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HEX Transcripts 05/13/2019May 13, 2019 Special HEX Meeting TRANSCRIPT OF THE MEETING OF THE COLLIER COUNTY HEARING EXAMINER Naples, Florida May 13, 2019 LET IT BE REMEMBERED, that the Collier County Hearing Examiner, in and for the County of Collier, having conducted business herein, met on this date at 9:00 a.m., in SPECIAL SESSION at 2800 North Horseshoe Drive, Room 609/610, Naples, Florida, with the following people present: HEARING EXAMINER MARK STRAIN ALSO PRESENT: Mike Bosi, Planning and Zoning Director Heidi Ashton-Cicko, Managing Assistant County Attorney Page 1 of 33 May 13, 2019 Special HEX Meeting PROCEEDINGS HEARING EXAMINER STRAIN: Good morning, everyone. Welcome to the Monday, May 13th meeting of the Collier County Hearing Examiner's Office. If everybody will please rise for the Pledge of Allegiance. (The Pledge of Allegiance was recited in unison.) HEARING EXAMINER STRAIN: Thank you. Some housekeeping matters. Speakers will be limited to five minutes unless otherwise waived, and a recommendation in this particular instance will be provided to the Board of County Commissioners within 30 days. That is a little different. Instead of a decision, a recommendation's going to be provided to the Board. This was remanded back to this office specifically for review. The process today will be the same. We'll hear presentation by the applicant, then by staff, who is the other party, and then I'll be asking questions at the end of each presentation to the extent I need to, any members of the public can speak after that, and then there will be a rebuttal opportunity for the applicant. And with that, Mr. Yovanovich, it's all yours. Oh, I'm sorry. Advertised public hearings: The first and only item up today is Petition No. P1,20190000305, London of Naples, Inc. This is in the Gateway Triangle Mixed Use District. All those wishing to testify to behalf of this item, please rise to be sworn in by the court reporter. (The speakers were duly sworn and indicated in the affirmative.) HEARING EXAMINER STRAIN: Disclosures on my part: I've talked with staff; I've talked with the applicant; talked with the County Attorney's Office; worked on procedural issues. I have gone back and reviewed thousands of pages of documents. The ones that 1 found most interesting were the ones I included in the record that we have filed with the Clerk's Office, and the applicant has had copies of those. So with that, we'll move right into the petition. And, again, Mr. Yovanovich, it's all yours. MR. YOVANOVICH: Good morning. For the record, Rich Yovanovich on behalf of London of Naples, Inc. With me today is Bill Higgs and John Agnelli, representatives of the property owner, and my associate, Francesca Passidomo. This is an appeal of an administrative decision denying/revoking an insubstantial change to an SDP and an SDPA pertaining to a hotel. I want to, one, clarify what is or isn't part of the record. I could not tell based upon the draft staff report, but I wanted to make sure that our appeal with all attachments and references to the code are part of the record; that our supplemental Hearing Examiner memorandum and references to the code are in the record. I saw a staff response that has today's date on it, but I received it more than a month ago, and then we replied to that staff response. And I want to make sure that all of those documents are part of the record together with the LDC code and Growth Management Plan provisions referenced in those documents. HEARING EXAMINER STRAIN: Okay. When we sent the files to the Clerk's Office to go into that record folder that they have, included in that was an email with attachments received from you on March 8th, another one on March 15th, and another one on April 5th. Those are the -- and the one on the 8th was the original one with all the attachments, the one on the 15th was Page 2 of 33 May 13, 2019 Special HEX Meeting another memorandum with a set of plans, and the one on April 5th was the reply and schedule, and it had 2014-33 ordinance attached to it. MR. YOVANOVICH: Okay. Thank you. HEARING EXAMINER STRAIN: Okay. And that's all I can recall having been sent to me, and they were all supposed to have been with the Clerk's Office already filed. MR. YOVANOVICH: I just wanted to make sure that that's all apart of the record. HEARING EXAMINER STRAIN: It should be. MR. YOVANOVICH: Before you today, the basis of the appeal was the staffs determination for the first time for this project that an FAR of 0.6 applies to properties within the Bayshore/Gateway Triangle. Originally, on January 4, 2019, staff denied SDPI and P1,20180002049. The sole basis for that denial was that the hotel portion of the project did not meet a 0.6 FAR. Staff is also retroactively imposing that 0.6 FAR to a previously approved SDPA, P1,20170002293. Our appeal was timely filed. This appeal is a new interpretation from your staff on this particular two -acre piece of property. The SDP was originally for, I believe it was, 12 hotel rooms. It was then amended to go to 48 hotel rooms. It was clear that the 48 hotel rooms exceeded an FAR of 0.6, and that was approved by staff without objection. We filed an amendment, an insubstantial change to the SDP, to go from 48 rooms to 150 rooms. That SDPI was, in fact, approved and staff then decided to rescind that approval solely based upon traffic concerns. It was not until months later that the issue of an FAR was raised by staff, and that was raised not only in the SDPI but, as I mentioned, retroactively applied. The property in question is outlined in -- let me make sure I hit the right button -- in red. That's the roughly two -acre parcel that the SDPI was originally approved for. Our neighbor -- and you all know I'm directionally challenged. I'm not sure if it's east, south, or east and south -- HEARING EXAMINER STRAIN: East. MR. YOVANOVICH: -- is the county redevelopment agency property that is currently under contract to be acquired by a group headed by Mr. Pezeshkan and Mr. Starky. In our appeal you received a staff report, and you will see that staff originally approved our project because our project was consistent with the Growth Management Plan, and this is directly from your staff report. And staff says, based upon the reading of the GMP language for the Bayshore community redevelopment area, which states higher intensities should be expected in the overlay, staff originally concluded that no limitations on a hotel's intensity, as suggested by the silence of the LDC Section 4.02.16, should prevail. This was based upon the recognition that the GMP is the controlling document. Well, as we all know, the GMP is always the controlling document. The LDC is required to be consistent with the Growth Management Plan. So staff acknowledges and admits that what they approved is, in fact, consistent with the Growth Management Plan. However, staff determined that under one provision within the growth -- I'm sorry, the Land Development Code, and that was Section 1.03.01.13, that the Land Development Code is now going to trump the Growth Management Plan and impose a lower intensity standard for this property, lower than what was intended under the Growth Management Plan. Staff characterized our arguments as persuasive but somehow circumstantial. They're saying it's the absence of standards in 4.02.16 related to hotels. Our argument was it was deliberate, and we'll take you through the actual code provisions. We argued it was deliberate. Page 3 of 33 May 13, 2019 Special HEX Meeting They said it was unintentional, and there's no way it was intended that there would be an unlimited number of hotel rooms allowed on the parcel of property. And they cite you to 1.03.01.1) as the basis for their position that they're now going to limit the intensity of hotels within the overlay. HEARING EXAMINER STRAIN: Rich, just so I don't interrupt your moving forward, do you want me to wait till you're finished? MR. YOVANOVICH: You can -- it's up to you, Mr. Strain. If we're going to handle this like an appeal, we can have a hot panel, or we can -- either way. HEARING EXAMINER STRAIN: I can keep making thoughts of what I want to ask you. MR. YOVANOVICH: That's fine. HEARING EXAMINER STRAIN: And in the end we can go through them all again, but you'd have to bring the slides back up. MR. YOVANOVICH: That's okay. Why don't you ask them as you want to ask them then. HEARING EXAMINER STRAIN: Okay. You previously had an approval, and it was first rescinded due to a traffic issue, I think you said. MR. YOVANOVICH: Correct. HEARING EXAMINER STRAIN: Shortly after that, if I remember, I think you included in one of your exhibits a table of timing. And I noticed shortly after that first recision you went ahead and paid the difference of the impact fees between the previous application and this one. If it was rescinded, why would you pay those impact fees? MR. YOVANOVICH: I actually have those slides in my presentation later on, Mr. Strain, but -- HEARING EXAMINER STRAIN: That's why I asked. And maybe I should just wait till the end. MR. YOVANOVICH: I do have that. But if you want to ask questions -- if you don't mind, I'll tell you if I'm going to address it later, and if you'll let me address it then, that would be great -- HEARING EXAMINER STRAIN: That's fine. MR. YOVANOVICH: -- but otherwise, feel free to raise questions you may have. HEARING EXAMINER STRAIN: You said it was clear that the FAR at the 48 -room size was exceeded. MR. YOVANOVICH: Yes. HEARING EXAMINER STRAIN: How was it clear? MR. YOVANOVICH: If you were to look at the site development, the plans that were submitted as part of the amendment to the Site Development Plan, you will see that I think it was five entire floors were hotel. And you can clearly look at the footprint of the hotel room, the floors, and see that it exceeded more than 0.6 times 1.98 times 43,560 for square footage related to the hotel. And I believe that's in the record. HEARING EXAMINER STRAIN: The current plan that you have is in excess of 0.6, but based on the way it was -- it could be looked at in regards to common areas that are there for other uses besides just hotel, it would be somewhere below 0.8. And that's why I was wondering if a smaller building -- so you're looking at more than five floors of hotel suites. MR. YOVANOVICH: Mr. Strain, I don't have that document at my -- I can't remember if that one was five or it was the next one that was five, but when you looked at the number of floors that were dedicated solely to hotel in the 48 -unit plan, if you did that calculation the way it has Page 4 of 33 May 13, 2019 Special HEX Meeting historically been done by the county staff, you would clearly see we exceed a 0.6. HEARING EXAMINER STRAIN: Okay. You say it's the consistency with the GMP. I had provided probably a lot more documents than the rest of you had by a multiplier, because I had looked for specific language that would have addressed this issue in the GMP. I did not find any. I found what you reference, but I didn't find anywhere where it says that the 0.6 is not applicable that would have then been further implemented by the LDC. So it appears in the GMP that the intensity is allowed to be increased, but it's like density is allowed to apply in projects. It doesn't happen until you go through a process to get it. Did you have anything in your presentation that will discuss that more? MR. YOVANOVICH: Mr. Strain, I'm going to go in great detail as to what the development standards were and how they were determined to be adopted in the Land Development Code and how it was clear and that it was intentionally not required to have a 0.6 FAR by the mere silence of it in the tables and the mere words in the LDC that says, Thou shalt not use the table staff is relying upon. HEARING EXAMINER STRAIN: Okay. MR. YOVANOVICH: I don't know what just happened. In reviewing the county staff letter, you'll see that they rely on 1.03.01, Subsection D, where they're basically saying where there's an inconsistency, the more restrictive prevails. Now, I will show you there is absolutely no inconsistency that there was the intent that the overlay provisions are the provisions that apply to all properties within the overlay. You don't go to general development standard tables in the LDC. But what your staff is not relying upon or acknowledging exists in the Land Development Code is Subsection A that says the rules established in this chapter shall be observed unless such construction would be inconsistent with the manifest intent of the BCC as expressed in the Collier County Growth Management Plan; C, which says, all provisions, terms, phrases, and expressions contained in these regulations shall be liberally construed in order that the true intent and meaning of the BCC may be fulfilled -- I'm sorry -- fully carried out; and, E, in all circumstances, the provisions of these regulations shall be interpreted and construed to be consistent with the Growth Management Plan. Those are three of the very important rules of construction when interpreting the Land Development Code. Staff only identifies one. Why they picked that one and ignored A, C, and E when they acknowledge in their staff report that our application of the code is consistent with the Growth Management Plan -- and your rules of construction say you must interpret the LDC to be consistent with the Growth Management Plan. Those are important factors in interpreting this, as you will see in the next several slides. The BCC's express policy for the overlay was to increase intensity of development to revitalize the area. Reading the LDC narrowly to impose an FAR on a hotel use would frustrate the true intent and meaning of the LDC because, in effect, staff is applying a provision to basically keep the same intensity on properties within the overlay that currently exist under the straight zoning for properties. That was not the intent, based upon what we're going to share with you in the Growth Management Plan, and not the intent, as we will show you in the Land Development Code. The county has in its Growth Management Plan, under the Future Land Use Element, provisions dealing with the redevelopment of property. And, basically, it says under Policy 4.8, the Board of County Commissioners may consider whether to adopt redevelopment plans for existing commercial and residential areas. Such plans may include alternative land uses, modifications to development standards, and incentives that may be necessary to encourage redevelopment. And then it specifically acknowledges the Bayshore/Gateway Triangle Page 5 of 33 May 13, 2019 Special HEX Meeting redevelopment plan that was adopted by the Board on June 13, 2000. HEARING EXAMINER STRAIN: That slide -- MR. YOVANOVICH: Yes, sir. HEARING EXAMINER STRAIN: -- since you don't mind me asking questions as we go along, this is one of the issues I've been trying to locate. It says, such plans may include incentives. And I'm just wondering, your position is the fact that there is no maximum limitation, that's an inclusion of an incentive? MR. YOVANOVICH: Yes, sir, and I have more slides -- HEARING EXAMINER STRAIN: Okay. I just -- MR. YOVANOVICH: -- that will address -- that will address that. HEARING EXAMINER STRAIN: Thank you. MR. YOVANOVICH: The Board's express policy for redevelopment areas, including the Bayshore Triangle overlay, was to modify the development standards and provide alternative uses in order to provide incentives. And you will see, Mr. Strain, as we go through these slides, you will see where, for instance, a hotel is a C4 use as a conditional use. The Board of County Commissioners added hotel uses to the overlay as permitted uses. It does -- so, clearly, they intended for hotel uses to be allowed under the new development standards. And I'll show you how they did not pull forward the 0.6 or the 0.8, depending upon what type of hotel it is, deliberately, because they did bring forward standards when they wanted to do so, and I'll take you through that. HEARING EXAMINER STRAIN: But to get to a mixed-use project, you get to double your height from 56 to 112 feet, and you also have to limit your uses to CI through C3 with the exception of movie theaters, hotels, and other things. What did the -- would it have been the intent that by adding a hotel use to a commercial area that would be limited to C 1 to C3 be a further incentive to people to encourage hotels to go in that area? MR. YOVANOVICH: No, because what you've done is -- you'll also see when we get to those slides that it was clear in the code that however you picked whatever use you wanted, you had to develop under the overlay's development standards. And you will see under the overlay's development standards that if you went straight with a hotel, you lost 19 feet in height, because the maximum height for one use went from 75 feet on C4 property to 56 feet in C4 property. So, clearly, they did not mean to give you a use that you can do less with if you decided to do it as a single use. Because if you were to apply that FAR standard, you lost 19 feet in height for something that you could have done at 75 feet in height, and we'll get to the greater details of how that all works under the code. And I will point out, Mr. Strain -- and it's kind of -- I was going to point that out here. When you read the language, it says -- this is specifically to the Bayshore/Gateway redevelopment overlay. And it says, the intent of the redevelopment program is to encourage the revitalization of the Bayshore/Gateway Triangle redevelopment area by providing incentives that will encourage the private sector to invest in this urban area. This overlay allows for additional neighborhood commercial uses and increased intensity and higher residential densities that will promote the assembly of property or joint ventures between property owners while providing interconnections between properties and neighborhoods. The intent of the overlay is to allow more intense development in the urban area where urban services are available, and then it goes on to say they created two districts. HEARING EXAMINER STRAIN: You know -- and I have -- MR. YOVANOVICH: The first one is a mixed-use district. Page 6 of 33 May 13, 2019 Special HEX Meeting HEARING EXAMINER STRAIN: And I have some questions about this but, you know, I think you so often have to tell me "wait till I finish." I'm going to stop here as far as my asking questions. I'll let you finish your presentation. MR. YOVANOVICH: We can always go back. HEARING EXAMINER STRAIN: We may have to roll back to some of these. I think that would be simpler. MR. YOVANOVICH: No problem. So, again, the Growth Management Plan is clear that it allows for increased intensity and specifically references both hotels and motels within the mini -triangle. And staffs application, again, of the FAR standard actually is a reduction in the density. It certainly didn't increase the intensity the way staff is applying it. Another reference in the Growth Management Plan to the mini -triangle being a catalyst site for redevelopment; we're in the mini -triangle. This is both -- this is the zoning map, but you can see where we've circled. It's consistent with the Future Land Use Map for the Bayshore/Gateway Triangle, and it identifies the property as being within the mini -triangle and that we're in the mixed-use district for purposes of the ability to come up with a mixed-use plan. So, in summary, the Growth Management Plan is clear that the overlay promotes increased intensity and higher residential density. The overlay was created to revitalize the redevelopment area by providing incentives, including modifications to the development standards that will encourage private -sector investment for development in the area, and that the intent and purpose of your overlay was to allow more intense development. You get into the applicable zoning provisions next that were to be adopted to be consistent with the Growth Management Plan, which was to provide incentives for the redevelopment and provide for opportunities to be more intense. You'll find these sections in 2.03.07.N of the Land Development Code. These are the provisions dealing with the Gateway Triangle Mixed Use Overlay District, which I just showed you on the previous map that this property is located. And under the purpose and intent it says, the purpose and intent of this district is to encourage revitalization of the Gateway Triangle portion of the Bayshore/Gateway Triangle redevelopment, and it also says, this district is intended to revitalize the commercial -- revitalize the commercial and residential development. Under the relationship between the zoning classification and the Growth Management Plan, it says that this section, the GTMUD, implements the provisions of the Gateway Triangle, the provisions of the Section Roman Numeral 5F, Bayshore/Gateway Triangle Redevelopment Overlay of the Future Land Use Element. And it goes on to say, development standards -- I'm sorry. We go down to No. 2, I'm sorry; B, Letter B. It says, property owners may establish uses, densities, and intensities in accordance with the existing Land Development Code regulations of the underlying zoning district or may elect to develop/redevelop under the provisions of the applicable GTMUD subdistrict. In either instance, the GTMUD site development standards as provided for in Section 4.02.16 shall apply. So there's no question that they're sending you to 4.02.16 for the development standards applicable for the development of properties within the mixed use -- I'm sorry -- in the overlay. There were separate and distinct standards in Section 4 of the Land Development Code applicable to the overlay, and I will call your attention to some of those provisions. There's a Table 2 in Section 2.03.07 that identifies the permitted uses. These are a few. There are several Page 7 of 33 May 13, 2019 Special HEX Meeting permitted uses in 2.03.07. I've highlighted for you the use and type that I believe are applicable, and it gives you an example of when the county intended to impose a more restrictive standard, they did that. For example, under bed and breakfasts, they send you to 4.02.16.C.4 for additional standards. You'll note for hotels and motels, they're now permitted uses on that property instead of conditional uses on that property, and you'll notice there are no additional standards. You will see that gas stations with convenience stores are permitted uses, and they send you to 5.05.05 for your additional standards, because had they not done that, you wouldn't have to meet 5.05.05 for the development of gas stations within the overlay. So when the Board of County Commissioners and your staff wanted to impose additional standards, they did it, and they knew how to do it. If they wanted to impose a 0.6 FAR for regular hotels and a 0.8 for resort destination hotels, they would have put it here. There would be no ambiguity, as your staff is trying to argue there is now. There is a third footnote under that table that talks about mixed -used projects in the approval process and, again, and it says, all projects must comply with the site development standards as provided in Section 4.02.16, and I will show you those shortly. The mixed-use process is basically an administrative process that we go through, and you must have a mixture of residential and commercial uses as permitted under the table of uses for the appropriate subdistrict. That goes back to the Bayshore/Gateway Triangle Mixed Use District which are these uses right here. So you have to meet those allowed uses based upon 4.02.16 for development standards. This is the process for adopting a mixed-use project. Obviously, we're here based upon that. And on three occasions this project was approved, and on the third occasion staff is taking back their approval. The language couldn't be any clearer that the site development standards found in Section 4.02.16 exclusively govern the development of projects in the overlay. It said on multiple occasions that you go to 4.02.16. So what does 4.02.16 say? Subsection B -- if I knew how to blow this up I would, but I think you can probably see that. It's the dimensional and design standards for the GTMUD, which our property is located in. The mixed-use subdistrict specifically is what we're developing under, and it has a Development Standards Table for lot width, front yard, side yard, rear yard, waterfront setback, et cetera. You'll note that there's a reduction in height here with a reference to Footnote 7. You go from 75 feet to 56 feet, and Footnote 7 allows, if you do a mixed-use project, to go forward and attain a height of 112 feet if you do a mixed-use project. The next slide takes you through what additional development standards -- I want to take a step back for a minute. When your staff says it's uncontrolled hotel density and that could not have been what the Board intended, as we all know, there are no intensity standards for office or retail in any of the zoning districts. They're all governed by height, setbacks, open space, parking. All of those development standards determine what your envelope is going to be on a piece of property and what you could fit. So there are development -standard provisions applicable to all commercial uses in the overlay that limits what you can get to as far as the number of rooms, and parking is usually the one that is the biggest regulator for uses. So here are some instances where your Land Development Code says, for some uses we're going to have some additional supplementary standards in 4.02.16 for certain uses. These are Page 8 of 33 May 13, 2019 Special HEX Meeting those uses that have supplementary standards. You'll note that there are no additional supplemental standards for hotels and motels even though they were talking about transient uses right here under bed and breakfast facilities. So when you had a transient use that was deemed to need additional supplemental standards, they put them there, just like they could have done for hotels. The failure to include an FAR was deliberate and intentional by the Board of County Commissioners. I already said that. So when we get to the standards -- these are the development standards in the base zoning district. You'll note when it talks about overlays -- whoops. When it talks about overlays, it says, see table of special design requirements applicable to overlay districts. We're going to get to that in a minute. You'll note that that's in the very same table that staff is saying that somehow the 0.6 destination resort hotel applies to not only C4 but somehow applies now to the special design standards in overlays. I jokingly refer to this as the "thou shalt not use this table standard" because it says, "Do not use this table." It says, "Go to the overlay." To show that that was intentional, another table under 2.4, 4.02.01, the general development standards, it says again, when talking about yards, it says, go to the overlay. Thou shalt not use the general tables. There's no ambiguity that your Board of County Commissioners never intended for these two tables or any of the other tables in the general base zoning district tables to apply to properties with the overlay. You go to the overlay. As the earlier provisions I showed you in 2.03.07 said, you go to 4.02.16. So there is no inconsistency between the more restrictive and less restrictive, because your staff is not looking at I believe it was A, C, and E when looking at 1.03.01. They just chose D to look at. The standards are clear throughout the adoption of the Growth Management Plan as well as the implementing LDC that you rely on 4.02.16 for the development. No ambiguity. So you don't even go and try to figure out how to resolve an ambiguity that doesn't exist. The case law is clear that you only look at legislative history if there is an ambiguity in the language of a statute or an ordinance, and I cite you to the case. And I'm going to leave a copy of these materials, Mr. Strain, so you can have -- HEARING EXAMINER STRAIN: Do you have a copy of the PowerPoint? MR. YOVANOVICH: Yeah. I have a hard copy for you. HEARING EXAMINER STRAIN: Yeah. That would be great. Thank you. MS. PASSIDOMO: Do you want the hard copy to follow now? MR. YOVANOVICH: No, I'll give him one in a moment; Ms. Ashton and Mr. Bosi as well. The language is clear, if there's an ambiguity, then you can go to legislative history. So I'm going to assume there's an ambiguity -- although I don't think there's any ambiguity -- and we can look at the legislative history of the provisions for the overlay. Back in 2012 there was a discussion about what the purpose of the amendments were. And it says, the amendments represent a comprehensive rewrite of the Bayshore/Gateway Triangle mixed-use overlays. The amendments reorganize the overlays that relate to the Bayshore/Gateway Triangle Community Redevelopment Agency to remove redundancies and improve formatting. The reorganization includes consolidating the design standards for all of the subdistricts Page 9 of 33 May 13, 2019 Special HEX Meeting into one section, 4.02.16. Establishing simplified tables of uses, consolidating all supplemental standards for specific uses into one section and moving the MUP process to Section 10.02, which is basically the administrative process for different applications. It couldn't be clearer that you were trying to put everything in one location for determining the development standards, and that one location became 4.02.16. The amendments were also revised on lot and dimensional standards. It says the reason was to ensure that the CRA overlays respond to current market conditions, address minor technical issues, and are consistent with CRA goals and objections (sic). Mr. Scott, who at one point worked for RWA and then came to work for the county, states that -- and there were five of those. One referring to overlays broken into -- I'm sorry. Let me start again. But in 2009 the CRA retained RWA to do a comprehensive rewrite of the amendments, and they were specifically looking to further investment and redevelopment, as Jean mentioned; that would be Jean Jourdan who used to be the CRA person. And there were five of those, and they were broken down to improve user friendliness. Some of the things that were identified were to eliminate inconsistencies between the overlay regulations and things that were found in the greater Collier County LDC: Incorporate more tables and pictures, and modernize the use of tables, consolidate design standards. There was a lot of repetition in the existing LDC. Again, there was a deliberate intent to consolidate everything into 4.02.16. Mr. Vanasse with RWA said -- so if you turn to Page 11 and you look at Line 8, it kind of describes how these overlays work. And what it states is, all other projects may elect to establish uses, densities, and intensities in accordance with their underlying zoning; however, all projects must comply with site development standards as provided in Section 4.02.16, which is the overlays. So, basically, what they're saying is you rely upon the overlay for your development standards. You could pick your uses under the underlying zoning or the overlay, but you develop under the overlay under -- yeah, the overlay standards. And then Heidi follows up by saying, so those uses that they just went through, the chart, you look at it, that showed the overlay, it will operate like -- kind of like straight zoning. Straight zoning, as you know, you have your uses, and you go to your development standard tables for that straight zoning. We have our uses under the overlay, and we have our development standards under the overlay, 4.02.16. MS. ASHTON-CICKO: That question that I asked related specifically to the table of uses as to permitted and conditional uses. MR. YOVANOVICH: Correct. And that's my point. MS. ASHTON-CICKO: Okay. MR. YOVANOVICH: You could pick your uses under either, and it's straight zoning for purposes of uses, which then ties you to 4.02.16 on how the earlier provisions dealt with the development standards for those tables of permitted use. More legislative history. And I'll give you this, Mr. Strain, so I don't have to read it all to you. And, again, it's sending you to 4.02.16 for the development standards within the overlay. It couldn't be clearer that the GMP expressly encourages more intense development in the overlay. It couldn't be clearer that the LDC carries forward this policy by adopting specific development standards for the overlay, and it couldn't be clearer, if you thought there was an ambiguity, that the legislative intent was to allow 4.02.16 to adopt the regulatory standards for projects within the overlay. On June 6th, 2018, is about the first time I was hired after Mr. Higgs acquired the property Page 10 of 33 May 13, 2019 Special HEX Meeting to look at what can you develop on the property. And I will admit, I had heard people talking about there were these limitations on intensity in the overlay until -- I never had a project in the overlay, so I had never had a cause to sit down and actually read the overlay. And I sat down and I read the overlay with Mr. Vanasse, and we went through and we said, you know what? There is no density standard in the overlay. There is no unit -size standard in the overlay. And so we said -- and there's no FAR requirement in the overlay. Because when you sit down and you read it and you go, you know what? I didn't know that. So we sat down and we read it. And to make sure we were right, we sent an email to the county, to the person who reviews this project, and we said, hey, confirm whether we're right or we're wrong whether or not there is a unit restriction, FAR requirement, or minimum room size. And we got an email from Chris Scott saying, no, you don't, and he copied who I'll call the usual suspects in Collier County for these types of decisions to make sure he was right. David Weeks interprets the Growth Management Plan; Mr. Bosi interprets the LDC; Mr. Bellows is zoning; Heidi is the attorney. And, unfortunately for her, she's like the last woman standing at this point because she's got to train someone else to help her; and then some people with RWA; and then, finally, Matt McLean, who also is involved in site plan reviews. And the answer came back, no, there are no FAR requirements. So what did we do? We submit an insubstantial change. When you add all these floors up, you'll see that it far exceeds a 0.6 FAR. It was for 150 rooms. And on August 1, almost two months after the Chris Scott email, we get approved. We get approved for 150 rooms. Right here. And, of course, we have to pay some additional road impact fees as part of that process. We paid those impact fees as we were required to do. I don't know -- and to answer your question, Mr. Strain, this is the letter about 30 days later after we got our approval, a letter that asked us some additional questions regarding transportation. You can see from the date of this letter that it's prior to the date of the payment, but -- HEARING EXAMINER STRAIN: That's one of the things I noticed in your table of chronology, so... MR. YOVANOVICH: Right. And I noticed it as well but, clearly, staff -- for whatever reason, the county accepted that payment after it had issued this rejection letter, that you can see. It refers to a TIS and, I believe, shared parking are the two bases for needing some additional information. And then --that's August 31st or, sorry, August 30th, 2018. And then we get to October 16 where we get the, hey, you have an FAR; right here. And it refers you to 4.02.01.A, Table 2, building dimensions standards for principal uses which, if we go back in the presentation, is the same table that says go to the overlay for purposes of dimensional standards. So, in conclusion, the GMP is clear that the intent of the overlay was to increase intensity over what exists in the underlying zoning. The LDC is clear that the development standards in 4.02.16 apply to all projects in the overlay. The Development Standards Table the county relies upon clearly states that the special overlay standards govern. The county ignores the remaining provisions of 1.03.01 of the LDC by solely relying upon 1.03.01.1) to now impose an FAR. And the county, most importantly, admits that our interpretation of the development standards for projects in the overlay is the interpretation that's consistent with the Growth Management Plan. And as I pointed out, it's the county's obligation to liberally construe any of the Land Development Code provisions to be consistent with the intent of the Growth Management Plan, and your staff says our interpretation was consistent with the intent of the Growth Management Plan. Their interpretation is not consistent with the intent of the Growth Management Plan. Page 11 of 33 May 13, 2019 Special HEX Meeting And that is a summary of our appeal. And we are going to -- we're requesting that -- I guess you're doing a recommendation -- HEARING EXAMINER STRAIN: Yes. MR. YOVANOVICH: -- that your recommendation include a recommendation to not apply the FAR to this particular Site Development Plan. Then, with that, I'm available to answer any questions you may have, and my guess is you have a few. HEARING EXAMINER STRAIN: It's just a few. When I went through the documents leading up to this, I wanted to find out how the FAR, how the idea of the hotel use, was at all discussed, and so I did searches starting with those search mechanisms, search words, and then expanded it as I picked up things. You saw the documents, and you've used some of them here, because -- they weren't in your package originally, so that means you've used the documents I sent. And I did that intentionally. I wanted you to see everything that I thought was relevant that I could find that discussed everything in somewhat detail. The piece I could not find -- and, again, I'm going to ask, I was on the Planning Commission for some of the documents I sent you. In the detail that I review on that level, I ask a lot of questions about standards. I cannot recall ever being told there was no -- there would be no density as a result -- no intensity as a result of the standards being adopted by the Bayshore overlay. I would have -- generally would have asked or challenged that or say, well, explain, but I couldn't find a discussion on it. So did you find anything where it says -- let's back up, though, from the GMP and the LDC. Just a discussion that said there was -- the 0.6 FAR would not apply in the Bayshore overlay or that hotels do not have any maximum limitation in the Bayshore overlay. Is any of that -- did you come across any of that? MR. YOVANOVICH: Any direct discussion where that came up? No, nor was there any direct discussion about limitations on other retail or office -type uses. The purpose of the whole redo of 4.02.16 was to come up with applicable development standards. I would have assumed -- which you and I know what happens when we assume -- is if someone thought there needed to be a limitation on hotels and an FAR, they would have put that in there because, remember, the whole purpose was to encourage the revitalization of an area that's still struggling to get off the ground. So you were looking for people like Mr. Higgs to come in and spend money to assimilate properties and go forth and develop them. So you were looking to give those options. There was not a question from you or anybody else saying, hey, what was taken away? The assumption I have is you -all were comfortable with the regulations that were in place: Height, if you did a mixed use; setbacks; lot coverage, parking. Ironically, when you -- there were some cross-references in 4.02.16. For instance, it sends you over to signage under the general signage provisions when you want to do signage. I believe it does it for architectural as well. There are a couple of other references like that in 4.02.16 when you wanted to go to the general standards. There was no cross-reference to go to 4 point -- I'm sorry -- yeah, 4.02.01 for development standards for hotels. You did have that, Mr. Strain, for gas stations, which was 5.05.05, which we're pretty familiar with now, that had actually changed since 2012. HEARING EXAMINER STRAIN: I think part of the confusion I have in understanding Page 12 of 33 May 13, 2019 Special HEX Meeting how we got here today is, it's hard for me to question something that's not in front of me. And when this came through, there wasn't anything acknowledging there's a change to the intensity of hotels. I wondered -- now I'm wondering, since it wasn't discussed or spoken about, how anybody would have known except at an opportune time for the people that created it. I wouldn't know it. How would I know your intention was to change that -- change the idea that the missing points or something that wasn't said or something that was silent in the new language doesn't fall back to the base LDC, which is how we do Planned Unit Developments and the rest of the applications in Collier County? MR. YOVANOVICH: But you have very limited overlays in Collier County, and in those overlays you develop your own development standards. You have the Bayshore/Gateway overlay. You have the Rural Fringe Mixed Use District overlay. I doubt when you adopted that overlay there was a highlight of every instance where maybe that overlay was a little different than the underlying base zoning districts. HEARING EXAMINER STRAIN: Those overlays do address this issue. MR. YOVANOVICH: Well -- and this one does, too. This one very clearly -- Mr. Strain, this one very clearly says, you go to 4.02.16 for your Development Standards Table. That's what it says. I don't get to change the words; you don't get to change the words either. They say that. If your staff didn't point out to your satisfaction that they were, in fact, removing that 0.6 and 0.8 by what they were doing, I can't go back. I wasn't involved in any of this. But I can read the words, and those words are clear that there was an incentive in the Growth Management Plan specifically on this piece of property to incentivize hotels and motels. HEARING EXAMINER STRAIN: Can we turn back to that Table 2 way back about six or seven slides from the beginning. Not Table 2. I'm sorry. I think it was the one about the MUP -- MR. YOVANOVICH: Let me know when I get there. HEARING EXAMINER STRAIN: Keep going. We'll hit it sooner or later. MR. YOVANOVICH: Just tell me which one you want. HEARING EXAMINER STRAIN: Keep going. Oh, no. I'm sorry. You just passed it. MR. YOVANOVICH: That one. HEARING EXAMINER STRAIN: That table right there. MR. YOVANOVICH: Yes, sir. HEARING EXAMINER STRAIN: The existing straight zoning that's on the property before the Bayshore overlay was put in place, an applicant can -- or a property owner, I believe, can agree to develop under the new overlay provisions or under the uses of the original zoning, but they would still have to be under the new provisions; is that true? MR. YOVANOVICH: That's right here. HEARING EXAMINER STRAIN: No, no. Can you go back to that table. MR. YOVANOVICH: Mr. Strain, I just want --the language that you're quoting is this language right here, because I think you have to put it in context. It says you pick. HEARING EXAMINER STRAIN: I know. And that's why I want to go back to the other table. MR. YOVANOVICH: And then we go to 4.02.16, which it specifically refers you to. HEARING EXAMINER STRAIN: Okay. It's my question, so give me a chance to finish it. Page 13 of 33 May 13, 2019 Special HEX Meeting MR. YOVANOVICH: Okay. HEARING EXAMINER STRAIN: This particular table, if the bottom line says that if you choose to do any of those commercial mixed use or whatever, you get the building height, instead of what's in the zoning, which is C4, of 75 feet, if you were to do just commercial, you get 56 feet, correct? MR. YOVANOVICH: Correct. HEARING EXAMINER STRAIN: Okay. Now -- and, of course, mixed use is 56 feet, but I know what the footnote says. So now let's go back up one or two slides. I'll tell you when I hit it. MR. YOVANOVICH: Go this way or the other way? HEARING EXAMINER STRAIN: No, you're right. Up; towards the front. MR. YOVANOVICH: Oh, backwards. HEARING EXAMINER STRAIN: North. Does that help? MR. YOVANOVICH: If I go north, I'm going to -- I get the pointer. HEARING EXAMINER STRAIN: Okay. I think you might have passed it. One down. I want some GMP language you had up here. MR. YOVANOVICH: Okay. The GMP language is earlier in the presentation. This is all LDC language. HEARING EXAMINER STRAIN: Yep. MR. YOVANOVICH: Now we're in the GMP language. HEARING EXAMINER STRAIN: Okay. Right there. Now, notice No. 1. Mixed-use development: A mix of residential and commercial uses is permitted for such development -- MR. YOVANOVICH: Correct. HEARING EXAMINER STRAIN: -- but that's where -- now, look at what it says. Limited to C 1 through C3 except as otherwise provided in the subdistrict, and then you can -- otherwise it's hotel and motel use and theatrical. So it looks like the hotel and motel and theatrical use were added to the mixed-use development, which gave you the height backup to 112 feet. It doubled the height. So the incentivization to do a hotel in this particular instance, to go above 56 feet was so long as it was done with a mixed use. That was the incentivization. I think the mixed-use component was what was trying to be incentivized. We've been trying to do mixed use in Collier County for quite a long time; not been very successful in all cases. But I believe that is what we were trying to get through with that number -one paragraph, it would seem, because that's -- from a C 1 to C3, you don't have hotels in that category. MR. YOVANOVICH: Well, you also don't have -- you're right, and let's take a step back for a second. For one, I would say don't forget what I am; I'm a mixed-use project for this property. HEARING EXAMINER STRAIN: Pardon me? MR. YOVANOVICH: I am a mixed-use project for this property. So I get a couple -- HEARING EXAMINER STRAIN: Oh, I know you are, but they gave you the ability to put a hotel in -- to put a hotel at a higher height. MR. YOVANOVICH: It gave me the ability to -- correct. It gave me the incentive to spend a lot of money to build a hotel as well and include in that hotel residential development. Okay. Keep in mind that under the old zoning provisions, under C4, you can't build a hotel in C4 as a matter of right unless you're in an activity center. I'm not in an activity center, so you had to go through a conditional -use process for purposes of developing a hotel if you wanted to Page 14 of 33 May 13, 2019 Special HEX Meeting do a stand-alone hotel. So clearly they intended to give you the hotel option because it talks about incentives and to increase intensity. Now, if you're going to take away 75 -- you're going to go from 75 to 19, that's not an incentive when you're creating this overlay. You took 19 feet away. Because a stand-alone hotel could only be 56 feet. The incentive to do a stand-alone hotel will reduce you to 56 feet, but you notice in that table there's no FAR. So you could put more -- if you want to take away -- you can theoretically do more in the 56 feet than you could in the 75 feet allowed under the original language of the C4. HEARING EXAMINER STRAIN: Do you have a layout on that property that shows you can exceed -- you have a need to exceed the FAR on the 56 feet in height? Just out of curiosity. I mean, I'm just -- I don't know how practical that statement you just made is. MR. YOVANOVICH: Well, it doesn't matter. You're asking me what the language could mean, and what I'm suggesting to you is you have rights that are in 4.02.16. And in 4.02.16, if you want a single -use building, you're capped at 56 feet. If you want to do a mixed-use project, you can get to 112. In 4.02.16, there is no FAR. It's not there, Mr. Strain. You can look all day. You're never going to find a reference to an FAR. You have to interpret that somehow that blank was an unintentional blank and you're really meant to go look at the tables in 2.01 -- I'm sorry -- 4 -- this table right here, so I didn't get the numbers wrong -- that that blank somehow meant, "go here." Go here to the -- HEARING EXAMINER STRAIN: That's not the table. You're talking about the one that's in the overlay. This isn't the one that's in the overlay. MR. YOVANOVICH: No. If remember all of the -- if you remember all the references prior to here -- hang on. All of the references send you to 4.02.16 -- HEARING EXAMINER STRAIN: Right. MR. YOVANOVICH: -- for purposes of the development standards. HEARING EXAMINER STRAIN: Okay. The table you landed on wasn't 4.02.16. It was 2.03.01. MR. YOVANOVICH: I know. This is 4.02.16. That says, here are your Development Standard Tables. You with me? HEARING EXAMINER STRAIN: I'm with you, yes. But actually it says -- go back up. It says, dimensional requirements for the GTMUD-MXD. That's what it says. MR. YOVANOVICH: I understand. So let's go to the table that they want to rely upon. HEARING EXAMINER STRAIN: Who's "they"? MR. YOVANOVICH: Staff. HEARING EXAMINER STRAIN: Okay. MR. YOVANOVICH: It says dimensional standards for the base zoning districts. So they want to take you from the Dimensional Standards Table that is specific to the overlay to send you to a table that's labeled the same thing, dimensional standards, and in that Dimensional Standards Table it says right here, go to the overlay. So how do you say you're going to use parts of this table when it tells you to go to the overlay? And you go to the overlay, and we all can admit it doesn't exist. Staff admits that there is not a table in -- there's not a development standard in 4.02.16 that says use this. All the other language to the contrary says go to 4.02.16, and they don't want to. They want to go to 4.02.01. That is an illogical interpretation of what 4.02.01 says and all of the provisions I previously showed you say with regard to what are the Development Standards Tables. Page 15 of 33 May 13, 2019 Special HEX Meeting HEARING EXAMINER STRAIN: Could you go back to the Development Standards Table that you are relying on. That one right there. The minimum floor area is 700 per unit. Now, I know that isn't a question right now, but just out of -- if we were to literally interpret this table for what it says versus what it don't say, are you saying that you're going to have your hotel rooms at 700 feet per unit? MR. YOVANOVICH: Mr. Strain, I'm not going to go down that -- I'm not going to answer that question because it's not -- no, Mr. Strain, it's not relevant. HEARING EXAMINER STRAIN: It's an understanding of the table is what I'm trying to figure out. MR. YOVANOVICH: My understanding of the table is exactly like staffs. When it's talking about the unit, it's talking about each commercial use. So the hotel itself and any other commercial use has a minimum unit size of 700. So if I were to put a barber shop in there, it has to be at least 700 square feet. If I were to put any other use, you know, a spa, minimum is 700 feet square feet; not each individual massage room has to be 700 square feet. Each individual use has to be a minimum of 700 square feet. HEARING EXAMINER STRAIN: You also -- when you were moving through your slides, you got to the one with the MUP process, and you said we're here today because of that process. We're not here today because of that process, I believe. MR. YOVANOVICH: Well, we're here -- we used that process to get the Site Development Plan approved. HEARING EXAMINER STRAIN: Administratively. MR. YOVANOVICH: Correct. HEARING EXAMINER STRAIN: We're here today because of -- MR. YOVANOVICH: Because of a letter that said we're taking back what we previously approved through the MUP process. HEARING EXAMINER STRAIN: And I sent you the Traffic Impact Statement included in the documents that were put on record. Do you know the Traffic Impact Statements refers to this hotel as a resort hotel? MR. YOVANOVICH: I don't have that -- I'd have to go back. HEARING EXAMINER STRAIN: It's in the documents. MR. YOVANOVICH: I believe -- Mr. Strain -- HEARING EXAMINER STRAIN: It says that. Just out of curiosity, have you considered this as a resort hotel? And I know you know the history of resort hotels, but I'm asking the question. MR. YOVANOVICH: Painfully. HEARING EXAMINER STRAIN: Yes, I remember. I read that as part of the backup documents, some of which I didn't use. MR. YOVANOVICH: We are not considering this a destination resort hotel to try to get to the 0.8 -- HEARING EXAMINER STRAIN: Okay. MR. YOVANOVICH: -- floor area ratio. HEARING EXAMINER STRAIN: Your Traffic Impact Statement used that for the impacts on the site. Because you increased the hotel rooms from what was there before -- MR. YOVANOVICH: Correct. HEARING EXAMINER STRAIN: -- and there wasn't -- the traffic actually went down, which seemed kind of odd, so I started digging into understanding why that may have happened, and that's how I stumbled across the differences, and I just didn't know if -- Page 16 of 33 May 13, 2019 Special HEX Meeting MR. YOVANOVICH: I believe that was one of the reasons there was a redo or a relook was there was questions related to the TIS. HEARING EXAMINER STRAIN: Okay. MR. YOVANOVICH: That was the first relook -- I believe that was August 30th was, hey, we have some questions about your TIS. It wasn't until October that we had questions about your FAR. I have a theory as to why that happened. HEARING EXAMINER STRAIN: Okay. I don't -- I mean, have you got anything in documentation? MR. YOVANOVICH: What's that? Well, it's in my argument as to why. HEARING EXAMINER STRAIN: This argument here? MR. YOVANOVICH: It was in my first appeal. The reason I believe we're here -- HEARING EXAMINER STRAIN: Okay. MR. YOVANOVICH: -- is that, if we go back to the very first slide, everybody was happy with our project at a 48 -unit hotel even though it exceeded an FAR of 0.6. It was a problem when it went to 150, and that's when the purchaser for the property next door interjected themselves into the process, and all of a sudden there's a new interpretation on how the FAR applies is when the purchaser next door started raising questions about FAR. And I -- we are here -- can I -- Mr. Strain, can I -- is it possible for me to switch over to the visualizer real quick since we're -- HEARING EXAMINER STRAIN: That's a good question. It took a while to hook up the computer. I don't know. You can certainly try it if you'd like. MR. YOVANOVICH: The last thing I want to do is -- I don't need to go back to my -- well, let's do this. HEARING EXAMINER STRAIN: If you're at a break point -- MR. YOVANOVICH: If you don't have any more questions about my PowerPoint. HEARING EXAMINER STRAIN: Yes, I do. MR. YOVANOVICH: So let's stay in that, and then we'll go back and switch out of it if I can. HEARING EXAMINER STRAIN: You had said that -- you had showed an email that kind of started this with the 0.6 FAR being not applicable -- there. And you said that notice had got copied to everybody. Where are the responses from all those people that got copied to? MR. YOVANOVICH: Well, I'm assuming those people had no issues with Mr. Scott's interpretation, because my experience with sending emails to people saying, hey, what do you think, specifically saying they'll leave it to Zoning and Comp Planning, if Zoning and Comp Planning had an issue with it, I'm assuming they would have sent an email saying you're wrong, and that didn't happen. HEARING EXAMINER STRAIN: Okay. But you're assuming that everybody that got copied read it. MR. YOVANOVICH: I'm assuming that the people that I know that are on that list are very thorough and read their emails. MS. ASHTON-CICKO: I was a recipient. I did not review the issue. HEARING EXAMINER STRAIN: That's -- MS. ASHTON-CICKO: I did not opine on it. I didn't research it. HEARING EXAMINER STRAIN: I was just curious, because if there was a response, it would have been interesting to see what those responses were. MR. YOVANOVICH: And I think silence is the response. HEARING EXAMINER STRAIN: Or silence means they just didn't have the time to Page 17 of 33 May 13, 2019 Special HEX Meeting read the detail enough to come back with a response. MR. YOVANOVICH: I could only tell you that the people who are responsible for making these interpretations were all copied. There's not a response saying to Mr. Scott, you're wrong, and, in fact, we got an approved insubstantial change to the SDP through the process, and it wasn't until much later in the process that FAR became an issue. HEARING EXAMINER STRAIN: The reason you may not have found a reference to a previous FAR on the Trio project -- and you know by the plans that I sent you, if you looked at them closely, they relied on a 26 -unit -per -acre count. I guess Ms. Jourdan did not know that this was not an activity center, and that only applies to activity centers and another couple of overlays maybe, but I think that was why no one questioned it. They were going with a 26 -unit -per -acre count for quite some time. At least that's what the documents submitted and approved; the approved Trio SDP used 26 units per acre. It wasn't until the new owner came in that the FAR came up, that I can see. MR. YOVANOVICH: Well -- and I don't disagree. I think that -- I think that the previous property owner didn't totally understand the regulations. I think that Mr. Higgs tasked me and Mr. Vanasse with understanding the overlay and what does it really mean, and we looked at it. And you and I both now use this phrase, I think -- you should footnote me -- is "As I got older, I reserve the right to get smarter." HEARING EXAMINER STRAIN: Oh, I've used that a lot. MR. YOVANOVICH: I know you have. HEARING EXAMINER STRAIN: That does help, yes. That's a good comment. MR. YOVANOVICH: So my point is, now that you've had an opportunity to sit there and really digest those provisions, I'll be quite honest with you, an aha moment happened for me. HEARING EXAMINER STRAIN: What? MR. YOVANOVICH: An aha moment that the 26 and FAR don't apply and neither do the 700. HEARING EXAMINER STRAIN: I agree with you, 26 was inappropriately applied. But you know why that -- I sent you the document. Do you know why that was applied to that property? MR. YOVANOVICH: No, I have no -- HEARING EXAMINER STRAIN: Mr. Fortino, when he had his contract with the county, was given a list of requirements for the zoning. It included a hotel not to exceed at 26 units per acre. MR. YOVANOVICH: He did. HEARING EXAMINER STRAIN: And then he bought that property that you are now talking about, Trio, and when he no longer had the property behind it, he continued with the Trio, and he retained the analysis or the assumption that the 26 units continued to apply. I'm just telling you that's -- that was on the cover of all the pages. MR. YOVANOVICH: I don't disagree that there were people who misunderstood what the overlay says. I believe it. I was -- and I know that Mr. Mulhere thought some things, too, because he went through and tried to change them through the PUD process. The reality is, you sit there, you read the words. The words say what I said they say, and you have to apply those standards to this piece of property. HEARING EXAMINER STRAIN: Well, the only problem I keep coming up with is trying to understand how we would have known this, because it isn't found anywhere in the record. In fact, other things are found that seem to indicate the opposite. Do you believe Mr. Scott is correct now, or was he correct 12 months before? As you Page 18 of 33 May 13, 2019 Special HEX Meeting know from the documents I sent you what he did with the Wood Springs Hotel, which is in the same zoning district as this and would have had the same argument, I would assume, as you've got here today, if they wanted to pursue that. And it had the same engineer that you're using to make this argument who at that time didn't have any objections in the same zoning district to the 0.6 FAR. MR. YOVANOVICH: And I will tell you that I believe that Mr. Scott got it wrong the first time. HEARING EXAMINER STRAIN: He got it wrong at the pre -app, too. Did you notice that? MR. YOVANOVICH: He got it wrong. He absolutely got it wrong. Let me tell you why it didn't matter to the buyer or the current hotel that is being built on that piece of property: It's almost four acres in size. It yielded an FAR of approximately 85- to 90,000 square feet FAR. If you used the 0.6, you'll note that that was approved at roughly 47,000 square feet for the hotel. So they didn't need -- they didn't need to worry about whether the FAR applied or not. When you look at those documents, it became irrelevant. They left, if you will -- left somewhere around 40,000 square feet on the table. So my only reasonable assumption is it didn't matter to that developer. It mattered to Mr. Higgs when he came to me and said, hey, am I stuck by this? And we said, we don't think you are. Let's confirm. And I'm fully aware that someone else got stuck with that interpretation. It doesn't appear like it hurt them at all in that interpretation. And I think that -- you know, and I have a lot of respect for Mr. Scott. And I've certainly gotten some things wrong in my career. I think he got it wrong when he approved the first one, and he got it right when we took him through the process of what exists today with Mr. Higgs' piece of property. HEARING EXAMINER STRAIN: And how about the other one that I sent you, the fact that Mr. Weeks and his department felt that the 0.6 FAR applies? MR. YOVANOVICH: I don't remember seeing that, Mr. Strain. HEARING EXAMINER STRAIN: If you look at those documents I sent you again, you'll find it in there. MR. YOVANOVICH: I may have missed one in reviewing all that stuff. HEARING EXAMINER STRAIN: I sent those to you so you'd have everything. MR. YOVANOVICH: For which project; for the Wood Springs one? HEARING EXAMINER STRAIN: No, for the project behind you, to the east, whatever they call it; mini -triangle subdistrict. The Comprehensive Planning analysis for that said it was a 0.6 FAR, and I thought that was interesting because it's the same zoning, same property you've got here again. So between Jean Jourdan, Chris Scott, RWA, Comprehensive Planning, who all found the 0.6 FAR applicable, or some maximum density applicable. MR. YOVANOVICH: Is this for the Wood Springs? HEARING EXAMINER STRAIN: No. This is for the one behind you. Fred Pezeshkan's project. MR. YOVANOVICH: I'm directionally challenged. HEARING EXAMINER STRAIN: That's the only project behind you that I can think of, so that's what I was meaning. There's where, again, I have a problem understanding how -- if it wasn't known to all these people at that time, how it's all of a sudden known to everybody now without being on record anywhere. Page 19 of 33 May 13, 2019 Special HEX Meeting MR. YOVANOVICH: I can only read the black -and -white words, and I will tell you, in my almost 30 years being here and my dealing with David Weeks for almost every one of those years, it's rare that he gets it wrong, but he does get it wrong every once in a while when he sits down and he reads the words in greater detail. On occasion he has said, Rich, you're right. And I have not had an opportunity to sit down with him, and I don't see him here today. And to my knowledge, I don't think he's written any part of the opinion, the staff report that is in front of you today. So I don't know what his -- I don't know what his opinion is today based upon review of my documents and my -- HEARING EXAMINER STRAIN: I did participate in that particular action. In fact, we had three, maybe four meetings with the Planning Commission for that particular project behind you. I do recall all the application documents, and that was one of them that came to light in my review, and I wanted to point that out to you as well. MR. YOVANOVICH: And I appreciate that. HEARING EXAMINER STRAIN: I don't have any other questions right now, Rich. I may have some more later, but that's it for right now, unless -- did you have something else you wanted to move into? You had asked to unconnect the -- it looks like the computer unconnected itself, so it's -- because your overhead's not up there right now. MR. YOVANOVICH: Maybe they did. HEARING EXAMINER STRAIN: We can unplug the -- we go take a break. MR. YOVANOVICH: Why don't we do that, Mr. Strain, so I don't mess things up. HEARING EXAMINER STRAIN: Let's take a 10 -minute --let's take a nine -minute break, and resume at 10:27. (A brief recess was had.) HEARING EXAMINER STRAIN: It's all yours. MR. YOVANOVICH: Just a couple of things that are in the record. I had shown you kind of under Table 2. -- I think it's -- 07.03, which is the permitted use table for the overlay. HEARING EXAMINER STRAIN: Yes. MR. YOVANOVICH: So if I got the rest -- if I got the cite wrong, that's what I'm about to put up there. HEARING EXAMINER STRAIN: You're going to use the hard copies now, right? Yes, that's working. MR. YOVANOVICH: So I'm good. HEARING EXAMINER STRAIN: It's okay with me if you want to start now. MR. YOVANOVICH: I just wanted to go through and show you kind of the whole table, because the reason I point that out is you're going to see a whole lot of blanks under additional standards, but you're going to see references to code sections when they wanted to make sure those code sections also applied in the overlay, and this is under the permitted -use section. So you'll see -- you could have guesthouses in the overlay, but it's subject to 5.05.04 applicable to guesthouses. Similar to home occupations, it takes you to that section. This is the next page, a whole lot of blanks, artist villages, a bed and breakfast. They take you to the section that if they wanted additional standards other than what's going to be later in 4.02.16, they would have had it. And I've already shown you the one with gas stations. I just wanted to quickly get on the record the entire table. Community gardens and storage. They have additional provisions they wanted to see applicable to the different uses. And you'll see, for the most part, there were no additional standards applicable to those permitted uses that were being allowed in the overlay. Page 20 of 33 May 13, 2019 Special HEX Meeting And then there's -- under the notes right here, Mr. Strain, it says, blank cells indicate that a use is not allowed in the corresponding subdistrict; however, such use may be permitted by the underlying zoning. So that recognized that if you don't have -- I'll make something up here. I don't know if it's allowed under CI through C3. But if you're allowed to have --I'm not even sure if it says restaurants are allowed under the permitted uses. But let's just say, for instance, it's silent on restaurants, that's a C2 use, you would still be allowed to do that under the underlying zoning. And I already showed you this provision that says you've got to meet the Development Standards Table. HEARING EXAMINER STRAIN: So a lot of your argument, though, is relying upon the fact that because those areas are blank, especially when it's referring to, what is it, hotels in that section -- MR. YOVANOVICH: Correct. HEARING EXAMINER STRAIN: -- that's the blank that means there's no restriction on intensity? MR. YOVANOVICH: Correct. It sends you to 4.02.16. Remember that section -- HEARING EXAMINER STRAIN: Well, this is -- yeah, the -- MR. YOVANOVICH: This is the permitted -use section. HEARING EXAMINER STRAIN: This is, yeah, 2.03. MR. YOVANOVICH: So this says, you can have a hotel use. Go to 4.02.16, and you'll see 4.02.16 does not have an FAR in it. HEARING EXAMINER STRAIN: Okay. But it doesn't say -- it doesn't say on that -- the blank, then -- wouldn't you have referred to 4.02.16 in that blank, then, if it applies in the manner in which what you're seeing? MR. YOVANOVICH: Remember -- HEARING EXAMINER STRAIN: I know it says it in other paragraphs. MR. YOVANOVICH: It does. Earlier on it says you can have any of the uses, but you develop under 4.02.16. HEARING EXAMINER STRAIN: But just as a caution, you don't think it should have been needed here? MR. YOVANOVICH: Sorry? HEARING EXAMINER STRAIN: You don't think it was necessary to be here? MR. YOVANOVICH: I think if you wanted a limitation of 0.6 or 0.8 FAR, it had to either be in this specific section, 2.03.07, if I have it right, or it had to be specifically in 4.02.16 with an FAR. The fact that it's not there means it does not apply because, as I pointed out, when you go to the general tables in 4.0 1, I believe it is, it specifically says on the dimensional tables, go to the overlay, which is the 4.02.16. So with that, I think that -- obviously, thank you for your time and your questions, and I look forward to Mr. Bosi's presentation, and if I'm allowed to do rebuttal, I may have some, I may not, depending on what he has to say. HEARING EXAMINER STRAIN: Okay. Thank you. Mike, it's all yours. MR. BOSI: Mike Bosi, Planning and Zoning Director with Collier County representing staffs position. I would yield to the presentation by Mr. Yovanovich as most certainly compelling in the points that were established. Originally, when we were discussing the application of a hotel Page 21 of 33 May 13, 2019 Special HEX Meeting within the GatewayBayshore mixed-use overlay, staff was relying upon language within the GMP, which he referenced. It talks about the increase in intensity as to why it would suggest maybe a hotel could have unlimited square footage and not be governed by a floor area ratio. And as we discussed it further and further, the provision of the LDC, in the conflict language within the LDC, arose, and that language specifically states that when there's a conflict between provisions of these regulations, the GMP, or any other law or regulation in effect in Collier County, Florida, imposing greater restrictions upon the subject matter than any other provision of these regulations, the GMP, or any other law or regulation in effect with Collier County, Florida, the provision imposing the greater restriction and regulation shall be deemed controlling. When that provision of the LDC was pointed out to me when I was evaluating whether the floor area ratio would apply, it was clear that there was ambiguity within the subject, and it was clear that the C4 zoning district did have a 0.6 floor area ratio that would be applicable within the C4, and then the 4.02.16 was silent. Traditionally, when we review zoning districts, when we review development standards, when something is silent it doesn't mean that it's permitted. It just --it normally means it's not permitted if you're talking about a use. All the individual evidence -- and I would say that I don't believe that the application of D and utilizing the LDC invalidates the GMP, because the GMP says that you can accept higher intensities. And I believe that we do receive higher intensities by the allocation of a C4 use within an area that's generally allocated a Cl through C3 zoning district. So then, therefore, you can -- you are having an intensification within that individual overlay. And it was referenced towards my categorization of the evidence that's been presented by Mr. Yovanovich as circumstantial, and I just went to Merriam Webster's, and it's evidence that tends to be proving a fact by proving other events or circumstances which afford a basis of a reasonable inference of the occurrence of the fact at issue. Essentially what it's saying is you have to make a leap to get to a conclusion. There's documentation, there's language that suggests that that's a logical leap, but I still have to make that leap. Within the review of all of the individual material that was submitted by the applicant and that was submitted by the Hearing Examiner as well, from review of that voluminous material, I was not able to find an instance where the specifics that no floor area ratio for hotels should apply within the overlay. When I was reviewing some of the legislative history -- and Mr. Yovanovich actually had the slide up from the testimony from Patrick Vanasse that I found the most compelling, and it was Page 13. It's from the April 25th, 2012, LDC amendment special meeting, and this was part of Mr. Yovanovich's PowerPoint. And I'll just read the bottom two paragraphs, and I think they're key. So if you turnto Page 11 and look at Line 8, it kind of describes how these overlays work. And what it states is all other projects may elect to establish uses, densities, and intensities in accordance with their underlying zoning; however, all projects must comply with the site development standards as provided in Section 4.02.16, which is the overlay. So basically what we're saying is that if your underlying zoning district allows certain uses, you keep those uses, and the densities and intensities associated with those underlying districts exist. So we're not changing that. We're just supplementing that with the overlays. And the keyword is "intensities." What is a floor area ratio? A floor area ratio is a development standard that regulates the intensity of a building. So the consultant who was providing the overview of the LDC amendments of the overlay basically says, the densities and Page 22 of 33 May 13, 2019 Special HEX Meeting intensities associated with the underlying district exist. That creates a conflict. The underlying zoning is C4. The underlying zoning has a floor area ratio of 0.6. 4.02.16 is silent -- is silent to whether a floor area ratio applies. That creates a conflict, and that's what brings me back to LDC Section 1.03 that says when you have conflicts, that you have to use the more restrictive provision. When I looked at that and I saw the language, when he says -- and back up to the paragraph above. And what it states is all other projects may elect to establish uses, densities, and intensities in accordance with the underlying zoning. So, again, that points me back to that C4 zoning, that C4 zoning that has a floor area ratio. Now, when this was being proposed, when this was being adopted, it was 2012. Well, the conflict provision of the LDC existed at the time. So we knew when we were adopting -- when there's conflicts amongst language, when there's ambiguity, the more restrictive is to apply. With that recognition, that framework of construction is in place. And then we add an overlay. We add an overlay that we're specifically -- and it's alluded that we intended it to be unlimited for our hotel for them not to eliminate the conflict that exists by the existing language within the C4 zoning district. And they would have -- in terms of a logical assumption, my logical assumption would be you would want to eliminate any ambiguity if you truly intended to have the floor area ratio not apply to hotels within the overlay. So staffs position falls back upon that there is conflict. I mean, we heard an hour and 15 minutes of very well -thought-out compelling evidence, but we never arrived upon a conclusion that specifically stated that floor area ratio does not apply or at least it's not a conflict, and we have to -- when we have that conflict, we have to fall back upon the LDC for the guidance. And the LDC and the guidance that's provided for by the LDC is the more restrictive is to apply. So I don't have any additional displays. I have no more research. I keep coming back that there's a conflict, and the conflict -- and how the LDC tells us how to treat it is the more restrictive of the provisions. I would have -- I would have hoped if it was truly the intention of the overlay district to be unlimited for hotels that they could -- they would've made that note, but the absence of it leaves ambiguity, and that ambiguity is resolved with the application of the stricter -- of the regulations of the LDC. And that's staffs position. HEARING EXAMINER STRAIN: Okay. Mike, I've got a few questions. I see that you did read 500 megabytes of data that I have. Rich? MR. YOVANOVICH: Question as to process -- HEARING EXAMINER STRAIN: Yes. MR. YOVANOVICH: -- if I may. Are you going to go, and then I get to ask questions of him, or are you going to -- do you want me to go and then you? HEARING EXAMINER STRAIN: Well, is he -- is the County Attorney's Office representing staff today? MS. ASHTON-CICKO: Well, I'm the attorney for you. So am I representing him? HEARING EXAMINER STRAIN: Yes. MS. ASHTON-CICKO: No. HEARING EXAMINER STRAIN: So Rich is an attorney asking a witness questions, and I just want to make sure the witness has the ability to have someone here if there's questions that are out of line or anything. That would be you or not? Page 23 of 33 May 13, 2019 Special HEX Meeting MR. YOVANOVICH: I promise not to be out of line. HEARING EXAMINER STRAIN: Okay. That's all. MR. YOVANOVICH: Mr. Strain, I'm not going -- HEARING EXAMINER STRAIN: I just wanted to check and see if the County Attorney's Office was here for staff or for just -- MR. YOVANOVICH: I just want to know when I get to ask questions. HEARING EXAMINER STRAIN: You will shortly. I've got to ask mine first, okay. MR. YOVANOVICH: That's what I just wanted to know, the process. HEARING EXAMINER STRAIN: Mike, is the overlay an amendment to the LDC? MR. BOSI: Yes. HEARING EXAMINER STRAIN: Okay. Did you look at the conflict language at the end of the ordinance? MR. BOSI: The end of the ordinance, the adopting ordinance for the overlay? HEARING EXAMINER STRAIN: Yes. MR. BOSI: It's similar to the 1.03. HEARING EXAMINER STRAIN: So that language also led you to your conclusion as to how the conflict was to be handled? MR. BOSI: It supports it. HEARING EXAMINER STRAIN: When there are references of increased intensities or increased, let's say, densities for lack of -- or standards or any other kind of relationship to the GMP, are those automatically given, or are they something that has to be sought through a process? MR. BOSI: When we go through the GMP process, a lot of times we don't have the specificity of how the implementing language is going to be. So it's a requirement that it has to be provided for within the LDC amendments that implement that provision of the GMP. HEARING EXAMINER STRAIN: In this case where it refers to increased intensities, is that something that is left up to the applicant and staff to decide, or is that something that would have been implemented through the LDC? MR. BOSI: The -- HEARING EXAMINER STRAIN: If there was need -- MR. BOSI: The proper construction would be implementation through the LDC specifically to state what those increased intensities are. HEARING EXAMINER STRAIN: Okay. Then if the GMP was providing allowances and the LDC provided a means to attain those allowances, that means there would have been a process, I would expect, or I would have expected a process in the LDC. And if an applicant wanted to change the intensity that, let's say, it fell back to as the LDC, let's say right now -- let's say the intensity of 0.6 were to apply. What methods could the applicant use to change the 0.6 reference in this case? Have you dwelled on that at all or thought about that? MR. BOSI: I mean, you could -- because it's dimensional, you could seek a variance would be one means of adjusting the floor area ratio and what would be applicable. HEARING EXAMINER STRAIN: Okay. On this statement here, the last line, so basically what we're saying is that if your underlining zoning district allows certain uses, you keep those uses, and the density and intensities associated with those underlying districts exist, period. So we're not changing that. We're just supplementing that with the overlays. And up in the preceding paragraph it talks in the -- so if you turn to Page 11 and you look to the Line 8, it kind of describes how these overlays work. And what it states is, all other projects may elect uses, densities, and intensities in accordance with their underlying zoning. Page 24 of 33 May 13, 2019 Special HEX Meeting Then the next sentence: However, all projects must comply with the site development standards as provided in Section 4.02.16, which is the overlays. It seems by those two references they're separating out densities and intensities from development standards. Is that ordinary? Is that how we -- would an FAR be something more than a development standard? MR. BOSI: I view an FAR as a governor towards intensity of a hotel use. HEARING EXAMINER STRAIN: Because right -- in that paragraph by Mr. Vanasse, it seems like he has separated the two. One wasn't necessarily the other. MR. BOSI: My interpretation of that language is he's saying you basically keep your uses, you keep your densities/intensity of your underlying zoning, but we're going to supplement that with the 4.02.16 in the overlay. HEARING EXAMINER STRAIN: Okay. Now, the reason I have to ask so much on this one is I -- this is one of the ones that occurred when I wasn't there. And out of the several meetings, one or two of them I missed, and this was one of them, and that's why -- I wish I had been there. I would have liked to have known this firsthand, but I did find it in the record, so that's why it's here today. Do you have -- oh, the comment that I made about the Pezeshkan project to the east behind it, you signed off on that comprehensive planning analysis for that project, and in the table for that project it did refer to the Bayshore overlay's allowances for zoning on this property, and I believe it said C1 to C3, hotel, theaters, and then it listed the hotels at 0.6 FAR. It's one of the documents I supplied. Did you see that? That was one of the ones I had supplied in the documents. I just was wondering if, in your sign off on that, if that was something you specifically had thought about, or how it came about, because it differs from where the initial analysis of this project was when it came through for the first SDP that was issued. I'll read it to you. It says, permitted by FLUE, (BGTRO) development scenarios table. A mix of residential and commercial uses (limited to C1 through C3), plus hotel/motel use (0.60 FAR), theatrical producers except motion pictures, bands, orchestras, and entertainers with some individual uses limited in square feet or uses allowed by existing C4 zoning. Now, if it was existing C4 zoning, it would have a 0.6 FAR. And what this seems to say is if it goes to the FLUE under the project behind it, which was apparently a mixed-use project, and the one in front we know is, they still would be limited to a 0.6 FAR. And I believe that's what you're saying in your -- in this process we're here for today. MR. BOSI: It aligns, but I have to admit when I signed off on that consistency memo, I didn't connect the individual dots in the same manner with the same level of clarity that I would have today. HEARING EXAMINER STRAIN: Okay. David Weeks signed off, Sue Faulkner, yourself, and Jamie French. Okay. Thank you. Richard, do you have some questions? MR. YOVANOVICH: Mike, do you mind if I use the podium? You go back to where you are. Thank you. MR. BOSI: No problem. HEARING EXAMINER STRAIN: Do you want to move right into your -- we're going to have staff. I've got to see if there's any members of the public that want to speak after you finish questioning Mike, and then we'll go into your rebuttal. MR. YOVANOVICH: I didn't see anybody stand to get sworn. HEARING EXAMINER STRAIN: I know, but I always try to open it up. I don't want anybody thinking they weren't allowed to talk. Page 25 of 33 May 13, 2019 Special HEX Meeting MR. YOVANOVICH: Okay. Do I zoom in or out to get the whole thing? I shouldn't have asked that. I don't know how to do either one. You quoted part of what Mr. Vanasse said, Mr. Bosi, correct? You did not quote the last paragraph that says, however, when it comes to development standards, no matter what your underlying zoning district is, you have to abide by the development standards within the overlay. You didn't quote that, did you? MR. BOSI: No, but the second -- the sentence following that sentence seems to support the position that I've described. MR. YOVANOVICH: So I just want to understand, your understanding of densities and intensities and development standards versus an intensity allowed -- an intensity standard. So I just want to ask you first, is this an accurate representation of the portion of Table 4.02.01, Table 2, pertaining to building dimension standards or principal uses in base zoning districts to your knowledge? I could provide you the whole table if you want or -- MR. BOSI: Yes, it is. MR. YOVANOVICH: Now, you'll see that your intensity standard is -- this is where you're deriving your intensity standard for the 0.6 and 0.8; is that correct? MR. BOSI: Correct. MR. YOVANOVICH: What does the overlay district language say in that very same standard? MR. BOSI: See table of special design requirements applicable to overlay districts. MR. YOVANOVICH: Now, did you see anywhere in 4.02.16 a requirement that hotels and destination resort hotels meet a 0.6 or a 0.8 FAR? MR. BOSI: 4.02.16? 1 saw no special design requirements applicable to hotels in that overlay. MR. YOVANOVICH: And these are the design standards applicable to both overlays and the underlying base zoning district? MR. BOSI: The C4 is your base zoning district. The overlay district is -- MR. YOVANOVICH: 4.02.16. MR. BOSI: -- 4.02.16. MR. YOVANOVICH: Is there anything in 4.02.16 or 2.03.07 that says, in addition to 4.02.16 for your development standards, you must also go see 4.02.01? MR. BOSI: It does not reference. MR. YOVANOVICH: It does not reference that. Likewise, is this a provision that accurately reflects the portion of the table in 4.02, Table 2. 1, addressing minimum yard requirements to the best of your knowledge? MR. BOSI: Yes. MR. YOVANOVICH: And it contains similar language to go to the overlay? MR. BOSI: (Nods head.) MR. YOVANOVICH: Is there anything in 2.03.07 or 4.02.16 that says in addition to 2.03.07 and 4.02.16, go see Table 2.1 within 4.02.01 to see if there are any conflicting or other development standards in the base zoning districts that might apply to this project? MR. BOSI: I don't believe so, no. MR. YOVANOVICH: Now, would you agree with me that there are differences between this Development Standards Table and 4.02.16 with regard to dimensions? MR. BOSI: I would, yes. MR. YOVANOVICH: Would you agree in the previous table there are differences between 4.02.16 and 4.02.01 with regard to dimensional standards? Page 26 of 33 May 13, 2019 Special HEX Meeting MR. BOSI: Yes. MR. YOVANOVICH: Why did you pick only to apply the dimensional standard of 0.6 and 0.8 for hotels to the overlay and not any of the other inconsistent provisions in the base zoning district standards in either of these tables to this project? MR. BOSI: Because the overlay was silent to a hotel, and the C4 base zoning district provides for an intensity limitation. MR. YOVANOVICH: So you imply a conflict when there's silence? MR. BOSI: Yes. MR. YOVANOVICH: What's the conflict when it's direct? If one says do .75 and the other one says do .56, that's a direct conflict, correct? MR. BOSI: Well, maybe I don't understand the statement. MR. YOVANOVICH: Well, I'm saying if a development standard table says your maximum height is 75 feet and another one says that your development standard is .56, which applies? MR. BOSI: I guess the specifics of the development standard would say how it would apply. I know that for -- when you're talking about height restrictions within the overlay, when you do certain provisions, you gain additional height. So it's not always straightforward. Sometimes you have to look into the language of the overlay district. MR. YOVANOVICH: So you would go to Table (sic) 4.02.16 to understand what your dimensional standards are in the overlay? MR. BOSI: I most certainly went to 4.02.16 to see what the intensity was for a hotel within that overlay district, and it did not provide any supplement development standards. MR. YOVANOVICH: What is the label on top of this where it says Table 2? Building dimension standards, correct? MR. BOSI: Yes. MR. YOVANOVICH: It doesn't say intensity standard. It says building dimension standards, correct? MR. BOSI: Yes. MR. YOVANOVICH: So it's not an intensity standard. It's a building dimension standard as it says in this code. MR. BOSI: The floor area ratio is an intensity standard as provided for within this table. MR. YOVANOVICH: This table says it's a building dimension standard. It doesn't say it's an intensity standard in this table, correct? MR. BOSI: Correct. MR. YOVANOVICH: I think -- did you take your documents with you? MR. BOSI: Which one? MR. YOVANOVICH: Your 1.03.01? I think it's probably a little bit of a problem to go back to my PowerPoint. HEARING EXAMINER STRAIN: Mike, if you didn't bring copies of those with you, we need to at least have a copy made for the court reporter. And before the applicant leaves today, make sure you give me your copies. Thank you. MR. YOVANOVICH: Did you not say in your staff report that my interpretation on behalf of my client was consistent with the Growth Management Plan? I could put it back up if you need me to. MR. BOSI: I stated that the increased intensities and densities associated with the overlay district supports your position. MR. YOVANOVICH: And doesn't it say under 4.03.0l.0 --you with me? I don't want Page 27 of 33 May 13, 2019 Special HEX Meeting to rush you. Let me know. You with me? MR. BOSI: Yes. MR. YOVANOVICH: It says, all provisions, terms, phrases, expressions contained in these regulations shall be liberally construed in order that the true intent in meeting the BCC may be fully carried out? It says, "liberally construed." Isn't it true that the lack of a reference to an FAR under this language should be liberally construed to determine that it is consistent with the Growth Management Plan? MR. BOSI: In individual isolation, I could support that position, but when you have a circumstance where you have two conflicting provisions, it creates a conflict, and that conflict is the problem that I can't get over. MR. YOVANOVICH: I just want to understand what, in your mind, the conflict is. MS. ASHTON-CICKO: Rich, you're kind of being a little misleading here because, as you know, the LDC implements the Growth Management Plan, and he's interpreting the LDC. Now you're asking him to interpret what your statement is, whether it's consistent with the GMP. I mean, I think you're a little misleading. MR. YOVANOVICH: No, I deliberately asked that question. I wasn't trying to mislead him. I wanted to know -- he's also the person who's in charge of Comprehensive Planning. MS. ASHTON-CICKO: But the interpretation is of the LDC provision. MR. YOVANOVICH: He testified a few minutes ago when Mr. Strain asked him about a neighboring project where he referenced that the FLUE -- Mr. Strain said the FLUE says there's a 0.6 FAR, and it doesn't. Is there anything in the FLUE that limits the development of a hotel to a 0.6 FAR? MR. BOSI: No. HEARING EXAMINER STRAIN: Again, that was under the column -- if you were to look at that exhibit that I provided to you, you would say it was under a column that was titled "FLUE provisions." I didn't say it was. I was reading what was in the column. MR. YOVANOVICH: I understand that, and what you read was under the FLUE provisions. It had in parentheses, if I'm remembering correctly, FAR of 0.6. And I'm just trying to understand where in the FLUE it says there's a 0.6 FAR. HEARING EXAMINER STRAIN: It did it as a parenthetical. I would suggest that that -- the intent was, that was the intent of what they were doing. MR. YOVANOVICH: Mr. Strain, I get to ask the questions. You don't -- if you want -- (Simultaneous speakers speaking.) HEARING EXAMINER STRAIN: You're debating something I brought up, so I'm trying to correct you in how -- the manner in which I was bringing it up, Richard. It was brought up as a relationship to the document that I had previously sent you. MR. YOVANOVICH: I know. And in it you referenced the 0.6, and I just --'and I just want the record to be clear that there's nothing in the FLUE that says there is a 0.6 FAR requirement. MS. ASHTON-CICKO: That's correct. I mean, we can all concede that. MR. YOVANOVICH: That's all. HEARING EXAMINER STRAIN: That was never the intention. I was reading the document. MR. YOVANOVICH: I couldn't tell from the record, Mr. Strain. I just want the record to be clear -- MS. ASHTON-CICKO: Okay. MR. YOVANOVICH: -- that the FLUE does not have an FAR of 0.6 or 0.8, correct? Page 28 of 33 May 13, 2019 Special HEX Meeting MR. BOSI: Correct. MR. YOVANOVICH: So it's your opinion that silence on an FAR is a conflict with another provision in the code that talks about an FAR for a hotel use? MS. ASHTON-CICKO: I still think your question is confusing, because I think the issue you raised is whether the Growth Management Plan has an FAR, and it doesn't. MR. YOVANOVICH: I'll move on. MS. ASHTON-CICKO: So it's the LDC -- MR. YOVANOVICH: I understand. MS. ASHTON-CICKO: -- that interprets -- okay. MR. YOVANOVICH: In the LDC -- MS. ASHTON-CICKO: Thank you. MR. YOVANOVICH: -- is it your opinion that if there's a silent -- if it's silent on FAR under the development standards in one portion of the code, that's a conflict with another provision that's dealing solely with an underlying base zoning district? MR. BOSI: I don't believe that they're two separate sections. I believe those are two zoning designations for the same parcel of land. It's zoned C4 and it's zoned Gateway Triangle Mixed Use District. That's the overlay. So you have a base zoning district that provides for a development standard that 0.6 would apply. You have an overlay that's silent and, therefore, that creates the conflict. MR. YOVANOVICH: Can I develop in the overlay based upon the base zoning district development standards? MR. BOSI: Per the language of the LDC, you are to develop under 4.02.16. MR. YOVANOVICH: And that's a very specific Development Standards Table together with a whole lot of other development -related issues like parking and open space and architectural standards, correct? MR. BOSI: Correct. MR. YOVANOVICH: So it's -- that's all I have for you. HEARING EXAMINER STRAIN: Rich, before you go on, one of the questions that came up as a result of one of these slides you showed -- could you put that slide that talked about the dimensional requirements in the 4 -- in the 2.03, the one that showed you C4 with the FAR. Notice -- and I know you don't want to go here, but I'm going to go there because it kind of lends itself to the credibility of what these boxes say. That one says 700 square feet on the ground floor in C4. Now, the previous Table 7 that you pulled out of 4.02.16 shows on a mixed use 700 square feet per unit. Now, if someone were to assume that that was intentional, the definition of -- what you had previously said is that was intended for the use. I would agree with you under this particular -- this table; it would lend itself more to a use application. But when it says 700 per unit, someone intentionally changed that to make it 700 per unit. Now, I don't think it's practical to suggest that the hotel is limited to 700 minimum square feet per unit. I'm not trying to suggest that. I'm trying to show an ambiguity in the way this could be interpreted, which is similar to saying a blank space means unlimited density. That's, I think, part of the concern that we've had all along looking for how that density was established in the new overlay. And so far that's the piece that hasn't been fully recognized in any of the documents that we've had other than -- other than references to 4.02.16. MR. YOVANOVICH: What I would say, Mr. Strain, is, one, I can only fight the fight that's in front of me, and that fight is an FAR fight. I have not studied the history of the 700 -square -foot unit. It's not relevant to anything we're talking about today. It's not. Page 29 of 33 May 13, 2019 Special HEX Meeting HEARING EXAMINER STRAIN: The relevance is -- MR. YOVANOVICH: Let me finish. HEARING EXAMINER STRAIN: -- the way in which you're reading this table; that's the piece I'm trying to point out. MR. YOVANOVICH: And what I'm going to say is it couldn't be more clear. In the actual words you find in the LDC where it says you get your uses either under the table of permitted uses and conditional uses and accessory uses for the overlay or you get them under the base zoning district, there is no ambiguity as to what the development standards are, and it always sends you to 4.02.16. It never sends you to 4.02.01. It always sends you to 4.02.16. 1 can't prove a negative. If they wanted you to have an FAR, they would have put it either in 4.02.16 or 2.03.07, and evidence to that is they did it for gas stations. Why did they do that? If Mr. Bosi's interpretation is correct, you would have gone to the gas station provisions, you would have said silence is an ambiguity; we're going to go ahead and apply those standards even though it's silent. So what I say is that was deliberate and intentional. They knew how to apply it. They chose not to. And I think there's ample evidence in the record based upon the correct reading of the words that were adopted that there is no FAR standard. And to say it's unlimited development of hotels on that property is not correct. There are development standards that apply: Height, setbacks, parking, open space. All of those regulate intensity on a piece of property. We do it all daylong for other retail and office uses. It was deliberate and intentional to not have an FAR, and I think that the evidence we've presented proves that point. Unless you have more questions of me, I'll wait for the public. HEARING EXAMINER STRAIN: Ido. I have one other question, and you just led to that question. So if you were to assume everything was in this table, you could build 112 feet by the dimensions, by the setbacks, but it would have to be mixed use. MR. YOVANOVICH: Correct. HEARING EXAMINER STRAIN: So how many units do you have in mixed use in a building like that then? What would be the required number of units? MR. YOVANOVICH: Well, that's going to be an interesting question. I think I win the argument; it's one. HEARING EXAMINER STRAIN: Okay. So you have one penthouse unit. MR. YOVANOVICH: That's all I need. It's mixed use. HEARING EXAMINER STRAIN: Right. So the rest of it is unlimited then. MR. YOVANOVICH: No, it's not. HEARING EXAMINER STRAIN: So that means the 0.6 FAR, which would have limited the hotel size to encourage the mixed-use development under which the hotel was added as a use in that district wouldn't necessarily -- if it was eliminated, then you'd have one unit with all hotel. I'm just wondering how you've gained the mixed use that seemed to be the intent of the Board in initiating that particular section of the GMP. MR. YOVANOVICH: How do you know it wasn't the Board's intent to just have one residential unit to establish a mixed use? Because you would have -- you would have had a provision in there, Mr. Strain, that said X percent of the square feet has to be for residential use, X number of units has to be in there for residential use. I'm sure Mr. Bosi will acknowledge -- and maybe I should ask him that question. True or false, Mr. Bosi, if I have a hotel unit -- Page 30 of 33 May 13, 2019 Special HEX Meeting HEARING EXAMINER STRAIN: This is -- you already -- you said you were finished with Mike. MR. YOVANOVICH: Okay. Then I'll -- HEARING EXAMINER STRAIN: So let's just stick to you and I. Because what you're leading up to is that without an FAR, you can put one unit in there; it would be a mixed use. MR. YOVANOVICH: Correct. HEARING EXAMINER STRAIN: So is -- the intent was that it was supposed to be a true mixed use with multiple units, and the hotel being limited to a 0.6 FAR would mean it couldn't have used up all the rest of the space necessarily for hotel -- for just one unit of residential. MR. YOVANOVICH: Mr. Strain, I can only read the black and white, and the black and white doesn't have an FAR. HEARING EXAMINER STRAIN: I'm just trying to understand your reasoning. MR. YOVANOVICH: I know you want to go to what the permutations are, but the reality is, the words say what the words say. Silence is not a conflict. HEARING EXAMINER STRAIN: You were earlier arguing the Board's intent, and in your slides you talked about the Board's intent. I was -- MR. YOVANOVICH: They only -- HEARING EXAMINER STRAIN: You're going to have an opportunity to understand their intent when this goes to them, because at that point I'm sure they can weigh in whether or not the intent was one unit or more in the mixed-use category. MR. YOVANOVICH: Mr. Strain, I only went to intent. If you read my case, and you'll read the case, and it will say, if there's an ambiguity, then you can go take a look at the legislative history. I said, for argument's sake, I'm going to assume there's an ambiguity. I don't think there's an ambiguity. I don't think you could be more crystal clear. But when you go look at the intent language in the Growth Management Plan -- I'm sorry -- in the LDC provisions, as we went through this process, it said you go to 4.02.16 for your Development Standards Table throughout the history and that this was intended to implement the Growth Management Plan, and it says it's to be liberally construed to implement the intent, and your own staff said I'm right on the intent. My interpretation is consistent with the intent of the Growth Management Plan, and you're supposed to liberally construe it to get there, not construe it in a manner that restricts the development and the intent. HEARING EXAMINER STRAIN: Did you have anything else in rebuttal? MR. YOVANOVICH: No. I'll just wait for -- HEARING EXAMINER STRAIN: If there's any public speakers -- MR. YOVANOVICH: I understand. HEARING EXAMINER STRAIN: -- then you can have another opportunity. MR. YOVANOVICH: I understand. HEARING EXAMINER STRAIN: That brings us to public speakers part. Does anybody in the audience wish to speak on this issue today? (No response.) HEARING EXAMINER STRAIN: Nobody is responding, so -- MR. YOVANOVICH: If I may. HEARING EXAMINER STRAIN: -- does that wrap it up for you? MR. YOVANOVICH: Yeah. I just want to make sure that as part of the record is our PowerPoint presentation. HEARING EXAMINER STRAIN: Yes. MR. YOVANOVICH: I'm going to leave it with you. Page 31 of 33 May 13, 2019 Special HEX Meeting HEARING EXAMINER STRAIN: Do you have a copy for the court reporter? MR. YOVANOVICH: If I don't -- I'll give her my copy and email the three of, if it's okay. HEARING EXAMINER STRAIN: That's fine. And Mike's paperwork will have to be done the same way. If he's got a copy for her, he'll email us what he doesn't have enough copies of. MR. YOVANOVICH: That's fine. I just wanted to make sure that's in the record. I only gave you the excerpt of the case. Obviously, if you want me to -- I'll send you an entire copy of the case. HEARING EXAMINER STRAIN: Please do. I'd like to see the whole thing. MR. YOVANOVICH: I'll make sure that's part of the record. And I do appreciate your time and Mike's professionalism. Thank you. HEARING EXAMINER STRAIN: I appreciate yours and everybody talking about the time we spent today. MR. YOVANOVICH: Your professionalism as well, Mr. Strain. I was -- HEARING EXAMINER STRAIN: You're reluctant, but I understand. MR. YOVANOVICH: No. Mike's in a hard place, and I appreciate that. HEARING EXAMINER STRAIN: Okay. With that, we'll close this particular hearing, and I'll have a recommendation to the Board of County Commissioners within 30 days. MR. YOVANOVICH: I think we're scheduled to go to the Board on June 5th. MR. BOSI: I believe what Jeff agreed to. MR. YOVANOVICH: I think that's consistent with what we talked about in the original schedule, Mr. Strain. I just want to make sure you were aware of that. HEARING EXAMINER STRAIN: No, l'm not. I thought we had all agreed to -- I could have -- I always have 30 days, because this is going to take quite a bit of writeup, and I don't -- okay. I'll have to double-check my files and see if that's what we had agreed to. MS. ASHTON-CICKO: Yeah. I mean -- MR. YOVANOVICH: Hold on a second. I think, Mr. Strain -- HEARING EXAMINER STRAIN: Yeah. MR. YOVANOVICH: -- it's actually -- June 25th is what we agreed to. HEARING EXAMINER STRAIN: Oh, I thought it was better than that. MR. YOVANOVICH: Yeah, it wasn't the 5th, because the 5th's not even a Tuesday. HEARING EXAMINER STRAIN: Okay, good. MR. YOVANOVICH: I knew it was before the Board left for break. HEARING EXAMINER STRAIN: Yes, I knew it was, too, but I thought it was 30 -- over 30 -- at least 30 days. MR. YOVANOVICH: I think it worked with your 30 days. HEARING EXAMINER STRAIN: Okay, good. Thank you very much. And we'll close the hearing on this matter and, like I said, within 30 days we'll have a recommendation to the Board. And there is no other business on the agenda. Is there any public comments? (No response.) HEARING EXAMINER STRAIN: Hearing none, this meeting's adjourned. Thank you. Page 32 of 33 May 13, 2019 Special HEX Meeting There being no further business for the good of the County, the meeting was adjourned by order of the Hearing Examiner at 11:25 a.m. COLLIER COUNTY HEARING EXAMINER G-- < v` P�'lk c-,---, MAAK STRAIN, HEARING EXAMINER ATTEST CRYSTAL K. KINZEL, CLERK These minutes approved by the Hearing Examiner on `-� ' ZK' %� , as presented +� or as corrected TRANSCRIPT PREPARED ON BEHALF OF U.S. LEGAL SUPPORT, INC., BY TERRI LEWIS, COURT REPORTER AND NOTARY PUBLIC. Page 33 of 33