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Agenda 01/15/2008 Item #12A Agenda Item No. 12A January 15, 2008 SUITE. 20 age 1 0 :34 711 FIFTH AVENUE SOUTH NAPLES. FL 34102-6628 TEL: 239-430-7070 FA;{: 239-213-1970 www.rkmc.com iOBINS, KAPLAN, MILLER & CIRESI LLP II II II II II II II II II II II II II II II II .- --- ATTORNEYS AT LAW LAWRENCE A. FARESE Board Certified Civil Trial Lawyer Board Certified Busintss Litigation Lawyer Certified Circuit Court Mediator 239-213-1973 LAFarelle@rkmc.eom December 7, 2007 HAND DELIVERY RECEIVED OFFICE OF THE COUNTY MANAGER DEe 0 7 2U07 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 34 112 ACTION Re: Richland POO (Pebblebrooke) / Olde Cypress POO 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 POO (pebblebrooke), including the approval of the site development plan for the Pebblebrooke Plaza in Pebblebrooke Commercial Phase IV and the permitting 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 Olde Cypress POO, 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 Marjorie Student of the Collier County Attorney's Office; Patrick White, formerly of the Collier County Attorney's Office; Jim Mudd, Collier County Manager; Joe Schmitt, CDES Director; Susan Murray Istenes, Director of Zoning; Ross Gochenaur, Planning Manager; Ray Bellows, Zoning Manager; John Houldsworth, Senior Engineer; Michael Sawyer, Senior Planner; Angel Tarpley, Planning Technician; Karen Bishop ofPMS, Inc.; Craig Grider, Esq. and Richard Yovanovich, Esq. of Goodlette, Coleman & Johnson; Clay Brooker, Esq,; Bob Delaney of Stock Development; Diane Ebert of Olde Cypress Homeowners Association; Carole KolfIat, and others. The following will summarize our findings and conclusions based on our investigation, liT LAN T A . B 0 S TON . LOS A N G , L , S . M INN , A POL I S I NAP L , 5 I S A I N T P A U L . WAS N I N GTON,D.C. I I I I I I I I I I I I I I I I I I I Agenda Item No. 12A January 15, 2008 Page 2 of 34 Board of County Commissioners December 7, 2007 Page 2 I. Richland (Pebhlebrooke) PUD The Richland POO consists of approximately 150 acres located on the southwest comer of Immokalee Road and Collier Boulevard (951). The Richland POO was originaliy 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 ofPMS, 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 approximatefy 3.2 acres by extending the commercial tract southward aiong Collier Boulevard (See Exhibit A). Chahram Badamtchian of CDES was assigned as the Principal Planner for the POO Amendment (pOOA-2001-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 aiso going through a divorce. Prior to his termination, Mr. Badamtchian prepared a Staff Summary Report to the Collier County Planning Commission ("CCPC") 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 to the BCC with a recommendation for approval. The proposed Amended PUD reduced the residential acreage from 128+/- to 125+/-, and increased the commercial acreage from 21.2 acres to 25 acres; reduced the total number of residential units from 650 to 400 units; provided for landscaping in Section 2-19 of the PUD 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 4-50 a maximum building height of 50 feet (50') (consistent with the height limitation in the then current PUD document for the remaining commercial space); and 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 Agenda item No. 12A January 15, 2008 PagE, 3 of 34 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 PUD 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 defined 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 Approval The Richland PUD Amendment went before the CCPC at its meeting of January 17, 2002. Marjorie Student, the Assistant County Attorney who had been assigned to review the Richland PUD Amendment, was not in attendance at this meeting due to a previous commitment to attend a land use seminar in the Orlando area. Assistant County Attorney Patrick White attended the CCPC meeting in her piace. 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 30-foot buffer between the proposed additionai commercial acreage and the residential boundary line to the Pebblebrooke Subdivision to the south. This conceptual plan. which later became Exhibit B to the approved and recorded Richland PUD 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 doubtfui that staff had much time, if any, to review the conceptuai 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 30-foot Type "B" Buffer with vegetation and a six-foot wall on top of a landscaped berm along the southern boundary of the commerciai 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 conceptuai plan nor in the text of the PUD. Nor is the height of the berm specified on the conceptual plan or the PUD. Karen Bishop orally described the berm to the CCPC as having a "3 to I slope," such that the berm would be three to four feet high at its I I I I I I I I I I I I I I I I I I I Agenda Item No. 12.:; January 15, 2008 Page 4 of 34 Board of County Commissioners December 7, 2007 Page 4 peak. A 6- foot wall on top of the berm would result in a height above grade of eight to ten feet. However, these specifications were not described in writing in the proposed PUD document, and were not specified on the conceptual plan. Several public speakers from the neighboring Pebblebrooke Subdivision expressed concern to the CCPC concerning building heights and anticipated uses. The minutes reflect that several members of the CCPC expressed similar concerns regarding building heights, maximum square footage of commercial space, and permitted uses. Of particular concern to several Commissioners was the desire to eliminate "Drinking Places" (SIC Code 5813) as a permitted use due to noise concerns of the neighboring residents. As a resuit, several agreements were made on the record by the owner's representative. One specific agreement was the reduction of permissible commercial structures from two stories to one story within the 3.2 acres abutting the Pebblebrooke Subdivision. The owner's representative was asked: COMMISSIONER BUDD: How about the request that buiidings located within the area of the 3.2 acres be limited to single story, the 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 the dumpsters be located outside the 3.2 acres that is going to become commercial. Is that acceptable? MS. BISHOP: I believe that's acceptable.... Another agreement was the elimination of several more intense commercial uses from the list of permitted uses. However, the owner's agent did not agree to eliminate "Drinking Places," suggesting instead that 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 other Commissioners) that Petition PUD-2001-AR-14694 be approved and forwarded to the BCC with a recommendation for approval with specific modifications and recommendations, including: (i) buffers to be located outside the 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 to 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, the following discussion occurred on the question of drinking establishments: i 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. think it's our position to put something like that in. personally would like to see it removed. I don't And I 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 that. My concern is not that people drink; that 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 peopie's morals. They can do what they want. 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 January 15, 2008 PiJge 5 of 34 I I I I I I I I I I I I I I I I I I I Agenda Item No. 12A January 15, 2008 Page 6 of 34 Board of County Commissioners December 7, 2007 Page 6 COMMISSIONER YOUNG: I think as long as restaurants -- CHAIRMAN ABERNATHY: So we have two. I think the motion can carry. I call the question. All in favor. (Unanimous response.) CHAIRMAN ABERNATHY: Opposed? Mr. Wolfley had a conflict, so he abstained. MR. BUDD: The motion carries? CHAIRMAN ABERNATHY: 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 CCPC 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 CCPC meeting. He did not have the benefit of reviewing CCPC minutes before making the changes to the PUD document and presenting it to the BCe. BCC Approval The Richland PUD Amendment was set as Agenda Item 8D for the February 12,2002 meeting of the BCe. On or about February 4, 2002, an Executive Summary prepared by Ray Bellows was submitted to 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. j 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 7 Agenda Item t'-~o. 12A January 15, 2008 Page 7 of 34 The Executive Summary advised the BCC that the CCPC had approved the Petition by a vote of 7 to 0 with a recommendation of approval subject to revising the list of permitted uses to eliminate some of the more intense uses, a maximum 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 following: 2-19 LANDSCAPING Landscaping shall 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 Tvpe "B" Buffer shall be provided alone: the tract boundary line separatine: the commercial and residential land use tracts. (See Exhibit "B") This buffer shall contain a 6-foot tall pre-cast concrete wall alone: 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 to 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 . I I- I I I I I I I I I I I I I I I I I Agenda Item No. 12A January 15, 2008 Page 8 of 34 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 PUD 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 dumosters shall be located or olaced within 100 feet of anv residential tract boundary 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 cepe meeting not to have any commercial trash dumpsters within the added 3.2 acres of commercial property. The Richiand POO rezone petition was heard at the February 12, 2002 BCe 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. Yovanovich was not present at the previous cepe meeting and had no involvement in the preparation of the POO document. Marjorie Student and David Weigel were present from the County Attorney's Office. There were no public speakers. Mr. Bellows advised the Bec of the results of the cepe 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 cepe 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. Staff is recommending approval. A number of County staff who were involved with this petition for a variety of reasons attended both the cepe and Bee meetings. No one corrected Mr. Bellows' misstatement at the hearing or pointed out to the Bee that in fact the cepe 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 Bee hearing, believing that everything had been changed as agreed. She also did not realize the inconsistency between staff s recommendation and the 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 9 Agenda Item No. 12A Janu3ry 15, 2008 Page 9 of 34 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 omlly 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 MaJjorie Student of the County Attorney's Office and Karen Bishop to "clean up" some "little things." Still the conflicts noted 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 MaIjorie M. Student. On February 20, 2002, the Ordinance was fjied 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 to the PUD since that time. SDP Approval for Pebblebrooke Commercial Phase IV On February 28, 2002 (about two weeks after the rezone was approved), Kenco Development, Inc. 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 retail/medical office building with a height of 29', 4" on the southernmost portion of the commercial property adjacent to the Pebblebrooke residentiai 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 30-foot buffer as depicted on Exhibit B to the PUD. Because the side setback requirement in the PUD was only 10 feet and 30 feet was provided, and because the . I I I I I I I I I I I I I I I I I I I Agenda Item No. 12A January 15, 2008 Page 10 of 34 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 beiieve 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 SDP 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 35 ft. 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 deveiopment 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 ievel two years eariier 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 CCPC meetings while reviewing an SDP 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 tabie 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 maximum height provided in the language of the PUD document (with or without the correction of the "scrivener's error" to 35 feet), the SDP was approved by stliff on December 6, 2004. Regarding the landscape buffer, the plans presented at pre-application meetings apparentiy 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 II 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 iandscape 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 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 II Agenda Item No. 12A January 15, 2008 Page 11 of 34 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 II of 15. As built, there is a drainage swaie between the commercial building and a smali berm under the landscape wall. (See photographs attached as Exhibit D). The wall itseif appears to be closer to 8 feet in height rather than 6, resulting in a total 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 principai 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. -1--- _ I I I I I I I I I I I I I I I I I I I Agenda Item No. 12A January 15, 2008 Page 12 of 34 Board of County Commissioners December 7, 2007 Page 12 Conclusions Based on our investigation, we have concluded the following: I. The approvai of two story commercial buildings in the Richland POO rezone resulted from human error and failure of communication. The CCPC 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 BCC or in the POO document presented t6 the BeC. As a result, the Bee approved a POO document allowing two story structures (up to 35 feet as discussed but 50 feet as written), without any knowledge that the eepe had recommended and the applicant had agreed otherwise. 2. There is no evidence that staff intentionally misled the BCe, or failed to correct the POO 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. Staff's error was compounded by the applicant's failure to: (i) confirm that the applicant's agreements with the eepe were properly reflected in a revised POO document; (ii) revise the conceptual plan to reflect a one story commercial building as opposed to a two story commercial building, and (iii) correct staff's presentation to the Bee regarding the eepc'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 ecpe and proceeded with development as permitted by the POO document actually recorded. 4. We find no fault on the part of staff in approving the SDP based on the POO document as recorded. A two story structure was specifically allowed by the text of the POO document, and Exhibit B to the POO showed a two story commercial buiiding. The POO document required a 30- foot setback or buffer from the property iine (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. 5. The "berm" as built is not the 3 to 4 foot berm discussed at the cepe meeting or shown on Exhibit B to the POO. Again, however, no dimensions are specified for the height of the berm either in the language of the PUD document or on the conceptuai 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 ofthe 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 January 15, 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 POO 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. Olde 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 POO, 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 POO 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 Aprii 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, 1999, 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 iots on Lone Pine Lane. Both repiats (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 building 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 setback 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 propertv lines." .fi I I- I I I I I I I I I I I I I I I I I Agenda Item No. 12A January 15. 2008 Page 14 of 34 Board of County Commissioners December 7, 2007 Page 14 The Grider Residence Craig Grider is an associate attorney with the law firm of Goodlette, Coleman & Johnson in Naples. Goodlette, Coleman, and Johnson is a firm of excellent reputation which devotes a substantial portion of its practice to real estate transactions and the representation of real estate developers. One of its clients is Stock Development Corporation, the current owner of Olde Cypress Development, Ltd. K.C. Stock became a limited partner in Olde Cypress Development, Ltd. at its formation in or about 1998. Stock Development, LLC later acquired the interests of Paul Hardy and Renee Tolson and became the sole General Partner in or about February, 2003. Craig Grider and his wife, Amber Grider, acquired Lot 28, Tract 5, Olde Cypress Unit Three, situated at 2949 Lone Pine Lane, from Olde Cypress Development, Ltd. on December 30, 2005. Lot 28 was an odd shaped lot on a portion of a cul-de-sac (see Exhibit G). It was the last lot available for sale on Lone Pine Lane, and the only vacant lot on the street at the time the Griders purchased it. The shape of the lot and the setback requirements made it difficult to design a home on the lot. In August of 2005, several months prior to purchasing the lot, Craig Grider spoke and exchanged e-mails with David Hedrich of County Staff, inquiring as to how the setbacks for the lot would be measured in view of its odd shape. Mr. Hedrich confirmed bye-mail dated August 29, 2005, that "[y]ou take the setback measurements from the cord line as opposed to the property line and/or back of curb, unless the PUD stipulates otherwise" (which in this case it does not). In November of 2005, Mr. Grider again contacted Mr. Hedrich with questions concerning the side yard setbacks. Mr. Grider pointed out that Lot 28 was on the cul-de-sac, so that it was his understanding that he would have two front yards and two side yards, instead of a rear yard. He stated that if this were accurate, the setbacks for the lot would be 25 feet on the two fronts and 5 feet on the two sides (referring to the PUD Document). He pointed out, however, that there was a 10-foot golf course easement platted on the rear of the lot. The e-mail continued: Also, the rear of the lot is preserve, not golf course. The developer has informed me that they will execute whatever documentation is required to waive any rights as to the golf course easement. What documentation would the County require, if any, from the developer to effectively waive any rights reserved in the golf course easement to allow me to use the 5' side yard setback instead of the 10' platted easement setback? I do not want to build any part of the actual home on the 10', but would like to extend the lanai, pool and screen cage. 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 15 Agenda Item No. 12A January 15, 2008 Page 15 of 34 If no documentation is necessary, can you confirm that the 5' side yard setback can be utilized on the "rear" of the lot? If easier, I would be happy to come down and discuss this with you in person. Having received no response from Mr. Hedrich by November 23, 2005, Mr. Grider resent his e-mail to Mr. Hedrich at a different e-mail address. Still not receiving a response, Mr. Grider called and spoke to John Houldsworth at the County, with whom Mr. Grider had dealt previously on a client matter. Mr. Houldsworth told Mr. Grider that the golf course easement was in favor of Olde Cypress Development, Ltd., not the County, and therefore a release of the easement signed by OIde Cypress Development, Ltd. and recorded in the Public Records would be sufficient to vacate the easement. Mr. Grider confirmed this communication bye-mail to Mr. Houldsworth on December 28, 2005, with a copy to-David Hedrich. The e-mail concludes with the following: Since the Lot is on a cul-de-sac, there are 2 front yards and 2 side yards for purposes of setbacks and once the release of the easement is recorded in the Public Records, the easement will be of no further force and effect and the side yard setbacks will be 5' each in accordance with the Olde Cypress PUD. I have copied David Hedrich on this correspondence to ensure everyone is in agreement on this matter. I would appreciate it if both of you could respond to this e-mail confirming the terms hereof at your earliest convenience. Thanks to both of you for your assistance on this matter. Mr. Houldsworth responded bye-mail on the same date confirming that he agreed that the recording of a release of easement by Olde Cypress Development, Ltd. was sufficient to vacate the easement for county permitting purposes. Mr. Houldsworth's e-mail response did not comment on the setback requirements, and we have not seen a response by Mr. Hedrich, but neither advised Mr. Grider that his understanding ofthe setback requirements was incorrect. The Griders closed on the purchase of their lot on December 30, 2005 with the understanding that the applicable setbacks were those described in Mr. Grider's e-maiI.Mr. Grider proceeded to obtain a Termination and Release of Golf Course Easement on Lot 28 from Olde Cypress Development, Ltd. The Termination and Release is dated June 13, 2006, and was recorded in the Public Records on June 16, 2006. It has been alleged by complaining neighbors that the termination of the golf course easement was done by the developer solely as a favor to Mr. Grider, a lawyer in the firm which represents the developer. While the relationship between the developer and the attorney likely facilitated this transaction, the fact remains that the golf course easement was of no use to the developer since the golf course had since been relocated to I I - I I I I I I I I I I I I I I I I I Agenda Item No. 12A January 15. 2008 Page 16 of 34 Board of County Commissioners December 7, 2007 Page 16 another area. We know of no prior instance in which an unrelated lot owner requested or was denied a release of the golf course easement. With the golf course easement eliminated, Mr. Grider's contractor, Keith Sowers of Sowers Construction, applied for a building permit on Lot 28 on June 21, 2006. The application showed two 25-foot front yard setbacks, and two 5-foot side yard setbacks. Planning Technician Angel Tarpley reviewed the application and boundary survey and concluded that Lot 28 was a corner lot simply by visual inspection of the survey. She has advised us that she had no communication with Grider or anyone on his behalf suggesting that the application be reviewed as a corner lot. She made that determination on her own in the ordinary course of business. Because it was being reviewed as a corner lot, county policy required a review by a second technician. Jennifer Breining did the second review and concurred with the determination. Angel Tarpley reviewed the setbacks against the PUD requirements, and stamped and approved the setbacks on the applicant's boundary survey showing two front yard setbacks of 25', and two side yard setbacks of 5'. The boundary survey and site plan showed a portion of the principal structure within 10.7 feet of the rear (side) property line adjoining Tract A. The boundary survey labeled Tract A as shown on the Plat of Olde Cypress Unit One, but did not identify Tract A as a preserve. Angel Tarpley has advised us that she was not aware that Tract A was a conservation area at the time she reviewed and approved the setbacks on the Grider permit application. As a result, she did not consider the 25' preserve setback contained in the LDC discussed below. After all other residential plan reviews were completed by County staff, the Building Permit for the Grider residence issued on October 19, 2006. By late June, 2007, the Grider residence, consisting of a two-story structure with approximately 3,800 square feet under air, was substantially completed. Melissa Showalter, the Griders' next store neighbor to the west, returned to her summer home in Naples to find the two story home set back 5 feet from her side yard, and 10.7 feet from the preserve. Ms. Showalter was upset that the Grider residence substantially impaired her view of the preserve and invaded her privacy, particularly around her pool area and her master bedroom which were clearly visible from a balcony and windows on the second story of the Grider residence. As a result, she complained to her neighborhood Homeowners Association and the County CDES. Ms. Showalter is the daughter of a sitting Planning Commissioner, Tor Kolflat. Mr. Kolflat made several calls on her behalf to several members of County staff, including Joe Schmitt, Susan Istenes, Ray Bellows, and Ross Gochenaur, questioning how the setbacks were determined and approved. At Mr. Kolflal's request, a meeting was held at CDES on July 17, 2007, attended by Joe Schmitt, Susan Istenes, Ross Gochenaur, Roland Holt, Alamar Finnegan, Angel Tarpley and several other staff members, Tor and Carole Kolflat, Melissa Showalter, and Diane Ebert. At this meeting, Mr. Kolflat argued that the Grider lot was not a corner lot and should not have been permitted as such. He asked staff to red tag the building, stop construction, and not issue a C.O. to Grider. I I I I I I I I I I I I I I I I I I I AGenda Item ~"jo. 12,A. - January 15, 2008 Page 17 of 34 Board of County Commissioners December 7, 2007 Page 17 Lot Line Adjustment/Corner Lot Controversy In response to Mr. Kolflat' s inquiry to Ross Gochenaur prior to the meeting, Mr. Gochenaur re-examined the Grider lot and agreed that it technically did not meet the definitional requirements of a corner lot. Section 6.3 of the LDC of 1991 defined a corner lot as: A lot located at the intersection of two or more streets. A lot abutting a curved street or streets shall be considered a corner lot if straight lines drawn from the foremost points of the side lot lines to the foremost point of the lot meet an interior angle ofless than 135 degrees. This definition was not carried forward into the current LDC. However, staff's policy is to apply to definitions in prior LDC's if not found in the current LDC. Using a protractor on the survey, Mr. Gochenaur determined (as had Mr. Kolflat) that the interior angle of the Grider lot was approximately 1400. Thus, after reconsideration, staff determined that its earlier review of the permit application and setback approval as a corner lot were in error. Unless treated as a comer lot, the Grider residence, as built, would violate the 20-foot rear yard setback in the PUD, let alone the 25-foot preserve setback discussed below. To address the technical definition of a "corner lot," Mr. Grider applied for a lot line adjustment as an insubstantial boundary change pursuant to Section 10.02.028.8 of the LDC. That is, he agreed with his neighbor, Mr. Dunkelberger, to deed a small portion of the "neck" along the cul-de-sac to Mr. Dunkelberger. By doing so, the internal angle of the Grider lot would be reduced to 1340, thereby meeting the definition of a corner lot. The request for a lot line adjustment was reviewed by several members of staff at CDES, including Tom Kuck, Stan Chrzanowski, John Houldsworth, Joe Schmitt, Ross Gochenaur, Susan Istenes, and others. By letter dated August 16, 2007 from Stan Chrzanowski, Senior Engineer, Mr. Grider was advised that his request for a lot line adjustment was approved. A Lot Line Adjustment Affidavit was reviewed and approved by Mr. Chrzanowski on August 22, 2007 and recorded in the land records. A Quit Claim Deed from the Griders to Dunkelberger of 170 square feet of Lot 28 was also recorded in the land records on August 29, 2007. A sketch of the Grider lot, after adjustment, is attached as Exhibit I. The approval of the lot line adjustment has been administratively appealed by Ms. Showalter through her counsel, and the appeal is pending. The Sidewalk Controversy During the construction of the Grider residence, the Griders wished to remove the existing sidewalk which ran in front of the residence and terminated into a grass area approximately one-quarter of the way around the cul-de-sac (Exhibit J). He approached the Olde Cypress Architectural Review Board (which was controlled by the developer, Stock _---.!! I I I I I I I I I I I I I I I I I I I Agenda Item No. 12A January 15. 2008 Page 18 of 34 Board of County Commissioners December 7, 2007 Page 18 Development), the Olde Cypress Master Association (also controlled by Stock Development), and Olde Cypress Homeowners Association (which had been turned over to the residents). The request to Stock Development was made to Bob Delaney, ARB Coordinator, and Sandy Houldsworth, Vice President of Stock Development in charge of the master association. Sandy Houldsworth is the spouse of John Houldsworth of CDES. Sandy Houldsworth called Diane Ebert, the President of Olde Cypress Homeowners Association, to advise her that Craig Grider had requested permission to remove the sidewalk in front of his home. She requested that Diane Ebert meet with her and Mr. Grider at the site. Ms. Ebert could not attend due to a death in her family, and as a result asked James Dunkelberger, a member of the Architectural Review Committee of the Homeowners Association, to attend the meeting in her place. Mr. Grider met with Bob Delaney, Sandy Houldsworth, and James Dunkelberger at the site to show them the area of the sidewalk proposed for removal. It was agreed at the meeting that the sidewalk could terminate at the driveway of the Grider residence if approved by the County. If the County required that the sidewalk extend beyond the driveway to empty into the cul-de-sac, Grider agreed that he would do so. By letter dated January 15,2007, Bob Delaney of Stock Community Services confirmed to Craig Grider that: "Upon review of your request to remove the existing sidewalk in front of Lot 28 in Olde Cypress, the Architectural Review Board, Olde Cypress Master, and Olde Cypress HOA has approved your request with the appropriate governmental approvals." On January 26, 2007, Mr. Grider contacted Russ Muller of County Transportation Department requesting approval for the removal of the portion of the sidewalk. Mr. Grider's engineers at Waldrop Engineering submitted drawings showing the existing sidewalk to be removed (Exhibit J). The request was reviewed by several members of County staff, including John Houldsworth. Mr. Houldsworth's initial reaction was to require that the sidewalk not terminate at the Grider driveway, but that it extend approximately 35 to 40 feet to the cul-de-sac "neck" with a handicap ramp out to the street. On April 23, 2007, Kristina Carroll of Waldrop Engineering responded bye-mail to John Houldsworth's suggestion to extend the sidewalk to the street by stating that: We would be willing to extend the sidewalk to the neck of the cul-de-sac however we feel it is not necessary to add an HC ramp since there is no sidewalk on the other side of the street. In addition, a ramp is currently not provided where the sidewalk ends on the Grider property. Since there did not appear to be any objection at the time by anyone, including the HOA that had control over the sidewalk, County staff approved the request. Waldrop Engineering was formally notified of the approval of the plans by letter dated May 21, 2007, signed by John - j 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 19 Agend3 item ~~o. '12/-\ January 15_ 2008 Pags 19 of 34 Houldsworth, Senior Engineer. Based on that approval, Grider's contractors removed the existing sidewalk beyond his driveway as shown on the plans. On July 18,2007, Diane Ebert wrote to Joe Schmitt advising him that the Olde Cypress Homeowners Association did not in fact give permission for the removal of the sidewalk. On behalf of the HOA, Ms. Ebert requested "that Collier County rescind this permit and have the entire sidewalk restored to its original location and condition." Ms. Ebert explained to us during interviews that Mr. Dunkelberger was a representative of the HOA Architectural Review Committee, but did not have authority to speak for the committee or to give approval on behalf of the HOA. The Board ofthe HOA never approved the Grider sidewalk removal request. As a result of the objection by the HOA, the County revoked its previous letter of no objection. By letter dated August 9, 2007 from Thomas Kuck, Engineering Services Director, Mr. Grider was notified "that we are hereby revoking the County's letter of no objection, dated May 21, 2007 approving changes to the sidewalk requirements on Lot 28 for the referenced project." Mr. Kuck explained that the basis for the revocation was "an apparent misunderstanding" between Waldrop Engineering, John Houldsworth, and Mr. Kuck, whereby it was Mr. Kuck's understanding that a short section of the sidewalk with a return to the street would be provided. However, the actual plans submitted and approved by staff clearly did not show such an extension. In any event, Mr. Kuck's letter requested Mr. Grider to construct a short sidewalk return between the west side of his driveway to the street as shown on the attached drawing (Exhibit K). Construction of such a sidewalk return would make the Grider sidewalk consistent with an existing sidewalk on Wild Orchid Court in Olde Cypress (see Exhibit L). The Olde Cypress Homeowners Association, led by Diane Ebert, is continuing to object to the resolution of the sidewalk controversy as determined by staff, and is insisting that the sidewalk be returned to its original condition. The Temporary Certificate of Occupancy On August 24, 2007, the County issued a six month Temporary Certificate of Occupancy (TCO) for the Grider residence. The issuance of the TCO was over the strong objection of Planning Commissioner Kolflat and his daughter. County staff, led by Joe Schmitt, determined that considerations of health, safety, and welfare did not support a denial of a TCO while the setback, lot line adjustment, and sidewalk controversies were being resolved. However, on November 7,2007, Bob Dunn, Interim Building Director, wrote to Grider's contractor defining the stipulations for the six month TCO which must be corrected before a permanent CO can be obtained. The stipulations included the extension of the sidewalk of 35-40 feet to the cul-de-sac neck, and that a variance be obtained from the Board of Zoning Appeals allowing the encroachment of the principal structure of 14.3 feet beyond the 25-foot preserve setback, and the encroachment of the accessory use of the pool area of 4.7 feet beyond the 10-foot setback from I I I I I I I I I I I I I I I I I I I Agenda Item No, 12A January 15. 2008 Page 20 of 34 Board of County Commissioners December 7, 2007 Page 20 the preserve area. The letter concludes by stating that unless all outstanding inspection requirements, including the variance by the BZA, and either a final CO or another TCO are issued by February 28, 2008, Code Enforcement would bring enforcement proceedings pursuant to the County's Notice of Violation issued to Grider on the same date, Case No. 2007101120. The Preserve Setback Controversy During the period of the Kolflat/Showalter objections to County staff concerning the Grider residence in July, 2007, the issue of the 25-foot preserve setback provided in the LDC was raised. It is not clear to us whether the issue was first raised by Kolflat/Showalter, or County staff. Section 3.05.07 of the current LDC provides for Preservation Standards. That section provides that "[a]ll development not soecificallv exemoted bvthis ordinance shall incorporate, at a minimum, the preservation standards contained within this section." (Emphasis added). Subsection 3.05.07.H.3. provides for required setbacks from preserves as follows: All principal structures shall have a minimum 25-foot setback from the boundary of any preserve. Accessory structures and all other site alterations shall have a minimum lO-foot setback from the boundary of any preserve. However, Subsection 3.05.07.A.2. specifically states: "Single familv residences are exemot from the reQuirements of Section 3.05.07.H." (Emphasis added). Additionally, Subsection 3,05,07,H,4,a, provides: "Single family residences are subject only to the applicable vegetation retention standards found in 3.05.07." Based on these express exemptions, it is our opinion that the preserve setback requirements of Section 3.05.07.H. do not apply in this case. The LDC also contains a similar 25- foot setback from protected preserve in Section 1O,02.04.B.1. There are no express exemptions in this section of the Code. However, Section 10.02.04 deals with submittal requirements for plats, and does not appear to relate to individual building permit applications. If Section 1O.02,04.B.1. was intended to guide development of single family residences post platting, there is a glaring inconsistency between this provision and the provisions of Section 3.05,07 quoted above. Why would the County exempt single family residences from a 25-foot preserve setback in one section of the Code, if a similar 25-foot preserve setback in another section of the Code continued to apply? We suggest that this inconsistency in the LDC be clarified by the County to avoid confusion in the future. We have been advised that staff has historically applied the preserve setbacks to single family residences, be they in platted subdivisions or not. However, as documented by this case, this procedure has not been applied uniformly. As a result of the Grider controversy, Joe Schmitt directed staff to investigate whether there were other residences in Olde Cypress which violated a 25-foot preserve setback. It was determined that between August 3, 2000, and October 19, 2006, a total of 17 Building Permits were issued for residences on Lone Pine Lane, Treeline -' I I I I I I I I I I I I I I I 1 1 I I Board of County Commissioners December 7, 2007 Page 21 Agenda Item No, 12/, January 15, 2008 Page 21 of 34 Drive, and Wild Orchid Court, which aUowed for the construction of residences with principal structures within 25 feet of the designated preserve area. (See Exhibit H). AU but two (the Dunkelberger residence on Lot 27, Lone Pine Lane, and the Grider residence on Lot 28, Lone Pine Lane) would encroach upon a 25-foot preserve setback by 5 feet or less. The Dunkelberger residence would encroach by approximately 10,85 feet, and the Grider residence would encroach by 14,3 feet. The Building Permits for these residences were issued by a variety of staff technicians over a period of 6 years. In each case, the setback requirements were approved based on standards set forth in the aide Cypress PUD document, normally a 25-foot front yard setback; 5-foot side yard setback; 20-foot rear yard setback, with a 5-foot setback from the rear or side property lines for accessory uses. In addition, lots on Lone Pine Lane on which the replat showed a lO-foot golf course easement were required to have accessory use setbacks of at least 10 feet from the boundary line. There is no evidence in the permit files that any consideration was given to a 25-foot preserve setback at the time these permits were issued. It appears to us that the failure to adhere to a 25-foot preserve setback in the 17 instances in aide Cypress resulted from one of the foUowing: (i) either the planning technicians did not realize that the lots adjoined a preserve area at the time the setbacks were approved; (ii) the staff technicians knew that the lots adjoined a preserve area, but were not aware of preserve setback requirements; or (iii) the staff technicians were aware of the preserve area and preserve setback requirements of the LDC, but determined that they did not apply to single family residences or that the PUD document setbacks controUed over the LDC. In support of the first explanation, we note that the preserve areas were not labeled as such on the replats of aide Cypress Units Two and Three, on which building lots were shown. As a result, the boundary surveys and as-built surveys for each residence did not show the preserve area, Rather, the surveys were taken from the plats which simply showed "Tract A Olde Cypress Unit One, PB 32, Pages 1-11" adjoining the building lots. As far as we have been able to tell from the files and interviews, no one on County staff checked to see what type of property was contained in Tract A in aide Cypress Unit One at the time permits or certificates of occupancy were issued. There does not appear to have been any policy or practice in place at the time for staff to verify the nature of property adjoining a building Jot. We understand that staff is in the process of developing procedures to require more specific labeling of preserve areas on future plats, and to have staff check neighboring tracts where the nature of the property is unclear on the survey, At the BCC meeting of October 23, 2007, Joe Schmitt presented a summary of what was reported to be 18 properties in the aide Cypress Development which appeared to encroach upon the 25-foot preserve setback, and options to address the issue. It was reported that the LDC allows for a variance of up to 25% of the required setback to be handled administratively. All but two of the encroachments (Grider and Dunkelberger) fell within the parameters for administrative reduction. Accordingly, the Board directed staff to resolve the less severe 1 I I I I I I 1 I I 1 1 1 1 1 I I I 1 Agenda Item No, 12A January 15, 2008 Page 22 of 34 Board of County Commissioners December 7, 2007 Page 22 encroachments administratively, and to notify Grider and Dunkelberger that they will be required to seek a formal variance. Conclusions Our investigation into the aide Cypress PUD controversy has led to the following conclusions: I. The question of whether the Building Permits for the 17 residences in Olde Cypress were improperly issued depends on whether the 25-foot preserve setback applies to these single family residences or not. It is our opinion that the preserve setbacks of 3,05,07 do not apply due to the express exemption for single family residences contained therein, and a strong argument can be made that preserve setbacks contained in Section IO,02.04.B.1. apply only to platting requirements, not individual permitting. Based on that premise, the permits were properly issued with setbacks measured against the provisions of the Olde Cypress PUD. If staffs interpretation is correct and the preserve setbacks do apply, we find that the preserve setbacks were not enforced in this case either because staff technicians were not aware of the location of the preserve area due to the confusion in the plat labeling, or otherwise failed to consider the preserve setback requirements when approving the setbacks. There is no evidence to suggest that the developer of OIde Cypress, or the individual lots owners, were intentionally favored or excused from preserve setback requirements applicable to all others. 2. The Grider building permit application was reviewed and considered as a corner lot by County staff. Angel Tarpley made this determination visually by reviewing the survey. She was not aware at the time of the 1350 rule set forth in Division 6.3 of the 1991 LDC. Applying the definition of the 1991 LDC, initial determination and setback approvals as a corner lot were made in error in that the internal angle of the lot's cord lines was greater than 1350. This technicality was corrected by the lot line adjustment which has resulted in an interior angle of 1340. The approval of the lot line adjustment is being appealed by Ms. Showalter through her attorneys, so we will refrain from further comment on the merits of that appeal. For purposes of this investigation, suffice it to say that the approval of the lot line adjustment appears to us to have been done in good faith by County staff in the ordinary course of its business, and not motivated by any improper influences. 3. An issue has been raised as to whether John Houldsworth had a conflict of interest in reviewing any application involving aide Cypress, including the Grider issues, due to the fact that his wife works for the developer. We agree that Mr. Houldsworth should not have involved himself in the Grider review. To avoid the appearance of impropriety, Mr. Houldsworth should recuse himself from issues dealing with Stock Development. Mr, Houldsworth agrees as well, and has advised us that he will no longer participate in any issue dealing with Stock Development. With regard to the issues in this case, however, the approvals in question were not made by John Houldsworth alone. Many members of County staff were involved in the _ ..__._____~_..,___1!.. I 1 I I 1 I I I I I I 1 I I I I I I I Board of County Commissioners December 7, 2007 Page 23 Agenda Item No. 12A ,Ianuary 15, 2008 Page 23 of 34 ( approvals on a variety of levels. We do not believe that the results in this case would have been any different had some other member of the Engineering Department reviewed the various applications instead of Mr. Houldsworth. 4. Similarly, Planning Commissioner Tor KoUlat has a personal interest in this matter due to the fact that his daughter, Melissa Showalter, has been negatively impacted. Commissioner Kolflal's calls and meetings with County staff have resulted in more time, attention, and scrutiny to this issue than would otherwise be the case. Due to his personal interest in the matter and the fact that issues relating to the Grider residence may come before the BCC in its quasi-judicial capacity, we also respectfully suggest that Commissioner Kolflat recuse himself from further participation in this matter and leave it to Ms. Showalter and her attorneys to present her case. 5. Much has been made of the fact that Mr. Grider is an attorney who works for a law firm which represents Stock Development. Mr. Grider's relationship may have facilitated approval of his home's architectural plans by the Architectural Review Board and aide Cypress Master Association controlled by Stock Development, although this is a subjective determination which cannot be proven one way or the other. We are confident, however, that Mr. Grider's employment or professional relationship with developer clients played no role in obtaining County approvals. ( 6. In short, we have seen no evidence to suggest that the County approvals in the aIde Cypress PUD/Grider cases were achieved as a result of "special favors," improper influences, or illegal or unethical actions of any kind, and we do not find that any such misconduct occurred. Respectfully submitted, ROBINS, KAPLAN, MILLER & CIRESI L.L.P. ~. LAF /tlk Enclosures cc: David C. Weigel, Esq., County Attorney Jim Mudd, County Manager NPI 65043979.1 ( _----.i_~__ _ __ I I I I I I I I I I I I I I I I I I I OAK ROOI!! IlDlLI! IICltXll. 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" ~,~~ ~~Q) ~~; ..~... ~~~ ~!2~ ll!~~ ~ '" m , m 000 ::!~I 5~~ ,,<_ oem 12:IJ:t:~ :;j~- i:l .0 ~~ ~~ljl oz~ ., m ~ e;- n ~ ffi " 9 "' ~ z , 0> u ~~ ~ il~ ~ '6<-> ~ ~~ ,~ 8~ ~~ .e; ci~l"~ o~::I~ ~~~~. o!O 1-1- ::::Jz z~;;:;.~5 ='0. o..u 11;I..&..IEl~Wo::: f3j;~~~!:j tt:'o8n.1L..5 ~r-w .o() oC)tt:::~u)...... 9~~~coo o5lJ...g5~'" rOo O(D=> et::: 9 <"I<':>~1--:f8~ l-<(w:5~w~ gri~o.. n: ~ oc ~ ~ ~ < " m o ~ ~ x w o ~ 5 ~ t{ ~,y ~..:"f; -Y,f ~~ "." J"Y ~ ~ e 8 , < ~ I 8 , e \ ~ 0 , I , !j 6~ 101 , j~ ,'" jJl '" ~~'''' ~~I" '. w ~~ :;;: "';"'!il: ~~I :;' ww 51 '. '~ _:3.!;:j" ~~ ~~ kkj' "" , j . -J-~ " < u " o U n" ~ -< oc " Page I of I Agenda Item No, 12A January 15, 2008 Page 34 of 34 COLLIER COUNTY BOARD OF COUNTY COMMISSIONERS Item Number: Item Summary: 12A Meeting Date: This item to be heard at 11 :00 a.m. Investigative Report by Outside Counsel, Lawrence A. Farese. Esq..of the firm Robins, Kaplan, Miller & Ciresi. L.L.P., to the Board of County Commissioners Regarding the Olde Cypress PUD. 1/15/2008900:00 AM Approved By David C, Weigel County Attorney Date County Attorney County Attorney Office 112/20082:50 PM Approved By OMS Coordinator Applications Analyst Date Administrative Services Information Technology 1/3/20089:22 AM Approved By Mark Isackson Budget Analyst Date County Manager's Office Office of Management & Budget 1/3/20089:56 AM Approved By Michael Smykowski Management & Budget Director Date County Manager's Office Office of rfianagement & Budget 1/5/20081 :14 PM Approved By James V. Mudd County Manager Date Board of County Commissioners County Manager's Office 1/7/20084:03 PM file://C:\AgendaTest\Export\98-January%20 IS, %202008\ 12,%20COUNTY%20A TTORNEY... 1/9/2008