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Agenda 11/03/2003 W EXECUTIVE SUMMARY PRESENTATION OF THE FINDINGS OF THE RESEARCH RELATED TO COLLIER COUNTY'S 327 RECORDED PUDS, INCLUDING IMPLEMENTING ORDINANCES AND SUBSEQUENT AMENDMENTS, AND TO COMPILE THE DOCUMENTED COMMITMENTS TO COLLIER COUNTY STATED IN THEIR ADOPTED ORDINANCES AS WELL AS TO ASSESS THE STATUS OF FIFTY-ONE (51) INSPECTED PUDS FOR THEIR COMMITMENTS RECORDED WITHIN THEIR ORDINANCES SPECIFIC TO: TRANSPORTATION, WATER MANAGEMENT, UTILITIES, ENVIRONMENTAL, LANDSCAPE, HISTORICAL /ARCHAEOLOGICAL, STREET LIGHTS, EMS, PUBLIC PARKS, SCHOOL SITES AND POLLING PLACES; AND TO PUT FORTH RECOMMENDATIONS FOR THE ADMINISTRATION OF FUTURE PUD MONITORING; AND TO ESTABLISH GUIDELINES TO BE UTILIZE BY HOME OWNERS ASSOCIATIONS OBJECTIVE: To evaluate the status of PUD commitments made by the development community as set forth in the adopted ordinance and subsequent amendments; provide a compilation of findings from current monitoring reports, provide the findings from the fifty-one (51) selected PUDs inspected by Environmental Services, Engineering, Transportation and Code Enforcement and to provide recommendations for future monitoring practices and administration. CONSIDERATIONS: Staff was charged with the responsibility of obtaining the enacting ordinances and amendments thereto of all 327 existing County PUDs. These ordinances were then reviewed for their commitments, found within the general language or listed within a separate section specific to these commitments. Staff prepared a summary sheet for each PUD documenting the commitments, which typically appear in the recorded ordinances under the following categories: TRANSPORTATION, WATER MANAGEMENT, UTILITIES, ENVIRONMENTAL, LANDSCAPE, HISTORICAL/ARCHAEOLOGICAL, STREET LIGHTS, EMS, PUBLIC PARKS, SCHOOL SITES AND POLLING PLACES and OTHER INFRA- STRUCTURE. An analysis of the ordinances reviewed to date revealed that the percentage of commitments fell into categorie as follows: 42% Street Lights, 80% Transportation, 28% Water Management, 23% Utilities, 12% Engineering, 52% Environmental, 19% Landscaping, 19% Polling Place, 4% Historical/Achaeological, 2% Parks/Recreation and 2% of "Others". Based on these findings, the appropiate departments were assigned to inspect the fifty-one (51) PUDs for compliance. Report materials necessary to fully evaluate compliance were distributed to representatives from the inspecting departments. This support documentation included: the listed PUDs for inspection, the master PUD list with commitments summarized, an inspection report form, summaries of the commitments for each of the specific PUDs reviewed, the ordinance adopting the PUD and/or sections of the ordinance referring to the commitments, the Annual Monitoring Report and a map of the PUDs to be inspected. Findings from the inspected fifty-one (51) PUDs indicate the following: 5 (10%) were in compliance; 21 (41%) were determined to have substantial compliance requiring minor developer/owner or authorized agent of the PUD to complete a form documenting the status of construction inclusive of commitments. The returned reports have varying levels of completion and accuracy. Staff's historic knowledge and experience regarding the monitoring process indicates that the current process needs to be reassessed. Since the last BCC Workshop on June 3, 2003, staff initiated the following advancement to improve the of the Annual Monitoring Report: Amend Section 2.7.3.6 of the Land Development Code (LDC), which was approved October 8, 2003. The amendment places the responsibility of the accuracy of the Annual Monitoring Report on the property owner. Section 2.7.3.6 now requires the following: Monitoring Requirements. In order to ensure and verify that approved project densities or intensities of land will not be exceeded and that development commitments will be fulfilled, annual monitoring reports shall be submitted by the owner fs~ of a PUD to the Communitv Development and Environmental Administrator. work; 22 (43%) could be brought into compliance but, would require a more substantial amount of work and; and 3 (6%) were determined to be out of compliance. The Annual PUD Monitoring Reports required by Section 2.7.3.6 of the LDC directs the developer/owner or authorized agent of the PUD to complete a form documenting the status of construction inclusive of commitments. The returned reports have varying levels of completion and accuracy. Staff's historic knowledge and experience regarding the monitoring process indicates that the current process needs to be reassessed. Since the last BCC Workshop on June 3, 2003, staff initiated the following advancement to improve the of the Annual Monitoring Report: Amend Section 2.7.3.6 of the Land Development Code (LDC), which was approved October 8, 2003. The amendment places the responsibility of the accuracy of the Annual Monitoring Report on the property owner. Section 2.7.3.6 now requires the following: Monitoring Requirements. In order to ensure and verify that approved project densities or intensities of land will not be exceeded and that development commitments will be fulfilled, annual monitoring reports shall be submitted by the owner (s) of a PUD to the Community Development and Environmental Administrator. The monitoring report shall be prepared in a County approved format to include an affidavit executed by the property owner (s) attesting that the information contained in the monitoring report is factually correct and complete, submitted annually, on each anniversary of the date said PUD was approved by the board until the PUD is completely constructed and all commitments in the PUD document/master plan are met (built out). The monitoring report shall provide the following information: 1. Name of project 2. Name of owner Number of units, by residential type; square footage and acreage of recreational facilities, commercial and other permitted uses; infrastructure and/or other uses which are complete and approved [or] for which a valid permit has been issued, but which have not been completed and any on-site or off-site commitments completed and approved as of the date of the monitoring report. Up-to-date PUD master plan showing infrastructure, project/developments, plats, parcels and other pertinent information, including on-site or off-site commitments. 5. Traffic counts for all access points to the adjacent roadway network. 6. Copies of all other required monitoring reports completed in the past year (i.e., traffic, wellfield, etc.). 7. Up-to-date PUD documents which includes all approved amendments as of the date of the monitoring report. COLLIER COUNTY BOARD OF COUNTY COMMISSIONERS WORKSHOP AGENDA November 3, 2003 9:00 a.m. Tom Henning, Chairman, District 3 Donna Fiala, Vice-Chair, District 1 Frank Halas, Commissioner, District 2 Fred W. Coyle, Commissioner, District 4 Jim Coletta, Commissioner, District 5 NOTICE: ALL PERSONS WISHING TO SPEAK ON ANY AGENDA ITEM MUST REGISTER PRIOR TO SPEAKING. SPEAKERS MUST REGISTER WITH THE COUNTY MANAGER PRIOR TO THE PRESENTATION OF THE AGENDA ITEM TO BE ADDRESSED. COLLIER COUNTY ORDINANCE NO. 99-22 REQUIRES THAT ALL LOBBYISTS SHALL, BEFORE ENGAGING IN ANY LOBBYING ACTIVITIES (INCLUDING, BUT NOT LIMITED TO, ADDRESSING THE BOARD OF COUNTY COMMISSIONERS), REGISTER WITH THE CLERK TO THE BOARD AT THE BOARD MINUTES AND RECORDS DEPARTMENT. REQUESTS TO ADDRESS THE BOARD ON SUBJECTS WHICH ARE NOT ON THIS AGENDA MUST BE SUBMITTED IN WRITING WITH EXPLANATION TO THE COUNTY MANAGER AT LEAST 13 DAYS PRIOR TO THE DATE OF THE MEETING AND WILL BE HEARD UNDER "PUBLIC PETITIONS". ANY PERSON WHO DECIDES TO APPEAL A DECISION OF THIS BOARD WILL NEED A RECORD OF THE PROCEEDINGS PERTAINING THERETO, AND THEREFORE MAY NEED TO ENSURE THAT A VERBATIM RECORD OF THE PROCEEDINGS IS MADE, WHICH RECORD INCLUDES THE TESTIMONY AND EVIDENCE UPON WHICH THE APPEAL IS TO BE BASED. ALL REGISTERED PUBLIC SPEAKERS WILL RECEIVE UP TO 'FIVE (5) MINUTES UNLESS THE TIME IS ADJUSTED BY THE CHAIRMAN. IF YOU ARE A PERSON WITH A DISABILITY WHO NEEDS ANY ACCOMMODATION IN ORDER TO PARTICIPATE IN THIS PROCEEDING, YOU ARE ENTITLED, AT NO COST TO YOU, TO THE PROVISION OF CERTAIN ASSISTANCE. PLEASE CONTACT THE COLLIER COUNTY 1 November 3, 2003 2 November 3, 2003 10. Status of commitments in PUD document including projected completion dates if then established. Other information as may be required by the Community Development and Environmental Services Administrator. Affidavit form drafted and supplied by Collier County to be executed by owner (s) of PUD. [Highlighted emphasis added] Staff additionally provided for the sustainability of a PUD monitoring section or positions within established departments, by attaching PUD Monitoring Fees to permits. These fees were adopted September 23, 2003 and will be effective November 3, 2003. They appear as K.29 of the fee schedule and read as follows: K.29) PUD Monitoring a. $50.00 per dwelling unit within PUD b. ~0.05 per square foot commercial or industrial construction within PUD During our review of the monitoring process and the inspection of these fifty-one (51) PUDs, it was recognized that dedicated staff assigned to the monitoring process would be beneficial. Revenues generated from the newly established fees would provide for these positions, with and inspection services provided by supporting departments. Based on the permits issued in the prior fiscal year, it is anticipated that the PUD Monitoring fees will generate between $250,000. and $300,000. This budgetary increase will support two or more full time employees. In an outreach effort, staff utilized the County web site to post information addressing the requirements for a change in PUD ownership. It was found during our research that changes of ownership were not correctly recorded. A sale and change of ownership transferred commitments that staff needed to track. Advising the building community of this need through various resources assists the staff's efforts to maintain accurate PUD files. Posting the Land Development Code (LDC) requirements on the County's internet advises he building industry's viewers of responsibilities of which they may not be aware. Builders and/or developers can access the requirements in the "Building Blocks" section of the" Building Review and Permitting Department" site. The posting appears below. PUD Ownership Requirements The PUD developers need to review and conform to the following sections of the Land Development Code, (LDC): Sections 2.2.20.2.4 and Section 2.7.3.6.1. These sections address PUD ownership and the respo.nsibilities attached to that ownership. They each state that, until a notification of ownership change is given to the Planning Service Department, all reporting requirements are held with the original owner of the PUD. Once a change in ownership notification is placed within the Planning Services Department, accurate reporting, such as for the annual monitoring reports, can be forwarded to the correct entities and development commitments can be appropriately tracked. be forwarded to the correct entities and development commitments can be appropriately tracked. Collier County's wish to meet the informational needs of the developing communities can only be fully accomplished with the direct cooperation of the developers. Please keep us informed so that we can better serve you. FISCAL IMPACT: The complexity of monitoring issues necessitates an understanding of environmental, transportation, engineering, and planning criteria. To properly monitor the existing PUBs and all future PUBs for commitment compliance, a dedicated team structured within CDES is required. Estimated fees generated from the PUD Monitoring Fee contribute between $250,000 and $300,000 These figures are based on the anticipation of issuing, over the remainder of this fiscal year permits for: 3,500 dwelling units and approximately 1,500,000 square feet of commercial use. Applying the cost of the PUD Monitoring Fee of $50.00 per dwelling unit and $.05 per commercial square footage yields $175,000 and $75,000, respectively. Total revenue generation of $250,000 would support the immediate need for staffing two, full-time employees dedicated to monitoring PUBs as well as the inspector's time needed to support future inspection schedules. Given these approximations of generated revenue, there appears to be no fiscal impact associated with the continuance of the PUD auditing through the remainder of this fiscal year. RECOMMENDATION: Recommendations to further improve PUD monitoring and it's administration are as follows: 1. All subsequent development applications or petitions within a PUD must submit a copy of the latest adopted PUD ordinance. a. Submitted documents must be inclusive of any waivers or deviations from the adopting ordinance that have been negotiated and approved. CDES should assign dedicated staff to perform duties and responsibilities that are exclusively dedicated to monitoring PUBs. a. Act upon comments received from reviewing departments regarding the accuracy of annual monitoring reports, and document their findings. b. Devise ways to collect and record monitary commitments at PUD approval. c. Place the PUD commintment in a context that can be applied to a GIS data base that can be reference by developers and planners. d. Establish a County service for Home Owners Associations which would provide them with guildlines for their utilization prior to the turnover of the common properties to them. 3. Identify consequences for noncompliance of the stipulated commitments. a. Seek BCC approval to re-open PUBs if necessary and amend the PUD if commitments can not be met due to development and/or site factors which warrant this recommendation. b. After a specified period of non-compliance, withhold Building Permits and/or C.O.s until compliance is met. -4- PREPARED BY: ~LANNER COMMUNITY PLANNING & REDEVELOPMENT REVIEWED BY: STAN LITSINGER, AICP, DIRECTOR COMPREHENSIVE PLANNING DEPARTMENT DATE iMNuPH K. SCHMITT DATE ISTR~TOR NITY DEVELOPMENT AND ENVIRONMENTAL SERVICES -5- R 2~ E PLANNED UNIT DEVELOPMENTS, COMMERCIAL INDUSTRIAL ZONING STAFF WORK MAP .~ WESTERN COLLIER COLJNTY LEGEND GENERALIZED ZONING [] PLANNED UNIT DE'/ELO~MENT ~ PUD COMMERCIAL · PUD NDUSTRIAL [] PUD SELECTED FOR COMMITMENT NSPECTION · INDUS FRLAL · COMMERCIAL [] GOLDEN GATE ESTATES E-] GOLDEN GATE CITY [] NCORPORATEE R 'e E 12. O~4mlxxt (Im~) 1,4. EaOI~ Ortmk t8. Cae~ EeoC, 22. Gray O~k~ R 27 E PUDs selected for Commitment Inspection'~' 1. Audubon Country Club 2. Arbor Lakes Club 3. Berkshire Lakes 4. Briarwood. 5. Carilon 6. Carlton Lakes 7. Cay Lagoon 8. Cedar Hammock Golf and Country Club 9. Citrus Gardens (Lakeside) 10. Collier Tract 22 11. Creekside Commerce Park 12. Davenport 13. David A Gallman Estate 14. Eagle Creek 15. Emerald Lakes 16. Forest Glen of Naples 17. Fox Fire 18. Golden Gate Villas 19. Green Heron 20. Green Tree Center 21. Grey Oaks BUILT OUT BUILT OUT BUILT OUT BUILT OUT BUILT OUt 22. Granada Shops 23. Hawk's Ridge 24. Hideaway Beach 25. Heritage 26. Heritage Green 27. Huntington 28. Ibis Cove 29. Island Walk 30. Kensington Park 31. Keystone Place 32. Kings Lake 33. Lago Verde (Lake Avalon) 34. Lely Country Club 35. Lely Square 36. Lely Resort 37. Lone Oak 38. Maplewood 39. Marco Shore/Fiddler Creek 40. Mediterra 41. Monterey 42. Naples Bath and Tennis 43. Naples Forest Country Club 44. Naples Heritage Golf Country Club BUILT OUT BUILT OUT BUILT OUT BUILT OUT BUILT OUT 45. Orange Tree 46. Paradise Point RV Resort 47. Pelican Bay 48. Pelican Lake 49. Pelican Marsh 50. Pelican Strand Point Marco 51. Old Cypress 52. Glen Eagle BUILT OUT I Inspected PUDs with Representatives and Status PUD AKA REPRESENTATIVES STATUS As Shown on Ordinances 1) Audubon Country Club Audubon Joint Venture Can be brought to compliance 2) Arbor Lakes Club Arbor View John D. Jassy Can be brought to compliance 3) Berkshire Lakes John J. Agnelli Out of compliance 4) Briarwood McAlpine Briarwood, Inc. & Republic Dev. Corp. Substantial compliance 5) Carillon Wallace L. Lewis, Jr. & Wilma Southeast, Inc. Can be brought to compliance 6) Carlton Lakes NTC Development, Ltd. Can be brought to compliance 7) Cay Lagoon Casa Del Sol Westem Development of Naples, Inc. In compliance 8) Cedar Hammock G&C Club Clyde C. Quinby Thomas S. Duffy Can be brought to compliance 9) Citrus Gardens Lakeside Stonebumer/Bonness Trust Radnor/Lakeside Corp. Can be brought to compliance 10) Collier Tract 22 Collier Reserve Collier Development Corp. Can be brought to compliance 11) Creekside Commerce Park Barron Collier Partnership In compliance 12) Davenport Robert E. Davenport In compliance 13) David A. Gallman Estate Morande Mazda/ Morande Suzuki David A. Gallman Estate Can be brought to compliance 14) Eagle Creek Eagle Creek Properties, Can be brought to compliance 15) Emerald Lakes Bridget Lake Levitt Homes at Emerald Lakes, Inc. Can be brought to compliance 16) Forest Glen of Naples Naples Gold Estates Ronto Golf Estates, Inc. Out of compliance 1 10/24/2003 PUD 17) Foxfire 18) Golden Gate Villas 19) Green Heron 20) Green Tree Center 21) Grey Oaks 22) Granada Shoppes 23) Hawk's Ridge 24) Hideaway Beach 25) Heritage Greens 26) Huntington 27) Ibis Cove 28) Island Walk 29) Kensington Park 30) Keystone Place 31) Kings Lake 32) Lago Verde 33) Lely Country Club 34) Lely Resort 35) Lely Square 36) Lone Oak AKA Meadowwood Club Sapphire Lakes Halstatt Lake Avalon REPRESENTATIVES Foxfire Community Assoc. Suburban Enterprises GMP Developers, Inc. Donald T. Jones Halstatt Partnership Granada Shoppes Associates, Ltd. Lamar Gable, Harold S. Lynton, & Marguerite R. Collier Hideaway Beach, Inc. & Royal Marco Developmems Dove Pointe Development Corporation John H. Harris Clyde C. Quinby Sunco Building Corp. J. Dudley Goodlette Needler Tree Farm Kings Lake, Ltd. Robert H. Morelisse Lely Estates, Inc. Triangle Properties SW, Inc. & Resort Dev. Of Collier County, Inc. Naples Community Golf Course, Inc. Lone Oak, Ltd. STATUS Can be brought to compliance' Can be brought to compliance Can be brought to compliance In compliance Can be brought to compliance In compliance Substantial compliance Substantial compliance Can be brought to compliance Substantial compliance Substantial compliance Can be brought to compliance Substantial compliance Can be brought to compliance Substantial compliance Substantial compliance Can be brought to compliance Can be brought to compliance Substantial compliance Can be brought to compliance 2 10/24/2003 PUD AKA REPRESENTATIVES STATUS 37) Maplewood 38) Marco Shore 39) Mediterra 40) Monterey 41) Naples Bath & Tennis 42) Naples Forest Country Club 43) Naples Heritage G & C Club 44) Orangetree 45) Paradise Pointe RV Resort 46) Pelican Bay 47) Pelican Lake 48) Pelican Marsh 49) Pelican Strand 50) Glen Eagle 51) Olde Cypress Fiddler's Creek Woodbridge Naples Lakes Southwoods Point Marco Brettone Park Michael Crane Trust Deltona Corporation Long Bay Partners, LLC Monterey Associates & Florida General Partnership Naples Bath and Tennis Club, Ltd. Max R. Israelson, Stuart G. Israeison & Wendy Israelson US Home Corp. Can be brought to compliance Can be brought to compliance Substantial compliance Substantial compliance Substantial compliance Substantial compliance Substantial compliance Amnon Golan Greystone Park Mobile Homes, Inc. WCI Communities, Inc. Coral Ridge Collier Properties, Inc. WCI Communities, Inc. Pelican Strand, Ltd. Substantial compliance Can be b!'ought to compliance Substantial compliance Can be brought to compliance Substantial compliance Substantial compliance The National Trust Company Out of compliance of Naples, Florida Olde Cypress Dev., Ltd. Substantial compliance 3 10/24/2003 EXECUTIVE SUMMARY A PRESENTATION BY STAFF OF ALTERNATIVES FOR MEASURING BUILDING HEIGHT IN COLLIER COUNTY. SEEKING DIRECTION FROM THE BOARD OF COUNTY COMMISSIONERS REGARDING HOW TO PROCEED WITH PERSPECTIVE CHANGE TO THE COLLIER COUNTY LAND DEVELOPMENT CODE. OBJECTIVE: On March 12, 2003, the Board of County Commissioners and the County Planning Commission held a joint workshop to discuss a number of issues. Two of the issues discussed were Building Height Regulations and Building Setback (Side Yard) Regulations. With regards to building heights, staff was directed to address the public's concerns over the application of the current regulation pertaining to the measurement of building height. Specifically, it appeared to the public that buildings, once constructed, appeared to be taller than the height limitations defined in the zoning regulations controlling them. This difference in the stated zoning height and the actual building height was the result of how building height is determined by the County's current regulations. The current methodology allows a property owner to accommodate for FEMA flood height, which is based upon the corresponding minimum elevations for habitable space or Base Flood Elevation (BFE) as defined in the corresponding Flood Insurance Rate Maps (FIRM). This means any structure located in a FEMA flood zone would measure their first finished (habitable) floor from the point necessary to get above that flood zone, i.e., the BFE. In other words, the starting point for measuring a structure could be as much as 17+ feet above the National Geodetic Vertical Datum (NGVD) of the property in that location when measuring the allowable height in a particular zoning district. The building envelope, which would encompass habitable space, would be exactly the same regardless of the FIRM required elevation, it is simply moved up and out of the flood zone in those areas. As a result of this workshop staff was directed to develop a matrix of options and come back to the Board with options/alternatives of how to address the issues of height measurement. The attached document and table have been developed by staff to provide the County Commissioners with those options. CONSIDERATIONS: The Federal Government will not insure property owners for any habitable space below the FEMA base flood elevation. FEMA regulations do not allow habitable floor space to be built in a flood zone without a rarely granted variance usually requiring special flood proofing. With respect to building height, should property owners in a flood zone have the same expectations for building height as property owners in that same zoning classification in non flood zones, or is the County going to treat them differently? Consideration needs to be given to whether a property owner in Collier County can build their structure's habitable space to the height allowed under the zoning regulations or will different standards be applied if they are in a flood zone or outside of one. The fact that much of the County is within some sort of flood zone, results in the County ending up with two height measurements, the "zoning" height which is how tall a structure containing habitable space can be, and the "actual" height, which is the habitable space plus other measurements that must be added on to maintain the allowable zoning height (habitable space) up and out of the flood zone. This is further exacerbated by the fact that flood zones are not consistent, for example, generally speaking, the further you move from the coast inland the higher the elevation and the less height that is needed to add on to raise the structure up out of the flood zone. This is the primary source of confusion and what makes it so difficult to come up with a solution. As a result, staff is recommending that only minor changes be made to the definition of height at this time and that the attached alternatives be brought to the Board of County Commissioners for discussion and direction as to which of the alternatives should be pursued. This supports the direction given at the March 12, 2003, meeting to bring back to the Board of County Commissioners staff's recommendation prior to making any recommended amendments to the Land. Development Code. As a result, staff offers the attached policy options for the Board's consideration. FISCAL IMPACT: The property affected by this discussion almost all lies within the coastal plain of Collier County, which also comprises some of the most valuable and therefore most expensive land in the County. Because this land is so expensive, developers are forced to maximize their return on their investment by developing the property to its full potential, the most critical factor in maximizing development potential is building height. This is true for two principal reasons, vertical space is the most efficient way to maximize property and it also provides views of the surrounding coastal area, which also adds a premium to the value of the upper stories of a building. Therefore any proposed change to height regulations that is going to either reduce overall height or reduce the number of stories will likely result in a economic loss to the property owner. It is very important to keep this in mind when making any changes to height, because it is so easy to demonstrate that a change will have a direct negative economic impact: on the affected property. Simply put, if a change in regulations results in a 10-foot difference in how a structure can be measured, that could be measured as a 10 percent loss of space for a 100-foot tall building or a 30 percent loss of space for a 35-foot tall building. Losses such as these have value. Property owners likely will expect compensation for diminished property values as a result of a potential "taking" specifically where their development expectations were reduced as a result of a rule change. When specific regulations further restrict a property owner's rights and "inordinately burden" that property, a cause of action may also be filed under Florida Statutes, Chapter 70, i.e., a "Bert Harris" claim. Specific mechanisms for evaluating and managing these potential fiscal impacts are compared as part of the attached option table. GROWTH MANAGEMENT IMPACT: The proposals before the Board of County Commissioners are to review how building height should be measured in Collier County and will not affect the use of the land, only the possible height of the building that could be constructed. Therefore, any of the options in this proposal would be consistent with the intent of the County's Growth Management Plan. PLANNING SERVICES STAFF RECOMMENDATION: Staff recommends that the Board of County Commissioners review the proposed alternatives for addressing the issues with building height measurement and direct staff as to how they should proceed. PREPARED BY: ROBIN' MEYER, PRtNCI~ PLANNER ZONING & LAND DEVELOPMENT REVIEW DEPARTMENT REVIEWED BY: /o RAY BF~LdW~ST~HIEF PLANNER ZONING & LAND DEVELOPMENT REVIEW DEPARTMENT REVIEWED BY: c4.ffD ~ DIRECTOR ZONING & LAND DEVELOPMENT REVIEW DEPARTMENT APPROVED BY EERSEPH K. SCHMITT, A/DMINISTRATOR MUNITY DEVELOPMENT & ENVIRONMENTAL ICES DIVISION DATE executive summary/ MEMORANDUM TO: Collier County Board of County Commissioners FROM: Joseph K. Schmitt, Administrator Community Development & Environmental Services Division DATE: October 30, 2003 SUBJECT: Decision Memorandum Regarding Height in Collier County ISSUE: Truth in Advertising One of the concerns expressed by the commissioners at their joint Board of County Commissioners and the Collier County Planning Commission workshop was to provide "troth in advertising" when it comes to the measuring of height for buildings in Collier County. The issue was seen, in part, as requiring education of the public about the current methodology for measuring height. The current methodology allows a property owner to accommodate for FEMA flood height, which is based upon the corresponding minimum elevations for habitable space or Base Flood Elevation (BFE) as defined in the corresponding Flood Insurance Rate Maps (FIRM). This means any structure located in a FEMA flood zone would measure their first finished (habitable) floor from the point necessary to get above that flood zone, i.e., BFE. In other words, the starting point for measuring a structure could be as much as 17+ feet above the National Geodetic Vertical Datum (NGVD) of the property in that location when measuring the allowable height in a particular zoning district. The building envelope, which would encompass habitable space, would be exactly the same regardless of the FIRM required elevation, it is simply moved up and out of the flood zone in those areas. There is a very good reason for starting height measurement from the FEMA flood elevation; the federal Government will not insure any habitable space below that elevation. FEMA regulations do not allow habitable floor space to be built in a flood zone without a rarely granted variance usually requiring special flood proofing. Collier County is simply complying with Federal regulations, the question that has arisen is should property owners in a flood zone have the same expectation as property owners in that same zoning classification in non flood zones, or is the County going to treat them differently. The expectation being, can a property owner in Collier County build their structure's habitable space to the height allowed under the zoning regulations or will different standards be applied if they are in a flood zone or outside of one. The fact that much of the County is within some sort of flood zone, results in the County ending up with two height measurements, the "zoning" height which is how tall a structure containing habitable space can be, and the "actual" height, which is the habitable space plus other measurements that must be added on to maintain the allowable zoning height (habitable space) up and out of the flood zone and the required roof and architectural elements. This is further exacerbated by the fact that flood zones are not consistent, for example the further you move from the coast inland the higher your elevation and the less height that is needed to add on to raise the structure up out of the flood zoned. This is the primary source of contusion and what makes it so difficult to come up with a solution. As a result staff, is recommending that only minor changes be made to the definition of height at this time to accurately reflect current practice, and that the attached alternatives be brought to the Board of County Commissioner's for discussion and direction as to which of the alternatives should be pursued. This direction to provide alternatives was given at the March 12, 2003, meeting to bring back whatever staff's recommendation were to the Board of County Commissioners prior to making any recommended amendments to the Land Development Code. As a result staff offers the following policy options for the Board's consideration. ECONOMICS The property affected by this discussion almost all lies within the coastal plain of Collier County, which also comprises some of the most valuable and therefore most expensive land in the County. Because this land is so expensive, developers are forced to maximize their return on their investment by developing the property to it's full potential, the most critical factor in maximizing development potential is building height. This is true for two principal reasons, vertical space is the most efficient way to maximize property and it also provides views of the surrounding coastal area, which also adds a premium to the value of the upper stories of a building. Therefore any proposed change to height regulations that is going to either reduce overall height or reduce the number of stories will likely result in a economic loss to the property owner. It is very important to keep this in mind when making any changes to height, because it is so easy to demonstrate that a change will have a direct negative economic impact on the affected property. Simply put if a change in regulations results in a 10-foot difference in how a structure can be measured, that is a 10 percent loss for a 100-foot tall building or a 30 percent loss for a 35-foot tall building. Losses such as these have value. Property owners likely will expect compensation for diminished property values as a result of a potential "taking" specifically where their development expectations were reduced as a result of a rule change. When specific regulations further restrict a property owner's rights and "inordinately burden" that property, a cause of action may also be filed under Florida Statutes, Chapter 70, i.e., a "Bert Harris" claim. Specific mechanisms for evaluating and managing these potential fiscal impacts are compared as part of the attached option table. OPTIONS: 1. MAINTAIN STATUS QUO Make no changes to the current regulations. PROS & CONS OF PROPOSAL PROS: 1. No additional staff work required. 2. It is a fair and equitable application of the County's regulations. 3. This is an established methodology that has been in use in Collier County from the inception. It is used in the majority of jurisdictions across the Country as a simple solution to insuring no habitable space in built within a FEMA flood zone as required by federal regulations. 4. All of the County's existing staff are trained and understand how height is measured using this datum. 5. It treats all residents the same, by allowing them to build above the flood elevation. 6. Will not have a negative economic impact on the value and development potential of land. CONS: 1. "Truth in advertising" would not be addressed. 2. AMEND CURRENT DEFINITION OF HEIGHT OF BUILDING Change the definition of building height to set a maximum height for embellishments, elevator rooms, etc., and include the height of such embellishments, elevator rooms, etc., in the measurement of height if they exceed a given percentage of the building's top floor/foot print. Additionally, clarify that height is measured from the minimum required elevation in a flood zone or from existing grade for properties not in a flood zone to eliminate the possibility of changing grade by filling the site above the minimum elevation's established on the FIRM's. PROS & CONS OF PROPOSAL PROS: 1. Amends the definition of building height to reflect actual current practice in all of the differing areas (flood zone and non-flood zones) of the unincorporated County and closes a potential gap in the definition by ensuring that property owners who "over-fill" their lots to an elevation above FEMA's minimums or existing grade (non-flood zone areas) would still have to measure their building's height from the FEMA minimum or existing grade, not the filled grade. By also including building height above a certain percentage that would be perceived as "height" because of is increased mass (e.g., more than 20 %) the perceived or "true" height would be known. (Will this create an inequity in areas where we require fill to be at lease 12 inches above the crown of the road -e.g. estates? In doing so we may be 2 to 3 feet above the BFE.) CONS: 1. Even though it would reflect current practice and close the gap in the definition, it does not change how height would be measured except for "excess embellishments" and therefore will not fully address the "truth in advertising" issue. 3. CHANGE HOW HEIGHT IS MEASURED: Staff would change the definition for measuring building height by removing the reference to measuring from FEMA flood elevation and have all building height measured from grade, either finished or prior existing "natural" grade. This would require BCC direction on a definition for grade (finished or existing/natural) so that all property is measured from the same starting point. Once the measuring point was determined all property will be measured without consideration for FEMA flood zone and so when someone is told a building is going to be 35 feet, that would be the true height of the of the building. The shortcoming to this option is that wherever a structure is located in a FEMA flood zone the area between existing grade and the flood elevation will not be allowed to be developed as habitable space. The result is, 17+ feet of a 35 foot height limit could be uninhabitable, which would substantially reduce the development potential and value of the affected properties. PROS & CONS OF PROPOSAL PROS: 1. This solution addresses the concern of "truth in advertising," everyone will have the same relative starting point and finishing point they are measuring to. CONS: 1. The change in definition would in effect take away 17+ feet of habitable space from properties in the FEMA flood zone areas if the Conditional Use request were unsuccessful. 2. Would create additional nonconforming homes by making homes built under current FEMA measurement, nonconforming (too tall). 3. The new method of determining height will require a substantial amount of staff time for retraining and in the short term create opportunities for errors. 4. Will create a large number of nonconforming uses. To provide relief from this proposed change in how height would be measured, staff is proposing to provide three differing types of "safety valves" for relief from the new measurement. These are discussed as follows: A. USE A VARIANCE AS RELIEF An alternative to measuring building height as proposed in option 3 above would be to use the Variance process to provide relief. As discussed below, the Variance process is more traditional process for a request that deals with the dimensional standards in the LDC, however making the proper showings that a variance should be granted under the current review criteria, could be much more difficult. PROS & CONS OF PROPOSAL PROS: 1. Provides for a Public Hearing & Notification of surrounding properties 2. Provides potential relief from new more restrictive method of determining building height. 3. Would be using the more traditional existing process for granting relief from a dimensional standard in the LDC. CONS: 1. Process will cost applicants more time and money than under the current process. 2. It could be difficult to make the necessary showings to have a variance granted. 3. There is a medium to high chance that the County could be challenged under the Florida Burr Harris Act. 4. Would add a large number of Variances to the workload of staff and the County. B. USE CONDITIONAL USE AS RELIEF Another option would be to make the allowance of additional height in the districts affected a listed Conditional Use. The reason for using a Conditional Use rather than a Variance was because of concerns regarding the difficulty of the showings that would have to be made in order for a Variance to be granted. Staff reasoned that if the additional height were allowed via a Conditional Use then it would be a permitted use required to demonstrate that it met the approval criteria and would also provide notification to the surrounding property owners of the project. The discussion could then be focused on the compatibility of the structure and insuring it would not adversely impact abutting uses. PROS & CONS OF PROPOSAL PROS: 1. Provides for a Public Hearing & Notification of surrounding properties. 2. It is a relatively simple change to the code for the definition, but is more complex for the Conditional Use. 3. The Conditional Use process is an existing process that staff is familiar with and understands. 4. There is a means of providing relief from the proposed regulations, the Conditional Use Permit process that would also allow for the discussion of issues, concerns and possible solutions in a public forum. CONS: 1. Obtaining a Conditional Use Permit is expensive and takes months to obtain. 2. Using a Conditional Use to grant dimensional relief from a new code standard is not a common practice and could create additional confusion and workload. 3. Would add a large number of CU request and processing to staff workload. 4. There is a good chance Collier County could be challenged under the Bert Harris Act. 5. Would require the development and administration of a "vested rights process" as an alternative methodology for those denied conditional use relief. C. USE A SPECIAL EXCEPTION AS RELIEF. Another alternative is to use a Special Exception process to provide relief. A Special Exception would work similar to a Conditional Use in that if you meet the criteria for approval that would be in the LDC, you would get your permit. The positive aspect of type of process is that the criteria would be specifically generated for this type of permit rather than modifying an existing process and trying to make it fit. PROS & CONS OF PROPOSAL PROS: 1. Provides for a Public Hearing & Notification of surrounding properties 2. Provides potential relief from new more restrictive method of determining building height. 3. It would be a new permitting system specifically set up for this exception, and if all of the criteria were met a permit could be issued. 4. Because there is a mechanism built into the process to provide relief from the new regulations the County is less likely to be challenged under the Bert Harris Act. CONS: 1. This is a new permit that does not exist in Collier County, so it will be more complex to develop, adopt and then implement so it might take longer than the other options to implement. 2. Going through the process will cost applicants more time and money. 3. Will increase staff workload processing the permits generated by this process. 4. There will be a learning curve for staff because it is a new permit process that they have no experience with. 4. ALLOW TWO HABITABLE FLOORS ABOVE FEMA FLOOD ELEVATION FOR SINGLE FAMILY DWELLINGS. A review of the regulations of other jurisdictions revealed that a simple and effective way to allow residential single family development while still keeping it under control, is to allow only two habitable floors above FEMA flood elevation along with parking under the structure in the flood zone. This is a somewhat simplistic change that requires minimal rewriting of LDC to accomplish, but will address the "truth in advertising" mandate by insuring that all new developments will be two stories above FEMA flood elevation. The only variable will then be FEMA, however this will be of limited impact for neighboring properties, which in most circumstances will have the same flood elevation. The most critical aspect of this change would be defining a maximum height for each story and would a height variance be allowed. PROS & CONS OF PROPOSAL PROS: 1. Simple to implement, just change how maximum height is defined in each zoning classification. 2. Allows equal development regardless of which flood zone the property is located in. 3. Meets the "truth in advertising" mandate. CONS: 1. Would eliminate even more development potential compared to thc current definition of height. 2. Only intended to works with single-family homes, a different solution would have to be developed for multifamily housing and commercial buildings. 5. CHANGE MAXIMUM HEIGHT LIMITS IN THOSE INDIVIDUAL ZONING DISTRICTS WHERE A CHANGE IS DESIRED. This would be the most comprehensive and complex of all the proposals because it Would require an analysis of each of the zoning classifications, including properties located in the FEMA flood zone areas, to determine how tall a structure could be built under current regulations and then an analysis of what would be a reasonable change and then to implement the determined change. PROS & CONS OF PROPOSAL PROS: 1. Would be an opportunity to address each zoning classification individually rather than trying to do a one size fits all. 2. Would provide an opportunity to involve affected property owners in the process and outcome. 3. Should result in a common understanding of allowed height for each zoning classification by both staff and the public. CONS: 1. Would take more staff time and effort to complete and implement. 2. Opening up the standards such as height could escalate into a review of all development regulations. 3. Would create a large number of nonconforming uses or would need special language to vest existing properties that will not meet the new standards. 4. Would almost certainly result in claims of lost property value and would therefore also require the development and administration of a "vested rights process" to limit the County's liability for such claims. 6. REMOVE ADDITIONAL HEIGHT ALLOWED FOR PARKING UNDER THE BUILDING The other major issue of concerns with regards to "truth in advertising" at the joint meeting was is the provision in, LDC Section 2.6.3.2. for Exclusions for off-street parking within a principal structure. This provision as it currently exists allows the Development Services Director to waive the maximum height requirements to the extent necessary to permit off-street parking within the principal structure, provided that the required number of parking stalls is not reduced, the waiver of height is the minimum required to allow up to two floors of parking, the waiver of height is compatible with the uses on adjacent properties and for each off street parking space permitted within the principal structure 300 square feet of additional open space beyond what is required by code will be provided. Even though the objective of this section of code is to reduce sprawl and maximize the use of land, it also contributes to the issue of "not" providing "truth in advertising," because two floors of height can be added on with no public input or discussion, as a result, staff is recommending to convert this administrative "waiver" into requirement to obtain a Conditional Use (CU). The CU will require anyone to demonstrate before the Planning Commission and/or Board of Couniy Commissioners that their project will be compatible and not adversely affect abutting property owners, while at the same time require notification of the proposal to the abutting property owners and an opportunity to testify regarding the proposal. It should be pointed out that this waiver is used in conjunction with the FEMA flood zones where no habitable floor space is allowed, often times at least one floor of parking is going to be located in the flood zone without needing to waive height. When the Exclusion for height to allow parking under a structure was coupled with the FEMA flood exception, the two exceptions could in some instances add 30+ feet to the allowed height. This inability of the neighboring property owners to formally or informally be involved or notified of proposal to allow structures this additional height is the impetus for the proposed regulatory changes. PROS & CONS OF PROPOSAL PROS: 1. Removes the approval of this Exclusion from the Development Services Director with no public input or discussion to a Conditional Use (CU) which provides for a process for public review and notification and denial if they do not meet the standards in the code. 2. Maintains a standard that discourages sprawl, and the efficient use of land. CONS: 1. The permit will cost applicants time and money where they could previously have it approved administratively. Table Summary of Decision Memorandum