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Agenda 06/10/2008 Item #12A Agenda Item No. 12A June 10, 2008 Page 1 of 45 EXECUTIVE SUMMARY That the Board of County Commissioners considers a proposal from the Developer of Pebblebrooke, to be memorialized in a Developer Agreement, to buffer and otherwise mitigate the impact of the two-story building on the adjoining residential neighborhood, in exchange for resolving any dispute the County may presently have with respect to both this building and the Stevie Tomato lawsuit. OBJECTIVE: 'That the Board of County Commissioners considers a proposal from the Developer of Pebblebrooke, to be memorialized in a Developer Agreement, to buffer and otherwise mitigate the impact of the two-story building on the adjoining residential neighborhood, in exchange for resolving any dispute the County may presently have with respect to this building. CONSIDERATIONS: The Richland PUD (pebblebrooke) issues have appeared before this Board several times. As background, I have attached a December 7, 2007 report from Mr. Farese which sets forth the material facts (although his conclusions I do not necessarily agree with). As set forth in Mr. Farese's report, there are two primary issues arising from this PUD. The first involves a two-story commercial building which adjoins the Pebblebrooke residential neighborhood. The second involves the Stevie Tomato's Restaurant and Sports Bar. ~ These issues last came before this Board February 26, 2008. A copy of the transcript is attached. With respect to the two story building, the Developer engaged a landscape architect, and in keeping with the February 26 discussion with the Board, met with the Pebblebrooke residents on at a Town Hall Meeting on March 24, 2008, to discuss ways of mitigating the two story building's impact on the residential community. The result of that meeting is a proposed agreement, which if acceptable to the Board would be memorialized by a Developer's Agreement. A copy of the proposed draft Developer's Agreement is attached to this Executive Summary. Briefly stated, the highlights of the proposed Agreement are as follows: Landscape Buffer: The Developer would install, at Developer's expense, a landscape buffer. The Landscape Buffer will provide at least 90% opacity to screen the Building. This buffer shall occur above the existing 8 foot concrete fence and extend vertically to a height of over 26 feet. Unless adverse growing conditions beyond the control of Developer occur, this will mean that at least 90% of the building will be covered after two years. Preserve Buffer: The Developer would install a landscape buffer within the area designated in the PUD as "Preserve." - Agenda Item No. 12A June 10, 2008 Page 2 of 45 Developer would install an opacity film on Building's south-side second floor windows: The Opaque Film would be installed at the time any spaces are leased on the south side second floor and would remain in place until the Landscape Buffer has achieved the height and opacity standards set forth, at which time the Opaque Film may be removed. Developer would extend the existing 8 foot concrete wall along the west side of the Building 175 feet north on the property line to the north side of the existing dumpster enclosure. In exchange, the Developer is asking that the County finds that the Developer had a vested right to construct the Building with two stories and at the height so constructed, that the County is estopped from asserting the contrary in any proceeding, and that the County will take no legislative or administrative action, such as a rezoning or amendment of the PUD, that would make the Building a nonconforming use or in any other way prevent its reconstruction and/or repair in the event it is damaged or destroyed. The Developer is also asking that the County dismiss Developer as a party to that case pending in the Circuit Court for Collier County entitled Collier County v. Pebble Page, Inc. d/b/a Stevie Tomato's Snorts PlIIZe Bar & GrilL and DAD Development Corporation, Case No. 08-1872-CA (the "Lawsuit"), and will not refile any action against Developer based on the same cause of action as alleged in the Lawsuit. The County Attorney Office has difficulties with this last request, as we believe that the Developer may be an indispensible party to the Stevie Tomato's lawsuit, and if deemed indispensible by the Court, the suit would be subject to dismissaL With respect to the Stevie Tomato issue, I am advised that Stevie Tomato's has installed a sound barrier around the outside seating area, which they claim has greatly reduced the noise to the community. Should the Developer's proposal be accepted, the extension of the sound wall and increased buffering in the Preserve area should also result in some reduction in noise to the community. Counsel for Stevie Tomato's has indicated to the undersigned that they would like to address the Board following the Developer's presentation. FISCAL IMPACT: There is no fiscal impact associated with this Executive Summary. 'I ,I Ii , GROWTH MANAGEMENT IMP ACT: There is no Growth Management Impact associated with this Executive Summary. RECOMMENDATION: That the Board of County Commissioners considers a proposal from the Developer of Pebblebrooke, to be memorialized in a Developer Agreement, to buffer and otherwise mitigate the impact of the two-story building on the adjoining residential neighborhood, in exchange for resolving any dispute the County may presently have with respect to this both this building and the Stevie Tomato's lawsuit.. Submitted by: Jeffrey A. Klatzkow, County Attorney Page 1 of 1 Agenda Item No. 12A June 10, 2008 Page 3 of 45 COLLIER COUNTY BOARD OF COUNTY COMMISSIONERS Item Number: Item Summary: 12A This item to be heard at 2:00 p.m. That the Board of County Commissioners considers a proposal from the Developer of Pebblebrooke, to be memorialized in a Developer Agreement to buffer and otherwise mitigate the impact of the two-story building on the adjOIning residential neighborhood, in exchange for resolving any dispute the County may presently have with respect to both this building and the Stevie Tomato lawsuit. Meeting Date: 6/10/200890000 AM Prepared By Jeff Klatzkow Assistant County Attorney Date County Attorney County Attorney Office 5/29/20088:11 :24 AM Approved By Jeff Klatzkow Assistant County Attorney Date County Attorney County Attorney Office 5/29/20089:31 AM Approved By OMS Coordinator OMS Coordinator Date (' , County Manager's Office Office of Management & Budget 5/30/2008 9:46 AM Approved By Mark Isackson Budget Analyst Date County Manager's Office Office of Management & Budget 6/1/20081:16 PM Approved By James V. Mudd County Manager Date Board of County Commissioners County Manager's Office 612/200812:45 PM ,~ file://C:\AgendaTest\Export\ 1 09-June%20 1 0,%202008\ 12.%20COUNTY%20A TTORNEY%... 6/4/2008 ROBINS. KAPLAN. MILLElZ & CIRESI. ..1 Agenda Item No. 12A June 10, 2008 Agenda Item iblfu42JAof 45 January 15:'2008 SUITE 20 age 0 '11 FI PTH ^ VENUE SOUTH NAPLES. FL 3tl02-66!8 TEL: 23\1-00-7010 fAX:239.2I3.1970 www.rkmc.(:om r I I I I I I I I I I I I I I I I ATTOR.NEYS AT LAW LAWRENCE A. FARESE Board Certified CIvil Trial I....,,-er Board Ctrtiraed BUllaw Utizatiou uwyer Certined ClrnU Co.rt Mcdialor 239-213-19'13 LAFartst@rkmc.com December 7, 2007 RECEIVEO OFFICE OF THE COUNTY MANAGER HAND DELIVERY DEe G 7 2D07 ACTION Commissioner Frank Halas Commissioner Jim Coletta Commissioner Fred W, Coyle Commissioner Donna Fiala Commissioner Tom Henning Board of County Commissioners 3301 East Tamiami Trail Naples, Florida 34112 Re: Richland PUD cPebblebrooke) I aide Cypress PUD Investigation \. Dear Commissioners: We have been asked by David Weigel, County Attorney, to undertake the investigation requested by the Board of County Commissioners ("BCC") into the following matters: (i) the approval process for the Richland PUD (pebblebrooke), including the approval of the site development plan for the Pebblebrooke Plaza in Pebblebrooke Commercial Phase IV and the pennitting of Stevie Tomato's restaurant; and (ii) the permitting of 17 residences that appear to encroach upon a 25-foot setback from a nature preserve within the aide Cypress PUD, particularly the Grider residence. Our investigation has included a review of the public records and files maintained by the County, particularly those of its Community Development and Environmental Services Division ("CDES"), meeting minutes and video tapes, and personal interviews with David Weigel, Jeff Klatzkow, and Mwjorie Student of the Collier County Attorney's Office; Patrick White, fonnerly of the Collier County Attorney's Office; Jim Mudd, Collier County Manager; Joe Schmitt, CDES Director; Susan Murray Istenes, Director of Zoning; Ross Gochenaur, Plarming Manager; Ray Bellows, Zoning Manager; John Houldsworth, Senior Engineer; Michael Sawyer, Senior Plarmer; Angel Tarpley, Planning Technician; Karen Bishop ofPMS, Inc.; Craig Grider, Esq. and Richard Yovanovich, Esq. ofGoodlette, Coleman & Johnson; Clay Brooker, Esq.; Bob Delaney of Stock Development; Diane Ebert of aide Cypress Homeowners Association; Carole Kolflat, and others. The following will summarize our findings and conclusions based on our investigation. ( IT LAN T A' B 0 S TON LOS A N G f L E 5, M I Ii N SA" 0 II S IN A P L E 51 S A I NT PAUL.WASHlliGTOJ.l,O C Agenda Item No. 12A Agenda lteM'!lJ3 1,lk2008 January ,~gj(j&<pf 45 Page 2 of 34 -. I I I I I I I I ("- ~ I I I I I I I /~ I Board of County Commissioners December 7, 2007 Page 2 I. Ricbland (pebblebrooke) POO The Richland POO consists of approximately 150 acres located on the southwest corner of Immokalee Road and Collier Boulevard (951). The Richland POO was originally approved on February 13, 1996 (Ordinance No. 96.03), The POO Ordinance was repealed on June 10, 1997, and replaced by Ordinance No. 97-27. The POO consisted of commercial, residential, and preserve tracts. On September 24, 2001, the then current owner of the commercial property, Kenco Development, Inc., through its agent, Karen Bishop of PMS, Inc., filed an application seeking to repeal the then current Richland POO and adopt a new POO for the purpose of reducing the residential area by approximately 3.2 acres and increasing the commercial area by approximately 3.2 acres by extending Ihe commercial tract southward along Collier Boulevard (See Exhibit A). Chahram Badamtchian of CDES was assigned as the Principal Planner for the POO Amendment (pOOA-200I-AR-1494). Chahram Badamtchian was terminated from his employment on or about December 14, 2001. At that time, the approximately 35 projects over which Mr. Badamtchian had primary responsibility as the County Planner were reassigned to the existing members of staff, who already had full work loads. The Richland POO amendment application was assigned to Ray Bellows of CDES. Mr. Bellows was very busy with other projects at that time, and was also going through a divorce. Prior to his termination, Mr. Badamtchian prepared a Staff Summary Report to the Collier County Planning Commission ("CCPe'') in preparation for its meeting of January 17, 2002. Mr. Bellows ultimately signed the report for Mr. Badamtchian but had little time to review the report or PUD before its submission to the CCPC. Mr. Bellows does not recall making any changes to Mr. Badamtchian's Staff Report or the amended POO document prior to its submission to the CCPC on or about January 9, 2002. The Staff Report dated January 3, 2002 states that the "POO contains all of the recommendations of reviewing staff" and concludes with the recommendation that the CCPC forward a petition (0 the BCC with a recommendation for approval. The proposed Amended POO reduced the residential acreage from 128+/- to 125+/-, and increased the commercial acreage from 21.2 acres (0 25 acres; reduced the total number of residential units from 650 to 400 units; provided for landscaping in Section 2.19 of the POO to be in accordance with the Collier County Land Development Code ("LDC"), with no special provisions for a buffer between the commercial and residential tracts; provided in Section 4.2 for a maximum of 25+/- acres of Community Commercial Uses without any limitation on square footage of commercial space; provided in Section 4-5G a maximum building height of 50 feet (50') (consistent with the height limitation in the then current POO document for the remaining commercial space); and Agenda Item No. 12A J~~2008 Agenda Item f 45 January . 8 Page 3 of 34 I I I I I I I I I I I I I I I I I I I ,- Board of County Commissioners December 7,2007 Page 3 provided in Section 4-4 for a variety of permitted commercial uses and structures (consistent with the uses and structures permitted by the previous PUD). Of significance is that the proposed Pun Amendment included within the list of permitted uses "Eating and Drinking Places," as defined in Standard Industry Classification ("SIC") Codes 5812 and 5813 published by the United States Department of Labor. SIC Code 5812 applies to "Eating Places" and is defmed as: "Establishments primarily engaged in the retail sale of prepared food and drinks for on-premise or immediate consumption." SIC Code 5812 provides a list of examples of "Eating Places," which includes "restaurants." SIC Code 5813 defines "Drinking Places" as: "Establishments primarily engaged in the retail sale of alcoholic drinks, such as beer, ale, wine, and liquor, for consumption on premises. The sale of food frequently accounts for a substantial portion of the receipts of these establishments," SIC Code 5813 includes a list of examples of drinking places such as bars, beer gardens, beer taverns, cocktail lounges, nightclubs, saloons, and wine bars. CCPC Aooroval The RicWand PUD Amendment went before the CCPC at its meeting of January 17, 2002. Matjorie Student, the Assistant County Attorney who had been assigned to review the Richland Pun Amendment, was not in attendance at this meeting due to a previous commiIment to attend a land use seminar in the Orlando area. Assistant County Attorney Patrick White attended the CCPC meeting in her place. Also present at the meeting was Susan Murray Istenes, as well as other members of CDES, including Ray Bellows who made the staff presentation to the CCPC. Karen Bishop ofPMS, Inc. made the presentation on behalf of the applicant At the January 17, 2002 CCPC meeting, Ms. Bishop submitted to the CCPC conceptual plans for a 3D-foot buffer between the proposed additional commercial acreage and the residential boundary line to the Pebblebrooke Subdivision to the south. lbis conceptual plan. which later became Exhibit B to the approved and recorded Richland Pun Amendment, is attached hereto as Exhibit B. The self-entitled "Pebblebrooke Lakes Conceptual 30' Buffer Plan" was prepared on January 16, 2002 (according to the face of the document), which was the day before the CCPC meeting. It is doubtful that staff had much time, if any, to review the conceptual plan before its presentation to the CCPC on January 17. The CCPC saw the conceptual plan for the first time during the applicant's presentation at the meeting. The Conceptual Plan showed a 3D-foot Type "B" Buffer with vegetation and a six-foot wall on top of a landscaped berm along the southern boundary of the commercial acreage. It also showed a two-story commercial building of only 18 feet in height set back an additional number of feet from the 3D-foot buffer. However, this additional setback (if it was intended) is not called out in measurements on the conceptual plan nor in the text of the pun. Nor is the height of the berm specified on the conceptual plan or the PUD. Karen Bishop orally described the berm to the cepe as having a "3 to I slope," such that the berm would be three to four feet high at its \.. ( Agenda Item No. 12A J~e~~2008 Agenda Item of 45 January . 8 Page 4 of 34 -- I I I I I I I I :-. , ~ I I I I I I I .-, I Board of County Commissioners December 7, 2007 Page 4 peak. A 6-foot wall on top of Ihe berm would result in a height above grade of eight to ten feet. However, Ihese specifications were not described in writing in Ihe proposed PUD document, and were not specified on Ihe conceptual plan. Several public speakers from Ihe neighboring Pebblebrooke Subdivision expressed concern to Ihe CCPC concerning building heights and anticipated uses, The minutes reflect that several members of Ihe CCPC expressed similar concerns regarding building heights, maximum square footage of commercial space, and permitted uses. Of particular concern 10 several Commissioners was Ihe desire to eliminate "Drinking Places" (SIC Code 5813) as a permitted use due to noise concerns of Ihe neighboring residents. As a result, several agreements were made on Ihe record by Ihe owner's representative. One specific agreement was Ihe reduction of permissible commercial structures from two stories to one story wiIhin Ihe 3.2 acres abutting Ihe Pebblebrooke Subdivision. The owner's representative was asked: COMMISSIONER BUDD: How about Ihe request that buildings located within the area of the 3.2 acres be limited to single story, Ihe commercial buildings? MS. BISHOP: That's fine. Another agreement was that trash dumpsters would be located outside the 3.2 acres: COMMISSIONER BUDD: There is a request that Ihe dumpsters be located outside the 3.2 acres that is going to become commercial. Is Ihat acceptable? MS. BISHOP: I believe Ihat's acceptable.... Another agreement was the elimination of several more intense commercial uses from Ihe list of permitted uses. However, the owner's agent did not agree to eliminate "Drinking Places," suggesting instead Ihat noise could be regulated by existing noise ordinances. After the close of the public hearing, Commissioner Budd made a motion (amended to incorporate suggestions by oIher Commissioners) Ihat Petition PUD-2001-AR-14694 be approved and forwarded to the BCC wiIh a recommendation for approval with specific modifications and recommendations, including: (i) buffers 10 be located outside Ihe 3.2 acre commercial rezone; (ii) buildings within the 3.2 acre commercial rezone to be limited to a single stOry; (iii) a revised list of permitted uses as agreed 10 by the owner's agent, (iv) commercial space to be capped at 231,000 square feet; and (v) SIC Code 5813 "Drinking Places" to be struck as an acceptable use. After a second to the motion, Ihe following discussion occurred on the question of drinking establishments: i Agenda Item No. 12A J~e i~2008 Agenda Item a of 45 January . L Page 5 of 34 I I I I I I I I I I I I I I I I I I I ,- Board of County Commissioners December 7, 2007 Page 5 CHAIRMAN ABERNATHY: ...well, I will discuss. I think that eliminating the drinking establishments is being unduly fussy. I think they should be allowed and dealt with as it exists. There is hardly a place in one of these activity centers that does not have someplace where somebody can watch a football game and have a couple of beers. I don't drink myself, but I think other people should not be presumed to create a nuisance just because they have a drink. So I object on that basis. COMMISSIONER ADELSTEIN: Mr. Chairman, so do I. I don't think it's our position to put something like that in. And I personally would like to see it removed. COMMISSIONER YOUNG: I would too. I think if you are having dinner you might like a glass of wine, COMMISSIONER STRAIN: That doesn't apply. The restaurants already have that. These are strictly taverns and saloons and things like thai. My concern is not that people drink; thai is a disruptive element to a neighborhood. I am sure these people don't want to have to go through having monitors put out there at certain times of the day or night to see if they have decibel levels and then challenge it through county staff. That's why I am suggesting this, And that's my reason, It has nothing to do with people's morals, They can do what they wani. " COMMISSIONER MIDNEY: I will agree. Restaurants would be permitted and people can drink at the restaurants, COMMISSIONER RICHARDSON: Mr. Chair, maybe you can just take a consensus question on just that one issue. CHAIRMAN ABERNATHY: How many people are going to oppose this motion as long as the drinking establishments prohibition is in it? COMMISSIONER ADELSTEIN: As long as restaurants are approved, that's fine with me. CHAIRMAN ABERNATHY: I may be the Lone Ranger then. I don't know. Do you want non-restaurant type of alcohol serving establishments? ( Agenda Item No. 12A J~e ~~2008 Agenda Item f 45 January , 8 Page 6 of 34 .. I I I I I I I I r". I ~ I I I I I I I /1 I Board of County Commissioners December 7,2007 Page 6 COMMISSIONER YOUNG: I think as long as restaurants - CHAIRMAN ABERNA1HY: So we have two. I think the motion can carry. I call the question. All in favor. (Unanimous response.) CHAIRMAN ABERNA1HY: Opposed? Mr. Wolfley had a conflict, so he abstained. MR. BUDD: The motion carries? CHAIRMAN ABERNA 1HY: The motion carries.... It was the practice of the CDES at this point in time to have staff revise an applicant's PUD document to reflect the staff's recommendations and/or agreements reached with the applicant regarding language modifications. In addition, if there were recommendations by the CCPC which conflicted with staff recommendations, the differences were to be specifically pointed out to the BCC in executive summaries and hearing presentations. Some of the changes agreed to by the applicant at the CCPC meeting were incorporated by staff into the draft PUD document. For example, a 30-foot Type "B" Buffer was added to Section 2-19 Landscaping; a maximum of 231,000 square feet (gross floor area) of community commercial was added to Section 4.4-2; and SIC Code 5813 was removed as a permitted use in Section 4-4. However, some agreements made at the cepc meeting did not find their way into a revised PUD document. The most significant omission was the concept of reducing the maximum height of commercial buildings from two stories to one story. Ray Bellows admits that he missed this point while taking notes at the cepe meeting. He did not have the benefit of reviewing CCPC minutes before making the changes to the PUD document and presenting it to the Bee. Bee Aooroval The Richland PUD Amendment was set as Agenda Item 8D for the February 12, 2002 meeting of the Bee, On or about February 4, 2002, an Executive Summary prepared by Ray Bellows was submitted 10 the BCC along with the revised draft of the proposed PUD document. With regard to building heights, the Executive Summary provides: Lastly, since the maximum building height is currently 50 feet within the Commercial tract, staff has recommended that the maximum building height be limited to two stories for a maximum building height of 35 feet for any structure within 60 feet of a residential tract. 4 Agenda Item No. 12A J~e l2008 Agenda Ite']!> a of 45 January' , 2 Page 7 of 34 I I I I I I I I I I I I I I I I I I I ,r Board of County Commissioners December 7, 2007 Page 7 The Executive Summary advised the BCC that the CCPC had approved the Petition by a vote of 7 to 0 with a recommendation of approv;a1 subject to revising the list of permitted uses to eliminate some of the more intense uses, a mBljimum square footage of 231,000 square feet for the commercial area, and other conditions not pertinent to this investigation. However, the summary made no mention of the CCPC's stipulation reducing the building height from two stories to one story due to the staff oversight mentioned above. The Executive Summary concludes with a recommendation for approval of the PUD document that "has been amended to reflect the. ..recommendations by the Planning Commission as supported by staff," The specific revisions to the draft PUD document made by staff following the CCPC meeting for presentation to the BCC included the fol1owing: 2-19 LANDSCAPING Landscaping shal1 be in accordance with Article 2, Divisions 2.4 and 2.8 of the Collier County Land Development Code, as amended. In addition. a 30-foot Tyoe "B" Buffer shall be orovided alon2 the tract boundarY line seoaratin2 the commercial and residential land use tracts. (See Exhibit "B,,) This buffer shall contain a 6-foot tall ore-cast concrete wall alon2 the entire buffer. \. 4-4 PERMITTED USES AND STRUCTURES No building or structure or part thereof, shall be erected, altered or used, or land used, in whole or in part, for other than the following: A. Permitted Principal Uses and Structures,.. 10) Eating and Drinking Places (Groups 5812~) 4-6 Development Standards G. Maximum height: fifty feet (50') and not 10 exceed two stories for commercial structures within 60 feet of the residential tract boundary line. Note that the maximum height provision is inConsistent with the CCPe's motion to limit building heights from two stories to one story. It also is inconsistent with the Executive Summary indicating that staff had recommended a maximwn building height of 35 feet not to ( Agenda Item No. 12A J121~2008 Agenda Iterp> 1, f 45 January . d 8 Page 8 of 34 -- I I I I I I I I ('-. , ~ I I I I I I I /-1 I Board of County Commissioners December 7, 2007 Page 8 exceed two stories for any structure within 60 feet of a Residential Tract, whereas the proposed POO document refers to a maximum height of 50 feet. Finally, a provision was added to Section 4-6 dealing with commercial trash dumpsters as follows: J, Commercial trash dumpsters shall be located or placed within 100 feet of anY residential tract boundarv line. We assume this was a scrivener's error and that the provision was intended to prohibit dumpsters within 100 feet of any residential tract boundary. The language is also inconsistent with the agreement reached with the applicant at the CCPC meeting not to have any commercial trash dumpsters within the added 3.2 acres of commercial property. The Richland POO rezone petition was heard at the February 12, 2002 BCC meeting. Ray Bellows made the staff presentation. Karen Bishop presented on behalf of the applicant. Attorney Richard Y ovanovich attended as the attorney for the applicant, but only on a transportation concurrency issue which became moot at the meeting. Mr. Y ovanovich was not present at the previous CCPC meeting and had no involvement in the preparation of the POO document. MaJjorie Student and David Weigel were present from the County Attorney's Office. There were no public speakers. Mr, Bellows advised the BCC of the results of the CCPC meeting, and pointed out that changes were made to the document to eliminate some commercial uses and to provide for a landscape buffer including a 6- foot wall with a vegetative berm as shown on Exhibit B to the POO document. Mr. Bellows misstated the result of the building height discussion at the CCPC level as follows: Staff was also recommending that the building heights be restricted. And that came up in the Planning Commission, that we limit the building heights to 35 feet for any structure within 60 feet of the residential-tract boundary line. That is -- it came up during the planning commission meeting. Staffis recommending approval. A number of County staff who were involved with this petition for a variety of reasons attended both the CCPC and BCC meetings. No one corrected Mr. Bellows' misstatement at the hearing or pointed out to the BCC that in fact the CCPC had recommended a reduction in building height from two stories to one story. The owner's agent, Karen Bishop, did not correct the misstatement either. She has advised us that she did not review the staff report or the revised PUD document carefully prior to the BCC hearing, believing that everything had been changed as agreed. She also did not realize the inconsistency between staffs recommendation and the I I I I I I I I I I I I I I I I I I I Agenda Item No. 12A J~1~2008 Agenda Ite'll> ~. f 45 January . 0 8 Page 9 of 34 ,..- Board of County Commissioners December 7, 2007 Page 9 agreement reached with the CCPC. To add to the confusion, the conceptual plan which became Exhibit B to the PUD was not revised by the applicant to show a one story building instead of a two story building. Staff had no ability to revise this conceptual drawing; this was the owner's responsibility. As a result of all of this, the BCC was not told of the CCPC's recommendation on building heights, either orally or in writing. The BCC was presented only with staffs recommendation that building heights be limited to two stories not exceeding 35 feet in height. Commissioner Henning made a motion that the BCC approve the application to rezone the Richland PUD "with staff stipulations, Planning Commission stipulations" except for the number of square feet dealing with the capacity and the elimination of two other commercial uses, specifically United States personal service use and "any other comparable use" as determined by the Planning Services Director. The motion carried 5 to O. Chairman James A. Coletta signed Ordinance No. 02-07 on February 12, 2002. Thereafter, the PUD document was edited by MBljorie Student of the County Attorney's Office and Karen Bishop to "clean up" some "little things." Still the conflicts nOfed above were not corrected or called to the attention of the BCC. The Ordinance and PUD document were approved as to form and legal sufficiency by MBljorie M. Student. On February 20, 2002, the Ordinance was filed with the Department of State. The Ordinance was amended on April 8, 2003 to correct a "scrivener's error" in Section 6-4, paragraph 8, to provide that the responsibility to maintain a gate between the residential and commercial tracts was that of the residential property owners, instead of the commercial property owner. No other amendments have been made 10 the PUD since that time. ... SDP Aooroval for Pebblebrooke Commercial Phase IV On February 28, 2002 (about two weeks after the rezone was approved), Kenco Development, mc, sold the commercial tract to DAD Development Corp., a DeAngelis Diamond entity. On June 10, 2004, DAD Development Corp. submitted a Site Development Plan Application for Pebblebrooke Commercial Phase IV, which included the commercial property that was added by the PUD Amendment. The project was assigned to Ross Gochenaur, Planning Manager. The SDP referenced building height as "MAXIMUM HEIGHT FIFTY FEET (50') AND NOT TO EXCEED TWO STORIES FOR COMMERCIAL STRUCTURES WITHIN 60 FEET OF THE RESIDENTIAL TRACT BOUNDARY LINE," which was consistent with the PUD document as recorded. The SDP showed a two story retaiVmedical office building with a height of 29', 4" on the southernmosl portion of the commercial property adjacent to the Pebblebrooke residential subdivision. It further showed a 30-foot buffer between the commercial property line and the exterior wall of the proposed two-story building. The SDP did not call for an additional setback beyond the 3D-foot buffer as depicted on Exhibil B 10 the PUD. Because the side setback requirement in the PUD was only 10 feet and 30 feet was provided. and because the ( . Agenda Item No. 12A June 10, 2008 Agenda Iter1"i'li!Ie ~of 45 January f5: 2008 Page 10 of 34 -' I I I I I I I I r ~ I I I I I I I .-, J I Board of County Commissioners December 7, 2007 Page 10 PUD document did not specifY any additional setback beyond the 30-foot buffer, Mr. Gochenaur did not believe that he had any basis to require setback beyond the 30-foot buffer area. In addition, Mr. Gochenaur has explained that a five foot sidewalk and underground utilities shown on the SOP within the 30-foot buffer area are considered permissible within buffers. With regard to the height of buildings, Mr. Gochenaur noted on his checklist 2nd review: an error in PUD Ord. 02-07 indicates the height of buildings abutting the residential tract boundary is 2 stories or 50 ft. It should be 2 stories or 35ft. A Scrivener's Error will correct this, but please change the required height in table to reflect 35 rather than 50. Mr. Gochenaur does not recall how he knew in 2004 that building heights in this area of the development were to be restricted to 35 feet rather than 50, other than the fact that 35 feet is typical for a two story building. He was not aware of the discussion at the CCPC level two years earlier to limit building heights to one story, and it is not the practice of the planning managers to research meeting minutes or verifY that the language of PUD document is consistent with actions taken at BCC or ccpe meetings while reviewing an SOP application. In any event, the "scrivener's error" in the PUD document reducing maximum building height from 50 to 35 was never corrected, nor was the SDP table changed to reflect this height as suggested in Mr. Gochenaur's review notes. He does not recall why. That notwithstanding, the actual height of the proposed two story building shown on the SDP was less than 30 feet. Because this building height was below the maximwn height provided in the language of the PUD docwnent (with or without the correction of the "scrivener's error" to 35 feet), the SOP was approved by staff on December 6, 2004. Regarding the landscape buffer, the plans presented at pre-application meetings apparently did not show a berm. Michael Sawyer, the County's landscape reviewer at the time, entered a comment on his checklist after the first review as follows: ,. [. Reference site plan sheet 11 of 15 Section A-A. Revise this cross section to meet PUD exhibit "B". Specifically, the section does not include the "Landscape Berm" as illustrated. Note that the 6 foot wall/fence must be located at the top of the berm. To address this comment, sheet II of 15 was revised to show a berm, with a six-foot landscape wall centered on top of the berm (See Exhibit C). Height dimensions for the berm are not specified on the drawing, but there is reference to a 10-1 slope starting at 5 feet from the property line, which would result in a berm of only about one foot The drawing shows that the top of the "berm" is actually below the floor slab of the building. This is not consistent with the conceptual 30-foot buffer plan attached as Exhibit B to the PUD, which shows a berm higher Agenda Item No. 12A Ji\~2008 Agenda Ite']l> . f 45 January , 8 Page 11 of 34 I I I I I I I I I I I I I I I I I I I r- Board of County Commissioners December 7, 2007 Page 11 than the floor slab of the commercial building, although again no dimensions were specified. Without having dimensions specified either in the language of the PUD document or Exhibit B to the PUD document, Mr. Sawyer did not feel that he had a basis to reject the revised drawing showing a berm of some degree on sheet 11 of 15. As built, there is a drainage swale between the commercial building and a small berm under the landscape wall. (See photographs attached as Exhibit D). The wall itself appears to be closer to 8 feet in height rather than 6, resulting in a Iota! height close to that shown on Exhibit B to the PUD. However, the landscape buffer is dwarfed by the two story commercial building set back 30 feet from the property line (See Exhibit E), Stevie Tomato's Sports Page The Building Permit for the two story and one story commercial buildings within the rezoned commercial property was issued on January 10, 2005, and Certificates of Occupancy were issued on February 28, 2006. In September 2005, Stevie Tomato's Sports Page submitted an application for a permit to build out a restaurant in the southernmost portion of the one story building within the Pebblebrooke Center, Stevie Tomato's is commonly known as a "sports bar," but has a full menu of items for lunch and dinner. According to the company's counsel, Clay Brooker, more than half of its revenue is generated from food sales as opposed to beverage sales. Its Occupational License issued by Collier County is under the classification of "Restaurant." Restaurants, including those with liquor licenses, are a permitted use under Section 4-4 of the Richland PUD. Because Stevie Tomato's is a restaurant (as well as a sports bar), a permit was issued by staff as being consistent with zoning regulations, Outdoor seating was approved as an insubstantial change to the Pebblebrooke Center SDP. Outdoor seating and bar areas for restaurants are typically considered by staff as an accessory use to the principal use of a restaurant. ~ The existence of Stevie Tomato's at the southern end of the Pebblebrooke Center close to neighboring residences in the Pebblebrooke Subdivision, particularly the noise generated from the outdoor bar and seating area which is open until 2:00 a.m., has caused numerous complaints from the neighboring property owners. The BCC viewed portions of a videotape made by a residential property owner at its September 25, 2007 meeting, which speaks volumes in support of the neighbors' concerns. It is clear from the minutes of the CCPC meeting of January 12, 2002, that disruptive noise was a concern to the Commission which led to the elimination of "Drinking Places" as defined in SIC Code 5813 as a permitted use. However, outdoor restaurants and bars associated therewith were not prohibited, either at the CCPC or BCC levels, or in the approved PUD. Nor is there any restriction in the PUD as to where, within the commercial property, such uses may exist. ( Agenda Item No. 12A Ji\e 1~2008 Agenda Iterp> f 45 January , 8 Page 12 of 34 -- I I I I I I I I ~ i ~ I I I I I I I ~ I Board of County Commissioners December 7, 2007 Page 12 Conclusions Based on our investigation, we have concluded the following: 1. The approval of two story commercial buildings in the RicWand PUD rezone resulted from human error and failure of co=unication. The cepe clearly wanted the building height reduced to one story. The applicant agreed. However, this agreement was not carried forward by staff in its Executive Summary to the Bee or in the PUD document presented to the Bee. As a result, the BCe approved a PUD document allowing two story structures (up to 35 feel as discussed but 50 feet as written), withoul any knowledge that the eepe had recommended and the applicant had agreed otherwise. 2. There is no evidence that staff intentionally misled the BCC, or failed to correct the PUD document on purpose as a "favor" to a developer or due to any improper influence, and we do not find that any such misconduct occurred in this case, 3. Staffs error was compounded by the applicant's failure to: (i) confmn that the applicant's agreements with the eepe were properly reflected in a revised PUD document; (ii) revise the conceptual plan to reflect a one story co=ercial building as opposed to a two story commercial building, and (iii) correct staff's presentation to the BCe regarding the ecpe's recommendations regarding building heights. The successor developer, which acquired the property shortly after the rezone was approved, was not a party to any agreements made between the applicant and the CCPC and proceeded with development as permitted by the PUD document actually recorded. 4. We find no fault on the part of staff in approving the SDP based on the PUD document as recorded, A two story structure was specifically allowed by the text of the PUD document, and Exhibit B to the PUD showed a two story commercial building. The PUD document required a 30- foot setback or buffer from the property line (which is greater than the 10-foot side yard setback otherwise allowed by the PUD), and this was what was permitted. The drawing on Exhibit B showed the building being set back further from the 30-foot buffer area, but no dimensions were specified. When a conceptual drawing is inconsistent with the language of a PUD document, staff follows the express language of the document, and this is what ,.occurred in this case. i~ 5. The "berm" as built is not the 3 to 4 foot berm discussed at the CCPC meeting or shown on Exhibit B to the PUD, Again, however, no dimensions are specified for the height of the berm either in the language of the PUD document or on the conceptual plan. It is suggested that if dimensions of berms are important at the planning level (as they appear to have been in this case), such dimensions should be specified in the language of the PUD document. 6. Although the result to Pebblebrooke residents is intolerable, we find no fault on the part of staff in approving the permit for the construction of Stevie Tomato's. Although the I I I I I I I I I I I I I I I I I I I Agenda Item No. 12A June 10, 2008 Agenda Ilerp:llffi" ~:jfuf 45 January Pf.-2008 Page 13 of 34 Board of County Commissioners December 7, 2007 Page 13 CCPC tried to eliminate noise typically associated with a "bar" or "tavern," eliminating SIC Code 5813 was not sufficient to prohibit a use such as Stevie Tomato's which operates a restaurant and bar permitted by SIC Code 5812. In our opinion, a sports bar does not fit neatly within either of these SIC codes. If sports bars are intended to be prohibited, express language to this effect should be included in the PUD document rather than reference to the SIC codes. 7, There is no evidence to suggest that the SDP approval or building permits issued in this case violated established practices or were the result of any "special favors" or improper influences on the part of any party, II. OIde Cypress POO The aide Cypress PUD was approved by the BCC on April 27, 1999, Ordinance No. 99-27. This approval resulted from a petition to rezone 500 acres of land off of Immokalee Road, east of 1-75, formerly known as the Woodlands PUD, to a residential and golf course community known as aIde Cypress. The applicant for the rezone petition was aIde Cypress Development, Ltd., a company then owned in part by Paul Hardy. The aide Cypress PUD contained 176.2 acres dedicated as a Nature Preserve and Wildlife Sanctuary. Those preserve areas were platted as Tract A in aide Cypress Unit One, approved by the BCC on April 13, 1999. The original plat showed "TRACT A CONSERVATION (D.E.)" (Drainage Easement) along with golf course tracts and large tracts for "Future Development." (See for example Exhibit F). On June 22, I 999, the BCC approved a replat of Tracts 2 and 3 (Future Development Tracts) as aide Cypress Unit Two, which created 70 single-family building lots on Wild Orchid Court and Treeline Drive. On August 3, 1999, the BCC approved a replat of Tract 5 (Future Development Tract) as aide Cypress Unit Three, which created 55 single-family building lots on Lone Pine Lane. Both replats (Unit Two and Unit Three) showed Tract A and referenced the Plat Book and Page numbers for aIde Cypress Unit One where Tract A adjoined the bnilding lots. (See for example Exhibit G.) However, the replats did not label Tract A as a conservation or preserve area. The rear yard and side yard setback requirements for the residential units are set forth in the Development Standards, Section 7.05 of the PUD document. For single family detached dwellings, the PUD required a front yard setback of 25 feet; a side yard set back of 5 feet; and a rear yard selback of 20 feet for principal structures and 10 feet for accessory uses. On September 12, 2000, the BCC approved an amendment to the aide Cypress PUD, Ordinance No. 2000-53, to correct a scrivener's error in Section 7.05 so as to provide that "accessory uses such as pool enclosures may be attached to principal uses and accessorv uses mav be set back five (5) feet from side or rear properlY lines." gen e . June 10, 2008 Page 17 of 45 February 26-27, 2008 CHAIRMAN HENNING: Motion carries, 3-2; Commissioner Halas and Commissioner Coyle dissenting. COMMISSIONER HALAS: I hope you -- CHAIRMAN HENNING: We're moving on. We're moving on. We've got a four o'clock time certain. It's 4:30. Item #12A DISCUSSION REGARDING THE RICHLAND PUD (PEBBLEBROOKE) - MOTION TO SEEK LEGAL ACTION TO CLOSE THE BAR AREA AT STEVIE TOMATO'S - APPROVED MR. MUDD: You have a four o'clock time certain. This is item 12A. It's a discussion regarding the Richland PUD, Pebblebrooke. I believe Mr. Klatzkow is going to present. CHAIRMAN HENNING: How many public speakers do we have? MS. FILSON: Six. MR. KLATZKOW: We had everything set up but the power outage took it out, so it's going to take just a minute. COMMISSIONER FIALA: Are we still under power outage? MR. MUDD: Yes. I haven't been -- I have been updated otherwise since the last time. The state had a little bit of a blurb as far as power grid is concerned, and there's still sections of this county and other places in the state that do not have electricity. COMMISSIONER FIALA: We're stilI on generators, right? ~. MR. MUDD: We are, yes, ma'am. I haven't seen it click off yet. MS. FILSON: I have seven speakers now, sir. CHAIRMAN HENNING: County Manager, you might want to ask your staff if there's any other PowerPoint presentations they need to pull up and start working on that. MR. MUDD: Yes, sir. Next break I'll get it back up on the I Page 208 Age June 10, 2008 Page 18 of 45 February 26-27, 2008 machine so it's there, but I -- MR. KLA TZKOW: JeffKlatzkow, for the record. County Attorney's Office. This is coming back at a request of the board. This is a discussion on Pebblebrooke, and I will be seeking board direction on this. What I have on the monitor is the website for Stevie Tomato's at Pebblebrooke. I figured they can describe themselves better than I describe them. It's more fair, I think, of what Stevie Tomato's is. Two issues in Pebblebrooke. The first is Stevie Tomato's and the second is this two-story building, and I'd like to talk about Stevie Tomato's first. The Planning Commission had an extensive discussion with respect to this project, and they were very cognizant that this was being built adjacent to a residential neighborhood. And what they said was, we're okay with restaurants where somebody could sit down and have a glass of wine, but we just don't want any drinking establishments here. And that was codified into the PUD ordinance as follows: It says, eating and drinking places, group 5812 only. Now, I'm talking a little -- we're going to have to get into a little zoning here. But what we do in our PUD's is refer to standard industrial codes so that people will know what uses they can and cannot do. And the standard industrial codes that we use is a 1987 book, a Standard Industrial Classification Manual is -- in the LDC. It's how we defme what uses can be done. And what you see is that the standard industrial code manual breaks down these businesses in two types of places. One is an eating place and one is a drinking place. And you'll see that sports bar isn't in anyone of them, okay. What they say about a drinking place is the sale of food frequently accounts for a substantial portion of the receipts of these establishments. So we're just not talking about a traditional bar where Page 209 I" I 1 Agenda Item NO.1 A June 10, 2008 Page 19 of 45 February 26-27, 2008 you go to drink. You're allowed to eat there and get your chicken wings and hamburgers and everything else. If you can get the -- now, if you look at the pictures that are flowing through their own website, I see one picture of a bar after the other. The picture up there currently is their outdoor seating area. A better picture, which I took Sunday morning, is this one. It has been staffs position -- and I'm not going to say it's an unreasonable position. But it's staffs position that this is a seating area that's accessory to the restaurant use. Another person could argue that this is an outdoor bar. It is dominated by the bar. There are TVs running around. My experience there -- and I do live in the neighborhood -- is that people come here and they drink and they watch sporting events and they smoke. That's why it's outdoors. It doesn't overlook the ocean, it doesn't overlook a park. It overlooks predominantly a parking area. But the attraction isn't the view. The attraction is you can sit down and have a beer and you can smoke, which is why there are no walls around it. And we have many other establishments in town that are going the same way. And the question I have for the Board is, if we're going to approach this as a restaurant who has, as a secondary use, this drinking area, then at that point in time there's nothing else for us to do. It is what it is and the neighborhood will have to live with it. If it's the Board's feeling that what we have here is an outdoor bar, then we have a different issue. And one approach to take would be to authorize the County Attorney's Office to bring suit to shut down that bar as in violation of the PUD ordinance. Now, if! can go back to their own website, just to look at the calendar of events of what they have. What you typically see at Stevie Tomato's is during the day they are a restaurant. They have kid specials during the day, they have a roast pork loin special, but the place converts at night from a predominantly restaurant use to a bar I Page 210 Agenda Item No. 12A June 10, 2008 Page 20 of 45 February 26-27, 2008 use. They have Monday night football, they'll have Texas hold 'em tournaments. They have late night happy hours. They've got the specials on the Bud Lights and bottles. And as you go through the calendar, it's the same thing week after week. During the day they're a restaurant, and during the evening they're a bar. So the argument would be if we took this to court, is that you were permitted in your zoning ordinance or your PUD to be a restaurant. You are not permitted to be a bar. What you are is a hybrid. You're both, okay. During the day you're a restaurant and at night you're a bar. I don't believe that it is the restaurant activities that the people in Pebblebrooke are protesting. I think it's the bar activities they're protesting. I think it's -- and Commissioner Henning and I were at a homeowner association meeting, and I think it's the drunks that leave there at two a.m. that are bothering the commWlity, and I think it's the people in the outdoor seating arejll :00 p.m., 1 :30, drinking and talking loudly that are bothering the community. And that's the portion of the business that we would target. Again, if you feel this is predominantly a restaurant which has an accessory use as a bar, then that's the end of it. But if you feel that what this is is both a bar and a restaurant and you want us to close down the bar, then I'd ask you to direct the COWlty Attorney's Office to bring suit. Now, I am not going to tell you that we are going to be successful in this suit. I think: this, quite frankly, is a coin flip. I Googled these two SIC codes. Half the sport codes -- half the sports bars in this COWltry consider themselves restaurants and half the sports bars in this country consider themselves bars. It's -- it could go either way. But if you want this thing closed down, that's how we're going to do it. CHAIRMAN HENNING: Commissioner Halas? Page 211 gen a em o. June 10, 2008 Page 21 of 45 February 26-27,2008 COMMISSIONER HALAS: Yeah. We may have a difficult time, especially if they can prove that 50 percent of their income is by the sales of food. I think another avenue that we need to address -- and I've been basically preaching to the choir -- and that is, if we come up with a stringent noise ordinance, that will put a stop to it real quick. With the noise ordinance that encompasses the -- where the sound carries over into people's homes, inside the homes, in their back yards. I think if we have a -- I'm hoping that we come forth with an LDC amendment with a stiffer noise ordinance that it will address this, and I think you'll see the television sets and everything else disappear out there because they'll be cited many times. But when you look at somebody that has a restaurant, I understand where you're coming here, but I think you might run into some -- it's going to be interesting to see how this turns out, because if ;-- they can prove they're 50 percent or more, even during the bar times, it would be considered bar times. MR. KLATZKOW: Sir, it would be a good defense. I don't think: it's the dispositive. Under the SIC codes, you're allowed to be a bar with the substantial proceeds of food use. What I would argue is that they're a hybrid. During the day they're a restaurant, at night they were a bar. Your zoning says you can be a restaurant, but you can't be a bar. They're both. CHAIRMAN HENNING: Yeah. I say, let's shut down the bar. If they want to become a restaurant, that's fme. COMMISSIONER FIALA: I go along with it. CHAIRMAN HENNING: Cormnissioner Coletta? COMMISSIONER COLEITA: Yeah. And I'd like to see that, too. I have similar concerns that Commissioner Halas brought up. What is substantial? You know, no one's defined that. Commissioner Halas said 50 percent - or 51 percent or more, but I don't know where you got that number. It could be 60, 70, 80. Page 212 gen a em o. June 10, 2008 Page 22 of 45 February 26-27, 2008 CHAIRMAN HENNING: That's staffs interpretation. Can you put up the SIC code and explain that to the Board of Commissioners again, please. COMMISSIONER COLETTA: Thank: you, Commissioner Henning. What am I supposed to be looking at? CHAIRMAN HENNING: Well, up above you've got SIC code 5812, which is restaurant, and then you have below that 5813, so we just need to zoom into it. 5813 is a drinking place. And if you just read what is highlighted. COMMISSIONER COLETTA: Oh, okay. So 5812 is what's allowed. 5813 is not allowed. CHAIRMAN HENNING: Correct. COMMISSIONER COLETTA: And so that's -- food frequently accounts for a substantial portion of the receipts of these establishments. CHAIRMAN HENNING: Yep. That's a bar. COMMISSIONER COLETTA: One thing that I found to be very curious was the fact that they have down there on the menu something about an acoustic dinner? What's that? MR. KLATZKOW: Well-- COMMISSIONER COYLE: It's a loud happy hour. MR. KLATZKOW: They do do live shows there, or they have live entertainment there. That could be that. COMMISSIONER COLETTA: Yeah. And the only other thing, you know, with the great discussion that we're having, do we know if the owners of the establishment have done anything recently or are planning to do anything? Are they here to be represented to be able to tell us what their plans are? MR. KLATZKOW: I believe they are here, but I will tell you that we have had a deafening silence from them on this issue from day one. The owner of the shopping center -- and I'll get into this a little later -- has been very cooperative with us. Stevie Tomato's has not. Page 213 ~a Item o. June 10, 2008 Page 23 of 45 February 26-27, 2008 CHAIRMAN HENNING: Okay. Go ahead. COMMISSIONER COYLE: Was that a motion you made earlier about proceeding with closing down the bar? CHAIRMAN HENNING: Yeah, that's my motion. COMMISSIONER COYLE: I'll second it. MR. KLATZKOW: Just for clarification, I could bring a cause of action just on the outdoor bar or I could bring in a cause of action for both the outdoor bar and as well as the indoor bar. It's both. CHAIRMAN HENNING: You see the thing, a normal restaurant doesn't have the hours of operation that a sports bar has. You know, you do have some anomalies out there with Waffle House or something like that, but that is not a place where they serve liquor. Those are to serve the people who get up damn early in the morning or the people who leave Stevie Tomato's to get something to eat. It needs to be a restaurant. The hours need to be defmed. It needs -- that's it. Stop the bar practice. MR. KLATZKOW: Okay. CHAIRMAN HENNING: Okay. COMMISSIONER FIALA: Inside bar or outside bar? CHAIRMAN HENNING: All over. What I'm saying, inside/outside hours. It's supposed to be a restaurant, and most of those go to -- I don't know. I mean, I usually go -- MR. MUDD: A lot -- during the week, a lot quit serving at nine o'clock, and then on the weekends, because it's high season, they might go to 10:30, max, 11 o'clock before it closes. CHAIRMAN HENNING: I'm not going to call the motion because we have -- COMMISSIONER COYLE: I'll second that motion. CHAIRMAN HENNING: And you did. We have -- MR. KLATZKOW: There are speakers. CHAIRMAN HENNING: We have a whole bunch of speakers. Now, the next issue-- Page 214 ,,--- Agenda Item NO. 1 LAl June 10, 2008 Page 24 of 45 February 26-27,2008 MR. KLATZKOW: Now the second issue. The second issue is the two-story building. And the developer is here. I don't lmow if you want to see his presentation. The original idea was that we were going to show the presentation to the people of Pebblebrooke first. The presentation was only completed just a few days ago, so we never had the opportunity. They're here now to show it to you if you'd like to see it, or we can wait. CHAIRMAN HENNING: What do you want to do? You want to see it? COMMISSIONER FIALA: Sure. CHAIRMAN HENNING: Okay, go ahead. It still needs to be presented to the restaurant -- the residents. It can't be done in this type of a setting. MR. KLATZKOW: Mr. Pickworth? MR. MUDD: Do you want to use the overhead, do you want to use the computer? MR. PICKWORTH: We have several drawings, so I guess that would be what we need. CHAIRMAN HENNING: Mr. Pickworth, thank: you. MR. PICKWORTH: Good afternoon, Commissioners. I'm Don Pickworth. I represent DAD development, which owns the shopping center. They acquired the shopping center after the zoning actions -- which have formed the basis of the concerns about the two-story building -- had taken place. In fact, to clarify some information that has been promulgated that some -- a good bit of which is not exactly correct, DAD entered into a contract to purchase this property. The contract provided that the previous owner would -- it basically provided that the property would have an additional number of square feet of commercial authorized, and it was the responsibility of the previous attorney to Page 215 l ./"'--. - AgellUi:i llelll !'1v. 1G-.J-\ June 10, 2008 Page 25 of 45 February 26-27, 2008 obtain that. There was nothing in the contract, no condition about number of stories or any of that. That was not an issue for these purchasers. They wanted to know that they could build a number of square feet of commercial that they would be able to build. It was the responsibility of the previous owner to obtain the zoning using his consultants and at his expense. He went through the process. We were not part of or aware of all of this. You know, all this talk about an agreement for one story at the Planning Commission and all of that, we were not part of any of that. After the board had taken its final action on the PUD and the PUD was signed, we received a letter from the previous owner saying, basically, the condition of the contract has been fulfilled. Here's the PUD which shows you can build the number of square feet of commercial which you contracted to be able to build. Let's set a closing, so we closed on the property. In fact, the -- had no idea there was an issue of two stories until really long after the building was built; really not too long ago was the first time that issue had come up. The owner has the -- obviously the awareness of Stevie Tomato situation has been around for a long time. And they have met with representatives of the county on that. They either funded entirely or a substantial part -- the previous noise study that was done, so they've taken part in that. But now the two-story building issue has arisen. And so from the standpoint of DAD Development, the question is, how can we find a way to move on from there? Obviously the building is not going to be voluntarily tom down or anything like that because their position is that that building was totally lawfully built. But we have engaged the services of a landscape architect to see what could be done to adequately screen, through landscaping, the two-story building. Page 216 - Agenda Item I~O. I LA l June 10, 2008 Page 26 of 45 February 26-27, 2008 And we have -- and again, it's -- these -- there's probably a few details that we still need to work out. We just found out late last week that we'd be able to do some enhanced planting in that preserve which would help screen off one end of the building, so we very quickly showed some prospective plantings in there. So we're still -- we're still working on that. But I think you can see on the drawings what we're basically planning to do, which is to provide a heavy landscape screen alongside of the building. You can see that. It then wraps around the end of the building, and those plantings at the end of the building there, those are actually going to be in the preserve. As you may know, there was a fIre in there some time ago. It got pretty torn up by the fIre department, and so it's not -- it doesn't -- the preserve itself is not very thick in there, so the idea would be to plant some native species in there which would act asa vegetative screen for two or three homes that are located - they would otherwise be able to look through the preserve and see that building. We had thought -- and I understand this is still going to be done. We certainly are looking forward -- we thought we were going to have a second meeting with the people in Pebblebrooke, and we certainly look forward to such a meeting where we can kind of go through all these things in as much detail as anyone wants to as far as exactly what's being done. But I just wanted to give you an overview of what -- of what we're ready to commit to do. There's also going to be a -- I think one of the drawings may show a concrete wall- did you show that? MR. MUDD: This one? MR. PICKWORTH: Yes, yes. Okay. You see that concrete wall, and then that's the preserve right behind it, and those are the enhanced plantings that would be in the preserve. I guess -- I'll certainly answer any questions, but I wanted to let you know the direction we're going. And, you know, we look forward Page 217 1 Agenda Item No. 12A June 10, 2008 Page 27 of 45 February 26-27, 2008 to, you know, further interface with the residents of Pebble brooke, to move this along. CHAIRMAN HENNING: Questions? (No response.) CHAIRMAN HENNING: Thank you, Mr. Pickworth. COMMISSIONER COYLE: I would like to thank you for being so cooperative. It's our understanding from the County Attorney that you have been very cooperative in trying to address the residents' concerns. I think that's very good. I appreciate that. MR. PICKWORTH: Thank you. CHAIRMAN HENNING: Yeah. I just want to mention that the board gave directions to see if there's any kind of resolution to this outside of going to court, and DAD was very responsive to that. But, again, that -- residents haven't seen that. But I just wanted to clarify what the board's direction was, okay? Okay. Let's call up the public speakers. MS. FILSON: We have seven speakers, Mr. Chairman. The first one is Adam Cohen. He'll be followed by Walter Bruno. And ifl can have the second speaker please come up. Okay. Go ahead. MR. COHEN: My name's Adam Cohen, and I live at 298 Spider Lily Lane in Pebblebrooke. I'm here just to implore the commission to institute the scrivener's error. I do not believe that any kind of mitigation through plant life or walls can bring back our quality oflife, could bring back - you know, we've -- you know, we've got quite a few homes that are for sale in our development now, just about everybody does. We've got folks driving down there, driving that -- when they see that wall right there, they see that wall, renters will not come any further and they turn around and leave, you know. So I'm just imploring you all to do the right thing, go back to the PUD that was supposed to be instituted. I Page 218 Agenda Item No:17A~~ June 10, 2008 Page 28 of 45 February 26-27, 2008 We've got more than just a two-story building. First of all, it's too close, too close to the homes that are right up against it. That's unacceptable. It's unacceptable for many -- nwnber of reasons. There's dwnpsters every day being -- and I believe one of the other speakers has a video of that -- of dwnpsters at all hours of the day and morning being dwnped, and these folks -- we're talking 30 feet. It's very loud. I mean, I'm not even 30 feet. I'm across the street and I hear it. These folks are being woken every single day. And I do appreciate the -- Stevie Tomato's, the way that's being handled, but that's not the only issue. The issue is, somebody made a mistake, and it seems like the residents of Pebblebrooke are the only ones being accountable for it. And that's just my opinion. Thanks. MS. FILSON: Walter Bruno. He'll be followed by Angela Joseph. MR. BRUNO: Walter Bruno, 288 Spider Lily Lane. The last time we were here, I think it was Ms. Fiala, had questioned if there's problems still with noise. We have a short DVD to play that will show you there's still problems, and a major ongoing problem is the dwnpster collection, 5:00, 5:30 in the morning. Again, like I say, I also feel that the scrivener's error needs to go through so that any sort of negotiations over this property can begin in earnest. (The DVD is now being played.) MR. BRUNO: That's 5:30, 5:40. And there's a shot from a resident's patio. I think he is about 200 feet away. CHAIRMAN HENNING: You want to say something, Commissioner? COMMISSIONER HALAS: I think this is a good example of why we need a stiffer noise ordinance, and not only just in this neighborhood, but there's going to be other locations throughout the county, and that's why -- I know there's other communities that have addressed a stiffer noise ordinance because the people do need relief. Page 219 l L Agellda I,ern I~o. I LA June 10, 2008 Page 29 of 45 February 26-27, 2008 MR. BRUNO: Have they thought of the -- CHAIRMAN HENNING: Well, we know the bar-- MR. BRUNO: Also, there was a provision, it's supposed to be part of the PUD, I believe, that the garbage disposal be handled off site, which I have no idea how they'd do it, but that was supposed to be in the original PUD that was approved, and also one of the things that never made it in. You know, I think we need the scrivener's error. Thank you. CHAIRMAN HENNING: May we have a copy of that DVD, Troy. MS. FILSON: The next speaker is Angela Joseph. She'll be followed by Greg Rearden. MS. JOSEPH: Good afternoon. Angela Joseph, 281 Spider Lily Lane in Pebblebrooke. And I'd like to say I regret having to be here, number one, because as citizens we trusted that years ago this would be settled. My issue, obviously, I am the home directly behind the wall. I'm the closest property there. It's 28 feet from my property line, and I had the second-story windows that looked into my home. And I can show pictures of that. But to keep it short -- I know there are a lot of people that have to talk. In viewing -- trying to do research and viewing things here, on your web site says, that the commission, your obligation is providing services to protect the health, safety, welfare, and quality oflife of the citizens of Collier County. I came across the organizational chart of the COW1ty, wanting to go -- where do we go from here? We're not happy with how things are gomg. Who does the COW1ty answer to? Can you tell me, Mr. Henning, who the top of the organizational chart is? Us, the citizens by your display? I see you responding to corporations and developers and businesses and not to us. Page 220 u_____ A~ellCjdJ~~~I{~~2~~8 Page 30 of 45 February 26-27, 2008 CHAIRMAN HENNING: I could remove my motion. MS. JOSEPH: A corporation -- a corporation is not a citizen, as far as I understand. Correct me if I'm wrong. But if things had been handled the way we were promised, the original meeting years ago, I would not have had to postpone meeting my family in grief right now for the loss of a member of my family because this is so important to handle. I shouldn't have to be here right now. I want not to have to deal with -- and I don't know. Can this be viewed? MR. MUDD: Sure, if you give it to me. MS. JOSEPH: The first picture was my home and the privacy I had on my patio. Yeah, we all agree, that wasn't going to stay. Then I had to go from that to this. And excuse me a minute. My mind is elsewhere, obviously. I don't know if that can be projected. But what you will see now is what I have to view now every morning. Excuse me for the time, but you have to see this. And now you're asking me to go through, in that little bit of 28 feet what is going to take -- and yes, developer, I thank you for all the efforts you've taken to try and come up with a solution. I am -- I am pleased with the efforts, but I don't want to have to live through that. Imagine behind me, living through now again, from all of that you saw, now you're going to dig up and you're going to put walls and trees and how close that is to my pool, and what will that do. CHAIRMAN HENNING: You're going to have to wrap it. MS. JOSEPH: Thank you. I just want to know, what will that do to my property. I want a scrivener's error, I want answers. I don't want to have to live through it, and I've spoken that before, and I thank: you for your time. CHAIRMAN HENNING: Thank you. MS. FILSON: The next speaker is Greg Rearden. He'll be followed by Kim Kish. MR. REARDEN: Hi. My name is Greg Rearden. I live at 297 Page 221 Agenda Item No. 1LA June 10, 2008 Page 31 of 45 February 26-27, 2008 Spider Lily. We've had meetings before on the issues, and you know the issues are noise. You know the issues are the two-story building. I know that there are efforts being made to try and rectify the problem. I understand some landscaping mayor may not do the trick; however, I do wish that you would make a motion to close the bar, stop the liquor inside and out, because I'm five doors down from the bar, can look right into the back of the bar and hear nothing but screaming, yelling. And you've seen the video before, all of you have, and today's video. It's very loud. We can't even go outside. If we have company, we can't go out on the lanai, have any privacy. Our lives really, we feel like, are being, little by little, day by day, just been affected by the noise. I really feel sorry for the lady that has to live there, you know, next to the building, but I also feel sorry for the person that lives directly behind Stevie Tomato's and listens -- even that person that took that video is even three or four doors down. There is even some closer that can hear the noise even louder. You know what you get when you start doing the drinking and the motorcycles and the horn blowing. And there's one truck up there that has some kind of big train sound that you can hear from a half a mile away. It's very loud, and our homes -- even with my TV on inside my house, I still hear the noise. I personally believe that the only way you're going to be able to solve the noise is to put up a big wall behind the building, do all kinds of landscaping to try and do that. But as far as where the building's concerned, you know, I'm asking for scrivener's errors as well to implement some of the mistakes that have been made by the county and/or the inspectors, code inspectors, whomever they may be. Thank you. CHAIRMAN HENNING: Thank you. MS. FILSON: Kim Kish. She'll be followed by Jeri Buehler. Page 222 A~~IIJd I t~I" Nu. 12A I June 10, 2008 Page 32 of 45 February 26-27,2008 MS. KISH: Hi, again. I want you to know I'm on fIrst name basis with all of my sheriff deputies within the 951/Immokalee area. The point I wanted to make tonight is that the entire issue, if you can continue to refuse to put forth a vote for the scrivener's error that your own staff report shows and recommends and the continued lack of oversight by many within this cmmty, including Mr. Weigel who was the attorney during this entire period that allowed this issue to come to fruition (sic), you are, in essence, saying that the Planning Commission and its recommendations and its very existence are irrelevant and unnecessary, that each board member here in the future can make decisions regardless of the will of the people, the set laws, and the regulations, that you and you alone will be the deciding factor. I don't believe this is your intent. For you to try to put forth an argument that a lawsuit will last for many years is something that will have to be handled, but not at the expense of the people who trusted . you to speak for us and protect us. The only choice is to call for and approve a scrivener's error posthaste. The consequences of the poor oversight of staff in allowing a developer's agent -- and I think this is the biggest point on this issue-- that the developer's agent was allowed to clean up and sit with staff and remove the words "no" and "not allowed" and that came forth for you to vote on is, perhaps -- you know, it will be a test between your attorney, the developer, the builder, and the bar owner, but not our problem. We were here first. Thanks. MS. FILSON: Jeri Buehler. She'll be followed by Clay Brooker. MS. BUEHLER: Good evening. I'm Jeri Buehler and I live at 389 Sweetbay Lane, and I live at roughs of the building. And we sat here a couple years ago in front of the county commissioners. We didn't even know that the property was being sold out. We were told that there were going to be more homes back there. So much to my dismay, we all came, and the developer not only sold the PUD, the P-U-D - we sat here, we asked that a tavern not go Page 223 Agen a em o. June 10, 2008 Page 33 of 45 February 26-27, 2008 in. We didn't mind a restaurant that served wine and beer -- that's an issue of its own -- but not a restaurant that close to our homes. The other point was that the building was to be 60 feet from my lot line. The building is 30 feet from my lot line. When DeAngeles Diamond was footing it, I went out and said to the man, oh, that's the wall, correct? No, ma'am, that's the building. I talked to John DeAngeles personally. My husband called him. I called, I went down. Then the wall is 15 feet from my building, from my house. Then I'm watching the wall go up, not just a one story, but a very intrusive two-story building that everyone that drives down my street says, my gosh, Jeri, what happened? Who allowed this? I want a scrivener's error. I am rather flabbergasted that the county commissioners, that we elect, don't drive out and see what's going on in their county, our county. And as a taxpayer, I depend on you, Commissioners, all of you, and I'm very disappointed. And I'm sorry that the man that has come to own this didn't do all of his due diligence to fmd out what was going on, because we did complain. A lot of tears, a lot of aggravation. I asked John DeAngeles where he lived, ifhe would like that building behind his home. I want to sell my house some day. To be honest with you, I will never get out of it what I originally decided. We -- we're on a dead-end. I have a handicapped daughter, Christina, who's 32 years of age. We built there so that she could ride her bike to Publix. CfWRMAN HENNING: You have to wrap it up, please. MS. BUEHLER: All right. I just want you to do what's right by us. Thank you. CfWRMAN HENNING: Thank you. MS. FILSON : Your final speaker is Clay Brooker. Page 224 Agellda 1",,"I~u. 12A June 10, 2008 Page 34 of 45 February 26-27,2008 MR. BROOKER: Good afternoon, Commissioners. My name is Clay Brooker. I'm with the law firm ofCheffy, Passidomo, Wilson, & Johnson. I appear before you on behalf of the Stevie Tomato's establishment. First off I'd like to comment a little bit on the comment by Mr. Klatzkow that we've -- there's been nothing but deafening silence from us. That is untrue. We had no notice of today's discussion item on the agenda. We found out about it yesterday. Apparently DAD Development Corpomtion was given notice, but we weren't. Upon finding out about it, I tried to call Mr. Klatzkow. No one knew where he was, so I sent an email to him. The response I got was silence. I've been in touch with Commissioner Henning since the beginning on this. On September 25,2007, we appeared before you. We offered a sound barrier at that time. On January 10th, a neighborhood meeting was held. Commissioner Henning was in attendance. I was in attendance. Mr. Klatzkow was in attendance. My client was in attendance. We participated and offered sound attenuating shutters at that meeting. We offered to close them every day at seven p.m. That meeting ended with an agreement to follow up with a second neighborhood meeting. I don't know where the status of that is. No one's told me anything about when the date of that meeting is going to occur. But we're ready to participate again whenever that meeting is called. The dumpster is not us. We don't control the timing of it. It's for the entire shopping center, so that can't be blamed on Stevie Tomato's. As far as whether we're permitted under the PUD, your own zoning director investigated this matter the end of last year and she wrote, I quote, Stevie Tomato's is correctly classified under SIC code number 5812 as a restaurant. The outdoor seating bar area is correctly considered an accessory use to the principle use of the restaurant, not Page 225 gen a tem o. June 10, 2008 Page 35 of 45 February 26-27,2008 unlike the indoor bar. The restaurant use, including the outdoor bar seating area, was properly and appropriately permitted by staff under the restaurant uses as defined under SIC code 5812 by the PUD, end quote. The revenues at Steve Tomato's in tenus offood far exceed 51 percent. The sound attenuating shutters we've offered time and time again. Although no one seems to want to take us up on the offer, they are going up anyway next week. We have responded, and what we suggest is to expedite the resolutions that have been offered to you, from our standpoint for months, from DAD's standpoint, they showed some on their -- plans for landscaping and a wall today. I suggest we expedite these resolutions prior to filing a suit which your own attorney gives you, at best, a 50/50 shot of winning. One last sentence. When clients come into my office and ask to go to court and I tell them that there's a 50/50 shot, my advice is, never go to court on a 50/50 shot of winning; reach a resolution. And we believe we've offered a reasonable one. CHAIRMAN HENNING: Yeah. My wife and I went out to dinner on Friday night across the street in the Vineyards, and - Italian restaurant. It has a bar in there. And they're very busy, so we choose to eat over there, and it's nothing like what we've seen on that video. It was quite a pleasant experience. And I know they don't stay open till two o'clock in the morning, one o'clock in the morning, I bet you they close the doors at 10 p.m., maybe 11. I don't know. There is a difference between a restaurant and a bar, and somebody needs to infonu your staff what the difference is. Very clear. And these errors that keep on happening is just overwhelming, whether it be a setback, a bar, or whatever. And the only person that we have accountable is the County Manager. ,1\ I Page 226 - Agerrcla1iem I~o. ILA ~ June 10, 2008 Page 36 of 45 February 26-27, 2008 But I think we have the ability to do budget amendments, and I'm almost that close to taking a budget amendment to positions in your organization. This has to change. Y '? es, SIr, COMMISSIONER COLETTA: Yeah. A couple of points here. I went online to look up about Stevie Tomato's, and it's classified numerous times online as a bar. Just to point it out to you, something that I did. I went to the Yellow Pages, and I couldn't fmd anything there that indicated whether it was a bar or a restaurant. It was listed under restaurants. But ifI may address Mr. Klatzkow, CHAIRMAN HENNING: Please. COMMISSIONER COLETTA: Sir, I'm a little bit disturbed. When you were in my office the other day, I asked you if there'd been any communications taking place and that I heard something about sound shutters, and I asked you what you knew of it, and you said, no, there's been nothing, Have they -- what they just said, is that not true or is it true, that they had contact -- MR. KLATZKOW: They have been talking about sound shutters for, I can't tell you how long, and I've never seen them come up. Now they're saying we're putting them up. I think it's -- maybe a coincidence, but maybe it's because of this meeting right here. What I will tell you is those sound shutters; I don't think it's going to make a heck of a difference. COMMISSIONER COLETTA: Well, that's fme. It's just that when you were in my office, you didn't give me all the information I was hoping to get so I can move forward on it. What I'm hearing from them here is that there is an effort going underway. I wished you told me at that time that you had these discussions. Nothing happened -- MR. KLATZKOW: If you remember, sir, Mr. Mudd came to you sometime ago with a permit on this issue for the shutters, I don't Page 227 June 10, 2008 Page 37 of 45 February 26-27,2008 know, six months ago, nine months ago already, it's been. CHAIRMAN HENNING: November. MR. MUDD: It was November, September. MR. KLATZKOW: November sometime. They're still not there. COMMISSIONER COLETTA: Yeah. A little more detail in the explanation would have helped tremendously. I still support your motion, Commissioner Henning. CHAIRMAN HENNING: Okay. Any further discussion? (No response.) CHAIRMAN HENNING: All in favor of the motion, signify by saymg aye. COMMISSIONER COYLE: Aye. CHAIRMAN HENNING: Aye. I COMMISSIONER FIALA: Aye. ~ COMMISSIONER COLETTA: Aye. I . CHAIRMAN HENNING: Any opposed? COMMISSIONER HALAS: Aye. CHAIRMAN HENNING: Motion carries, 4-1, Commissioner Halas against the motion. Okay. Do we need a break? We're going to take a 1 O-minute break and get back to the five o'clock time certain. (A brief recess was had.) MR. MUDD: Ladies and gentlemen, if you'd please take your seat. Mr. Chairman, Commissioners, you have a hot mike. CHAIRMAN HENNING: The next item is 10 -- which is it, 10 MS. FILSON: lOF. Item #lOF /', Page 228 Agenda Item No. 12A June 10, 2008 Page 38 of 45 DEVELOPER AGREEMENT THIS DEVELOPER AGREEMENT (hereinafter referred to as the "Agreement") is made and entered into this of , 2008, by and between DAD Development Corp., a Florida corporation, whose address is 2375 Tamiami Trail North, Suite 210, Naples, Florida ("Developer"), and COLLIER COUNTY, FLORIDA, a political subdivision of the State of Florida (hereinafter referred to as "County R Eel TAL S: WHEREAS, the County, by and through its Board of County Commissioners (the "Board"), makes the following findings and determinations: Developer is the owner of certain developed lands within the unincorporated area of Collier County, Florida described on Exhibit A attached hereto (the "Property") There is a two-story building located at 15205 Collier Boulevard, Naples, Florida which is within the Property (the "Building") The Building was constructed pursuant to county permits issued in 2005 and received its Certificate of Occupancy on March 29, 2006. The Property is within the lands covered by a Planned Unit Development known as the "Richland Planned Unit Development Ordinance", enacted as an ordinance by the County on February 12, 2002 as Ordinance No. 02-07 (the "PUD"). The PUD repealed and superseded Ordinance 97-27, and, among other things, changed the permitted uses on certain lands within the PUD, including the Property, from residential to commercial. The application for the PUD was filed in October, 2001 by the owner of the Property at that time, Kenco Dcvelopment, Inc. by Kenco's agent. The Developer was not involved in the processing of the application for the PUD and was not aware of inconsistencies in the recommendations of the Collier County Planning Commission and the County staff regarding, among other things, the maximum number of stories allowed on buildings within the Property. The Developer purchased the Property subsequent to the adoption of the PUD without knowledge of the aforementioned inconsistencies and relied in good faith on the express terms of the PUD. WHEREAS, the Board has been advised that there is uncertainty as to a favorable outcome if the County seeks judicial remedies against Developer; and WHEREAS, the County has determined that the interests of the citizens of Collier County, including the citizens residing in the residential portions of the Richland PUD will be Agenda Item No. 12A June 10, 2008 Page 39 of 45 better served by an agreement between the Developer and the County Wlder which the Developer is required to take specified remedial actions; and WHEREAS, the Developer is willing to take the remedial actions set forth in this Agreement if the Developer is assured by the terms of this Agreement that the COWlty will not seek judicial remedies that would require the Developer to demolish the second floor of the Building or be barred from using the second floor of the Building or that the COWlty will not seek to enact any legislation or take any other action that would make the Building a non- conforming use or interfere with the use of the Building, including its second storey, as permitted by the PUD; and WHEREAS, after reasoned consideration, the Board finds and reaffirms that this Agreement is consistent with both the public interest and with the comprehensive plan. WIT N E SSE T H: (' NOW, THEREFORE, in consideration of Ten Dollars ($10.00) and other good and valuable consideration exchanged amongst the parties the receipt of which is acknowledged by each Party, and in consideration of the benefits to be obtained by each of the parties by each party's compliance with the covenants contained herein, the parties agree as follows: I. All of the above RECITALS are true and correct and are hereby expressly incorporated herein by reference as if set forth fully below. 2. The Developer will take the following actions (the "Remedial Actions") at the time and in the manner specified herein: A. Landscape Buffer: The Developer will install, at Developer's expense, a landscape buffer (the "Landscape Buffer") within those areas shown on the drawing attached hereto as Exhibit B entitled "Overall Site Concept Plan". The Landscape Buffer will meet the following criteria and specifications: The Landscape Buffer will provide at least 90% opacity to screen the Building. This buffer shall occur above the existing 8 foot concrete fence and extend vertically to a height of over 26 feet. Unless adverse growing conditions beyond the control of Developer occur, this will mean that at least 90% of the building will be covered after two years. The proposed planting as designed will install Areca Palms of at least 16feet in height, planted approximately 10 feet on center, starting 35 feet west ofthe western edge of the Building, extending the full length of the Building to a point that is at least 100 feet east ofthe east comer of the Building. /--,~ In addition, 2 rows of Cabbage palms planted 10 tol2 feet on center (per row). These trees shall be planted with a clear trunk height of approximately 16 feet to 21 feet (which equals 21 feet to Page 2 of7 Agenda Item No. 12A June 10, 2008 Page 40 of 45 26 feet overall height). These Cabbage palms will be planted with the fronds removed, as is consistent w/ Landscape standards, as this dramatically increases the survival rate of the trees. It is expected that these Cabbage palm trees should be fully leafed out in 24 months. It is understood that this buffer will be fertilized and maintained on a consistent basis to ensure the long term success and survival of the buffer. It is also understood that, as with any living product, inherent risks may exist that include acts of God, such as hurricanes and/or freezes or other events that are beyond Ihe control of the developer, and that such occurrences may prevent or delay the development of the Landscape Buffer to the size and opacity specified. The Developer shall take such steps as are prudent, reasonable, and in accordance with customary landscape installation and maintenance procedures in this area. Any damage that may occur to the buffer will be repaired as effectively as possible, but additional time may need to be allowed to allow the buffer to repair any damage. B. Preserve Buffer: The Developer will install a landscape buffer within the area designated in the PUD as "Preserve" at the location marked as such in the drawing attached hereto as Exhibit B (the "Preserve Buffer"). The Preserve Buffcr will meet the following criteria and specifications: Three rows of Saba I Palms as follows: (I) a front row of 10 trees with II' ct and 16' oa; (2) a middle row of 10 trees with 16' ct and 21 ' oa; (3) a rear row of 11 trees with 21' ct and 26' oa; Thence going to two rows at the point shown in the drawing, consisting of Sabal Palms as follows: (I) a front row of8 trees with 10' ct and 15' oa; (2) a rear row of 8 trees with 15' ct and 21' oa. C. Opacity film on Building's south-side second floor windows: Until such time as the Landscape Buffer has grown to the height and opacity standards set forth herein, the Developer shall install an opaque window film ("Opaque Film") on the Building's second floor windows as follows: (i) The Opaque Film shall be installed at the time any spaces are leased on the south side second floor and shall remain in place until the Landscape Buffer has achieved the height and opacity standards set forth, at which time the Opaque Film may be removed. (ii) The Opaque Film shall be of sufficient opacity to prevent persons in the second floor spaces from clearly observing the residences on Spider Lily Lane. (iii) The Opaque Film need not be installed on the windows of any unleased second floor spaces so long as such spaces are locked and access is under the control of the Developer. D. Extension of wall on west side of Building: Developer shall extend the existing 8 foot concrete wall along the west side of the Building] 75 feet north on the property line to the north side of the existing dumpster enclosure. Page 3 of7 Agenda Item No. 12A June 10, 2008 Page 41 of 45 E. The Developer shall begin construction of the wall and installation of the buffers within 60 days from receipts of all necessary permits and approvals, following the Effective Date as defined herein. F. Resolution of disputes over achievement of opacity standards: In the event the County shall determine that the opacity standards for the Landscape Buffer have not been met, after being advised in writing by a professional landscape architect (LSA) to such effect, the County shall so notify the Developer in writing and the Developer shall have 30 days to take appropriate corrective actions, or the Developer shall dispute the County's determination by the written opinion of an LSA. In such event, the two LSA's shall attempt to resolve the dispute, and if unable, shall jointly select a third LSA, whose decision shall be binding. 3. The County agrees as follows: A. The County finds, determines and acknowledges that the Developer has and had a vested right to construct the Building with two stories and at the height so constructed and that the County is estopped from asserting the contrary in any proceeding. (' B. That the County will take no legislative or administrative action, such as, but not limited to, a rezoning or amendment of the PUD that would make the Building a nonconforming use or in any other way prevent its reconstruction and/or repair in the event it is damaged or destroyed. C. That the Remedial Actions adequately address and mitigate all adverse impacts of the Building, if any, on the surrounding residential properties. 4. This Agreement shall not be construed or characterized as a development agreement under the Florida Local Government Development Agreement Act. 5. The burdens of this Agreement shall be binding upon, and the benefits of this Agreement shall inure to, all successors in interest to the parties to this Agreement. 6, In the event state or federal laws are enacted after the execution of this Agreement, which are applicable to and preclude in whole or in part the parties' compliance with the terms of this Agreement, then in such event this Agreement shall be modi fied or revoked as is necessary to comply with such laws, in a manner which best reflects the intent of this Agreement. 7. Except as otherwise provided herein, this Agreement shall only be amended by mutual written consent of the parties hereto or by their successors in interest. All notices and other communications required or permitted hereunder shall be in writing and shall be scnt by Certified Mail, return receipt requested, or by a nationally recognized overnight delivery service, and addressed as follows: ...-.. To County: Board of County Commissioners Page 4 on Agenda Item No. 12A June 10, 2008 Page 42 of 45 Attn: County Manager Harmon Turner Building 3301 Tamiami Trail East Naples, FL 341 12 Phone: (239) 252-4010 To Developer: DAD Development Corp. 2375 Tamiami Trail North, Suite 210 Naples, FL 34103 Phone: (239) 643-1429 Notice shall be deemed to have been given on the next successive business day to the date of the courier waybill if sent by nationally recognized overnight delivery service. 8. Disputes: Disputes concerning the achievement of the height or opacity standards for the Landscape Buffer or the Preserve Buffer shall be resolved in the manner set forth in paragraph 2. For all other disputes under this Agreement, the parties shall first use the County's then-current Alternative Dispute Resolution Procedure. Following the conclusion of this procedure, either party may file an action for injunctive relief in the Circuit Court of Collier County to enforce the terms of this Agreement, said remedy being cumulative with any and all other remedies available to the parties for the enforcement of this Agreement. 9. Dismissal of Developer from Lawsuit: The County shall dismiss Developer as a party to that case pending in the Circuit Court for Collier County entitled Collier County v. Pebble Page, Inc. d/b/a Stevie Tomato's Sports Page Bar & Grill, and DAD Development Corporation, Case No. 08-1872-CA (the "Lawsuit"), and will not refile any action against Developer based on the same cause of action as alleged the Lawsuit. 10. Effective Date: This Agreement shall be executed by both parties following Board approval of this Agreement, but shall become effective ("Effective Date") only after the County has filed a notice of dismissal in the Lawsuit. REMAINDER OF P AGE INTENTIONALLY LEFT BLANK SIGNATURE PAGES TO FOLLOW Page 5 of7 Agenda Item No. 12A June 10, 2008 Page 43 of 45 Attest: Dwight Brock Clerk of Board Board of County Commissioners By: Tom Henning, Chairman Deputy Clerk Approved as to form and legality: Jeffery A. Klatzkow County Attorney DAD Development Corporation By: Ray DeAngelis, President r ,'- Page 6 of7 Agenda Item No. 12A June 10, 2008 Page 44 of 45 Exhibit A Tract 1, Pebblebrooke Commercial Phase IV, according to the Plat thereof recorded at Plat Book 41, Pages 93 and 94, Public Records of Collier County, Florida Page 7 of7 <COOL{) 'o'<:'t ::>~ " 0 'L{) L~~ ECll~ ill"", -"0.. -;;;-, u " ill OJ <( I i lmlll ! III!I!! j liiJlu : , lllBm II Ii I. 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