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Agenda 04/08/2008 Item #16A14 Agenda Item No. 16A14 April 8, 2008 Page 1 of 30 EXECUTIVE SUMMARY To ensure that the issuance of a permit to erect a new pole sign meets with the intent of the Board of County Commissioner's (Board) actions on June 25, 2002 when they directed the County Manager to re-instate a sign permit for an existing pole sign currently located at 7770 Preserve Lane which had been previously revoked by Staff. OBJECTIVE: To ensure the issuance of a permit to erect a new pole sign meets with the intent of the Board's actions on June 25, 2002 when they directed the County Manager to re-issue a sign permit for a pole sign located at 7770 Preserve Lane which had been previously revoked by Staff while ensuring that the community's interests are maintained. CONSIDERATIONS: The subject property is located at 7770 Preserve Lane, in the Olde Cypress PUD, just north of Immokalee Road across from Gulf Coast High School. The development is a convenience store with gas pumps commonly known as the "Town Market". The applicant has made a permit application to remove the existing pole sign and erect a new pole sign in a different location, which is of the same size (area) and height as the existing sign. The permit for the "old" sign was originally revoked by Staff prior to its erection for having been issued in error, but was later re-instated by the Board at a meeting held on June 25, 2002. According to the minutes of the June 25th meeting, which are attached to this report, the County Attorney's office brought forward an unofficial appeal of the sign permit revocation to the Board of County Commissioners. Because no formal appeal application was filed or acted on pursuant to the Land Development Code (LDC) requirements, nor was a sign variance application applied for or considered for this sign, there is no resolution of adoption memorializing the Board's decision and any conditions attached thereto. During the Board's meeting, the size of the sign, the issue ofland use and the revocation of the sign permit were discussed between the Board and the applicant's attorney. After discussion, the Board voted to direct the County Manager to re- instate the revoked sign permit. .~ Review of the minutes of the Board's discussion and the Board's decision, reveals that it was not clearly stated by the Board if their intent was to grant approval of the proposed size and height of the pole sign in petpetuity; or only for the life of the sign or only for the life of the subject business; or was the Board simply directing the County Manager to re-issue the sign permit that had been revoked by Staff, with no future intent. Because no formal application for a variance was made, nor was an official interpretation or appeal filed concerning this matter, Staff only has the record of the discussion upon which to determine the Board's intent. The following describes the brief history of the sequence of events leading to the permit revocation, the reasons therefore and the conclusion: A sign permit for a pole sign at a height of 15 feet and 80 square feet in area was issued in or around December, 2001 by Community Development Staff, then later revoked by Staff approximately 2 months later when it was discovered that the land use classification of the subject property was applied erroneously. Staffs position at the time of permit revocation was the property should have been classi.fied as either an outparcel or a convenience store with gas pumps. Staff was of the opinion that former Staff had mis-applied the provisions of the LDC, classifying this use as a shopping center (multi-use center), thus allowing for a pole sign in excess of the LDC sign size limitations for what was the actual use. Agenda Item No. 16A14 April 8, 2008 Page 2 of 30 Specifically, the LDC allows an outparcel and a convenience store with gas pumps to have a pole sign that is a maximum of 8 feet in height and 60 square feet in area vs. the 15 feet in height and 80 square feet in area that is applied to a pole sign for a shopping center. Upon discovery of the classification error, the sign permit was administratively revoked, The sign had not yet been erected however testimony put on the record by the applicant's representative indicated that the applicant had expended a considerable amount of money into the construction of the sign. The Board minutes seem to indicate that due to the fact that the applicant had relied on the Staffs application of the LDC and therefore issued the permit, and consequently the applicant had then expended money on the sign, that the applicant was entitled to their sign permit for the now existing sign, to the extent that it was originally approved by Staff. While Staff appreciated that the applicant had apparently invested money into what is now the existing sign, the Staff position remained at that time and still remains today that the use on the property is classified as a convenience store with gas pumps, and not for a shopping center, therefore the property owner was not eligible then, and is not eligible now, to obtain a sign in excess of 60 square feet in area and 8 feet in height, which is the maximum allowable size per the Land Development Code for convenience stores with gas pumps. Furthermore, the provisions of the Land Development Code define the existing sign, as approved and erected, as non-conforming. The applicant is voluntarily removing a non-conforming sign and as such is required by the Land Development Code to bring any future signs into conformity with the current regulations. The applicant has the option to retain the existing pole sign in its current location and size in accordance with the 2002 sign permit, or to apply for a variance to request a new sign at the same size or in excess of the Land Development Code allowances. Staffs position is that the existing ground sign is non-conforming and as such removal of the sign and erection of a new sign requires that the new sign comply with the current Land Development Code regulations, or otherwise obtain approval of a Variance application. Absent the approval of a Variance to the contrary, the current regulations allow for a maximum pole sign of 8 feet in height and 60 square feet in area for this site, which is 7 feet in height less than and 20 square feet in area less than the sign that is currently located on site. FISCAL IMPACT: There is no fiscal impact associated with this request. GROWTH MANAGEMENT IMPACT: There is no Growth Management Plan impact with this request. LEGAL CONSIDERATIONS: This request IS legally sufficient for the Board of County Commissioners consideration. RECOMMENDATION: Staff recommends that the Board of County Commissioners find that the voluntary removal of and/or the destruction of the current sign to the extent defined by the Land Development Code at the time of destruction, constitutes the removal of a non-conforming sign and thus necessitates that the replacement pole sign comply with the current Land Development Code allowances for signs located on sites with convenience stores with gas pumps, unless a Variance to those provisions is obtained. PREPARED BY: Susan M. Istenes, AICP, Director, Zoning and Land Development Review Item Number: Item Summary: Meeting Date: Page 1 of 1 Agenda Item No. 16A14 April 8, 2008 Page 3 of 30 COLLIER COUNTY BOARD OF COUNTY COMMISSIONERS 16A14 To ensure the pending issuance of a permit to erect a new ground sign meets with the intent of the Board of County Commissioners' actions on June 25, 2002 when they directed the County Manager to re~instate a sign permit for an existing ground sign currently located at 7770 Preserve Lane which had been previously revoked by staff. 4/8/2008 9:00:00 AM Prepared By Susan Murray, AICP Community Development & Environmental Services Zoning & Land Development Director Date Zoning & Land Development Review 3/26/20082:29:39 PM Approved By Susan Murray, AICP Community Development & Environmental Services Zoning & Land Development Director Date Zoning & land Development Review 3/26/20082:31 PM Approved By Judy Puig Community Development & Environmental Services Operations Analyst Community Development & Environmental Services Admin. Date 3/27/20084:08 PM Approved By Joseph K. Schmitt Community Development & Environmental Services Community Development & Environmental Services Adminstrator Date Community Development & Environmental Services Admin. 3/28/2008 1 :32 PM Approved By Jeff Klatzkow County Attorney Assistant County Attorney Date County Attorney Office 3/31/200810:14 AM Approved By OMS Coordinator Administrative Services Applications Analyst Date Information Technology 3/31/200810:28 AM Approved By John A. Yonkosky County Manager's Office Director of the Office of Management Date Office of Management & Budget 3/31/200810:33 AM Approved By Leo E. Ochs, Jr. Board of County Commissioners Deputy County Manager Date County Manager's Office 3/31/200811 :50 AM file:/IC:\AgendaTest\ExDort\ 1 04-Aoril%208.%202008\16.%20CONSENT%20AGENDA \ 10... 4121200R Agenda Item No. 16A14 April 8, 2008 Page 4 of 30 June 25, 2002 CHAIRMAN COLETTA: You're doing what we hired you to do. Someday I know I'm going to be very unhappy. Let's call the question. All those in favor indicate by saying "aye". COMMISSIONER CARTER: Aye. COMMISSIONER COYLE: Aye. COMMISSIONER HENNING: Aye. CHAIRMAN COLETTA: Opposed? COMMISSIONER FIALA: A very loud no. CHAIRMAN COLETTA: And would you please show that Commissioner is the descending very loud no. And what we're going to do is take a short break at this point in time to give our typist here a chance to take a break. Thereupon, (Brief recess was taken, after which the following proceedings were had.) Item #10H APPEAL OF TOWN MARKET PROJECT ADMINISTRATIVE SIGN PERMIT REVOCATION - APPROVAL TO REINSTATE ORIGINAL PERMIT CHAIRMAN COLETTA: Where are we? MR. MUDD: 10-H. This is an item that the County Attorney brought before the County Manager to put on the agenda. It's an appeal to the Board of County Commissioners of Town Market Project Administrative signed permit revocation for Mr. George Shami. Page 296 Agenda Item No. 16A14 April 8, 2008 Page 5 of 30 June 25, 2002 MR. MANALICH: Mr. Chairman, just as a brief introduction, I've placed on each of your materials, there are three items for your attention. One is Section 1.99 of the Land Development Code talking about appeals from signed permit and building permit revocation or other proceedings. The other two items, another section of the code was that Mr. Cuyler asked that that be passed out to you as well as the particular materials that consist of exhibits and a brief memorandum of law and argument prepared by Mr. Cuyler that you can follow along as he makes his presentation. With that being said, I guess I'll let Mr. Cuyler lead off unless a staff wishes to do otherwise. One other thing I should mention, we should approach this as a quasi-judicial proceeding. So I think we should commence by making any disclosures of any contacts that may have been made on this item to any of the Commissioners. CHAIRMAN COLETTA: Okay. Let's start with Commissioner Carter. COMMISSIONER CARTER: I have met with the Petitioner and his legal counsel, Mr. Cuyler. COMMISSIONER FIALA: I've met with him before, not recently. MR. CUYLER: No. I don't think any of the meetings have been recent. CHAIRMAN COLETTA: I need your help with this. Did we meet? I can't recall the meeting. You really leave a lasting . . ImpreSSIOn. MR. CUYLER: You may have met with the property owner, Mr. Chairman. I don't know if we met. I don't believe we did. Page 297 Agenda Item No. 16A14 April 8, 2008 Page 6 of 30 June 25, 2002 CHAIRMAN COLETTA: I may have met with the property owner. I'm sure that my calendar will verify that or prove me wrong. Commissioner Coyle. COMMISSIONER COYLE: I met with the property owner and with Mr. Cuyler. Commissioner Henning. COMMISSIONER HENNING: I have not met on this particular -- what is being asked of us today, but I have in the past. MR. CUYLER: If I may begin. CHAIRMAN COLETI A: Do we have to swear in all the people that wish to participate? MR. MANALICH: Yes, I think we should. Thereupon, (All speakers were sworn by the Court Reporter.) MR. CUYLER: We're not actually going to be presenting testimony today. This is an appellate mechanism. Still, that's fine. For the record, Ken Cuyler, with the law firm ofGoodlette, Coleman and Jones representing J.P. LLC ofthe Town Market Project. You only have one issue in front of you this evening and let me start by saying I am not unmindful of the fact that it is late in the evening. We will try to proceed as expeditiously as we can through this. This is obviously a critical issue to my client. I know we're all getting a little tired and I appreciate your patience. There's only one issue this evening and that's the signage issue. If you're aware there may be a couple of other issues with regard to this property, but those will be heard at a later time. The only thing we're dealing with this evening is the signage issue. And we do appreciate the opportunity to provide the property owners side publicly on this and to appeal the decision on the staff's Page 298 Agenda Item No. 16A14 April 8, 2008 Page 7 of 30 June 25, 2002 revocation of a permit that was issued for a sign and that permit was unrevoked. In a moment Dave Underhill from Banks Engineering and the project engineer will give you a little of the early background, only three or four minutes of discussion. It's very important to know how the property owner fIrst carne into this, and you know that part of the issue is that there was staff that was here at the beginning that is not here now and there have been changes to the interpretation. I think several other important things before Mr. Underhill stands up is that the property that was purchased was actually purchased after this property owner went into the County to determine what he could do, what type of uses he wanted to do, how much property it would take, and then he went out and purchased the property in reliance on those discussions with staff. Secondly, there was a site development plan that was approved in May of 200 I, just to give you a chronological background. The building permit was issued and the Town Market Project was built at a cost of several million dollars. A sign permit was issued on December 3rd, 2001. The sign was ordered from Sign Craft and it was fabricated. I believe in February, 2002, somewhere around there, which as, you know, four months ago or so, staff took the position that the sign that had been permitted which was 15 foot in height with 80 square foot of face area was not allowable and they revoked the sign, This was directly contrary, the interpretation that led to that revocation, was directly contrary to all of the County interpretation that had been made from November of 2000 up to that point, February of 2002. L Page 299 Agenda Item No. 16A14 April 8, 2008 Page 8 of 30 June 25, 2002 Staffs legal position, and I don't think there's any questions about this, staffs legal position is that the property is either an outparcel or the project is a quote, convenience store with gas pumps. And the relevance of that is, if it falls into either of those two categories, then the sign for the project is limited to eight feet in height and 60 square feet in face area. So that's really the issue we're talking about; 15 foot versus eight foot, 80 square feet versus 60 square feet. In order for the lower sign to be required, it has to fall into one of those two categories, otherwise the larger sign is allowed for all of these types of uses. We intend to show you over the next few minutes that staff is legally incorrect and there's no basis to support permit revocation. But before Mr. Banks speaks, I want you to know one very important thing; that is if these interpretations had been made by staff when the property owner first came into the County, then under those circumstances, even though in my opinion the interpretation would still be legally incorrect, this property owner never would have proceeded with this project. He specifically went in to talk to staff to get these type of interpretations and he relied on them during the course of the project. So with that, I'm going to introduce David Underhill of Banks Engineering, and let him talk to you for just a few minutes to give you some idea of what the original conversations were and then I'll wrap up with regard to my appellate argument. MR. BANKS: Hi, my notes start off as good afternoon. We'll skip forward to good evening, Commissioners. My name is David Underhill, I'm a professional engineer with Banks Engineering, and I'm the person who designed and permitted this site work and aspects of the project. Page 300 Agenda Item No. 16A 14 April 8, 2008 Page 9 of 30 June 25, 2002 I want to go through some of the background in how the process -- how the project carried through the process. It started as with any project in Collier County, you're required to have a mandatory SDP preapplication meeting with staff. Basically, you go in and you get to ask the staff the questions that you want. We brought in a site plan and a floor plan and met with staff, went through what we felt were the key issues for the project and also the unique nature of the building and the use. The key issues that we had identified were parking, the landscaping, the signage and the impact fees. We took our plans in, met with staff, got a lot of good input from them and we really took that information to heart. . We went back, we incorporated their our comments into our preliminary design before we ever submitted our application and we .J-.. checked through the code to make sure we agreed with whatever interpretation they gave us, and where necessary, had follow-up meetings. We had follow-up meetings with the landscape reviewers, the planners, and, you know, really went through this project with a fine tooth comb before it was ever submitted, These were critical issues that were literally hundreds of thousands of dollars and affected the size of the property, the uses and some significant money on a project that is this size, fairly small in nature. Throughout this process, we obtained reasonable and consistent interpretations that the project was, in fact, much more than a convenience store with gas. And that staff agreed with us that the project would not be subject to the most stringent interpretation ofthe code, that it was simply a gas station. Page 301 Agenda Item No. 16A14 April 8, 2008 Page 12 of 30 June 25,2002 The second one I think staff is probably relying on a little more heavily is the term convenient store with gas pumps. Again, this is not defined in the Land Development Code, not defined in the PUD, within which this parcel is located. Mr. Underhill explained that the property owner went to great lengths to ensure that his property was not going to be classified as a convenience store with gas pumps for a number of different reasons. He went in originally to get those determinations from staff. You know, and I looked to see whether there were any other indications that those convenience stores with gas pumps regulations were not applied to the property and one of the most basic Land Development Code regulations, and that is parking, was not determined for this project or applied consistent with that interpretation. The interpretation is that it is a convenience store with gas pumps, This is an 11,200 square foot building. If you take the convenience store parking requirements, yet, one space per 200 square feet, you have a space for every two seats for a food establishment, when you add those up, there's 66 parking spaces that would be required for this project under the parking for a convenience store, convenience store with gas pumps. This project was approved with 47 parking spaces. And the reason that it was approved with 47 parking spaces, and you can't see it in the appeal document because it's probably too small, but if you wish to see it, I can get you a copy right now, the parking was determined on per use basis. So many square feet of a bakery at certain number of parking places, so much of convenience, so many square feet of food, so many square feet of bank, so many square feet of dry cleaner. It was fixed -- it was figured on a mixed-use basis. It was not calculated on a convenience store with gas pumps criteria. Page 304 -j Agenda Item No. 16A14 April 8, 2008 Page 13 of 30 June 25, 2002 And I would suggest to you even more importantly, common sense indicates that this is not a convenience store with gas pumps. You've been in 7-Elevens with glass pumps, you have been in Hess with gas pumps, Mobil stations with gas pumps. Those are usually an average of 3,000 square feet. Some are smaller. Some are 1,200 square feet. Rarely do they get much over 4,000 square feet. This building is 11,200 square feet. How many convenience stores have you seen that you've seen are that large? How many convenience stores with gas pumps where you've seen offices on the second floor? How many have you seen with a drive-thru banking facility? How many have you seen with a copy center within it? How many have you seen with a dry cleaner dropoff and pickup? The conclusion has to be that it's not a convenience store with gas pumps. It is a new animal. I don't know whether you've been out there or not. I went out there yesterday for the first time. It literally is a new facility. I've never seen anything like it in Collier County. I've never seen anything like it anywhere. It's a fairly large facility. It does have gas pumps. Obviously, there's a convenience aspect to it. That's what most people go into business for is to make a product convenient for their customers. But it's just something new and I think staff, with all due respect to staff, they work very hard, they do a very good job. I will tell you, I would not be here had we not talked about this thoroughly with staff. You are our last resort to this issue. But things come up and they don't fit in the Land Development Code. They don't fit into the little slot that they need to. I know there's a lot more concern about broad interpretations then there used to be. But everything doesn't fit in. .~ Page 305 Agenda Item No. 16A14 April 8, 2008 Page 14 of 30 June 25, 2002 For example, unfortunately, I'm old enough to remember when they didn't have drive-thru windows at fast food places. As a matter of fact, I remember when they didn't have fast food places. COMMISSIONER FIALA: Way back then. MR. CUYLER: Believe it or not. Cell towers, satellite dishes on homes, new things pop up, and what do you do? You try to do the best you can to fit them under the proper category and then you change your regulations and you catch up. You can't be ahead of everything there is. There's also an equity part of this. I think that those arguments indicate that staff is technically wrong in their interpretation. It is not an outparcel. It's not a convenience store with gas pumps. If that's the answer, then the property owner is entitled to the larger sign. You need to keep in mind that these are all interpretations. It is not in black and white. It is not defined and because of that we're not saying that staff couldn't make an interpretation on it, but it's just an interpretation. The original staff made an interpretation. I don't think their interpretation is incorrect. I think it was correct. But even if they were close, there's an equitable side to this and that is the property owner for a year and a half, for almost two years, relied on the interpretations that have been provided by staff. It is simply inequitable. It is simply unfair to get to the very end of a project, where the building is actually built, a sign permit is actually issued, and then to say, no, we're changing our interpretation. And believe me, if you look in there, you won't find the exact answer. It's an interpretation. On behalf of the property owner, I would sincerely request that you in any way you see fit, I don't care how you have to characterize it. Staff does the best job in the world. We're not going to contest Page 306 Agenda Item No. 16A14 April 8, 2008 Page 15 of 30 June 25, 2002 that, but this property owner needs the sign he was originally permitted for and that is what we're asking for. COMMISSIONER HENNING: Mr. Schmitt, could you shed some light on the subject, please. MR. SCHMITT: For the record, Joe Schmitt, Administrator of Community Development and Environmental Services. I appreciate Mr. Cuyler's rundown. He did a very thorough job. Just to reiterate, this is an issue concerning a size ofa sign. A 15-foot high sign, 80-square- foot dimension versus the eight foot, 60 square feet. I'm passing out some bullets just so you can follow along in the history of this. Yes, in August of 2000, Mr. Shami was advised that this convenience store, as it was called then, on lmmokalee Road could have a 15-foot sign. And that decision was made by the team in the building and basically in the Planning Department where they determined because of the uniqueness of this projectthat a 15-foot sign was the appropriate sign. At that time Mr. Shami defined his business as mixed-use retail facility, And I like the analogy that Mr. Cuyler used because he talked about, this is a different animal, but we only have so many cages we can put animals in. And we had to put this animal in the cage. And that cage had to be one of two things, a convenience store with gas station or a shopping center. I'm putting on the visualizer. There are gas pumps out in front of the facility. Basically it is a gas station. Here is another one. Page 307 Agenda Item No. 16A14 April 8, 2008 Page 16 of 30 June 25, 2002 And principally, we understood from a marketing perspective one of the primary portions of this business was the gas station, which is shown here as Amoco. In July 2001, his contract submitted for a permit for a sign, and the LDC clearly denotes that it can only be eight foot high for a gas station, and that was denied. Faced with the conflicting guidance, Mr. Shami met with the staff, it was reassessed and they determined that, in fact, he could have the 15-foot sign. So Mr. Cuyler is correct. So in December 3rd, 2001, he was issued a permit for the 15- foot sign. We received a complaint from our code enforcement section based on that permit. I don't know what the genesis of that complaint was, but we did receive a complaint and principally had to do with the fact that we are issuing a sign permit for a gas station that exceeded the LDC standards. So on February 6th, we revoked the permit. Now, the reality is, I met with several times on at least four different occasions with Mr. Shami and his staff and you know this project has been before you in the past. It was recommended because of the uniqueness of this project that a developer submit a variance. And as you note in the last paragraph, I stated there that basically they would submit for a variance, given the history of this, understanding the fact that the staff did make a commitment or at least a projected l5-foot sign was a correct sign and we reversed based on our reassessment ofthe situation. And I said that I would personally brief each of you on the background and history and certainly the mitigating -- extenuating and mitigating circumstances that got the developer in this position. And I recommended that we submit a variance and proceed through the variance process through the Planning Commission and Page 308 Agenda Item No. 16A14 April 8, 2008 Page 17 of 30 June 25, 2002 on to the Board. That has yet to be initiated. Why? I don't know. That is something you'd have to ask Mr. Cuyler or the developer. Probably the second and more prudent measure would have been to just go in and amend the PUD, the projects PUD and provide a comprehensive plan pursuant to the Land Development Code and under 2.5.5.2.6 or.5.6. So those were the two recommendations. Yes, staff did advise the client early or at least the applicant early on that the sign was correct. That opinion was changed based on the fact that we could only fit this unique project -- and it is classified as an upscale convenience store and it is almost twice the size of a typical convenience store and we recognize that. But it is not a shopping center. It's a convenience store with gas pumps and we know -- we talked to the applicant about mixed-use. But the mixed-use as a category when we assessed the impact fees. But from a standpoint of application of the Land Development Code when it concerns signs, that's where we put it. Did it warrant consideration coming before you all as a request for variance? Yes. And that is still the position of the staff that we look at this either through a request for a variance or to amend the LDC from the -- at least from the aspect of a comprehensive sign plan. Subject to your questions that's pretty much it. Unless you want to get into some legal aspects of it, Patrick White, Assistant County Attorney can talk about some ofthe specifics with -- as far as land use requirement as defined from a legal perspective. CHAIRMAN COLETTA: Commissioner Coyle. COMMISSIONER COYLE: There was a sign on the picture you showed us. Is that the sign we're talking about? MR. SCHMITT: No, sir. COMMISSIONER COYLE: So that sign is okay? Page 309 Agenda Item No. 16A14 April 8, 2008 Page 18 of 30 June 25, 2002 MR. SCHMITT: That sign is attached to -- the sign we're talking about and I had it here, that's basically what was submitted which would indicate, I think -- and I would have to ask Mr. Cuyler or Mr. Shami, but Subway, the bakery and some ofthe other things were just examples, there are some internal -- these are all internal operations within the -- under one roof. But basically that was the sign. So it's a pole sign that was eight feet versus the 15 feet. COMMISSIONER COYLE: Has the sign been manufactured? MR. SCHMITT: My understanding, the sign has been manufactured and already paid for. But back when we notified the developer, this was back in January when this first came up, and we notified the developer, my understanding at that time, we had not yet paid for the sign but it was ordered. There was already a commitment made. And that was part of the commitment I made when I presented this in front of the Board in January that I would ensure that each of you understood the history of this as what I would call extenuating and mitigating circumstances involving the purchase and how the developer got in the position he got into and some of the justifications as to why a variance certainly would be in order with this type of project. COMMISSIONER COYLE: There are other issues here with respect to impact fees. This is about one specific issue? MR. SCHMITT: This is the one specific issue on the revocation of the permit. The impact fees are other issues that were identified January. Those impact fees have been paid, but paid under protest. COMMISSIONER COYLE: Is any decision we make with respect to this issue today in any way relevant to the impact fee issue? Page 310 Agenda Item No. 16A 14 April 8, 2008 Page 19 of 30 June 25, 2002 If we make this decision here and agree with Mr. Cuyler that this is not a convenience store with a gas station and we permit this sign, do we then establish this as something other than we originally zoned it and for which we charge the impact fee? MR. SCHMITT: I'll have to pass that for legal opinion. He's frowning, Mr. White. MR. WHITE: Good evening, Assistant County Attorney, Patrick White. I'm going to advise you that it does not, but I suspect that you may hear as part of the appeal from Mr. Cuyler subsequent to today that it does. But in our opinion, those are separate matters. They are regulations that arise from different reasons, for different reasons and serve different purposes, but that's the best I can tell you today. COMMISSIONER HENNING: I would imagine if we're going to consider this and not the variance route to approve it, it would have to be -- I don't think we need to say in a motion why we -- if we had any fmdings or that, so it doesn't link the sign to impact fees. MR. SCHMITT: Just to clarify the point here. You would be reinstating the permit that was revoked that was the plea from -- so it would be not approving -- what you would be doing is telling Community Development to reinstate the permit. MR. MANALICH: Commissioner, just for clarification, it would be my position that the way this matter is postured here today, obviously, it's of concern to the Commission, I think we really need to make the decision based on the revocation and the criteria as argued both by staff and Mr. Cuyler and not base it on the impact fee determination that will have to fall on its own different proceeding, but I don't think it should be linked to this decision. This decision should be made based on the revocation and the criteria for signage. Page 311 Agenda Item No. 16A14 April 8, 2008 Page 20 of 30 June 25, 2002 COMMISSIONER HENNING: The question I have for Mr. White is section 1.9.9 in the Land Development Code, is this the proper procedure for us to take consideration on this matter? MR. WHITE: There's two answers to that, Commissioner, one is assuming that at some point in this process Mr. Cuyler indicates that he's waiving the requirement that the County would have had to provide him notice by registered mail, which I believe he will do. Secondly, it requires me to answer in a way that I'm not comfortable with, but I have to tell you what I analyze 1.9.9 as. I've likened it to a word game where you probably remember there were two lists of the words and the objective was to draw lines between one set on one side and connect it to the other and that's essentially the way this provision is constructed. There's a series of things on one side or actions on one side and on the other side. There's a list of the entities or individuals to whom you could go for relief. It's a very broad an open-ended provision. And in that regard it is our understanding that you can read it to say that there's a revocation of a permit. Then one of the places that you can take that to that would be considered appropriate is in front of the Board of County Commissioners. We get here in large measure because we do not have more typically where this matter would end and that would be the Board of Adjustment and Appeals. That happens because the new Florida building code went into effect in March and for reasons I'm unable to fathom. There's no continuing provision as there was for all the years I can remember in the Southern Building Code, predecessor to the Florida Building Code. It had for Board of Adjustment and Appeals. Page 312 Agenda Item No. 16A14 April 8, 2008 Page 21 of 30 June 25, 2002 So we are left essentially with no other alternative but to bring this to you with this round whole to fit Mr. Shami's square peg. I believe that the scope of your review is one that is limited to, as Mr. Manalich has indicated, of whether or not the County's revocation of the permit followed proper process and was supported the law and the facts. Mr. Cuyler's position is that it's not supported by either the law or arguably the facts as they apply. I believe that that is something I take exception to. I think we properly revoked it. I know for certain that if staff tells me this is a convenience store with gas pumps and there's no other pigeon hole or cage, as Administrator Schmitt has indicated to you, in which to put it, it doesn't by exception automatically rise into the provision that he's told you. Those provisions set maximum limits for all types of on-premise signs indicating that that's the maximum. It isn't just -- if you're not a convenience store and you're not an outparcel, then that is where you belong. I don't believe that you otherwise get there. Our job was to put it in a place where it best fit. Their job was to figure out the regulations that allowed them to do. And I can tell you that our staff probably -- I know to a certainty gave bad legal advice, gave bad factual advice. But unfortunately when we discovered that, we had no choice but to give the best and most correct legal advice based on the facts that we had before us. That is why we have a square peg in a round hole and look to you to provide some relief, but the opportunity for that relief is limited by the fact that you have to determine whether we properly revoked the sign permit or not. Page 313 Agenda Item No. 16A14 April 8, 2008 Page 22 of 30 June 25, 2002 And my analysis that essentially ends up with does it fit? Is it a convenience store with gas pumps, yes or no? If it is, then those are the limits it was supposed to meet. CHAIRMAN COLETTA: We're going to go to Commissioner Coyle and work right on down the line here. COMMISSIONER COYLE: If you'll permit me, I'm going to digress just a little bit, but it's going to lead somewhere, I think. Can you tell me why a 15-foot sign is essential to the success of this business? MR. CUYLER: Have you been out to the premise, Commissioner? COMMISSIONER COYLE: Yes. MR. CUYLER: It is set off the property -- it is set off the right- of-way. It is not directly adjacent to the right-of-way. And the property owner is absolutely convinced that the eight- foot sign is not going to be visible enough for people moving down Immokalee Road in the speeds that they move down Immokalee Road. He considers it is absolutely essential and this business to date based on no sign indicates that signage is a critical element. As a matter of fact, I haven't pointed this out, but the Town Market banker attends these hearings. That is how important these hearings are. He's here tonight. He's been at prior hearings as well. And I would like to address a couple of things that Mr. White said at the appropriate time whenever you're through with your questioning. MR. SCHMITT: If I could add from a perspective, we understood where this is located. Of course, there's the canal between Immokalee Road and the Town Center. And again, and that Page 314 Agenda Item No. 16A 14 April 8, 2008 Page 23 of 30 June 25, 2002 was one issue that would have been introduced had there been a request for a variance. So I can tell you, I keep on going back to this is a unique situation where a variance would have been the appropriate avenue to pursue and certainly we probably would not be here today had that been initiated when this first came before you in February. But that was a choice only counsel and the developer can make. CHAIRMAN COLETTA: We can move down the line here. COMMISSIONER FIALA: I wanted to see that picture again where it says Amoco. Is that sitting in front ofthe shopping center? I was just trying to take a look at it. Although, I've been by it, I didn't remember -- MR. SCHMITT: This is it here, but that is the portion of it. That's the gas pumps itself. And so you can see where the orientation is. This is kind of from the side there. There are the pumps, so I guess those are the -- and you're looking at. COMMISSIONER FIALA: It looks like an outparcel. Is that what it is? MR. SCHMITT: That, in effect, are the gas pumps which are part of the -- I'll call it a convenience store with gas pumps. It's a principle part ofthis business. It's the magnet that draws the business, at least from a perspective, if you're evaluating land use, any other convenience store is going to look at the same opportunity. So that's what initiated the complaint through code enforcement which opened the investigation, which lead to where we are today. CHAIRMAN COLETTA: Commissioner Carter. MR. SCHMITT: I also have with me here Mike Venari here, he is the permitting official if you have any questions from a perspective from sign permitting and review. Page 315 Agenda Item No. 16A14 April 8, 2008 Page 24 of 30 June 25, 2002 MR. MANALICH: While Mr. Schmitt is at the podium, it is my responsibility to make sure that there's competent substantial evidence in the record however you decide. And Mr. Cuyler has articulated a number of points as to why he believes that this structure does not fit into the outparcel or convenience store category. I would like, Mr. Schmitt, if you could, summarize basically how it is that staff arrives at the position that it is a convenience store with the gas pumps? What are the things you're looking at there so it's clear for the record? I don't mean to put you on the spot. COMMISSIONER CARTER: It's a good thing you did because I was. MR. SCHMITT: Actually, when we review the list of permitted uses, that's the best fit for this business from a staffs analysis based on the operations that are involved in this business and the adjacent gas pumps. And I understand from Mr. Cuyler's perspective it's like he's equating it to Costco or K-Mart, if they had an island and they sold gas, would you consider that a convenience store with gas pumps? No. But this is not a large shopping center. Mr. Cuyler's words, it is not a shopping center. It is a rather unique upscale convenience store with gas pumps. We don't have a cage to put this animal in and that was the best fit. So, for the record, I guess it's based on the best of the defined land use in the Land Development Code. MR. MUDD: Mr. Chairman, let me help. We're spending a lot of time on a sign. I got nothing against Mr. Cuyler. He gave a pretty good argument. I would tell you that an appeal, and I just talked to Ramiro, an appeal is an appropriate place for a Petitioner, but Mr. Shami can Page 316 Agenda Item No. 16A 14 April 8, 2008 Page 25 of 30 June 25, 2002 come in with his legal help or without his legal help and basically say, we want to appeal a staff decision. I will say to you if Mr. Shami had come in with a variance, the staff would be sitting here recommending that he get the variance, so we're playing this and that. Now, there's one other piece to this. I want to make sure you know it and Mr. Schmitt has got it down here about to amend the PUD for a sign plan. And there's an issue with the directory sign right now and Mr. Cuyler knows that. And that's basically the staff saying, hey, we can get done with this directory sign and this sign and get it all done in one pIece. I will tell you today if this would have came in with a variance, the staff would have been sitting here today saying, we want it to be an 80- foot sign and 15 foot tall because this is what the issue is. I think -- Ken, you tell me if I'm wrong. I think we talked about this. MR. CUYLER: No. I readily concede that the staff had indicated that a variance could be processed. I was under the impression that at least one Commissioner said if this variance doesn't meet the variance requirements, I'm not going to vote for it. Mr. Shami recalls another Commissioner saying that. But the reason I did not file a variance, not because I want to go through this process, I don't want you to determine anything other than Mr. Shami is entitled to his sign. But a variance is a legal process that has certain underpinnings. If staffs interpretation were to be found correct and that the appropriate sign is supposed to be eight feet with 60-square feet of face, what exactly am I supposed to argue to you is the hardship that we would be entitled other than to get Mr. Shami what he deserves Page 317 Agenda Item No. 16A14 April 8, 2008 Page 26 of 30 June 25, 2002 and has deserved from the beginning which is the sign that was permitted and you have the ability to do that today. I don't want you to blame staff. I don't care whether you blame staff. All Mr. Shami wants is what he had for a year and a half before it was revoked. I'm not saying anybody did anything wrong. I'm not blaming Mr. Schmitt. CHAIRMAN COLETTA: Mr. Cuyler I hear you loud and clear. . Let me tell you something. We're starting to repeat ourselves. We're getting repetitious over and over again. Is there a motion on the part of this Commission so we can move forward and get into discussion on how we're going to resolve this or bring it to closure? COMMlSIONER COYLE: I move we approve it. CHAIRMAN COLETTA: So we have a motion to approve from Commissioner Coyle. Do we have a second? COMMISSIONER CARTER: Second for discussion. CHAIRMAN COLETTA: I'm telling you -- I'm reaching the end of the -- Commissioner Carter made the second. Open for discussion. We'll start with Commissioner Henning. Anything you'd like to put into this? COMMISSIONER HENNING: I'd like to hear from the second motion. COMMISSIONER CARTER: I'm going to go to the ftrst. CHAIRMAN COLETTA: We're looking for you for guidance on this. COMMISSIONER COYLE: My feeling is that at some point in time, the Petitioner has the right to rely upon what the Government has told him. And this really has been a difficult thing for everyone to deal with. It is unique. We don't have a slot to put it in. Page 3]8 Agenda Item No. 16A14 April 8, 2008 Page 27 of 30 June 25, 2002 And I am persuaded by the County manager's remark that if it were coming through a different process, that the staff would be supporting it from the standpoint of fairness, I believe. And if that is the case, then I would like to proceed on that basis. And I don't see that this sign is going to really cause irreparable harm to anybody. The gentlemen has spent money based upon his understanding of what he could do, and I think we should let him use the sign he's purchased. CHAIRMAN COLETTA: Okay. Commissioner Carter, we'll go to you. COMMISSIONER CARTER: Quick question. When you apply for variance, there's a fee. Will the staff waive the variance fee because of mistakes made on the part of the staff? MR. SCHMITT: That issue was discussed when we first talked about this. I have no authority to waive a fee. I would have to come back to you and that would have to come out of the general fund to reimburse the Development Fund. COMMISSIONER CARTER: Knowing everything that you know, would you have made that recommendation? I don't want to put words in your mouth. MR. SCHMITT: Yes. I made that commitment back in January. Now, of course, the only thing that we're doing now that we wouldn't do under the variance is canvass the residents or other businesses within 150 feet or is it 300 in this case? I'm not sure which. But you would have the opportunity for other public input. CHAIRMAN COLETTA: Forgive me, Commissioner Carter, I think the motion was to reinstate his permit not to go through the variance procedure. Page 319 Agenda Item No. 16A14 April 8, 2008 Page 28 of 30 June 25, 2002 COMMISSIONER CARTER: Okay. You just answered part of it. I'm not going to belabor it. I agree. I don't like the process. I hear what the attorney is telling me. He didn't think he can get the votes for the variance. We're getting into which system did you apply to get to figure out what animal you're going to put into a cage. I have no problem with it. Therefore, my second stands for approval of the Petitioner's request. CHAIRMAN COLETTA: Commissioner Fiala, do you have any last words on this? COMMISSIONER FIALA: No. CHAIRMAN COLETTA: I don't either. Commissioner Henning. COMMISSIONER HENNING: No, sir. CHAIRMAN COLETTA: Let's go from there to a vote. MR. MUDD: Commissioner, I want to make sure this appeal is to reinstate the original permit. CHAIRMAN COLETTA: That's the way I understood it. COMMISSIONER CARTER: That's it. CHAIRMAN COLETTA: All those in favor indicate by saying, "aye". COMMISSIONER CARTER: Aye. COMMISSIONER FIALA: Aye. COMMISSIONER HENNING: Aye. COMMISSIONER COYLE: Aye. CHAIRMAN COLETTA: The ayes have it 5-0. COMMISSIONER HENNING: Next item? Item #101 Page 320 5'-4" bp . 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