BCC Minutes 03/04/1980 W
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Naples. Florida, March 4, 1980
LET IT BE REMEMBERED, that the Board of County Commissioners in and
for the County of Collier. and also acting 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 11:25 A.M. in Workshop
Session in Bunding of'' of the Courthouse Complex with the following
members present:
CHAIRMAN: Clifford Wenzel
VICE-CHAIRMAN: Thomas P. Archer
John A. Pistor
C.R. "Russ" Wimer
David C. Brown
ALSO PRESENT: Harold Hall, Chief Deputy Clerk/Fiscal Officer;
Darlene Davidson, Deputy Clerk; C. William Norman, County Manager;
Donald Pickworth, County Attorney; Jeff Perry, Zoning Director;
and Danny Crew, Planning Director.
AGENDA
*1. Discussion re Day Care Centers and "PU" Section of
Zoning Ordinance.
*2. Discussion re Zoning problems regarding Fa~rway Towers,
Lely.
* No publfshp.d agenda this date. The above-referenced items discussed.
WORKSHOP AGENDA ITEMS DISCUSSED
Chairman Wenzel noted that there are four items to be discussed
during today's workshop and that each item as follows needs approval
from the members of the Board:
1. Excavation ordinance discussion and letter to Mr. and Mrs.
Hamilton re same.
2. Golden Gate Fire Control District Pdvlsory Board.
3. Day care centers and "PU" section of zoning ordinance
related to day care centers in residential areas.
4. Discussion of problems related to zoning of Fairway Towers,
Lely
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March 4, 1980
Regarding item number one, Commissioner Archer noted that Mrs.
Hamilton has requested this item be deleted from today's agenda, AS she
is satisfied that she has received appropriate answers t~ ~er questions
regarding the Excavation Ordinance through a letter' from the County
Attorney.
Regarding item number two, Commissioner Archer requested that the
discussion of Golden Gate Fire Control District Advisory Board be
deleted.
It was the consensus of the Board that items three and four as outlined
above be discussed.
STAFF DIRECTED TO CONSIDER PUBLIC INPUT REGARDING "PU'"S IN RESIDENTIAL
AREAS WHEN MAKING THEIR ANNUAL REVIEW OF THE ZONING ORDINf.NCE
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Chairma~ Wenzel noted that certain sectors of the public feel that
there is a problem in the establ fshfng of Child Care Centers under "Pro_
visional Uses" within residential areas. He stated that these people
feel that same is in violation of the existing Zoning Ordinance. He
invited Mr. George F. Keller, Chairman of the Zoning Committee of the
Collier County Federation of Civic Associations, to speak on the matter.
Mr. Keller stated that the Federation believes that the Zoning Ordi-
nance only provides for a child care center to be established on a premise
where a person is to reside within said center and that the Federation has
no objection to that particular manner of establishing same. He said that
under this regulation, a person would have to purchase a piece of land with
the intent of building a child care center and would then be allowed to live
within same center but, recently, there have been attempts to make it
possible through erroneous interpretation of the Zoning Ordinance to
estbblish child care centers within an existing residence and this is what
the Federation does wish to object to. He stated that the Federation is
against "spot zoning" and is opposed to allowing any profit-making opera-
tion to be established in an "existing" residential area, including child
care centers, nursing homes, and the 1 H.e; they feel these type of opera-
tions belong on "commercially zoned prnperties".
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Mr. Keller referred to the original intent of the BCC when they adopted
the present regulations regarding child care centers as provisional uses
and said that he feels the BCC intended to allow child care centers to be
established in residential areas, and he stated that although this may have
been their intent, the "PU" section of the Zoning Ordinance is written in
such a way that this is impossible and that is what he is here to point
out. He said that he feels that "legally" the BCC cannot allow the
establishing of child care centers in an existing residential area and be
in accordance with the present regulations of the Zoning Ordinance.
Clarifying the Federation's position, Mr. Keller stated that "profit-
motivated" operations, including child care centers, have no basis to
be put under the "prov1sional use" category.
Chairman Wenzel noted that there is a difference of opinion as to
whether or not the Board has the right to approve the establishment of
day care centers in existing residences and asked Mr. Keller if the
Federation is requesting a clearly spelled out Ordinance that would see
that this was not accomplished through amendments? Mr. Keller stated
that the Federation wants the Board to interpret the Ordinance as it is
written, as he previously explained. Chairman Wenzel said that the matter
at hand is that the Federation requests the Board to "spell it out" as
not allowing child care centers in existing residences, and Mr. Keller
agreed. Chairman Wenzel noted that the question now is whether or not
the child care centers are allowed in existing residences, and noted
that he cannot answer that question at this time; Mr. KeTler stated that
he sees no need for a section of the Zoning Ordinance that deals with day
care centers because there are presently statutes on the books under
Florida law that regulate day care centers as commercial businesses. He
said the Federation is disturbed by the County's apparent "deluding of
zoning regulations" and they are in hopes of the County studying the
purpose of "PU'S" in other counties and that the Federation thinks the
County will find out that "PU" designations and reguiations are designed
to improve the situation of the people living in the area rather than
"deluding" this protection and allowing for profit-making operations in
residential oreas.
Chairman Wenzel stated that the ~o~rd has taken action to have the
Planning Director review all these matters. when having the annual review
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of the Zoning Ordinance. He asked Dr. Crew, Planning Director, for con-
firmation of this and also that the people will have the opportunity to
give their "input" at public hearings regarding same review. Dr. Crew
concurred.
Mr. D. Ducco, Golden Gate Estates resident, spoke in opposition
to allowing commercial ventures as "PU's" in a residential area. Chairman
Wenzel said, that as he understands the situation, the Board cannot do
anything about prior approvals of day care centers in residential areas,
because the Board acted upon those petitions based on the provisions of
the present Ordinance. County Attorney Pickworth concurred.
Mr. Ducco requested that the County hire an outside consultant that
has "expertise" in the matter to study "PUIS" in other areas.
ChainT)~1') Wenzel, noted that there has been considerable controversy
regarding child care centers in residential areas, both pro and con,
that staff has been instructed to look into all aspects, and all pOints
of view, and come back with recommendations. In answer to Mr. Ducco's
request for a consultant, Commissioner Plstor noted that the County has
hired Adley & Associates to study the entire Zoning Ordinance.
County Attorney Pickworth asked if the Board must wait until Adley &
Associates makes their final report to deal with this matter and Planning
Director Crew replied negatively. Mr. Pickworth said that the County
has a professional Planning staff and Commissioner Wimer stated that he
thinks the County staff is qualified to handle the matter. Mr. Ducco
said that the staff is not experienced in such matters, and neither are
the members of the Board. He referred to past cases where Board action
took place regarding "PU's" and stated that he feels the Board does not
understand what "PU's" are supposed to be used for.
After discussion of who has the "expertise" and who has not,
according to Mr. Ducco, regarding the matter of provisional uses,
County Attorney Pickworth stated that ',e has talked with Mr. Ducco, and
they simply have a difference of opinion that he feels there is no point
in belaboring. Mr. Pickworth said that it is his opinion that the
present Ordinance is sufficient, and that the Board has not done anything
outside of their discretion. He said that the Board has the power to say
that there will not be any provisional uses in residential districts
except for day care centers that are connected with churches or schools,
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March 4, 1980
etc., if that is the Board's wish. He said that there are no legal
questions involved.
Chairman Wenzel stated that he feels the matter can be settled by
having staff study the matter, and make recommendations so that legAl
questions will not come up in the future. Mr. Pickworth reaffirmed his
prior statement that there is no legal question now. Chairman Wenzel said
that the term "legal" should be deleted and the direction should be to
make the proper recommendations so there will be no questions from the
people.
Commissioner Wimer, said that this is not his direction, rather,
he 'intended the staff make a reasonable determination regarding the
present provisional use section of the Zoning Ordinance and pursuant
Board actions, based on a study of other Counties. He added that he
feels there will always be questions on the part of one sector of the
pUblic or the other.
The question of whether or not the Planning Department considered
writing into the Ordinance a provision that would eliminate the need for
the Board to make a decision in the future regarding the subject provisional
uses in residential districts was answered by Dr. Crew affirmatively. He
noted that the same question can come up again and he feels that it is a
philosophical decision.
Chairman Wenzel said that he realizes that the Ordinance is written
in a manner so that the Board can make a decision, but, 'he feels the
people Objecting to the Ordinance, would like to see it written in such a
way that the Board will not have to make a decision, and Mr. Pickworth
noted that the Board has already made its decision. Chairman Wenzel said
he is referring to the future and not the past decisions. Dr. Crew stated
that he fpels the real issue is that certain people will not be satisfied
until all provisional uses are not a !lowed in residential districts.
Commissioner Pistor reflected on the drafting of the Zoning Ordinance
when he was on the C.A.P.C. and ~?ted that at that time, there was little
objection to having child care ':enters 1.. residential areas, and noted
that the public hearings at the time of the drafting of the Zoning Ordinance
was the time for the opposition to have made comments. He noted that,
unfortunately, it has not been spelled out well enough in some peoples'
minds that the Board and the CAPC thought that residpntial areas are where
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day care centers belong, and that is why the Ordinance specifically allows
for them, and he feels that the fact is spelled out clearly within the
present Ordinance, including the fact'that a person or persons will
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reside in child care centers. He noted that the BCC has asked staff to
reconsider this matter, and have public hearings on it and if there are
enough people who feel strongly about it one way or the other, additional
consideration will be given to the points in question. He explained
that at the last public hearings, there were a great deal of people who
appeared to speak in favor of child care centers in residential areas,
and that the staff and the Board will weigh the evidence as they see it.
After a brief discussion regarding Mr. Ducco's feeling that the
provisional ~se section of the Zoning Ordinance does not give the Board
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the right to make such decisions, and the fact that the Board's decisions
will not be reversed, unless the majority of the members want it reversed,
Chairman Wenzel noted that it is his feeling that the workshop today is
discussing something that certain people want done in the future. and not
to discuss what has been done in the past. Commissioner Archer pointed out
that the workshop sessions are for the benefit of the members of the Board
to discuss certain issues and suggested that if Mr. Ducco is not satisfied
that there is no legal point In question, he has the right to prove his
case in the courts.
Mr. Marshall Webb, resident of Collier County, stated that he was not
opposed to day care centers, rather, he was here to express his feeling
that day care centers in residential neighborhoods presented a definite
financial advantage over a child care center in a non-residential area,
therefore, he feels all child care centers should be located in commercial
areas. He further requested the Board to incorporate some kind of proa
ter:tion to future Ordinances regulating child care centers that will
prevent the sdle or Inheritance 01 child care centers anrl all other
provisional uses. Chairman Wenzel requested Mr. Webb to meet with the
staff and make his feel ings known to those staff members that will be
studying the, matter and Mr. W~bb agreed, however, he said that he is
here today to request thp Board to hold off on issuing any more pro-
visional uses until all these problems have been solved, and the overall
review of the Zoning Ordinance has taken place.
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Commissioner Archer asked Mr. Webb if he was proposing a mora-
torium on all provisional uses? Mr. Webb answered that he is speaking
of all provisional uses in residential districts, and specifically, any
provisional use that is being requested by a profit-motivated concern.
Chainman Wenzel stated that he would entertain a motion that this proposal
for a moratorium of "PU's" in residential areas be put on next week's
agenda for public hearing.
At this time Mr. Keller was granted additional time to speak and he
stated that the 21 civic associations which he represented wish to have the
Board consider this matter very carefully, as they feel strongly that the
majority of the people in residential areas do not want "spot zoning" throu
provisional uses that are issued for profit-making enterprises.
After a brief discussion r~garding the need to have said subject
placed on next week's agenda for a public hearing, Chairman Wenzel noted
that no motion was offered and so he directed the Board to take up
the next subject.
ZONING PROBLEMS REGARDING THE DENSITY OF FAIRWAY TOWERS IN LELY AREA
DISCUSSED; ATTORNEY REPRESENTING LELY CIVIC ASSOC. TO MEET WITH COUNTY
ATTORNEY FOR THE PURPOSE OF DETERMINING IF THERE IS SUFFICIENT REASON
TO PLACE SAID SUBJECT ON FUTURE AGENDA FOR PUBLIC HEARING
Mrs. Patricia Hurter, representing the Lely Civic Association, noted
that the group she represents only found out about this item on the
workshop on Friday, therefore, she respectfully requested a w~~k or two
deferral in order to have the attorney for the Associat~gQ present. She
said that this time would allow for the notification of all interested
parties to come forward and a full presentation of the facts would be
possible at that time. She noted that the Association is opposed to the
Board's approval of the increased density for the Fairways Towers, in Lely.
Chairman Wenzel called for a motion and Commissioner Pistor moved that
the Board defer this matter for two weeks. Motion died. Commissioner
Archer noted that this mltter has been cliscl/ssed numerous times, and
although he sympathiz~s with the Association's position, the building permit
have been issued for rairways Towers. fie said that some people would like
the Board to reverse their decision, and tie the matter up in the Courts
for a lengthy time, however, he wishes to assure the Association, that
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March 4, 1980
unless they have some specific and factual information concerning the
matter, he cannot even consider reversing the three decisions that he has
made regarding the Fairways Towers.
Chairman Wenzel asked the County Attorney if he is aware of any n~
specific information that might be considered. and Mr. Pickworth
answered negatively. Chairman Wenzel asked Zoning Director Perry about the
status of the building permits and he reported that there are a total of
five buildings planned for in the subject project; one permit has been
applied for and is presently in his office for processing. Mrs. Hurter
clarified the Association's position and explained that there is presently
one building under construction, and there are plans for four additional
buildings. She said that the combined density that will be allowed under
the combination of all the buildings is what they are objecting to.
Attorney Pickworth stated that from the Board's standpoint, he can-
not see how the Board can reverse their decision at this point in time.
He referred to the case being different at the time the decision was
made and covered alternatives the Board might have taken at that time
and further explained the position of leniency towards the "grandfathering
in" of properties by the courts today. He noted that the courts protect
people from governmental "flip-flopping" decisions and further reminded
the Board that the developers of Fairways Towers have spent a lot of money
in reliance on the same decision, therefore, he does not see how the
Board can reverse their decision at this point, without legal ramifications.
Chairman Wenzel noted that he has listened to the tapes regarding the
matter of the Board's decision for approval of the project and nowhere
during the public hearing was the number of units discussed. Attorney
Pickworth explained that at the time of public hearing, the Board had
t~p. opportunity of raising same question before making their decision,
and he tdkes the posItion that the Ooard madp. a decision based on the
information that was presented at the time, therefore, he believes that
unless the opposition can show him an avenue that would allow the Board
to legally reconsider their decision without exposing thl!mselves to a
legal liabili~y, then he recommends the decision be left as is. He
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noted that all legal options will be considered if the attorney wishes to
make them available and he would agree to meeting with the opposition's
attorney as long as the opposition realizes that the Board cannot request
the building permit that is in the Zoning Department at this time be held
up and that it will be processed according to the normal procedures of
County business. He stated that he wants the opposition to realize that
same permit may very well be issued by the time they present any evidence,
they feel may be pertinent. Chairman Wenzel suggested the opposition have
their Attorney meet with Mr. Pickworth after which Mr. Pickworth can decide
and Advise the Board if there is sufficient reason to bring the matter up
on a future agenda. Mrs. Hurter agreed, and turned the floor over to Mr.
John 0' Connor.
Commissioner Brown stated that this proposal is not favorable to him,
and he did not intend to change his position. He moved for adjournment
until 1:30 P.M. Motion died. He asked to be excused, and left the meeting
at 12:07 P.M. The meeting continued.
Mr. John O'Connor, member of the Executive Committee, Lely Civic
Association, spoke in opposition to the approval of Fairways Towers. He
noted that there was not sufficient time made available to properly pre-
pare for this workshop but that he appears to represent the Association
today in good faith, and wishes the Board to consider that he repre-
sents some 1,200 constituents against the interests of one promoter.
He brought up the fact that there has been a bankruptcY,t!led by the
original party involved in the subject project, and he feels that this
would eliminate the so called "grandfathering in" of the new developer.
This was discussed briefly and Mr. O'Connor also stated that he feels
there has been some deception on the part of the developer and that this
all needs to be discussed by the attorneys as suggested by Chairman
Wenzel.
Commissioner Archer asked to be excused, and left the meeting at
12:10 P.~'.
Mr. Perry, Zoning Direct~I', e~plained that it will probably only be a
matter of a day or two before the permit at issue is out of his office
and he has no control over how it is handled after that point. Commissioner
Pistor stated that the problem will not really be in existence regarding
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March 4, 1980
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density until the fifth building is built. Mr. Perry agreed, saying that
the whole problem concerning the opposition is the number of buildings
that are to be part of the project, thus allowing for the high number of
units on said property. It was determined that there is no opposition-to
setbacks or anything along those lines, simply the number of units that
wi1 be built within the total of the five buildings when they are complete.
Chairman Wenzel adjourned the workshop meeting at 12:15 P.M.
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