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Resolution 2009-046 RESOLUTION 09- 46 A RESOLUTION OF THE BOARD OF ZONING APPEALS OF COLLIER COUNTY, FLORIDA, RELATING TO PETITION NUMBER CU-2005-AR-8748, GRANTING A CONDITIONAL USE FOR EARTH MINING IN THE RURAL AGRICULTURAL "A" ZONING DISTRICT, FOR PROPERTY LOCATED AT 2060 TOBIAS STREET IN SECTION 22, TOWNSHIP 49 SOUTH, RANGE 27 EAST, COLLIER COUNTY, FLORIDA. WHEREAS, the Legislature of the State of Florida in Chapter 67-1246, Laws of Florida, and Chapter 125, Florida Statutes, has conferred on Collier County the power to establish, coordinate and enforce zoning and such business regulations as are necessary for the protection of the public; and WHEREAS, the County pursuant thereto has adopted a Land Development Code (Ordinance No. 2004-41, as amended) which includes a Comprehensive Zoning Ordinance establishing regulations for the zoning of particular geographic divisions of the County, among which is the granting of Conditional Uses; and WHEREAS, the Collier County Planning Commission forwarded the petition to the Board of Zoning Appeals without a formal recommendation; and WHEREAS, the Board of Zoning Appeals previously heard and denied this matter on October 23, 2007 and the Petitioner appealed the decision to the Collier Circuit Court; and WHEREAS, the Collier Circuit Court has remanded this matter back to the Board of Zoning Appeals to make findings not inconsistent with the Court's Order. NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF ZONING APPEALS OF COLLIER COUNTY, FLORIDA that: For the reasons set forth in the record, the Petition filed by Alan Roseman of Q. Grady Minor & Associates, P.A., representing Ashraf Fawzy, with respect to the property hereinafter described in Exhibit A, and subject to: 1) the Escrow Agreement attached as Exhibit B and incorporated as if fully set out herein; 2) the agreement attached as Exhibit C between Ashraf Fawzyand the Frangipani Ag. Community Civic Association, Inc, dated November 1, 2006; and Page 1 of2 3) The Conditions of Approval attached as Exhibit D. The Petition is hereby granted for a Conditional Use for earth mining and excavation in excess of 12,000 cubic yards (4,000 cubic yards per parcel) in the Rural Agricultural "A" Zoning District. BE IT FURTHER RESOLVED that this Resolution be recorded in the minutes of this Board. This Resolution adopted after motion, second and majority vote, this ~#tday of Fe.brOOrlf ' 2009. ATTEST.: \,yrr, . DWIG{lT EBROCK., CLERK. -.'.( ..,) BOARD OF ZONING APPEALS COLLIER COUNTY, FLORIDA By: . Attest ..(~ Qa.......D ,1Qllatutt Ol,",~' ,;',.>k Approved as to form and legal sufficiency: !L d4~ By: DONNA FIALA, CHAIRMAN !L- 7. WjJ. Steven T. Williams Assistant County Attorney Exhibits Attached: A. Legal description B. Escrow Agreement C. Road Agreement with Neighbors D. Conditions of Approval Page 2 of2 . EXHIBIT' n An FAWZY AQUACULTURE PROPERTY DESCRIPTION THE WEST 1/2 OF THE NORTH 1/2. OF THE SOUTH 1/2. OF THE NORTH 1/2. OF THE SOUTH 1/2. OF THE NORTHEAST 1/4: LESS THE WEST 35 FEET THEREOF. - DEDICATED FOR ROAD PURPOSES: AND THE WEST 1/2 OF THE SOUTH 1/2. OF THE SOUTH 1/2. : OF THE NORTH 1/2. OF THE SOUTH 1/2. OF THE NORTHEAST 1/4: LESS THE WEST .35 FEET THEREOF. DEDICATED FOR ROAD PURPOSES: AND WEST 1/2 OF THE NORTH 1/2. OF THE NORTH 1/2, OF THE SOUTH 1/2. OF THE SOUTH 1/2. OF THE NORTHEAST 1/4: LESS THE WEST 35 FEET THEREOF. DEOICTED FOR ROAD PURPOSES. ALL LYING AND BEING IN SECTION 22. TOWNSHIP 49 SOUTH. RANGE 27 EAST . COLLIER COUNlY, FLORDIA. . ~ ~ ~ ~ ~ 6 I ot If EXHIBIT ESCROW AGREEMENT THIS AGREEMENT entered into this d,Li/4 day of PebrUMY . 2009 by and among ASHRAF FAWZY (hereinafter "Developer"), THE BOARD OF COUNTY COMMISSiONERS OF COLLIER COUNTY, FLORIDA, (hereinafter "County") and GOODLETTE, COLEMAN, JOHNSON, YOVANOVICH & KOESTER, P.A. (hereinafter "Escrow Agent"). RECITALS: A. Developer is constructing a fish farm on approximately 15.08 acres of land in an Agricultural (A) zoning district, located at 2060 Tobias Street, in Section 22, Township 49 South, Range 27 East, Collier County, Florida. B. In order to commence operations, Developer has proposed to excavate a large pond area, which would necessitate the removal of 300,000+/- cubic yards of fill. Developer filed Petition CU-2005-AR-8748 seeking approval of a conditional use for the removal of the fill. C. The Board of County Commissioners, at its regular meeting on February 24, 2009, in accordance with the February 2, 2009 ruling of the Collier Circuit Court in Ashraf Fawzy v. Collier County, Case No. 07-4570-CA, agreed to approve the conditional use sought in Petition CU- 2005-AR-8748, provided Developer enters into this Escrow Agreement. D. Developer has agreed to place all proceeds from the sale of fill removed as part of the construction of the fish farm in escrow in Escrow Agent's trust account to insure the completion of the construction of the fish farm and the establishment of aquaculture operations at the site (hereinafter "Required Improvements" ) in accordance with the terms of this Agreement. AGREE~ENTS: NOW, THEREFORE, in consideration of the foregoing premises and mutual covenants hereinafter set forth, Developer, the County and the Escrow Agent do hereby covenant and agree as follows: 1. Developer will cause the Required Improvements to be constructed pursuant to specifications that have been approved by the County Manager or his designee. 2. Developer hereby authorizes Escrow Agent to hold all proceeds from the sale of the excavated fill in escrow in Escrow Agent's trust account, pursuant to the terms of this Agreement. 3. Escrow Agent agrees to hold the Escrowed Funds in its trust account, to be disbursed only pursuant to this Agreement. 4. The escrowed funds shall be released to the Developer to pay the contractor or other professionals for work performed by the contractor or other professionals to construct the fish farm only upon written approval of the County Manager or his designee who shall approve the release of the funds on deposit not more than once a month to the Developer. Upon completion of the Required Improvements any proceeds remaining in the Escrow agent's trust account shall be released to the developer. However, in the event that Developer shall fail to comply with the requirements of this Agreement, then the Escrow Agent agrees to pay to the County immediately upon demand the balance of the funds held in escrow by the Escrow Agent, as of the date of the demand, provided that upon payment of such balance to the County, the County will have executed and delivered to the Escrow Agent in exchange for such funds a statement to be signed by the County Manager or his designee to the effect that: I of 4 ~ EXHIBIT ~ ~ 8 ~ - ~ ,;)o{y (a) Developer has failed to complete the Required Improvements in a timely fashion, (b) The escrow funds drawn down by the County shall be used for restoration of the excavated area to the extent of the funds then held in escrow, engineering, legal and contingent costs and expenses. and to offset any damages, either direct or consequential, which the County may sustain on account of the failure of the Developer to carry out and execute the above-mentioned development work; and (c) The County will promptly repay to the Escrow Agent any portion of the funds drawn down and not expended as stated above. 5. Written notice to the Escrow Agent by the County specifying what amounts are to be paid to the Developer shall constitute authorization by the County to the Escrow Agent for release of the specified funds to the Developer. Payment by the Escrow Agent to the Developer of the amounts specified in a letter of authorization by the County to the Escrow Agent shall constitute a release by the County and Developer of the Escrow Agent for the funds disbursed in accordance with the letter of authorization from the County. 6. Should the funds heid in escrow be insufficient to complete the Required Improvements, the Board, after duly considering the public interest, may at its option complete the Required Improvements and resort to any and all iegal remedies against the Developer. 7. Nothing in this Agreement shall make the Escrow Agent liable for any funds other than those placed in deposit by the Developer in accordance with the foregoing provision: provided, that the Escrow Agent does not release any monies to the Developer or to any other person except as stated in this Escrow Agreement 8. All of the terms, covenants and conditions herein contained are and shall be binding upon the respective successors and assigns of the Developer. 20f4 ~ EXHIBIT ~ M (j ~ ~ ~ ~ sofLJ IN WITNESS WHEREOF, the County, the Escrow Agent and the Developer ave cause IS Agreement to be executed by their duly authorized officers or representatives the day and year first written above. SIGNED, SEALED AND DELIVERED IN THE PRESENCE OF: '-- --11 *~ ASHRAF FAWZY J T Witne signature S'1lX'tA Olf'Ok.CC>' Printed or Typed Name ~L t5it~ It ess signature ~;Ybn ('ASi{~ Pr d or Typed Name GOODLETTE, COLEMAN, JOHNSON, YOVANOVICH & KOESTER, P.A. U tTO Qco- By: Richard D. Yovanovich, Esq. .~~Q vI FOLCo- ATTEST: DWIGHT E. BROCK, CLERK Deputy Clerk BOARD OF COUNTY COMMISSIONERS COLLIER. C~NTY, FLORIDA If / / - By: ~. /)"'...:v;n"c- ~~ Donna Fiala, Chairman Approved as to form and legal sufficiency: ~7,W'~ Steven T. Williams Assistant County Attorney 3 of 4 ~ ~ ~ ~ ~ ~ '" f3 l{ of l./ EXHIBIT 07-4570-CA/33 40f4 Frangipani Ag. Community Civic Association, Inc. 512 Frangipani Avenue Naples, FL 34117 ~ EXHIBIT ~ ~ ~ ~ z ~ November I, 2006 Collier County Board of County Commissioners, Staff; Regulatory Agencies, Interested Parties; This letter is written in support of Mr. AshrafFawzy and the Fawzy Aquaculture project proposed for construction in Section 22, Twp49S, Rng27E. Over the last several months Mr. Fawzy has met with the Board of Directors and members of the Frangipani Ag Community Civic Association and residents throughout our community. After a thorough review of the Fawzy Aquaculture project all parties feel this business will be fully compatible, and in fact, a benefit to our community. A detailed proposal, here attached, outlines guidelines and details of construction that have ':en worked out together with residents to minimize disruption of local neighborhoods during the construction J-'hase of this business. As all roads in our community are privately owned and privately maintained, we are pleased that Mr. Fawzy has agreed to assist with the stabilization and ongoing maintenance of Dove Tree 51. in conjunction with the construction and operation of his Fish Farm. As this road is the sole access and egress for many residents and small businesses, clear and safe access is a primary concern for all. The F ACCA Board of Directors and resident members feel this project will be a win / win situation where business and private residents work together for a common benefit. In conclusion, the Board and resident members of the Frangipani Ag Community Civic Association fully support the Fawzy Aquaculture project and urge approval of this business throughout the pennitting process. If we can provide any additional jnformation or be of further assistance, please contact us or call me on my cell at 564-1813. Sincerely; ~~~ Greg Bower - President F ACCA -~ \ i -,.... Fawzy Aquaculture 2224 Heritage Greens Dr. Naples, FL 34119 ill ~ ~ ~ ~ EXHIBIT Q J o{ :s October 25, 2006 Dove Tree St. Community Residents; · Ashraf Fawzy / Fawzy Aquaculture (FA) wishes to utilize the road right-of-way along Dove Tree St - Sec. 14 Twp 49S Range 27E as a temporary haul route for the removal offill dirt for the construction of a fish farming facility and reasonable light business traffic thereafter, for operation of his fish farming business. · In consideration for agreement and support to do so by Dove Tree St. residents, FA agrees to improve Dove Tree St. and proposes to conduct project operations as follows: · FA agrees to donate 2,000 cubic yards of road stabilizing grade fill material for the improvement of Dove Tree St. · FA agrees to apply this fill material along the legal and recorded right-of-way of Dove Tree St. at the commencement of excavation to establish a safe and efficient temporary haul route and an improved roadway for future use. · During the period of pond construction and fill removal, FA will maintain Dove Tree St. in a safe and passable condition for residents at all times. · FA will work closely with excavation contractors during construction to establish safe transport procedures, regulate truck speed, control dust, and conduct reasonable hours of operation to minimize disruption of the Dove Tree neighborhood. · FA will work with excavation contractors to restricttruck traffic during the time periods when children are loading and unloading from school buses at the 10th St. SE bus stop. This means there will be an AM and a PM shutdown period when school is in session. · FA agrees to set up a contact system with residents prior to commencement of excavation, so that during work any haul route related problems can be quickly addressed. This contact group will be composed of several Dove Tree St. residents and other members of the Board of Directors of the Frangipani Ag Community Civic Association. · FA proposes to begin excavation and hauling on approximately November 1, 2006 permitting pending. It is estimated that excavation and hauling will be completed in 6 to 9 months after commencement. · FA pledges that excavation for the proposed FA fish farming business is the complete extent of proposed fill hauling, and that no additional fill will be transported down Dove Tree St. without further discussion with Dove Tree residents. · FA asserts that following completion of construction of the fish farming facility, normal FA business traffic down Dove Tree St. will be reasonable and consistent with the Frangipani Ag Community. · At the conclusion of fill excavation and hauling, FA agrees to participate, along with other Dove Tree residents and businesses, in the ongoing, periodic general maintenance of Dove Tree St ~ ~ i i EXHIBIT C ~of3 2 I have appreciated the opportunity to meet will the residents of the Dove Tree and Frangipani neighborhoods over the last several months and establishing this protocol to your satisfaction. I look forward to working together with the community on the improvement of Dove Tree St. for all the residents and the Aquaculture project. Sincerely, 0s AshrafFawzy - Owner / Fawzy Aquaculture Agenda Item No. SA October 23, 2007 Page 90 of 91 CONDITIONS OF APPROVAL CU-2005-AR-8748 August 13, 2007 I. TIle use is limited to that depicted on the conceptual site plan identified as "Fawzy Aquaculture Master Site Plan" prepared by Q. Grady Minor and Associates, P.A., dated January 2005, as revised through June 30, 2006, except as further conditioned below. 2. Approval of this Conditional Use shall not be construcd as approval of the attached conceptual site plan; the site plan shall be formally reviewed and approved as part of the Site Development Plan (SDP) process. No variances from any LDC requirements have been granted as part of the acceptance of the subject site plan. Ifit is determined that the site plan is not in compliance with any LDC requirement, the site plan must be brought into compliance prior to the issuance of any site development plan approval. No excavation pennit shall be issued until the SDP has been approved. 3. The amount of excavated material is limited to 300,000 cubic yards. 4. Excavation activities, including removal of material from the subject site, are limited to 18 months from the beginning date of excavation, as reported in the "Annual Status Report for Lake Excavation," required to be submitted to the County Manager or designee. 5. All sections of roads impacted by truck traffic generated by the excavation activity shall be maintained by the owner of the subject site in a dust-free 'condition for the length of excavation time, as repOlted in the "Annual Status Report for Lake Excavation" to be submitted to the County Manager or designee. Maintenance of the roads shall also consist of all material or components of the roads, which include a stabilized subgrade, base and wearing surface. The sections of road to be maintained include the section on Ashraf Battisha Road, from the entry to the project site to fawzy Battisha Aquaculture A venue; the section' on Fawzy Battisha Aquaculture Avenue, from the intersection of Ashraf Battisha Road to Dove Street; the section on Dove Street, from the intersection of Fawzy Battisha Aquaculture Avenue to Frangipani Street; the section on Frangipani Street, fi'om the intersection of Dove Street to 10lh Street SE; the section on lOth street SE, fi'om the intersection of Frangipani Street to Golden Gate Boulevard; and the section on Golden Gate Boulevard, from the intersection of 10lh Street SE to Collier Boulevard. The County Manager or his designee may add sections of road to the above list, at his/her discretion. EXHIBIT D Agenda Item No. 8A October 23, 2007 Page 91 of 91 6. The pelmitted aquacuitw'e facility shall be limited to native species within the orders of Ictaluridae and Palaemonidae. If a modification to the products allowed by Aquaculture Certificate Number AQ5421037 is made, it will require approval from Collier County Environmental Staff. 7. This project is within the Panther Primary Merit Zone. Consultation must be sought from the wildlife agencies for any mitigation required. Staff will ask the agencies to sign off before work on the site commences with the first Development Order. 8. The results of a Big Cypress Fox Squirrel survey and listed plant species relocation shall be provided within 60 days of the Agricultural Clearing Notification approval. 9. Copies of all required agency permits shall be submitted prior to commencement of any work on the site. 10. On-site water weUs shall not to be used to fill, replenish, or cycle water through the proposed aquaculture lake. 11. The applicant shall provide wildlife crossings per the North Belle Meade Overlay requirements of the GMP, with the number and design to be determined at the lime of site development plan approval, subject to review and approval by the County Environmental Services Department. EXHIBIT D ESCROW AGREEMENT THIS AGREEMENT entered into this d,Li/4 day of PebNIJ.iY ,2009 by and among ASHRAF FAWZY (hereinafter "Developer"), THE BOARD OF COUNTY COMMISSIONERS OF COLLIER COUNTY, FLORIDA, (hereinafter "County") and GOODLETTE, COLEMAN, JOHNSON, YOVANOVICH & KOESTER, P.A. (hereinafter "Escrow Agent"). RECITALS: A. Developer is constructing a fish farm on approximately 15.08 acres of land in an Agricultural (A) zoning district, located at 2060 Tobias Street, in Section 22, Township 49 South, Range 27 East, Collier County, Florida. B. In order to commence operations, Developer has proposed to excavate a large pond area, which would necessitate the removal of 300,000+/- cubic yards of fill. Developer filed Petition CU-2005-AR-8748 seeking approval of a conditional use for the removal of the fill. C. The Board of County Commissioners, at its regular meeting on February 24, 2009, in accordance with the February 2, 2009 ruling of the Collier Circuit Court in Ashraf Fawzy v. Collier County, Case No. 07 -4570-CA, agreed to approve the conditional use sought in Petition CU- 2005-AR-8748, provided Developer enters into this Escrow Agreement. D. Developer has agreed to place all proceeds from the sale of fill removed as part of the construction of the fish farm in escrow in Escrow Agent's trust account to insure the completion of the construction of the fish farm and the establishment of aquaculture operations at the site (hereinafter "Required Improvements" ) in accordance with the terms of this Agreement. AGREEMENTS: NOW, THEREFORE, in consideration of the foregoing premises and mutual covenants hereinafter set forth, Developer, the County and the Escrow Agent do hereby covenant and agree as follows: 1. Developer will cause the Required Improvements to be constructed pursuant to specifications that have been approved by the County Manager or his designee. 2. Developer hereby authorizes Escrow Agent to hold all proceeds from the sale of the excavated fill in escrow in Escrow Agent's trust account, pursuant to the terms of this Agreement. 3. Escrow Agent agrees to hoid the Escrowed Funds in its trust account, to be disbursed only pursuant to this Agreement. 4. The escrowed funds shall be released to the Developer to pay the contractor or other professionals for work pertormed by the contractor or other professionals to construct the fish farm only upon written approval of the County Manager or his designee who shall approve the release of the funds on deposit not more than once a month to the Developer. Upon completion of the Required Improvements any proceeds remaining in the Escrow agent's trust account shall be released to the developer. However, in the event that Developer shall fail to comply with the requirements of this Agreement, then the Escrow Agent agrees to pay to the County immediately upon demand the balance of the funds held in escrow by the Escrow Agent, as of the date of the demand, provided that upon payment of such balance to the County, the County will have executed and delivered to the Escrow Agent in exchange for such funds a statement to be signed by the County Manager or his designee to the effect that: lof4 (a) Developer has failed to complete the Required Improvements in a timely fashion, (b) The escrow funds drawn down by the County shall be used for restoration of the excavated area to the extent of the funds then held in escrow, engineering, legal and contingent costs and expenses, and to offset any damages, either direct or consequential, which the County may sustain on account of the failure of the Developer to carry out and execute the above-mentioned development work; and (c) The County will promptly repay to the Escrow Agent any portion of the funds drawn down and not expended as stated above. 5. Written notice to the Escrow Agent by the County specifying what amounts are to be paid to the Developer shall constitute authorization by the County to the Escrow Agent for release of the specified funds to the Developer. Payment by the Escrow Agent to the Developer of the amounts specified in a letter of authorization by the County to the Escrow Agent shall constitute a release by the County and Developer of the Escrow Agent for the funds disbursed in accordance with the letter of authorization from the County. 6. Should the funds held in escrow be insufficient to complete the Required Improvements, the Board, after duly considering the public interest, may at its option complete the Required Improvements and resort to any and all legal remedies against the Developer. 7. Nothing in this Agreement shall make the Escrow Agent liable for any funds other than those piaced in deposit by the Developer in accordance with the foregoing provision; provided, that the Escrow Agent does not release any monies to the Developer or to any other person except as stated in this Escrow Agreement 8. All of the terms, covenants and conditions herein contained are and shall be binding upon the respective successors and assigns of the Developer. 2 of 4 IN WITNESS WHEREOF, the County, the Escrow Agent and the Developer have caused this Agreement to be executed by their duly authorized officers or representatives the day and year first written above. SIGNED, SEALED AND DELIVERED IN THE PRESENCE OF: ~ .-=-A *~ ASHRAF FAWZY S'1WIA 01 FOl...Cc-- Printed or Typed Name ~/{)~f)*W~ It ess signature ~Q~ (' A Sit LQ.(2/1/LiTO) Pr d or Typed Name GOODLETTE, COLEMAN, JOHNSON, YOVANOVICH & KOESTER, P.A. S u.ToQco- Witnes Ignature 'S'1 Io..U I 1'\ .vI FOLCo- Printed or Typed Name ~ r~4rC, ~lPtd() ~~t ss Sign~re. ~ ')~ /( tf\ ,{e)V\, wl. tlEu Pnnt d qr iyped Nl;ime ;. .' By: Richard D. Yovanovich, Esq. '~0~Q I', .,', I ' ,) ATT~~T: .;",. ~m:~>> ~ .iCi~~k~,~- l10utln 0111' Approved as to form and legal sufficiency: BOARD OF COUNTY COMMISSIONERS COLLIE OUNTY, FLORID! By: / ~'^-' 67';..4. ~ Donna Fiala, Chairman ~ 7. w-J.L .~ Steven T. Williams Assistant County Attorney 3 of 4 07-4570-CA/33 40f4