drive to future development within Wolf Creek. And that's what those stipulations say. Page 78 April 16, 2009 The language that was omitted in your version of the ordinance are the following words. And I don't know how that happened, but that language was omitted. It says -- your version doesn't include the phrase, within 30 days of the adoption date of this RPUD rezone. That was dropped off in your version of the PUD. It's been added back in. I can tell you that all of the right-of-way for the Pristine Drive extension has been dedicated to the county. So the county has all of the right-of-way necessary to complete Pristine Drive up to Wolf Road. And the permitting -- the plans have been permitted for the construction of that. We're just trying to delay the timing to when the economy comes around to necessitate the construction of that road. And we're requesting that you recommend approval to the Board of County Commissioners for this revision. One other change. Sorry. In speaking to Commissioner Caron on this project, Condition 0 basically says that no further SDP's or plats shall be approved for any individual owner within the PUD until Pristine Drive from its current terminis to Wolf Road is under construction and all the necessary right-of-way has been dedicated. We've met the dedication portion already for the extension. She had raised a concern that that's fine, but, you know, Rich, you really need to have the road completed before anybody gets any COso So I've talked to Kay Deselem and John Podczerwinsky, and we would like to add the following sentence to that section that would say: No certificates of occupancy shall be issued within new SDP's or plats until Pristine Drive from its currents terminis to Wolf Road is substantially complete. So that would tie in that the road would actually be open and usable for building permits that have been issued for projects that rely on that road. So with that change, which is acceptable to both Ms. Deselem and Mr. Podczerwinsky, we are requesting your recommendation for approval to the Board of County Commissioners. Page 79 April 16, 2009 And I'm available to answer any questions you may have. CHAIRMAN STRAIN: Any questions of anyone? (No response.) CHAIRMAN STRAIN: Wow, Richard, this might be the easiest one that you've had. Except I have a question. MR. YOV ANOVICH: But. CHAIRMAN STRAIN: Two questions, actually. Palermo, the one to the north that had to have access through Pristine Drive or through 951 six-laning, how do they get to 951 if they don't go down Pristine Drive? MR. YOV ANOVICH: They have an obligation in their own PUD to -- they front 951. CHAIRMAN STRAIN: Can you put that back -- MR. YOV ANOVICH: Yeah, I'll put that back up there for you. Here's a -- Palermo Cove is here and here. And this is 951. So they have access this way. CHAIRMAN STRAIN: How? MR. YOV ANOVICH: They'll have to construct a little portion of Wolf Road. But this is Palermo Cove right here. CHAIRMAN STRAIN: Okay. See that cross point where the two meet? Let's assume they're like a section line crossing. They're finitely touching points. How do they get enough -- do they have easements so that -- MR. YOV ANOVICH: There's enough distance. This is not -- there is land between this point and this point. They don't really physically touch like that, Mr. Strain. CHAIRMAN STRAIN: Are there easements on your property to provide enough -- MR. YOV ANOVICH: No, they have direct land that connects this piece to this piece. CHAIRMAN STRAIN: Okay. MR. YOV ANOVICH: Trust me, this is not -- Page 80 April 16, 2009 CHAIRMAN STRAIN: Trust you? We don't even need to have public hearings then, do we, Richard? MR. YOV ANOVICH: I'm glad to see we're finally coming around. CHAIRMAN STRAIN: Okay. MR. YOV ANOVICH: Mr. Strain, that's obviously for illustrative purposes, not the exact configuration of the land. Their two portions of their project physically connect and there's room for an interconnecting roadway. CHAIRMAN STRAIN: Okay. Well, that solves one question. Second question: The Falls of Portofino, where is that or what is that in relationship to Wolf Creek? MR. YOV ANOVICH: Okay, that is within Wolf Creek. And that's basically right here. And then -- whoops, then it goes up here and back down here. About to this point right here is Falls of Porto fino. This is the multi-family portion that has been currently constructed, and there's an SDP for it. It is a multi-family project within the Wolf Creek PUD. Black Bear Ridge is this area right in here. That is a 100-unit single- family home subdivision within Wolf Creek. And Pristine Lake, as I was discussing, is the future -- this area right here is the future -- also going to be a single-family subdivision within Wolf Creek. There is a second phase of Porto fino Falls that will be coming in; we'll need to have a subsequent SDP issued for it. And as you can see, it's hard to tell on this aerial, but Pristine Drive has been constructed to roughly this point that provides access to Black Bear Ridge, to Pristine Drive. They also have access to Buckstone Drive. And then Porto fino Falls has access here down to Vanderbilt Beach Road. CHAIRMAN STRAIN: There was a project that had come in a Page 81 April 16, 2009 long time ago trying to get a CDD for a very small area of acreage in this general vicinity. Is that -- MR. YOV ANOVICH: That is it. CHAIRMAN STRAIN: Is was the Falls of Porto fino? MR. YOV ANOVICH: Yes, sir. CHAIRMAN STRAIN: Okay. Just trying to understand where all these pieces are. Thank you, that's the only questions I had. COMMISSIONER CARON: Seriously gerrymandered piece of property . CHAIRMAN STRAIN: Does anybody else have any questions of the applicant? (No response.) CHAIRMAN STRAIN: Okay, with that, we'll talk to staff. MS. DESELEM: Good morning. For the record, Kay Deselem, Principal Planner with Zoning and Land Development Review. You do have the staff report that was submitted to you, the revision date on the first page of 3-26-09. As noted, this is a fairly minor amendment to a PUD, just amending two particular paragraphs within the developer commitments. It doesn't affect the proposed uses either to type, kind or amount. Therefore, the recommendation and the analysis is limited in that scope. Weare recommending, as beginning on Page 3 of the staff report, that the petition be found consistent with the Growth Management Plan. You do see on Page 4 the different reviews that were -- the review entities that were given an opportunity to review the project. Some did, some did not provide comments, based upon the scope of the request itself. Staff is offering the rezone findings beginning on Page 4 and continuing through to the PUD findings that begin on Page 8. Page 82 April 16, 2009 And finally, our recommendation then is that this petition be found consistent with the Growth Management Plan, and we are recommending approval of the petition. And I did send a revised ordinance to you yesterday. I apologize if some of you didn't get it. I sent it to everybody. But you know how that stuff is, sometimes it takes longer for some people to get it than others. But it does correct what Rich showed, and it is dated at the bottom the 15th of April. And Rich and I did talk briefly about the additional sentence that he wants to add to O. And as he stated, I am in agreement with that condition. With that -- CHAIRMAN STRAIN: Does anybody have any questions of staff? Ms. Caron? COMMISSIONER CARON: Yeah, I actually have a question for transportation staff. MR. PODCZER WINSKY: John Podczerwinsky, Transportation Planning. COMMISSIONER CARON: Hi. This has to do with PUD's and PUD commitments. MR. PODCZERWINSKY: Uh-huh. COMMISSIONER CARON: When this was originally put in to this PUD this road was supposed to be completed within two years from May of 2007, which would mean essentially another month from now. What kind of monitoring goes on so that you know whether things are proceeding or not proceeding? MR. PODCZERWINSKY: We do have PUD monitoring staff within transportation, as well as over at the CDES offices that do keep track of these. Typically they're tracked at the time of PPL application, SDP application, that sort of thing. We look for the applicable Page 83 April 16, 2009 commitments to that parcel within the PUD. COMMISSIONER CARON: Okay. So just on a parcel-to-parcel basis? MR. PODCZERWINSKY: Yes. When they're-- COMMISSIONER CARON: So when there's a commitment in a PUD that says this road must be -- shall be completed within two years, that doesn't mean anything to you except on a parcel-to-parcel basis? MR. PODCZERWINSKY: No, it does. It's a commitment of all of the members of the PUD-- COMMISSIONER CARON: Right. MR. PODCZERWINSKY: -- in general, and that's the reason that we've been rejecting many of the SDP's and PPL's that have come in within this PUD -- COMMISSIONER CARON: Good. MR. PODCZERWINSKY: -- up to this point. And this is-- COMMISSIONER CARON: Okay, I'm just trying to figure out how this -- because essentially this is coming sort of at the 11th hour. I mean -- but if you've been monitoring this and basing approvals or non-approvals based on that, then that's fine. MR. SCHMITT: Yeah, we have a commitment tracking system. I'll call it interim. Our new program will even make that more interactive. But yes, to answer your question, there's -- between PUD monitoring, the specific staffs that entered those stipulations and the tracking system, we track those commitments. Now, that's not to say in the past there's -- it's been missed. And that's -- COMMISSIONER CARON: I understand. That's why I asked the question. MR. SCHMITT: The manager over a year and a half ago, shall I say, was direct and to the point and made it clear to the administrators they would track these, and we are. Page 84 April 16, 2009 COMMISSIONER CARON: Thank you. COMMISSIONER SCHIFFER: Mark? CHAIRMAN STRAIN: Yes, sir, Mr. Schiffer? COMMISSIONER SCHIFFER: Joe, just a quick aside question, almost. But the commission at the last meeting voted to extend sunsetting of PUD's, correct? MR. SCHMITT: They voted to bring back an ordinance to extend the sunsetting ofPUD's. COMMISSIONER SCHIFFER: And within a PUD, if there was commitments like this, would they also be extended, or what will happen -- MR. SCHMITT: No, sir. COMMISSIONER SCHIFFER: -- because this -- MR. SCHMITT: The sunsetting only is extended to the period of time that they can come in and ask for a local development order. Doesn't do anything else to the PUD. If there's a commitment and an applicant wants to change that commitment, one of two ways, either come to the board and get some kind of relief directly from the board -- but the preferred method is to do exactly what happened here, amend the language in the PUD. COMMISSIONER SCHIFFER: All right, thank you. CHAIRMAN STRAIN: Anybody else have any questions? (No response.) CHAIRMAN STRAIN: Okay, any public speakers, Ray? MR. BELLOWS: No one has registered. CHAIRMAN STRAIN: Okay, with that, we will close the public hearing and have discussion. If there is a motion, we want to make sure we reference the correct sheet, which would be Page 3 of 4 would have been revised to 4-15-09, with number (sic) N having some language added to the beginning of it. And then there was an on-the-record reference to a new sentence added to O. I won't try to read it verbatim. I believe everybody has it. Page 85 April 16, 2009 But it's to the effect that no COs shall be issued or new SDP's or plats until Pristine Drive is completed. So that's just the gist of it. Is there a motion or further -- COMMISSIONER CARON: Motion to approve. CHAIRMAN STRAIN: Motion made by Commissioner Caron. Is there a second? COMMISSIONER SCHIFFER: I'll second it. CHAIRMAN STRAIN: Mr. Schiffer seconded the motion. Any further discussion? COMMISSIONER CARON: With the two-- CHAIRMAN STRAIN: With the two changes. Any further discussion? (No response.) CHAIRMAN STRAIN: Hearing none, all in favor of the motion, signify by saying aye. COMMISSIONER SCHIFFER: Aye. COMMISSIONER MURRAY: Aye. COMMISSIONER HOMIAK: Aye. COMMISSIONER KOLFLAT: Aye. COMMISSIONER MIDNEY: Aye. CHAIRMAN STRAIN: Aye. COMMISSIONER WOLFLEY: Aye. COMMISSIONER CARON: Aye. COMMISSIONER VIGLIOTTI: Aye. CHAIRMAN STRAIN: Anybody opposed? (No response.) CHAIRMAN STRAIN: Motion carries 9-0. And that wraps up -- MR. YOV ANOVICH: Thank you. CHAIRMAN STRAIN: You're welcome. That wraps up our agenda for today. Page 86 April 16, 2009 Item #10 OLD BUSINESS CHAIRMAN STRAIN: Is there any old business of the Planning Commission? (No response.) Item #11 NEW BUSINESS CHAIRMAN STRAIN: Any new business? (No response.) Item #12 PUBLIC COMMENT ITEM CHAIRMAN STRAIN: No public comment unless Mr. -- oh, Mr. Schmitt? MR. SCHMITT: I dread bringing the subject up, but for clarification of earlier discussion by Mr. Kolflat, just for the record, just so the other commissioners are aware, Mr. Kolflat brought up the Monte Carlo Club petition, and that has been remanded back, as you noted. And regretfully we didn't get a heads up, so I had to do an analysis so I could give you an updated information. That amendment has been somewhat amended by the petitioner, and that's the reason why it was scheduled -- it's coming back to you, for all intent and purposes, as a modified request. You denied that request. It went to the board. The board then remanded it back. Now, that doesn't clarify the issue about the application of the Page 87 April 16, 2009 code. We need to deal with that; you all need to deal with that. There's no argument that that's what the board's intent was. But the issue regarding the Monte Carlo Club boat dock extension, the application has actually been modified based on some recommendations that came out of this body. The petitioner actually made some modifications. So I've got to ask you, how do you want to deal with that? That petition is scheduled for you at your next meeting, coincidentally, May 7th. We could include a part of that meeting a discussion on the application of the code, or most likely would be probably best to delay that petition until we resolve the issue on the interpretation of the code. CHAIRMAN STRAIN: Well, Mr. Schmitt, I think Mr. Kolflat's pointing out and coming prepared with the data he had come prepared with was a good reminder that that issue needs to be resolved, that there's still a discrepancy out there. And I don't know how we could hear another boat dock application of any kind without that being resolved between your department and the legal department first. And I would strongly suggest to you, I don't care how we get there, but I think out of honoring the BCC's request which started the whole thing to begin with, it wasn't simply to have it changed and come back for us to rehear it under new criteria. We've still got the issue of the disagreement or let's say not -- a lack of clarity between your department and legal department on how that is to be interpreted. And I honestly think we need it before we can go further. MR. SCHMITT: Understand, our -- when the board remanded it back, we may have gone down the wrong path here, no argument. When the application was changed, we determined that the complications had been resolved. But that doesn't -- it clearly has not resolved the applications of the code. Mr. Schiffer had raised some -- certainly some salient points that need to be reviewed, as well as Mr. Page 88 April 16, 2009 Kolflat did. So I will discuss with my staff. We probably will -- I will look at this -- but most likely delay the Monte Carlo rehearing, because that's essentially what it is. You're almost hearing a new petition until we sort out the issues on the application of the code. I don't think that will be done by May 7th. I just -- Susan's on furlough till Thursday. I've got rolling furlough ongoing in my organization, week long furloughs, based on insufficient revenue to support the expenses. And so I'll look at where and when I can schedule that. Now, I need to also ask this body, do you want to address that or do you want to look at other issues as well in regards to that criterion? Are you looking to add additional criterion? As you know, we've been down that road when we talked about -- CHAIRMAN STRAIN: Joe, before you go any further, all we need to do, and Mr. Kolflat pointed that out very well, let's just meet the absolute intent of what the Board of County Commissioners requested in their review of this matter, and let's not go beyond that for now. We can always go beyond that for later. We need to get by that issue. And the priority on that issue was what the BCC recommended. They're the people in charge around here. That's got to be resolved first I believe before we can go on with any more boat dock reviews. Especially if that criteria would come into play again. And it certainly will. MR. SCHMITT: But just so you know, I mean, we're discussing here, Tor did bring up an issue about length from the street and refueling and some of these other issues. And if we're strictly sticking with what's in the LDC now and if somebody comes up later we'll deal with it through an LDC amendment. Is that -- CHAIRMAN STRAIN: But Joe, I don't -- I think the outcome of the analysis that you would provide with the legal department would Page 89 April 16, 2009 tell Mr. Kolflat or anyone of us on this board whether the other criteria that we want to bring in can be brought in. That's the whole point. So I don't think we need to change the code any further, we just need to understand the current interpretation of the code. And if we have to change later on, then so be it. MR. KLA TZKOW: We have a process in the code. If staff comes forward with a written official interpretation, that will be the end of it, until the Board of County Commissioners rule otherwise. MR. SCHMITT: Or until an appeal. CHAIRMAN STRAIN: Right. So let's just get that done and -- Mr. Yovanovich? MR. YOV ANOVICH: Yeah, I was hoping to leave. CHAIRMAN STRAIN: We were hoping you would, too. MR. YOV ANOVICH: I understand, but I represent the Monte Carlo petition, and I just heard that there's a potential of a continuance CHAIRMAN STRAIN: Yes. MR. YOV ANOVICH: -- of that hearing. And I'm a little concerned about this, the use of the phrase official interpretation, because my understanding is is that staff doesn't just do official interpretations unless directed by somebody to do an official interpretation. Staff has given their interpretation of what the code says. They believe that you look at the criteria, and if the applicant meets four out of the five and four out of the six and they provide evidence that they meet those criteria, it needs to be approved. What I don't understand is what's the official interpretation-- what further interpretation needs to be done by staff for you all or for anybody to consider future petitions? CHAIRMAN STRAIN: Well, the BCC, when they heard your appeal, remanded it back to us with criteria and conditions. Page 90 April 16, 2009 MR. YOV ANOVICH: Correct. CHAIRMAN STRAIN: We need to know how to meet their conditions, and we don't know how to meet that if there's two interpretations from two different departments in the county as to how the code's to be interpreted. I think that's where the crux of the problem lies. If we listen to the legal department, they have a little different standing than the CDES does. So which one do we go by, Richard? And if we're going to be put back in the same dilemma, again, it only seems logical to resolve it before we're put there. MR. YOV ANOVICH: And I don't know how to -- I guess my question is how does it get resolved? Someone's got to change an opInIon. MR. SCHMITT: Well, just for the record, we do internal interpretations. And we've done staff clarification notices, which are internal documents for staff clarification. Now, we've got a recent case where one of those was appealed. I've also had internal opinions, code enforcement asking the zoning director through an official interpretation. Now, we can do a staff clarification or we just do an interpretation. And most likely in this case it would be -- because it's internal, certainly between the County Attorney's office and my staff, we will meet and discuss where the concerns are on this. And most likely what will result of it, the result will be a staff clarification. Which is -- and then we will discuss that with this body to see if there are any concerns. Because the board has asked -- and Mr. Kolflat correctly quoted, the board has asked for this body to make a determination and advise staff how they best review a boat dock extension, how they apply the criteria and are they clear in applying the criteria. So with that, we may end up coming back and modifying our staff interpretation, or our staff clarification. So I think that's where we Page 91 April 16, 2009 need to go first, and that's what I hear the Chairman basically stating, let's get it resolved. CHAIRMAN STRAIN: Mr. Schiffer? COMMISSIONER SCHIFFER: Joe's, here's what I think we do. And this is maybe really simple, is if you could get the minutes for all the LDC hearings on that code change -- MR. SCHMITT: I will do that. COMMISSIONER SCHIFFER: -- of all of the different meetings and let us read that. Because the only problem I have with it is that when we had concerns at that time and when we left the gate, everybody went different directions. So the problem we have is this is clumsy. If we could maybe, just the board, read those minutes and see if in fact what is happening with the score card method is what in fact was presented to us. MR. SCHMITT: Some of that -- COMMISSIONER SCHIFFER: Because prior to that the criteria was there. The score card method is what was added at that time. MR. SCHMITT: And some of that was discussed when we talked about boat houses. So there was boat houses and boat dock extensions. COMMISSIONER SCHIFFER: Why don't you just for now send us those minutes so we can do the research. If the research is clear that it's a score card method, then we're not going to change the LDC, so that's -- MR. SCHMITT: But I just want affirmation now, that because you don't want -- now, what -- I've heard you, and that's what we're going to comply with, you don't want to hear any boat dock extension requests until we resolve the issue with you all, and that's where I'm going with this -- COMMISSIONER KOLFLA T: Amen. MR. SCHMITT: -- so we will do that first. CHAIRMAN STRAIN: I would have to agree with you. I think Page 92 April 16, 2009 that Mr. Kolflat's bringing this forward and pointing it out right through the minutes that he read, I don't see any way around it at this point to do it right. And I think we need to keep doing it right. MR. YOV ANOVICH: Just so I can tell my clients not to come back into town on May 7th, when can I expect for them to be able to have their petition heard? Because we did -- after the board considered the matter, we submitted a new application, and we modified the application. What the board directed you all to do was to explain why you turned down the original application. You have a totally different application in front of you. CHAIRMAN STRAIN: Did you pay for a second application? MR. YOV ANOVICH: Yes. MR. SCHMITT: Yes. CHAIRMAN STRAIN: Okay. Mr. Klatzkow, do we have any legal right to hold up their application? MR. KLATZKOW: Yes. You control your docket. Just like the board controls their docket. CHAIRMAN STRAIN: I just want to make sure. MR. YOV ANOVICH: And I'm not saying that you don't. I'm just asking, can I -- when can I tell my client that staff will come back, you'll discuss what the law is and then we'll get our petition heard? MR. SCHMITT: Most likely we'll -- just looking at your agenda, we'll probably be back, it will not be till May 16th for our discussion on the boat dock. So I'm -- I'm sorry, May 21st. Probably June 4th. CHAIRMAN STRAIN: Ms. Caron? MR. SCHMITT: Which is the following meeting after the 21 st will be June 4th is the -- we'll be looking at your boat dock extension hearing. So it's a month -- little less than a month later. I've got a meeting on the 7th of May, which is the next meeting. I do not think we will have anything prepared for your reading. And to try to address that issue for your meeting on the 7th, I'll look at the Page 93 April 16, 2009 21 st for that discussion on boat dock extensions, and then we'll delay the Monte Carlo till June 4th. CHAIRMAN STRAIN: Okay. Well, let's work with those dates until anything disrupts it in May, but we'll know by then. MR. YOV ANOVICH: I'm assuming this isn't going to cost the petitioner any money. MR. SCHMITT: No. No, it's our -- CHAIRMAN STRAIN: Just their legal representative. MR. SCHMITT: Unless of course you want to volunteer. MR. YOV ANOVICH: I'm not volunteering. I just didn't want to get a bill for any new advertising or anything like that. I just wanted to make sure. CHAIRMAN STRAIN: Okay, anybody else have any comments or questions as we wrap up this meeting? (No response.) Item #14 ADJOURN CHAIRMAN STRAIN: Hearing none, let's look for a motion to adjourn. COMMISSIONER VIGLIOTTI: So moved. CHAIRMAN STRAIN: Mr. Vigliotti. Seconded by? COMMISSIONER CARON: Second. CHAIRMAN STRAIN: Ms. Caron. All in favor? COMMISSIONER SCHIFFER: Aye. COMMISSIONER MURRAY: Aye. COMMISSIONER HOMIAK: Aye. COMMISSIONER KOLFLAT: Aye. Page 94 April 16, 2009 COMMISSIONER MIDNEY: Aye. CHAIRMAN STRAIN: Aye. COMMISSIONER WOLFLEY: Aye. COMMISSIONER CARON: Aye. COMMISSIONER VIGLIOTTI: Aye. CHAIRMAN STRAIN: We're out of here. ***** There being no further business for the good of the County, the meeting was adjourned by order of the Chair at 11: 18 a.m. COLLIER COUNTY PLANNING COMMISSION MARK STRAIN, Chairman These minutes approved by the board on presented or as corrected as Transcript prepared on behalf of Gregory Reporting Service, Inc., by Cherie' R. Nottingham. Page 95