The meeting was opened by Mayor Anita T. Cereceda, at 1:10 P.M. on

February 9, 1996, with a pledge of allegiance to the flag.

ROLL CALL

Anita T. Cereceda, Mayor

Council Members:

Ted Fitzsimons, Vice Mayor

Rusty Isler

Marsha Segal-George, Interim Manager

Garr Reynolds

Ray Murphy

Attorney Richard Roosa

Also in attendance at the hearing were Charles and Anne Nyman, owners of the property up for rezoning; Matt Uhle, Attorney for the Nymans; Charles Bigelow, Lee County Hearing Examiner and Attorney for the Fort Myers Beach Civic Association, Walter McCarthy and Chip Block, Senior Planner for the Department of Community Development.

Walter McCarthy outlined the procedure they would follow at this meeting, which was to start with the staff presentations followed by applicants' presentations, then statements from the parties of record. The floor would then be opened for questions. Everyone was told that if they wanted to put forth a motion for denial, it was important that they establish a basis for one. Their procedure has always been to put forth a draft resolution based on the hearing examiner's recommendation as the beginning point for a discussion.

Mr. McCarthy next discussed a packet of material that he had passed out to all the council members at this meeting. A copy of a letter dated February 1, 1996, and addressed to Bill Mills, Fort Myers Beach Acting Town Manager, is attached to the front of the packet. Page 2 is the Agenda and only shows the parties of record and their case number. Page 3 is a notice of public hearing. Following page 3 is a continuation of the Agenda. This page outlines the Request, which is to rezone from a TFC (Two Family Conservation) to a Commercial Planned Development; the Location of the property, which is at 2661-2681 Estero Blvd. & 145 School Street, Fort Myers Beach (1± mile S. of San Carlos Pass on NW corner) in S19-T46S-R24E, Lee County, FL. (District #3); the Strap Numbers, which are 19-46-24-02-0000C.0230 and 18-46-24-02- 0000C.0270; the Size of Property, shown as 22,366± square feet; and the Lee County Hearing Examiner's Recommendation, which is to approve CPD (Commercial Planned Development) with conditions. Following this page is the News-Press Affidavit of Publication dated January 26, 1996. The following page shows the case number (95-07-032.02Z); the name of the case (Donald A. & Anne S. Nyman); the date to be heard by council (Friday, February 9, 1996); the agent, who is shown as Humphrey & Knott, P.A. of Fort Myers, and the parties of record, who are listed as Charles Bigelow and Ed O'Donoghue of the News Press, along with their addresses. The Hearing Examiner Recommendation consists of the next 23 pages. Following them is a zoning map pinpointing the subject property, then the Resolution of the Fort Myers Beach Town Council which is four pages long. The last page in the packet is a scale map of the subject property.

Next to speak was Chip Block, a Senior Planner in the Department of Community Development. He advised that he had reviewed the case and had made a recommendation for the Hearing Examiner and was at the public hearing to answer any questions at that particular time. After identifying the case and the size and location of the subject parcel, Mr. Block noted that the parcel had five residential units within four buildings. Requested is a rezoning from TFC-2, which is a two-family conservation district, to a Commercial Planned Development. The existing TFC-2 district, which is on the subject property today, generally is a single-family or duplex residential zoning district that allows a minimum of 6,000 square feet for either a single family or a duplex. The minimum width would be 50 feet and the minimum depth would be 100 feet under the property zoning regulations. The Commercial Planned development or CPD application allows the applicant to seek commercial zoning on the subject property while establishing and setting the intensity of the project, the schedule of usage, the layout of the development. Mr. Block indicated the area where the property would be located on an enlarged map of Fort Myers Beach.

Mr. Block advised that the Hearing Examiner had heard arguments both for and against the case on November 28, 1995. The Hearing Examiner issued her report for recommendation to the Town Council on December 18, 1995. The staff recommendation was for a denial of the request for rezoning, as outlined on page 3 of the Hearing Examiner Recommendation in the packet we were given.

Beginning on page 6 is a more detailed summary. The Hearing Examiner's opinion begins on page 4 and his recommendation and summary on this case was that it be found consistent with the competency plan and that the Commercial Planned Development rezoning be approved with the eight conditions outlined in the Hearing Examiner's report. Mr. Block next outlined each of the conditions for rezoning, which can be found in the Resolution section in the packet. The first condition indicates that the development and use of the subject property should comply with the Master Concept Plan entitled "Nyman - CPD". This provides for a maximum of 6,000 square feet of commercial office space or, in the alternative, 14 efficiency hotel units. Condition 2 are the specific setbacks that would be applied to the development of this site.

Condition 3 outlines the three uses. These are permitted uses of the CN-2 zoning district. CN-2 is a neighborhood commercial district predominantly allowing retail commercial, professional offices, and similar types of activities and uses within a neighborhood commercial district. It also has permitted use of hotel/motel. That is in keeping with the Hearing Examiner's recommendation for a Master Concept Plan that they be allowed up to 14 efficiency units on the subject property. Lastly, single-family and duplex dwellings with their existing uses, that is, in keeping with the ability to allow the applicants to maintain the existing residential activity on the site while they either decide to or actually develop the subject property. Once that occurs and they start redeveloping the site, then it would have to be in conformity with either the CN-2 usage or hote/motel usage.

Condition 4 indicates that the traffic and pedestrian mitigation or any impact associated with traffic or pedestrian activity will be mitigated at the time of development order approval for the subject property.

Condition 5 outlines that they will have to comply with the Comprehensive Plan 2010 Overlay use allocation. The Comprehensive Plan provides a certain number of acres that will be devoted to specific uses within a particular sub-

district. The sub-district for this particular property is 1001. It provides for a total of 117.19 acres within the sub-district. In general the sub-district includes this northern part of the northern part of Estero Island along with the island on San Carlos island on the other side of the bridge.

Condition 6 indicates that the applicant or developer will have to comply with all the development regulations of the Land Development Code at the time of local Development Order approval, unless it's been deviated from as part of the planned development process. The applicant has the opportunity as part of any of the planned development applications to seek what is known as deviations from the Land Development Code. Effectively, they are like variances but require a separate type of ??. Whereas with variances you would have to identify hardship, with deviations you have to identify where in this instance it's going to assist in the achievement of the result in the planned development, the actual development of the planned development. It also allows them the opportunity to point out how it's not going to adversely impact the public health, safety or welfare. With those two types of findings, you can go ahead and grant deviations from Land Development regulations.

Condition 7 in general indicates that there can be no outside display of goods, wares or services as part of any commercial activity on the subject property.

Condition 8 notes that along the northern and western property lines there is a specific buffer requirement. Buffer requirement refers to landscaping between the buildings and the development itself and that property line. The Hearing Examiner has recommended that the buffer must have at least for every third tree planted at that time 12 feet in height with a widespread canopy.

The three deviations allowed relate to what is known as connection separation, or what route is going to access the roadway itself. The first two deviations relate to the access point proposed on Estero Boulevard at the southern portion of the site. Deviation 1 says that they have requested a deviation 65 feet from a private drive. Deviation 2 proposes a 125-foot separation between the driveway and the center line of School Drive where it intersects Estero Boulevard. The third deviation relates to the connection separation of the driveway connection for the subject property on School Drive.

That is implied to have a 125-foot separation. They are asking for a deviation 65-feet long at that location. Note for the record that on Estero Boulevard, since that is an arterial roadway, that has to have a 660-foot separation. Matt Uhle, attorney for the Nymans, next took the floor. He reminded the council that this is the first case the town council has dealt with. He advised that the Hearing Examiner had given (his clients) a number of conditions they didn't ask for and they had agreed they could live with them. So they agree with the Hearing Examiner's opinion in all respects and are here basically to defend it. Attorney Uhle then pointed to one of his exhibits, a map of most of Estero Island, and pinpointed the location of the subject property. Part of the block the property is on is zoned C-1 and the rest of it is zoned TFC-2. What you have in essence, Mr. Uhle said, is an island of residential zoning surrounded by what amounts to an ocean of commercial zoning on both sides of this particular parcel. Even where the property is zoned residential in the block, there is mixed usage. The Hearing Examiner determined that this particular rezoning did not represent an intrusion into the residential area. In addition to that, the redevelopment of this property for residential purposes is not going to happen, Attorney Uhle said. As it stands today, the parcel consists of four residential structures containing five dwelling units. Based on the evidence in the records the four structures are 30-50 years old. They are not exactly dilapidated at this point but they are not in good shape in spite of the Nyman's best efforts to maintain them and they're not getting better with age. The problem that my clients have, Attorney Uhle stated, is that were they to attempt to redevelop this property for residential purposes, they would only be able to put three units on the property whereas they have five today. So from an economic perspective, if they wanted to make this a more attractive residential parcel, they would lose money doing it. Consequently, I think it's safe to assume from our perspective and from yours there is no future for residential usage on this property except continuing decline. The bottom line of the choice you have to make today is do you want this property for the foreseeable future to be an island of decaying residential property with no improvement in the future that could be foreseen, or would you prefer this property to be a small, attractive commercial development that's no more than 6,000 square feet. This particular development would meet the county's standards for parking, open space, landscape, buffering, what have you. That's really the single biggest issue you have to deal with in this case.

Attorney Uhle said that secondly, he'd like to address traffic, He acknowledged the concern of many people on Fort Myers Beach about traffic. In this particular case there is no substantial competent evidence in the record to establish that this particular development will cause or exacerbate the traffic problem. The only evidence in the record is from Mr. Mike Carroll, a county staff person who evaluated the applicants' traffic impact statement. His statement in the document that is included in the record in the case indicates that this particular development will have a minimal impact on Estero Boulevard and will not degrade its level of service. Consequently there is no substantial competent evidence to support a denial on traffic grounds. Continuing, Attorney Uhle stated that, thirdly, he'd like to point out very briefly that unlike a lot of rezonings that have come before the county commissioners relating to Fort Myers Beach in the recent past, this one is not controversial. In this case the neighbors have not come to complain. There is only one party of record who is opposed to this particular case, and that's the Civic Association. This is not a case that has gotten the neighborhood excited.

With regard to the letter that was written by the attorney for the Civic Association, recent judicial decisions have made it very clear that the letter represents unsworn testimony that is not subject to cross examination and consequently is not substantive competent evidence and cannot be used as the basis for any findings in this case.

Attorney Uhle said that, frankly, at this point he would have every right legally to ignore anything that's in that letter but to briefly describe what it says and what their responses are he would say first of all that the letter says that this particular rezoning is prohibited by Policy 18.2.1 of the Lee Plan because that particular policy prohibits any zonings from residential to commercial pending the adoption of a zoning plan by the CRA. That is a completely incorrect reading of that particular policy according to Attorney Uhle. The policy provides for additional commercial rezonings in the Urban Community Land Use category, which this property is in, so long as there is no intrusion into residential areas. Mr. Bigelow also argued in a letter that this was in fact an intrusion; however, the Hearing Examiner heard a lot of evidence on that particular issue and rejected that particular position...

Finally, the letter talks about Policy 22.1.13, the Lee Plan, which sets out some potential development exactions for property along certain roads. Again, that was not substantial competent evidence. First of all, that particular argument raised by the counsel for the Civic Association has been rejected both by the county and by a circuit court judge. Secondly, even if you agree that that policy is applicable, it is not applicable if the zoning stage of the development review process does not provide a basis for denial of an application. What it does say is that if there is a concurrency problem and if there is an improvement that has been identified to resolve that concurrency problem, that the applicant has to provide money or some other solution to help solve the problem. In this particular case we are not in the development stage but in the zoning stage. There has been no improvement indicated in the Lee Plan; at this point there is none out there and there is no concurrency problem on Estero Boulevard and no evidence to indicate that there is. Not only is this letter not appropriate for your consideration, Attorney Uhle declared, but everything in it is also incorrect.

Attorney Uhle then said that, finally, he would like to close by saying something that he'd really rather not say (but) that it has to be gotten on the record. My understanding from reading the News-Press ( I try not to take everything I read in the News-Press too seriously) is that during that campaign that took place ... people running for office, my understanding is that three of you are members of the Lee Civic Association. If I'm incorrect about that, please correct me, Attorney Uhle urged. That obviously gives us a concern because the Beach Civic Association is a party factor in this case and has taken a position based not on the evidence in the record, but on whatever interests it may have. We have a concern at this point about fundamental fairness ... it is odd to say at this point that your job is to make a decision based on the evidence in the record and the law that exists in Lee County and Fort Myers Beach as it stands today. We hope that you can make a decision on that basis. We believe that if you do make a decision on that basis you will uphold the Hearing Examiner because there is no evidence to support a position other than that position.

Attorney Richard Roosa asked if he could speak and Mayor Cereceda gave him permission. He voiced his concern that Mr. Uhle has identified the membership of three of the five council members as members of the Civic Association and wanted to know if that was being interpreted as a challenge to the panel.

Attorney Uhle said he simply wanted to put it on the record and that the obvious problem that they have is that the logical solution of the problem would be to have the members of the council recuse themselves. But that would leave the council without a quorum and they couldn't possibly hear the zoning case at that point, he stated. Attorney Roosa now asked if it was Attorney Uhle's opinion that the panel could be impartial and fair, to which Attorney Uhle responded that he thought they would have to find out when it was all over.

Attorney Roosa stated that that was not a satisfactory answer because it was based upon the results and that Attorney Uhle needed to state right now if he challenged the qualifications of the panel members and that needed to be separate and apart from what their decision might be. He said to put it another way, would Attorney Uhle accept the findings of this council as being impartial. Attorney Uhle said that at this point he would just have to wait and see and that was all he could say. At this point Mayor Cereceda said that the comment concerned her also, that it appeared to be accusatory, to which Attorney Uhle responded that it was not an accusation and that, as he had said, he would have preferred not to raise the issue. He said they have a party who has taken a position and that they all had to make a decision based on the record, that frankly if he understood that two or one of the staff were members of the Civic Association, then he would probably be asking them to recuse themselves. The problem is, as he has indicated to Mr. Roosa, is that, if he is correct, three of them are members of the Civic Association and if they were to recuse themselves, they would be left with two members on the council to vote and that would not be a quorum. Attorney Roosa told Attorney Uhle that as he is aware of their membership, he had the opportunity now to proceed with this hearing or to withdraw his application until this problem could be addressed at some other forum. What is your election? Attorney Roosa inquired. Attorney Uhle said that at this point they would go forward.

Mr. Charles Bigelow took the floor. He wanted to know if there would be any objections to his exhibits, which he explained were demonstrative ones. Attorney Uhle said he would object. Charles Bigelow then explained the nature of the exhibits. One was a board that was a larger version of the map exhibit already on display, but Mr. Bigelow stated he would be perfectly happy to use the first exhibit for his purposes. He wanted to use the board just so that the other documents would stand out, and he stated that the other documents were not evidence. They were statements -- flash cards if you will -- of legal argument and perfectly admissible and perfectly useful for the purposes of argument.

Attorney Uhle then said he had no objection, they were not being used as evidence and that Mr. Bigelow was going to take them with him. Mr. Bigelow advised that he was trying with a few documents to save 10,000 words. Mr. Bigelow said that he represented the poor man's Lee Civic Association and that there were two or three questions that look at the case.

One has been alluded to, and that is the facts ... You can determine from those facts what the situation is ... and then you have to look at the rule applied to those facts. He stated that everything he had to say applied to the rule. He had argued in Fort Myers that it is difficult to see the Beach from the courthouse in

Fort Myers and he was not about to come down here and tell anyone what their decision should be but to explain what the facts are. Secondly, he would like to clarify what the Civic Association's interest is herein and he advised that we wouldn't hear anything unfamiliar about whether this is a good project or a bad project. Those are things they can consider, but they are not the Civic Association's principal interest. Our interest, he said, is the Plan and whether or not this application is consistent with it or whether it actually frustrates what the Comprehensive Plan is all about. There is a lot of confusion about the Comprehensive Plan's purpose, but Mr. Bigelow would like to say for the record that their objective is the Comprehensive Plan ... Mr. Bigelow advised he had brought exhibits to put the Plan in the context of what he is talking about. The first exhibit was explained to be a quotation from a fairly important and substantial case that decides what a plan is. A Comprehensive Use Plan is a mandated legislative plan to control and direct the use and development of property within a municipality. The Plan is likened to a constitution for future development. Our concern is the constitution, rules that apply to everybody and guides future development here. We are doing zoning and zoning is the means by which the Comprehensive Plan is implemented and it follows the exercise of discretionary powers within the limits imposed by the Plan. A zoning action not in accordance with the Comprehensive Plan is ultra vires, or beyond authority. The second exhibit was explained by Ready, Aim, Fire. Ready, you collect the data and understand the problem. With Aim you adopt a plan, and with Fire you zone in. Mr. Bigelow indicated that this was the best order to follow when utilizing the Plan. He also emphasized that the landowner has the burden of proving his proposal is consistent with the Comprehensive Plan.

The first provision of the Plan under Policy 18.2.1 is that commercial development shall not expand or intrude into residential neighborhoods, and it was designed to protect pockets of development that were threatened by standard commercial development. With the help of the map, Mr. Bigelow showed that if one takes a linear view, then no residential neighborhood exists along Estero Boulevard. The Nyman buildings were built before there was a plan. But the existing zoning for this project is two-family Conservation District and the function here was to protect those residential pockets that existed. The Lee Plan, Mr. Bigelow said, was first adopted in 1984. There was zoning before there was a plan. We were firing before we aimed. And to say now that that zoning somehow undermines efforts to reconcile the uses of the Plan, is ridiculous.

The second provision of Policy 18.2.1 states that all commercial rezonings shall be required to rezone to the Commercial Planned Development zoning category. Mr. Bigelow said that the CPD is to permit all usage within a CN district, which is one of those general categories and it attaches a few little conditions to it, such as putting up 12-foot trees instead of smaller trees. He suggests that this approach is nothing more than a ruse to get around this requirement. You are doing nothing more in substance than granting CN zoning. It was put in there obviously to meet the requirement of addressing densities and intensities that threaten this island.

Provision 4 states that during 1992, the Community Development Agency, utilizing the CRA. Redevelopment Code, shall develop a zoning plan or plans for the district. In other words, Mr. Bigelow states, by 1992 we were to have Aim. We have not been consistent with the mandates of this plan (which can be found on Page II-59 of the packet). The Plan goes on to say that until that zoning plan is adopted, property which has existing commercial zoning can be developed or redeveloped consistent with that zoning and the Lee Plan. Mr. Bigelow said that we are always going to zone into planned density in the two districts because we want to look at the densities and intensities in relation to these problems that we know are here. But we've got to do a plan. If you read this in the Ready, Aim, Fire context, you will conclude that this provision says that we are going to let the existing zoning stay, we're not going to make the problem worse until we get this plan. There is no fair reading of this except for the fact that commercial zoning, until that plan is developed and certainly not after we fail to develop the Plan, is consistent with this Plan. Further, and you may want to talk to your lawyers about this before you react, the rezonings on this island were not consistent with the Plan because the predicate to the zoning plan has never been fulfilled. But to go forward on this case and approve a density of ... 14 residential units, I suggest to you that it makes a mockery of this provision.

On behalf of the Civic Association, I am asking you to deny this zoning until the comprehensive planning is done and we have a context into which to put this request, a context that would be applied to everyone equally. And then we will have a measure by which we can determine whether this proposal is a good one or a bad one ...

Attorney Uhle again took the floor. He said that since both parties had referred to Goal 18, it might be appropriate now to pass out the Lee Plan which refers to Goal 18 so that we would have it before us. The Plan was passed out at this point. He asked everyone to turn to II-59.

Attorney Uhle said that in reference to the zoning along Estero Boulevard, we all know that it's not just the zoning along Estero Boulevard, but the fact of the matter is that it is all commercial with very little exceptions. We are talking about an island of residential in the middle of commercial. He said he didn't think Mr. Bigelow would disagree with him that the residential potential for that particular property is extremely limited and if we don't get the zoning no doubt it will result in not being more than a pocket of decayed residential usage.

Mr. Bigelow, Matt Uhle continued, tried to argue that the use of the CPD in this case was a subterfuge, that we're actually asking for a CN zoning. That's not true. This case was actually filed initially as a CN-2 request. But because of the language in the Comprehensive Plan, it was changed to a CPD. Usually when you do a CPD, the reason you do it is to get breaks from the development regulations, ask for deviations from the development regulations. In this case the deviations that we requested all are related to access and they were inherently obvious because without them we can't get access to the property and nobody can deny access to the property. What we did by doing a CPD was to provide, first, the Hearing Examiner and then you with the ability to impose additional conditions on this particular project. We didn't get anything out of doing this as a CPD. What we did was give government an opportunity to attach more conditions, lending development, reducing usage, acquiring additional buffering, etc. ... The Hearing Examiner did that at the previous hearing. We didn't ask for the enhanced buffering in this case, for example. but the Examiner imposed it to protect the area and we agreed with that. We don't have a problem with it.

With regard to Policy 18.2.1, Attorney Uhle said, the language that Mr. Bigelow has described in his argument that all commercial zonings since 1992 are invalid ... the language here doesn't say that we cannot do commercial zonings on Fort Myers Beach. It says that until a zoning plan has been adopted, and we agree it has not been adopted, property which has existing commercial zoning can be developed or redeveloped consistent with that zoning and the Lee Plan. In other words, anybody who's got commercial zoning can use it. But it's a big step from there to say that someone who doesn't have commercial zoning can't rezone the property. And that doesn't say that.

Finally, continued Attorney Uhle, with regard to the reference to the hotel, the hotel is posed as an alternative use to the other uses. My client has indicated that if it would make everybody feel better if the hotel is a particularly objectionable use, we would have no problem with that being deleted. We hope that would help you make your decision.

Mayor Cereceda next called on Mr. Ed O'Donoghue of the News-Press as a party of record, but he was not present at this hearing. Other comments were invited.

Chip Block requested that we look at Condition 6 of the Resolutions and note that we do not incorporate the Hearing Examiner's recommendations of Condition 7 or 8. He advised that it was a failure on their part when they prepared the Resolution for us. If the Council ... actually approves this rezoning, we would like to include those conditions, Mr. Block stated, and he would like to recommend that the motion include all of the conditions of the Hearing Examiner's report including those other two conditions and then the Resolution could then be corrected to include that.

Mr. Roosa was asked to amend the Resolution to delete the OR 14 efficiency hotel/motel units, and he said he would. Mr. Roosa addressed the issue of conflict of interest. He stated that conflict of interest is very serious. There are statutes regarding conflict of interest and it is very clear that it is identified as an economic conflict of interest.

He told the staff that as elected officials they are required to perform their duties, which include voting on matters that come before this council. If they fail to do so, that is malfeasance. The question then becomes is there a conflict of interest from which you are legitimately excused, and that conflict of interest is identified as an economic conflict of interest. It is arguable that since you are taxpayers and residents of Estero Island in the town of Fort Myers Beach that you have a conflict of interest because every issue that comes before you in some manner affects you. Obviously, that's not a legitimate conflict of interest which would excuse you from voting. Understand that you are required to vote unless you're excused.

The next question, Attorney Roosa continued, becomes what about membership in an organization that has taken a position on matters that come before this board. And the answer is if you have an economic interest in that, if you're a shareholder in a corporation, for instance, that comes before that board, that's a recognized economic interest and therefore a legitimate basis for you being excused from voting. Being a member of a community organization is no different in this instance from being a citizen and resident of Estero Island. There is no conflict of interest and you cannot be excused from voting on this matter.

The second thing, said Mr. Roosa, is that there has been a resolution prepared and as modified ... and the first order of business would be for the Mayor to solicit a motion to approve the resolution.

The Mayor asked for a motion to approve the resolution.

A motion was requested by Charles Murphy to approve the Resolution with the changes that were made. No one seconded the motion.

Attorney Roosa said he thought it was important now for the council to address its responsibility. As the town council, you're here to review the Hearing Officer's findings of fact and conclusions of law. You are not here to take testimony and so you are bound by the finding of facts of the Hearing Examiner.

However, the conclusions of law have to do with how those facts are applied to the law. I think what you must do in terms of considering this issue is to look at some of the conclusions that the Hearing Examiner made and determine if that's the proper application of law. And I think that it's fairly obvious that this significant relevant issue involved here is identified in Policy 18.2.1 that you all have copies of before you. And more particularly if upon reading the Hearing Examiner's findings you find that the significant issue that was raised by the Planning Department was the problem of commercial development shall not expand or intrude into residential neighborhoods. I think that one of the issues that you need to address is the Hearing Officer's conclusion as to the extent of the neighborhood. I have researched the issue and can find no specific law that identifies a neighborhood, but I think it might be helpful if I gave you a little understanding. The question of neighbor is a question 2000 years old, and if we take the ultimate extreme of what constitutes a neighbor, then every living person is a neighbor to every other living person. Obviously in matters of zoning

it wasn't intended that neighborhoods be that large ... And I propose that one way of looking at a neighborhood in a zoning situation would be that many of us have experienced the traditional barking dog in the neighborhood. The neighborhood in that instance goes as far as the dog's bark, because if it's too far away it doesn't bother you and you're not a neighbor in terms of being intruded upon by the barking dog. And those perhaps are the two extremes.

In this instance, Attorney Roosa continued, I think what was intended in the law is that there be a determination of adverse impact in the neighborhood.

This development, for instance, would have absolutely no effect on the main commercial area of the town, Times Square. Attorney Roosa then explained that you could not hear a barking dog that far away and therefore could not consider the Times Square area as part of the neighborhood. The neighborhood has to be somewhere where there is a positive or negative effect for the development.

The record shows that the neighborhood is on the north and is predominantly residential. There is a park there which is compatible with residential usage.

There is a school there which is compatible with residential usage. And there is a church, another type of institution that owns property in the development. All of these are very compatible with residential areas, although they are not themselves residences. The question then becomes what constitutes a neighborhood and where is the neighborhood, and I think that would be helpful for you to make a determination as to whether or not this constitutes an intrusion into a residential neighborhood. I think it would be helpful for you discuss some ideas that you might have, more particularly the Hearing Officer's determination that the north side of Estero Boulevard constitutes a neighborhood. That is not a finding of fact, that is a conclusion. And that's an area you have the right to address.

A question was put to Attorney Roosa. Referring to the map, the questioner said that (he heard) that zoning will not be contrary to the public interest, or public health, safety or welfare. When you look at this case, School Street is one way during school hours and you require that this drive be right in, right out only, which means that if you are coming south you can't turn left on this road during school hours. If during school hours if you had delivery trucks for those 14 hotel units, they would come down here and, hopefully, further south they would find a place to turn around ... kids may be at risk. The hearing did not seem to address the one-way aspect of the street or that the proximity of this to our school ... If a child were hurt in the traffic because of the increase in traffic ... I don't know if we would be liable as reasonable people for setting that up, knowing that those kids ...

Mary Gibbs of Community Development stated that the staff had recommended denial, so she believed those were the Hearing Examiner's recommendations and approval. In this hearing you can modify conditions, change conditions. If you have some concern about a condition, you can suggest that that condition be changed. The Planned Development zoning is kind of a bubble plan, so a lot of the actual details get worked out later when the applicant comes in with a safe plan and gets the development order, and a lot of times those points are worked out. But here, because they asked for deviations for accesses, we address some of those issues now. But if you feel uncomfortable with that condition, you can change it, modify it or delete it, do whatever you want with it.

Mayor Cereceda asked Ray Murphy if he saw a commercial development to be an encroachment in the neighborhood and he replied that he didn't. In his opinion, to use Attorney Roosa's analogy, the applicants are the barking dogs. They barked and nobody heard them. Nobody in that neighborhood came up to complain about anything. It would be different if this was down in an area where it was heavily residential, or what have you. That's not the case here. Number one, there was no objection. Number two you have some people who are going to experience an economic hardship as a result of this in the days to come.

Maybe not today while it's being rented, but in the final analysis they are going to be hurt economically. And I agree that this is surrounded by "commercial usage" already.

Ted Fitzsimons said there were a couple of things he found interesting. He noticed the absence of the relevance of the school traffic being one way ... accommodate the school staff. Also, he added, neighborhoods on Estero Island are very unique things, like many other aspects of life on Estero Island. And a definition of a neighborhood in central Kansas or Nebraska is significantly different from one in Estero Island. We're probably closer to the Hong Kong concept than we are to something of rural America. We have commercial/residential, commercial/residential elbow to elbow up and down this island. And that has been the case and that was the case back in 1989 when the sector plan was allowed to be created and underwritten by Lee County. And in the attempt to define those two significant land use areas that we have on Estero Island, the urban community and the suburban, the effort was made to take all the area that was strictly residential -- absolutely residential -- and basically isolate it into the suburban land use category with the support of Policy 18.2.2, which restricts the suburban land use category even more by saying that within the suburban land use category in order to protect neighborhood character no rezonings to commercial shall be allowed. So that means that the yellow area (he points to the map) is locked in residential. The question then came up what do we do about the other area which is all this mixed bag: elbow to elbow, border to border, no buffering whatsoever between commercial and residential areas to speak of. Down in the south end of the island there is more buffering, more separation. But in this section it was agreed by the committee that -- and this was based on study data that was done over and over again -- that commercial areas should be confined to exactly what existed at that point in time and that residential densities basically should not be allowed to expand. So the concept was that everybody seemed to agree and the study data came in between 74% and 80% of the responders to the study in which were hundreds that the status quo of what existed then would be locked in and not allowed to expand or overlap or grow. So the concept was like putting bubbles over each little isolated pocket. And we have pockets, and they are small pockets, very small pockets, and our neighborhoods are very small. And we have islands -- I think was the term -- of residential. We have islands of semi-commercial or soft commercial. We have islands of hard commercial. We have all sorts of different islands within this island community.

Mr. Fitzsimons said that one of the impressive things he found in all the testimony and in all the conclusions was the fact that the Hearing Examiner (in the previous hearing) required significant buffering on the north and the east side, buffering between what it was going to be if it was rezoned and what it is now, which is residential. Now why do you need significant buffering? Was asked. You need significant buffering because you are changing something significantly. And what you are changing is a residential neighborhood or a piece of a residential neighborhood to a commercial use. That convinces me that that is a residential neighborhood, and the fact that the applicants want their quarter of it to be rezoned for commercial use convinces me of that. And that's why the Hearing Examiner confirms that, with her requirement for extensive buffering for protection of the rest of the remaining part of the neighborhood, which is still residential. The sense of neighborhood, once again, is very unique on this island. Condominiums, even small condominiums -- and this was discussed back in 1989 -- are considered neighborhoods. And that's one of the reasons why that particular phrase in 18.2.1 tended to protect all neighborhoods, not just condominium neighborhoods where there were a number of condominium associations that had due process that said we don't want to have anybody trying to move commercial activities into the bottom floors of our condominium. Which could have happened. And the concept was that a condominium is a neighborhood in varying sizes. In physical examination of this piece of property and its relationship to its neighbors, sure it has been threatened and there are intrusions all around it and that's why that word exists in that policy. Intrusions or expansions, and this is an intrusion of commercial activity in a residential neighborhood.

Mr. Garth Reynolds spoke next. I read through my report several times, and when I read of Sandler's findings and conclusions, I find that everything he says -- I'm going down a whole list of them -- are consistent with CPD. I don't find this copy a CPD, so I find that his findings are consistent with what he's listed here. It has no significance at all to the property that came before him ... I find it very much an intrusion into the neighborhood.

Mayor Cereceda, addressing Mr. and Mrs. Nyman, said that for the record she can attest to the integrity of every single person sitting on this board, their associations with any group on this island, her association as a business person on this island ... She noted that she had truly tried to look at everything that has come up in the past six months individually ... She asked Mr. Roosa to define "intensity" for her, to give her the difference between "density" and "intensity".

Attorney Roosa said that intensity, in the case of a commercial project, would be the square footage of the project, and also included is the type of land usage being imposed on the subject property, and then based upon how much of that type of land use is going to be on the site. For example, if you approve a building of 6,000 square feet as being proposed today, a professiional office use may not have as much impact as a retail commercial use, or even a restaurant use. And you have to take a look at both items, both the square footage being imposed and the type of land usage being imposed to create what you believe and find and in your opinion is the intensity of the property and then make a comparison to the adjacent property.

Attorney Uhle was questioned regarding what he meant by saying there was no future for residential use of that property. No economic future? Mayor Cereceda asked. That certainly is the choice of the property owner. I've never heard a developer say that. Other people have never said, well, if I can't do this, that property is just going to rot.

In response, Attorney Uhle said that what he was saying was that there is no economic incentive for his clients to redevelop the property because they would lose ... by doing so under the Lee Plan. Consequently, there is no reason to believe that anybody, whether my clients or anyone else, would be willing to spend time and money to redevelop the property ... So what's the alternative?

The alternative is status quo. My clients are trying to keep these ancient structures in good repair, and they'll do the best they can, but time does what it does and there's not much we can do about it.

Mr. Bigelow advised that he thought it was fair to say that there may be across this island areas where increased density or increased intensity should be allowed through a board to continue in that condition. But that decision ought to be made in a broad context, not on an ad hoc basis of how does it feel today; but on the basis of some standards or goals that the community has set up to address those kinds of problems so that those rules apply to everybody equally.

We didn't take the position of whether this is an area where there is an economic problem or not, and I'm not acknowledging that there is, but I do want to acknowledge that there may be some situations where it might be a problem. Ted Fizsimons said that this particular property is in no ways unique, that there are a lot of old properties.

Ray is right, Mayor Cereceda stated. The property met with no opposition. She then asked Attorney Roosa for his opinion on the whether if approved or denied, there was a difference between Mr. Bigelow's approach and the staff's approach.

The Mayor wanted to know the difference between what the staff is saying and what Mr. Bigelow is saying.

According to Attorney Roosa, what Mr. Bigelow is saying is that under the Comprehensive Plan, this panel would have no jurisdiction to make the rezoning. Or in the alternative, if they didn't completely discount the plan because of a failure to adopt the local plan, then they would be deprived because in the expressed provisions of the term, it limits ... the parcels that are currently zoned commercial ... So that is a legal argument, and as a matter of fact it is part of an argument that is part of a lawsuit that has already been filed, though not in this particular lawsuit. But if we were to prevail on either of those arguments in that lawsuit, it certainly would affect this parcel ... The Planning Commission said "within the guidelines of the Lee Land Use Plan" ... that it amounts to a violation, that it is not in conformity with the Plan because it is in fact an encroachment into a residential area. So they're saying we accept this plan. We say you have the authority, you could do it, but you shouldn't do it because it's the applicant's responsibility to show conformity with the Comprehensive Plan and they're saying that this constitutes a violation of that plan, and the way that was addressed was from the Hearing Officer's identification of the neighborhood by eliminating the residential aspect of the neighborhood that causes problems with encroachment into the neighborhood. Another thing I would like to call to your attention to is that the Hearing Officer in Note 2 says: However, given the

subject property's location right on Estero Boulevard, the Hearing Examiner found it impossible to ignore the existing commercial uses and the commercial nature of the area surrounding the site, as well as the obvious trend for commercial uses fronting on Estero Boulevard. That is a finding that this property fronts on Estero Boulevard. The general definition of the front of a lot is the narrowest portion of a lot. So if you think of the home site being 80 x 125, what would the frontage be? It would be 80, right? So when you talk in terms of the front of a lot, you're talking about the narrowest portion. It happens that this total parcel is 150x150. However, there are six lots and they are private, and if this is a correct representation and the petitioner's exhibit of the property appraiser's records, it shows those lots to be fronting on School Drive. And so the finding that this property fronts on Estero Boulevard is inconsistent with the plat which shows they front on School Drive. That may or may not have affected your decision in this case.

In relation to that, would that not fundamentally condemn any piece of property that fronts on Estero Boulevard with that logic? was asked. Attorney Roosa replied, well, if you accept that logic, perhaps so ... The Hearing Examiner finds that this particular property fronts on Estero Boulevard, but the evidence in the plat itself shows that the property fronts on School Drive.

Charles Bigelow felt that a decision should be made in a broad context, that rules should apply to everybody equally.

Mayor Cereceda stated that as Ray Isler said, this met with no opposition. It was Ray Murphy's opinion that the safety issue would not be a big concern, that he would feel comfortable with rezoning, and that none of the neighbors had stepped forward to give an opinion about the project.

Ted Fitzsimons, referring to Policy 6.1.5, stated that this island is a rezoning engineer's nightmare.

MOTION: Made by Ted Fitzsimons and seconded by Rusty Isler to bypass the Hearing Examiner's recommendation for approval and move for denial of a change in zoning. Passed, with one "no" vote from Ray Murphy.

The meeting was adjourned at 4:30 P.M.

Respectfully submitted,

Lorraine Calhoun

Recording Secretary