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BCC Minutes 12/10/2003 S (LDC Amendments)December 10, 2003 TRANSCRIPT OF LAND DEVELOPMENT CODE MEETING OF THE BOARD OF COUNTY COMMISSIONERS DECEMBER 10, 2003 LET IT BE REMEMBERED, that the Board of County Commissioners in and for the County of Collier, and also acting as the Board of Zoning Appeals and as the governing board(s) of such special districts as have been created according to law and having conducted business herein, met on this date at 5:05 p.m. in SPECIAL SESSION in Building "F" of the Government Complex, East Naples, Florida, with the following members present: CHAIRMAN: Tom Henning Jim Coletta Donna Fiala Frank Halas ALSO PRESENT: Jim Mudd, County Administrator David C. Weigel, County Attorney Page 1 COLLIER COUNTY BOARD OF COUNTY COMMISSIONERS AGENDA December 10, 2003 5:05 p.m. SPECIAL MEETING 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 BE LIMITED TO FIVE (5) MINUTES UNLESS THE TIME IS ADJUSTED BY THE CHAIRMAN. 1 December 10, 2003 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 FACILITIES MANAGEMENT DEPARTMENT LOCATED AT 3301 EAST TAMIAMI TRAIL, NAPLES, FLORIDA, 34112, (239) 774-8380; ASSISTED LISTENING DEVICES FOR THE HEARING IMPAIRED ARE AVAILABLE IN THE COUNTY COMMISSIONERS' OFFICE. 1. INVOCATION AND PLEDGE OF ALLEGIANCE o THE BOARD TO CONSIDER AN ORDINANCE AMENDING ORDINANCE NUMBER 91-102, AS AMENDED, THE COLLIER COUNTY LAND DEVELOPMENT CODE, WHICH INCLUDES THE COMPREHENSIVE REGULATIONS FOR THE UNINCORPORATED AREA OF COLLIER COUNTY, FLORIDA. 3. ADJOURN 2 December 10, 2003 December 10, 2003 CHAIRMAN HENNING: Everybody take their seats, please. Welcome to the Land Development Code, third cycle of the Board of Commissioners of Collier County, today being December 10th, 2003. Would you all rise for the pledge of allegiance. (Pledge of Allegiance was recited in unison.) CHAIRMAN HENNING: Mr. Schmitt? MR. SCHMITT: Yes, Commissioners, good afternoon. I'll say good afternoon because it's not 6:00 yet. Again, welcome to -- this is the first of our hearings before the Board of County Commissioners for LDC cycle three, 2003. And just to make sure that we set the record straight, I am going to announce for public for -- at least make it a matter of public record in regards to how we're going to handle this cycle, because it is a rather laborious cycle in the fact that it involves probably one of the most expensive LDC amendments that we've had in many years in Collier County. Tonight is the first meeting, December 10th. It's going to be the first hearing. Actually, we're going to be dealing with only one element, that's Section 2.2.38, which is the Vanderbilt Beach overlay. That will be the first hearing. The second hearing for that will be January 7th, and I'm going to need a motion from the Board. And Patrick, Mr. White, Assistant County Attorney, will make sure that you understand from a legal perspective, but we will be asking the Board to meet at 2:00 p.m. on that day. And that will be the second hearing for the Vanderbilt Beach overlay. We will continue all the other items in the LDC tonight. And then on January 7th will be a continuation of all the other elements for the Land Development Code. Now, principally that includes the concurrency amendment 3.15 of the LDC. It includes all of the rural fringe and eastern land amendments and then the other miscellaneous Page 3 December 10, 2003 amendments principally having to do with the school interlocal agreement and other aspects of the Land Development Code. So those all will be continued tonight and we'll need a motion to continue those until January 7th. Now, we have January 29th set up, and that will be the second hearing for all those amendments that are going to be continued tonight that you will hear on the 7th. The second hearing will be on January 29th at 5:05. And then if needed we have a fourth date set up, which is February 1 lth, at 5:05. So Mr. White, if you would, please, make sure that we have a motion, and I want to make sure that those residents and our friends from Vanderbilt Beach understand that the second public hearing for this amendment will be January 7th at 2:00. And then we'll proceed into the other LDC amendments. Patrick? MR. WHITE: Thank you. Mr. Chairman, Commissioners, Assistant County Attorney, Patrick White. Just a preliminary matter. I just want to put on the record that I've reviewed the Affidavit of Publication with respect to tonight's meeting and find that it's legally sufficient. And Mr. Schmitt's correct, we have spent quite a bit on this, including some of the ads. As you can tell, they're rather extensive. I'm at this time, however, going to turn it over to our record keeper for tracking, and I just want to let you know that with respect to LDC, you have authority to change the time for the second public hearing by a super majority vote. Because there's four Commissioners present this evening, we need all of you to vote in the affirmative on a motion to allow the time to be at a time other than 5:05 p.m. for the second public hearing. And you can do that either as to all of the amendments that are before you in the cycle, or with specificity as to, for example, the Vanderbilt Beach Section 2.2.38 alone. Page 4 December 10, 2003 As contemplated by Mr. Schmitt, if that agenda and schedule is appropriate to you, the only one that we would need to have that super majority motion and vote for would be as to the Vanderbilt Beach overlay, because all of the other ones as to the second public hearing would be at a time after 5:05. You may choose to, however, make it more broad than just the Vanderbilt Beach overlay, because we may get into uncertainties downstream that would make it easier for us to be able to have additional hearings or second public hearings at times prior to 5:05. So I'm going to leave that to your discretion. And at some point before we move to close this evening, we'd need that motion. So at your convenience. CHAIRMAN HENNING: At this time -- COMMISSIONER HALAS: I'll make a motion -- CHAIRMAN HENNING: -- I'll entertain a motion. Commissioner Halas, your motion is? COMMISSIONER HALAS: My motion is to -- just to address the land development codes that pertain to the Vanderbilt Beach overlay, and that the second hearing will be heard on January 7th at 2:00 p.m. for the residents of Vanderbilt Beach. And the proceeding, all the rest of the LDC codes, will be also -- the first cycle of them will be addressed at the January 7th meeting. Is that correct? Did we catch everything? CHAIRMAN HENNING: Does that give you latitude? MR. WHITE: Essentially the form of the motion would require all of the other amendments to be heard as to the second public hearings at 5:05 or later. Only the Vanderbilt Beach overlay could be heard at a time prior to 5:05. CHAIRMAN HENNING: Okay. COMMISSIONER COLETTA: That time is? COMMISSIONER HALAS: That time is whatever-- when we get done with the Vanderbilt Beach overlay, we'll go right into the Page 5 December 10, 2003 next cycle, the first cycle of the land development codes. It may be at 3:00 or it may be at 5:00. MR. WHITE: Yes. Because those would be continued from today's meeting, until that time certain at some time after 2:00 p.m. they themselves could occur. There would be no need for a, quote, 5:05, except as to those items we are going to then hear for the -- I think, the first time. I don't know that there are any of them. I think we're going to get all of them in -- COMMISSIONER COLETTA: I'll second that motion. MR. WHITE: -- this time. CHAIRMAN HENNING: Okay. There's a motion by Commissioner Halas and a second. Do you need clarification of the motion? MR. WHITE: No, I believe we can implement it as stated. CHAIRMAN HENNING: Do you feel that that gives the staff latitude on the December 2nd -- or January 2nd -- or 7th meeting? COMMISSIONER HALAS: 7th. MR. WHITE: As to the 7th, what the motion would allow, as I had indicated, is that the overlay would be heard -- COMMISSIONER HALAS: At 2:00 p.m. MR. WHITE: -- prior to 5:05, we would be continuing the rest of the matters as a -- it would be a second meeting for the first public hearing, and those could occur at any time after 2:00 p.m. COMMISSIONER HALAS: That's correct. CHAIRMAN HENNING: Fine. COMMISSIONER HALAS: Yes. CHAIRMAN HENNING: Great. MR. SCHMITT: And the plan would be, again for the -- because there are amendments that are somewhat related to the issues involving the residents of Vanderbilt Beach or any of the beach communities, we would deal with three amendments that are associated. That would be the CCSL variance issue, the issue Page 6 December 10, 2003 dealing with boathouses and there was a third one -- the building height issue, yes. COMMISSIONER HALAS: And those would be held-- those would be heard for the first time on the 7th; is that correct? MR. SCHMITT: That's correct. COMMISSIONER HALAS: Okay. MR. SCHMITT: And then we'll proceed from there into the LDC amendments associated with the rural fringe and eastern lands on the 7th. So we're good with the motion. CHAIRMAN HENNING: Any discussion on the motion by the Board? (No response.) CHAIRMAN HENNING: Seeing none, all this favor, signify by saying aye. COMMISSIONER HALAS: Aye, CHAIRMAN HENNING: Aye. COMMISSIONER COLETTA: Aye. COMMISSIONER FIALA: Aye. CHAIRMAN HENNING: Any opposed? (No response.) CHAIRMAN HENNING: Motion carries unanimously. MR. SCHMITT: Mr. Chairman, if I could indulge again. Tonight's schedule, in that it involves an LDC amendment, the overlay, but it's much more than that. It involves a report to you in regards to the study and the -- that was conducted by staff jointly with the residents of Vanderbilt Beach and the associations. Staff is going to present a presentation in regards to -- to make sure that you're familiar with the overlay and all the aspects of the Vanderbilt Beach overlay and the moratorium, followed by presentations from the residents, and I will go through the names as we go through the public speakers. They also would like -- it's going to probably be almost an hour Page 7 December 10, 2003 in regards to the staff presentation, probably close to an hour in regards to the comments made by the residents, followed by public speakers. So it will be a rather lengthy presentation by both the staff and the community. And I just wanted to make sure that you are aware that this is going to deviate a bit from the normal three minutes or 1 O-minute presentations. CHAIRMAN HENNING: Okay. And that's up to the Board of Commissioners. MR. SCHMITT: Yeah, that's up to the Board. CHAIRMAN HENNING: The -- my preference would be to have the staffs presentation, and I understand that we have a representative from a land -- one landowner. Then we have the Vanderbilt Beach people. I would like to give them 15, 20 minutes or something like that and then hear from the general public at that time. MR. SCHMITT: Well, we have Ms. Diane Ketcham, who is save -- president of the Save the Vanderbilt Beach, and also vice president of the Vanderbilt Beach and Bay Association, and four additional speakers with her who will present their briefing in regards to their comments on the study and the proposal on the overlay. And then we have various property owners involved that would also want to make comments. And then we get into the -- basically I have a list of public speakers. Right now, public speakers involve -- I have 17 public speakers, counting all the -- from Ms. Ketcham all the way through. So that's where we are right now. CHAIRMAN HENNING: I just want to give equal time to -- I know we have representation. I think we need to give equal time to the representation and then equal time to -- MR. SCHMITT: That would be my proposal -- CHAIRMAN HENNING: -- citizens. MR. SCHMITT: -- that the community be given equal time to either comment or contradict or whatever in regards to the Page 8 December 10, 2003 presentation made by the staff. CHAIRMAN HENNING: first? MR. SCHMITT: Yes. CHAIRMAN HENNING: after that. MR. SCHMITT: Yes. CHAIRMAN HENNING: establish the time. MR. SCHMITT: Okay. You're going to give your report And then they have time for rebuttal Okay. So I think we need to just CHAIRMAN HENNING: Commissioner Halas? COMMISSIONER HALAS: Why don't we go on the basis of what the time frame is for staff to give their report, and if the citizens need the same time, then we give them the equal amount of time that it takes for the staff to give their presentation. I only think that's fair. CHAIRMAN HENNING: Okay. COMMISSIONER HALAS: And if they don't need the time, then of course they're not going to take it up just to -- CHAIRMAN HENNING: So what you're saying is, I mean, you got three different -- you got Beach and Bay and then the Vanderbilt area, and then you got the owner. You're saying whatever time we give staff, you give them equal time? COMMISSIONER HALAS: Exactly. CHAIRMAN HENNING: Okay. COMMISSIONER HALAS: I think it's only fair. CHAIRMAN HENNING: objections to that? (No response.) CHAIRMAN HENNING: All right. Anybody have any All right, please continue. MR. SCHMITT: Yes, okay. I'd like to introduce Mr. Don Schneider. Don is the principal planner and was responsible for primarily the project manager for the overlay. So Don, if you could Page 9 December 10, 2003 start with your briefing. MR. SCHNEIDER: Yes. Thank you, Mr. Chairman, Commissioners, Donald Schneider, again with Community Development and Environmental Services. It's my pleasure to be here this evening and present to you the Vanderbilt Beach overlay proposal. For the benefit of those who possibly are not familiar with the Gulfshore Drive, and as a refresher for the forthcoming deliberations, I'd like to take all of you on a short trip down Gulfshore Drive. The ensuing video views of the lagoon side and the Gulf side from an eye level as one proceeds along Gulfshore Drive. CHAIRMAN HENNING: Are we walking or driving? MR. SCHNEIDER: Actually, we're driving. I'm starting out on the lagoon side. This is the C-3 district, commercial district that exists on the southeastern comer of the subject area. As we travel along here, you can notice it's an older established commercial area. And at this point we mm to RT zoning. We now have RT zoning with the condos, the Vanderbilt Beach motel, and we continue through this area until we can get to our single-family resident area. There's interesting things that we find in this video. I'd like to point out, one is that there is open space existing now. Some of these buildings do have considerable mass that sits up close to the road, and I think that gives one the concept or the impression of some canyonization. However, from studying this, I don't see that the height necessarily addresses the canyonization so much as the mass of the building close to the road, which I think this video tends to allude to us. We continue on through the areas, observing the buildings, and of course we're traveling along the road. The camera is approximately at eye level if one were walking the street. I felt this was advantageous, particularly for some of the folks that perhaps Page 10 December 10, 2003 were with us tonight that hadn't seen this area yet. Again, this is all RT zoning. This is LaPlaya. I'm certain you're all familiar with LaPlaya. And again, I feel like the mass of this building close to the road is one indication of canyonization that alludes to that feeling. Directly the other side of LaPlaya we go into the single-family residence area. Obviously spatial changes occur. Height certainly drops. This area, according to our Growth Management Plan, would remain this way. There's essentially -- under the current Growth Management, there's no opportunity to redevelopment this in any kind of high-rises. There's approximately 1,000 feet linearly of single-family residents in this area, RSF-3 zoning district. Some of the interesting aspects of this whole project is that the RT zoning is segmented. It's not contiguous, which complicates some of the issue, essentially. We're still traveling north on Gulfshore Drive. Now we're entering the RT zone again. This is the second large segment of RT zoning. And we have numerous parking garages with tennis courts on the top of them. As we proceed through here, you can see the various different styles of the building, which I think help create the sense of place, if you wish. This is the Bellagio. I know you all are familiar with that particular structure. Okay. And now we're actually in the RMF-16 district, which is on the northwest -- or excuse me, the northeast comer of the whole Gulfshore Drive area. Now RMF-16 proceeds right up to Bluebill Avenue. This is the Monte Carlo Club. It sits back. It's a massive building, but it does sit back quite a ways which doesn't necessarily allude to the canyonization feeling. Page 11 December 10, 2003 Again, here we have another parking garage with tennis court. And those structures, I didn't consider in my height relationships that I'll show you later. The parking garages I felt were not habitable and at that point didn't constitute buildings that we should consider in our report. Now we're towards the end of-- the north end of Gulfshore Drive. We're looking at -- it was the Vanderbilt Yacht and Racket Club and the Vanderbilt Landings. Now you can see The Dunes in the background. We cross Bluebill Avenue and turn. We have the Vanderbilt Towers here, .which is an extension of the RMF-16 district to the north, and we also have the Delnor-Wiggins State Recreational Area. I'm now looking due west, and the first item that comes to view is the Vanderbilt Inn property. For a short time it's well camouflaged by the vegetation and the buffering from Gulfshore Drive. And we are now headed due south looking west, or towards the Gulf. Now, the tall buildings in the background now are in the RMF-16 district. And this is Gulfside, one and two. Again, it's interesting to see the vegetation, the buffering. That wasn't an intended ad for Rooms To Go. This is all the RMF-16 district. The height in that district currently is 75 feet, which does make all these buildings nonconforming, to a degree. As we proceed south, we will come to the Vanderbilt Shores. And The Mansions is the first RT zoning that we will hit, and it's a segment of RT zoning. There the three-story building is -- geez, now I forgot which one it was. COMMISSIONER HALAS: Vanderbilt Club. MR. SCHNEIDER: Vanderbilt Club, thank you. Again, this is all RT zoning proceeding south. There is quite a bit of separation between the buildings. Now we're into the RSF-3 district again. This is where we Page 12 December 10, 2003 switch to the single-family district again. Another segment approximately 11 to 1,200 feet long that separates the RT zones. Commissioner Halas, you'll like a couple of those large homes that are there. Nice open lot. It's actually a wonderful area. You can see lots of light and air movement through here. Some of the elements we'd like to preserve. Now, directly to the south end of this single-family zone, we pick up again with the RT zoning, and this is LaPlaya Seaside. Its mass is quite large, but it's set back at this point so it doesn't quite offer the canyonization feeling. However, the tower does somewhat. It's rather large. It didn't show up in the video. Too tall. We're going to continue south here, looking -- this is all RT zoning now. Again, you can see the separation in the buildings. The preponderance of the lots down through here are 100-foot wide lots that are platted. And under the current RT zoning, I think it would be impossible for buildings to reach the ultimate 100-foot height today. But we wanted to share this video with you to start this process so that one would have a good feeling of the area as we begin to make our deliberations. Again, I find it interesting with the different building styles, colors and all, that help lend to that sense of place that our residents enjoy. Vanderbilt Beach Motel. We're nearing the southern end and the termination of my video presentation. At the very end is the Beachmoor Condo. And then we're down to Vanderbilt Beach Drive and the beach access -- Vanderbilt Beach Road, excuse me. Okay. Now, I'll draw your attention to my power point presentation. I think. Okay. I'd like to take you forward in my study, which was the development of proposed overlay, of course, for Vanderbilt Beach residential zoning district. Again, I'd like to point out that the RT zoning districts are segmented. There's three of them. We don't have many RT zoning Page 13 December 10, 2003 segments at all in Collier County. As a matter of fact, there's six total. There's one up at Palm River along Immokalee Road, and there's two other small segments down in Port of the Islands. So most of the RT zoning for the county is sitting right here before us. The next slide alludes to the various zoning districts that are currently present in the Vanderbilt Beach area. From the north we have agriculture and public use, the residential multi-family, the residential single-family, the residential tourist and the C-3 commercial. Now, the first government action that took place to initiate this whole process was January 9th, 2002, when this body voted into and established the interim development controls of the moratorium. And it was established from January 9th of 2002 to terminate on January 9th of 2003. On April 25, 2002, we had a community visioning meeting which we held at Saint John the Evangelist Catholic Church. In that meeting we had approximately 250 or more in attendance, we had 15 tables set up, each with a facilitator from staff. And we asked the individuals to express their concerns regarding the visioning question that we offered, which was in this study area: What are your specific concerns about development and its impacts? Each table then selected the most important ideas from that table, and then they took those up front and a representative from each table presented it to the group and then the group voted, ranking these from one to five on what they felt were the most important items. The next slide gives you the results of that voting. We ended up with eight categories of concerns voiced by the participants. It went from zoning, height and setbacks, land development codes, moratorium, traffic and roads, beach clubs, beach access and concurrency. Of the top three concerns, interestingly, the number one was Page 14 December 10, 2003 preserve public vistas and limit redevelopment, 170 votes. Number two was protect the rights of business owners by maintaining current zoning, 117 votes. The third one was extend moratorium for additional year and include all properties along Gulfshore Drive, that garnered 111 votes. In April, staff began the study of these particular major topics: Density, building heights, setbacks, lot coverage, view planes and air movement, traffic, coastal construction setback lines, hurricane evacuation issues, and infrastructure capacities. And I do have staff members here that can talk to some of these issues as we go forward. I would like to point out that traffic -- Gulfshore Drive currently handles a LOS, an L-O-S or level of service of B, with a minimum established to it of D. And Gulfshore Drive does have a 70-foot wide right-of-way that is platted. Significant dates: The second government action was August 16th. That's when we put into the system the draft amendment to actually extend the moratorium. We knew at that time that in order to involve the stakeholders and to have ample time for the stakeholders to review a proposed overlay and also to be having those reviews take place, such as we are today, when the preponderance of the residents are here, when -- essentially when it's in season and high season. So that was some of the reasons that we requested an extension of the moratorium, at that time. On January 8th, this body voted to adopt the amendment to extend the moratorium to January 31 st of 2004, which we felt at that time would give ample time to come to a conclusion. Again, on April 30th we had a Town Hall meeting where Commissioner Halas presented the -- I guess we'd call it the state of the union for District 2. Stakeholder meetings that occurred: The first one was on January 29th of 2003. We averaged somewhere in the neighborhood of 15 to 20 people, all representatives of the homeowners and the Page 15 December 10, 2003 business development community. We got together, looked at proposals that staff had put together and tried to come to a general consensus. So far we've had five stakeholders meetings, the last which was November 12th, just prior to the Planning Commission's meeting on the 13th. Other significant dates: The fourth governmental action was November 6th. The Environmental Advisory Council -- excuse me, it's November 5th. The Environmental Advisory Council met and they voted 6-0 to adopt the homeowners' overlay proposals, which I'm certain you're aware of, the homeowners have, of course, developed their own proposal. The fifth action was the Collier County Planning Commission on the November the 13th. They had voted 8-0 to adopt the homeowners' overlay proposal. Moving forward, I'd like to share now with you more about the particular study that staff has done, looking at building heights, density, light and air movements. It began in August of 2002. In our study, we included the entire area. I looked at all the buildings from -- from the Ritz-Carlton clear up to The Dunes to make sure that we knew what was in the area regionally. It's also interesting to observe the population that exists along Gulfshore Drive. It's essentially one percent of the total of Collier County. However, I'd like to point out that it's estimated that by 2050, approximately 80 percent of the world's population will live in a coastal area. So we're a target area, no doubt. One of the things that we look at is the actual versus zoned height. I know you folks have certainly been subject to these issues now. Is what we call zoned height, that actually starts at the FEMA flood elevation. In the case of the RT zone right now, it's 100 feet above FEMA flood elevation to a midpoint of the roof, which means the actual building height, as illustrated in this example, could be considerably higher. Page 16 December 10, 2003 Looking backward in time, in October of 1974 you found these zoning districts that existed along Gulfshore Drive. The RM-2, which was actually combined from the old MF-4 and MF-5, which is now the RMF-16, it had a height that went to 200 feet allowed, zoned height again. And the RT at that time was 75 feet. In August, 2002 when we initiated this particular study, our RT zone is 100 feet in height and the RMF-16 is 75. Changes occurred essentially with the Ordinance 91-02 when our LDC was adopted in 1991. In our study, we had 59 properties surveyed where we looked at building height, number of stories, and I also took pictures of the buildings. I used a method called the Merit Hypsometer or the Biltmore stick to come up with our building heights. It was a quick and easy and relatively accurate process. We needed to find the ranges that these buildings were in. I didn't absolutely need to know to the exact inch how high they were. I would like to run through some of the more prominent buildings. Here we offer you the Beachmoor. These are all RT zoning. Vanderbilt Beach, 60 feet. Vanderbilt Beach and Harbor Club. And these heights reflect what we surveyed as we went down the street using our process. Again, I was most particularly interested in being able to establish these buildings in ranges of heights. Sunset Bay Condo again, an RT zone. Sea Chase, RT zone. Manatee Resort, Casa Grande, Villas of Vanderbilt Beach, Le Dauphin, LaPlaya. LaPlaya I measured at 125 feet, and it was essentially so high it went off the range that I could provide. The building permit that I was able to dredge up offered that it was built at 151 feet. Vanderbilt Bay Condo and Bay Shores of Vanderbilt. Again, all these particular condos are in the RT zone. Gulfco (phonetic), Bellagio, The Mansions, and then the Vanderbilt Shores, which starts the RMF- 16. Vanderbilt Shores, Vanderbilt Gulf Side. Again, I had Page 17 December 10, 2003 measured 128 feet and the building permit on this particular one showed 160. The next buildings are all in the RMF-16. And then let's look at the ranges. This is all for the residential tourist RT zoning district height ranges. We have 38 percent of the buildings are 80 feet or higher. And again, I'd like to stress that I only considered the habitable buildings, no parking or tennis courts. The residential multi-family districts, we have 66 percent of the buildings are 100 feet or higher. Looking at the RT zoning district only east side, I have a mean. In this case it's the arithmetic mean or average, and the median, which is the middle value in the distribution. The middle value in this case is 60 feet and the median is 59.07. Again, this is east side or the lagoon side of Gulfshore Drive for the range of the building heights. The west side, the Gulf side, which of course would command the best views, we have a mean of 67.59 feet and a median of 80 feet. Again, I'm looking at habitable buildings, according to my studies. RT zoning districts combined. Combined both the east side and the west side. The mean is 64.14 feet and the median is 62 feet. Average number of stories are six. The next thing I looked at was view plane obstruction, which I think alludes to some of this canyonization feeling that we get. And through that study, I developed this particular graphic which leaves me with approximately 71 percent across the board through the RT and the RMF-16 districts. If you're walking at eye level, much like we were with the video, about 70 percent or a little more of your view is blocked by the building structure. That does not include the landscaping, so just buildings alone offer that kind of obstruction. Let's review the overlay criteria, proposed criteria for the residential tourist district. One of the things I'd like to point out in my study is that my results did not find a trigger that would indicate Page 18 December 10, 2003 that the RT zoning was faulty or inappropriate at this time. And the results also did not find a rational nexus to facilitate a reduction in height from even a health and welfare issue. The next slides, I've given you copies of these that we can mark up as we go along, if you wish, from my presentation, which give you the existing RT zoning criteria, the staff proposed criteria and the proposal that was sent forth by the planning commission. There's three sides here that go over the various aspects of it, showing the differences. Some of the more obvious ones are, of course, the height-- MR. SCHMITT: Don, you want to make sure -- why don't we go over each one of these a bit where the highlighted letters are so that the Board understands the differences. MR. SCHNEIDER: All right. Looking at the highlighted course under the center of their townhouses subject to the section, the staff proposed criteria does include those. However, if you notice on the CCPC proposed, they eliminated those. Moving down to conditional uses, we had in the staff proposal eliminated the 125-foot conditional use that would be permitted in the current RT zoning. And we -- however, we kept the private clubs and yacht clubs. Under the conditional uses by the Planning Commission, what they offered, they took out both private clubs, yacht clubs, and again they also opted to take out the conditional uses permitted to 125 feet. Minimum lot area, we kept it at one acre, as is in current RT zoning. The CCPC proposal takes it to one contiguous acre. The next page, existing zoning criteria, the minimum yard requirements. As you're all aware of, the current RT zoning does have what's so properly called the wedding cake setback design, which takes you to one half the building height to each wing or wall. We've opted to eliminate that in keeping with the rest of the zoning that occurs now in Collier County. So we have front at one half the Page 19 December 10, 2003 building height period with a minimum of 30 feet. Side at one half the building height at a minimum of 15 feet. And rear one half the building height with a minimum of 30 feet. The Planning Commission opted also to keep that same regime. Building height, again the RT allows the 125 feet conditional use currently. We kept it at 100 feet and asked in the staff proposal for no variances permitted. The CCPC proposal took it to 75 feet with no variances permitted. The third page of this comparison, we've been redundant with our lot area here. Again, the major issue is the one contiguous acre. The lot area coverage, interestingly, currently in the RT zone residential is 40 percent coverage. In other words, the building that exists on the lot, the footprint can be a maximum of 40 percent of the existing lot, which offers for commercial and industrial 70 percent. Under the staff proposal, the lot area coverage would remain the same. For residential it would be 40 percent, for commercial, 70 percent. In the CCPC proposal that they presented to you, the residential would drop to 25 percent, so the footprint of the building could only be 25 percent of the existing lot. In transient accommodations, or hotel/motel, that they've opted for is 35 percent coverage. So it's dropped that considerably. Maximum density, in the existing RT zoning district we have 26 units per acre for hotel/motel and 16 units per acre for residential. Staff proposal maintained the density the same. However, the CCPC proposal dropped it to a maximum of 16 units for hotel/motel, or in their instance they like to call it transient accommodations. And for the multi-family, it went to four units per acre. Significant reduction in the density. Now I'd like to share with you some graphic analysis of the buildings and setbacks that are proposed. This is a quick illustration of the base flood elevations that exist along Gulfshore Drive and Page 20 December 10, 2003 particularly on the Gulf side. The green area, as is noted in this graphic, is the one 15.3 base flood elevation, 15.3 feet above sea level. That's where the first habitable floor must start in the building. So all along Gulfshore Drive, our first habitable floor has got to occur at or above that elevation to be in compliance. The next slide I'd like to share with you is a building envelope, and this is a possibility. If you take the maximum current RT zoning criteria and develop a building envelope that absolutely maximizes that, this is what it would look like on a 150 by 200-foot lot. The building with the appurtenances could go to a potential top of 160 feet. You have the conditional use in there, a maximum of 100, that takes it to 125 feet. And again, you'll notice that it says the first habitable finished floor starts at the 15.3 feet. That's a massive structure, again, and it shows the wedding cake type setbacks. The next slide is staff's proposal with the setbacks that we propose. Rather subtle changes, but they make enormous changes in the building envelope. If you notice, the setbacks go to 50 feet, the building shrinks considerably and the height comes down. It offers much more in the form of light and air movements between the buildings. The next illustration, we've combined some of these, where we have two of the current massing buildings with one of the new proposed ones in between. Again, these are maximized proposals under current RT zoning and the staff's proposed zoning criteria. The next slide shows in a frontal view how these buildings would look, and you can see that with the 50 feet available either side of staff's proposal much more light and air movements, much less massing to the buildings could be possible. This next graphic illustrates the same type of thing, showing you the various distances that would have to occur. I go into other graphics here that illustrate on a 100-foot wide lot, which we have many of, with the current RT zoning criteria and Page 21 December 10, 2003 the massive building that is possible, the ultimate envelope, 40 percent of the view plane is obstructed across that lot. And if we look at staffs proposal, we have actually three scenarios that could occur. You could have a building that would be low, not very high but as wide as possible. In this case your building could have a maximum width of 70 feet and we would -- we would have a 21 percent view plane obstruction. If you wanted a little more height, you could have a building that was 50-foot wide and went to 50-foot high; 25 percent view plane obstruction. And if height is all you wanted, you could have a 80-foot high maximum structure, but it would only be 20-foot wide. And that's not necessarily marketable in this instance. But that's what are possible in the staffs proposal. Looking at a 200-foot wide lot, considering that someone might be able to amass two lots together, this illustration would be, under the current RT zoning criteria, a maximum envelope with a 71 percent view plane obstruction. The next one would be a 200-foot lot with the staffs proposal, which would offer 58 percent view plane obstruction. Obviously those subtle changes did make an enormous difference in the building envelopes and the light and air movements. If we mass two current RT zoning buildings together on a 100-foot wide lot, you end up with a situation that looks like this with a 40 percent obstruction. Our proposal, with two buildings under the new proposed ordinance would offer 21 percent view plane obstruction. The next slides, I like to give desirable and undesirable situations as far as how to place structures. I believe that we should try to work towards this type of thing in our ordinances and not be so Draconian and just tell people you can't do this. Let's show them some things that we think are desirable. So these slides allude to that. Sky exposure is an important issue here, I believe. And I'm Page 22 December 10, 2003 illustrating in these slides how one can change architecture to actually improve sky exposure or limit it. I'd like to thank our graphics group for helping me with a lot of these graphics. Tim Billings, the graphic supervisor, along with Mariam Ocheltree, Jennifer Moser, Kevin Gotfredson and Joe Chan. Thank you very much for helping us with these. I'd like to now take you through a fly-through. Kevin and Jennifer helped me put this together. This is a -- the purple buildings are the RT zoning buildings. They have been developed to the actual footprint that we found on the aerial photography, and the height has been established at the heights that I was able to determine from my survey. It gives you an idea of the massing of the buildings that exist now, the openness of the area, surprisingly. I have two different fly-throughs here for you, different angles. Again, the single-family area in the center, according to our Growth Management Plan, could never be developed into high-rises. That's going to remain. So the RT zone in this instance will remain segmented, and there simply is not much available today at all for any rebuild potential immediately. There's no open lots that could afford one, a high-rise, today. In summary, over the past two years the planning staff has diligently worked to respond to the direction given by the Board of County Commissioners, respond to concerns voiced by the citizens, facilitate the stakeholder group meetings, craft an overlay zoning ordinance consistent with the Growth Management Plan, craft an overlay zoning ordinance that would address the perceived conditions with respect to Florida statutes and Collier County Land Development Code. Again, over the past two years we have considered the fiscal impacts on Collier County taxpayers of the proposed overlay zoning ordinance, we have applied sound professional planning practices Page 23 December 10, 2003 and principles, and we want to respond in a positive manner to the stakeholders, while balancing the rights of all involved within the context of potential alternatives which can enhance both the quality of life and the ability to perpetuate the sense of place. We responded to the Board direction in being sensitive to scale. We cataloged all structures regionally, looked at the scale and mass of them. Compatibility, we studied the types of structures and ranges of heights regionally. And to preserve the sense of place. Sense of place is an interesting thing. I think it may be defined as an enigma or product of the physical attributes of an area, as well as the combined influence of the moras of the core culture. The sense of place is dynamic. As the current culture evolves and the core residents expire, the sense of place will migrate, predictably, into a more self-centered status. Future cultures will tend to be less social. A product of our rapidly developing technology of future cultures will trend towards cocooning, where they can synthetically produce the environment of choice in their own space. Resulting effects will be the demand for future planners to provide greater densities of habitable space and subsequent increases in structure heights to accommodate the people's march to the sea-- as I mentioned to you, the 80 percent that eventually will be near the coast. We look to improve and protect view corridors, and we feel that our redesign of the setbacks has accommodated that, along with allow reasonable light and air movements. Again, the setbacks I think accommodate that. Limit the creation of a canyon-like effect on each side of the narrow Gulfshore Drive I believe has been a result -- as a result of our setback changes. The next slides show you potential building scenarios. The first one on the left is the staff proposal, which maintains 100 feet with the 16 units per acre for multi-family and 26 per acre for hotel/motel, Page 24 December 10, 2003 which would provide, of course, the 40 percent lot area coverage. The one on the right illustrates how that same structure would look under the Planning Commission's proposal, which brings the height down to 75 feet and the density to four units per acre for multi-family and 16, of course, for the hotel/motel. And the 25 percent lot area coverage, in my opinion, is very problematic, both the density and the lot area coverage. The next slide is from essentially what our County Attorney, David Weigel, offered on December 1st, 2003 comments and opinion, where he says there's a good argument that a reduction in maximum building height from 100 feet to 75 feet would not be an inordinate burden upon a property in the Vanderbilt Beach resort tourist zoning district. Therefore, staff recognizes and acknowledges that there are alternative defensible options to a maximum building height of 100 feet in the new Vanderbilt Beach resort tourist overlay. In conclusion, I have a chart which I've also provided additional copies to you, if you'd like to mark them up, that give a recapitulation of these various elements between staff proposal and a proposal by the CCPC or the Vanderbilt Beach folks and the proposal for potential consideration. At this point, I would like to call up the gentleman from Fishkind and Associates, Mr. Ron Schwartz, to discuss with you the economic analysis, or fiscal impacts. Ron? COMMISSIONER HALAS: Can I ask just one question at this time? MR. SCHNEIDER: Yes, sir. COMMISSIONER HALAS: Is staff still sticking with the 100 feet, or has staff dropped down to 75 feet? MR. SCHMITT: The proposal on the table is 100 feet. That's the way it's written and presented. What has just been briefed, Commissioner Halas, is that the alternative that staff believes, based on the opinion rendered by the County Attorney, would be a 75-foot Page 25 December 10, 2003 height limitation. So our report still shows 100, but as just presented, based on the input that we received late last week from the County Attorney, that we, we would propose to the Board -- and I would say that because it's a policy decision, our study pretty well validates that 100-foot is -- would be certainly defensible from a planning perspective, but given the input from the County Attorney, we are offering an alternative for you to consider at 75 feet. COMMISSIONER HALAS: Okay. MR. SCHMITT: At the densities of 16 and 26. I think the thing that's important to recognize, that one -- that one slide that showed the Planning Commission at 75 feet, but four units an acre, conceivably the dwelling -- the density at four dwelling units an acre, you would never even get near 75-foot. Four units an acre was the limiting factor. And that building turned out to be a habitable space of no more than about 40 feet when you look at the zoning height. COMMISSIONER COLETTA: If I may ask a question? MR. SCHMITT: Yes, sir. COMMISSIONER COLETTA: If staff proposal was the proposal that was accepted, how many buildings would be capable -- be built to 100 feet with the setbacks and everything? Is it more than one? MR. SCHMITT: And that's the other very important aspect of this. As you saw, on a 100-foot lot, if you were to maintain-- and you would be required to meet the required setbacks, the practicality of ever reaching a 100-foot building is somewhat questionable. As we said, you would -- on a 100-foot lot, the one slide that we showed, meeting the required setbacks, you'd have a 25-foot wide building, and the best you could even do is 80 feet, when you talk about habitable space. And it just is -- engineering-wise would be impractical both from a engineering perspective and a marketing perspective, you would -- what we're doing is using setback to Page 26 December 10, 2003 control height. COMMISSIONER COLETTA: I understand what the proposal is. What I'm curious is, what would be realistic as far as 100-foot buildings go? How many of them would there be? I mean, no one's going to build a 20 by 20 building -- MR. SCHMITT: Well, that would actually -- COMMISSIONER COLETTA: -- 100 foot high. MR. SCHMITT: -- be a 20-foot wide, it might be 80 or 90-foot in depth, that, that building. That was 20-foot wide. We were showing a view from the street. We weren't really -- we didn't show a 3-D. But it would be only -- it would by 20, maybe 20 by 80 by maybe 80. But how many would be built? I think, yeah, we will cover that in the economic analysis. I think we'll cover some of that. So let's cover that. Ron? MR. SCHWARTZ: As Don mentioned, my name is Ron Schwartz. I work at Fishkind and Associates. A little bit of background on myself. I studied real estate and finance in business school and since I've been pretty much involved with all kinds of financial, fiscal impact analysis. I work with both developers and communities and pretty much whoever wants to see the analysis that we have to do. Don't tailor my tools for either one. It's pretty much one way goes. Let me tell you what I want to get into today. I want to give you a little bit of background on the company and then I want to get into a background on the tool that we use to provide the analysis that we -- that we did. First of all, the background of the company. It's an economic consulting firm, but we've been providing economic real estate and finance analysis since 1987. And again, as I mentioned, we work with both the public sector and the private sector and we feel -- we feel confident in that when we work with both sides, we have the ability to keep our analysis in the middle of the road and the way we Page 27 December 10, 2003 feel comfortable with instead of getting steered in one direction or another. Some background on the model itself. The impetus behind it was in the -- was in the Governor's Growth Management Study Commission. He wants to have an integration of fiscal impact and land use decision-making, and he wanted to have the model be comprehensive, user friendly, get it out there. And at this point it was already past that. Everybody's future land use was going to be fiscally responsible but they hadn't had a tool to go about analyzing whether that was the case of not. So this was how we got started with developing the tool. Initially we were funded by the DCA, Florida DCA, to get started on the first version of the model. Since then we've gone through -- we've brought on additional communities, and DCA's still -- they're still behind us with the model and they're -- we're in the process of getting additional funding for a new version above and beyond what we currently have. And we've also been told intentions from DCA that they plan on making it mandatory or suggesting the use for the model for all land uses in the future. Let me tell you something about what this model is not. I'm not going to stand here and say fiscal impact is the whole picture, because it's not. There's limitations to any method of analysis. I would say this is just a cartoon. This isn't something that is made to scale. But it's just a piece of the pie. But we feel it's a pretty important piece of the pie that can't be left out of any analysis. Now, here are some of the capabilities that you'll find. Had to make it in a one-model structure capable of macro analysis and microanalysis. In this situation where it's a microanalysis, we're looking at specific -- we go in and put in units that would have been there, take out units that -- depending on the scenario that's given. It's location sensitive. And we analyze the capital costs and operating costs and we present out the operating costs in the future Page 28 December 10, 2003 and we use the capital costs when we do a impact fee analysis. Same type of study. It gets a little bit away from the deviation. I'll get into that in a minute. We analyze the level of service and backlog, and we include short-run and long-run term impacts. So we didn't just take a snapshot and say this was going to happen in a year, five years. I mean, this is a 20 years analysis. It's easy to update reasonable cost. It's one model. This was part of when we were dealing with DCA that they wanted to have a tool that was going to be able to use across the board (sic). And that's what gives a little bit of-- what gives a lot of credibility into this analysis, is that this isn't a model or a tool that's built specifically for a situation, it's a tool that can be broadly put (sic) apart into small areas, big areas, fast growing areas. We calibrate the model with specific information, but it's a tool that's used across the board for pretty much anywhere within the State of Florida. To define what it is, it's a fiscal impact analysis model. The model estimates the cost and revenues associated with land use decisions. The model projects future budget balances, so we get away from the situation where we're projecting out specifically police, fire, any line item of accounts. Because as the years go by the balance -- the budget has to balance. And that's what we project out, we don't project out specifically each area, because that's going to change as time goes. It's like anybody's personal bank account, you know, you have certain situations that are in dire need that you have to take care of, so money gets shifted around. So it's pretty consistent with what's going to happen in the future without nitpicking on each specific account. Pretty much it's a big Excel workbook. It's calibrated with the local community data, as I mentioned. I'll get into where we get that from in a minute. It's designed to do -- it calculates the costs and revenues Page 29 December 10, 2003 resulting from the land uses. Capital costs and operating costs, as I mentioned, short-run, long-term effects. We take the effects of the local community's inflation. And we do that by taking a budget history over the past 10 years and seeing what are the historical inflation amounts on a per capita level going into the future. So it's consistent with the broad tool that can be used anywhere, but it's very detailed specifically for the community itself. And it analyzes -- there's a few other uses for the model: Economic feasibility, incentive programs. It's just -- it's got a lot of uses and we don't change it for each one. The methodology behind it: We use a per capita approach for the operating budget. Like I said, we project out an operating budget into the future balanced budget, and we do that by figuring out the full-time equivalent residents, employees, tourists, whatever it may be. So we have Collier County specific information, we figure out exactly how many residents, how many full-time equivalent people are going to be within this area at any given time. And then we do that by saying, okay, what are the services going to be provided to the full-time equivalent residents, employees, et cetera. The capital costs, we deviate from that a little bit. We figure out, we get a good sense of what each community actually spends on a capital cost basis, what the fire trucks cost, what the police station costs, and then we project out the level of service that they already have into the future. So on the operating side of it, it's a per capita methodology. On the capital side of it, we use specific county information projected into the future, considering whatever the divisor will be in the equation, whether it's employees are going to generate that cost or not. The data: Like I mentioned this is a tool that we use across the board all over Florida. And there's specific information that we can put into it. It's easy to update it. We have -- every county is Page 30 December 10, 2003 responsible for giving the Division of Banking charting accounts and providing that budget at year end. So we use all items in account except for capital and operating. Capital -- and capital we take out some of the capital funds within, because we project that out ourselves. Again, we include all types of the funds within their general special revenue, debt service, et cetera. The tourism and employment data: Fishkind and Associates projects that out and we have that easily available on our website. LS calls for service, lands use data, that's all provided by the local county. And as I mentioned, this is -- this makes it very easy to update and very easy for people to see and make sure that it's -- it's calibrated with the right information, because it's easy to check and cross-reference with the available information that's out there to the public. The status of this project: We gave a final report from our initial DCA funding on -- in December of '02. And we had our first annual conference on May 19th after that. The user group includes over 25 communities at this point. As you can see, counties from Bay County to Sumter County, cities from Bonita Springs to Sunrise. We don't change the model. I'm really honing on this point but it's a big -- it's a big issue that we don't change the model going across, we calibrate the information within it. It's sort of like a calculator; make sure you got the right numbers in there and let the calculator do the work. Same situation with this, we're applying models to the calculator. And then we're expecting a DCA follow-on contract to get to the next version, which will be Version 5. Yes? THE COURT REPORTER: Would you please slow down? MR. SCHWARTZ: Okay. CHAIRMAN HENNING: And I'm not sure if we need that much detail in your-- Page 31 December 10, 2003 MR. SCHWARTZ: What I'm trying to do is I'm trying to give a background, a situation where -- CHAIRMAN HENNING: I think the Board recognizes that Fishkind and Associates is experts, so if we could get to the -- MR. SCHWARTZ: What I'm trying to do, and I spoke with this -- the people in the county is that it's difficult for somebody to say okay, this analysis was done and not know the tool. It gives people -- COMMISSIONER HALAS: I don't know what it's got to do with the capital and employment and tourism and all this other. We're basically talking about an overlay study here -- MR. SCHWARTZ: Right. COMMISSIONER HALAS: -- and how it affects the community. MR. SCHWARTZ: Okay, I apologize if I'm taking up too much time. I'm just trying to -- here we go to the next slide, so we're right on schedule. Let me get into the assignment that we were hired to do. We were hired to estimate the market impacts of this overlay, to calculate the physical (sic) impacts. In doing that, we use this tool, have an understanding of the tool going forward. We also were hired to estimate the impact on the owners of the properties. Here's the scenarios examined. Don went over these in great detail. Don't need to spend much time on them, they're pretty much -- everybody here is aware of them. The market impact: This gets onto the last question that you had previous to my coming up here. We feel that it's going to have a limited impact to the marketplace because we looked at 45 buildings that are currently out there, and we think that about six of them, in concert with the staff and ourselves, we think that about six of them would be realistic candidates to either redevelop or put up freestanding new structures, knock them down, whatever it may be. And we believe that because the other ones that we left out of the Page 32 December 10, 2003 analysis are either brand new or relatively new or too expensive or are currently fitting whatever need they're intended to do. COMMISSIONER HALAS: Well, then you're swaying the data then. MR. SCHWARTZ: Pardon me? COMMISSIONER HALAS: Aren't you loading the data then? MR. SCHWARTZ: Well, what we think this is is saying realistically how many -- how many -- how many properties are going to go .ahead in the next few years and implement a change and say they have the possibility of going up to 100. Now, it would be swaying the data by saying that all 45 buildings are going to be redeveloped and built to the maximum height, maximum density, everything of that nature. So that gets away from -- this is more realistic information what we think is going to be going forward. Okay. This is publicly available information. We got information from the property appraiser's office. And this states a pretty obvious fact that as the stories get higher in these properties, the value associated with the properties also go up. It's a pretty obvious fact that's out there. Six properties that we looked at are listed here. Let me go back. Sorry, I was trying to get to that. I apologize for that. It slipped. These are the six properties that we looked at. We felt that these are the properties that had the possibility of redeveloping within the near term future. Some of them I've heard quite a bit of-- actually, I've read quite a bit in the paper of some serious issues going on at this point. Vanderbilt Beach, Vanderbilt Inn/Motel, obviously there are situations where they feel like this might be something in the near term future. This is a summary of the market impacts. Basically this is a very simple calculation saying depending on the scenario given, the staff or the community and the stories and limitations, the end result is how many of the units would have resulted if it were to be Page 33 December 10, 2003 redeveloped, given the staff recommendation, or the community recommendation, which would probably stay where it is. And then we took the available property information that we find, the market values for the property, the property appraiser's data base and just said, how much is the value of these properties at that point. And as you can see, the impact, the loss of value associated with not building these future condos or whatever they may be down the line. And they're pretty substantial. Vanderbilt Inn, 40 million. Signature, 10 million. LaPlaya, 24 million. And another three. Vanderbilt Beach Motel, 40 million. Vanderbilt Club, 20 million. King's Crown, 20 million. This is just a summary of the impacts. The -- when you look at the six affected properties and the 13.4 acres that we're looking at. The chart shows the staff's suggestion, the community's suggestion and the Planning Commission alternative and the number of condos associated with each one and the aggregate values. And as you can see, there's a pretty substantial difference. And it's pretty -- you know, keeps in line with reasonable thinking, that if you can't build the higher level ones, those are the ones that are getting the biggest bang for the buck. So with lower level, with the height restrictions, it's a big loss in property values that are possible when you add that. Okay, now, finally we use this to get into the fiscal impacts. The tool that I described in such detail, and a little bit too much, in the past is what we used to get into the physical (sic) impacts. It's a difficult thing to say, you know, all the ripple effects associated with development we're trying to get our hands around it and say we took into account everything we possibly could. We are currently working with Collier County. We implemented the FIAM (phonetic) model for their land stewardship program, so it was a working model that they had out there. Again, we didn't just make it up for this analysis. Input proposed conditions into the Collier County FIAM. So we used this tool that we already Page 34 December 10, 2003 have and we already gave it to Collier County and we put in the scenarios: Extra units, taking out units, whatever it may be for the three scenarios. Obviously the condos, they create a significant net physcial (sic) benefit to the county, and that's been proven in the history, looking at past. Limiting that development will obviously make a net physical (sic) impact, significantly reduce it. Here is the -- here is the result of our analysis that we're looking at that. It's about $4 million in present value numbers, going with the alternative. The next slide -- I'm skipping to that one pretty quick because this next slide's a little bit easier to see the conclusions associated with it. The community alternative to this program produced -- provides that there's going to be a $4 million net physical (sic) impact, $62 million in foregoing profit to the landowners. The other scenario, the 75-foot scenario, has half the impact that the community plan has. So wrapping this all up, the point is, we use a general tool that's been out there, an unbiased tool, we put in here some, you know, publicly available information, and we came to reasonable conclusions in that there is property value that will not be -- there's properties that won't be built substan -- and reasonably projected out to provide a substantial net benefit to the county. And that's not going to be the case if there's a limit on it. So thanks for your time and -- COMMISSIONER HALAS: I've got a couple of questions. Could you go back to the slide there? You showed some examples of properties there. I believe there's one that was called King's Motel or something? What's the size property that's on? And you said there's a big impact on that. Are you looking that that could also maintain a 100-foot building? MR. SCHWARTZ: Let me get to the -- COMMISSIONER HALAS: On the size property that it is? Page 35 December 10, 2003 CHAIRMAN HENNING: Commissioner, I think we can ask our staff that. This gentleman is from out of town. MR. SCHWARTZ: That's right. And we worked in concert with staff. CHAIRMAN HENNING: Mr. Schneider, if you could stand up. Because I also have some similar questions, along with Commissioner Halas, along the same line. MR. SCHNEIDER: Yes. CHAIRMAN HENNING: The question is, from Commissioner Halas, on Crown, King Crown? COMMISSIONER HALAS: Yeah. CHAIRMAN HENNING: I think he's asking can a 100-foot building be built on that piece of property. MR. SCHNEIDER: At this particular instance, I'm not certain. It is one of the older properties, so I'm guessing that it's a smaller lot. I do have that information available to me, but not at hand right at the moment, so I would say -- COMMISSIONER HALAS: We have another instance of Signature Beach Club or something. I think that showed up on here. That's a small narrow property. Is he basing his financial findings of the impact to the county, as far as not developing it, is that again based on a 100-foot building or is that based on codes that you can build the building in within today? MR. SCHWARTZ: Excuse me, it's based on-- again, I'm from out of town but we -- COMMISSIONER HALAS: Uh -- MR. SCHWARTZ: I'm trying to answer your question -- COMMISSIONER HALAS: We'll find out the answer here. MR. SCHNEIDER: Commissioner Halas, if I could interject at this point. If you look in the material that's been provided to you, it's in the -- it's Page 127 in the agenda item, in the square on the right. CHAIRMAN HENNING: In the agenda item? Page 36 December 10, 2003 COMMISSIONER HALAS: Which agenda? MR. SCHMITT: That was an additional handout that we sent earlier in the week. MR. SCHNEIDER:. It's Page 127-D. In there we show these properties and we show the potential stories. COMMISSIONER HALAS: 127. MR. SCHMITT: This page here was a chart in the economic summary. COMMISSIONER HALAS: Doesn't state 127, so -- MR. SCHMITT: It's not in your-- MR. SCHNEIDER: Russell's numbers are 92-E, if that's any help. MR. WEBB: Commissioners, Russell Webb with Community Development and Environmental Services. This is the additional information that was provided. The handwritten number is 92-E and the agenda item, as Don pointed out, is 127 sub D. If you don't have this information, I have extra copies I can provide. CHAIRMAN HENNING: Yeah, it's right here. MR. SCHMITT: Commissioner, we have other copies, if you didn't bring that with you. COMMISSIONER FIALA: We'll share. COMMISSIONER HALAS: When you say 75-foot, what are you referring -- CHAIRMAN HENNING: Less than an acre. MR. SCHNEIDER: Pardon me, Commissioner Halas? COMMISSIONER HALAS: When you say 75-foot option, is that saying that they can build higher than 75? MR. SCHNEIDER: No, sir, I think what we're referring to there is what our County Attorney has alluded to, that 75 feet is a possible option. COMMISSIONER HALAS: That's what I'm -- okay, if it's 75-foot then, how high can they really build there? Page 37 December 10, 2003 MR. SCHNEIDER: 75 feet. That would be the zoned height. COMMISSIONER HALAS: No, no, no. The question is, if-- because of his fiscal impact statement, he stated that there would be an impact to the property owner in regards to how much -- how big that building would be on that piece of property. My question is, the size of that property today, what is the size -- how high can he build the building on that piece of property? You got a 75-foot option. That's what we're shooting for. What I'm asking is, what is the maximum height he can put on that building? MR. SCHNEIDER: Right. If we look at-- MR. SCHMITT: Commissioner, we did not-- COMMISSIONER HALAS: He based his figures on -- CHAIRMAN HENNING: One at a time, please. MR. SCHMITT: Based on the lot size, what you're asking is what size building would be built on there. We did not do that analysis, we basically-- COMMISSIONER HALAS: Well, then how can he come up with a statement saying this is an impact in regards to the fiscal impact to the community? MR. SCHMITT: What we did was the fiscal impact based on the zoning height. So that we could target at -- COMMISSIONER HALAS: But the problem is, how high of a building can you put on the property presently for the size? CHAIRMAN HENNING: Commissioner, Commissioner Halas MR. SCHMITT: We did not do that analysis. CHAIRMAN HENNING: Everybody. MR. SCHMITT: We did not do the analysis based on the current -- on what the physical size of the plant -- or the plot, we did not look at that. CHAIRMAN HENNING: Okay, I'm going to take the floor right now, and I think we have plenty of time to go over some of this Page 38 December 10, 2003 by the time that we have some public speakers. And what I'm seeing is King Crown, you have less than -- less than a half an acre, okay? The other one that I had was LaPlaya Seaside units. Now, Mr. Schneider, LaPlaya was just redeveloped, and are we talking about the tall building there? MR. SCHNEIDER: No. CHAIRMAN HENNING: Okay, we're talking about the -- MR. SCHNEIDER: The lower buildings that are to the north, yes, sir. COMMISSIONER HALAS: In other words, they would tear those down and build another tower? MR. SCHNEIDER: Yes. CHAIRMAN HENNING: Is there -- guessing, is there substantial land to do that-- MR. SCHNEIDER: There is. CHAIRMAN HENNING: MR. SCHNEIDER: Yes. CHAIRMAN HENNING: -- is there an acre there? Okay. The next question is, Vanderbilt Hotel, they have a site development plan that has been approved by the Board of Commissioners. So is it appropriate to put that into the analysis? MR. SCHNEIDER: At this point I think it could possibly be for some of their other properties that they have, not necessarily the one that's currently under consideration. CHAIRMAN HENNING: You'll have to help me with that statement you just made. MR. SCHNEIDER: It's my understanding they have properties on both sides of Gulfshore Drive, and some of the older ones that are not currently being subject to redevelopment could fall into this category. CHAIRMAN HENNING: So are we discounting the Vanderbilt Hotel that already has the site development plan, that portion of it? Page 39 December 10, 2003 MR. SCHNEIDER: I believe we are, yes, sir, I believe we are. CHAIRMAN HENNING: Then the Signature Properties, how old a property is that? MR. SCHNEIDER: I can't answer that. I do not know right at the moment. It's smaller. CHAIRMAN HENNING: You don't have to answer that. Can you put all that stuff together, some of Commissioner Halas's questions, myself?. And on the Signature Property, can you tell me how tall the building is? You don't have to answer his original question. MR. SCHMITT: Commissioner, that's in the chart. If you look in the chart where it says Signature's, .99 acres, stories eight, under the staff position, under the community is two, and 75 is two. Those are stories. And the next column shows number of units. And is the same with King's Crown. The maximum height we looked at, and that's included in this total analysis, is four stories. I don't have the height, as Commissioner Halas was asking. All we did was counted what we would say is habitable stories. And the maximum for King's Crown, given the size of the lot, regardless of whether or not it was zoned 100 feet, would be four stories, which would be no more than probably 45 foot zoned height. So we took into account the maximum stories and the maximum number of units. And the fiscal analysis was that -- was based on that. So it's not every property can go up to 100 feet. The criteria was established for the contractor. This was a very, shall I say, simple analysis. We did not go into great -- go into depth in regards to a complete fiscal anal -- fiscal analysis of the entire area. Based on your instructions six months ago during the LDC hearings, you asked us to do fiscal impact analysis. And as was pointed out, we now have this tool. And this was really our first application of this tool. But what we looked at were the options, then we looked at the number of stories that would possibly, estimated, Page 40 December 10, 2003 would fit on that piece of property, the number of units and then the value. So all we did is an approximation of what we thought would be the impact of lost development from a standpoint of cost, dollar cost. CHAIRMAN HENNING: And I understand what you're saying, but I think what Commissioner Halas is asking is, is it feasible with today's zoning, if we didn't have a moratorium, can it go up to 100 stories? Because you're basing it on what is -- what you can do and what is being proposed. MR. SCHMITT: That's correct. And the answer to your question, the analysis was done based on the current zoning and the proposed two options, 75-foot and 100-foot. Now, we did that at the current density of 16 units an acre. When we looked at King's Crown COMMISSIONER HALAS: Can you use that example, walk us through it? MR. SCHMITT: -- they said the best they could put on there were four stories. COMMISSIONER HALAS: Could you actually walk us through that so we, the Commissioners, get a full understanding, using King Crown as an example, so we all have -- we're all on the same page -- MR. SCHMITT: I will turn to Ron or Don. But basically what's shown there -- and Ron, could you walk them from King's Crown from the staff, community and 7S-foot option? MR. SCHWARTZ: Right. MR. SCHMITT: The size of the lot is about a half an acre and then the units. If you could walk through that. MR. SCHWARTZ: Right. The -- as you can see, the acres aren't changing, it is what it is. The stories associated with each scenario goes from four to one to one. And the units per. Now, this is another major point is that density has a huge Page 41 December 10, 2003 impact. It's not just stories. This gets into what he was talking about, about the -- you wouldn't build a building 80 feet and 20 feet. So the density here, that's the difference between the community and the staff-- the community and the 75-foot option is a major difference. And that's what -- basically saying that given the staff opportunity, they're going to build up to four stories. Given these other options, they're going to build to one story and then associated density. Is there -- CHAIRMAN HENNING: It's a lot clearer now, but -- MR. SCHWARTZ: King's-- CHAIRMAN HENNING: Excuse me, King's Crown, I think we need to know what's there today so we -- so we can figure out if it's going to be developed or not -- redeveloped. MR. SCHMITT: All we did here was basically look at properties that -- we said there were six properties that potentially could be developed between now and I believe 2015. Looked at those properties, looked at King's Crown and said based on the lot size, the maximum they could ever build physically on the property is four stories. Even though there may be two stories today, if they were to redevelop and maintain the setbacks and other criteria, the most -- regardless of whether there was 100-foot zoning, the best they could ever put there was four stories. And under the community proposal would be one story and under the 75-foot option, one story, and then the number of units associated. So it was a gross analysis. It wasn't a detailed analysis. All we're trying to do is in a ballpark create an understanding that there is a fiscal impact associated with the value of property that would not -- could not be developed. CHAIRMAN HENNING: Commissioner Halas? COMMISSIONER HALAS: I'm confused now again. We're looking at -- if we look down here at the 75-foot option for King's Crown, it's telling us that it would be one story at the 75-foot option Page 42 December 10, 2003 and that would be two units. And is that saying that we're going to lose or have an impact of $1,028,0007 MR. SCHWARTZ: It's saying that given the one stow and the two-unit density, that's going to be a property value of $1,028,000. That's the -- what you're looking at in the last column, the value, is saying that given the assumptions put in place for staff-- example, four stories, seven units, it's going to be a total value of the property, almost $5 million. It's not a loss of value, it's not a present value of impacts, it's just a specific value of the property. COMMISSIONER HALAS: Okay. Sounds good. MR. SCHWARTZ: I apologize if I-- CHAIRMAN HENNING: Commissioner Coletta? MR. SCHWARTZ: I think what you're asking, and I'm -- obviously I must have missed it somewhere -- is that you're asking what this final -- what the value is. Is it a decrease in value, is it a loss of some sort? And basically it's simple, saying four stories, seven units, there's a value associated with it. And it shows -- and you can get a scenario -- COMMISSIONER HALAS: And this value is based on what criteria? I mean, what are you basing this value on? MR. SCHWARTZ: On the property appraiser's status saying per -- that the existing properties in there, saying that per floor what the average value is, and then multiplying it by whatever we're saying, whatever the scenario, the assumptions are saying are going to be total. COMMISSIONER HALAS: But wouldn't the value of the property for each floor depend upon the cost of the condo to the person? You could have affordable housing, and that would be based on one cost, and then you'd have the elite housing and that would be based on something. So when you use figures here, are you using figures for, let's say, affordable housing cost of four stories, or are you using the figures for something that's very elite, or are you using Page 43 December 10, 2003 it for something middle of the road? MR. SCHWARTZ: We're using-- we have total property values of Vanderbilt Beach, and we're taking averages or medians of them and then we're using that and projecting out future. MR. SCHMITT: That was information from the property appraiser's database. COMMISSIONER COLETTA: If I may? CHAIRMAN HENNING: Commissioner Coletta. COMMISSIONER COLETTA: I'm sorry, and by now I should be picking this up, but obviously I'm not. King Crown -- maybe it's because I'm sitting next to Commissioner Halas here. King Crown again, if we got a 75-foot option, how can it only be one story? Would you explain that? MR. SCHWARTZ: Pardon me? I missed your question, I'm sorry. COMMISSIONER COLETTA: That's okay. King's Crown, underneath the 75-foot option, which I assume is a 75-foot height, it's showing number of stories one. Why would it only be one story if it's a 75-foot height option? CHAIRMAN HENNING: Mr. Schneider? MR. SCHNEIDER: Commissioner Coletta, Don Schneider for the record. The bottom -- the common denominator here is density per acre. If you take the acreage that's available and look at the density, what that yields, that's a product of the units. In other words, you could have a 75-foot building perhaps, but it would be like a silo, and maybe you'd have stacks. So it doesn't make marketable sense. COMMISSIONER HALAS: So what you should have put on there -- I guess what should have been presented here is 75-foot/four units per acre option? Is that what we're looking at? MR. SCHNEIDER: That's correct. COMMISSIONER HALAS: Okay. That's what we're miss -- Page 44 December 10, 2003 that was part of the -- what we were missing. MR. SCHNEIDER: That could be the part that you're missing here. COMMISSIONER HALAS: Slash. MR. SCHNEIDER: It's the whole scenario, the four units per acre is what govern it. COMMISSIONER HALAS: Okay. Well, that's what we were missing, I couldn't figure out. CHAIRMAN HENNING: Mr. Schneider? MR. SCHNEIDER: Yes, sir. CHAIRMAN HENNING: Commissioner Fiala would like to know, at four units per acre on option -- 75-foot option, is that four units per acre? MR. SCHNEIDER: No. COMMISSIONER HALAS: Oh, it's not? CHAIRMAN HENNING: That's that 16 units? MR. SCHNEIDER: The -- I'm sorry? It is at four units? I'm sorry, I stand corrected, it is at four units per acre. CHAIRMAN HENNING: All right, I missed it. I thought the option that you were going to give us on a previous -- when you were up here, Mr. Schneider, was 75-foot, 16 units per acre. MR. SCHMITT: We did not do that analysis at 75-foot, 16 units an acre. That was not part of the analysis when we -- on page -- on the first page of the memorandum, it shows you the options. It was -- and it was 75-foot at four units an acre. We did not do the 75-foot at 16 units an acre; that was not part of the analysis when this was presented to the Planning Commission. MR. SCHNEIDER: Right. I think the confusion comes in of the options that I presented from a zoning standpoint and the options that are here from a fiscal impact standpoint. CHAIRMAN HENNING: Correct. COMMISSIONER HALAS: That's correct. Page 45 December 10, 2003 MR. SCHNEIDER: That's where our confusion exists. CHAIRMAN HENNING: What did you present to us, was that 16 units -- MR. SCHNEIDER: Yes, it was. CHAIRMAN HENNING: -- as an option? Okay. MR. SCHNEIDER: Yes. CHAIRMAN HENNING: Gotcha. But we used four units per acre in this-- MR. SCHNEIDER: In this scenario we do, yes, sir. CHAIRMAN HENNING: Okay. MR. SCHMITT: IfI could offer, Commissioner, what we'll do when we come back for hearing two, we'll make this point clearer. We'll reevaluate the three options at the closing and make it -- make it a little bit clearer for you. CHAIRMAN HENNING: I get it now. MR. SCHMITT: Okay. CHAIRMAN HENNING: And I'm not sure if you have to spend a bunch of time. MR. SCHMITT: All right. CHAIRMAN HENNING: But for the public benefit, I think it would be a good exercise. MR. SCHMITT: We will do that for the second hearing. CHAIRMAN HENNING: Mr. Schneider, do you have any more presentations? MR. SCHNEIDER: No, sir, I do not. CHAIRMAN HENNING: break. (A short recess was taken.) CHAIRMAN HENNING: Miss Diane Ketcham. MS. KETCHAM: Yes? MR. SCHMITT: We're going to take a 1 O-minute Everybody take their seats, please. First public speaker, Diane Ketcham, and she Page 46 December 10, 2003 has members of her team with her, and I won't go through the names. She can go through them as they -- CHAIRMAN HENNING: Your team is ready? MR. SCHMITT: Because, you know, she's going to go through a presentation and then they're going to come up, so -- MS. KETCHAM: I'm sorry, Commissioner? CHAIRMAN HENNING: Your team is ready? MS. KETCHAM: My team is ready. It's tag team. I announce the next person, they announce the person after them. So I only have to memorize one name. Good evening, Commissioners, my name is Diane Ketcham. I am president of the Vanderbilt Beach and Bay Association. I've been asked by the community to present a little information about our proposal. I live in RT. I live in a building that's 54 feet high, not 72, as you saw on the slide before. So there's some inaccuracies in the county's staff-- the staff study, and we'll get to that in a little while. So here we have the community proposal for the RT zone of Vanderbilt Beach. First thing is who we are. I thank Joe Schmitt, he's given me many different titles, but I'm with Vanderbilt Beach and Bay Association, and we also have the Vanderbilt Beach Property Owners Association and Save Vanderbilt Beach. These are the three neighborhood associations for our area. Together we represent the interests of over 3,100 households. And that's households, not people, which obviously is more. Why we want change. Well, Gulfshore Drive as mere 1.18 miles long. It's two narrow lanes of roadway lying between a barrier beach and an estuary. The only two east/west roads available to evacuate residents and visitors from the Drive, Gulfshore Drive, in the storm category coastal high hazard area, are constrained and cannot be expanded. Page 47 December 10, 2003 It already has 1,100 dwelling units, two public parks, five pedestrian beach accesses, one beach parking lot, four hotel/motel restaurant complexes, a beach club, a commercial strip, a conference center, which has something on the roof, so we call it a six-story parking garage. The overburden infrastructure includes a road only 20 feet wide, no continuous sidewalk, two narrow bicycle lanes, one eight-inch water main and one eight-inch sewer pipe. That's all we have. COMMISSIONER HALAS: And a partridge in a pear tree. MS. KETCHAM: I wanted to sing, but we're trying to keep this serious. But after the Fishkind proposal, I think I should sing. A brief history: Height and density in the RT have been repeatedly changed to meet developers' demands. And I'll get into the specifics of that later, because it's important that you know what the heights have been on our street. Violations of zoning standards for redevelopment projects led to citizen protests. I don't have to tell you, you are the people we have been before regarding the Manatee, the Beachcomber, the Bellagio and the expansion at the LaPlaya. Citizen outrage led to a moratorium and the Commissioners' charge to staff. And we thank you, this Board, and everybody should be aware of it, that you listened to our pleas and you had a building moratorium so we could stop, look at the area and hopefully make things change for the better. But what happened was nothing. You gave your moratorium, we had one meeting, and then for a year we didn't have other meetings. So the staff requested the moratorium be requested for another year. And now we're in our second year and we have started our meetings. And we were very excited when the meetings started because the staff offered new standards. They immediately started talking about a 65-foot height, which we felt that was something we could Page 48 December 10, 2003 consider. And maximum lot coverage, they had that in their original proposal. And we were working with them and then abruptly things changed and the staff offered a proposal that brings back the original code. Plus, originally they added the wedding cake, they made absolute language, though, it would be legal. So we got our own planner, we got our own attorney, and we drafted our own proposal. And the two separate proposals were submitted to the EAC and the CCPC, which is, as you know, the Planning Commission. Both bodies rejected the staff proposal. The EAC adopted ours entirely, the Planning Commission adopted the bulk of ours, and the question is why. Well, first of all, let's talk about the height in the RT zone. We know our street. There are 43 structures on 46 lots. The average stories per structure is five. The average height per structure is 48.5. These are older buildings, they have eight-foot ceilings, so when you have a five-story building, you really only have 50 feet. It is not the 65 that the county will tell you. They counted the LaPlaya Tower twice in their compilation. There are many errors there. The highest structure is LaPlaya at 15 stories. The lowest structure, we have five one-story buildings in our RT zone. RT is adjacent to RSF-3, C-3, RMF-16 zones, and their heights are 35 feet, 50 feet and 75 feet. The history of RT height and density on Gulfshore Drive: In the 1970's, the height for Gulfshore Drive RT was 75 feet from natural grade, and it was measured from basically the street to the very top of the building. And that's why you have 75 feet buildings and some being obviously shorter, 40 or 50. In 1978 they increased the height on Gulfshore Drive in RT to 200 feet so LaPlaya could build its tower. After LaPlaya built its tower, they brought it down in the 1980's, and it was 100 feet from natural grade. And it stayed that way all the way into the 1990's. That's how the height was measured, 100 feet from natural grade. In the 1990's, the county passed an ordinance in the definition of Page 49 December 10, 2003 height and added FEMA, which elevated the 100 feet. And also a 125-foot conditional use was added for height. So that allowed the buildings to get higher. But they didn't get higher. And the reason they didn't get higher is because they were constrained by parking. People wanted to park underground. There was a certain amount of parking you had, the lots were narrow, and so the buildings stayed small because there wasn't room to put extra parking. And the people that had extra room for the underground parking made it a separate building and put tennis courts on top. And that's why we have the landscape that we have. Density swaps were allowed. People owned property on both sides of the street. They developed one side, used the density from the other side, then sold off that property and the county staff allowed them to use for the vacant lot the density again. So the density was used twice at increased density. 2000 is really when it really got bad. That's when we had the floor to area ratio expanded and the density went even up higher. The wedding cake encroachment was allowed on side yards. That's when it started. This parking garage extending, we haven't had that on Gulfshore Drive. And they allowed a building to be built, Bellagio, that not only has parking garages, it has living space encroaching on the side yards. So we had our first 100-foot high plus condo on less than an acre built on Gulfshore Drive. And so we figured we had to do something. So here are the changes we want. We want to reduce building height. We want to reduce the density per acre to conform to coastal high hazard requirements, four units per acre. That's what we were told the Growth Management Plan requires and that's why we're asking for that. We want to tighten the standards for lot utilization, no wedding Page 50 December 10, 2003 cake encroachment. Wisely so, the staff took out their wedding cake language, so we're getting nearer on that. But we want to talk to you about that in a second, too. Increase green space, set maximum lot coverage. The county staff originally had some maximum lot coverage language, we'd like that in there. One contiguous acre, that's very important to us. That allows people not to swap density from one side of the street to the other. And we need that language in there. The reasons for change: Public safety. We are a hurricane evacuation route. You're required to take care of the public safety, health and welfare. The more people you put there, the higher the buildings, the harder it is for us to get out. And obviously our safety is a major factor. Legal requirements to maintain equal or lower density in coastal high hazard areas. You have Florida -- you have federal, you have state, you have county. We've given you information on all those statutes that tell you you cannot increase density in a coastal high hazard area. Legal requirements to restrict activities that may damage the estuary system. Parts of our street are only 400 feet wide from the bay to the Gulf. We have the Vanderbilt lagoon. And the more pollution you have, the more building you have there. Preservation of light, view and air corridors for all citizens and viewers. It's not visitors -- it's not only us, it's the people that visit our area. And we are the most accessible beach front in Collier County. And people want to be able to see the Gulf as they drive along. Guarantee a future public input on all new projects, including redevelopment. We support what the Planning Commission has done, which is put the hotels and motels in conditional use. We are not opposed to hotels and motels. That's why many of us moved Page 51 December 10, 2003 there. We like the mixed use. But we want to have public input. We don't want another Beachcomber Hotel where we're basically told by staff, this is going up, there's nothing you can do or say. We want to be able to talk to you about it if we have any type of reservations regarding a hotel or motel. The County Attorney, who I've spoken for before and knows that I will speak about what he says again, spoke to the Planning Commission on October 22nd on what the Board of Commissioners' directive was. And I feel his words are very important. This is the County Attorney to the Planning Commission: As I look to the charge from the Board of County Commissioners nearly two years ago, part of the charge to staff, legal and planning, was to look at and determine what we can do to reduce the canyonization effect in this district, particularly on this street. Secondly, concerns about light, natural light, access to the people who live and recreate in this area. Thirdly, a desire, as legally possible, to retain the view corridors that remain there. This was the charge to staff and ultimately what I think you, the Planning Commission, are to be looking at. You will have the opportunity and flexibility to ask some hard questions of the staff and County Attorney's office to achieve essentially the charge that was made in the first place, to come back with some overlay recommendations for potential adoption that take into account canyonization, natural light access and view corridors. County Attorney, on changes to the RT, 75 feet, is defensible, and that's what he said that night. And why? Well, first he talked about the nearby zoning districts. As was mentioned before, RT is patchwork quilt on Gulfshore Drive. It's adjacent to RMF-16, which is 75. It's adjacent to RSF-Single Family, which is 35. It's adjacent to C-3, which is 50 feet. None of it is 100 feet. And this County Commission reduced C-1 and C-4 to five to reduce to 75 feet. And as the County Attorney said, we haven't had a Burt Harris claim yet. I view the history as relatively important. Page 52 December 10, 2003 He also said it's a coastal high hazard area. Again, the County Attorney: Not lost on me it this area is in a coastal high hazard area. So what does that mean? It's got to mean something. It may mean something in terms of evacuation, it may mean something in terms of transportation capability. It may mean something in regard to public health, safety and welfare. It is a unique area. This VBRT District and R Residential Tourist districts in Collier County generally, of which there are very few, are recognized as having a unique quality. We cannot lose sight that it is a residential as well as a tourist district. It is not a pure commercial district. It's not your run-of-the mill zoning district, when you talk about heights and people and view corridors. To people who live in this, height is height. We've got to know where it starts, we've got to know where it stops, whatever height you ultimately come up with, from grade or from street. And so therefore, you can change how it's defined in this overlay. So the EAC supported the community 6-0. Why? Well, the RT zone lies on a barrier beach and borders an estuary, Vanderbilt lagoon. Vanderbilt lagoon is a threatened waterway. Its flushing action was diminished when southern flowways were blocked by development. We have a dead end. Vanderbilt lagoon can only go out one way, and that's to the Gulf of Mexico. And we know what the problem is there with pollution. Our barrier beach is a nesting site for protected species, including loggerhead turtles. The beach lies between heavily used county and state parks. Adjacent to the state park is a natural area with protected vegetation and archeological remnants. The entire area is environmentally sensitive, as well as a coastal high hazard area. The Planning Commission supported the community 8-0. Why? Well, they took seriously the Board of Commissioners' charge to treat the area as unique and preserve its sense of place and its light and view corridors. They rejected the analysis of the staff and the staff's consultants. They agreed with the County Attorney's Page 53 December 10, 2003 arguments to reduction in height. They concurred with the AC's assessment of coastal risk and of ecological vulnerability. They felt the specifics of the community's proposal best fit the BCC charge and the perimeters (sic) of the Growth Management Plan and the LDC. So the comparisons of the final drafts. The staff stands with their initial proposal, other than they've taken the wedding cake out. The community, the EAC and the Planning Commission all agree on the major provisions of the Planning Commission's proposal. And that is what we're saying to you today, we feel there is a compromise that has happened here and we're willing to go with the Planning Commission's proposal with two discussion points. First of all, the Planning Commission recommends 75 feet height, as measured otherwise in code. The community would accept 75 feet total, 75 feet from the crown of the adjacent road or, if you want to define height as you do anywhere else in the county, 60 feet over FEMA. A 75-foot height, as measured otherwise in the code, means a 100-foot building. And as we've told you, the average height is 50 feet. It's doubled at 100. It simply is not a sense of the community. Also, the Planning Commission language and the -- and we should give credit, and I apologize, I did not before, to the staff. They have eliminated part of the language with the wedding cake by making it half the height of the building. We certainly accept that and the Planning Commission has done that, too. But in the past, as you know, even though it's assumed how something's measured, we've had problems where people have interpreted differently how anything can be measured. So we ask that you add this one line to that half the height of the building: For the purposes of this section only in our overlay, side setbacks shall be measured from the side property line to the point of the building plane closest to the side property line, excluding roof Page 54 December 10, 2003 overhangs. It's crystal clear. Everybody will know exactly how you measure the side yards. And we ask that you consider putting that in. We disagree with data and conclusions and staff reports, as did the EAC and the Planning Commission. Height study, I've told you, there are major problems with the height study that they've done. They've -- my building is wrong; I can point out five people in this audience that will tell you their building heights were wrong. Traffic study. They did a traffic study of our street, but guess where they put up the stations to mark it? They put it south of the Vanderbilt Inn. So anybody going into the park or the Vanderbilt Inn wasn't counted. They put it north of the Vanderbilt Beach Resort with the Turtle Club, so nobody going to the county park on the south end or the Turtle Club was counted. So we have problems with the traffic study and we feel we have much worse traffic than was given. The community vision meeting. This is the one that really sticks in my crawl. People were asked to vote and they were given one in five, so there were actually 2,500 votes. Of the 2,500, 2300 people voted in various ways to bring down building heights, preserve the character of the community. Only 117 votes were to protect the rights of the business owners, yet that becomes now number two on their list. Out of 2,300, 117. That's not number two on my list. Compatibility with the Growth Management Plan. That's why we're at the four units per acre, and our experts will talk about that, and I know you're concerned about that, but we felt very strongly we needed to be in compliance. Risk to county, basis for fiscal analysis. We have experts that will talk to you about dollars and cents, about Burt Harris. Because I know that's underlying and everybody's very concerned about that. The staff proposal does not fully address your charge. Your charge was to look at canyonization, natural light access and view Page 55 December 10, 2003 corridors. The County Attorney, in his talk before the Planning Commissioner-- Planning. Commission, said to achieve this, you've got to reduce building heights, spec -- you can reduce building height. Specify how to measure height, consider the coastal high hazard area and recognize the Vanderbilt Beach Residential Tourist overlay area as a unique quality. They say a picture is worth a thousand words. We'll, here's two. On the top, this is the main RT zone, taken just a month or two ago. You can see, there's LaPlaya on the left, Ritz-Carlton on the right. You've got high ri -- some mid-rises, low-rises. It's kind of a mixed blend. On the bottom is what would happen if you allowed 100-foot high buildings. And the person who did this is very creative and made it attractive. We could make it a lot more ugly than what it is there. And you say, can that happen? Can you really, you know, build a 100-foot high building on less than an acre? Well, we already have it. Bellagio is 108 feet high and it's on three-quarters of an acre. So it can happen, and we need to prevent it from happening. So in summary, the property owners on Gulfshore Drive and throughout Vanderbilt Beach are overwhelmingly in favor of this change and we ask that the Planning Commission's overlay ordinance, with our small modifications, be approved. Thank you. CHAIRMAN HENNING: Thank you. MS. KETCHAM: If there are no questions? Thank you, guys. We'll go for -- so we can keep you awake, we'll go to our first speaker from our experts. MR. SCHMITT: Next speaker, David Depew. MR. DEPEW: Thank you. For the record, my name is David Depew. I've been asked to give you just a little bit of background. I'm a planner, have been a certified planner, an AICP, since 1983. My office currently is in Fort Myers. I have practiced, however, throughout the state. I have a practice that stretches from Page 56 December 10, 2003 Apalachicola down to Islamorada, from Daytona Beach down to Marco Island. CHAIRMAN HENNING: Mr. Depew, can you hang on just a minute? MR. DEPEW: Sure. CHAIRMAN HENNING: Mr. White, this setting is -- do we have to have speakers that are paid to be lobbyists? MR. WHITE: If I understand the question, are you required to register as a lobbyist in order to make a presentation to the Board? CHAIRMAN HENNING: Yeah, if he is paid for by -- MR. WHITE: I believe that I've just been presented with evidence that Mr. Depew is indeed registered as a lobbyist with Collier County. CHAIRMAN HENNING: Okay. MR. SCHMITT: But this is not a land use petition. CHAIRMAN HENNING: That was -- you answered my question. Thank you. MR. WHITE: Regardless, the facts are on the record. CHAIRMAN HENNING: Sir, you will have a chance. I'm sure you're signed up. We'll answer your question. MR. DEPEW: Let me just go ahead, because I think that more or less dots the I's and crosses the T on that one. As I said, I've got a statewide practice and I've been doing planning work throughout the state for a period of over 20 years, and I've been asked to come to you today and give you the results of a review that I undertook on the RT ordinance and the Planning Commission draft of the RT ordinance. And also, I took a look at a number of other data sources, including the staff analysis and various reports that have been undertaken on behalf of the residents in the area. I would urge you to consider what's happening out there in the Vanderbilt Beach neighborhood at large. You've got a very unique Page 57 December 10, 2003 area. You've got parks at either end. You've got a neighborhood that has a roadway that stretches from one end to the other that provides not only neighborhood access to the local residents but also provides access to the general public. It's a road that stretches through a series of different land uses, land uses that include commercial, single-family residential and multi-family, as well as public recreational activities. And I would suggest to you that that makes the neighborhood a very, very unique situation. A neighborhood that is not just a neighborhood of local residents of folks that have their homes and their place of abode that is their sanctuary, but it's also a neighborhood that is an attractor from all over the county and indeed all over the state and the nation for folks that come to Collier County to enjoy the beaches and the sunshine and the water. And that I think is the nature of the uniqueness of the neighborhood is that it has this dual aspect to it of not just the residential but also this broader attraction. I've taken a look at the documents that are associated with the request that is before you tonight, and I would offer some of the following comments for your consideration: In your future land use element of your comprehensive plan, in Section l-C, it's recognized that within the coastal high hazard area, there is validity for the restriction of density. That has to mean something. You've got a provision in your plan that says we recognize in this coastal high hazard area, which, of course, Vanderbilt Beach and the neighborhood is located within, has this unique status of being in a high hazard area. And there is a restriction on density that we can consider for all of the coastal high hazard area. You have a very detailed density rating system that's found in your future land use element, and it establishes a density system that can be applied throughout the unincorporated area. It establishes with a -- it establishes a four-unit per acre base density throughout the urban Page 58 December 10, 2003 residential subdistrict, and then adds or subtracts units, depending on certain factors that are applicable to any given piece of property. The only one I found in this instance is the one that relates to traffic congestion, which would take away one unit to the acre rather than add, setting aside the aspect of affordable housing bonuses that would be a applicable within the coastal high hazard area. CHAIRMAN HENNING: Sir, can we stay with the topic? MR. DEPEW: Yes, sir, I am. I'm trying to give you the Comprehensive Plan background and how it relates to the ordinance that you're being asked to consider. And I think that's very important, because it relates to the density that's being -- being proposed by the Planning Commission's draft of the ordinance. The four units to the acre I think is supportable, and in fact, in your conservation element, the coastal high hazard area is specifically limited to four units to the acre. And that I think is a critical element that you need to consider in terms of how you're approaching what needs to be placed within this ordinance and how it relates to your Land Development Code. The staff argues in their report about vesting with regard to existing properties. And I would submit to you that I went back to the old Land Use Plan in which they cited the Policy 3.1.K, to review that policy to see if that indeed is applicable in this instance. And I would suggest to you that it does not address new development and redevelopment in this instance, because it was intended only to apply to unimproved property. And it says quite specifically in that section of the Comprehensive Plan that that review deals with only unimproved properties. The Land Development Code has a vested rights procedure contained within it. If indeed there are problems with regard to vested rights, you have a provision that is in place with regard to vested rights on any of the given parcels. Thus I think the argument that there are certain rights vested out there that are going to have Page 59 December 10, 2003 difficulties is to some extent short circuited because you have a code that already addresses that. If the ordinance is passed, affected property owners that feel they have some vested rights, I believe, can avail themselves of that process, consistent with what is contained within the existing code. I would point out, however, that the staff report on this does raise an important factor, and that is that the Comprehensive Plan does control development. I would submit to you, rather than an internal inconsistency, the plan is consistent in this matter in that the density restrictions for new and redeveloped property are limited by the plan, and the code I think can -- must actually follow the plan. Having said that, if there is a density restriction in the code that is different than the density restriction in the plan -- and Mr. Pelham will address you a little bit later I think on some of these matters -- but my understanding is that the plan controls. So regardless of what ultimately gets adopted in terms of density in this code, whether it's the 16 units to the acre, as proposed by the staff, or the four proposed by the Planning Commission, I believe the density restrictions that are contained within your Comprehensive Plan will eventually control what permits can be issued in this area. And I think that's an important element to consider when you consider adoption of the ordinance. Redevelopment as a type of new development. And I would submit to you that if a property owner voluntarily demolishes a structure in order to rebuild on that piece of property, they will come under the current code. That is generally accepted planning principle, and that's accepted in your own code when you start to look at the nonconforming use provisions. Now, that's different than build back. Build back, which was an issue that was raised earlier in this discussion, is something that relates from acts of nature; disasters, if you will. And that's a different animal than voluntarily choosing to demolish a piece of Page 60 December 10, 2003 property and reconstruct on that property. I believe in that instance they are controlled by the provisions in the plan ultimately and, to the extent that the Land Development Code implements the plan, by the Land Development Code. The county has a build back policy. If the county feels ultimately that build back is not adequate, I would submit to you that that needs to be addressed separately. You may also want to address coastal construction setback line issues and docks and boathouse issues as well. But in conclusion, I would tell you that the Collier County Planning Commission draft of the proposed ordinance is consistent with your plan and implements its policies. I would, as Ms. Ketcham suggested, propose that you consider the height question in terms of compatibility with adjoining property owners. I believe the residents' proposal is much more compatible across the board with the unique nature of the neighborhood in which it's located and with the charge that the Commission gave two years ago when this process was initially embarked, and that the four unit per acre maximum that is in the Planning Commission draft of the ordinance is indeed consistent with what you find in your plan. And I believe regardless of what density ultimately gets placed into this ordinance, the plan going to control. I would also suggest to you that the plan, being that it is adopted and approved by the Department of Community Affairs, should not be interpretated in such a fashion that it would deem to be internally inconsistent. And I believe that would not be an appropriate or correct way of interpreting your plan. I would like to, unless there are questions, turn this over now to Kirk Sorenson, who is an economic analyst who will talk a little bit about the fiscal impacts of the draft of the ordinance proposed to you by the Planning Commission. And with that, I would thank you for your kind attention. I'll be happy to answer any questions. Page 61 December 10, 2003 CHAIRMAN HENNING: Any questions? (No response.) CHAIRMAN HENNING: Thank you. MR. WHITE: Mr. Chairman, if I may, I've been provided a printout of the Clerk of Courts with respect to who the registered lobbyists are. CHAIRMAN HENN1NG: I was given that-- MR. WHITE: And I have an addendum on that. CHAIRMAN HENNING: -- at this meeting and that's why I asked. MR. WHITE: There's a note on here that the following individuals as of today have been registered: That would be Mr. Depew, who we've seen his. I believe I've just been provided Mr. Sorenson's. And thirdly, Mr. Pelham as well. CHAIRMAN HENNING: And I understand we don't really need them-- MR. WHITE: No. CHAIRMAN HENNING: -- but I appreciate the answering the question. MR. SORENSON: Thank you, Commissioners. I don't have a powerpoint presentation, so I guess you'll have to just stare at me today. My name is Kirk Sorenson. I'm an economic consultant and fiscal planning consultant from Martin County. We're undergoing a lot of the same growth pressures as Collier County, so I've been active over there on the same and similar issues. I have a Master's in public administration with a concentration on public finance and economics and finalizing my Ph.D. in public finance as well. First of all, I'd like to thank the property appraiser and the county staff for providing me with enough information to present a brief analysis of the fiscal impact and a review of the fiscal impact as presented by Fishkind and Associates as well. Page 62 December 10, 2003 Briefly, I'll explain my perspective of a fiscal impact study, and I'll make this brief, because I'm sure you've heard this many times before. And then I want to talk briefly on the specifics as to the study that was presented by Fishkind as well. First, it's important to know who generally conducts these fiscal impact studies and why they are important. In this case, you have the citizens, the planners, the elected officials and the developers interested in the outcome and the impact of this development and proposed increase in density and increase in height limitations on not only individual development rights, but in addition to the county anticipated expenditures and revenues in the future. It's important to know also that the process of estimating the likely impacts, also called fiscal impact analysis, is important in consideration or approval or disapproval of any kind of land use or land use regulation or land use change. Now, I think this is a great opportunity actually for the County Commission to -- to meet and exceed two of the stated objectives of the Commission, which is to rebuild and maintain public trust and to revise the Growth Management Plan and Land Development Code to improve the county's ability to manage and control the rate and quality of future development. When considering development or land use planning proposals, interested parties such as citizens, planners, elected officials and developers definitely have a keen interest in how given options may affect their local government, both in cost and revenues. In particular, development or plans -- or a plan will bring more in revenue than it will cost in services, might help ease the local burden, the local financial burdens of Collier County. Likewise, if a development cost more to support and to provide services to than the revenues generated, it will be a fiscal burden on the county. In analyzing the information presented, it's -- there are several methods to generate fiscal impact studies. I haven't had a Page 63 December 10, 2003 tremendous amount of time to review all the data and analysis that went into this study. This is a per capita type of analysis, which is a very simple analysis. And as with any fiscal impact analysis, it's important to have the data that supports your study be as accurate as possible. The study in question by the Fishkind group identifies several potential areas of concern. As mentioned earlier, many of the buildings and many of the properties identified are not subject to a 1 O-story height limitation or to the increased densities as proposed. The study assumed that a build-out scenario would be considered when determining the benefit. And any time you have a cost benefit analysis, depending on the assumptions you make, it can vary the outcome dramatically. The overstatement of the number of facilities leads to an overstatement of the development-- of the number-- of the amount of density in each of the units, in addition to the amount of revenues that are collected in the form of taxes, fees and other county revenues used to support local services. It's our contention that several of the units should be excluded from the analysis, and it's also our contention that there's no -- based on comprehensive discussion actually with the property appraiser, there's no direct correlation with the value of a unit and the unit's placement in -- relative to height within the development. So the graph indicating that the value increases as the height increases where the unit is located is not supported by the data that I obtained today from the property appraiser. It's also important, when you take a look at this information, after excluding the number of facilities that are not subject to increasing their height to 10 stories, you would reduce in essence the benefit, the projected benefit, to $24,300,000, which would equate to a tax benefit or tax receipts of $320,000 and change. Generally when you look at a per capita type fiscal analysis, you Page 64 December 10, 2003 consider the cost, cost generally based on, once again, per capita services, as identified in your annual budget. The annual budget identifies a cost, and this is strictly a per capita. And I think, given enough time, and we'll have that time before the next public hearing, we can do a more dynamic fiscal impact analysis, which not only takes a look at the individual properties, but the cost of the associated properties in the neighborhood, the social cost of the -- instituting a 1 O-story height limit and some of these buildings exceeding their current height to that 1 O-story limit. These costs, the social costs, need to be included as well, in order to have a fully comprehensive and accurate fiscal impact analysis and cost benefit study. Based on information gathered from the county, the fiscal costs to provide services alone -- this also includes services to students, and this is once again based on peak population, because no matter if a community or person is in their home only three months a year or 12 months a year, you still need to provide certain services year round to those developments. As a result, the service cost is approximately $600,000 per unit. The per capita cost, as a result, would equate to a negative net benefit as a result of the increased density of over $1,000 per unit. So you need to consider, I think, not only the development's opportunity to grow, but the fact that the rest of the community and the county will be subsidizing to a great degree the increased density in this area through increased tax rates. I think once these assumptions are finalized and built into a model that's more comprehensive, that can be validated and understood, most importantly, by the community and the elected officials, you will have a clear understanding of the total benefit and cost, and you'll determine through this analysis that the costs do in fact outweigh the benefits of this proposal of the 100-foot scenario. So we hope to in the future provide something as clear and as Page 65 December 10, 2003 simple and comprehensive as that type of study, so you can make a rational decision based on facts, based on analysis, based on valid information, as any decision should be based on within the county government. If there's any questions, I'd be happy to answer them. CHAIRMAN HENNING: Commissioner Halas? COMMISSIONER HALAS: What units -- what units are you saying should be eliminated? MR. SORENSON: Well, the only one that I included in my study was the Vanderbilt Inn. And given the fact that I had a limited time to review the number of units involved, this was the one that was, I think, more susceptible to this particular situation. But I think when you take a look at the per capita information, regardless of whether it's one unit, five units or 10 units, the net negative fiscal impact will be very similar. There's not a tremendous economy of scales in this matter. COMMISSIONER HALAS: Okay. CHAIRMAN HENNING: (No response.) CHAIRMAN HENNING: Any further questions? Thank you, sir. MR. SORENSON: Okay, thank you. MR. SCHMITT: Next speaker is Tom Pelham, followed by Tony Pires. MR. PELHAM: Mr. Chairman, and-- excuse me, Mr. Chairman and Commissioners, good evening. My name is Thomas Pelham of the Fowler White Law Firm. My office is in Tallahassee, Florida, but for many years I have been engaged in this kind of work, and most areas, and frankly most local governments in the State of Florida. I'm a land use lawyer and an AICP certified planner. I spend the great bulk of my professional time working with local comprehensive plans and land development regulations and issues and problems that arise when local governments are trying to interpret and apply their comprehensive plans and to adopt Page 66 December 10, 2003 regulations that will hopefully be consistent with their comprehensive plans. In those kind of cases, the issue always is what does the local comprehensive plan say? What does it mean? What is the proper interpretation of the plan? Ultimately that's a legal question for the courts, if you ever wind up in litigation. Therefore, the way you approach and deal with that question is very, very important. I want to in my presentation address two things: Very briefly, I want to address the density issue which Mr. Depew discussed, because I also think it's fundamentally important here. And then I want to touch on the Burt Harris Act, which is frequently used by some people to attempt to prevent or stop the adoption of regulations. It's used as a threat. It's thrown around very loosely, and it's frequently misunderstood. Let me take the density issue first. I commend your professional planning staff for spelling out in detail in writing how they arrived at their interpretation of the Comprehensive Plan with regard to density. Frequently you do not find that, and people are left to guess as to why local planning staffs are interpreting the plan the way they are. And here they haven't left us in doubt about that. They've told us. Like Mr. Depew, I respectfully disagree with their interpretation. And quite frankly, I think this county has a ticking time bomb here with regard to the densities permitted in your coastal high hazard area. Your coastal high hazard -- your coastal and conservation element has a very specific provision that addresses densities in the coastal high hazard area. And it indicates that it is limited to a maximum of four units per acre. Your staff, in dealing with that expressed provision, has discounted it for several reasons. First, it says it's internally inconsistent with provisions in your future land Page 67 December 10, 2003 use element. I suggest that that is not a legally tenable position. When the Department of Community Affairs reviewed this county's plan and found it in compliance, as a matter of law it found it to be internally consistent. Internally consistent. It is not acceptable now for staff to reject that determination and argue, oh, yes, but there still is an internal inconsistency as a way of ignoring the expressed density limitation. Secondly, the rule of interpretation that applies here is that a specific provision controls over a general provision. The specific provision here is the provision in your coastal high hazard element that says the maximum density in that area is four units per acre. The density rating system that you find in the future land use element is a more general provision. So with regard to the coastal high hazard area, that specific provision in the coastal element controls as a matter of law. Next your staff says well, in determining what the permitted density is, you look only to the future land use element. I respectfully disagree. It is the plan as a whole that governs. And you have to construe all the provisions of the plan together to give all of them force and effect. If there is a density provision or requirement in your coastal element or indeed in any other element, it cannot be ignored. It must be respected and it must be applied. I point this out only to tell you that I think at some point this county, like some other local governments, is likely to encounter a problem. And if litigation is something that you're fearful of, I would suggest that you should consider that if you adopt development orders that allow development in the coastal high hazard area at a density higher than four units, you may very well get a lawsuit challenging that that will tie this county up in litigation over that density issue. In its staff analysis, the staff has suggested that you may want to amend your plan to take out that provision about the coastal high hazard density or to reinforce it. I would suggest to you that if you Page 68 December 10, 2003 send a plan amendment, a proposed plan amendment up to the Department of Community Affairs that proposes to increase densities in the coastal high hazard area over what is expressly allowed in your Comp. Plan, you will encounter stiff resistance, because the Department these days is rejecting amendments that attempt to increase densities in the coastal high hazard area. I would suggest respectfully that this Commission should carefully consider this issue. Let me turn to the Burt J. Harris Act. The Burt J. Harris Act is no reason not to adopt this regulation, if this Commission believes that this regulation is in the best interest of this county. I say that for several reasons. First of all, the act, the Burr Harris Act by design is an act of very narrow scope and application by design. It was written that way. I say that as a person who was a member of the legislative working group that drafted that legislation. I know what the intent was, I know what its provisions are. It applies only to governmental action that affects a vested right or an existing use of property, as defined in the act. Nothing else. Only those two situations, where there is a vested right or an existing use. And then if you determine that a vested right or an existing use has been affected, the question is, okay, does the governmental action inordinately burden it. You don't reach Mr. Fishkind's analysis about burden until you decide that there has been an effect on someone's vested right or their existing use. Now, the legislature, when it enacted this act, wanted to provide additional protection and relief for individual property owners who in fact do have vested rights or an existing use which has been inordinately burdened. And I would never suggest to this county that you should not respect that and be concerned about it. But what the legislation does to avoid, frankly, the claims that are going to arise -- people are going to come in here before you, oh, don't adopt this regulation, you're going to be violating the Burt Harris Act, you're Page 69 December 10, 2003 going to be tied up in lawsuits. Not true. First of all, because of its very narrow scope, a very few people will even be affected by it. But even as to those who are, before they can go running off into court, they have to come to you and present to you their case. They have to prevent (sic) to you their complaint and information that establishes that they have a vested right or that they have an existing use. And if they do that, the act authorizes you to enter into a settlement with that landowner to avoid a violation of the Burt Harris Act. So you may safely pass this regulation with confidence that you're not going to run roughshod over anyone's property rights because they get the opportunity to come back to you and say here is our case. It would not be appropriate for you to apply this overlay to our property. You get a chance to judge it on the merits based on the evidence to you that's presented, and then you in effect exempt them from the act and you enter into a settlement that allows them to build their property. That's why I say the Burt Harris Act simply does not provide any basis for you not to adopt this general piece of legislation. I appreciate very much the time. If you have any questions, I'll be happy to try to answer them. CHAIRMAN HENNING: Questions by the Board? Commissioner Halas. COMMISSIONER HALAS: Are vested rights transferable? MR. PELHAM: Possibly. And if a local government wants to recognize their transferability, it may do so. If a local government doesn't want to recognize the transferability, there's some rules established by our courts in case law that determine whether they are or they are not. COMMISSIONER HALAS: Okay, I'd like to ask another question here. You say vested rights on an exis -- on an existing property. Page 70 December 10, 2003 MR. PELHAM: Vested rights, or there is an existing use on the property. COMMISSIONER HALAS: Existing use. Say you have -- in the case of the Vanderbilt Motel, you presently have a two-story unit there. The person wants to sell this, but he'd like to get it rezoned so that he can sell it with the vested rights that he can put a 100-foot or a 75-foot building on there. That's where I was leading in with my first question, does -- that vested right, can it be transferred from one owner to the other after that particular first owner has gone through this process of trying to get that land rezoned for -- well, it's going to be not rezoned, it's going to be used for something different than a two-story motel. MR. PELHAM: Well, again, I would caution. In every case, vested rights is a very fact-intensive situation that varies from property to property. So I would just throw in the general admonition, we want to make sure we have all the facts. Secondly, though-- the first question is, does the Vanderbilt Inn have vested rights that it can transfer? That's the first question. If it doesn't have any vested rights, it doesn't have any to transfer. COMMISSIONER HALAS: What constitutes vested rights? MR. PELHAM: Okay. If government takes action, let's say, for example, it adopted RT zoning for vacant property, and in reliance upon that RT zoning the landowner has spent large sums of money or changed its position or started plans for building something that's allowed by the RT zoning, that landowner may well have a vested right in the RT zoning. On the other hand, if the landowner had built something on that land before the RT zoning was ever enacted, then that landowner has no vested right in the RT zoning, and I would suggest the only thing they're vested in is the actual structure that sits on the property. COMMISSIONER HALAS: Well, this has always been -- to clarify this, this has always been in RT zoning. And what we're Page 71 December 10, 2003 trying to -- what we're wrestling here with is, presently we're in RT zoning, we're trying to eliminate a wedding cake design, which the extension of the sides of the building for parking. We're also looking at lowering the height of the building from 100 feet to 75 feet. We're being -- what's being said to us is that we will be challenged if we lower the building height from the proposed 100 feet to 75 feet by the Burt Harris Act. MR. PELHAM: Well, if you pass this legislation doing that, then the landowner would have the -- would be required, in order to assert a Burt Harris claim, to file with you its complaint laying out all the facts for this county to determine whether or not as a matter of fact there are vested rights. If at that point you decided we believe they do have vested rights, you're authorized to enter into a settlement with them that respects their vested rights. COMMISSIONER HALAS: When you say a settlement, what does that entail? MR. PELHAM: It entails a written agreement that spells out what the property owner can do on the land. If there is an allegation that that settlement agreement somehow does not protect the public interest, there's the procedure to present that settlement agreement to a court so that the court can determine the public interest is protected and can approve the settlement agreement so there will be no question about it. COMMISSIONER HALAS: Okay, but where I'm going with this is, I want to know how much of a liability we're putting on the county from lowering the building height from 100 feet to 75 feet, and you're supposedly the person that's knowledgeable on will we be challenged with a Burt Harris suit. MR. PELHAM: Well, I would say -- in my year -- COMMISSIONER HALAS: Okay, let me finish that up. Being challenged and then being able to defend it without any major implications to the county. Page 72 December 10, 2003 MR. PELHAM: Okay. I have in my career handled many vested rights claims. The law of vested rights is very well spelled out, and the Burt Harris Act adopts the vested rights law that has been created by Florida Courts, or if there happens to be a statutory vested rights case. It's very clear, you don't have to guess about it. So when the facts -- when this landowner presents their facts to you, your counsel and your staff, you're not going to have much difficulty in deciding whether, under the well established law they do or do not have a vested right. If you conclude that they do, you recognize it and let them go forward, you incur no liability whatsoever. The use of Burt Harris at this point to prevent the enactment of the ordinance is completely inappropriate, because it will apply to many people who won't have any vested rights and they won't have any Burt Harris claim, but you still will have the opportunity to judge that claim on its merits and avoid any liability by settling with them. CHAIRMAN HENNING: Commissioner Coletta? COMMISSIONER COLETTA: Thank you. My question's a little different, sir. If we pass this, as suggested, you know, in the RT where four units per acre, 75-foot maximum height, what would happen if we had a colossal event such as a tidal surge from a Category 4 or 5 hurricane and the storm was to undermine all of the existing residential buildings to the point that they became uninhabitable and had to be tom down? What could be put back in their place in this RT zoning? MR. PELHAM: It's my understanding, and I've actually looked at it, that your Land Development Code today contains a provision that allows you to build back, even in those cases where the structure was 100 percent destroyed. So there would be the right to build back what was there. That's another reason why I think this act will not violate the Burt Harris Act with regard to existing uses. It doesn't tell Page 73 December 10, 2003 anyone with an existing structure that they have to remove it. And, secondly, as I understand it, under your regs, they're allowed to build it back if it's wiped out, even up to 100 percent. COMMISSIONER COLETTA: To the same conforming structure that was -- nonconforming structure that was there before? MR. PELHAM: That's my understanding of your Land Development Code, yes. COMMISSIONER COLETTA: That this would be a nonconforming structure? MR. PELHAM: It's my understanding that your Land Development Code would allow that, the build back. And if it doesn't provide that, and I think I actually read where it does, in trying to avoid any potential Burt Harris Act issue, it's something that you can consider for inclusion in the ordinance. But I think it's already in your code. MR. SCHMITT: Commissioner, if I could just make sure you understand, we do have a build-back policy in the event of a hurricane, but in the event of a fire or some other type of disaster other than a hurricane, they would have to conform with the current zoning. COMMISSIONER COLETTA: So in other words, if you have a 100-foot building and you maybe have 50 residents living in there, if that building is destroyed by fire, we can go back there, won't be able to accommodate the 50 residents? MR. SCHMITT: That is correct. They would have to conform with the new building standards and the code. COMMISSIONER COLETTA: What happens with such things is very few people -- well, maybe I'm wrong in this case, but I would assume that most people are financing these units. What would the bank do at that point in time if they knew that these units were going to have no value in the case of a fire? MR. SCHMITT: Commissioner, that, that -- we have other Page 74 December 10, 2003 situations, even on Vanderbilt Beach, right now that are what they call legally nonconforming structures. They're -- we've addressed that in our report that there certainly is impacts for both insurance purposes and financial purposes, but we didn't go into that in great depth. I mean, that's an issue that's -- COMMISSIONER COLETTA: I'm concerned about that, because we're talking about existing residents. MR. SCHMITT: I would have to pass to the County Attorney, one of the county attorneys. They could probably address it from a legal -- MR. PELHAM: I would certainly say it's a legitimate issue that you should think about and possibly address in your regulations. MS. STUDENT: For the record, Marjorie Student, Assistant County Attorney. The build-back policy is -- speaks in terms of disasters and if it's a major or minor disaster. So disasters cover it, whether it's a conflagration like the Chicago fire, a hurricane, a flood, whatever. But if it was one building that burned down, then it likely wouldn't be covered, because the definition of disaster is what controls and what response teams come to the aid to deal with the disaster. CHAIRMAN HENNING: Thank God we got a great fire department in North Naples that has ample ladder trucks to take care of that situation. Do you have anything else? COMMISSIONER HALAS: No, you just said it all. CHAIRMAN HENNING: Go ahead, Commissioner. COMMISSIONER FIALA: Just to follow up on Commissioner Coletta's remarks. I would want to make sure that we have those buildings covered by something that we could include in this to make sure that -- you know, a fire could start, an electric fire could start and burn a whole building down. And they should be allowed-- I think in fairness they should be allowed to rebuild to what they were. Page 75 December 10, 2003 MR. SCHMITT: I think that would be in violation of our Comp. Plan. We would have to come back-- COMMISSIONER FIALA: Yeah, but then we can change that, can't we? I mean, we make the Comp. Plan, right? MR. SCHMITT: Yes, ma'am. COMMISSIONER FIALA: And if it's fair, then we should be able to do that. MR. SCHMITT: Of course, we'd have to come back with a Comp. Plan amendment and it's forwarded to DCA for approval. COMMISSIONER FIALA: Right. CHAIRMAN HENNING: I guess I would have to add to that, that isn't what the residents on Vanderbilt Beach want. They want to stop, not only stop the canyonization but lower the buildings on the beach. So we would be defeating that purpose. COMMISSIONER FIALA: Well, yes, except that if it's a natural disaster, I think that we have to -- you make a good point and I agree, but I think if it's some type of a disaster that -- you know, that the building had no control over, I would want to make sure that they're protected in fairness sake, even though we're trying to reduce the density. CHAIRMAN HENNING: Sir, you mentioned about the Growth Management Plan and the coastal high hazard area and what it says. And this language would be consistent with what it says if we lower it to four units per acre. My understanding, and correct me if I'm wrong, DCA, Department of Community Affairs, looks at our Growth Management Plan and any kind of amendments we do they want to make sure it's consistent with it. Am I correct? MR. PELHAM: The department would review any amendment to your Comprehensive Plan and determine a number of things, including its internal consistency with your existing plan, yes, sir. CHAIRMAN HENNING: Now, they do that with the growth -- Page 76 December 10, 2003 or the Land Development Code also, correct? MR. PELHAM: The department does not review your Land Development Code, unless some citizen files a challenge to it. And I couldn't tell you whether any Collier County citizens have done that. CHAIRMAN HENNING: Okay. Well, great, you straightened that out for me. They never reviewed the Land Development Code for consistency? MR. PELHAM: That's correct. The statute does not give the department the authority to do that, except under very limited circumstances. But Mr. Depew made a very important point in that regard. Under our law, including our court case law, if there is an inconsistency between your regulation, your Land Development Code and your Comp. Plan, the Comp. Plan controls. My own home city and county found that out, much to their chagrin, in a case where the court said well, if it comes down to whether or not your regulation is consistent with the Comp. Plan, we don't care what your regulation says, the Comp. Plan controls. COMMISSIONER HALAS: And what does our Comp. Plan say? MR. PELHAM: It has a very expressed provision about four units per acre in the coastal high hazard area. MR. SCHMITT: CanI-- CHAIRMAN HENNING: I'm not done yet. MR. SCHMITT: Okay. CHAIRMAN HENNING: I waited for everybody else, so you can wait for me. MR. SCHMITT: Yes, sir. CHAIRMAN HENNING: The -- when the Board of Commissioners originally adopted the Growth Management Plan, the Comprehensive Plan in 1989, how did that play with the existing land uses within the land use regulation? MR. PELHAM: It's a very good question. And it was a very Page 77 December 10, 2003 troublesome one at the time. I had a privilege to serve as the secretary of the Department of Community Affairs from 1987 to 1991 and, in fact, had the honor to give Collier County an award for the excellence for its conservation and coastal element in its Comprehensive Plan. But the issue you've raised was one of the most troublesome issues. We did not start with a blank slate, so people who already had structures, development on their property, were protected. They didn't have to tear it down to conform with some new Comp. Plan, and a new Comp. Plan would recognize those and protect them. Now, there's one thing here in the staff analysis that's also interesting in that regard. Another basis for the staffs saying that the four units per acre wouldn't apply here is a provision which addresses properties that were already zoned, and there was a policy in the plan that required the county to undertake an evaluation of zoned undeveloped properties, undeveloped properties, and to determine whether the zoning on those undeveloped properties were consistent with the Comprehensive Plan, and if so, to recognize that zoning as consistent with the Comp. Plan. But that reevaluation applied only to undeveloped properties, not with properties that already had buildings on them, they were protected. But if you were talking about new development and you decided that the zoning that was on it was consistent, that doesn't create a vested right. That doesn't vest the zoning any more than anybody else's zoning does. You have to do a lot more than just have your zoning, under Florida law, to be vested. It's nothing more than a determination that that zoning would be consistent with the Comp. Plan. But even if it were consistent, as a matter of law, the county is not required to allow the maximum density on property up to the maximum under the zoning ordinance. You have the authority to give a less density. So even if staff is right, that the 16 units per acre would be Page 78 December 10, 2003 consistent with the Comp. Plan, you are not prohibited from changing that to lower the density or to grant individual landowners with a lesser density, as long as you allow them some. CHAIRMAN HENNING: How does the Burt J. Harris Act address the highest and best use on a piece of property? MR. PELHAM: It doesn't do it directly. That issue would come into play if someone were doing an appraisal of their property to try to show that the impact of the regulation inordinately burdened the property. And appraisers have ways at which they arrive at the highest and best use. CHAIRMAN HENNING: Okay. Explain to me again what the definition of a permitted use is. MR. PELHAM: Okay. Under the Burt Harris Act, the term that's important is existing use, and it's defined. Permitted use is not really a term that's defined there. But it would be a use that a zoning ordinance would allow on a piece of vacant property. So it's permitted in that sense. Not necessarily that you've pulled a building permit; it's one of the permissible uses under your zoning ordinance that a property owner might engage in. CHAIRMAN HENNING: Permissible use under the zoning ordinance. MR. PELHAM: Or other land development regulations, yes. CHAIRMAN HENNING: Okay. So in this case the RT is a zoning district, and that's a zoning ordinance. MR. PELHAM: Correct. CHAIRMAN HENNING: Okay. Commissioner Halas? COMMISSIONER HALAS: So in RT zoning, does that mean that we have the right to make a stipulation, and right now I believe RT is 26 units per acre; is that correct? MR. SCHMITT: Sixteen units per acre for residential, 26 for commercial. COMMISSIONER HALAS: So therefore, if we so desire, we Page 79 December 10, 2003 can lower it down to four units per acre; is that correct? MR. PELHAM: You may, so long as you do not violate someone's vested right or inordinately burden their existing actual present use. COMMISSIONER HALAS: Okay, that's where we're trying to wrestle with. What is considered the vested right, or in this case because it's right on the shoreline, it's a high coastal hazard area. CHAIRMAN HENNING: Commissioner, what I heard was the zoning district RT, they have a permitted use of 16 units per acre. And that is the question about Burt J. Harris and the taking. MR. PELHAM: Well, that zoning in and of itself would create no vested right or a takings clause. If someone had relied upon that, as defined by law, if they were in the process, you know, if they had relied on it by spending money, if they had actually built something on it under the RT zoning, then they have a vested right. But if they're sitting there with a piece of vacant property with RT zoning, they may very well not have any vested right in the RT zoning. Likewise, if they built something on that property before the RT zoning was ever imposed on it, they never relied upon the RT zoning and they have no vested right in the RT zoning, and you could change it subject to their right to continue their nonconforming use. COMMISSIONER HALAS: But this piece of property presently has something on it. It has a motel on it. MR. PELHAM: I would want to know when it was built and whether it was built before the Comp. Plan was enacted. CHAIRMAN HENNING: It was. COMMISSIONER HALAS: It was. MR. PELHAM: Well, then I would say there's a good chance that that property owner would have a vested right to the structure that's on the property. Because that's what-- he relied-- COMMISSIONER HALAS: The present structure. MR. PELHAM: Yeah, the structure that's there. That's what Page 80 December 10, 2003 that landowner built. They relied on it to build that building, not to build some higher building or a building with more units. CHAIRMAN HENNING: It really has nothing to do with the Comprehensive Plan. MR. PELHAM: Well, under our law, the Comprehensive Plan is the constitution and it controls. And if there are provisions in your Comprehensive Plan that address this, a court of law would say it controls, no matter what your regs say. CHAIRMAN HENNING: Okay. I don't have any. Commissioner Fiala? COMMISSIONER FIALA: Yes, just one more question. Say for instance an existing facility is there. The people want to upgrade the facility, maybe increase the height but still stay right within the height regulations, they want to reduce the number of units, the number of units were permissible under the old zoning, but if these laws were reduced to four, would they still have the right to have more than four because they had the vested right in that property? Did I make that clear? Did you understood what I just -- MR. PELHAM: As I understand your hypothetical, they currently have more than four units per acre -- COMMISSIONER FIALA: Yes. MR. PELHAM: -- and they want to remain above four units per acre? COMMISSIONER FIALA: Yes, but, say for instance -- yes, they have 20 units, now they want to knock it down to 17, but in a new type of a structure. They can still do that; is that correct? MR. PELHAM: There's one body of law that says as long as you're not exceeding what's there, you stay within the confines or what you're proposing is less than you already have, it's permissible and you can do it. COMMISSIONER FIALA: Okay. Thank you. CHAIRMAN HENNING: Okay. Thank you for your time. Page 81 December 10, 2003 MR. PELHAM: MR. SCHMITT: Nerad. CHAIRMAN HENNING: break just to change out a tape. Thank you very much. Next speaker, Tony Pires, followed by Jerry We're going to take a five-minute (Brief recess.) CHAIRMAN HENNING: Mr. Schmitt, I interrupted you earlier. Did you have anything to add? MR. SCHMITT: No, I just wanted to clarify that piece about disaster but Marjorie Student did in regards to that, and I think probably Mr. Pires is going to go into that in a little more detail. Thank you. CHAIRMAN HENNING: Thank you. MR. PIRES: Briefly, my name is Tony Pires with the law firm of Woodward, Pires and Lombardo, representing the Vanderbilt Beach and Bay Association and the Vanderbilt Beach Property Owners Association, as did Mr. Pelham and Mr. Depew and Mr. Sorenson. I'll be brief, because they have covered extensively a substantial number of the substantive matters that have come to play in this Board's and the other board's consideration of the adoption of an overlay for the RT district in the Vanderbilt Beach area. And I think what you've heard are detailed analyses, factual bases that would support the position put forth by the community in their draft, which they've worked long and hard on, as Diane Ketcham outlined in her presentation, to provide -- to follow the directives that the County Commission gave to, a long time ago, in their directives with regards to this particular area, and that we encourage the adoption by this Board, when they have the final consideration, of the recommendation that was brought forward to you, with the unanimous recommendation of the Planning Commission and the EAC, with regards to the height issue with the Page 82 December 10, 2003 site modifications as mentioned by Diane Ketcham. For a point of clarification, as to the county build-back policy, Section 3.17.8.2 addresses natural or man-made disasters in that particular context with regards to the ability to rebuild, to the -- in accordance with the legally documented actual use, density, size, style and type of construction, including square footage existing at the time of the destruction. So I think that's one of the points that came up. And one other aspect is, one of the drafts of the overlay district had specific build-back language applicable to this area that has since been deleted. It was felt that it was basically belts and suspenders or redundant, but it was in one of the drafts, which the community would support that language being in there. And so if there's a sense of this Commission that the existing build-back language in your LDC in 3.17 does not adequately allay your concerns, you can utilize the language that was in one of the drafts supported by the community. One other aspect that I would like to provide is, the community has provided the 3,000 households -- it's not a small group, it's not a narrow minded group, it's a group that has the interest of the overall community also at mind in their purposes of wanting to have this overlay adopted. They have provided a booklet, I believe, to each of the Commissioners. I would like to make that part of the record and provide that, I'm not sure, to Mr. Schmitt or however you so direct, or to the County Attorney to make it part of the record. And in summary, because you have had a lot of extensive discussion with a lot of experts in the field, I urge you to support the recommendation that has come forward to you through the Planning Commission, with the modifications in the height. And the critical issue, too, with regards to having the size of the parcel be one contiguous acre, that is a significant impact under development, redevelopment of the Vanderbilt Beach area. Thank you very much. Page 83 December 10, 2003 MR. SCHMITT: Next speaker, Jerry Nerad, followed by Dwight Nadeau. MR. NERAD: Mr. Chairman and Commissioners, thank you for allowing me to speak. CHAIRMAN HENNING: Mr. Nerad, can you hang on just for a minute, please. MR. NERAD: Sure. CHAIRMAN HENNING: Appropriate to give each of the -- we had all the presentations given, correct? Appropriate to give each of the speakers five -- oh, this is your side, okay. MR. NERAD: I'm getting real hungry so I will be brief. COMMISSIONER HALAS: We are, too. MR. NERAD: But I don't know if my team is going to be brief. CHAIRMAN HENNING: I'm sorry, Mr. Nerad. MR. NERAD: Thank you for allowing me to speak. First of all, I'm a businessman, I reside in Illinois, I'm not a developer, and I will try and be succinct and to the point. This property was built in 1972, current RT zoning applicable. It was a Ramada Inn franchise. My family acquired the property in 1976. The motel's useful life has about expired. We have small rooms, we have small bathrooms, and we have small closets. And we have stagnant occupancy because there are newer properties that offer more amenities. Four, five years ago the family brought in an estate planner to review my net worth. The purpose was to remove from my estate the strongest appreciating asset and freeze the value of my estate. The Naples real estate was identified, and subsequently this parcel was put into a family trust and then into an irrevocable trust to create a legacy for my children and my grandchildren. We also determined that the single best use for the real estate that would command the highest fair market value for the trust would be for a luxury condominium to be built on the site, something that is currently Page 84 December 10, 2003 permitted under your present zoning. We made this application to redevelop this site in late 2001 when all this controversy erupted. In conclusion -- two conclusions: The actions of the stakeholders are arbitrary, egregious, discriminatory and the only property singled out for this spot zoning. I will assure you wholeheartedly that I will pursue all legal remedies to protect my property rights and to preserve the legacy to my children. One other point. I mention it. I do believe I qualify for vested rights. I do believe I qualify for existing use, which covers future uses as well. And I would like to leave you with one thing. This moratorium has gone on for a couple of years. I'd recommend that you don't extend the moratorium and you have the courage to make the right decision. Don't let narrow-minded self-interest people lead to an emotional response. Thank you. MR. SCHMITT: Next speaker. Next speaker is Dwight Nadeau. CHAIRMAN HENNING: Okay. Thank you. Next speaker. MR. SCHMITT: Rich Yovanovich will follow Mr. Nadeau. CHAIRMAN HENNING: I'll pass them down. MR. NADEAU: Commissioners, good evening. For the record, my name is Dwight Nadeau. I'm planning manager for RWA and I'm representing tonight -- as my client stated, I'm not representing a developer, I'm representing a property owner. And that is Van Dev (phonetic), Inc., owner of the Vanderbilt Inn. What I'm going to do this evening is I'm going to provide you with some factual information related to the Vanderbilt Inn and the -- the entitlements that are currently existing and which this property, as well as all other RT zoned properties, enjoy on Vanderbilt Beach. I'm going to start off with a -- an objective media clip that was done by a local television station, and I think it might be a little enlightening to you. Page 85 December 10, 2003 (Video played.) MR. NADEAU: Now, Commissioners, as I move on to a view looking towards the Vanderbilt Inn, you're seeing some fairly extensive high structures surrounding my client's subject property. While it may not be canyonized to the extent of a metropolitan core such as New York or Chicago, this neighborhood's character has already been defined for high density residential development in tall structures. When looking west from the bridge on Bluebill, which is the highest point on Bluebill Avenue, looking towards the Gulf, you can't see the Gulf of Mexico. In addition, you look at the Vanderbilt Inn property being already behind the 100-foot tall Vanderbilt Landings condominium in the foreground. Any redevelopment of the Vanderbilt Inn property with the potential for a 100-foot tall structure is unobtrusive and potentially would be completely hidden by the tall structures lying to the east of it. Now, it's important to understand that there are concepts that are identified in the furore land use element. Let's take a look at one of those concepts that specifically identifies protection of private property rights. Important to every facet of this element is maintenance of a careful balance between private property rights and the general public interest. Although sound land use management by definition establishes limits on use of property, care has been taken to ensure the limits are rational, fair, based on health, safety and welfare of the public, and that due process has been provided. While certainly due process has been provided, it's only your staff that's recognized the balance between the private property rights and the interest of the residents. The Vanderbilt Inn property is entitled. It's not discretionary, it's entitled. This is a fact of the developmental opportunities provided for by the residential tourist zoning district. Those entitlements Page 86 December 10, 2003 include 100-foot tall building heights, 40 percent lot coverage and 16 dwelling units per gross acre. Where do these entitlements come from? They come from our Growth Management Plan and the future land use element which states that in Objective Number 5: Promote sound planning, protect environmentally sensitive lands and habitat for listed species, while protecting private property rights. It wasn't until last year, 2002, in some of the GMP amendments that came before you that you adopted this language into the Comprehensive Plan in that Objective 5. This Objective 5 is implemented by Policy 5.1. Policy 5.1 states that all rezonings must be consistent with the plan. Property zoned prior to the adoption of the plan and found to be consistent through the zoning reevaluation program are consistent with the Growth Management Plan and designated on future land use maps as properties consistent by policy. That particular map is the map FLUE-9 of your future land use element. It depicts those properties that are consistent by policy in the Growth Management Plan. I'll zoom in on it a little bit and you can see that all RT zones within the Vanderbilt Beach area are improved and considered consistent by policy. This is a fact of entitlements being consistent by policy with the GMP. This was ignored by the residents, this was ignored by the EAC recommendation, this was ignored by the Planning Commission recommendation. These are the facts of our future land use element. This is the view of the Vanderbilt Inn looking to the west from the roof of the Vanderbilt Landings condominium. This picture's viewpoint is at 100 feet. From this perspective the Vanderbilt Gulfside condominium to the left is significantly higher. In fact, that condominium tower is 147 feet. But truth in advertising, the actual height is 161 to the top of the elevator tower from the ground. Now, rather than go through the various aspects of how building heights equate to number of residential dwelling units, I gave you the Page 87 December 10, 2003 materials in my power point presentation, and I just wanted to, rather than go into detail, that there are several factors that need to be identified when making this analysis. They are: Lot width, setback requirements, and a marketable size in ceiling heights. If there were going to be a 25 percent -- if there were a 25-foot reduction in the entitled 100-foot building heights in the RT zone on the Vanderbilt Inn, that would be a 25 percent reduction in the number of units, or -- it must be clearly underst -- it must be clearly understood that the residents are proposing extraordinary overlay development standards. Your staff has studied the area for a year and a half and found no change in conditions in the character of the community nor any deficient or potentially deficient public facilities that would warrant substantial changes to the RT district regulations for Vanderbilt Beach. Given the isolated RT zoning that the Vanderbilt Inn enjoys, it would be our recommendation to exclude the Inn from this overlay, should you choose to proceed with it. And to build on some of the comments of the residents before me, let's look at it from a compatibility nature. We've got RMF-16 surrounding the entire Vanderbilt Inn property. Those RMF-16 properties average in height 107.5 feet. These would include the Vanderbilt Towers, Vanderbilt Landings, Vanderbilt Yacht and Racket Club and Vanderbilt Gulfside. In fact, their average number of stories is ! 1.55. Their actual number of units is 64 on average. Their parcel area on average is 3.9 acres. While we do have a 60 percent open space requirement currently in our Land Development Code, which we all must comply with, 53 -- the percent of impervious coverage on our surrounding properties, they average 53.5 percent coverage. That is a deficit of open space of 21.5 -- 21.5 percent. It's for these reasons that the Vanderbilt Inn is consistent with the Comprehensive Plan and it is compatible with the surrounding land uses that are zoned RMF-16, which staff and -- staff has Page 88 December 10, 2003 identified as being nonconforming. My client, while not being a developer, wants to enjoy the entitlements that he currently has and to continue with those entitlements. If you have any questions, I'd be happy to entertain them. CHAIRMAN HENNING: Any questions from the Board? Commissioner Coletta? COMMISSIONER COLETTA: I don't know if you have the answer to that. Could you turn your presentation on, or is it off now? MR. NADEAU: I'll go anywhere you'd like. COMMISSIONER COLETTA: The last picture you had up. MR. NADEAU: Yes, sir. MR. SCHMITT: Do you have the -- MR. NADEAU: Yeah, I'll get it. COMMISSIONER COLETTA: Sorry, I should have spoke sooner. Okay, that will work. Can you identify the buildings that are clustered around the Vanderbilt Inn, what they are? MR. NADEAU: Absolutely I did, Commissioners. CHAIRMAN HENNING: Could you do it again? MR. NADEAU: Absolutely. This is the Vanderbilt Gulfside condominium. It currently has a height of-- get my finger on the right one here. The Vanderbilt Gulfside Condominiums I and II have an allowable height of 75 feet. The top to their parapet wall is 146, 10 inches, pursuant to building Permit No. 785091. COMMISSIONER COLETTA: Actually, that wasn't the question. I just need the names of the -- MR. NADEAU: Of course, sir. Vanderbilt Towers. COMMISSIONER COLETTA: Where is that? MR. NADEAU: Lying to the north. MR. SCHMITT: You can move the -- move the mouse -- Page 89 December 10, 2003 COMMISSIONER COLETTA: Move the mouse a little bit so I can see where you are. Okay, Vanderbilt Towers. MR. NADEAU: Vanderbilt Towers lying to the north. The Vanderbilt Landings Condominiums lying to the east. The Vanderbilt Yacht and Racket Club, lying -- COMMISSIONER COLETTA: Sir, you're going too fast, please. MR. NADEAU: I apologize. COMMISSIONER COLETTA: Go back to the Vanderbilt -- CHAIRMAN HENNING: Towers. COMMISSIONER COLETTA: I've seen the Vanderbilt Towers. Go to the next one. MR. NADEAU: The Vanderbilt Landings I and II. COMMISSIONER COLETTA: Okay. Okay, those two buildings, right? MR. NADEAU: Yes, sir. COMMISSIONER COLETTA: And then one more, right there. MR. NADEAU: Vanderbilt Yacht and Racket Club. COMMISSIONER COLETTA: Is this coincidence they're all named Vanderbilt? MR. NADEAU: And then finally to the southwest is the Vanderbilt Gulfside I and II. COMMISSIONER COLETTA: I and II? Where's II? Oh, II's over there. MR. NADEAU: Yes. COMMISSIONER COLETTA: Okay. CHAIRMAN HENNING: Is that it? COMMISSIONER COLETTA: That's it, thank you. CHAIRMAN HENNING: Commissioner Halas? COMMISSIONER HALAS: Under today's codes, what would -- those two buildings to the south of Vanderbilt Inn, what would they be built to? Page 90 December 10, 2003 MR. NADEAU: They are permitted 75 feet in height and enjoy 16 dwelling units per acre. COMMISSIONER HALAS: That's the standard zoning today? MR. NADEAU: RMF-16, Commissioner, permits 75 feet in height. COMMISSIONER HALAS: Okay. Thank you very much. MR. SCHMITT: Rich Yovanovich is the next speaker, followed by Joe Connolly. CHAIRMAN HENNING: Okay. After Rich, are we back to public speakers? MR. SCHMITT: Yes. MR. YOVANOVICH: Good evening, Commissioners. For the record, Rich Yovanovich. I noticed staff had an hour and 14-minute presentation; I think we've used 14 minutes so far, so I guess I have an hour to go. But thankfully, I don't think I'm going to be anywhere near that. COMMISSIONER HALAS: As long as you brought pizza. MR. YOVANOVICH: I brought the pizza. It's outside. I think we've either loss sight of or we've taken some liberties with why we went through this overlay process in the first place, or this moratorium to -- the moratorium was to study an area, because there was a perception that we could end up with a canyon effect in the RT area, or actually the Vanderbilt Beach area, if we didn't do something about the regulations. So we went through a study and your staff went through a study, and to their-- remember, staff is the only one here who doesn't have a vested interest in the outcome. The residents have a vested income, my client has a vested interest, but your staff does not. And your staff went through an analysis and determined, with some tweaking of the existing regulations, we can assure the residents of Vanderbilt Beach they would not end up with a canyon effect. And what was the tweaking? The tweaking had to do with the Page 91 December 10, 2003 setbacks, the side setbacks, because under the wedding cake scenario you could get to 100 feet on very narrow lots. Without the wedding cake scenario, less than-- approximately 37 percent of the lots can get to 100 feet. Many of those are already developed and are already over 100 feet. And I think Commissioner Coletta, you asked that question earlier, how many buildings will get to 100 feet under the new regulations, adjusting the side setbacks. And the answer is a maximum of 19 buildings can get to 100 feet because they're wide enough to possibly get to 100 feet. So with that being said, staff has done what they were directed to do, study what is the canyon effect, and they have come back and told you how to avoid the canyon. They have also told you how you can increase views to the water by increasing the setbacks. They've done exactly what they were told to do and brought to you a very reasonable proposal. I want to make it clear that Mr. Pelham brought up the Burt Harris Act, and he told you that it applies to vested rights and existing uses. I don't know if he really clearly defined to you what an existing use includes. And under the act, the term existing use includes potential future uses which are reasonably foreseeable, non-speculative land uses. So let's just talk about the Vanderbilt Inn, because that's a property I think we're all familiar with. The zoning right now today is RT. It allows 16 units per acre. It is consistent with your Comprehensive Plan at 16 units per acre because we went through the zoning reevaluation process and you saw that the map that determined RT zoning is consistent with the Comprehensive Plan at 16 units per acre. So it's allowed 16 units per acre. It's allowed by right 100 feet. It's also allowed to come in and ask for a conditional use to get up to 125 feet. But by right today, but for the moratorium, we could come in at 100 feet at 16 units per acre. That results in 77 units on the property. It's approximately Page 92 December 10, 2003 4.82 acres. What the residents are proposing, and I'm not exactly -- I guess they've now sort of adopted what the Planning Commission has said and I think they're at four units per acre density-wise and 60 feet in height. Well, the height doesn't really matter, because at four units per acre, we're down to 19 units, and we're not going to get very high with 19 units. What that does from a value standpoint, and I've got the appraisal, I'm ready to do what I've got to do to file the Burt Harris claim, and we'll do that, so -- I know, I know Mr. Pelham is right, the mere adoption of the regulation is not a Burr Harris claim. We'll do what we have to do to go ahead and bring the claim forward. What does that mean from a value standpoint? Well, the property today is worth upwards of $50 million with its 77 units. We've got an appraisal to back it up and you can get the information from the property appraiser as well. So it goes from a $50 million project to, at 19 units per acre, to $12 and a half million. So it's a $37-and-a-half million issue just for the Vanderbilt Inn, based upon the changes in regulations. And that's -- that's from your numbers. That's from your economist who valued them at $650,000 per unit. It's pretty darn close to what our appraiser says as well. Interesting, I heard a comment today that kind of shocked me. I can't believe that someone would say that, maybe I misheard it, but as you go higher, there's no difference in assessed value in the building is what I heard -- I think I heard him say. So when you get to the ninth floor the unit sells for the same as the first floor. Maybe I misheard that, and I hope I did, because we know that's not correct. We know as you go taller the units are worth more money. The -- we need to focus back on the facts and where are we? The facts are that the traffic, the road is operating at level of service B. It's adopted level of service D. So it's exceeding its capacity. That was one of the things for staff to study. Page 93 December 10, 2003 There's no issues with utilities, there's no issues with hurricane evacuation, because in that part of town it's approximately nine hours from the adopted level of service of-- I think it's approximately 28 hours to get out. So we're well in advance. We have more than enough hurricane evacuation time under the county's Comprehensive Plan. We're not increasing density. The density already exists at 16 units per acre. So the implication that we're increasing density in the coastal high hazard area is not factually correct. Your -- let's just say we go to the 75 feet that I think is a kind of a compromise position based upon the County Attorney's opinion, assuming you keep the 16 units per acre. Your own staff analysis indicates that it's a 25 percent decrease in value on the property. You can do the math. It's still about a $13 million issue if you bring it down to 75 feet, leaving the same density. Mr. Nadeau has already pointed that out to you that as you come down you lose units because you build marketable units, and the size of the unit is important in getting-- in commanding the highest price. This proposal, interestingly enough, decreases the public's ability to get to the beach. It eliminates the ability to have private clubs for people who don't live on the beach to get to the beach. It eliminates private boat docks for those who own waterfront, which is contrary to everything I've been hearing people saying, that we need to provide boater access. But right now, as proposed by the residents, there'll be no private boat docks on the bay side. That's what the proposal is in front of you, it strikes boat docks as an accessory use. Maybe it was a mistake. Who's coaching me? CHAIRMAN HENNING: Would the public please -- they'll get their time. All you have to do is sign up on the speaker slip and we'll recognize your time. MR. YOVANOVICH: The bottom line is, and I don't want to Page 94 December 10, 2003 be too repetitive because I think your staff did an excellent job in their presentation, is that the canyon will not occur because of the changes in the setback. You will not be able to get to 100 feet on most of the lots. And we've done the analysis, and I could provide it to staff if you want it. A lot of-- frankly, a lot of the buildings under the staff proposed regulations will barely make it to 50 feet. Now, there'll be a few that can get to 100 feet. But if you'll look at the photos shown by Mr. Nadeau, there already are a lot of 100-foot buildings out there. What we're requesting that you do is you follow the staff's recommendation. It's based on sound planning logic. They've done the analysis, they've assured what you wanted was to avoid a canyon, they assured that the transportation network is functioning appropriately. We know that the hurricane evacuation times are in accordance with the adopted standards. The residents' proposal goes well beyond any sense of fairness, reasonableness or even logic. I don't understand the logic of taking away 12 units per acre from the property. I don't understand the logic of coming down to 60 feet when you can't get a canyon with the 100 feet. We think that the best thing to do is follow your staff's analysis, go forward with their recommendation, avoid litigation. You will hear from others that will be affected by this. Signature Communities is also affected by this, they've got a beach club that will no longer be an allowed use. Vanderbilt Inn is affected. I think you'll hear from LaPlaya. This is a far-reaching regulation, it greatly diminishes people's values in their property. It certainly goes beyond-- I mean, there's -- you could have a fire, but as we know, buildings at some point, like the Vanderbilt Inn, they wear out and they need to be replaced. There will be people who are in older condominiums that over time will wear out and need to be replaced. They will not be entitled to build back by -- and they should not be entitled. Because if it is a -- if you say 100-foot building is a bad Page 95 December 10, 2003 thing, all 100-foot buildings are bad things. The purpose of nonconforming uses is to allow these quote, bad things to go away over time. All of those buildings out there, including the existing RMF-16 buildings, are nonconforming uses and they're supposed to go away over time. Any build-back policy that just benefits them is not defensible. If that building is a legitimate building, then certainly the Vanderbilt Inn's building at 100 feet is a legitimate building. They're either all good or they're all bad. You can't distinguish between the two. We think that staff has proven that the Vanderbilt Inn at 100 feet is appropriate and other buildings that could get to 100 feet would be appropriate and there will not be any canyon. With that, we hope that you'll, again, follow staff's recommendation. And I'm happy to answer any questions about the Burt Harris Act or anything else that you think is appropriate. COMMISSIONER HALAS: I've got some questions here. Presently RMF-16, I think we've identified now is 75 feet. It seems that staff also made a comment in that there was a right-of-way of 70 feet for road there. I think some residents went out there and sent me an e-mail in regards to that. And some of the properties out there have encroached into that 70 feet of right-of-way. So in reality all we have is 1 O-foot car lanes and four-foot bicycle lanes. And I guess -- I wish we had some people from transportation here to answer the question on the level of service in regards to the surrounding roads such as Pine Ridge, and I'm looking at the intersection of U.S. 41 and Pine Ridge. I'm looking at the whole road length of Immokalee Road. I'm looking at the road of-- the 1-75 road. I believe that's in a failure mode now. And also, I think we got a wake-up call here about two weeks ago on U.S. 41 and whereby we had a gas line that got ruptured and caused total chaos. So when somebody said that we're in compliance with hurricane evacuation, I got to really see the charts and the maps Page 96 December 10, 2003 in regards to that. And I'm -- you know, it's not for you, I'm just saying in general. It's part of the whole picture in regards to where we are at this point in time. MR. YOVANOVICH: I'm kind of-- I'm glad you brought that up. Because first of all, Vanderbilt Beach Road is constrained because the residents want it to be constrained. They decided not to let it expand to what it needed to be. COMMISSIONER HALAS: It's not those residents -- MR. YOVANOVICH: And another point is, the Vanderbilt Inn would be a redevelopment project. And the Vanderbilt Inn today as a hotel will generate more traffic as the -- than the Vanderbilt Inn as a condominium will generate. So the conversion to the number of units were requested as residential units will actually be better for the traffic situation than leaving it as a hotel. So I think those are things that have not been factored into the discussion. But it already appre -- it's not going to hurt the situation to redevelop it as a residential development. COMMISSIONER HALAS: Then one other question I'd like to ask about the Burt Harris, and maybe Mr. Pelham can chime in here for a second, and I'll be finished. CHAIRMAN HENNING: You can ask him up. Mr. Yovanovich has the podium at this time. Do you have any questions? COMMISSIONER HALAS: No, I'm all finished. CHAIRMAN HENNING: You stated that in the law it says any potential furore uses? MR. YOVANOVICH: Yes, sir. CHAIRMAN HENNING: What do you consider uses? MR. YOVANOVICH: Well, right now the zoning ordinance allows for residential multi-family development at 16 units per acre. CHAIRMAN HENNING: Uses as residential? Page 97 December 10, 2003 MR. YOVANOVICH: It could be residential, it could be a brand new hotel. But those are existing uses by definition on the Burt Harris Act. We could go to a condominium, and that is a reasonably foreseeable use. It's pretty self-evident, since most projects that are commercial are redeveloping to condominium. I think that's clearly going to be an existing use by definition under the Burt Harris Act at 16 units per acre. CHAIRMAN HENNING: Is 16 units per acre, is that a use? MR. YOVANOVICH: That is by right an allowable use under the pro -- under the zoning ordinance. A residential condominium at 16 units per acre is a use that is allowed by right today. CHAIRMAN HENNING: Any further questions? COMMISSIONER FIALA: Yes, I do have one. If that's an allowable right today, the 16 units per acre, does the Growth Management Plan that says four units per acre in the high hazard area, the coastal high hazard area, doesn't that override it? MR. YOVANOVICH: No, it doesn't, Commissioner, because what nobody has explained yet is that there is a policy in the Comprehensive Plan that recognized when the Comprehensive Plan was adopted, there may be properties that were not consistent with the Comprehensive Plan. And we went through that zoning reevaluation process, and through that zoning reevaluation process the Board of County Commissioners determined that certain properties that were zoned inconsistent with the new adopted Comprehensive Plan regulations would nevertheless be deemed consistent by policy. So what does that mean for our piece of property? If there is this mythical limitation of four units per acre in the Comprehensive Plan, it doesn't apply to the RT zoned property on Vanderbilt Beach, because the Board of County Commissioners has already determined that that particular zoning at 16 units per acre is consistent with the Comprehensive Plan. So you've already determined that 16 units per Page 98 December 10, 2003 acre is consistent with the Comprehensive Plan in this part of the county, even though it's within the coastal high hazard area. COMMISSIONER FIALA: Whoever made up that law? MR. YOVANOVICH: Well, interesting, again, another good point would be -- think about this: If it's truly four units per acre and you couldn't deem it consistent by policy, your hurricane build-back ordinance would not be valid because it would be inconsistent with your Comprehensive Plan because you couldn't build back to 16 units per acre if your Comprehensive Plan limited you to four. So that whole area was deemed to be consistent under the zoning reevaluation ordinance. COMMISSIONER FIALA: I'm sorry for my confusion but, you know, being that it's right there on the coast and it's a high hazard area, and that's considered four units per acre, how did we ever get to 16? But that's another story for another time. MR. YOVANOVICH: Because that's the way it was already developed. CHAIRMAN HENNING: It was there -- MR. SCHMITT: Itwas there. CHAIRMAN HENNING: -- before the Growth Management Plan was adopted in 1989. This property has had that zoning for 30 years plus. COMMISSIONER FIALA: But for the existing use, right? MR. YOVANOVICH: Which is the zoning on the property, Commissioner, the existing zoning on the property, RT, at 16 units per acre was deemed consistent. CHAIRMAN HENNING: Commissioner Halas? COMMISSIONER HALAS: So how does this fall in line with 9J-5 of the Florida Statute? MR. YOVANOVICH: Remember, as Mr. Pelham pointed out, and it was probably under his watch that this provision was originally approved, the DCA determined that this determination of consistency Page 99 December 10, 2003 and the allowing of 16 units per acre was consistent with 9J-5. We are consistent with 9J-5. That's been determined. COMMISSIONER HALAS: Okay, that's interesting. CHAIRMAN HENNING: Okay. Thank you. MR. YOVANOVICH: Thank you. MR. SCHMITT: Joe Connolly, followed by John Stevens. COMMISSIONER COLETTA: Excuse me, Commissioner Henning? CHAIRMAN HENNING: Yes. COMMISSIONER COLETTA: Would it be possible that these people that are the residents of that area, when they come here, if they could identify where they live and how this will affect them, possibly what floor they live on? Would that be appropriate to ask that? CHAIRMAN HENNING: I guess. COMMISSIONER COLETTA: It would give me a better vision of what we're up against. CHAIRMAN HENNING: It's their five minutes. Mr. Connolly. MR. CONNOLLY: For the record, my name is Joe Connolly, and I live at 10633 Gulfshore Drive. And I'm right across the street, Mr. Coletta, from the infamous Bellagio Grand, one of the sore spots on Gulfshore Drive. In my business career I spent two years in Ireland and I was in a new plant operation getting the plant started and we had untold problems. And every time we had a problem we said oh, God, this is terrible. And the Irish people would always say oh, it's like the rocky road to Dublin. And for the last two years, the property owners feel like we've been on the rocky road to Dublin. We are being held captive by one property owner. And I think it's very unfair for one property to try to direct what the entire neighborhood and the people that live there want in trying to protect the environment that they live Page 100 December 10, 2003 in. We happen to like the character of the area that we live in and we want to protect that area. Now, if they've got a problem, let them come to you on an individual basis and solve that problem, but don't try to tie up 3,100 families, for Christ's sake. The staff has said there's no nexus for change. You heard the word nexus tonight, that was a new one they've been using in this series of presentations. And I maintain there is. We the property owners have rights also, not just the developers. And we happen to like our neighborhood. Just for your information, the tax valuation on Gulfshore Drive and the finger streets is $1.4 billion. One point four billion dollars. What do we get for the taxes for that $1.4 billion: Substandard road, substandard side -- or non-existent sidewalks, substandard bicycle paths, no storm drainage, marginal water and sewer. And, you know, the people that live there, just by the nature, we're not using the school systems very much. We don't have many children going to school. And all this tax money, we are a donor to other areas in this county. So if there's some concern on-- you know, if there is a lawsuit, who's going to pay for it? We've already paid for it through our tax dollars through the years, and we should be given some consideration for that. There is no need to, you know, hold up an entire community for one individual who's not even a resident of the State of Florida. So Commissioners, I hope you'll do the right thing, and the right thing is to support the community plan. Now, they mentioned boat docks, and we do not have boat docks in our plan. Somebody has got that confused with the boathouses. We're not against boat docks. Anyway, do the right thing. And I hope that you all have a -- and your families have a very happy holiday and a great 2004. Thank you. Page 101 December 10, 2003 CHAIRMAN HENNING: Same to you. MR. SCHMITT: John Stevens, followed by Mick Moore. Or Mick-- I'm sorry, Mick-- MR. STEVENS: Jack Stevens, I live at 10663 Gulfshore Drive. I can't understand how the staff would really -- the purpose in going against all the people on -- what we're asking for is very reasonable. And the other thing is, if it is indeed a fact that in the case of a fire, let's say an illegal building was destroyed that couldn't be rebuilt, I think all the real estate people should have to start making that clear in sales contracts. I think that's insane. I don't think that the code even says that. I mean, it's not a fair situation and you have to disclose in the real estate business, and that should be in there on any building that's not meeting the present code. And the other thing is, now they want to build this building. Well, what's going to happen, typical. Across the street from one, 100 feet, half of the building height setback. Well, I don't know where this wedding cake came from, but that's a phony and we all know it. So now they end up -- and the same thing that'll happen there. They'll end up with a building -- why didn't they ask for a 200-foot building so they can say they're losing another $50 million? You know, I mean, it's just that the, the -- I think it's about time the county starts to accommodate all of us. It's all the people except for one individual that's looking for something beyond the stars. We're being very reasonable. And I think this Burt Harris thing is a big joke, too. Thank you. CHAIRMAN HENNING: We're going to change out the court reporters, so let's take a 1 O-minute break. (A short recess was had.) CHAIRMAN HENNING: Mr. Schmitt, next speaker, please. MR. SCHMITT: Mick Moore, followed by Mike Moore. CHAIRMAN HENNING: Okay. MR. MICK MOORE: Good evening, Mr. Chairman, Page 102 December 10, 2003 Commissioners. My name is Mick Moore, and my grandfather began operating the Vanderbilt Beach Resort in 1968. My family has owned the property ever since and my father is currently operating the hotel. Before I begin my remarks, which will be rather short, certainly less than 10 minutes, I'd just like to say that -- five minutes. I know the Commission has a difficult decision to make, and I urge the -- each individual Commissioner to ask the following questions when deciding how they want to approach this issue. Number one, is -- are all the elements of this ordinance that are before you necessary? Number two, are they fair? And number three, why are we putting them in? Why are we enacting them? I want to give you a little history of our property on Vanderbilt Beach, tell you what our plans are for our property and how the zoning overlay is going to prohibit us from doing what we would like to do to the property. Let me start with a little history of our property on Vanderbilt Beach. Our structure was built in 1951. It was the very first structure on Vanderbilt Beach. That's a picture of one of the three buildings that make up the Vanderbilt Beach Motel right now. As you can see, there's nothing else there. I'm going to show the picture from a slightly different angle. That's looking from Vanderbilt Lagoon across to the beach. And you can see our, our -- I think at that point it looks like, yep, just one building there and certainly nothing else around it. COMMISSIONER HALAS: Where was this in relationship to where Bluebill would be today? MR. MICK MOORE: This is on the very southern end of Vanderbilt Beach. We are about two lots from the public access down at the -- where they're going to build the garage near the Dipper Dell (phonetic). We're about two or three lots away from there. Page 103 December 10, 2003 My grandfather purchased the motel in 1968. There were no high-rise condominiums on the beach at that time. There were two small hotels, Seaside and King's Crown, which has gotten some discussion tonight. La Playa was built in 1969, Vanderbilt Inn in 1974. My father began operating the hotel in 1977 when I was eight. I learned how to swim in that pool. Most condominiums were developed after the sewer was installed in 1974. Rapid growth was in the 1970's and 1980's under the RT zoning. The RT zoning was largely built out by the end of the 1990's, with an average height of six stories. We've seen Vanderbilt Beach grow a lot over the past 35 years that our family has been there. We still think that it's a great place to live and visit, even under the existing zoning, and we plan on being here a long time into the future. Let me tell you what our plans are for our property and how the zoning is going to affect it. We currently operate a 50-room motel and restaurant. On the Elmo (phonetic) here, you can see that these three buildings here, one, two, three, that's our current -- our current motel with the restaurant, the Turtle Club being right where my finger is. Across the street is the -- is a condominium. That is not owned by my family, that's owned by individual unit owners. That was built, I believe, in the late Seventies, early Eighties, but it's not owned by our family. Of the three buildings that were built, the one in 1951, the one I showed you in that very old picture, that was built in '51, the other one was built in 1960 and the last one that houses the Turtle Club was built in 1979. Our center building, the building that was built in 1951, went through Hurricane Donna and now has major problems with the cast iron plumbing. To echo some of what Mr. Jer-- what Mr. Jerry Nerad said, that building has reached the end of its useful life and needs to be Page 104 December 10, 2003 replaced. Our other buildings are also old and need major renovations in order to compete with the marketplace. We're a very small hotel, and in trying to compete with some of the bigger ones, we have to -- we're going to have to do a lot of things, especially in light of the huge increases in property taxes that have occurred in the past few years. A few years ago we looked at different options for the property. You may recall that just before the moratorium, almost two years ago, we submitted a site plan to develop part of our property into a condominium. It simply was not effective at that time to continue that portion of our property as a motel. We submitted our plan to the county just before the moratorium went into effect, and we were found to be exempt from the moratorium under an exemption that was specifically put into the moratorium. That condominium project has been proceeding for the past two years on the understanding that the project is subject to the existing zoning in place and it will continue to be subject to the existing zoning, even if an overlay is passed. We expect to start construction on that condominium in January. Although part of our property is going to be developed into a condominium, we are going to continue to operate a smaller motel and the on-site Turtle Club restaurant in this building right here. I want to point out that with these changes, even with the addition of the condominium, our overall density is decreasing and we have given beach access as part of the CCSL line variance procedure on the north side of the property. I'd ask for a little indulgement of time since I do represent a property owner. I'm almost done with my comment. CHAIRMAN HENNING: Okay. MR. MICK MOORE: As for the remaining motel, we'd like to make some major changes to the motel. That's an artist's rendering Page 105 December 10, 2003 of what we'd like the new remaining motel building to look like. What's really been done to it is we'd like to add a third floor to the building, and on the second floor in the front, we'd like to add a meeting room. This meeting room would be available for guests of the hotel, for small conventions, and also for public people to come and meet for luncheons, maybe rehearsal dinners. It's something that's not really available right now on the beach. We think these changes will be a benefit to the community. We've met with the residents' groups who have appeared tonight and they have all expressed approval of these plans to build this building right here, and they don't oppose any of the plans. But we believe the current existing overlay that's come out of the Collier County Planning Commission would prevent us from doing this, and that's why we're opposed to it. Let me comment on a few specific provisions. First, let me say we've been working with the Vanderbilt Beach residents all during the moratorium to try to come up and have them address some of our specific concerns about the zoning. We thought that we were going to be able to have them offer some changes to the Planning Commission version which might satisfy some of our concerns, but those changes haven't been offered and they're not part of the Collier County Planning Commission overlay. And that's why we do oppose it. Specifically, the overlay as presented by the Planning Commission provides that hotels and motels are no longer permitted uses. This makes us nonconforming. This is a huge problem. If we are destroyed, we can no longer build back as a hotel. We are no longer a permitted use. Even though we were the first use on the beach in 1951, we are now being told we don't want hotels anymore on this beach. Many people first came to Vanderbilt Beach and their first exposure to it was to stay at our hotel. Second, density. This is the most drastic reduction that hurts us Page 106 December 10, 2003 the most. A reduction of density from 26 units per acre to 16 for transient accommodations would prohibit us from doing this. We would not be able to do this. Even though we want to reduce our density from 20 units in that building right now to 16, we have slightly less than an acre, so we couldn't even have 16 units on that piece of property there. Third, maximum lot area coverage. The current draft requires no more than 35 percent lot area coverage for this piece of property. Before there wasn't a lot area coverage for transient accommodations. Will we meet with 35 percent? We don't know. We want to add an elevator, and we don't know if that's going to put us over the edge. But we're opposed to the addition of that because there's a risk it will put us over the 35 percent. The build-back policy, there's been some talk about that. Originally the residents had proposed a build-back policy. We certainly want a build-back policy in any overlay because if our hotel is destroyed, our livelihood is destroyed, we want to be able to build it back and operate it. Third, private docks. We want private docks to be permitted uses in the overlay. The residents agree. But it's not in the Planning Commission version. This is a problem that needs to be addressed. Finally, a vesting provision. Our condominium, which we've been in the process of going forward with for two years after being found exempt from the moratorium, if an overlay is passed, we would like the Commission to include language indicating that any site plan that was completed, submitted and accepted by staff prior to the moratorium was not only exempt from the moratorium but would be exempt from the overlay and would be allowed to develop under existing standards. We think those are our rights anyway, but we'd like recognition of those rights. In summary, if you enact what came out of the CCPC, we will not be able to engage in our immediate plans to develop the property, Page 107 December 10, 2003 which the residents don't oppose those plans and which we think would be a benefit to the community. You've got a tough decision to make. I'd ask you to, again, consider as you look at this matter, is it fair, is it necessary, and is it the right thing to do and why are we doing it? We propose -- or we submit that the County Commission reject the Collier County Planning Commission's recommendation and go with the staff proposal. The staff proposal would allow us to do what we want to do on the property. I'll answer any questions, if any of the Commissioners have any. CHAIRMAN HENNING: Questions? Thank you. COMMISSIONER HALAS: I think he falls -- he still falls under the rules of the existing codes that are present, because you got under the wire. CHAIRMAN HENNING: That's a question for staff to answer, Commissioner. Mr. White, you have a site plan that's been accepted by the community development? MS. STUDENT: I can answer that. For the record again, Marjorie Student, Assistant County Attorney. Without some language in the code, because these -- this person was exempt from the moratorium, it didn't say anything about forthcoming regulations. The policy has been in the county that if you have a complete and sufficient application in for the site plan, that staff has taken the position to allow a person to go under the old regulations. Case law-- and that I think would be better to have that written in the overlay regulations to make that clear, if it's the Board's direction. MR. MICK MOORE: And that's -- that's what we would request, just so it's clear. CHAIRMAN HENNING: Okay. Thank you. COMMISSIONER COLETTA: What about -- before you go Page 108 December 10, 2003 away, what about the build back? MS. STUDENT: On the build-back policy, we are already covered by 317, and that covers the use that you have. It says in there actual use. I would have to look at one of the iterations which I had seen many months ago now as to what the proposal was for build-back before making a decision as to whether that would be appropriate to include in there. But we're all -- everybody's covered by 317 already and it covers use. COMMISSIONER COLETTA: Could we possibly repeat it again in this document? MS. STUDENT: We could reference it, Division 317. It's rather lengthy, so to repeat the whole thing could be problematic, but we could tie it into Division 317. MR. MICK MOORE: And just one issue before I step down from the podium. Making hotels a nonconforming use drastically affects what you can do to your property, because nonconforming uses cannot be increased. There are drastic limitations on what you can do to nonconforming uses. I'm sure Bruce Anderson or Rich Yovanovich would know better than I, but I know it's very limiting and we're very concerned about that. CHAIRMAN HENNING: Thank you. MR. MICK MOORE: Thank you. CHAIRMAN HENNING: Mr. Schmitt? MR. SCHMITT: Just for clarification, the existing -- the staff proposal and the Planning Commission all authorize hotels, motels and time shares, so I'm not sure where Mr. Moore was under the impression that hotels would be eliminated, but -- CHAIRMAN HENNING: Well, the -- Ms. Ketcham stated that they would like a conditional use for-- MR. SCHMITT: Oh, I understand. COMMISSIONER HALAS: Conditional use. MR. SCHMITT: Yes. Page 109 December 10, 2003 MR. MICK MOORE: Actually, in the -- what I saw in the packet today and what I had been provided with before the meeting, hotels and motels are crossed out as permitted uses in the Collier Planning Commission's overlay. MR. SCHMITT: It would be a conditional use. MR. MICK MOORE: Which means that they're nonconforming and all the problems associated with a nonconforming property would -- CHAIRMAN HENNING: Commissioner Fiala? COMMISSIONER FIALA: Yes. This was the property I was talking about before when I asked about if they put on a third floor, which would still be under the height limit, it wouldn't be a problem at all, and they wanted to reduce their density from 20 to 16. I was asking, because they already reside there and are still operating as a hotel, if then that would be included, if that would be what Mr. Pelham was talking about, and he verified that yes, it was. CHAIRMAN HENNING: Well, it depends on which plan the Board of Commissioners adopts. COMMISSIONER FIALA: Oh, that's true, that's true. Okay. MR. MICK MOORE: Thank you. COMMISSIONER FIALA: Thank you. CHAIRMAN HENNING: Next speaker. MR. SCHMITT: Mike Moore, followed by Ben Gildersleeve-- I hope I got that right. Ben left, okay. Mr. Moore. MR. MIKE MOORE: Good evening. My name is Mike Moore, Sr. And since my son has taken more than his five minutes allotted time and it's getting very late, and he's so eloquently said what I cannot say as well, I will be very brief. Actually, I've been coming to the Vanderbilt Beach for 35 years and possibly longer than anybody else in this room. I've seen the beach grow, and I think it's grown fairly well, considering how it Page 110 December 10, 2003 could have. My dad did buy it in '68, I came down in '77, so I've actually been here for 26 years. I have some real problems with the proposed overlay from the CCPC, as my son has also mentioned, and I echo his concerns. I believe that property rights have to be considered in anything that's been decided by the Board of County Commissioners. And I'm just reminded of the four-way test for Rotary. Two of the points of the four-way test is, is it fair to all concerned and will it be beneficial to all concerned. And I don't think that the present language in the CCPC overlay meets that test. Thank you. CHAIRMAN HENNING: Question? MR. MIKE MOORE: Yes. CHAIRMAN HENNING: The hotel used to have the seafood buffet, right, years ago? MR. MIKE MOORE: That's the Vanderbilt Inn. CHAIRMAN HENN1NG: Oh, that's the Inn. All right. MR. SCHMITT: James Hammond. James Hammond, followed by Bruce Burkhard. UNIDENTIFIED SPEAKER: James Hammond has left. MR. SCHMITT: Bruce Burkhard, followed by Carol Wright. MR. BURKHARD: Good evening, Commissioners, my name is Bruce Burkhard. I live at 283 Oak Avenue, in the Vanderbilt Beach area. And I too will try to keep it fairly brief. Mr. Schneider said earlier that it would be impossible for buildings to reach the maximum of 100 feet in height. And the claim is that the remaining lots are small and that height will be limited by the size without changing the height limitation. So why then do we the residents want formal change? Why do we want to lower the maximum height? Their logic only applies to new development. There are larger lots with buildings that can be redeveloped. So this is a concern for us. Second, there's a substantial history of granting building permits Page 111 December 10, 2003 for nonconforming buildings. There are also cases of borrowing land temporarily to increase density or lot size. We want to stop this for the future. Staff also argues that we should not measure differently from the rest of the county. Overlays are by definition special. This means they are recognized to be different from other zoning areas. Ave Maria is different, the Eastern Lands are different. They will have their own rules and the staff has drafted those rules. Vanderbilt Beach we feel is also different. Don't be reluctant to accept a building height of 75 feet from the crown of the road or 60 feet over FEMA. Either way, this yields 75 feet, which is truth in advertising. Seventy-five feet is the height the County Attorney says is defensible, and he says you can choose where it's to be measured from. Thank you. CHAIRMAN HENNING: Thank you. MR. SCHMITT: Carol Wright, followed by Susan Stiefel. MS. WRIGHT: Good evening, Commissioners. My name is Carol Wright and I'm still on the board of the Vanderbilt Beach and Bay Association. I live at 9362 Gulfshore Drive. I am here tonight to point out to you the support that we have for this from the residents in Collier County. I have in my hands a lot of petitions. I have 1,408 signed petitions that endorse the community's overlay. Some of these people, the ones who got the yellow sheets, these were sent in our newsletters. Therefore, they had to sign them, cut them out, address an envelope, put a stamp on it, mail it and send it back to us. And there's a lot of these. It just shows me that people are determined to go to a little bit of work to support us. I also want to mention that I know that you have received in the last couple of days a letter endorsing us also from the greater Naples Resident Council. It probably looks something like this. This council is comprised of property owners' associations all Page 112 December 10, 2003 over Naples. It's not just Vanderbilt Beach people, it's every association in even all of your districts. This council is composed of 50,000 owners that make up all of these associations. The citizens are just plain tired of the development and the highrises that have been going on for years. And this is just one little way that they can say we support you people. So with the figure of 50,000, plus our petitions, we ask that you listen to all of these people who are concerned about our neighborhood and help us preserve our fragile high hazard coastal. Thank you. CHAIRMAN HENNING: Thank you. MR. SCHMITT: Susan Stiefel, followed by B. J. Savard-Boyer. MS. STIEFEL: My name is Susan Stiefel. I live at 336 Oak Avenue on one of the finger streets in the Vanderbilt Beach area. I'm concerned about the sunshine. I watched the rolling video that opened the presentation at 5:15 today, and when the camera was viewing to the west, all along -- pointing towards the Gulf from the north to the south, all along Gulfshore Drive, there's not one time that I saw the ocean. The ocean has already been blocked by the buildings and by all of the trees and landscaping. When they panned to the east and showed the lagoon, the only time you could really see the lagoon was when they were in the single-family dwelling area, and then you had some pretty good water view and some views of some boats, and it was very pretty. The rest of the time it was just buildings and landscaping. I also noticed one other thing. I don't know what time they shot that video; I was trying to decide from the shadows on the streets and in the yards. But there was no sunshine on that -- on that street except down where the single-family dwellings were, which heights now are one floor and sometimes two floors in there. The sunshine is gone, they call it natural light access. The view corridors are gone. I know for a fact the 36-foot building next to me was a new house that Page 113 December 10, 2003 was just built to the maximum height in our neighborhood, cast an 80 something foot shadow, because I went out and I measured my lot and I measured the existing lot and how far it went over at 4:00 this afternoon. That's one house, 80 feet at 4:00. If you want to go walk on -- walk on Gulfshore Drive or bike on Gulfshore Drive in the afternoon or in the early morning, there is no sunshine during season, during the winter, it is cold out there. And unless we can continue to at least fight what battle we have left and lower the heights, it's just more of the same. More cold, more shadows. And that was really all I had to say. Thank you. MR. SCHMITT: B.J. Savard-Boyer, followed by Jonathan Palmer. MS. SAVARD-BOYER: Good evening, Commissioners. B.J. Savard-Boyer. ! live at 479 Palm Court. I am currently president of the Vanderbilt Beach Property Owners Association. I have a couple of points that I would like to bring to you. We talked earlier about King's Crown, and I happen to know about four families that live in King's Crown. I believe presently there are at least eight units on each floor. It's a two-story building. So if you take -- if there are nine units, eight or nine units, if you take those 18 units and approximate that they could sell for $225,000, which somebody might pay that, even though these units are only about 500 square feet, they have a swimming pool outside, they also have a boat ramp. Most of those people love living there. I don't know that they would even want to sell it. But say that they did sell it and they got over $200,000. That would equal 4,050,000. According to Mr. Fishkind's plan, he said that if they rebuilt and it was four stories with seven units, it would be 4,974,000. So presently you're almost where he predicted it to be. So first of all, for it to be tom down and seven people out of 16 or 18 people, it's not going to happen. So that makes that statement a little different. Page 114 December 10, 2003 The other one that I'd like to bring to the attention is that there is a condominium on Seagate Drive, the address is 100 Seagate Drive. It's Seahouse Condominium. It's six stories high. I have printouts here. And their estimated market value on the first floor is a million, 42. On the second floor, it's a million, 52. Third floor, a million, 62. Fourth floor, a million, 72. Fifth floor, a million, 82. And sixth floor, a million, 92. This is not a newer building. The most recent sale was in November of 2002 and it sold for $2 million. It's on the beach at Seagate. I believe, I could be wrong, but I think Mr. Yovanovich said that the Vanderbilt Inn property was worth 50 million? Is that accurate? Okay. And then he said if you cut it down to 19 units, they're not going to make 50 million. Well, if you have 19 units on the beach and you can sell them for 2 million, that equals 48 million. So he's not that far off. He's only 2 million off. And maybe he could put greater things in it to make it a little more than 2 million. The building across the street called the Beachcomber or Bellagio, presently they're on the market at 2 million. So I truly believe that if he doesn't get his 77 units and only can build 19 or 20, he's going to have the revenue he wants. And I understand how he wants to have revenue for his children and his grandchildren. When we moved to Naples, we didn't have a heck of a lot of money, but we invested in property. And John and I have nine living children and we have 14 grandchildren, and, my God, I would love to leave them all a million, but that's not going to be possible. And in my heart of hearts, I cannot believe that I would do anything to hurt somebody else to give my children a lot of money. Thank you. MR. SCHMITT: Jonathan Palmer, followed by Bruce Anderson. UNIDENTIFIED SPEAKER: Palmer's gone. MR. SCHMITT: Bruce Anderson. And representing another Page 115 December 10, 2003 client, Rich Yovanovich. MR. ANDERSON: Good evening, Mr. Chairman, Commissioners. My name is Bruce Anderson and I represent the La Playa Hotel. According to the consultant's report, your own consultant, more than $100 million is at stake in terms of loss of value to all RT property owners, and $100 million loss of tax base by the county. For La Playa alone, the loss in value was estimated to be more than $20 million. And that was only on the seaside, and it excluded from the calculation the tower that exists there today. So that $20 million figure is really very conservative. Also, that $100 million estimate doesn't even include the loss in value that has already occurred as a result of the county redefining how density is calculated to exclude tidal wetlands. That is something that's already been said and done. CHAIRMAN HENNING: Excuse me, Mr. Anderson. Please continue. MR. ANDERSON: I would ask, does anyone know what the already occurred reduction in density is on Vanderbilt Beach as a result of excluding tidal, privately owned tidal wetlands from density calculations? You've already accomplished some density reduction out there just by that alone. The Planning Commission proposal would make La Playa nonconforming with respect to building height, previously approved conditional use for private club and the density. If La Playa were to be destroyed by a hurricane, it appears -- and I emphasize appears, because you have to read back and forth in the Land Development Code and what one section gives you, another section may take away -- it appears that it could be rebuilt under today's code, but it would also appear that under the overlay it could not be rebuilt as is. I would ask you to please direct your staff to include specific language in the overlay, if one is to be adopted, that if existing RT Page 116 December 10, 2003 structures are destroyed, whether by wind, water or fire or terrorists, that existing structures can be rebuilt as is as a matter of right. La Playa just spent in the last few years approximately $50 million in renovations. One of the purposes stated for the overlay and the restrictions therein is to protect view corridors and light and air movements between the Gulf and Vanderbilt Lagoon. Now, the papers that I got before the hearing clearly showed that the Planning Commission -- and I thought I understood the property -- the resident property owners' proposal would eliminate docks, boat docks as an accessory use. Now there seems to be some backing off from that tonight. If that's the case, then let's make that clear when it comes back to you that boat docks will be permitted as an accessory use. Because that certainly doesn't have anything to do with preserving view corridors or encouraging the movement of light and air between the Gulf and Vanderbilt Lagoon. I would ask, what is the rationale for limiting RT property to a density of three or four units per acre but allowing RMF- 16 zoned property next door or across the street, a density of six units per acre? I don't think that's defensible. CHAIRMAN HENNING: You mean 16 units. MR. ANDERSON: Well, 16 for if it's a residential use, 26 for a hotel use. Now, there's been some discussion about inconsistency with the Comprehensive Plan in the coastal high hazard area. And I was around for zoning reevaluation and was involved in that process. And zoning reevaluation was applied to undeveloped property. However, the zoning reevaluation ordinance outright exempted improved property. And at the insistence of the Department of Community Affairs, the county adopted not just the written policy that's in there, but specific -- but a specific series of future land use maps that depicted property that was either outright exempt because Page 117 December 10, 2003 it was improved, or had another kind of exemption and was undeveloped. One of your earlier speakers stated that the more specific controls over the more general in the future land use element. And I would say that the more specific future land use maps which identify specifically these RT zoned properties prevail over any seemingly inconsistent language about the coastal high hazard area. Lastly, I would make the point that this density reduction to three or four units per acre will not serve the purpose that people have said they want as a result of this overlay, and that is to convert hotel uses to residential. It will have the opposite effect. If you leave the density at 16, there's more of an incentive for a hotel property, if and when they come time to redevelop, to convert to a residential use. But if the difference is between a 26-unit per acre hotel and keeping it running no matter how rusty the pipes may be and the crumbling walls versus three or four units per acre residential, the hotel will stand. I mean, that's just simple economics. And I'll be glad to try to answer any questions that you might have. CHAIRMAN HENNING: Commissioner Halas? COMMISSIONER HALAS: Yeah, I think one of the points you brought out was the residentials at RMF-16. Well, this whole overlay is not the whole overlay of Vanderbilt Beach. The whole -- this overlay is RT properties, and that's what we're addressing here. MR. ANDERSON: I understand. But my point is that it is arbitrary, capricious and discriminatory for you to apply one density standard to RT property and a wholly different density standard to RMF-16 property that's next door or across the street and uses that same slim road. That's my point. COMMISSIONER HALAS: But again, what the overlay consisted of was RT properties. CHAIRMAN HENNING: Mr. Anderson, I understand what Page 118 December 10, 2003 you're saying. MR. ANDERSON: Thank you. CHAIRMAN HENNING: And it should have been a study of all the properties within the area and not just the RT. Because you are singling out on-- MR. SCHMITT: Commissioner, the analysis included the entire beach area to include the RMF-16 in our analysis. But the direction was just to come in with the RT overlay. So the analysis included it all, but the overlay includes the R -- just the residential tourist. CHAIRMAN HENNING: Thank you for that clarification. MR. ANDERSON: Thank you very much. MR. SCHMITT: Rich Yovanovich, followed by your last speaker, Dr. Richard Bing. MR. YOVANOVICH: How does he always get to go after me? Again for the record, Rich Yovanovich, this time on behalf of Signature Communities. Basically, Signature Communities just wanted to get on the record that it agrees with everything that's been said by previous speakers who said that it ought to stay the way it is. Specifically, you know, Signature Communities has a 'beach club that they're planning on building that will become a -- it will be prohibited under the uses and the changes if it ever burned down. They would not be able to rebuild it. So they are very interested in keeping their private beach club alive as part of the overlay and oppose any reduction in density. Because if it did burn down and they were only left with the residential use, they would have lost very valuable units. So they wanted to get on the record as well that they oppose and are affected by the proposed regulations. MR. SCHMITT: Your last speaker, Dr. Bing. DR. B1NG: Good late evening, gentle lady and gentleman Commissioner. Richard Bing, 10951 Gulfshore Drive. I'm the Page 119 December 10, 2003 chairperson of the Vanderbilt Beach Zoning Committee. We're a united coalition of the neighborhood associations who you've heard from tonight. I had a few words prepared, but I can't resist, because I did get to follow Rick -- or Rich, sorry, and Dwight. You know, they referred to all the RMF around the Vanderbilt Inn without mentioning the Delnor-Wiggins State Park, which is adjacent to it, which has no buildings in it. And I hope you picked up on it. Rick (sic) mentioned that he supported the staff analysis, which I can certainly understand, and that they were the only people with a non-vested interest. Well, then why is it that the county-wide CCPC and EAC went 100 percent with our version? And they don't have a vested interest. So I thought those were interesting observations. Rich also mentioned something about the decreased public ability to get to the beach. The state park is right next door, so it doesn't impact that whatsoever. As far as hotels and motels in permitted -- being permitted in the -- as existing uses was in our plan and I think was in the CCP, and I don't know where it fell out of bed, but it wasn't our intention to do anything with existing uses on existing hotels and motels. And the same way with boat docks, we didn't try to take that out of there. Okay, so back to what I was planning to say in the first place, I just wanted to pick up on those couple of things. Like most everyone in this room, we came here by choice. We didn't come here to be encased in concrete. We are not opposed to development or, in our case, redevelopment. The current Land Development Code has been grossly abused in the recent past, and all we are asking for are reasonable controls for the future. There is no doubt in our mind that if our proposed overlay were put to a referendum of voters in this county, it would pass overwhelmingly. We have had-- we have had the unanimous approval of the committees that we talked about before, based on our addition, and Page 120 December 10, 2003 we have strong support from outside our area specifically, as Carol Wright alluded to. What we are asking for will benefit the whole county, the county as a whole. In other words, by drawing a line in the sand and stopping the uncontrolled growth in our area will benefit the entire county. People from inland will also be able to perceive the difference. We know that Vanderbilt Beach property areas -- values will increase, not decrease with this proposal. I don't know why you would think we would come up with some proposal as the neighborhood that would decrease our property values and therefore our tax base to the county. It would be counterproductive to us. We're not that stupid. So for anybody to get up here and say, hey, this is going to screw up the tax base of Vanderbilt Beach, there's something wrong. There are over 2,500 condominiums out there, and we probably average at least -- I know in my case much more, but let's say 6,000 a year average, plus 520 some homes, so we're talking about $19 million a year coming into the coffers on real estate taxes alone, plus the money we put into the local economy. I think it's important to note that in RT, the rationale for compatibility with five and six-story average buildings now certainly is a compromise for us to go up to 75 feet. In other words, if you want to argue compatibility, which we've heard from the planners, it makes sense to stay at 50 feet or 60 feet. We're willing to compromise at 75 feet, as long as you measure it from the crown of the road, or picking up on Commissioner Coyle's point, because FEMA does move, if you want to express it as 60 foot above FEMA, because FEMA is 15.3 feet now. That is truth in advertising and we would buy into that kind of language. I was starting to make a point about the $19 million we put in the kitty, Mr. Chairman, and we are really a donor area to the rest of the county. Page 121 December 10, 2003 CHAIRMAN HENNING: Thank you. DR. BING: Therefore, when you ask me who is going to pay for the potential for very limited litigation that could come out of this, based on our expert testimony here tonight, then I think the county should pay for it. The county's going to benefit as a whole, we're paying in our taxes as a donor area and, therefore, we should be entitled to some protection for the risk, small risk that you're taking to implement our version of the overlay. After all, you are our government. That's your role to play. It is your responsibility to adopt and manage the overlay, just as many other communities in Florida have done in recent years. Thank you very much for your public service and your consideration tonight. CHAIRMAN HENNING: Thank you. MR. SCHMITT: Commissioner, that -- Chairman, that concludes public speakers. I think Mr. Schneider has a few closing comments and we would offer to clear -- clear up any questions that you may have of staff and we look for your guidance. Don? MR. SCHNEIDER: Yes. Mr. Chairman, Commissioners, I feel it's important at this juncture that we take a hard look at the Growth Management Plan issues that we have heard of tonight, and in my staff report, those issues were presented to me from David Weeks, our chief planner from the comprehensive planning unit. And I would like David to come up and share with you his understanding of these particular issues, if you don't mind. MR. WEEKS: For the record, David Weeks of your comprehensive planning staff. I'll be as brief as possible, Mr. Chairman and Commissioners. I just want to touch on I think five different -- four different points that were raised and try to provide some clarification. I think there still may be some confusion. First of all, I would agree with some of the prior speakers, that if we were dealing with a rezone petition, if someone were walking in Page 122 December 10, 2003 the door, and in the typical scenario that you see, and they have a piece of property zoned agricultural in this particular area of the county, that they would be limited to a maximum of four units per acre, and actually three units per acre because they're in a traffic congestion area, with one exception. If they were providing affordable housing they could get a bonus of up to eight units per acre, which would yield a maximum of 11. But I think we would all agree that based on this location affordable housing, per our codes, is highly unlikely. COMMISSIONER FIALA: But I think they would love to live there, really. MR. WEEKS: I could agree with that. COMMISSIONER COLETTA: So would my relatives. MR. WEEKS: But the affordability of these properties I think is totally out -- being serious, totally outside of the realm of provision of affordable housing. Secondly, I would like to point out to you, it's been stated by more than one speaker that the Growth Management Plan limits density to four units per acre in this area. And they're referencing a policy in the conservation and coastal management element. First of all, I stand by my statement and my contribution to the staff report that the future land use element is the element of the Comprehensive Plan that controls future land use, not the CCME, conservation and coastal management element, not any other element. The future land use element guides and dictates land uses allowed in the county. And actually the conservation and coastal management element Policy 12.2.2 does not state that density is limited to four units per acre. What it does state is it actually references the FLUE. And I'd like to read it into the record, this portion of Policy 12.2.2 of the conservation and coastal management element. It states, and I quote: The future land use element limits new residential development, thus Page 123 December 10, 2003 obligation to infrastructure expenditures to a maximum of four dwelling units per gross acre within the coastal high hazard area, end quote. It references a future land use element and it does so incorrectly. And that's why I stated in the staff report that there's an internal inconsistency. As I stated earlier, there's the bonus for affordable housing that is possible within the coastal high hazard area. It also -- not applicable here, but there's also the conversion of commercial density bonus that is also applicable in the coastal high hazard area. So that, theoretically for property zoned commercial that come in for rezoning in the coastal high hazard area, you could, and be consistent with your Comprehensive Plan, approve a project that's 16 units per acre, the maximum allowed by our Growth Management Plan. The third point, and this has been touched on so I'll be especially brief, by some speakers toward the end especially. When the county implemented its zoning reevaluation program in the early and mid Nineties, the purpose was to take properties that had a zoning that permitted a density, or intensity in the case of commercial, that was not consistent with our future land use map and plan. That is, properties that are zoned, for example, like this very area, zoned RT, it allows 16 units per acre residential, yet in the Comprehensive Plan I was just explaining, the maximum density would be 11 units per acre, and that's with affordable housing. The more likely scenario is actually three units per acre. But these properties are improved properties as defined in the zoning reevaluation ordinance. That takes us over to Policy 5.9 of the future land use element, which states: Properties which do not conform to the future land use element but are improved, as determined through the zoning reevaluation program described in, now former, Policy 3.1 (K), shall be deemed consistent with the future land use elements and identified on the future land use map series as properties consistent by policy. Page 124 December 10, 2003 And as Mr. Nadeau put up on the screen, all of these RT properties are in fact deemed improved properties. As a past Board has interpreted and has consistently been applied since the early Nineties, since the zoning reevaluation program, this policy allows for properties such as these RT properties to further develop or totally redevelop; that is, come in with a bulldozer, scrape what's off there and start from scratch in accordance with the zoning in place on that property at the time of that redevelopment. So if any of these RT properties come in for redevelopment, they are allowed to develop per the existing zoning, 16 units per acre residential, 26 for hotel/motel. What that does not say, though, or does not preclude you from doing, is in fact what you're contemplating tonight. You certainly have the authority to change what that zoning allows. This Policy 5.9 does not vest these properties per that zoning, it simply allows redevelopment to occur in accordance with that zoning. So through this action or some other action, if you were to choose to adopt an overlay or change the RT zoning district to allow a different density, you have the authority to do that. I want to make it clear 5.9 allows the redevelopment, it does not vest the property. I think that's an important distinction. And the last comment, a speaker had mentioned that the staff report alludes to possible increase of density in the coastal high hazard area, and staff has not stated such. In the staff report we do indicate that we need to take a look at the coastal high hazard area densities, and we would actually consider one of two things, or possibly three. The first is to consider establishing a maximum density within the coastal high hazard area, or establishing a density reduction for properties lying in the coastal high hazard area that would go through a rezoning action. Right now, for example, you have a density reduction for lying within the traffic congestion area. Well, maybe Page 125 December 10, 2003 we want to adopt a similar provision for lying within the coastal high hazard area. Or the third scenario would be a combination of the two: Establish a maximum density and a density reduction. And I mention that in particular because the coastal high hazard area is much longer than just this Vanderbilt Beach area. As a practical matter, establishing a density cap or a density reduction would have no applicability here, because as I was discussing earlier, Policy 5.9 allows for the redevelopment to occur in accordance with the zoning on the property at the time. I hope that helps in your deliberations. Thank you. CHAIRMAN HENNING: Commissioner Halas? MR. WEEKS: Yes, sir. COMMISSIONER HALAS: Mr. Weeks, in your professional opinion, do you feel that we can come down with building heights to 75 feet? MR. WEEKS: If you mean that in the context of being consistent with the Comprehensive Plan, yes, sir. COMMISSIONER HALAS: Okay. I'd like to ask -- can I ask one other gentleman a question that's already spoke? CHAIRMAN HENNING: Are we done, Mr. Schmitt? MR. SCHMITT: Mr. Schneider has one more. COMMISSIONER HALAS: Oh, I'm sorry. MR. SCHNEIDER: Mr. Chairman, if I may, I think at this time it's useful for us to hear from Mr. Dan Summers, the director of our emergency management. Dan has enormous credibility in hurricane evacuation issues and I'd like him to speak to that tonight. Mr. Summers? MR. SUMMERS: Mr. Chairman and Commissioners, good evening. Very quickly, I think my role here is to clarify a number of issues for you related to hurricane evacuation. My charge was to look at the Vanderbilt Beach overlay as an Page 126 December 10, 2003 evacuation issue, and I want to make sure that we don't compound that with evacuation issues that might be county-wide. I want to tell you that there are so many variables involved in the evacuation process. Let me share some of those with you for some clarification. Obviously the storm's track, the storm's intensity, the time of day in which an evacuation recommendation watch or warning might be made, the day of the week, media interest-- and I mean that in terms of either official public warnings or media generated warnings, school operations, and a community's storm experience. Along with the individual evacuation concerns are things such as individual's storm, past storm and evacuation experience, their perceived risk, whether they elect to stay or evacuate, their personal loss, their property loss, their business loss, one's individual mobility -- and I think that we have a great deal of mobility in this particular area -- and their personal action plan in terms of how convenient relocation or evacuation might be, in addition to their financial resources. What I need to stress you to you, I think from personal experience, and that's eight hurricane evacuations, close to three quarters of a million people in my 20 years of emergency management, please understand that what -- we have ample time in the Vanderbilt Beach overlay to conduct a hurricane evacuation. What we have to be aware of is the fact that we're not all going to queue, or we're not all going to get on the roadway at the same time, nor is our roadway going to be in a situation that we handle the traffic on the interstate at the regular speed. The only thing that is consistent with emergency management that I have to work with is time. If I generate or if I look at my models and say that there is a full census or a full -- every housing unit in this area is full, I may pick a number of 10,000 to evacuate. If I look at that time scenario based on time of day, day of week, I'm simply going to add more Page 127 December 10, 2003 evacuation time into the decision-making process. I will bring you a green light start-up period much earlier. But when I do that, I do run a risk of the storm changing track. And we know that especially is the case as the Gulf Coast community versus the Atlantic Coast community, we know there are a lot of variables there. So let me just clarify to say that, can I make reasonable accommodations under a reasonable storm event to have a reasonable evacuation period? The answer is yes, under the garden variety hurricane scenario. What I have to tell you is that I have to work very hard to make sure as a community or a high risk zone that I have adequate warning and start-up time; in other words, time for you to load the car or time for you to make a decision or confer with your neighbor, to queue that traffic and move it out. But I can do that, because I have the liberty of adjusting time related to the forecast, the time of day, the way I get the information out. So to clarify that for you, and please understand, and a little bit of humor here, is that the hurricane evacuation is not really a Nascar start, if you will. We all will stagger and fill that road capacity, or we will contribute to that road capacity in some pattern in which we all leave when we're ready to do that. Also, we have looked at it in the worst case scenario. Would we expect to have full census during that time of year along that particular area? Most likely not. In transient population and tourist population we know from experience and national studies that about 60 percent of our tourism community will voluntarily leave prior to the official order. So I understand the difficulty here, but I do think that with common sense and reasonable actions that we can handle this evacuation of that area within reason. CHAIRMAN HENNING: Okay, thank you. Commissioner Halas? COMMISSIONER HALAS: Mr. Summers? Page 128 December 10, 2003 MR. SUMMERS: Yes, sir. COMMISSIONER HALAS: In your evaluation, were you just basically looking at the Vanderbilt area only, or were you -- did you look at neighborhoods that were associated very close to the Vanderbilt area in regards to -- because those people also would be evacuating at that point in time. MR. SUMMERS: Sir-- yes, sir, that is correct. But I will tell you that I did look at this in terms of some of the regions that are -- the regional planning council assigned to that particular area. And I am very sensitive -- and let me clarify this. I am very sensitive to the fact that the movement county-wide or at least as we are concerned, of everything from the interstate to the Gulf may in fact five years down the road require that we implement some staggered evacuation within certain geographical boundaries. I'm aware of that. Did I take absolute empirical data related to the surrounding neighborhoods? No, sir, I did not. Unfortunately we don't have the liberty or the convenience of that type of data. They are very much estimates. And all of our estimates are always rounded up or favored to the worst case scenario. And we also try to put some time in there that we call decision time. We also would take into account road conditions and those type of things. So we will make our best judgment, erring on the side of safety. CHAIRMAN HENNING: Okay. Did you want to call somebody up-- somebody else up? COMMISSIONER HALAS: Yes, I'd like to ask one more question for Mr. Thomas Pelham, if I could. Mr. Pelham, could you come up? Sir, under the Burt Harris, as you were explaining, you said that compensation -- does compensation mean, in your definition, that -- is it monetary or could it be something other than money involved in Page 129 December 10, 2003 this? Maybe going along with some of the decisions that the developer would like? Am I clear on what I'm trying to say here? MR. PELHAM: Are you referring to a situation where someone presents a Burt Harris claim to the county and the county has to respond to it? COMMISSIONER HALAS: Right. MR. PELHAM: Okay. Yes, the statute is very clear on that. The statute actually contemplates that what the local government will try to do is to avoid having to pay any money, compensation, will try to avoid inordinately burdening the property by entering into an agreement, which may do a wide range of things. It may agree that the property can be developed at a specific density or an intensity. It may agree to modify the density or intensity that it's been suggesting applies to the property. It can grant development approval subject to various conditions. A whole range of options are laid out in the statute. In other words, you can enter into a development agreement that provides that the developer may develop this property and spell out the parameters for the development. In fact, the statute expressly provides that really the purpose of such an agreement is to grant relief to the property owner consistent with the public interest so as to avoid inordinately burdening the private property. So the county would have a great deal of flexibility in dealing with one of these situations without having to pay any money. COMMISSIONER HALAS: Okay. One other question: How does the Burt Harris Act reflect on citizens that are surrounded in this community? MR. PELHAM: Well, as I just pointed out, the statute provides that the agreement should protect the public interest, and for that reason, there's a procedure for presenting the agreement to a court, a circuit court, so that it can ensure that the public interest is protected. COMMISSIONER HALAS: Okay. My last and final question Page 130 December 10, 2003 is, do you foresee us getting into a serious monetary problem here with lowering the building heights from 100 feet to 75 feet? MR. PELHAM: As a general proposition, no. But whether or not -- if such a regulation is applied to a specific parcel of property, that's a determination that can be made only by consideration of all the facts relevant to that piece of property. COMMISSIONER HALAS: Well, how about any property that's RT zoned, does that have an effect, or do they only look at a particular piece of property that it affects, or do they look at how it is zoned? In other words, if you have other properties involved that are RT zoned in the same neighborhood. MR. PELHAM: I would certainly agree with the County Attorney's memorandum that a reduction in height from 100 to 75 feet as a general proposition can be defended and' is not an inordinate burden. But if there is a specific property owner who could come to you with facts about its particular piece of property that could establish that as applied to that property, unlike all the other properties, then you'd be in a position to respond to that claim. You could make adjustments, if you thought they were appropriate. COMMISSIONER HALAS: Good. So it doesn't necessarily mean monetary, it doesn't mean money, it can be in other forms. MR. PELHAM: Absolutely. COMMISSIONER HALAS: Okay. Thank you. CHAIRMAN HENNING: I have a question for Margie Student. MS. STUDENT: Yes, sir. CHAIRMAN HENN1NG: The example of the Bellagio Grand, I think it was -- it used to be called something else before that, Beachcomber. MS. STUDENT: Beachcomber. CHAIRMAN HENNING: The property owner wanted to build to a certain height, which was what? MS. STUDENT: Without -- was it -- do you remember, Mr. Page 131 December 10, 2003 Weigel? MR. WEIGEL: I think I do. The first rebuild request was for the Aquaport Hotel, 10 stories, 68 units. Ten stories, approximately 100 feet tall. A hundred feet, based upon the height standard, taking into account the FEMA standard for the origination point of measurement. Then after that came the Bellagio, ultimately. CHAIRMAN HENNING: Then the owner decided to go ahead and rebuild his property at that point. MR. WEIGEL: Yes. They changed from the hotel, hotel development to a condominium development, multi-family residential. CHAIRMAN HENNING: Right. And that height was -- because -- MR. WEIGEL: I believe it was about 94 feet, close to 100 feet. It still had -- under the zoning code, it had the same 1 O-story 100-feet ability, as did the hotel. CHAIRMAN HENNING: So -- and I guess that he went ahead and did that and continued the suit to, you know, try to benefit on both sides by developing his property to what the county said he could do, and also continue the suit and suing the Board of Commissioners for monetary damage. MR. WEIGEL: That's right. The lawsuit against the county alleging damages in the vicinity of $25 million, also including a lawsuit against the Commissioners sitting individually who made the decision for separate damages was based upon the inability to build the hotel, notwithstanding the fact that they went ahead and developed the property into a 16-unit condominium which, as I hear on the fly unofficially, that the units were sold and the enterprise was a successful development from that standpoint. CHAIRMAN HENNING: Thank you. I guess, Commissioners, our charge is we've got three things -- proposals before us. MR. SCHMITT: That's correct, Mr. Chairman. Page 132 December 10, 2003 CHAIRMAN HENNING: And we don't have to do any of those, we can come up with our own and we can have a combination of or tweaking what is before us. MR. SCHMITT: That's correct. I would recommend, Mr. Chairman, that you deliberate basically with the Planning Commission proposal, staff proposal and then a final proposal we offered as a consideration. We come back at the hearing scheduled for January 7th and we -- you vote at that time. If you have any guidance for us, we'll be glad to accept any guidance to the staff in regards to where you would like us to go with this as far as coming back and making any presentation or providing any further information. CHAIRMAN HENNING: Okay. Would that be fair to the people here today? I mean-- MR. SCHMITT: We still have to have a second hearing. And I'll firm with the County Attorney. We still have to have a second hearing in regards to this, it -- CHAIRMAN HENNING: Right. I just -- I know that a lot of people spent a lot of time here this evening with us, over five hours, and to just wrap it up without any guidance on where the Board wants to go -- I'm saying this to my fellow Commissioners -- is very unfair. COMMISSIONER HALAS: Well, I think that we ought to -- where I think we need to go on this is to address the concerns of the citizens. We've got a couple of ways of doing this. We can either look at 60 feet and add FEMA to it, which would give them 75 feet, or we can say 75 feet and that would be including FEMA, which would still take the building up close to 100 feet and then some with the added part of the roof. So we've got that to look at. And I think we also are going to look at -- I think another proposal was one acre of contiguous land that I think we need to address so we don't run into an issue whereby we end up swapping Page 133 December 10, 2003 land again like we did in one project up there, particularly, just -- in fact, that was the first day that I was on the Board of Commission that we had to figure out what we were going to do with that and that ended up being -- as everybody knows, it ended up in the center of the road. So we got -- we got all this. So whether we can make a decision, I think what we can do is direct staff and say that -- and I think staff also, correct me if I'm wrong, in their original proposal was 100 feet, but you felt comfortable with 75 feet; is that correct? MR. SCHMITT: We are -- our last slide in conclusion we offered for consideration. If you ask for our comfort level, from a professional planning and evaluation point, we're comfortable with the proposal as written. Based on the guidance and the opinion of the County Attorney, we offered for consideration that same proposal, except the reduction to 75-foot in height. And so from that perspective, yes, based on the county attorney's guidance, we offer that. But that certainly would be a policy decision that would have to be made by the Board of County Commissioners, understanding that there are potential ramifications that may result from that decision. CHAIRMAN HENNING: Mr. Weigel? MR. WEIGEL: Thank you. I know I've had my comments to the Planning Commission restated earlier this evening and I think what was stated was essentially correct, particularly by Ms. Ketcham. A couple of other statements maybe weren't quite so close, because I didn't say at that meeting that 75 feet is okay. I did talk in terms of a risk benefit analysis and the fact that the Planning Commission, in being charged to make its recommendation to this Board, and that this Board in making a legislative decision, had to make the risk analysis -- the risk benefit analysis with the assistance of staff and the County Attorney and all the many experts and people Page 134 December 10, 2003 that would be talking to them, and that in fact I felt that 75 feet, as well as elements such as revised setbacks, a review and recommendation regarding where the building height measuring point should be taken from, and also parking aspects were things that were to be considered. I did not say in isolation that 75 feet works with an assortment of other things put with it, but that 75 feet is something that should be part of the mix for consideration. Now, I noted, with the retooled presentation by staff this evening, that in fact with the reduced setbacks a very important clarification of setback, and the other-- a couple of the other elements that they mentioned such as their recommendation regarding green space, the elimination of the 25-foot additional building height by conditional use above 100 feet, and for contiguity of one-acre lots, that these provide essentially, arguably the view corridor light access and, call it, non-canyonization aspects, which is part of the charge for the review. And I think it was shown by a couple of different discussions here that, in fact, by an implementation of those kinds of standards, that you actually find on the small lots, particularly, that you will not have 100-foot buildings anymore for the most part, or they would have to be very narrow. And by being narrow, then you have the side yard view corridors and things that we're trying to preserve; whereas in the larger lots, that -- there are a few there with multi-acre properties, you still achieve view corridors, light access, non-canyonization, because the setback has to be absolutely half of the total building height. And there would be a building height limitation of 100 feet. So it's not just that 75 feet is okay. And Mr. Pelham, in the recent questioning, I appreciate his comment to my memo, that he noted it's not taken in isolation, but it must be viewed in the context of specific properties and the fact of other regulatory elements that must be also brought into the mix. I hope that makes it clearer or you. I would hope that your Page 135 December 10, 2003 direction to staff would not merely be let's come back to 75 feet. I think that -- and I hope I don't overspeak, but that the public that's here, the public that's watching and will read the newspaper will understand that that's still a consideration. But it takes four votes of a five-member Commission to make an ultimate determination, and each of you have the ability to change your mind and receive further input between now and then. This is a legislative process, not a quasi-judicial specific site process. So I expect that whether you ask for it or not, you will continue to have comment and information being brought to you, and I would hope that the staff and the County Attorney could avail themselves of that process too and respond to questions that you may subsequently have after this meeting. So I hope you wouldn't circumscribe us too much and believe that the public absolutely knows whether something is not going to occur at the next meeting or is going to occur. We're in a pretty fine focal area right now, I think. CHAIRMAN HENNING: Okay, great. Commissioner Fiala? COMMISSIONER FIALA: Yes, I just wanted to see if-- you know, like you said, the 75-foot from the crown of the road, that's something that we wanted to be considered, right? I felt that that would be the one thing-- COMMISSIONER HALAS: COMMISSIONER FIALA: COMMISSIONER HALAS: contiguous piece of property. COMMISSIONER FIALA: COMMISSIONER HALAS: COMMISSIONER FIALA: Yes. -- the side yard setbacks. And wedding cake, and one acre I was getting at that. Oh, I'm-- That's all right. Well, I'll just say, and one acre contiguous. I said no swapping densities. No wedding cake. And finally, the rebuilt aspect, you know, if there's some kind Page 136 December 10, 2003 of a -- of a catastrophe, that they are allowed to rebuild. COMMISSIONER HALAS: Under present code, right? MR. SCHMITT: Under present code. And Commissioner, if I could point out, part of this LDC amendment cycle includes very definitive definitions on height, and zoning height is measured -- everywhere else in the county will be measured from the base flood elevation, and we will ask for both the zoned height and the overall building height from the crown of the road. So I want to make sure we understand your direction. You want to make a special height determination for this zoning overlay, and you can do that, so this, what you're saying, basically the height, regardless, the zoned height would be not from the base flood elevation but from the crown of the road, understanding that there's no habitable floor that could be -- COMMISSIONER FIALA: If my fellow Commissioners agree. COMMISSIONER HALAS: Yes. COMMISSIONER COLETTA: Well, I don't. MR. SCHMITT: There's no habitable space that can be below that elevation. CHAIRMAN HENNING: Commissioners, if you want to do that, you just go with the Vanderbilt Beach/BCC proposal and keep the FEMA measurement in there. COMMISSIONER FIALA: Oh, I see, go either way, you mean? CHAIRMAN HENNING: Well, no, you -- the proposal is 60 feet and if you add 20 -- COMMISSIONER HALAS: Fifteen feet. CHAIRMAN HENNING: -- 20 feet, 15 feet, you're still at 75 feet or thereabout. And that's what they were talking about. But if we're going to go there, and I think if we do anything shorter than what the citizens are asking us that spent all the time on this, then I Page 137 December 10, 2003 think we have failed. But my concern is -- is the tax dollars and the potential of litigation and the cost of the taxpayers. And if we're going to do that, I would like to recommend that we give the Vanderbilt Beach people a petition for the residents to sign to create an MSTBU in the area for future litigation. COMMISSIONER HALAS: No, I don't think we'll do -- I don't think we'll do that. What we're trying to do here is we've been working on the -- the citizens have been working on this for two years. The Commission was charged with coming up with an overlay study for this, and the citizens have worked diligently on this thing. And I think what we're looking at -- that's why I asked so many questions in regards to where we stand on as far as monetary value, and I think this is something that can be worked out without -- CHAIRMAN HENNING: We directed staff to work with the citizens, not the Commissioners, to come up with recommendations for this overlay, this community RT district. Commissioner Coletta? COMMISSIONER COLETTA: Thank you. Question: Right now the 100 feet that presently exists, at what level is that figured from? Is that figured from the crown of the road? MR. SCHMITT: No, no, no, sir, that is figured from the FEMA elevation or what we call the base flood elevation, which you would have your zoned height. As we showed in that original, that one slide, it's the zoned height. And it's different, depending on the roof structure, but basically it's from the base flood elevation to midway on the -- on the pitched roof. COMMISSIONER COLETTA: The ques -- the reason I'm getting into this is that we're talking 100 feet versus 75 feet, which I thought was a very fair compromise. To suddenly reduce it down by saying we're no longer going to use the FEMA elevation, we're going to go to the crown of the road, I think we've gone past the point of what 75 feet means anymore. Now we're changing the definition of Page 138 December 10, 2003 75 feet from what it originally was. MR. SCHMITT: That's correct. all intent and purposes, to 60 feet. COMMISSIONER COLETTA: You are basically reducing, for I can go with 75 feet, but I -- it would be at the FEMA level, the current level that it is now. I think that would be more than fair and that that would meet the needs that we -- that Mr. Weigel's brought up to keep us on the even keel as far as that 25 percent reduction is an arguable point. If we drop down to the crown of the road, it's no longer going to be 25 percent, it's going to be 35, 33 percent. It's going to be a whole different number to have to deal with, and it might give more reason for them to go forward with a suit. I got very big concerns about that last little part. Seventy-five feet, I agree that that's probably the way to go, it will meet a lot of needs, but where you figure the 75 feet at could be -- COMMISSIONER HALAS: I'll buy into that. CHAIRMAN HENNING: Okay. There's some other things, like David-- Mr. Weigel said. COMMISSIONER HALAS: But I think we're giving staff the right direction here. We're looking at the setback -- CHAIRMAN HENNING: You're not getting what the residents want. COMMISSIONER COLETTA: Well, it's never going to meet everybody's needs. It's got to be something that's going to be -- it's going to be -- meet needs -- the general needs so it comes out to be fair for everyone -- COMMISSIONER HALAS: Everybody's going to make a compromise here. MR. SCHMITT: The -- we're still looking -- the density issue is the other probably more important issue. We can nail down the permitted versus conditional uses. We can -- we can come back with clarification on that as well, because I noticed there was some Page 139 December 10, 2003 comments in regard to what the Vanderbilt Beach Association proposed. But we have clear guidance from the Planning Commission where they said that hotels/motels would be a conditional use. COMMISSIONER HALAS: I'd like to see the density go down, but I think also that -- I think we need to get some more information on that and I think staff needs to provide us with additional information of whether it's in-house or out of house in regards to what our options are on to density. COMMISSIONER COLETTA: Is it-- may I? CHAIRMAN HENNING: Sure. COMMISSIONER COLETTA: Density for the most part is going to be determined by the value of what's going to take place with the property. If you're already confining it by side setbacks, by height restrictions, then the density goes inside that building, it's going to be set at a certain level to be able to attract that type of clientele they want to sell it to to maximize the profits with. No one's going to be able to accept something like we were talking about, the 75-foot limitations, how many stories it was going to be, it was going to be one-story high because of the fact that the density was so low it was going to be like a big silo for people to live in if you ever try to go to the 75 feet. So it's just not practicable they're going to be able to utilize it. I've talked to a number of people about this and everyone seems to be of the realization that the market, for the most part -- I mean, put a density on it, but it's got to be something a little more realistic than, what is that, four per acre? COMMISSIONER HALAS: Four per acre. COMMISSIONER COLETTA: I mean, that's -- that's crazy. You're going to tell them they can build a building 75 feet high on a five-acre lot and they're only going to be able to have a density of four per acre? It just -- it just doesn't make any sense. There's not Page 140 December 10, 2003 enough in there to make the numbers work. So you better believe we're going to be going to court over that and we'll probably end up conceding after we've spent hundreds of thousands of dollars in legal fees. But I'm willing to discuss it again another time. CHAIRMAN HENNING: I would like -- I hope that we get a consensus for direction. Do you have any direction for us? MS. STUDENT: I wanted to just mention another issue that was brought up, and that will leave staff, if it's not written in there, as to projects that have complete and sufficient applications, and do you want us to look at that and put some language in there as we did for the moratorium? COMMISSIONER HALAS: Yes. CHAIRMAN HENNING: Yes. COMMISSIONER FIALA: (Nods.) COMMISSIONER COLETTA: (Nods.) CHAIRMAN HENNING: I see three nods, four nods. The density issue. MR. WEIGEL: I'd be happy to respond to that and that is, as I mentioned, in the context of 75 feet, loading on other elements raises the risk, and we have to look at the risk benefit analysis. Now, we know through our history that we can defend and win a $25 million lawsuit, based upon affecting one site. This is legislative affecting many sites. And we do know that there will be facts that are site specific that will come to play with any generalized law that we do. And by virtue of the fact it is law, it has to apply generally. But there will be, and the Burt Harris law specifically provides for, specific factual problems to be addressed. And we know we can win. We know we will get appealed after we win. But we also know it takes us hundreds of thousands of dollars to get there. And that's if you win. And so I do not, for that purpose alone, but additionally, in Page 141 December 10, 2003 regard to not adding additional elements which we may not win upon, do not recommend a reduction in the density of 16 units for multi-family, nor in the commercial use of 26 units. So I think we're potentially achieving the light and view corridors if we were to, for instance, entertain and potentially adopt the dimensional standards that the staff had provided. With the discussion and testimony about evacuation and other things, I think you might be putting on a couple of straws that would be very difficult for this camel to bear in court. COMMISSIONER HALAS: So, therefore, what you're saying, I think, is that if we go with some of the -- if we go with what staff has recommended as far as the setbacks and the 75 feet including FEMA, that we will achieve the same thing as what we're trying to do; is that correct, as far as limiting density in that particular -- in a high coastal area? MR. WEIGEL: Well, I don't want -- don't use the word density COMMISSIONER HALAS: Okay. MR. WEIGEL: -- because density is not necessarily what we're trying to limit. It was to preserve light access view corridors and avoid canyonization, specifically. And density is kind of a product of development, no question. But it's the development regulatory standard, the physical standard, which would appear to achieve much of what has been desired. Am I saying that that achieves everything? I'm not sure I'm quite willing to say that because I don't know what everything is in the eye of each of the beholders here. But density, the density and intensity issues, if there is a gross reduction in those, I'm not telling you that it's illegal to do so, I'm just saying that from a -- from a decision-making process, it will increase the risk of-- of the lawsuit -- lawsuits. No question there. COMMISSIONER COLETTA: All right. So I -- we're in agreement then to keep the density at the level it is? Because generally people aren't going to build that density to begin with in Page 142 December 10, 2003 that high income, high priced area, because they're just not going to do it. COMMISSIONER HALAS: Yes, let's do that. CHAIRMAN HENNING: If you're looking at me, I'd rather do what -- you know, what the rest of want and provide that. COMMISSIONER HALAS: I'm looking at our options too on what -- where we're at here. I think we have got to sit down here and just think for a second here. But I think the direction that we need to go is to make sure that we don't end up with any -- we're going to take the wedding cake out of this design, we're going to basically use the setbacks that staff has provided and that is going to open up the view corridor. And I think that the one and -- the only element that -- and also, the one acre, contiguous one acre that needs to be addressed. The only area that I have concerns at, and I think I need a little more information on it myself, and that is the density issue. COMMISSIONER COLETTA: We'll come back again and we can deal with it. CHAIRMAN HENNING: What Mr. Weigel said, don't mess with it, okay? That's what he said. So I think that's your clarification. COMMISSIONER HALAS: That's the clarification, yeah. CHAIRMAN HENNING: Commissioner Fiala? COMMISSIONER FIALA: Well, I like everything we've put together so far. I'm still confused with the density issue. COMMISSIONER HALAS: We're not going to mess with it. It will take care of itself, I think. COMMISSIONER FIALA: That's fine with me. CHAIRMAN HENNING: Mr. Schmitt? MR. SCHMITT: Whatever your guidance is. Basically, what -- I put up the slide, the proposal for consideration. What I just heard: 75 feet; transient, 26 dwelling units per acre; multi-family, 16 units per acre. You're looking at one contiguous acre for lot area. We would look in there for permitted use as defined, transient Page 143 December 10, 2003 accommodations herein defined as hotels, motels and time shares, multi-family dwellings, family care facilities. We would eliminate the townhouses. Townhouses do connote at least an element of subdividing, so we would eliminate that. And the conditional uses, we would leave in private clubs and yacht clubs. COMMISSIONER FIALA: You forgot the setbacks. MR. SCHMITT: And the setbacks, yes. We have -- COMMISSIONER HALAS: Wait a minute, private clubs and yacht clubs. How did yacht clubs get in there? MR. SCHMITT: That's-- COMMISSIONER COLETTA: CHAIRMAN HENNING: No. No, no, no. No comments from the audience, please. MR. SCHMITT: That is -- that is what's listed. That's the issue with the La Playa which currently is authorized a private club and a beach club. If you want -- do you want to prohibit that or do you want to leave that in as a conditional use? COMMISSIONER HALAS: Conditional use. COMMISSIONER COLETTA: Conditional use. MR. SCHMITT: That's the way that's shown on the slide there. There's -- there's private clubs and yacht clubs which is the issue that was raised both by the Vanderbilt Inn, I believe, and is an existing use right now at the La Playa. COMMISSIONER HALAS: I think that should be -- COMMISSIONER FIALA: Eliminate wedding cake. MR. SCHMITT: Wedding cakes is eliminated by the setbacks, we've -- one-alf the building height. COMMISSIONER FIALA: Okay. And rebuild, right? MR. SCHMITT: Rebuild is in accordance with the policy, ma'am, unless you want us to change -- COMMISSIONER FIALA: I know, but somebody said something about-- we wanted to make sure that it's mentioned in Page 144 December 10, 2003 here, just to reiterate. MR. SCHMITT: We can reiterate that. COMMISSIONER COLETTA: We'll reference back to the code or the statute, whatever it is that protects these people, so that their right to be able to rebuild, the people that are already there won't lose their investments of their homes. MR. SCHMITT: And when we come back on the 7th, we can provide a definitive economic based on that proposal. CHAIRMAN HENNING: Okay. Anything further? Mr. White? MR. WHITE: Yes, Mr. Chairman, at this time I think it would be appropriate, if we're done with the Board's consideration, to let folks here know and out there in the public that at this time we're going to ask that you make a motion to continue the balance of the items to the January 7th meeting. And -- COMMISSIONER COLETTA: We did that. MR. WHITE: No, you did it with respect to the two hearings. CHAIRMAN HENNING: Motion by Commission Henning. Is there a second? COMMISSIONER FIALA: Second. CHAIRMAN HENNING: Second by Commissioner Fiala. All in favor of the motion, signify by saying aye. COMMISSIONER HALAS: Aye. CHAIRMAN HENNING: Aye. COMMISSIONER COLETTA: Aye. COMMISSIONER FIALA: Aye. CHAIRMAN HENNING: Any opposed? (No response.) CHAIRMAN HENNING: It's unanimous. MR. WHITE: And lastly, Mr. Chairman, we just need to put on the record that the second public hearing for the item heard this evening, that is LDC Section 2.2.38 pertaining to the Vanderbilt Page 145 December 10, 2003 Beach RT overlay, will be heard at its second public hearing, 2:00 p.m. January 7th, in these chambers before this Commission. CHAIRMAN HENNING: Okay. Is there anything else? MR. SCHMITT: No sir. Thank you very much. CHAIRMAN HENNING: We're adjourned. There being no further business for the good of the County, the meeting was adjourned by order of the Chair at 10:40 p.m. BOARD OF COUNTY COMMISSIONERS BOARD OF ZONING APPEALS/EX OFFICIO GOVERNING BOARD(S) OF SPECIAL DISTRICTS UNDER ITS CONTROL TOM I-)I~NNING, Chaix~fian ATTEST: ;' i- ~":'~':', :, DWIGHT. E,. BROCK, CLERK / ~eSe:~in-tii~s a~j~ove'd by the Board on as pre~ented ' ~ or as corrected TRANSCRIPT PREPARED ON BEHALF OF GREGORY COURT REPORTING SERVICE, INC. BY CHERIE NOTTINGHAM Attest ~ to C~ItrlI~'S s~!::::~atur~ only. Page 146