Waterside expansion delayed further

But the day didn't go as planned.

On Thursday, after months of delays, the Collier County Planning Commission was to hear and rule on an amendment to the Pelican Bay PUD, or Planned Unit Development, ordinance that governs development in all of Pelican Bay, of which Waterside Shops is a part.

Instead, the Planning Commission heard legal arguments about the validity and right of WCI Communities Inc., the developer of Pelican Bay, to bring a zoning amendment to expand Waterside Shops.

And now the amendment has been continued for the fourth time, while the county attorney's office reviews the claims. It's scheduled to come before the Planning Commission on Dec. 18.

Pelican Bay runs from Vanderbilt Beach Road on the north to Seagate Drive on the south. The amendment asked that approval for 170,343 square feet of commercial space be transferred from the northern part of the PUD to the southern, where Waterside is located.

With the amendment, the outdoor mall could add a second floor to its two department store parcels, four smaller retail spaces, an office building and two parking garages.

The expansion would make way for a new department store to come into space left empty by the closure of Jacobson's. Developers said the parcel was not large enough for any of the interested stores.

As part of the deal, developer WCI is doing away with 800 residential units planned for the northern section of the PUD.

However, attorney Terry Lenick, representing local attorney Tom Conroy, who lives near Waterside, challenged the validity of WCI's amendment, saying the landowners -- not WCI -- in the northern part of Pelican Bay need to bring forth the amendment.

WCI owns no land beneath the commercial property under dispute, but the allowed commercial square footage hasn't been maximized.

"WCI doesn't own a single bit of that property," Lenick said.

While WCI doesn't own any of the dirt, said Larry Keesey, the attorney representing WCI, it still owns development rights.

"We don't have to own land," Keesey said, "to own development rights."

However, Lenick said that unless the company has a private covenant or agreement with the property owners that restricts intensity, then WCI no longer has a claim to the property. Lenick would like to see those covenants, he said.

"Waterside, in my opinion, is buying air from WCI," Lenick said, "when it comes to the rezone."

Keesey said that these are not "phantom" units as Lenick said, but that the square feet remaining allows building owners on the property to purchase square feet from WCI to build upward if they chose or to tear down and build anew.

WCI has 175,000 square feet available, Keesey said, and since 1977, 12 or 13 PUD amendments have been approved without objection.

However, Lenick insists WCI needs to get permission from the landowners before the available square feet can be transferred.

"The county attorney needs to review this," said Assistant County Attorney Marjorie Student.

The other hot item that caused private citizens to turn up at the meeting was a staff recommendation that Crayton Road be opened to allow for traffic. That recommendation has been dropped

WCI doesn't want the road opened, Keesey said, and shouldn't because the company's analysis of traffic showed that moving the square footage from north to south would decrease traffic. If the square feet available in the northern end were built up, it would increase traffic by 1 percent, he said.

"I think this is getting a little bit old," Keesey said.

"I share your pain," said Commission Chairman Russell Budd.