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EAC Minutes 04/25/2001 RApril 25, 2001 TRANSCRIPT OF THE MEETING OF THE ENVIRONMENTAL ADVISORY COUNCIL Naples, Florida, April 25, 2001 LET IT BE REMEMBERED, that the Environmental Advisory Council, in and for the County of Collier, having conducted business herein, met on this date at 9:10 a.m. in REGULAR SESSION in Building "F' of the Government Complex, Naples, Florida, with the following members present: ACTING CHAIRMAN: COUNCIL MEMBERS: Michael Coe Larry Stone Chester Soling William Hill Erica Lynne ALSO PRESENT: Patrick White, Assistant County Attorney William Lorenz, Natural Resources Department Barbara Burgeson, Senior Environmental Specialist Page I IV. V. VI. VII. ENVIRONMENTAL ADVISORY COUNCIL AGENDA April 25, 2001 9:00 A.M. Commission Boardroom W. Harmon Turner Building (Building "F") - Third Floor I. Roll Call Il. Approval of Agenda III. Old Business A. Continued discussion on Wetlands, Native Vegetation and Wildlife Policies New Business Council Member Comments Public Comments Adjournment Council Members: Please notify no later than 5:00 p.m. on April 20, 2001 if you cannot attend this meeting or if you have a conflict and will abstain from voting on a particular petition (659-5741). General Public: Any person who decides to appeal a decision of this Board will need a record of the proceedings pertaining thereto; and therefore may need to ensure that a verbatim record of proceedings is made, which record includes the testimony and evidence upon which the appeal is to be based. April 25, 2001 CHAIRMAN COE: Have you got the e-mails sent out by Ed Carlson? MS. LYNNE: I have them in front of me. UNIDENTIFIED MALE: We can't hear anything. MR. WHITE: If we're getting comments from the public, I think we ought to go on the record formally so that everybody can hear. CHAIRMAN COE: The meeting will come to order then. Thank you. Everybody has the e-mails from Ed Carlson? MS. LYNNE: Yes. CHAIRMAN COE: Does everyone have the sheet from Allie Santoro? MS. LYNNE: No. MR. SOLING: No. I only have two things from Mr. Carlson. I don't have a second one. MS. BURGESON: That's all we had to hand out were two from Ed. CHAIRMAN COE: Pardon me? MS. BURGESON: All we had to hand out were two from Ed. CHAIRMAN COE: Okay. MS. BURGESON: If you got a third, we didn't get that in the office. CHAIRMAN COE.' All right. I've got this thing from the growth management subcommittee from Allie Santoro. Has this been passed out? MS. BURGESON'- I haven't seen that. MS. LYNNE: Can we get copies of that made? MS. BURGESON: Sure. CHAIRMAN COE: We ought to make some copies. Here's the other e-mail, also, from Ed Carlson, if you'd make a couple copies Page 2 April 25, 2001 for us. Let me ask the pleasure of the committee here: We have the original memorandum. Does everybody have that, the original memo? MS. LYNNE: You're talking about the original memorandum from Bill Lorenz? CHAIRMAN COE: Bill Lorenz, right. MS. LYNNE: The first draft of this growth management plan? CHAIRMAN COE: MS. LYNNE: Yes. CHAIRMAN COE: Right. We had already gone through this up to -- MR. LORENZ: Policy 1.1.7 is where my notes -- CHAIRMAN COE: Yeah. MR. LORENZ: I mean, through policy 1.6. We have to start at 1.7. CHAIRMAN COE: Well, I have us finishing off at 1.6. In other words, I would like to start on 1.6 again because there was some questions on the one-to-one ratio. Additionally, reading Ed Carlson's notes, he wanted to have a one-to-three ratio. MS. LYNNE: What page are we on? MR. LORENZ: Page 6. CHAIRMAN COE: Page 6. MS. LYNNE: Okay. Got it. CHAIRMAN COE: Does anybody else have any questions as to where we are? Is anybody against starting the discussion there at Policy 1.67 MR. SOLING: Nope. MS. LYNNE: Can I just ask one thing? CHAIRMAN COE: Sure. MS. LYNNE: It may not be -- we may want to talk about this later, but we also got before the last meeting a memo from Mike Bauer, who's the new Audubon person, that had some Page 3 April 25, 2001 recommendations about the county-wide minimum standards for wetlands. Does everybody have a copy of that? CHAIRMAN COE: No. MR. SOLING: No. MS. LYNNE: Okay. And then the other thing is, as we've looked over this and we started going over it, based on the draft that staff gave us -- and we also do have available to us information from many other counties which have been -- especially you guys because you're new on the board. Nancy Lananne, who is a consulting attorney in Tallahassee, prepared this entire volume here (indicating). It's got wetlands policies from other counties which are working, and in none of those do we give A, B, C, D exemptions for how developers can get around them. I would really like to relook at that, and do we really have to sit down and give people -- say, "oh, well, you can destroy wetlands if you need access," or if you have reasonable this or if you have reasonable that. I would really like to look at that issue. CHAIRMAN COE: How did you get a copy of it? MS. LYNNE: I called Nancy Lananne. CHAIRMAN COE: And you've got a copy of it? MR. LORENZ: Yes. CHAIRMAN COE: And we don't have a copy of it? MS. LYNNE: That's correct. MR. LORENZ: What this is is a compilation or selective counties in the state that Nancy Lananne put together back through the summer for them to review what other counties are doing. I mean, if you want to -- CHAIRMAN COE.' Does your draft reflect anything from that? MR. LORENZ: There are some -- there are some bits of materials from different places that I have taken throughout the whole summer, a few from here. There are some policies -- some Page 4 April 25, 2001 counties that aren't even listed in here that we were looking at as well. I mean, I guess the question is, if you want this as a resource, we can provide you this as a resource. I mean, if you want all the counties in the state, I mean, you can borrow from a bunch of other counties as well. So whatever kind of information you think that you need to have to help go through the process, we can get you that information. CHAIRMAN COE: Well, is there a particular reason that we need to have these, you know, WRAP-type things? Is there a particular reason that we have to do that? MR. LORENZ: Okay. Let me back up a little bit to set the stage for everybody. The 9J5 criteria, which is the criteria for which -- it's the state comprehensive plan's minimum standards that the counties have to meet. They have a particular section for wetlands policies in the growth management plan. That criteria states that, No. 1, we have to inventory the type, the functions, the values, the location, the size of wetland systems within the county, and then we have to direct incompatible land uses away from those wetlands. The county decides which wetlands to set those policies up for. It also recognizes in the 9J5 criteria that not in all cases can you do that, therefore, mitigation is an appropriate tool to have addressed in your policies. That's all the state standards pretty much require. They also indicate that the comprehensive planning policies are not to be a set of permitting regulations. It recognizes that the county does not -- it does not require the county to adopt a permitting program for wetlands. That's the guidance that we have from the state level. At that point we as a county decide, then, as to how we want to address those requirements. There are a lot of counties around the state that address those requirements in a variety of different ways. The reason they address it in a variety of Page 5 April 25, 2001 different ways is because they have their local discretion as to how they want to do things. We can certainly use those counties as a resource of which myself and my staff have reviewed several of the county's -- Hillsborough County specifically is one that we did pull some information from, that's not in here, as to what those policies look like. Now, the specific question you asked is, do we have to do a WRAP. A WRAP is a wetland rapid assessment procedure. That is a process the South Florida Water Management District has been using for a couple of years now in the context of evaluating wetland functions for purposes of mitigation. At the state level there is a committee -- the state has actually charged -- the legislature has charged the agencies to look at a statewide rapid -- wetland rapid assessment procedure of which there's supposed to be some report in January of 2002, I think is what I understand from one of the consultants, and that procedure does have perhaps some utility for defining wetland functions. And the question that came up at the last meeting that we had on this discussion with the EAC on wetlands was our classification scheme. The classification scheme is developed because of the 9J5 requirement that requires the county to classify the wetlands as to type, location, size, function, value. The classification scheme that staff settled on is what you have in this November 8th draft that we're working from as being the first draft. The discussion was brought up among the council with some council members, and one of the speakers, specifically Tim Durham, was the possibility of looking at a WRAP, that rapid assessment procedure, as having some utility to establish what the wetland functions are. I look at that as an alternative to staff's initial classification scheme. Page 6 April 25, 2001 As a staff member, I'm committed to trying to look at a couple of different wetland classification systems so that you can take a look at it in the context of a second draft. So the alternatives that I would like to look at is to take some feedback on the classification system that we currently have, to fine tune it, and putting out a system that we can use for a WRAP or a modified version of the existing WRAP as a classification scheme for you to consider. There is, perhaps, another way of looking at the wetland classifications that -- and, perhaps, we can develop a third alternative. So for wetland classification systems I would like to be able to have that time to come back to you and propose a couple of different alternatives working with the environmental and development community. So we don't have to do the WRAP. It's going to be our decision, the county's or the local decision, as to how we want to classify wetland systems to meet the 9J5 criteria. MS. LYNNE: Can I ask another question? CHAIRMAN COE: Go for it. MS. LYNNE: As you know, I think doing the WRAP thing is a really good idea, but my specific question was, why do we -- when we establish -- I mean, the purpose of this is to protect our wetlands, and we want to set guidelines for protecting our wetlands. Why do we have to say we will permit impacts when the applicant can demonstrate that they have to have it for this reason, for that reason, for the other reason? Why are we giving developers a way to get around all of this? MR. LORENZ: I think the broad answer to that is there's always a balance in terms of property rights and environmental protection. Somewhere along the line there is certainly a legal balance or a legal requirement for property rights. From that point on, then, there is, if you will, a political recognition as to Page 7 April 25, 2001 what we will allow that goes beyond the legal requirement. In our proposal, staff's proposal, what we have done is we've said that Class I wetlands are so important for the county that there is a very minimal amount of ability to impact those wetlands. Remember, even if you impact the wetlands, you still have to mitigate for the function. Theoretically, as you mitigate -- if you have 100 percent mitigation of function, you are not destroying wetland functions as you impact a particular wetland and mitigate someplace else. Now, there is -- I mean, let's face it, there are problems with mitigation. You know, will mitigation provide for a hundred percent of the functions, and those questions then get involved with how do we specify mitigation or when do we specify mitigation. From a 9J5 perspective, remember that the state from a policy standpoint says we have to come up with a scheme to direct incompatible land uses away from wetlands to protect the wetlands and their functions. Mitigation can be part of that scheme. So as a policy matter, if you say "no encroachment to wetlands at all," then that recommendation also is going to have to have a dollar cost associated with it because you're going to adversely impact property rights to the degree that the county is going to have to pay for taking those property rights. MS. LYNNE.' But these other counties do not list all the ways that a developer can go ahead and impact wetlands directly. I'm not saying that property owners don't have property rights, but if we're forming an environmental policy, why are we making it easier for them? If these aren't specified in here, then the developer has a harder case to prove. But if we say right in there, "Oh, all you have to do is show reasonable this, that, or the other things, and then you can do it," it makes these things not a Page 8 April 25, 2001 boundary at all. It just lets developers go in as we saw yesterday. MR. LORENZ: Well, one of the things -- when we're crafting legislation or crafting these kinds of policies, one of the goals that -- there's a double-edge sword in how we're drafting the language. On the one hand we want to provide the applicant, the property owner, with a certain degree of certainty that they know that on their land they're going to be able to do X, Y, and Z, and that degree of certainty is the way it's written into the policies and into the code. (Mr. Hill is now present.) MR. LORENZ: At the same time we want to craft the regulations to the point whereby as a project comes through the process, flexibility can be granted in order to meet a variety of benefits, whether they be environmental benefits in some cases or public health and safety benefits as well. So you're always in a -- a little bit of a walk on that narrow rope, that tightrope, of trying to provide some degree of certainty to explain to the property owner what he or she can do with their property and at the same time provide some flexibility such that when it comes through the process, we can get the best project possible. So when we specify these policies here, we're providing the criteria by which we can evaluate a project. And maybe this is a time for Barbara to weigh in on -- if we simply have a very broad policy -- we're not going to be able to say it. We're just not going to be able to say an absolute strict prohibition. You're just not going to be able to do that. But under that premise, then, if you don't have a specific criteria for which the project reviewers to review, their job becomes more difficult to then provide up the line to the Board of County Commissioners saying this is or is not consistent with the growth management plan. Page 9 April 25, 2001 MS. LYNNE: Okay. I don't know how much interest the rest of the board has in this, but basically what I see is when a specific -- when it is made this specific, it actually takes away freedom from the Board of County Commissioners to make what they think, at least publicly when they're talking, is the appropriate decision, because the developer has managed to meet the letter of the law without meeting the intent of the law. My feeling is that we have examples where these are not necessary. We can certainly try to find out how they're working in other counties, but my feeling is that we should not be giving developers, you know, the specific guidelines on how they can get around preserving wetlands. MR. SOLING: Can I put my two cents in? I want to use a hypothetical situation. I own ten acres along the Mississippi River. As everybody knows, the course of a river like the Mississippi changes its flow. My ten acres is now under the Mississippi River in the center of the river. Do I have the right -- because I own the property, do I have the right to go and move the Mississippi and build on it? What I am saying is that wetlands are historic and that property rights are not destroyed. But it's the fellow who assumes the property -- bought the property with the wetlands, and he knew damn well there were wetlands there -- unless he's Barron Collier and had it for a hundred years, he knew wetlands were there, and he has to live with the situation and not alter it because he wants to build his home in the middle of the Mississippi River. CHAIRMAN COE: Bill. MR. LORENZ: I'll be looking over here for Patrick to bail me out. CHAIRMAN COE: Patrick is coughing down his coffee. MR. LORENZ: The state adopted the Burt Harris Act back in Page 10 April 25, 2001 the early, mid '90s that basically said when local government comes in and from that point on -- it crafts a new regulation that provides an additional burden on the property owner to the point where there's some additional costs that's associated with complying with that regulation, and they are able to be compensated for that. MR. SOLING: Well, my question may be broad because zoning came in how many decades ago, and that was taking property rights. The Supreme Court and all the courts ruled that zoning is an applicable governmental action to protect the environment and to protect the neighborhood. MR. WHITE: Mr. Chairman, would you like me to respond? CHAIRMAN COE: Yes. MR. WHITE: Patrick White, assistant county attorney. In response to Mr. Lorenz's comments about Burt Harris, May 11th of '95 is the date after which local governments in any of their enactments pertaining to land development regulations or other things that may affect property rights -- if they inordinately burden those vested rights or existing rights, it may be subject to challenge under Burt Harris and the different responses and remedies it has, some of which may include compensation. That, I think, is perhaps one of the factors you have to consider in making recommendations with regard to staff-proposed policies. Certainly the degree of understanding with respect to what is a lawful regulation is appropriate for you to ask an opinion on. And with regard to the answer or the suggestion and the hypothetical about zoning, it's only been around since the mid '20s. So the idea that, yes, there is a relationship between government's duty to regulate or promote the general welfare and health and safety of its citizens, there's a corresponding balancing, if you will, of the rights to use your property that I think is one of the inalienable aspects of ownership of real Page 1t April 25, 2001 property. What we're attempting to do here is to find that balance point in a reasonable way. My position with regard to drafting policies, ordinances, resolutions, whatever they may be, is to make them as clear as possible so that all persons who read them will know how to apply them and follow them. And if that means that to some degree we have to set forth what the exceptions, if you will, from the regulations are, then so be it. There should not be a shell game. There should be an open and honest representation in the public record of what the regulations are. If you don't like what the regulation says in terms of where it puts that balance point between regulation and private property rights, then move it in whichever so direction, but make sure wherever you end up putting it those regulations are clear. I don't know if that helps to frame these discussions or not. I hope it does. If you have any more specific questions, I would be happy to address them as the discussion moves forward, but I think that's the imperative thing to do today, to kind of work through these regulations so that staff has at the end of our meeting today some direction that is going to be specific. Thanks for letting me get my two cents in. CHAIRMAN COE: Well, what she's basically saying is we're telling the developer, "Well, it's Class I, but if you meet this and you've got no other way out, then we'll let you develop on it." What can be more clear than just saying, "In Class I you're not touching it"? Isn't that clear? MR. WHITE: If that's your direction to staff to have them say that, then that's fine. CHAIRMAN COE: I mean, is there -- there's nothing wishy- washy about that, is there? MR. WHITE: I'm not a fan of wishy-washy. All I'm saying is, whatever your direction to staff is that it be done as a Page 12 April 25, 2001 recommendation. CHAIRMAN COE: What kind of position does that put us in, Bill, if we were to do that for the Class I I'm talking about specifically; no mitigation, nothing, you just don't touch it? MR. LORENZ: Well, I think the way staff has crafted certain language I think there's -- we wouldn't be recommending that. CHAIRMAN COE: Why not? MR. LORENZ: Because there just has to be some degree of exceptions. For instance, when we talk about single-family lots where you have a boat dock, there's some riparian rights there. That's to be understood that you can put a boat dock in and impact up to that 5 percent impact. I just think that's reasonable. As the EAC, as your recommendation -- as you're the body to make the recommendation, you may disagree with that position. But I was asked by the County Commission as to what I would consider to be reasonable. I would certainly feel that that particular exception would be reasonable. MS. LYNNE: But what I see happening is, just for example, is it okay -- if you say -- if we put it in the policy that you can have this boat dock, then the next thing you know somebody wants a bigger boat dock or they figure out a different way to figure out the 5 percent impact, or they figure out some way to not qualify part of the wetlands because it really wasn't wetlands 20 years ago or something or another, and you end up, for example, like in Vanderbilt Bay where they have, you know, boat docks way out into the middle of the water. So I see these as openings for not just, you know, your little single-family home out on 25 acres of property out in the estates or something that wants to have a little boat dock. I mean, obviously -- but that's not what happens with Page 13 April 25, 2001 these. MR. LORENZ: I think to kind of go back to what Patrick said -- let's assume that we feel that the example that we're using here for a single-family boat dock is reasonable. You want to make sure -- and your concern is they're going to use this. The developer at some point in the future is going to use this language and make it broader and go beyond this particular exception or assumption here that everybody feels is reasonable. That's where the clarification in the language needs to be crafted such that we say what we mean and mean what we say. So if we all agree that this is an appropriate exception, then the language needs to be written such that "this will be an exception, but this is the only exception." You're not going to be able to deviate any further than what we mean it to be. That's where the crafting of the language becomes important. If on the other hand you're saying, "Bill, as a matter of policy I don't even believe that this should be the case," then obviously it's very simple to say "thou shalt not under any exception impact a Class I wetland as we define a Class I wetland." If that's your policy recommendation, then that's the language we need to make sure that we have. But I guess the question I'm trying to engage you with is, do you really want to say, "Thou shalt not under any circumstances whatsoever allow for an impact in a Class I wetland"? CHAIRMAN COE: Any other comments? MR. HILL: Yeah. Bill Hill. I'm out of position here. I just caught the tail end of the commissioners' meeting and discussion yesterday on Mirasol with what we're considering now with respect to Type I, Type II, and Type III wetlands. They moved the golf course. As far as I know, it's the only change in the plan from what was submitted to us last month and I suspect Page 14 April 25, 2001 what was submitted at the original opening of the meeting or discussion yesterday. Somewhere in these regulations we've got to head off that kind of situation. It seemed to me, if I was reading particularly Commissioner Mac'Kie's comments right, the flow- way was the big item in at least her judgment to approve, and I suspect it was in the minds of the rest of the commission. We talked about the importance of the flow-way. In fact, I thought we were lied to here because we had a presentation that showed the flow-way as alleviating a lot of Lee County's flood problems. But then in the discussion and in answer to a direct question, I was told that, no, it will have no impact on Lee County. I don't know whether you remember that in our discussion. CHAIRMAN COE-' I remember it. I feel the same way. We were lied to. MR. HILL: I think -- and I want to use a parallel situation to our colleague. It's difficult. If I own 500 acres of wetland in Collier County, and I don't care when I bought them, I think we have to get around the possibility of my coming before the boards in the county and saying, "I've got a right to five per acre or whatever it says regardless of the nature of the property as it exists." And I think that's the question you're asking. I think we have to avoid that. Rather than have an ordinance or ordinances which lists 55,000 different special exceptions, I think we have to be very plain, and I think we have to protect the wetland. Ultimately, whatever we want to call Type I, let's make sure Type I is legitimate in functioning as viable wetlands, and then we say "no impact whatsoever." Maybe where we draw the line is how we define Type I. Rather than saying you can do certain things in Type I and try to define the loophole or whatever, let's define Type I as very tight restrictions Page 15 April 25, 2001 on the wetland. I think we have enough technical information to do that. Then staff's problems are eased. Maybe Type II and Type III can be defined to the point where there are several exceptions that can meet, perhaps, the overall density. But I think the county is being done an injustice when we come in with -- what was Mirasol? Six hundred acres of wetlands were impacted or five ninety something. MS. BURGESON: Thirteen hundred acres of wetlands, six hundred being preserve and a hundred being created in wetland lakes and five hundred and eighty-four being impacted. MR. HILL: I think this is a total injustice to the county, and I think if we don't find a way to put in ordinances like this or some way to circumvent that, then I think we've got real problems. CHAIRMAN COE.' I concur. MR. HILL: Did I misread what the commissioners said? Is that the only thing they did in Mirasol was move the golf course? MS. LYNNE: I-- MS. BURGESON: I was not at the end of the meeting, but what I understood was that they voted to relocate that golf course; not to remove it, but to relocate it -- MR. HILL: To move it from the north to the south. MS. BURGESON.' -- which means they probably -- I haven't seen that revised site plan, but that probably means that they're going to adjust the boundaries of that flow-way. MR. HILL: Is there any way in the Burt Harris law, Pat, to somehow -- and in our ordinance say that the density allowed is based not on total property, but on, quote, developable property as defined by total minus nonimpact wetlands? Is there some way to get around it that way? MR. WHITE: The regulations for determinations of density are primarily set forth in the growth management plan and Page 16 April 25, 2001 implemented through the Land Development Code and zoning regulations. Going outside the scope of wetlands and making determinations of how those density calculations will be performed may be a recommendation that you might want to make to the commission. But I believe that the charge you've been given with respect to your involvement in the assessment in the final order and the drafting of the policies to comply with it, I'm not certain that that falls within the gambet of what you've been charged to do. Certainly one of the functions, powers, and duties this council has is to make that kind of a recommendation in a more global context to the board. We probably don't have the staff folks here who may be able to explain it in its finest details of about how density is calculated, but I think in general the manner in which it currently is calculated is consistent with the concept you're alluding to. I may be incorrect about that. I'm kind of still the new kid on the block on some of these things. But there are other ways to do this than the way Collier County currently does it. For example, you can have ranges of density and certain types of land-use categories, not zoning, but land-use categories under a future land-use map. The methodology in Collier is a little different. It uses a system that does consider the type of land-use category you're in, but it also looks to the type of zoning, the type of project, and what's proposed in measuring those impacts and allowing what number of units per acre are finally going to be approved. If I'm incorrect on that statement about whether you have wetlands or not and how it affects how many units you're ultimately able to build, if it's incorrect I'm going to ask staff to respond to that. MS. BURGESON.' From my discussions in the past year with staff regarding how density is calculated, I understand that Page 17 April 25, 2001 whether it's wetlands or not, it's calculated the same way. I don't know if Patrick was involved in the Cocohatchee Bay PUD, but that property owned a portion of water which was also used to calculate the density. MR. HILL: As we had on Vanderbilt. I was going to ask about that. MS. BURGESON: The acreage that was purely open water was also used to calculate density on that. MR. HILL: Yeah. MR. WHITE: Well, that's not an inaccurate statement, but I don't think it goes the full distance to explain the methodology that is used. Although in my initial coming to understand how the system works in Collier, it seemed counterintuitive that you would be able to "draw density'' from submerged land. When you actually look to the methodology that's used, there isn't an appropriate and reasonable balancing. You don't arguably get units from the submerged land, but in the whole calculation process that is considered. I would have to walk you through a practical example, I believe, and I prefer to have staff do that. The notion, I think, broadly stated here is that you want to insure that if you have theoretically 100 acres of property and 50 percent of them are wetlands, the number that you're finally able to build reflects the fact that, in essence, 50 percent of them were undevelopable for purposes of residential units, and I think that our density system does do that. I don't think that the number you arrive at is the same in each of the hypotheticals. MR. HILL: If I understand what you're saying, I don't think that's the case, Pat, or am I misreading what you're saying? Are you saying that the density as calculated now takes into account wetlands that are undevelopable? MR. WHITE: The density as a measure of units per acre may Page 18 April 25, 2001 be consistent in the two projects, but because you have "fewer acres" that ultimately you can apply the number to of the ratio, I think the answer is always going to be that you'll have less developable units at the end of the analysis. MR. SOLING: Mr. Chairman. MR. WHITE: If I'm wrong, I apologize. MR. LORENZ: Yeah. I don't do the calculations. My understanding is it's basically a gross-density calculation. Now, the point of it is, as a practical matter, you might not be able to get all of those units in that calculation to be placed on the land that you're going to be allowed to develop after you go through all of the permitting process. Because to get all of those units on that land may require you to stack them up, and that may not be a marketable product. But I don't work in that area as well. I guess what I'm going to try to do is -- we can get that information for you and clarify it. The discussion I had with Nancy Lananne, the growth management attorney, when we were formulating these policies, however, envisioned the fact that when we establish these wetland policies that they should be specific to the degree that -- and this is the example she gave me. If a developer or property owner wants to put this big of a box on the land but your policies say, "Thou shalt not impact more than 5 percent of the wetlands," then if they have to put a smaller box in, then they have to put a smaller box in. That was her point. That's what these requirements should do especially for, let's say, the Class I wetlands. So if that means that as you apply these policies, whatever mitigation would ultimately be allowed for or whatever exceptions would be allowed for, you just don't give them carte blanche to say they're going to be able to get everything on it that they want. No. These wetland policies would constrain that. The way we draft them, that would be the Page 19 April 25, 2001 constraint. That was her guidance to me as to how to put the policies together, especially for what we consider a Class I wetland. MR. WHITE: I think it's important to note at this point in the discussion there's a difference, in my mind at least, between the density that a certain property may have as the ratio of the number of dwelling units per acre and the idea of whether you can develop within and on certain types of land, i.e. wetlands. I believe the charge you've been given is to help establish some policies that will determine where the line is drawn, if you will, with respect to wetlands, and not so much the global issue of whether or not the units that may otherwise have been gleaned from that wetland are appropriate to be developed on the remaining portion of the site. I certainly think it's within your purview to make a recommendation with regard to that outside the scope of these policy considerations that are being brought to you by staff. But I don't believe that the broader issue is one that's, if you will, part of the discussion. MS. LYNNE: That broader issue is covered in several of these other county's wetlands policies. I'm not saying we have to do it, but it has been done. MR. WHITE: It may be appropriate in those counties that it be stated there because of the manner in which they overall regulate density, if you will, and the implementation of that ratio in a final site plan in the permitting for what's constructed. The bottom line is, when you get to the end of the development cycle, how many units have you put on the gross number of acres? And my understanding is that in the hypothetical of 50 percent wetlands and one that has fully or 100 percent developable land, you're always going to have fewer number of "units" on the parcel that has the wetlands than the parcel that does not. I Page 20 April 25, 2001 think that's an accurate statement. If I'm wrong I certainly hope somebody jumps up and screams. CHAIRMAN COE: The other side of the coin is, let's say you have 100 acres and 50 are wetlands. On 100 acres you can put, say, one dwelling per acre. That's permitted. But you can't develop on 50 percent of them. So now you've got two dwellings per acre in the 50 developable acres. That's what's happening. And the intend of the code, I would assume, was originally that you would only have one unit per acre. MR. LORENZ: What I want to say is -- CHAIRMAN COE: Am I right or wrong? MR. LORENZ: The way I recall when we drafted the 1989 plan and in the spirit of what a PUD is all about is that you basically -- you have an internal shift of those units to the developable portion of your land. Basically it's a cjustering. We are -- although we didn't call it -- well, there is actually in the future land-use element -- it does talk about cjustering. You're cjustering those units that are based upon a gross density on the developable portion of the land. The developable portion will be defined by these policies. If these policies -- for instance, if you take a 100-acre parcel and you have Class I wetlands, these policies would say "You can only put your units on maybe ten acres." Now if that forces you into a, you know, five-story high-rise to get all your units, then that's the developer's choice as to whether or not he wants to put that product in there. That product would not be a marketable product. In that sense then the constraints that we placed through the wetland policies would maybe effectively cut down those units that he's going to build because he has to take into consideration what the market is. Now, I think what you-all are saying, or at least I'm going to put it back to you is that you're saying, "Look, we need to make Page 21 April 25, 2001 sure that we're protecting the wetlands and not giving that developer a marketable product if giving that developer a marketable product means he's going to impact a huge amount of wetlands that we consider very important." So what I think -- as I said, these policies that we craft, perhaps they don't go as far as what you-all are looking for, but they would basically do as Patrick said. It's to say, "This is how we're defining that developable portion. This portion through our policies you have to stay out of. It's clear in our policies that you have to stay out of them, and then you can develop on whatever is left over." That's the analogy, to get back to Nancy Lananne's comment to me, '~Nell, Bill, if they have to put a smaller box there, then they have to put a smaller box there." MR. HILL: When you use the term "develop on," are you referring to simply the building of housing units or otherwise changing the nature of this? I feel we're held hostage on every one of these that come in and say, '~Nell, you know, I could have done five per acre, but I'm going to do two, and now I want to ask, however, to have six hundred acres of wetlands impacted, not built on, but impacted for various reasons," a golf course or whatever. That's what I think we have to avoid. MR. LORENZ: I'm saying any disturbed or filled area. In other words, if we say by application of these policies that on that 100-acre site you cannot build on 70 acres, you can't disturb 70 acres of those wetlands, then that's what these policies say. Then you're going to have to put your product, whatever that product is, whether it's a golf course or whether it's a Home Depot or whatever or a single-family lot, on that developable piece. These policies will direct those land uses away from the wetlands. And what we're trying to recognize in terms of the 9J5 criteria framework is that we are identifying the values, types, Page 22 April 25, 2001 and functions of wetlands. We're going through a classification scheme to say that certain wetlands we're going to allow more impact with mitigation than other wetlands. That gets back to the classification scheme for which -- if we say all wetlands are the same in Collier County and you can only impact up to 5 percent as a diminimous impact for providing for the basic constitutional right of reasonable use of property, you know, that could be your policy decision. On the other hand, if you say, you know, '~Ne're looking at our wetlands systems here in Collier County, Bill, and we know that these types of wetlands with these types of characteristics we're going to call Class I wetlands, and these are where we're really going to minimize any degree of impact, and everything else is Class II, and here are the rules for everything else," that's another way of going about it. I can tell you from craft-cutting or making the sausage here or the legislation, recognize that the more regulations and restrictions we place on property, the higher burden it's going to be to justify the benefit and also be under the scrutiny of what potential liability the county would be subject to -- certainly Burt Harris -- and that is a consideration that staff is going to have to give to the final recommendations. At the very least, we have to provide the Board of County Commissioners with what those liabilities are. I guess what I'm saying is, in our deliberations when we know that there's really some very important wetland systems that we define and call Class I, we put higher degrees of restrictions on it, and then that's the way to go. Then everything else we have has some reasonable ability to impact those systems. Then you're into a Class I, Class II type of situation. At the moment what we put on the table is kind of a Class I, Class II, Class III situation that would recognize varying degrees of impact based Page 23 April 25, 2001 upon what we're calling the functionality of the wetland system. MR. HILL: Did I sense early on that you did not like the idea of saying all Type I's are absolutely -- that change of land use is absolutely forbidden on Class I? MR. LORENZ: I don't think that I can recommend to the County Commission that we have a strict, 100 percent prohibition of impact on all Class I wetlands, because we may get into a situation where somebody's property -- all of their property is a Class I wetland. You've got to provide reasonable use of their property. You've got to provide some degree of exceptions or ability to impact that property for a reasonable use of the property unless you're willing to pull out your checkbook and compensation them. MR. WHITE: I think if you put it in context, there's certainly cases in Florida that say, "If you bought a swamp, you've got a swamp." Even those cases, if you will, recognize that a swamp still has some certain amount of economic potential, even if it's only for the purpose of installing a boardwalk to walk through the swamp. So the notion that there's going to be "some impact" or to use a less favorable term "development of that property," I think that's appropriate, and I think that's what staff is telling you. But to get back to, hopefully, the fork in the road where we kind of started down this discussion -- you'll note that Policy 1.1.7 talks about that. It tells kind of in a way what it is that -- what the balance point, if you will, is. It says that, "All property owners shall have the right to transfer density to the upland area of the site subject to the requirements of other applicable growth managment plan policies." So what it's doing is capturing this whole policy- setting function that we're having a discussion about and saying, "This is the rule. Follow the other rules." Page 24 April 25, 2001 What your suggestion appears to be, at least from some of the council members, is maybe we need to think about adjusting those rules. Certainly, if that's your belief, I would encourage you to make that recommendation and to follow up on that. But I don't believe that that's part and parcel of the discussion here today. We're looking at moving forward in a process that's designed to implement what the final order in the administration commission requires or consistent with that anyway and in a larger scale also looking at countywide policies. So although the administration commission process is driving the train in terms of the time line to some degree, I don't believe that it's inappropriate at some point in the future to make that recommendation, have that discussion. And if you have a specific concern about the growth management policies with regard to how density is calculated in Collier County, then come forward with some new ideas. I just don't believe that it's within the framework of what you're being asked to look at today. I understand that in order to apply what you've been given you need to have some conceptual framework to understand how the process works. I don't know that all of the folks here have given you as clear of an expression of it as we could. I certainly wasn't prepared to do so today. Had I known we wanted to have that discussion, we could have had other individuals here. I'm hoping what I'm saying, though, is going to get us back to that fork in the road so we can kind of continue down the path that moves us forward. CHAIRMAN COE: Let me stop right here and bring everybody up to date. We have already gone through the beginning of this document. We are up to Policy 1.6 there on page 6 -- page 4 or whatever -- 6, I guess. That's where I want to get back to. Start the discussion right there. I'm estimating we're going to be Page 25 April 25, 2001 finished by noon. That gives us a little under two hours. So with that said, let's start on 1.6 and go forward. We're talking about mitigation. Now, any recommendations on mitigation, subparagraph 17 Is everybody in agreement with the one-to-one ratio, or do they want to recommend changing that ratio? Ed Carlson had a comment that he wanted three to one so that there's not a net loss. See, one to one is a net loss of wetlands. Does everybody understand why that is? MS. LYNNE.' Uh-huh. CHAIRMAN COE.' All right. Any recommendations to change that subparagraph I from a one-to-one ratio to one to two or one to three or whatever? Pat, if you have any comments on that, too, don't hesitate to raise your hand. MR. WHITE: I'm going to try to confine my comments strictly to those legal issues you bring to my attention. CHAIRMAN COE.' Well, I mean, this could come into the legal perusal because, obviously, we're going to require or we could require a developer that if they're going to develop on, say, a wetland Class II or III and mitigate, then we're going to require them to get twice as much land over here. MR. WHITE: I understand in the broadest context that all issues are legal issues because they involve creation, if you will, law. But the notion of where that appropriate balance point is, I think, is still in the policy-making stage in the recommendations that staff has given you for your consideration and your responses to them. If I think there's some constitutionally prohibited policy that's being proposed, you can be certain that I will opine, but so far from what all I've read, we're still within that range of reasonableness. CHAIRMAN COE.' Okay. MR. WHITE: Whether or not in a specific case there would Page 26 April 25, 200t be an application of this policy that would lead to an inordinate burden under Burt Harris, I don't think we have the facts before us to make those kind of determinations and discuss hypotheticals. CHAIRMAN COE: Any comments on mitigation and what it should be? MR. HILL: Well, the one thing that bothered me, and I'll make this very brief, is the fact that we allow -- we may take out of service X acres of wetlands which are functioning as habitats and which are functioning as stormwater filtering, all the various properties of a good solid viable wetland, and we're allowing mitigation, whatever the ratio is, to be a farmer's field up in Panther Hollow. I don't mean to belittle that bank up there, but we're taking functional wetlands or wetlands of a certain major function, and we're mitigating them with two- or three-to-one acreage which are not providing the same function. That's always bothered me. Now, the other question I have is, if we go to two or three, does the word "minimum" have to stay in there? MS. BURGESON: I would just like to add a couple comments in here. The reason we put "minimum" in there was just to make sure that at an absolute base minimum we would not be losing on a one-to-one level the acreage. Certainly going higher than that is something that's not unreasonable. When I started with the county in '89, the absolute minimum off-site mitigation ratio was three to one, and that was back in '89. There's something else that you can do in there in terms of identifying the type of mitigation. So if you're saying a minimum of one-to-one mitigation of like-function wetland types, maybe that's the type of direction you want to go in, or a minimum of three-to-one mitigation for, again, the functioning types. If you've got a cypress wetland, you mitigate with a cypress wetland. Or if you've got a -- to some degree you might want to Page 27 April 25, 2001 direct what that mitigation is as opposed to just saying that you can choose whatever mitigation you want, and we're just giving you the acreage or the ratio. MR. HILL: Well, I think we ought to somehow build that in if we can, but it seems to me it puts a burden on the staff and a burden on this council and the commissioners to have a judgment of whether or not you can go -- you want them to go above the minimum or stay at the minimum. How did -- somewhere in the ordinance we have to have a yardstick that says the ordinance says minimum, but in this case we're going to ask for two to one, and that doesn't appear anywhere. MS. BURGESON: Well, I think that -- I know that I've seen a presentation of Broward County's wetland mitigation. It may be that you go with something similar to what they have. They identify the type of wetland that's impacted. There's a particular mitigation that's set for the type of wetland that's impacted. So rather than saying a minimum three to one like to like, you might say it's a minimum of one to one for this particular type of wetland impact or a minimum of three to one when you've impacted this particular wetland type. For instance, if you're mitigating for the Class I wetland, it may be a ten-to-one ratio for impacts to Class I. It may be a five-to-one impact ratio to Class II wetlands. You may drop down to a minimum of one to one for a Class III. So I think there's a lot of different directions that we can go in, and that might help alleviate some of the concerns of the type of wetlands that are being proposed for mitigation. MR. LORENZ: Let me add to this -- and I want to kind of play a little bit of devil's advocate and explain to you why we selected the policy the way we did. It gets back to the point of, does Collier County want to have a permitting program for wetlands. As you add that degree of complexity that Barbara is speaking about, we're basically doing permitting. We're then determining Page 28 April 25, 2001 a whole different set of ratios that the other agencies are providing. The purpose of the policy here initially was to insure that we have, certainly, a base minimum that we're not going to go below in Collier County. Whatever the applicant negotiates with the federal and state agencies, we would then subject those negotiations to our test of the minimum. So once you start talking about different kinds of functions, different kinds of ratios, then we're getting more and more closer and closer to a specific permitting program in Collier County, and that becomes -- I'm just going to tell you that becomes difficult from the development perspective. MS. LYNNE.' So that would be a good thing. If wetlands are an extremely valuable resource in South Florida and something that really needs to be protected, then it should be more difficult to obtain -- to develop those areas and insure that negative impacts aren't made by development. CHAIRMAN COE.' I just wrote down some quick notes here. This would be my suggestion to subparagraph 1. "Mitigation shall be provided for a minimum of three-to-one ratio for wetland acreage directly impacted. Allowable mitigation includes the purchase of wetlands of the same classification as those impacted in Collier County for the preservation of wetlands either on or off site." I took out "creation." Any comments on that? MR. HILL: Haven't we been in a number of projects -- and I go to the last sentence in that paragraph 1. Haven't we been faced with the question, '~Nell, I'm enhancing 50 acres over here by exotic removal and therefore that's ..."? CHAIRMAN COE.' They've already put that in there. They're not getting credit for that. MR. HILL: I thought you were leaving that out. CHAIRMAN COE'- No, no, no. I'm not leaving that out. I was just changing those two sentences to provide for a three to one, Page 29 April 25, 2001 also of the same classification of that being impacted, and then making sure that the purchase of wetlands are in Collier County. This prevents them going, you know, to Hendry County and buying land out there and getting credit for it. You see, eventually they're going to get to a point where there's no more wetlands to mitigate because they can't buy any more wetlands in Collier County. MR. LORENZ: One thing I have to research, and I was just looking at it the other day, is the wetland rules from the state, Chapter 373 on mitigation banks. There's a cite, and I'll probably be able to find it and discuss it with Patrick, that indicates that the counties cannot preclude mitigation to go out of the county. I just -- I mean, I just found that. I need to research that a little bit closer to make sure if what I read is opposite to what even -- staff has recommended five years, that all mitigation shall occur in Collier County. I have to pull that cite out and talk with Patrick a little bit about it. CHAIRMAN COE.' Well, in the interim, though, we can put that in -- MR. LORENZ: Yes. CHAIRMAN COE: -- unless it conflicts with law -- MR. LORENZ: Yes. CHAIRMAN COE: -- and obviously if it conflicts with law, then it changes. MR. LORENZ: I'm just letting you know that I just hapeened to see that. MR. WHITE: But I -- CHAIRMAN COE: If it's policy that's stricter than the State of Florida, why can't it stay in? MR. LORENZ: Well, if the State of Florida actually preempts you from doing it, if that's the preemption, if the state says you Page 30 April 25, 2001 can't be stricter in this particular situation, that's what we have to check and verify. CHAIRMAN COE: Okay. MR. SOLING: Excuse me, but you have Item 5, "All mitigation shall occur in Collier County." CHAIRMAN COE: Yeah. Okay. So it doesn't need to go in. You're right. MS. LYNNE: I agree that although in some situations there can be a successful creation of natural areas and wetlands, I think that's been over used by developers. It's not okay. A couple of things that have come before the board here have seen developers completely wipe out natural areas and then replant some other areas, and those areas are hard to -- CHAIRMAN COE.' That's why I took out "creation." MS. LYNNE: Right. I'm just -- I am supporting that and giving the reason why it's important not to allow that. CHAIRMAN COE: Is there anybody that's against my comments on that? MR. STONE: No. MR. SOLING: No. CHAIRMAN COE: So we're in agreement on all that. Did you get that, Bill? MR. LORENZ: Yeah. CHAIRMAN COE: Do you know what changes we want? MR. LORENZ: I've got -- CHAIRMAN COE: We don't want "the creation" -- THE COURT REPORTER: Wait. CHAIRMAN COE.' We don't want that in it, and we want to use a three to one. MS. BURGESON: Just as a matter of record, historically creating wetlands is extremely unsuccessful or difficult to even go out and enforce or-- Page 31 April 25, 2001 CHAIRMAN COE: That's why we're taking that out. MS. BURGESON: -- follow up on that. MR. LORENZ: My only -- just to throw it out, and some folks may have more specific information or experience than I have, but let's say if we take -- the example is given of if you took a nice, natural area, let's say an upland habitat, and you now created a wetland system, and that's shown to not be a good idea. But would in a situation -- if we have a denuded farm field that has hydrologic soils and in the past -- and we're going to take that and now we're going to create that as a wetland, is that a creation deposition or a restoration? MS. BURGESON: I think that would be restoration. MR. LORENZ: Okay. So when we talk about creation, we're talking about scraping an upland down and creating a wetland. MS. BURGESON: But then do we want to put the language in here that allows for purchasing or restoration of wetlands? I don't know if you want -- MR. HILL: If that's your intention, then that word ought to be in there, "restoration." MS. BURGESON: Not to create new wetlands, but to restore. CHAIRMAN COE: Yeah, that's fine. Does anybody else have any problem with that? MR. LORENZ: For preservation and restoration. MS. LYNNE: I -- CHAIRMAN COE: MS. LYNNE: No. Okay. So are we finished with 1.67 I'm sorry. I still have a problem with if there's a nice, natural wetlands on the property for them to bulldoze that and even restore a lesser quality one on the same site. MR. WHITE: The thing to keep in mind here is these mitigation regulations or policies apply to direct impacts. Example, Class III, I think, is 50 percent. You can impact up to Page 32 April 25, 2001 that. So it's only with respect to that 50 percent you're talking about. The remaining 50 percent cannot be "bulldozed." It's only the part that's allowed to be directly impacted that you're talking about these mitigation rules for. I don't know if that helps or not. MS. LYNNE: I just know that we saw one when I first came on the board where the developer was going to fill the only wetlands on it and could restore -- next to a pond restore another wetland, and that was considered acceptable mitigation, and that's -- MS. BURGESON: That would only be acceptable by the creation of the language earlier where -- for instance, if you're looking at a Class I wetland and we went back to that section and took out some of the language that I think you're concerned about that allows exceptions -- so if we say there's absolutely no exceptions except for maybe single-family homes on Class I wetlands, then you're only allowed to impact 5 percent. And what we're saying, then, is the mitigation for that 5 percent impact could be creation. But we're not saying that you can impact an additional 5 percent of that to create it anywhere else. We want to make sure that the language in the beginning protects exactly what we want to protect and then allows us to mitigate it the way we want to mitigate it. CHAIRMAN COE: But we don't want them to create it; we want them just to restore it. MS. BURGESON: Restore. CHAIRMAN COE: Okay. Any comments? MR. HILL: Very quick, subparagraph 3, is that clear in everybody's mind, the nature of the conservation easement? Okay. CHAIRMAN COE: I don't have any problem with it. Anybody else? Page 33 April 25, 2001 Okay. 1.7, any comments on that? We've already really discussed that. We beat that one to death. All right. 1.8, any comments there? MR. HILL: That's what we've done, isn't it, Mr. Chairman? MS. LYNNE: Haven't we already discussed that there is this Class I, Class II, Class III, on this staff, but that we're also going to be looking at the WRAPs? CHAIRMAN COE: Yeah. That's part of the WRAP. MR. LORENZ: Yes. Right. To the degree that that classification scheme is modified, we'll modify it. Yeah, because we modified that CHAIRMAN COE: extensively. Yeah. Okay. 1.97 MR. HILL: Excuse me, Mr. Chairman. Is buffering -- are there questions on buffering? I mean, that comes later in the ordinance. MR. LORENZ: No. We've already said that's page 5. MR. HILL: We've totally resolved the buffering, okay. CHAIRMAN COE: Yep. 1.9, any comments there? 1.107 1.117 1.12 and 137 MR. LORENZ: Let me make a comment on 13 before we move on. CHAIRMAN COE: Yep. MR. LORENZ: This whole document we're calling "proposed countywide policies." That's been or caused some folks some problems given the fact that we have the rural fringe committee who is working on the rural fringe lands, and then we have the rural lands committee working on the rural lands. Page 34 April 25, 2001 These policies are definitely going to apply in the urban- designated areas, which on the future land-use map is -- do you remember the future land-use map? It's your yellow area. At the moment the fringe rural fringe committee has not chosen to review these policies yet subject to getting through their conceptual plan. I would -- my recommendation is still that these would apply in the rural fringe lands in absence of anything else that the committee comes up with. These may or may not apply in the rural lands area because they're developing a much more comprehensive land-use strategy working with the consulting firm of WilsonMiller. So I just want to make it clear that these -- we definitely will be applying these in the urban areas. My thought is that these probably will apply in the fringe area. Of course, the fringe committee is going to make a set of recommendations there. But at the moment I'm unwilling to say that these will definitely apply in the rural lands area because I don't know exactly how their planning effort is unfolding. So to the degree that these will be interim as part of the final order requirements, I just want to make those points. MR. SOLING: Can I go back to 1.117 CHAIRMAN COE: Yes. MR. SOLING: You went so fast. CHAIRMAN COE: Yes. MR. SOLING: Doesn't this sort of allow somebody to cut all the trees down and then say, "Hey, this is a Class III wetland"? CHAIRMAN COE: Bill, do you have any comments on that? MR. LORENZ: That's a good question. I'm thinking about that. CHAIRMAN COE: That's a good comment too. MS. BURGESON: I think we need to take a close look at that. At this point right now in the Land Development Code under Page 35 April 25, 2001 the agricultural clearing section, timbering is permitted. CHAIRMAN COE.' In wetlands? MS. BURGESON: Anywhere. MR. LORENZ: This is an existing policy in the plan. MS. BURGESON: It's been an agricultural exemption that was in the state policy and the county. MR. SOLING: Can't we restrict it? MS. BURGESON: It certainly can be. One of the rules is that they follow the silviculture rules which is that it's not strip mining the land, but it's selective clearing. However, I think what you need to do is state in here that, for instance, no -- CHAIRMAN COE.' Just say -- MS. BURGESON.' -- agricultural exemptions in Class I wetlands, if that's something that you're interested in. MR. SOLING: Well, that's what I would do. MS. BURGESON: Or just crossing it out and putting -- CHAIRMAN COE: Well, why don't we just say -- THE COURT REPORTER: Wait, wait, wait. CHAIRMAN COE: -- except in Class I and Class I17 THE COURT REPORTER: I can only take one person at a time. CHAIRMAN COE: What's the matter?. You can't pick it up quick enough? THE COURT REPORTER: No, I can't. CHAIRMAN COE.' Your two hands aren't quick enough? THE COURT REPORTER: No. CHAIRMAN COE: Why can't we just say no timbering operations in Class I and Class II wetlands? MS. BURGESON: Or you can simply remove that policy, and timbering would have to follow all of the other rules as everything else would. I don't know that we have anything in here specific. Do we have something specific to agricultural Page 36 April 25, 2001 exemptions? MR. LORENZ: Maybe what the -- the concern is, would timbering itself change the classification of the wetlands such that in a future condition -- now that timbering is going to allow you to have a greater degree of impact in the wetland, perhaps what we can do to address that simply would be to add another sentence indicating that timbering or the taking of the vegetation off shall not modify the existing or future classification of the wetland. I would be unwilling to -- this was a concern back in '89, that property owners do have a right to get timber from the wetland system. MS. BURGESON: Even in a Class I? MR. LORENZ: Yes, anywhere. I mean, that's an alternative. CHAIRMAN COE: So these operations shall not modify the wetland classification? MR. SOLING: Well, that's a very weak situation because the fellas or the property owners are going to come in ten years later and say, "Hey, look, I've got melaleuca and everything else here. How can you hold me to something that was done ten years ago?" If anybody can remember -- MR. WHITE: Well, No. 1, as far as I understand it, you're required to keep the exotics out, the melaleuca. But more importantly I think-- MR. SOLING: So he's naughty and he doesn't do it. MR. WHITE: Well, all of our discussions take place in the context that there will be enforcement of those provisions. Generally, I don't find that it's favorable to draft rules in anticipation that folks are going to violate them so you make more rules so that when they do violate them they can violate those as well. I think the better practice is to assume that you're going to have the enforcement authority and they're going to be held Page 37 April 25, 2001 accountable for any violations of the law. But just to give you some context for this discussion, when you talk about reasonable investment-back expectation in the use of your land, I mean, it's fundamental to real property ownership that if you have a timbering operation, for example, that the severing of that timber is one of the rights that you have in that bundle of property rights. So long as you're otherwise not "impacting the wetland" with that direct impact, such as filling or grading -- which I believe is the definition or the standard for what is considered direct impact -- arguably this policy wouldn't offend that policy. So I think Mr. Lorenz is correct in attempting to get to a place where unless by removing as part of those rights the timber from the property you somehow cause a direct impact or otherwise change the nature or function type of the wetland, then it's appropriate to do so. MR. SOLING: To cut a tree down, you've got to bring in a truck. You've got to bring in people. You've got to bring in saws. The tree is going to fall down on the ground. And when you get all through, I don't know how you can take a Class I wetland and timber it and say you haven't changed anything. CHAIRMAN COE: That's correct. That's correct. That's why we're putting that in. The timbering operations are allowed, but you're not allowed to impact the wetland or to change the classification. If you're going to change the classification by your impact on that wetland, then you're in trouble. MR. SOLING: All right. I'll take it then. CHAIRMAN COE: Any other comments? MR. LORENZ: Let me also add that, you know, it's not stated exclusively in these policies, and perhaps that's an oversight on my part, but Collier County in the past has not been applying these policies to agricultural operations. Page 38 April 25, 2001 In the growth management plan, these policies that we're developing are to nonagricultural, if you will, development. I guess it's the definition that's in 9J5 that talks about development which basically exempts agricultural activities. That's the underlying premise of all these policies, and perhaps I need to put a policy in here that states it explicitly. MR. SOLING: But that's what we're here doing, making policies to control the environment, and we're going to affect agriculture. It has to. CHAIRMAN COE.' Okay. MR. LORENZ: I need to give you some information. The County Commission has gone to court, and the DCA has sided with the county going through -- well, certainly the administrative procedure process to insure that our regulations are not going to affect agricultural activities. So to the BAC -- you may want to make the recommendation to the Board of County Commissioners that we ought to apply this to all agricultural activities. I'm just telling you as staff, that's not the direction that we've been under. In fact, we've been working -- we had worked with county attorney's office to bring those arguments through in the case in conjunction with the DCA. CHAIRMAN COE: Okay. The next one, Objective 1.2. Any comments there? How about 2.17 I've got a question of Bill. MR. LORENZ: Uh-huh. CHAIRMAN COE.' When it says wet slips are no more than 18 for every 100 feet of shoreline where seagrass impacts are less than 100 square feet, that's only 10 feet by 10 feet; correct? MR. LORENZ: Yes. CHAIRMAN COE-' It's very restricted. MR. LORENZ: Very restricted. CHAIRMAN COE.' Any other comments? Page 39 April 25, 2001 MR. SOLING: Yes, I have a comment. I have a boat dock, and I see that I'm going to in a year or two have more -- have need for more slips. So what stops me from cutting the sea grass and then going back two years later and saying, "Hey, I ain't got no sea grass"? CHAIRMAN COE: Nothing, nothing. I mean, it happens. MR. SOLING: Yep. CHAIRMAN COE: Okay. 2.2. 2.3. Okay. The next one, protection of native vegetative communities. MR. LORENZ: Let me just -- if you will, let me just frame this section a little bit. Policy I1.1, you can see it says it's for the county's urban designated area. The way I laid this out was in anticipation of preservation standards coming out of the rural fringe committee. I expect those standards to be brought either in this section or some other section in the growth management plan and to have more specific regulations to provide for a higher -- a much higher degree of protection of vegetative communities than these policies that you see in front of you. These -- policy I1.1 is for the county's urban designated area, the yellow on the future land-use map. So if you could review these in that context, that would be helpful, I think, for you. Secondly, for the most part, these policies reflect what we have in our current code. Maybe as we go through them there may be one or two places where it's maybe a little bit more expansive than what we have in the current code, and we'll try to highlight those for you. CHAIRMAN COE: Well, one recommended change that I would make here is that this percentage here that you-all have listed out, that it not include the buffer around the property. Page 40 April 25, 2001 MS. BURGESON: Where are you? CHAIRMAN COE: Quite frankly, I've seen some of these properties come before the board, and it's laughable the buffer that they use. MS. BURGESON.' One thing that might be helpful is creating a minimum WIP of the native vegetation that's acceptable. CHAIRMAN COE.' Well, Ed Carlson had a -- MS. BURGESON.' If it's a 50- or 100-foot buffer that might be CHAIRMAN COE: -- comment along in there. I think it was roughly a hundred feet. I think it was Ed, but maybe it wasn't. MS. BURGESON.' We have recently seen projects come through with 20-foot buffers, and it's very difficult to recreate a habitat in 20 feet. But if you do have a number in there for the minimum acceptable for the preservation standards -- CHAIRMAN COE.' A hundred feet isn't much. It's 30 yards. That's very, very small. Any comments on what the buffer area should be? MR. SOLING: It's okay with me. MS. LYNNE.' Which line are you on? CHAIRMAN COE: I'm not on any line because it really doesn't -- MR. SOLING: He's getting just a general comment. CHAIRMAN COE.' Yeah. It really doesn't -- I mean, it may come up later on. MS. LYNNE: The general comment is -- regarding the percentage of native vegetation, you're saying if the buffer -- if you have a 20-foot buffer, that can't be counted as your preserved native vegetation? CHAIRMAN COE: Right. MS. LYNNE: I agree with that. CHAIRMAN COE.' So can you put in a -- does anybody else Page 41 April 25, 2001 have any comments along there? So, in other words, we're saying these percentages don't look too bad, but we want to make sure that the buffer is not included in that amount. MS. BURGESON: Okay. Do you want to come up with a minimum distance, or do you want to say that the typical 20-foot CHAIRMAN COE'- I recommend that the buffer be no less than a hundred feet. I would even vote for higher than that. MS. BURGESON: Would that also apply internally to the project then, that native vegetation areas that are retained -- are you just talking about a perimeter buffer? CHAIRMAN COE: No, no, it wouldn't; only on the buffer. MS. BURGESON: Okay. CHAIRMAN COE: What they're doing now is they're using the buffer as maintaining native vegetation which is -- we all know that's crap. MS. BURGESON: Okay. CHAIRMAN COE: All they do is they bulldoze it down, and they throw a couple of palms on the thing, and they think that's preserving the property, and it isn't. MS. BURGESON: The perimeter landscape buffer, then, where it's less than 20 feet shall not -- I'm trying to get some -- CHAIRMAN COE'. I think it's 25 feet, isn't it? MS. BURGESON: I think it's 20 feet. CHAIRMAN COE: MS. BURGESON: less than 100 feet, it shall not count towards native vegetation? CHAIRMAN COE: No. We're saying the buffer should be 100 or more. MS. BURGESON'- Well, again, only in order to count towards the 25 percent native vegetation preservation standards. They may put in a 20-feet buffer for landscapes purposes, but that Twenty? So we're making it 100. So where the perimeter landscape buffer is Page 42 April 25, 2001 would not be allowed to count towards the 25 percent. CHAIRMAN COE: All right. Yeah. I understand. Yeah. I see your point. Yeah. Okay. MR. LORENZ: Let me ask a couple of questions to make sure. What do you see as being the purpose of buffer, the function or functionality of the buffer? CHAIRMAN COE: Well, the functionality at this point right now has been for the developer to be able to count that as maintaining native vegetation which has required a certain percentage on their land; is that correct? MR. LORENZ: Not necessarily. CHAIRMAN COE: Every project we've seen since I've been here, that's what it's been. MS. BURGESON: It's been towards the 25 percent. CHAIRMAN COE: That's correct. MR. LORENZ: It does go to that. CHAIRMAN COE: That's the only reason that they put that buffer around there. MS. BURGESON: Well, that's the only reason that they identify that as a native vegetation buffer, but they are also required by the landscape section of the code to provide a landscape buffer around the perimeter. So if it's too small to be considered viable native vegetation towards this policy, it would still count towards the landscape buffer or minimum landscaping CHAIRMAN COE: I understand. MS. BURGESON: -- which actually can go below 20 feet. MR. LORENZ: I guess one of my points is, if we have -- if the function of the buffer is to provide for, let's say, aesthetic -- buffering for aesthetic reasons for the public from the project to another site or to provide for noise attenuation or lighting Page 43 April 25, 2001 attenuation, something along those lines, that can be handled through the landscape code, and we have a very specific set of code and density of trees, etc., etc. On the other hand, if we're talking about trying to provide what I'm going to call a minimal functional width of preserved native vegetation to provide for habitat functionality -- CHAIRMAN COE: I see your point. MR. LORENZ: -- then what we're really talking about -- when you start looking at some of the data that we've looked at from up in the center part of the state, you're looking at widths of three, four, or five hundred feet at a minimum to provide for some degree of functionality, and that's not going to be able to be accomplished in the urban designated area. For those types of standards, we're considering some detail in the rural fringe area. So I guess that's why I'm asking, what is the functionality of what you're calling the buffer? CHAIRMAN COE: Yeah. I see your point. That is a good point. MR. SOLING: Well, can I ask a question? CHAIRMAN COE: Sure. MR. SOLING: Can a buffer be wetlands, Class I wetlands? MR. LORENZ: Yes. MR. SOLING: I understand. CHAIRMAN COE'. Well, they can't impact it anyhow. MR. SOLING: I know, but I'm saying you're -- in essence, what you're trying to do is increase the 25 percent to 30 or 35 percent. CHAIRMAN COE: Uh-huh. MR. SOLING: So I'm saying -- I'm just asking, if they've got wetlands, can they put that in the buffer and consider that buffer and still cover 25 percent of the land? CHAIRMAN COE: Yeah, they could. Page 44 April 25, 2001 MS. BURGESON: Anything that's retained on site qualifies towards the 25 percent unless this board agrees with this language -- unless it's of a certain minimum size around the perimeter. What typically happens is, you look at an aerial or you go out and take a site visit, and you see the project. They're proposing retaining 20 feet around the perimeter, but when they actually get out there to do the work, the pines don't actually fall in the right location out there. What they expected to be able to retain doesn't often end up being the final product, so they'll have to go back in there, and then they restore that 20 feet with the larger plant material size. That's typically what happens, or they have to enhance that area. CHAIRMAN COE: So what do you recommend? Do you recommend keeping it the way it is? MS. BURGESON: No. The 20 feet is very difficult for staff to -- clearly less than 20 feet is not a functional proposal. Twenty feet is still very difficult because, as I said, you typically get out there and find that what's on the site, if they surveyed that 20 feet up front, isn't viable or isn't worth qualifying towards the native vegetation. MR. SOLING: Barbara, where does it say 20 feet? Let's look at that. MS. BURGESON: Well, we're just looking at projects that typically come before this board are required to provide a landscape buffer around the perimeter. And for the most part a lot of those buffers are 20 feet. So sometimes the developer chooses to use that 20 feet towards the native vegetation requirement. MR. SOLING: So can't we raise that to 100 feet? MS. BURGESON: Certainly. I'm not saying that the 20 feet is a good idea to keep it in place. I'm trying to give you reasons why that has been -- Page 45 April 25, 2001 CHAIRMAN COE: Well, all I'm saying is don't allow that 20- foot required landscape buffer to count towards the native vegetation. MS. BURGESON: Right. CHAIRMAN COE: That's all I'm saying. MR. SOLING: That's all I'm trying to say. CHAIRMAN COE: Is anybody in disagreement with that? MR. LORENZ: I guess what we're trying to say is that -- we're trying to specify a width that -- you have to be at least this much width for you to qualify as a vegetation retention requirement. CHAIRMAN COE.' Okay. Now I understand what you're saying. Okay. MS. BURGESON'- in where what they're doing is -- the way they're aligning the condominiums is they're keeping a triangle of native vegetation in between, and they want that to qualify for their native vegetation. Sometimes that's 50-foot wide down to a point, and sometimes it's much narrower than that, so you may want to say that -- CHAIRMAN COE: be-- MS. BURGESON: CHAIRMAN COE: For instance, sometimes we'll get a project What would your recommendation -- under no circumstances -- -- since you-all know better than us what would be a viable size? Would it be 100 feet or 300 feet? What would it be? MS. BURGESON.' Why don't we take a look at some current projects that have been built with those small areas, and take a look and see how well they succeeded. CHAIRMAN COE: Okay. MS. BURGESON: And then maybe at the meeting -- maybe we can even do that this weekend for when we come back next Page 46 April 25, 2001 Wednesday. CHAIRMAN COE: I'll let you-all hammer that out. All right. Any other comments on I1.17 MR. SOLING: Does Ed have anything? CHAIRMAN COE: Any other comments? Okay. I1.1.2? MR. HILL: Yeah. I'm sorry. Back on No. 8 under 1.1 -- CHAIRMAN COE: Yep. MR. HILL: How effective are we in determining the status or the operations carried out prior to 19897 Can we fully implement that statement? MS. BURGESON: Where are we? MR. HILL: Subparagraph 8 on page 9, parcels that were cleared prior to January 1989 are exempt. MS. BURGESON: I think that we have to add to that, "parcels that were cleared and can provide evidence of appropriate permitting or approved permits." MR. HILL: Okay. Somehow we have to have an enforcement. MS. BURGESON: Right. If you say parcels that were cleared of native vegetation prior to January 1989 and can provide -- MR. SOLING: Documentation. MS. BURGESON: -- documentation of approved clearing permits. MR. HILL: I think that has to be in there. CHAIRMAN COE: Yeah. That's a good point. MR. HILL: There's a minor question. Where did January 1989 -- is that somewhere in the ordinance creation history? MR. LORENZ: That's the adoption of the initial growth management plan. CHAIRMAN COE: All right. 1.2, any comments there? 1.3? Page 47 April 25, 2001 MS. LYNNE: Wait. Do you mean I1.1. -- I'm getting lost. CHAIRMAN COE: Policy 11.1.2. That's page 9. MS. LYNNE: Okay. CHAIRMAN COE: The next one below that is 1.3. MR. HILL: Is that in line, Bill, with what you were saying earlier about ag exemptions in 1.37 MR. LORENZ: Yes. CHAIRMAN COE.' Okay. Page 10-- MR. HILL: Wait a minute, Mr. Chairman. That refers specifically to I1.1.1, not to previous. Is there a potential conflict? It states, "Agriculture shall be exempt from the above preservation requirements contained in I1.1.1." Is that the only section of the ordinance that we need to refer to in this? MR. LORENZ: This refers -- this Policy 1.3 refers to the clearing of land in terms of the native vegetation off the land. The point is that when we set up the original growth management plan, we wanted to minimize any conditions that would potentially exist such that a property owner would clear his land -- would say under the guise of agriculture clear his land, take all the native vegetation of it off, and then come right back and say, "Okay, now I want to put a housing development in. I don't want to worry about preserving any native vegetation." So we have the ten-year limitation in there. That's the purpose of this policy. CHAIRMAN COE: Any other comments? Okay. Page 10, 11.2. MS. LYNNE'- The only thing I would like to see here is perhaps some expansion on the kinds of vegetation that's appropriate. There's a lot of native vegetation that isn't appropriate for xeriscape, and that really doesn't address that issue. The other thing is, we do see the same, the very same native plants used over and over and over again, and there's a Page 48 April 25, 2001 huge variety, and we could maybe put some language in there that suggests other alternatives. MS. BURGESON.' I think under the landscape ordinance right now there is a requirement or a minimum number or minimum variety of species. For instance, in certain circumstances you have to have no less than four particular species of canopy trees or five -- I haven't read through that recently, and I know it's been amended a lot. But maybe we can go back, and staff will take a look at how that's written, and maybe we can incorporate some of that language into this section. CHAIRMAN COE.' Any other comments? All right. 2.1 or 2.2, either one of those? MS. LYNNE.' Why is the exception made for the site north and east of Route 417 Why is it less there? MR. LORENZ: Quite frankly, that's what we have in the code. MS. LYNNE: Which code -- MR. LORENZ: I mean-- CHAIRMAN COE: Do you feel like we're getting the answer, like -- MR. LORENZ: I reflected-- CHAIRMAN COE: -- "that's the way we always do it"? MR. LORENZ: I reflected the status quo in this policy. I didn't know the rationale for that reason, but I don't have a compensating reason to make it any different. CHAIRMAN COE: We're saving our hard questions for last. MR. SOLING: Doesn't that designation take almost all of Naples in Collier County east and north of 417 I mean, everything that's going on right now is east and north of 41, even North Naples. MR. LORENZ: Well, I think-- MS. BURGESON-' Again, this is a landscape policy. This is Page 49 April 25, 2001 not an environmental issue per se as much as Nancy would be the one that would have the final say on that. MR. LORENZ: Well, let me give you -- I can give you a little bit of history on it. North and east of -- there was recognition back in the 1989 plan that everything, let's say, seaward of Route 41 we wanted to maintain as much of the native vegetation as possible. I think that's the reason for the use of 41 as a dividing zone. MR. SOLING: So let's strike that. MR. LORENZ: But in terms of the numbers, I don't recall why the 35 percent requirement. CHAIRMAN COE: Why, do you want to increase it to 50 percent? MR. SOLING: I think I'd delete the whole subject out. MS. LYNNE: Just delete that segment, the last half of the first sentence there. CHAIRMAN COE: Any other comments? MS. LYNNE: From "unless the site"? MS. BURGESON: What's that? MS. BURGESON: From "unless the site"? MR. SOLING: We'll put-- MS. BURGESON: Cross that out. MR. SOLING: After "species," period. 'Floridian species," period. MS. BURGESON: Right. CHAIRMAN COE: Yeah, that works. MS. LYNNE: And then on Policy 11.2.2 -- MS. BURGESON: Can I interject something here? MS. LYNNE: Sure. MS. BURGESON: Where it talks about requiring 100 percent native species on coastal barriers and undeveloped coastal -- the exact language is "coastal shorelines and/or undeveloped and Page 50 April 25, 2001 developed coastal barrier islands," it says that "the landscaping requirements shall be comprised of 100 percent." Now, the way that that's interpreted, that says that once you've met the landscaping requirements --just so they understand this doesn't mean general landscape terms. For instance, if you're required to put in 30 trees and a particular amount of shrubs, once you've met that minimum landscaping requirements with 100 percent then you can place nonnative vegetation plantings above that. I just didn't want you to misunderstand that. You might say that -- well, I don't know whether you want to continue with that and say that the minimum landscape requirements have to be 100 percent or whether you want to say that planting requirements -- so that you're saying that even once you go above and beyond your minimum landscaping, it should still be 100 percent native vegetation. MS. LYNNE: So for -- this is for coastal shorelines -- MS. BURGESON: For instance, if you go into Pelican Bay, you go along the area by the Strand and you've got the condominium high-rises there that are south of the Ritz. They put in their minimum landscaping requirements at 100 percent native. Now, to make that area look pretty so they can sell their units, they go above that minimum with the ornamentals, the nonnatives, the flowering trees that they want to increase the aesthetic look in order to sell. So, just so you understand the intent of this is and has always been that the minimum landscape requirements be that. Now, if you want it to be addressed differently, I just wanted you to have that information. MR. LORENZ: I don't think that we're proposing that all plantings have to be of the southern Floridian species, I mean, because we wouldn't want -- I mean, that would preclude anybody from putting any kind of ornamentals in, you know, or an Page 51 April 25, 2001 accent plant to be at 100 percent. The question I have for Barb is, do you know whether the code requirements for coastal barrier islands is greater in terms of amount and coverage of vegetation? Because that could be the place where you may want to have it more than -- in other words, a higher density of vegetation that's 100 percent native species on a coastal barrier. MS. BURGESON: Right. MS. LYNNE: Exactly. You can see how some homeowner would want to have a mango tree or something like that, and that would be fine, but you don't want them to be able to plant 10 percent of -- MS. BURGESON: A hundred. MS. LYNNE: -- yeah, right, have a grove of mango trees. MS. BURGESON: Maybe what you can put is -- for instance, you assume because of the cost of putting in the required landscaping that people don't go above and beyond the minimum. But in cases where if the minimum landscaping for a particular project is, say, 50 trees, they put in 50 native trees, but then go in and put 250 nonnative trees, they're yet still in compliance with this, but what you may want to add is some language that says, "However, the percentage of native vegetation to nonnative ratio shall never -- should -- MS. LYNNE: Not exceed. MS. BURGESON: Should not exceed -- MS. LYNNE: Yeah. MS. BURGESON: -- say, three-to-one native to nonnative or however you might want to come up with that. I mean, the intent of the code on the minimums, when they're saying 75 percent native on the trees, is 75 percent native on the trees. It's just that through the development of projects around the county and creating a much lusher and more ornamental look, they've gone Page 52 April 25, 2001 way beyond that. You can control that by putting some ratio in there or some minimum percentage. MS. LYNNE: Okay. MR. SOLING: Excuse me. I read this different than you're interpreting it, and to get it to your interpretation landscaping requirements should specify that it's in another section or put it in quotes or something so that somebody knows that this is not the totality, because I read it as the totality. You're saying the landscaping requirements is only a minimum, not the total. So somehow or other you've got to differentiate that wording. MS. BURGESON: Right. I just wanted to let you know that when you read "landscaped trees" or "landscaping requirements," that word "landscaping" is as defined by our code. MR. SOLING: But you have to get the lay reader or somebody else to -- MS. BURGESON: I understand that. What I'm trying to find is direction from this group as to whether they want that 75 percent and 50 percent to be minimum percentages when you go above and beyond the required landscape plantings. MS. LYNNE: And the answer for me would be yes. I don't know what it should be, and I would look to you for guidance on that. MS. BURGESON: I think maybe we'll talk to Nancy Siemion about that -- she's our landscape architect -- and see if she has some input. CHAIRMAN COE: See what they've got. Any other comments? MS. LYNNE: On Policy 11.2.2, why is the -- why is it only t0 percent of the finished lake banks shall be planted with native aquatic vegetation on a littoral shelf? Why not 50 or 90 or 1007 MS. BURGESON: Ten percent is what is currently in the Page 53 April 25, 2001 code as the minimum. About two years ago the county administrator asked staff to research that and come back with a higher percentage. We started to do that. I know that Nancy and Stan Chrzanowski had come up with some proposed language. They were working with them on it as to what number we should actually increase that to, and it became such a large project in terms of getting the research data to support that to present it to the board that it slowed down to a halt. So I think that now may be a good time to go back to that and try to incorporate that research into a larger percentage here. CHAIRMAN COE: Well, surely one of the state universities has that information on the shelf. MS. BURGESON: We do have quite a bit of research on it. MR. LORENZ: I was involved in the project as well, and one thing I want to take a look at is the Florida Land Development Manual specifies the standard a little bit different way. We want to take a look at how that standard may be a better way of addressing it. CHAIRMAN COE: So when you draft it up, you're going to incorporate that into this? MR. LORENZ: Yeah. We'll do that kind of research and get back to you with the changes. CHAIRMAN COE: Any other comments? MS. BURGESON: One other thing I would like to ask is, at this time exceptions have been given from time to time to allow the 10 percent to not be planted on one lake if it's added to another lake. So you might want to say here that a minimum of 10 percent of the finished -- of each finished lake bank or beach so that you don't mitigate that structure. CHAIRMAN COE: Make sure that's clear. MS. BURGESON: I'm not sure of the purpose of the reason for having requested that, but I know that it has been requested. Page 54 April 25, 2001 CHAIRMAN COE: Yeah. Okay. MR. HILL: We've also had projects where we've taken the net 10 percent and put it all at one end of the lake. MS. BURGESON: Uh-huh. That's typical. MR. LORENZ: Typical. CHAIRMAN COE: We want it all the way around the lake. MR. HILL: Well, that's not what we've allowed in the past but -- CHAIRMAN COE: lake? MS. BURGESON: CHAIRMAN COE: Why not have it all the way around the Well, it's 10 percent of the finished lake. What's the reason for it? I'm going to pull a Bill Lorenz on you. Okay. What's the reason for it? MS. BURGESON: Water quality is one of the reasons. CHAIRMAN COE: Water quality. Animals moving in and out of the grass or whatever it is; right? MS. BURGESON: Right. CHAIRMAN COE: Why would we permit it to just be at one end of the lake? If the reason for it is water quality, then we need to have it all the way around the lake. MR. LORENZ: It's typically or usually cjustered at the outfall of the lake. The thinking, I think, would be that you get a little bit of some water quality polishing, you know, at that point. Quite frankly, it's not going to function -- CHAIRMAN COE: The thinking is if you're a developer -- THE COURT REPORTER: Wait. MR. LORENZ: It's not going to function that way. CHAIRMAN COE: The thinking is if you're a developer, you cjuster it in an area that is not going to screw up the view of the lake by all the people that live around the lake; correct? MR. LORENZ: Not being a developer, I'm not -- CHAIRMAN COE: If our intent is to preserve -- Page 55 April 25, 200t MR. LORENZ: I'd rather look at vegetation. CHAIRMAN COE: -- vegetation around the lake to improve the water quality of the lake, why wouldn't we just require it to be around the lake, which is our intent? MR. SOLING: But then it has to be greater than 10 percent. Because if you spread 10 percent around, it's nothing. MS. BURGESON: Right. It would be far too thin. MR. SOLING: It would have to be 40 or 50 percent to be anything meaningful. MS. LYNNE: Agreed. That percentage has to go higher. CHAIRMAN COE: So the percentage has to go higher, and it needs to be around the lake, not cjustered, and that's if we're going to do this at all. MR. LORENZ: Like I said, we'll pull in some more information for you. Just put a little bit of a placeholder there. CHAIRMAN COE: Okay. Any other comments on that? MR. HILL: Well, I think we have to be very careful because this includes residential detention ponds. I mean, we seem to be talking about the large lakes and the large developments. CHAIRMAN COE: Well, he's going to have to do the research on it. MR. LORENZ: The biggest problem with doing that, quite frankly, is you have to create an appropriate shelf with an appropriate slope. Because what you have is you have in various places of the county such a great degree of variation and depth, and that variation and depth limits you to some degree of what vegetation you can actually plant that's going to survive. So those are all some of the factors that come into play, but we'll work on some more details when I -- CHAIRMAN COE: This is not something we can discuss because we don't have the research and all that business, so that's why they're going to have to do it and come back to us. Page 56 April 25, 200t Any other comments? Okay. Objective II1.1 and 1.1. That's page 11. I think we're jumping along here. Any comments on those? Those look like they're all part of the NRPAs and FLUEs and all that stuff. Okay. 1.2 at the bottom of the page. I have one comment there. Rather than 10 acres, I would like to change that to 5. MS. LYNNE: Isn't this something that we have a note on from Mr. Carlson? MS. BURGESON: Ed Carlson had suggested the same. MS. LYNNE: Okay. MR. LORENZ: Now, recognize this does exclude individual single-family residences. If it was a commercial entity of 5 acres or greater, you would see an ElS -- CHAIRMAN COE: Well, yeah, but I'm going to make that change in the next subparagraphs. I mean, why would we not include single-family homes in this? MR. LORENZ: I think that there's a terrific cost burden for single-family residences to do a complete ElS the way the specification is and that we wouldn't want to apply that burden to those entities. The typical lots that you're going to get as single-family lots that are outside of a permitted development that has gone through all the reviews would be basically in north Golden Gate estates. CHAIRMAN COE: Correct. MR. LORENZ: To the degree that those entities need to provide -- or at least have a consultant through federal and state permitting requirements to look at wetlands on their site and then apply for the appropriate permit, I think that that mechanism would take care of the problems that we would see. What we're trying to get at in terms of larger properties is to look Page 57 April 25, 2001 at where the listed species are and where the wetlands are on a particular property. MS. LYNNE: This is -- CHAIRMAN COE: So you're saying that they can build on wetlands out there in Golden Gate? MR. LORENZ: Subject-- CHAIRMAN COE: We already know they're doing it. MR. LORENZ: Yeah. Subject to the permitting requirements, yes, they can. They can impact -- they are allowed to impact wetlands. They have to go through the appropriate mitigation. The problem they're having in north Golden Gate estates is there's not a viable off-site mitigation area for the residents to participate in. So they have to work on trying to create the wetlands, let's say, in the back yard which may not -- I mean, there's two schools of thought. One school of thought is that's a good idea. The other school of thought is that's a bad idea that you're going to have a lot of these smaller areas. In a single-family residence, they're just going to get trashed. It would be better off putting it into more of a larger system. But I guess the point being here is I'm comfortable with having it not apply to a single-family residence because the other mechanism exists, plus, again, I think that's the -- CHAIRMAN COE: So you think it should stay at 10 acres so that these people can skate? MR. LORENZ: Oh, I didn't say that. I said, "Make sure it doesn't apply to a single-family residence." CHAIRMAN COE: Okay. Any other comments? MS. LYNNE: Yeah. I have an idea. In terms of -- I understand the expense for a single-family property owner. But what I'm wondering is if we couldn't enlist volunteers, for example, from a native plant society or from other ecological or Page 58 April 25, 2001 conservation-minded groups that would have volunteers who are knowledgeable who could actually go in there and look for listed species. I would also like to see situations where if an area is going to be described that volunteer organizations like that can go in and remove listed species for transfer to another piece of property. MS. BURGESON: That's something that we would have to work out with the state, with the Florida Fish & Wildlife Conservation Commission in terms of permitting relocation. MS. LYNNE: I'm thinking more of plants. Do you even have to do that for plants? I mean, I'm thinking, you know, if they're going to bulldoze something that's got orchids and bromeliads and ferns in it, you know, why not take them out and put them someplace else? MS. BURGESON: In the past the Native Plant Society had direct contact with large properties that were developed and made arrangements for that. I just haven't seen that happen in about six or seven years. MS. LYNNE: It can -- MS. BURGESON: CHAIRMAN COE: MS. BURGESON: CHAIRMAN COE: Estates for anything. It doesn't preclude them -- I'll be honest with you. -- from doing that. I wouldn't touch that one in Golden Gate MS. LYNNE: Well, it's just an idea. CHAIRMAN COE: Even with a bulletproof vest I wouldn't touch that one. I forget who it was that I talked to. They've got a lady that's -- I guess she's code enforcement or whatever it is. She has the unhappy task of having to go out and check some of those sites out there. MS. LYNNE: That's Alex. CHAIRMAN COE: I wouldn't want that job for anything in the Page 59 April 25, 2001 world. Any other comments? Okay. Any comments on any of the subparagraphs in that same paragraph? How about No. 2, the habitat management plan for listed species? Any comments on that? MS. LYNNE: Okay. We're on page -- CHAIRMAN COE: We're on page 12. MS. LYNNE: Okay. "(b)" on that, "bona fide agricultural uses," we ran into that with the supposed fish farm. I would like to see a definition of bona fide that includes some kind of guidelines to show that these people are actually going to be able to make a viable business out of their project. Not just upon bona fide that's on a list, but bona fide that it actually is a viable business, because the plan that they had was not a viable business plan. MS. BURGESON: So you're looking for some financial calculations or-- MS. LYNNE: Yeah, something like the IRS would apply, for example. MS. BURGESON: An objective business plan? MR. LORENZ: Yeah. But you would have to provide some criteria by which you would say this is or is not bona fide once you look at all their cost submittals and expected revenues and expenses. CHAIRMAN COE: Why not put down dirt mining is not an agricultural use. Fish farming is not an agricultural use. MS. LYNNE: Because they'll -- CHAIRMAN COE: By the way -- MS. LYNNE: -- think of something else. CHAIRMAN COE: -- the fish farm, that, quote, fish farm passed, by the way. MS. LYNNE: Yes, I know. MR. HILL: I don't think in these ordinances we can attach Page 60 April 25, 2001 the financial viability of anything. I think we have to look at it solely as an agricultural use and not delve into the finances. That would be dangerous territory to do and also to enforce. MS. LYNNE.' Well, what else can we use? MR. SOLING: I'm sorry. I'm lost. Which paragraph or line are you on? MS. LYNNE.' Page 12 right up at the top there's (a), (b), (c), and we're talking about (b) here. CHAIRMAN COE.' (B). MR. SOLING: Oh, (b), bona fide. All right. MS. LYNNE.' And "bona fide" when I read it as a layperson, I thought that meant a real legitimate business. And it turns what bona fide meant is, is it on a list that's provided by the state or county government or something of permitted uses. In the case we're talking about, somebody was essentially mining fill, and what he said he was doing was fish farming, but if you looked at the practices that he puts into effect for his fish farming, it was clear he was never going to be able to farm fish. There was no predator control for one thing, and out in Golden Gate Estates if you have a pond with no predator control, you're not going to have any fish in there. CHAIRMAN COE: Staff got any recommendations? MR. SOLING: I thought defining the word was the way. CHAIRMAN COE: Is there a better way of defining that paragraph? MS. BURGESON: I don't know how you would get a petitioner to -- CHAIRMAN COE.' Well, the only way I can think of doing it is just put down "no dirt mining." MR. SOLING: Or fishing farm. CHAIRMAN COE'. I don't think you can say that about fish farming. If it's legitimate there's no reason why the guy can't Page 61 April 25, 2001 fish farm. I mean, this particular-- MS. LYNNE: Right. CHAIRMAN COE: -- the specific case we're talking about that came before us, we know that this guy was lying. There's no question about it. He has no intent of fish farming. MR. LORENZ: Well, "The ElS requirement may be waived subject to the following criteria." It doesn't say "shall" be waived. MS. LYNNE: But you know that every time that goes before the commissioners, if there's a "may" it's translated as "shall." CHAIRMAN COE: Why don't you take a look at it and see if you can come with a little bit better definition, like reference a state ordinance that says what a bona fide agricultural use is. I'm sure there's something. MS. BURGESON: We reference that in our code, but it is -- as Eric was saying, it's a list of items not -- CHAIRMAN COE: Well, maybe we can reference it here or take that list and extract it from wherever it is and put it in here. MS. BURGESON'- I think she's not concerned about what's on the list but that those things can actually be accomplished on that parcel. MS. LYNNE: The point is that if you're saying you're making a fish farm that's bona fide, even if the -- CHAIRMAN COE: Yeah, but we have requirements. You know, we did that as board members. And I assume that it got written -- when it finally went for approval to the other people where it was going to be checked, he was going to have to prove that he's fish farming. MS. LYNNE: Okay. CHAIRMAN COE: That's all you can do. Any other comments on that? I've got one comment on (c)3. "The surface and/or natural drainage or recharge capacity of the Page 62 April 25, 2001 site has been altered" and "it will not be further degraded by the proposed activity." I don't know what to do on that, but as far as I'm concerned, if they've altered it, they can put it back the way it was. I'm specific about that North Belle Meade property that has been drained, bulldozed. They threw a couple of cattle on it to say that it's agricultural use so it changes the taxation on the land. And then they come before us and they say, "Oh, that's been degraded for years. Now we want to develop it because it's so degraded." I want to stop that. So can you write that in such a way so that's not going to be a way out, or take it out? MS. BURGESON: If you want to get into the intent of that, I think it was more for farming when they were going in and actually ditching and -- CHAIRMAN COE: That's what they did in North Belle Meade. MS. BURGESON: Uh-huh. CHAIRMAN COE: That's exactly what they did. I assume you've been on that property. MS. BURGESON: I'm not -- I'm not sure. CHAIRMAN COE: I've been on it. That's exactly what they did. They ditched it. They drained it. They bulldozed it. They put cattle on it. MS. BURGESON: Uh-huh. MR. LORENZ: Well, remember, the intent of this section here of this particular policy is that we are looking for a listed species survey -- an ElS -- part of the ElS requirement, and what we're saying is that, "Okay, Mr. Propertyowner or Mr. Applicant, in most cases there's a good chance you're going to have listed species on your property, so we want to know how you're going to handle them where you have the potential for environmental sensitivity." If on the other hand we look at this land or parcel and it says "after inspection by county staff" and we find that Page 63 April 25, 2001 there's just nothing on this property that's of a concern to require the applicant to do a comprehensive listed species survey as part of the ElS requirement, then we're exempting them out of this requirement. That's what this policy basically does. Now, if we are saying -- if we're saying that even though this area is trashed or altered or what-have-you, we always want to have you give us options, for instance, of what the restoration of this site -- what potential restoration opportunities exist for this site, and then we would require an ElS with that particular criteria for each and every site that comes to the county. MS. BURGESON: We could remove 3 in it's entirety and rely on 1. CHAIRMAN COE: Okay. MR. HILL: Well, I was going to suggest -- this is in the section on wildlife protection. What Item 3 intends to do is certainly covered elsewhere. CHAIRMAN COE: Yeah, just take it out. MR. HILL: If you're talking North Belle Meade, it's really redundant when it's in the wildlife protection. MS. BURGESON: Right. If you can rely on I to say that the proposed use will not further degrade the environmental quality, then you don't need 3. CHAIRMAN COE: That's right. MR. HILL: Three is redundant, I think. CHAIRMAN COE: Any other comments? MR. LORENZ: If this is in the Land Development Code, would that provide any inconsistency? MS. BURGESON: None. CHAIRMAN COE: Okay. MS. LYNNE: I don't understand why we need any of those exemptions. Even if the proposed use of the site isn't going to, say, degrade environmental quality, if they're going to build Page 64 April 25, 2001 something or put a road in, don't you want to know that the building or the road isn't going to sit on top of a listed species? I mean, maybe I don't understand what that means. MR. LORENZ: Barb -- I guess I'll point it to Barb. Barb has to deal with the ElS requirements and apply this part of the code for the most part. I believe that we pulled this right out of our existing code. As I understand the intent, the intent is to say that we do want to have applicants provide listed species surveys as part of the ElS requirements. On the other hand, if we know up front with these types of criteria that there's just not as high probability of having listed species present, we're not going to require that owner to go out and do something that's pointless. MS. BURGESON: Reading (c), really it's a combination of all of those items. It's not one or the other. So, for instance, if somebody is looking at that and they're saying that "the use or development of the site will improve and correct existing ecological deficiencies," that's "and" you've looked at the others as well. So all of those have to apply and qualify in order for staff to determine that an ElS can be waived. MS. LYNNE: So you have to have I through 5 all qualify? MS. BURGESON: Right. That exhibits the following characteristics. It's not "exhibits one of the following characteristics." MS. LYNNE: Okay. How about "exhibits all of the following characteristics"? MS. BURGESON: That's fine. That's how it's been used. MS. LYNNE: Cool. Fine. CHAIRMAN COE: All right. We've been at it for quite awhile here. I want to call for a five-minute break to give our court reporter a little mental break, if nothing else. Try to make it quick, and we'll get back at it and get this thing finished up as Page 65 April 25, 2001 quick as we can. (A short break was held.) CHAIRMAN COE: Okay. The meeting has come back to order. Any more comments on that top of the page or No. 2 which is right below that? MS. LYNNE: I've got a comment on No. 2. It says, "These plans shall describe how the project design minimizes impacts on listed species." I don't know what we can do about saying "minimizes impacts," but that's what was said in our wetlands policy, that development is to minimize impacts on wetlands, and we have Mirasol with two golf courses. I mean, what's the definition of minimizing impacts? I mean, is two golf courses per development minimal or five? I don't know if that's a question for the county attorney or -- I mean, "minimizes" to me means you make every effort not to impact wetlands. And two golf courses in a development doesn't seem necessary to me, so how you do we -- I'm not sure one is but -- MR. WHITE: I would happy to take a crack at it. I think that if you were to delete that entire second sentence, the notion of what is being intended is more clear in terms of a regulatory standard. With that sentence in, I think you're giving -- you're receiving some kind of -- I wouldn't say editorial comment, but at least some context in which the regulatory standard exists. I think it's just helping you to understand what the intent of the policy is. MR. SOLING: But your suggestion is to delete "these plans shall"? MR. WHITE: The whole sentence. MR. SOLING: Yeah. MR. WHITE: I think -- I don't think it changes the meaning if you delete the sentence. CHAIRMAN COE: All right. So let's-- Page 66 April 25, 2001 MR. WHITE: I think that leaving it in only provides some additional context of how this policy achieves its intent. CHAIRMAN COE: Okay. So take it out of there. MR. LORENZ: Let me ask one question of Patrick, and this may be helpful with the final order requirements. The final order requires us to direct incompatible land uses away from listed species and their habitat. I use that phrase for the intent of these management plans. Does that cause us problems, or does it better define the intent? MR. WHITE: Like I said, it helps to put in there the context. In that sense it gives you some greater clarity, in my opinion. If it seems to create an ambiguity, then you may want to delete it, but it's a standard for what you are stating below in more precise detail. MS. LYNNE: I want it to mean something, and as it stands it doesn't mean anything. Yeah, it gives context, and we think it means something, but when it actually gets transcribed into action at the board level, it doesn't mean anything. CHAIRMAN COE: Bill, can you rewrite that in such a way to properly reflect what our intent is? MR. LORENZ: My suggestion is what I said. CHAIRMAN COE: Okay. MR. LORENZ: That the purpose of the plan would be to show evidence of how incompatible land uses are being directed away from listed species and their habitats, and all of the specific criteria that you have in here basically -- CHAIRMAN COE: Okay. Does this support everybody's requirements -- MR. LORENZ: -- are supportive of that statement. CHAIRMAN COE'- -- his statement? Any other questions or comments? MR. HILL: I think it belongs in there. I think it doesn't Page 67 April 25, 2001 answer Erica's question. That has to be answered someplace else. CHAIRMAN COE: What I'm saying is, take this out -- MR. HILL: I just said, I suggest we leave it in. CHAIRMAN COE: -- and put in what Bill Lorenz is saying. MS. LYNNE: I don't think that's any different because that also applied to Mirasol, and it didn't make any difference. CHAIRMAN COE'- All right. What do you propose? MS. I.YNNE: I don't have a proposal. I guess what I'm saying is, can we -- if we don't have a suggestion right now from the attorney or staff, I suggest that we ask staff to work on that. And the other comment on that that I would like to make -- and I can do this on my own time and get back to Bill but, again, in these other counties instead of -- if you put in the goals of what each of these is supposed to do, that also clarifies it so that you can't just say, "Well, we did this corridor so we've met the regulations" if the corridor doesn't accomplish the goal of protectiing the wildlife or something like that. And I would be happy to work on that and provide a draft to staff which can be set out. CHAIRMAN COE.' All right. Any other comments? MR. SOLING: Well, I welcome that in each of them. CHAIRMAN COE: All right. Next page. MR. HILL: Are these compatible with city ordinances, the boat docks and wet slips? MR. LORENZ: I don't know that. MR. HILL: Okay. Shouldn't we be-- MS. BURGESON: I believe this is the language that we've got in our Land Development Code right now that was created when we designed the manatee protection plan. If it changed in the Land Development Code as a result of any litigation over the Page 68 April 25, 2001 years or in the future, then I'm sure that this language here would change to accommodate that. MR. LORENZ: But, Bill, your question was, is it compatible or the same as with the City of Naples? MR. HILL: Right. MR. LORENZ: I don't know that. I don't know. MR. HILL: Should it -- maybe it shouldn't be, but it would -- MS. BURGESON: We can find out. MR. LORENZ: We can find out. I know the City of Naples endorsed our manatee protection plan, and this is the origin of this language. MR. HILL: I would assume it would be, but I think it ought to be checked and established that, in fact, it is. CHAIRMAN COE: Any other comments? I've got one on (e}. I would like to have that changed to read something like this: "For parcels containing gopher tortoises" -- it should read something like "for parcels containing tortoises will be preserved and protect the largest, most contiguous gopher tortoise habitat with the greatest number of active burrows and provide a connection to off-site adjacent gopher tortoise preserves." MR. HILL: I'm not sure I understand what you're complaint is other than -- CHAIRMAN COE: Well, the change is not that priority will be given; they will be preserved, period. I'm saying preserve. And I go back to that project where that developer wanted to destroy -- literally destroy the entire habitat to put townhouses in there, and he was going to use a ten-foot wide area on the other side of the canal totally away from the property that he was jerking the tortoises from, and that backed up to a golf course. MS. BURGESON: The language that we have in here -- CHAIRMAN COE: Yes. Page 69 April 25, 2001 MS. BURGESON: -- is used the way you want it to be used. When it says "priority shall be given" what we're saying -- the reason the word "priority" is in there is that, for instance, if you have wetlands on site, the code requires that you retain wetlands. If your wetlands -- if they include or -- by retaining the native vegetation wetlands and you meet the 25 percent policy, then we have not been able to require that the gopher tortoise habitat or uplands be preserved above and beyond that 25 percent. So that's why that language was put in there, for priority, "shall be," so that if you have any ability to retain uplands, then the gopher tortoise habitat shall be your first priority, but maybe that language should be in here a little bit stricter. CHAIRMAN COE: As tough as you can make it worded. It's got to be clear that we don't want to have those gopher tortoise habitats destroyed. MS. BURGESON: So if we say that -- if the 25 percent or if the native vegetation preservation requirement has not been met by wetlands alone and gopher tortoise habitats exist on site, that shall be preserved -- CHAIRMAN COE: Correct. MS. BURGESON: -- to meet or to -- as much of that shall be preserved as would meet that 25 percent. CHAIRMAN COE: MS. BURGESON: to that. Correct. Okay. We'll put something together similar CHAIRMAN COE: Any other comment? MR. SOLING: Then go down to (g}. MS. BURGESON: That is the intent of the language. I mean, that is how we're using it right now, but we can reword this. MR. SOLING: Going to (g), bald eagle, I think you have to be Page 70 April 25, 2001 stronger too. "Plan shall establish," how about "plan must establish"? MS. BURGESON: "Shall" is the legal word that's the strongest. We used to -- MR. WHITE: There's some debate among staff and our office about that posture. I certainly prefer "must," but then again there's other attorneys in our office. MS. BURGESON: The only reason that we have the word "shall" in -- we put "shall" in everywhere because over the years as I was involved in creating ordinances, I've always received a response from the county attorney's office that said "must" is not as strong as "shall" in the legal language. Now, if Patrick doesn't MR. WHITE: I certainly have a different opinion about that. CHAIRMAN COE: Does anybody want to weigh in on "will"? MS. LYNNE: Can we put in there somewhere that the words "must," "shall," and "will" are -- It is in the code at the beginning in the MR. WHITE: definitions. MS. LYNNE: MR. WHITE: discretionary. That means this is absolutely required? Yeah. They're manadatory terms. They're not CHAIRMAN COE: Any other comments? MS. LYNNE: On the sea turtles it addresses outdoor lighting but not vehicles on the beach. Is this at all an appropriate place to reinforce that? MS. BURGESON: Where are you looking? MS. LYNNE: Page 13, (d), almost in the middle of the page. MS. BURGESON: Okay. MR. LORENZ: I guess the question is -- we can certainly put it in. What we're recommending now is that there will be an access corridor during the nesting season. Page 71 April 25, 2001 MS. BURGESON: What you get presented to you.next Wednesday is different than what you had presented to you last month. MR. HILL: Okay. MS. BURGESON: It flip-flopped a number of times in terms of what staff's position will be on that language and what the appropriate minimum use of vehicles on the beach would be. So the language that -- in fact, the reason that your May 2nd packet hasn't been sent out is because that is a ma]or item of discussion on that, and it hasn't -- we're still working on some final language, Patrick and Michelle and I and Maura, to amend that to present it back to you next Wednesday. MR. WHITE: Even as we speak -- MS. BURGESON: Hopefully tomorrow morning we can get that in the mail. If we do we'll probably have to stamp that with "draft" understanding that between now and your meeting we may still have a different copy. MR. LORENZ: Okay. I mean, for purposes of the comprehensive plan, our ma]or problem that we really work hard on is lighting conditions. So, you know, I feel it's appropriate to have this in here. Recognize that as we start adding material into these policies we get so more specific and specific and specific, it starts to turn out to be Land Development Code language and becomes very difficult administering it as a comprehensive plan. In fact, you know, I'm very well understanding of being criticized at the moment for having too much detail in here, and that is another school of thought. So my preference is to not add the details if we don't need to have it to -- that's commensurate with what policy language should indicate. CHAIRMAN COE-' Any other comments? MR. HILL: Is the RCW the only woodpecker that's on the Page 72 April 25, 2001 list? MS. BURGESON: In Collier County. MR. HILL: In Collier. I can't tell the difference between some of those species. But the RCW is the only one? MS. BURGESON: Yes. CHAIRMAN COE: Okay. I've got a comment on (j) which is on the next page, page 14. It says, "For projects located in Priority I and Priority II panther habitat areas, the management plan shall attempt to avoid" -- I would like to take out "attempt to." MS. LYNNE: I agree. CHAIRMAN COE: I want them to avoid the destruction of undisturbed native habitat. MR. SOLING: I agree. CHAIRMAN COE: Not attempt, but just avoid it. MR. LORENZ: Yes. CHAIRMAN COE: Also, farther down -- did you get that, Bill, by the way? MR. LORENZ: Yes. Uh-huh. CHAIRMAN COE: Okay. Farther down still on (j}, "In turn, these areas shall be buffered from the most intense land uses of the project by using Iow density land uses (parks, passive recreational areas,)" period. Take out "golf courses." Do you see that, Bill? MR. LORENZ: Yes. MS. BURGESON: Uh-huh. CHAIRMAN COE: Any comments? All right. Any other comments for the rest of page 147 MR. SOLING: Yes. CHAIRMAN COE: Okay. MR. SOLING: Objective 111.2 on manatees. Page 73 April 25, 2001 CHAIRMAN COE: Okay. MR. SOLING: I object to that whole paragraph because while we may in Collier County get the deaths down to 3.2 per 10,000 boats, what happens when you have a million boats? You can have -- decimate the whole population. So 3.2 isn't a great number to me because we're always finding people having more and more boats, and so we may lose the manatee population as we get more boaters. So something has to be done differently than that. MR. LORENZ: A little background here. In the '89 plan we had an absolute number. We used the moving average. I believe it was seven deaths per year that we based our objective on. When we came back to the commission in '96 for the EAR report, they wanted to see this language in there, the previous commission. That's why we're using the language we currently have. CHAIRMAN COE: Also, state law has changed somewhat tOO, MR. SOLING: I know, but it's a hopeless or futile statement because, I mean, boating is becoming more and more popular, and there's more and more people out there speeding around. MS. LYNNE: Why are any deaths -- CHAIRMAN COE: What's the alternative? MS. LYNNE: -- allowable? MR. SOLING: I don't know. CHAIRMAN COE: The only alternative is what they did -- have you ever been up the Banana River up by Cocoa Beach or in that area? MR. SOLING: They were closing off waterways. CHAIRMAN COE: Yeah. They just closed the whole thing, so everybody's going to be idling around. Think about that. I'm talking about a huge body of water. Page 74 April 25, 2001 MR. SOLING: Yeah. CHAIRMAN COE: Larger than anything we have in this county. Any other comments? The next page. Much of this is just boilerplate. How you about page 167 Any comments about that? MR. HILL: I had a comment here early on. "Is this needed? Is it redundant?" Now I don't know why I made that comment. CHAIRMAN COE: "Protection of natural reservations," you mean? MR. HILL: Yeah, that whole section. Is it there for emphasis MR. LORENZ: I'll give you some background for this. "Protection of natural reservations" has very specifically required a set of policies under the 9J5 criteria. "Natural reservations" basically means areas that have been designated for conservation purposes, so that's the 9J5 term that's used. MR. LORENZ: This certainly includes things like the big panther -- the Big Cypress Natural Preserve, Panther Preserve, the CREW lands that were purchased for conservation purposes. This would also include the natural resource protection areas. At least that's our current thinking among staff. Also, what I need to say is that this particular policy is very much being reviewed by the rural fringe committee and has already recommended some changes to it. For instance, Policy 1.3, let me talk about 1.3 as to specifics. The rural fringe committee is recommending that land development within 300 feet of natural reservations would be the distance they've selected. Then we have some specific criteria below it that would say that within that area, any projects that are adjacent to the natural reservation would utilize Page 75 April 25, 2001 its open space for the buffering requirements. They have looked at this policy and will be making recommendations on it as well. Staff's current thinking -- I'll just tell you what staff's current thinking is. When we started looking at the justification of 1,000 feet and started looking at flushing distances for this enlisted species, other kinds of information that would help us to come up with some number, the number is all across the map. And our current thinking is that we would simply -- it's not to have a number. It's simply to say that any development adjacent to a natural reservation shall utilize all of its open space and require preserve areas as a buffer to the natural reservation. CHAIRMAN COE: Any other questions or comments? MR. HILL: One very brief one, if you would, Mr. Chairman. A year or two ago I asked one of the board members who was a biologist to meet with me out on one of the sites so I could learn more about the exotics and some of the species, etc., that we're referring to in many of these projects. I was told that I couldn't do that, that it had to be a public meeting. How many of the council are intimately familiar with melaleuca and Brazilian pepper and RCW and all those that - - I'm not. I would like to see somehow those of us that aren't familiar with it to get out there on site and be given a tour. Maybe we can go out to Ed Carlson's. But I'm told that has to be a public meeting. If we need to go through that procedure, I would like to. CHAIRMAN COE: That wouldn't have to be public. MR. WHITE: That's absolutely true. MR. HILL: Okay. Can we-- CHAIRMAN COE: It has to be a public meeting -- MR. HILL: Yeah. Page 76 April 25, 2001 MR. WHITE: That's absolutely true. CHAIRMAN COE: -- for one of us to go out -- MR. WHITE: It has to be advertised as a public meeting that will occur on site at a particular location and at a particular time. CHAIRMAN COE: If I go out to, say, the Conservancy and I get a tour from somebody out there that shows me, "Well, this is a red-cockaded woodpecker" and "this is a nanny goat" or whatever it is, that has to be advertised as a public meeting? MR. HILL: No. MR. WHITE: That isn't what Mr. Hill stated. Mr. Hill stated -- MR. HILL: If you and I went out -- MR. WHITE: -- two or more members at the same time. MR. HILL: -- it would have to be a public meeting. And all I'm saying is -- CHAIRMAN COE'- Even though it's a class given by a naturalist. MR. SOLING: MR. WHITE: it. So can't we advertise and have a class? That's precisely the manner in which to handle MR. HILL: And that's what I'm asking. CHAIRMAN COE: Would you -- MR. WHITE: I can tell you -- I'm sorry. Go ahead, sir. MR. HILL: Go ahead. MR. WHITE: I can tell you that the same exact thing occurred up north in Lee County with regard to Buck Island and our historic preservation board. We had to have an advertised, quote, unquote, meeting. CHAIRMAN COE: Wow. MR. WHITE: It's not an onerous burden. It's far better to do that than to have anything that occurs as a result of your information gleaned at that time rendered somehow Page 77 April 25, 2001 inappropriate. CHAIRMAN COE: Yeah. But we're not looking at a specific property. We're going out to get educated. MR. WHITE: But you're there, as we discussed somewhat before the meeting in an informal way, to acquire information with regard to a potential matter that may come before you for your consideration. Now, admittedly, it may not be as great a requirement when it's for educational purposes, but the fact that there's two or more of you in close proximity to have a discussion about something, the general rule favors advertising it as a public meeting so that it occurs in the sunshine. If members of the press or the public want to attend, as was the case with Buck Key, they are there to keep an eye on whatever it is they believe may otherwise occur. I think it's a prudent rule but certainly one of the most stringent in all of the states. CHAIRMAN COE: Okay. Thank you. MR. WHITE: Florida's at the forefront. MR. HILL: Okay. This is what I was told, and I've held off doing it. My question today is, am I the only one that needs to be a little better educated? MR. SOLING: No. MR. HILL: And if so, I would like this council maybe to afford us the opportunity by publicizing a public meeting to have us go maybe to Ed's place or maybe a particular site with the staff maybe. But I'm a little at a loss sometimes with respect to some of these species. I go out to look at a site, and I read the ElS and the PUD documents, and I'm not prepared to evaluate the site as well as I should be. I would like to see us do that. MS. LYNNE: If you really want to get wet and go in the swamp, I suggest the Facahatchee with Mike Owens. CHAIRMAN COE: Does the county want to arrange for that Page 78 April 25, 2001 for a couple of people? MS. BURGESON: We'll pursue it. I'll contact Ed and see if it's possible to have something, at least the start of it, in Corkscrew. MR. SOLING: Please make it, if you're going to include me, in August. My next few months are very busy. MS. BURGESON: Right. I'm not sure we want to be in a lot of these places in August. MR. HILL: It's not urgent but -- MS. BURGESON: But maybe May and then maybe October. MR. SOLING: Well, I can't make it in May. MR. HILL: Look into that. CHAIRMAN COE: Anybody in the public want to make any comments on any of the things that we covered here? Yes. MR. CARROTHERS: For the record, my name is Clay Carrothers. I'm an environmental consultant with WilsonMiller; however, any comments I make today are basically my personal opinion and don't reflect necessarily those of my company or any people that we represent. You guys are running out of time, and you're hungry and all of that. There's really too much to discuss about some of the language and proposals contained in what's before you today, especially in the wetlands arena. But I read what's in there, and I think about it in terms of I'm the one who's going to have address this stuff before the EAC and the Board of County Commissioners and stuff like that. In reading it I don't know how to address it. I think there are so many issues there that are completely unclear that it's going to -- every time you end up with a change of staff, county staff, or every time you end up with a change in composition of the EAC, you're going to get a completely different interpretation of what that stuff means. Page 79 April 25, 2001 I also think that some of the restrictions placed on what you can impact or what you can mitigate are so basically draconian that you're going to tie yourself to prohibiting activities which could actually very well benefit the environment. In fact, I know of several projects that these rules would make totally impossible which have accomplished great things for the wetlands that were preserved on their properties and on the wetlands that they chose to mitigate with. Using these rules those projects would not be possible at all. But I'll just bring that to your attention. Like I said, there's too many factors to address in the time we have to adequately cover the topics, but I strongly suggest that when there's adequate time during public forum, that enough time be dedicated to ask some of these questions and look at all the what-if situations that the policies could affect, because that's what I keep running through my mind. What if I have a site like this? What if that? What if it's this? What are the ramifications of what's being established here in all sorts of different possible scenarios? And I think we're just restricting ourselves far too greatly. CHAIRMAN COE.' Let me ask you this: Would it be possible for you to put that down on a piece of paper, or is it so much that really it needs to be discussed? MR. CARROTHERS.' Certainly if I can -- I could attempt to put some of the questions down on paper and our company -- or I, personally, together with other people could do that and would be happy to do it in the non-spare time that I have. But, yeah, we could do that. CHAIRMAN COE.' Or how long would you -- MR. CARROTHERS: But some of them need discussion too. I mean-- CHAIRMAN COE: Yeah. Page 80 April 25, 2001 MR. CARROTHERS: -- there's just some real basic questions here like, What is a flow-way wetland? Define that one for me. MR. LORENZ: We've got the flux codes that we would be listing. MR. CARROTHERS: Even if it's not carrying flow anymore? Okay. I've got a flux flow that says Flux 630 is a flow-way wetland, but today it's not carrying any flow. All of a sudden I'm stuck, but that's a flow-way wetland. You know, why is it that I have to provide the same amount of mitigation if I'm impacting a wetland that has 75 -- 100 percent melaleuca as I am if it's having basically 75 percent melaleuca. Why is it that a wetland that's 100 percent exotic invaded by Brazilian pepper doesn't change class? It's just as heavily degraded. There's all sorts of factors that are not addressed in these policies. There's so many "what- ifs" that, again, they're just too numerous to go over. CHAIRMAN COE: He's making some good comments, and this is one of my fears. Obviously we weren't originally planning to have public comment today, but we've got a couple here, and I figured -- if they have the time to come here, they ought to at least be minimally heard. But -- and I see your smile, but I think you understand that, you know, we have some empathy with you also. We need to have the input, but this is so much that maybe we need to have people like him sit down with you-all, because you-all are much more up to the details of these things than we are. MR. LORENZ: We've sat down with Tim Durham, and Tim was going to be providing us some maps or some other alternatives to look at that very specific question of the flow- ways. He just hasn't gotten back with us, and we haven't been able to work with him on it. Secondly, when I mentioned earlier about using the possibility Page 81 April 25, 2001 of a WRAP analysis, we are looking at that as being an alternative. So the classification scheme that we originally put on the table -- we know that that is an alternative. At the very least, it's got to be fine-tuned and tweaked, and possibly it may even drop off the table as a viable alterntive way of defining the classifications. But we had one meeting with Tim, and he was going to come back to us with some maps and some ideas as to how to do the classifications. MR. HILL: What is our schedule on this? MR. CARROTHERS: Bill's absolutely right. I mean, we have had discussions with Bill regarding the topic before, and we'll do our best to keep the dialogue going. MS. BURGESON: We met with Tim about two months ago on this issue. MR. CARROTHERS: We'll do our best to -- CHAIRMAN COE: Well, see, what I want to prevent having happen is when we do come up with, like, the second draft of this and we kind of smooth it out, which will be minimal-type smoothing, that then when it's done it's done. I would rather have the type of comments that you have and Mr. Durham has taken care of before we jump out in this public forum and go on a three-day marathon trying to address comments that should have been integrated within this plan a long time before the public gets up to talk about it. Do you understand what I'm saying? MR. CARROTHERS: Oh, yeah, I understand completely because otherwise you're wasting your time. CHAIRMAN COE: Well, that's it. That's it. And you would be wasting your time, too, because you're just falling on deaf ears. We would rather have this worked out ahead of time. MR. CARROTHERS: I understand. CHAIRMAN COE: So maybe you can put on paper or discuss it with Bill and Barb and some of their staff and even call Page 82 April 25, 2001 Durham, too, and see if you guys can't semi-coordinate your efforts so you aren't working separately, because this is -- obviously it's our county so we're kind of establishing the policy here, and we want the input from you-all as well as any other person. MR. CARROTHERS: I certainly appreciate that, and I'm sure you'll get similar input probably, you know, from other groups that will help focus that decision. CHAIRMAN COE: I mean, I think you've seen from our discussion today that it's our intent to protect the environment -- MR. CARROTHERS: Yes. CHAIRMAN COE: -- period, no ifs, ands, or buts about it. That's the first priority. After that everything falls in. MR. CARROTHERS: No. I understand that completely. Do keep in mind that people are part of the environment though. We are animals, and we are just as much part of this ecosystem as our furry friends. CHAIRMAN COE: All right. Well, thank you very much. Sorry to be so short with you, but I promised we would be done at noon, and I don't want to lie. Thank you very much. Yeah, Mike. I knew it. I knew you couldn't sit there. MR. SIMONIK.' That means I've got four seconds to be done by noon. Michael Simonik representing the Conservancy of Southwest Florida, and my comments do represent my 6,000 family members who are members of the Conservancy as well as our 750 volunteers and 23-member board of directors. First, I want to just thank staff and thank you members on the board for spending the time and providing this thoughtful language and congratulate you for tackling this thorny issue. It's been me coming up here many times over the years and saying "We need to do something with wetlands." We have other environmental groups saying we need to do something with Page 83 April 25, 2001 wetlands. We have county staff saying we need to do something about wetlands in this county. We have folks that say historically 90 percent of the county was wetlands prior to us coming to Collier County -- us, the people. We encourage you to continue on this process. We think it's a good one. We think we're going to come out with a good ordinance -- good comprehensive plans and ordinances, land development codes, whatever needs to be done. We're very supportive of most of the requirements that are in the document. Generally, we believe it's evolving into a very good document. I'm sure there will be a lot of tweaking that needs to be done. Some tweaking was done today. And I think some problems and griefs that you're going to hear from the development community are kinks that can be worked out as we go through this. I agree we all need to get together, sit at the table, and have a round-table discussion about this with all the entities. We've done it before. We're doing it now on ATVs on the beach. I think it's working out well that we'll come finally to an ordinance that someone just isn't able to poo-poo in the very end and say, "Well, this whole thing stinks because it's got way too many problems." Let's all sit down at the table and make it work. I'm grateful for the members of this board who have seen that there exists loopholes in our current plan amendment and our current land development codes and our current ordinances, and they're working out those loopholes so that we really are looking at environmental protection. We think that this is working to be good environmental policy that balances private-property rights and environmental protection. I think it's absolutely necessary to have plan amendments like these in our comprehensive plan and followed by land development codes and ordinances, and we need to give this ordinance and plan amendments a chance to work. Thank you. Page 84 April 25, 2001 CHAIRMAN COE: Thanks. Any other comments? MR. HILL: What is our whole schedule on this timewise? I mean, is there going to be opportunity in the near future again for these people to come before us? MR. LORENZ: Yes. Let me give you the -- I don't have the exact schedule at the moment because it depends a little bit upon what the rural fringe committee wants to do in terms of reviewing this document as well. But the backing off of a very critical date is in October. We intend to bring to the county commission these set of policies as amendments. That means that through the summer and early fall we will be back to the EAC for review and endorsement. My personal target is by the end of June to have a rewrite of these policies because we will be going to the board June 13th for a special meeting for the conceptual plan of the rural fringe. These policies are going to be referenced to some degree at that point, and we'll then also have to brief the board on some of the initial efforts that have gone through. So I would like to be able to have something by the end of June. That means in July and August the EAC would take another shot at it. Let me also say that it is a lot of effort, a lot of work, and perhaps maybe we need to think about having a special meeting to cover these because it was just too difficult to do it on top of your regular meeting. You may also want to consider perhaps a subcommittee of a few individuals or three individuals that can work out maybe more detailed language as well, and staff would be willing to work with that subcommittee. That might be able to expedite some of the efforts into more details. I just threw that out as a possibility. The third thing is, always as an individual -- any individual can sit down with myself, with Barb, and we can talk in details about your additional comments or your concerns. That's not a Page 85 April 25, 2001 violation of Sunshine. So I would encourage you to give me a call or give Barb a call. We'll sit down with you and work with you individually as well. That's also an option. MR. HILL: I hear you saying June 13th is the deadline where we should at least come up with a reasonably confident -- MR. LORENZ: The end of June is what I -- oh, okay. MR. HILL: June 13th. MR. LORENZ: Well, the end of June is when I would like to have a second draft that I would come back to you-all with. MR. HILL: Not prior to the board meeting on the 13th? MR. LORENZ: Huh? MR. HILL: You're not looking for us to have that, quote, semi-final draft by the 13th. MR. LORENZ: No, no, not at all, not at all. Like I said, I've got to get some comments from the other advisory committees, and I don't want to produce a second draft until I receive those comments from those advisory committees or they tell me definitely that they're not going to provide comments on it. Then I will be -- my target for the second draft is the end of June. CHAIRMAN COE: When do you suggest we have our public meeting? We're going to have to have a meeting at some point in time. MR. LORENZ: It would be towards the end of August and September. CHAIRMAN COE: Why that late when there may be significant comments that should be incorporated into this document? MR. LORENZ: Simply because I don't think I'll have the ability to get a -- well, it could be as early as July, but I just don't want to commit to that in terms of a deadline, because in the summertime it's difficult to get things through. The second time Page 86 April 25, 2001 around we produce these policies I've got to run it through the county attorney -- not only the county attorney's office, but also our growth management plan attorney. So there's a little bit of a time line there that is out of my control. So I can certainly think that August would be an appropriate time for you-all to review it. And if you have two or three meetings in August and September, that would be the appropriate time frame for us to have the policies and your recommendations to the county commission in October. MR. HILL: That doesn't preclude people in the public getting information to us prior to that. I think we can accept that input prior to the late-summer meeting. MR. LORENZ: I mean, as soon as I develop the second draft, as I said, my target is June. If you want to have a meeting, a special meeting in July on the second draft, we certainly can do it. CHAIRMAN COE: The board is not the problem. We can whip through it fairly quickly now that the basics have been done. That's not a problem for the board. The problem is when you throw it out in the public and you end up with someone like him or, you know, any of them, and they come in here and they're going to talk for two solid hours about all the reasons why it shouldn't be done or where it needs to be defined, that sort of thing I would like to preclude having happen and have that input to you-all early on to modify as you see fit, and what you don't see fit to modify that portion comes before the board. MR. LORENZ: Quite frankly, that's more upfront work of getting to that second draft, and that's where my concern is. Creating that second draft is more critical to taking -- like getting with Clay, getting with Tim Durham, getting with some of the other consultants in town from the development perspective to see how we can craft something that, at least from their Page 87 April 25, 2001 perspective, is workable in a classification system. CHAIRMAN COE: Yeah. MR. LORENZ: That's going to take -- that's going to be the biggest hurdle I've got to overcome is to create those alternatives for you then to consider in that second draft. CHAIRMAN COE: All right. Okay. MR. LORENZ: And although I'm shooting for the end of June, you know, that's where the lion's share of the work is going to be. CHAIRMAN COE: Now I understand what you're saying. Okay. I just didn't want to have that big workshop thrown on own shoulders because that would be a nightmare. I would rather leave the nightmare with you. MR. LORENZ: Right. CHAIRMAN COE: Any other comments? MS. LYNNE: Is this draft policy available in electronic format? Can you e-mail that to me? MR. LORENZ: Oh, yes. It's -- just for the public -- well, I'm not sure if we're on 54 or not, but it's on the website, but I can very easily e-mail it to you. MS. LYNNE: I'd appreciate that. Thank you. CHAIRMAN COE: You would be surprised what's on that website. It's got practically everything you can think of. If there are no other comments, we're going to adjourn. I lied. There being no further business for the good of the County, the meeting was adjourned by order of the Chair at 12:12 p.m. Page 88 April 25, 2001 ENVIRONMENTAL ADVISORY COUNCIL MICHAEL COE, ACTING CHAIRMAN TRANSCRIPT PREPARED ON BEHALF OF DONOVAN COURT REPORTING, INC., BY MARGARET A. SMITH, RPR Page 89