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EAC Minutes 05/02/2001 RMay 2, 2001 TRANSCRIPT OF THE MEETING OF THE ENVIRONMENTAL ADVISORY COUNCIL Naples, Florida, May 2, 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 9:05 a.m. In REGULAR SESSION in Building "F" of the Government Complex, Naples, Florida, with the following members present: CHAIRMAN: COUNCIL MEMBERS: Thomas Sansbury Larry Stone Chester Soling Alfred Gal Alexandra Santoro Michael Coe Ed Carlson Erica Lynne William Hill PRESENT: Patrick White, Assistant County Attorney William Lorenz, Natural Resources Director Barbara Burgeson, Senior Environmental Specialist Michelle Arnold, Code Enforcement Director Maura Kraus, Senior Environmental Specialist Page 1 May 2, 2001 Fred Reischl, Planning Services Page 2 ENVIRONMENTAL ADVISORY COUNCIL Maureen Kenyon Minutes & Records AGENDA May 2, 2001 9:00 A.M. Commission Boardroom W. Harmon Turner Building (Building "F") - Third Floor I. Roll Call II. Approval of Agenda III. Approval of April 4, 2001 Meeting Minutes IV. Land Use Petitions None V. Old Business A. Land Development Code Amendments VI. New Business VII. Growth Management Update VIII. Subcommittee Report A. Growth Management Subcommittee IX. Council Member Comments X. Public Comments XI. Adjournment Council Members: Please notify the Division Administrator's office no later than 5:00 p.m. on April 27, 2001 if you cannot attend this meeting or if you have a conflict and will abstain from voting on a particular petition (403-2385). 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 ~he testimony and evidence upon which the appeal is to be based. May 2, 2001 CHAIRMAN SANSBURY'. This is the May 2nd meeting of the Environmental Advisory Council. Shall we call the roll to see if we have a quorum? MS. BURGESON: Sansbury? CHAIRMAN SANSBURY: Here. MS. BURGESON: Carlson? MR. CARLSON: Here. MS. BURGESON: Coe? MR. COE: Here. MS. BURGESON: Hill? MR. HILL: Here. MS. BURGESON: Lynne? MS. LYNNE: Here. MS. BURGESON: Santoro? MS. SANTORO: Here. MS. BURGESON: Gal? MR. GAL: Here. MS. BURGESON: Soling? MR. SOLING: Here. MS. BURGESON: Stone? MR. STONE: Here. CHAIRMAN SANBURY: Okay. Very good. We have the agenda in front of us. Are there any additions, deletions, or revisions to the agenda? Why don't we ask staff first and then individual members of the council. MS. BURGESON: We need to add the annual report discussion in. That can be handled after the LDC amendments under old business. CHAIRMAN SANSBURY: Okay. MS. BURGESON: We're making presentations on three environmental ordinances for the amendments. And then the last amendment is going to be the hearing examiner ordinance, which Page 3 May 2, 2001 is being presented today. We haven't handed copies out to you regarding that, but we'll get those to you for the discussion. CHAIRMAN SANSBURY: Okay. Barbara, where is that going to be? Is that going to be under new business? Old business? MS. BURGESON: It's all under old business -- CHAIRMAN SANSBURY: Okay. MS. BURGESON: -- under the plan development amendments. CHAIRMAN SANSBURY: Any members of council wish to add anything to the agenda? MS. SANTORO: I would. CHAIRMAN SANSBURY: Yes, ma'am. MS. SANTORO: Under new business I would like to get the EAC's approval to go to the Florida Land Trust Conference. CHAIRMAN SANSBURY: Okay. Anything else? MR. HILL: One small item, Mr. Chairman. That's the thank you letter that I was asked to write two months ago. Again, we'll put that under old business. CHAIRMAN SANSBURY: Old business. Okay. Anything else? Okay. The agenda then stands with the addition of several items under old business, the annual report, thank you letters, several items the staff has regarding various things, one item that Ms. Santoro has under new business regarding the land trust meeting. Anything else? Hearing none, the minutes from the April 4 meeting. Do I hear a motion to approve the minutes? Any additions, deletions, or revisions to the minutes? Excuse me. MR. GAL: I have one addition. CHAIRMAN SANSBURY: Yes, sir. MR. GAL: I was present, and this doesn't show me present. CHAIRMAN SANSBURY: Great. I'm very sorry for the oversight. Page 4 May 2, 2001 MR. SOLING: I was present. CHAIRMAN SANSBURY: Mr. Soling -- that meeting. as -- Excuse me. That goes for me too. All right. Let the record show that MR. HILL: You still won't get your check in the mail. CHAIRMAN SANSBURY: -- and Mr. Gal both were present at Okay. Do I hear a motion to approve the minutes MR. COE: I'll make a motion -- MR. HILL: So moved. MR. COE: -- as amended. CHAIRMAN SANSBURY: That's by Mr. Coe and seconded by Okay. Opposed? Mr. Hill. All those in favor? (Unanimous response.) CHAIRMAN SANSBURY: (No response.) CHAIRMAN SANSBURY: unanimously. Hearing none, approved Okay. Land-use amendments -- geez, we don't have any today. Okay. Land Development Code amendments. MR. LORENZ: Yes. For the record, Bill Lorenz, natural resources director. I believe at the last BAC meeting the EAC wanted to delay your recommendations and official actions until you had some more information concerning the potential hazards of activities on the beach. Staff agreed to come back to you with some information in a little bit of a presentation format to discuss those items. What I've arranged here is to have Maura Kraus, who is our senior environmental specialist who coordinates our sea turtle monitoring program and has had extensive experience in sea turtle monitoring for Collier County and during her academic career as well, she's going to give you a little bit of a Page 5 May 2, 2001 presentation to try to outline the rationale and the problems that we see with activities on the beach and what we think that we can do to minimize the risk to sea turtles, especially, of course, during their nesting and hatching season. With that let me have Maura give that presentation to you. MS. KRAUS: Good morning. I'm Maura Kraus, senior environmental specialist for the Collier County natural resource department. I would like to go through a couple of slides here and explain what our position is on increased vehicle use on the beach. First, I'd like to say that we are in support of limited increased use in specific corridors and with vehicles running perpendicular to the shoreline -- parallel to the shoreline along the mean high water. Okay. A false crawl is a non-nesting emergence or an aborted nest attempt. False crawls happen in several different ways. You can have a natural reason such as scarps or erosion, and you can also have non-natural reasons for a false crawl. False crawls cause the turtles to expend a lot of unnecessary energy that they should be using for their nesting. It also may cause them to choose an unsuitable nesting site. The goal of the natural resource department is to -- reducing false crawls is an important objective for the sea turtle protection program, and any way that we can reduce the number of false crawls is very important. We looked at possible causes of false crawls from our data from 1997 to the year 2000, and a lot of these are preventable false crawls. Beach furniture caused 7 percent of the false crawls during this time period. I have a couple of examples of some false crawls that were caused by beach furniture. It's a little -- can you see that? Yeah. Okay. This is the turtle's tracks where the turtle came up to try to Page 6 May 2, 2001 find a suitable nesting area at night and ran into obstacles on the beach. This is what we see sometimes when we go out monitoring in the morning, and that's furniture being left on the beach. I don't have a slide of it, but turtles do get stuck in these chairs, and it has been known to be a cause of death in adult sea turtles. This one is a little hard to see as well. This is a false crawl caused by items that were left on the beach overnight. Boats and other recreational vehicles that are left on the beach can also cause a false crawl. In this particular case, a turtle could have gotten stuck underneath this boat and wouldn't have been able to get out until the morning when someone was monitoring the beach. And if a turtle did make a nest under this boat, it could affect the incubation of the nest. If we roped it off and they couldn't move the boat, it could affect the incubation and the survival of the hatchlings. So our proposed strategy is to facilitate the removal of these hazards from the beach on a daily basis and to increase the penalties for noncompliance. MR. LORENZ: Let me interject here. Also, in terms of facilitating the removal of the hazards on the beach, a key component of this strategy is the work that Maura's staff does, which is the monitoring on a daily basis. It's during that monitoring before 9 a.m. When they see those false crawls or they see those crawls that result in a nest. That is then when they can determine that a nest actually exists at a particular location because they rope it off. If that false crawl is wiped away prior to them getting there, we don't know whether a turtle has nested. The hatching period is 60 to 70 days, so then there could be a nest in a location that we haven't marked off because we have now lost that track that we were monitoring for. So a key component of this strategy is to Page 7 May 2, 2001 ensure that we can get out there and monitor where those crawls are, whether they result in a false crawl or whether they result in a nest. MR. COE: Do you have a way of telling whether this crawl has been wiped out prior to your arrival? MS. KRAUS: Yes. When beach raking occurs before we've been out in the morning monitoring, then we would have no way of knowing whether there was a nest there or not. That has happened where beach rakers go out -- either the nest is not in a suitable location for people doing the beach raking or if it's just a mistake, but it does happen. MR. LORENZ: Was your question whether we can tell -- how we can tell there is actually a nest there? MR. COE: I know how you can tell. I've seen them before. MS. KRAUS: If the beach has been raked, then we would not be able to tell. MR. COE: But you're not permitting raking prior to your inspection; is that correct? MS. KRAUS: No, but sometimes it does occurs. MR. COE: Which is a violation -- MS. KRAUS: Yeah. But-- MR. COE: -- for which we have a penalty; is that correct? MS. KRAUS: Yeah. We're proposing a penalty. MR. COE: Okay. MS. KRAUS: We're in support of if a beach-raking violation does occur before monitoring happens that no more beach raking or vehicles on the beach would be allowed for 70 days until that supposed nest hatches. MR. LORENZ: And the reason is that's not so much a punitive slap on the wrist, if you will, to whoever has done it, but the fact is we then no longer know whether a nest has been laid there. And at some particular point when we start looking at Page 8 May 2, 2001 facilitating these ingress and egress corridors and moving furniture around on the beach, we could then be putting furnture on top of that nest or putting some activity on top of that nest that we haven't been able to find because somebody covered that crawl up. So that's why when we start talking about penalties and we talk about that 70-day issue that was in previous drafts, I don't consider that as a punitive penalty as much as it is an operational necessity for us to know where those nests are. MR. GAL: How often do you monitor? Do you go out every day? MS. KRAUS: Seven days a week, yes. MR. GAL: What time in the morning? MS. KRAUS: Between 6:30 and 7. It depends on -- you know, the first of daylight. MS. SANTORO: When is it finished usually then? Is 9 a.m. A definite deadline that you would have monitored the entire beach or all the beaches? MS. KRAUS: Well, we might not be done marking our nests, but we can be done by nine by just, you know, flagging off the nests and then coming back and recording our data later. But nine o'clock is our deadline because we need to see if a nest needs to be moved. For some reason, if it's too close to the mean high water, it has to be done by nine. MR. GAL: If you see a violation, do you report that to anybody? MS. KRAUS: Yes, we do. MR. GAL: Is that the code enforcement staff? MS. KRAUS: Yes, it is. MR. GAL: Okay. Then they make the decision as to whether to enforce the issue of violation or -- MS. KRAUS: Unfortunately, they have to be there to see it in Page 9 May 2, 2001 order to -- MS. SANTORO: What's that? MS. KRAUS: They have to actually be there to see the violation. So all we can do right now is to call and report it and keep track of it. But we have no code enforcement on that. CHAIRMAN SANSBURY: Yes, ma'am. MS. LYNNE: Do you have records on the number of violations that you've seen, say, over the past season, last year's sea turtle nesting season? are? MS. KRAUS: Yes, we do. MS. LYNNE: Do you know right offhand how many those MS. KRAUS: I don't know total, but we do have that data. Okay. You can see we've got -- it looks like there's 13 violations. MS. LYNNE: And that's over the entire seven-mile stretch, or are they in one particular area? MS. KRAUS: We have 22 miles of beach to monitor. MS. LYNNE: Twenty-two miles, okay. MS. KRAUS: This does not include -- this would just be for Vanderbilt, Barefoot Beach. MS. LYNNE: This is just for Vanderbilt and Barefoot Beach, the 13 violations? MS. KRAUS: Yes. MS. LYNNE: Okay. MS. KRAUS: And I believe it does include the Clam Pass area, which is the county beaches. MS. SULECKI: Good morning. For the record, I'm Alexandra Sulecki of the code enforcement department. This is just a record of some violations that occurred in the past two years at the Ritz-Carlton only. There are other violations up and down Vanderbilt Beach. Mostly -- there were one or two at the other hotels and several of the condos, but the bulk of the violations Page 10 May 2, 2001 are at the Ritz. CHAIRMAN SANSBURY: Thanks. MS. LYNNE: Thank you, Alex. CHAIRMAN SANSBURY: If I could just for a second -- because we're getting into the discussion that I think I've got to recuse myself from. Mr. White, at the last meeting I recused myself on this item because my employer does have interest in a hotel property on Vanderbilt Beach. Can I recuse myself under that same little form I filled out, or do I need to do it again? MR. WHITE: I think it would be advisable to fill out a new form, if you will, using the same rationale. Again, I don't know if it's a disclosure of a voting conflict that is one that is probably more discretionary rather than mandatory, so I commend you for trying to err on the side of the law that's going to -- CHAIRMAN SANSBURY: Do you think there's a problem with me chairing the meeting as long as when we came to a vote in the meeting -- MR. WHITE: Any part that you participate in the discussion is appropriate. It's merely only when you have a voting conflict that at the point in time that you vote that you abstain. CHAIRMAN SANSBURY: Okay. Thank you. MR. COE: Okay. CHAIRMAN SANSBURY: Yes, ma'am. MS. LYNNE: If I could have some clarification. Bill, you were stating that these changes are the result of Maura's work. What I don't understand is how using vehicles on the beach is going to promote sea turtle safety. MS. KRAUS: Well, the vehicles on the beach would be to facilitate the removal of the hazardous items from the beach. Currently they exist, and we have lots of documentation that they are causing hazards for the adults and for the hatchlings. Page 11 May 2, 2001 And if they need a vehicle to get the stuff off the beach and they use a specific designated corridor that we monitor that can be moved if we see that a nest is close by or if it's going to interfere with hatchlings, you know, then this corridor can be moved. MR. CARLSON: I have one. CHAIRMAN SANSBURY'. Mr. Carlson. MR. CARLSON: I'd like to ask one question at this point. The nesting, now does most of the crawling and the digging and the nesting occur up front in the season which runs from May to October or throughout the season? MS. KRAUS: It starts very slow in the beginning in May, and then, you know, slowly on a daily basis it gets to a peak in the middle, the end of June, beginning of July, and then it starts dropping off. MR. CARLSON: You could have nesting in September or October? MS. KRAUS: Usually it's done by August. MR. CARLSON: Okay. MS. KRAUS: Yeah. The first week of September is good. MR. CARLSON: So the last hatchlings have hatched and are gone usually by the end of October? MS. KRAUS: Yes. Yes, they are. CHAIRMAN SANSBURY: Okay. MS. KRAUS: Okay. As I was saying, our proposed strategy is to facilitate the removal of the hazards from the beach on a daily basis by allowing a limited use of ATVs, by allowing a limited use for these hazards, to confine these vehicles to the specific corridors designated to eliminate the risk to the marked nests, and to regulate vehicle specifications. And what that is is there's certain pounds per square inch acceptable by the state for a vehicle to have. It has to be under 10 PSIs, which is ground tire pressure, and that would eliminate some of the compaction Page 12 May 2, 2001 problems that could be caused by vehicles. MR. LORENZ: Remember that second back -- if you can go back, it talks about "designed to eliminate risks to marked nests." The only way we can mark the nest is to insure that raking has not occurred prior to the monitoring staff getting out on the beach. MS. KRAUS: So our recommendation is to remove all items from the beach and to store them in designated locations or in off-the-beach locations and to allow for a limited ingress and egress corridor for the vehicle to travel to facilitate the removal of the furniture and other items and to regulate the ground -- the tire pressure standards. Also, require tire-tread identification on vehicles which would help eliminate somebody saying, '~/ell, it wasn't me that did that." And by having a marking on the tire, we would be able to tell whose vehicle was on the beach, and if they caused a violation, then we would know who it is. They would leave a mark. Does anyone have any questions? CHAIRMAN SANSBURY: Questions from council? Yes, sir. MR. SOLING: I have a question. Chet Soling. When you mark a nesting area, do you number it and keep track -- because I'm thinking of the possibility that after you mark it, somebody comes along and removes it, the marking, and then runs vehicles over it or puts equipment on it. So do you keep track of the numbers? MS. KRAUS: Oh, yes. We keep a very good eye on every single nest. Actually, that's only happened one time where someone pulled out the stakes and we had to relocate the nest. We tried to find the nest again. People are pretty respective of the turtle program, and we do collect a lot of data and keep an eye on the nests on a daily basis. Page 13 May 2, 2001 CHAIRMAN SANSBURY'- Yes, ma'am. MS. SANTORO: I beg to differ with you. My husband has watched people beach raking from a high-rise when it was going up on construction and has seen them mow the tape and the stakes and everything down, so you're missing some. I mean, that's what concerns me. You're saying about enforcement that you can currently only enforce it if you see it, and that's going to be pretty difficult. I'm very concerned if we allow it that we have good enforcement and that it's done, and especially that we have a heavy penalty if they actually destroy a nest. MS. KRAUS: Do you live on Marco Island? MS. SANTORO: Well, I live near there, but this particular one was in Naples. They have high-rises going up all over. MS. KRAUS: Naples. Okay. Because I do know of one incident where a nest was -- and we have photographs of it -- knocked over by a beach rake, and also it happened on Hideaway Beach one time. CHAIRMAN SANSBURY: Yes, ma'am. MS. LYNNE: Do we currently allow furniture and so forth on the beach during sea turtle nesting season? MS. KRAUS: No, we do not. MS. BURGESON: Well, we do have some variances that were approved over the past five years; that in order to facilitate moving that furniture into storage areas to reduce the impact of the sea turtles we've given them variances. For instance, Cabana Dan's has a variance. He is allowed to keep the beach furniture in a small, compact identified area as far back on the beach as possible, and it's back behind the tow of the dune walkover of the county park at Vanderbilt Beach. There are a couple of other areas. For the most part they have to remove them because those identified storage areas are back off the beach. For instance, the Ritz has an exception to Page 14 May 2, 2001 that because they've identified areas that are as far back as possible to areas, I believe, where they're storing their beach furniture. MS. LYNNE: And the furniture gets stored there all summer? MS. BURGESON: Yes. MS. LYNNE: It doesn't go in and out; is that true? MS. BURGESON: No, no. Each night it gets stored in those areas. MS. LYNNE: So the beach furniture does go out during sea turtle nesting season? MS. BURGESON: Uh-huh. Right. MS. LYNNE: That's what I wanted to know. Are beach events currently permitted in sea turtle nesting season? MS. BURGESON: Yes. MS. LYNNE: Thank you. CHAIRMAN SANSBURY: Any other questions from council? Thank you. MR. LORENZ: That was the point that we wanted to make from the last BAC meeting with regard to the vehicles on the beach. As I said earlier, our direction from the County Commission -- I guess it was in the fall -- was to try to develop working with the hoteliers in trying to develop some type of reasonable accommodation to see what could be allowed to occur on the beach. Our perspective from the natural resources department and our first top priority is to get the furniture off the beach. We provided you the data to show that that's a hazard that we want to facilitate getting off. We feel an ingress and egress corridor that restricts the ability of an ATV to go perpendicular down to the mean high water line is appropriate with that ATV having the proper tire pressure and then move that furniture and give the vendors some -- it's a little bit more easier to get that furniture Page 15 May 2, 2001 off the beach. That's the hazard that we have documentation on and problems with. Again, the underlying assumption with that accommodation is that we're able to see where those nests are through our monitoring program. Any time somebody comes in and rakes the beach or does something before our monitors get onboard, we could potentially have a nest in the sand at some location that is going to be there for 60 or 70 days and then hatch. And we don't want to have our egress and ingress corridor to go over that nest, for instance. Or if somebody then wants to have some function on the beach and then puts a tent or drives a tent stake down in that nest location, that's what we're trying to avoid. So to the degree that we're able to locate those nests, that's the underpinning for the proposal that staff is saying that we have a high degree of confort with. CHAIRMAN SANSBURY: Yes, ma'am. MS. LYNNE: Is it currently in the law that the beach furniture is supposed to be moved off the beach by 9 p.m.? That's currently the law? MR. LORENZ: Yes, it is. MS. LYNNE: And currently is that being enforced? MS. BURGESON: You might want to check with Alex, but that has been required and enforced ever since I've been with the county. CHAIRMAN SANSBURY: Could we -- MR. LORENZ: Put it this way. We have noted that there are violations -- that there are times -- there are a lot of times when that furniture and other things are not taken off the beach. To the degree that code enforcement has a proactive enforcement program or it has been difficult to enforce, I guess the answer is, yes, it has been difficult to enforce. There are, perhaps, some strategies that Michelle may want to discuss with you about Page 16 May 2, 2001 heightening up on a proactive enforcement program, but your assertion is correct. Furniture is not allowed to be on the beach during turtle nesting season at night. CHAIRMAN SANSBURY: Could we ask Miss Sulecki or whoever in code enforcement -- I'm not quite clear on the interaction between our folks going down the beach in the morning and how it interacts between code enforcement and how everybody gets out there, so kind of the process on how you guys do it. MS. SULECKI: Yeah. Some violations have to be observed by us. For example, if there is a vehicle being used on the beach and we just observed -- or the turtle people just observed tracks in the morning and then they call us and we go down there, it's very difficult to determine who made those tracks, and so we can't really enforce that. If there are chairs on the beach, generally they call us and take a picture or something like that, and we can enforce when there's some kind of documentation and we can actually link the chair to a property. MS. ARNOLD: For the record~ Michelle Arnold, code enforcement director. I'm sorry, I hit something. With respect to how we're coordinating with natural resources and the monitoring that's occurring or will be coordinating with the sea turtle nesting season, we're probably going to -- depending on what this board does and what happens with the final approval or amendment on this amendment, we'll probably have to be coordinating a lot more and relying on the natural resources department for citing violations in the morning while they're out there doing the monitoring. Then outside of their monitoring program with respect to special events or beach events, I'll have to come up with some way that we can monitor those activities with respect to set up Page 17 May 2, 2001 and dismantling, making sure that furniture has been removed off the beach at the appropriate time and those types of things. Right now with the added amount of events that are allowed on the beach, the staff impact is great. So I'll have to devise a system where we can schedule monitoring or inspections of the site to insure compliance. And, hopefully, after a certain amount of period with no violations, we can just do sporadic checks on the beach events and furniture and those types of things. CHAIRMAN SANSBURY: Anybody have any questions for code enforcement? Yes, ma'am. MS. LYNNE: Has there been any allowance for extra money or extra staff in order to do this enforcement? MS. ARNOLD: No. CHAIRMAN SANSBURY: Let me ask one other question. MR. COE: Sure. I'm sorry. CHAIRMAN SANSBURY: I know it's probably interdepartmental -- I don't know which one it would be -- having the individual that's actually going down the beach have authority to write violations. MS. ARNOLD: Well, that's what I mean. What we're going to be doing is -- CHAIRMAN SANSBURY: Okay. MS. ARNOLD: -- working with the natural resources staff and training them as to what they would need to cite, what specific ordinance, violations, how to write up the notice of violation, so that we are not having to then go back maybe hours later after an occurrence. Something has been witnessed, so we will be doing that. CHAIRMAN SANSBURY: Okay. Thanks. MR. CARLSON: Have any citizens expressed any interest in volunteering to monitor this? MS. ARNOLD: No. We have volunteer programs, but Page 18 May 2, 2001 typically we don't rely on the citizens to do any citing or anything like that. It's mostly just the reporting of violations. We really want to maintain that authority to the county and county staff. MR. CARLSON: Oh, sure, that's what I meant, but just the sighting. MS. ARNOLD: Yeah. CHAIRMAN SANSBURY: If you all need help one night, I would like to volunteer Mr. Coe. MR. COE'- Yeah. Right. I'll be more than happy to do it. CHAIRMAN SANSBURY: Okay. Thank you-all very much. MR. LORENZ: That was the nature of the natural resources presentation. MR. HILL: Mr. Chairman, one question. CHAIRMAN SANSBURY: Yes, sir. MR. HILL: I think this inventory aerial is -- you are to be complimented on that. Do you know by any chance was this photographed at -- did he fly over at Iow tide or high tide? Do you have any idea? It's amazing how they oriented their nest towards the erosion control line or the mean high waterline. MS. KRAUS: Those -- I'm not sure what the tide was on that particular photograph. They're flown annually. I'm not sure of the tide but -- CHAIRMAN SANSBURY: Hold for just a second. Identify yourself, please, again, for the record. MS. KRAUS: Maura Kraus, Collier County natural resource department. CHAIRMAN SANSBURY: Thanks. MS. KRAUS: All the nests and false crawls were GPS'd and then plotted on the maps. CHAIRMAN SANSBURY: MR. HILL: It's amazing. CHAIRMAN SANSBURY: Okay. Any other questions? Where are we going? Page 19 May 2, 2001 MS. BURGESON: Let's go back. I'm Barbara Burgeson for the record. The handouts that were given to you this morning all contain revisions from what you were mailed out last week. If you go to -- it's one of the thicker packages for vehicle-on-the- beach regulations. I'll go through that with you as quickly as I can. CHAIRMAN SANSBURY: Okay. MS. BURGESON: Where you see in parentheses to propose to delete the following paragraph or "proposing to delete," those are in response to Matt Grabinski's concerns where we received letters -- CHAIRMAN SANSBURY: Let's all make sure we all have it. We've got three different documents. Let's make sure we've got the right ones in front of us. Proposed, okay. All right. MS. BURGESON: 3.14. MR. SOLING: Excuse me. Which document are you referring to? CHAIRMAN SANSBURY: Got it. Okay. Thanks. About halfway down there's -- all caps and brackets -- "(Proposed to delete the following paragraph.)" MS. BURGESON: You'll see that throughout each of the three packages, and those are in response to, as I mentioned, concerns from the Ritz that Matt Grabinski had submitted to the county staff. MS. LYNNE: I don't know who that is and what the concerns were. MS. BURGESON: Matt is the lawyer representing the Ritz. MS. LYNNE: Okay. MS. BURGESON: So these are areas of concern for the Ritz that they would like us to request or consider deleting those areas. MS. LYNNE: Is that statement -- paragraph statement true? Page 20 May 2, 2001 MS. BURGESON: That paragraph statement was true when this was written. The only group that I know that's made a change to that is the Conservancy of Southwest Florida. I understand that they are supporting the language as long as the strictest penalties that we proposed are incorporated into this ordinance. CHAIRMAN SANSBURY: Why don't we go ahead and hear Barbara walk through it, and then we'll hear from everybody else involved. MS. BURGESON: If you'll flip to the second page, we haven't made any changes except for some grammatical changes to what you saw at the last presentation regarding the PSI for the tires. That's just a nonsubstantive change. If you get down to the larger paragraph at the bottom of the page, that's putting back the language that we had removed last time, and that would allow limited use of vehicles on the beach during sea turtle nesting season to facilitate mostly the removal of beach equipment from the beach at night to prohibit or reduce any chances of false crawls or harm to the sea turtle nesting program or to the sea turtle nesting. On the next page, again it's the PSI and that paragraph regarding limited use. Then that's repeated again on the next two pages. We've got this ordinance broken down into three components; that is, the use of vehicles by the concessions, the use of vehicles for standard hotel uses during the day such as bringing out towels in the morning and bringing them back in the evening, and then third being the annual beach events tie-in. So that's why you see that repeated in there three times. If you'll flip to the page that in the middle it says, "beach raking and mechanical beach cleaning," all we've done on that page is clarified the language. Flip to the next page, and you'll see Page 21 May 2, 2001 another clarification for 3.14.6.1 on the language, and then the new language that's added to it is the penalties section. This is something that's changed I think quite a bit from the last time you had seen it. It includes penalties handled specifically for the beach raking and cleaning activities under 3.14.7, and then 3.14.8 addresses the penalties for the hotels and commercial uses, CHAIRMAN SANSBURY: Okay. Discussion by council. MR. COE: Yeah. Why are you proposing to delete the -- and I'm talking about back in the penalties section. You're proposing to delete the second and third violations. MS. BURGESON'- What was requested was not deleting the violation but keeping the fine and deleting the suspension of the ability to use the vehicle for beach raking. CHAIRMAN SANSBURY: Yes, ma'am. MS. L. YNNE: Throughout this revised thing there's these sections that say "proposed to be deleted." Who made those proposals? MS. BURGESON: I'm sorry? MS. LYNNE: In all the sections where it has in parentheses "proposed to be deleted" and then there's a paragraph or a section to be deleted. MS. BURGESON: Since you don't have that in color, the proposal is for the language that's after that follows that. MS. LYNNE: Right. And who proposed making those deletions? MS. BURGESON: That was -- the proposals were from -- I think all of these proposals came from the Ritz. MS. LYNNE: So perhaps -- can somebody explain to me why the Ritz proposals are presented to us in the staff's -- CHAIRMAN SANSBURY: Well, we're going to hear from that petitioner. Page 22 May 2, 2001 MS. LYNNE: But I just don't -- there's a process here that I don't understand. For example, if the Audubon Society comes in, can they say what they want in this and have it presented to the board in the planning staff's -- in your report to us? MS. BURGESON: We haven't done that. What we've incorporated here are the concerns from the hotels, probably because they have been in contact with us the most with specific proposals to change language. MR. LORENZ: Let me clarify that. Bill Lorenz. My understanding is that it's because the board basically directed staff to work with the hotel industry to come up with some strategy or scenario that we worked together with, so I think that's why you're seeing their recommendations at this particular point in these particular drafts. CHAIRMAN SANSBURY: Okay. Shall we now hear from anyone from the public? MS. BURGESON: Well, I think we should probably go through all three of them first. CHAIRMAN SANSBURY'. Okay. Fine. MS. BURGESON: They all -- MR. HILL: Mr. Chairman -- CHAIRMAN SANSBURY: Yes, sir. MR. HILL: I'm a little confused on the rationale. For example, at the bottom of page 2, the underlined text is not a change; right? That's from the current -- MS. BURGESON: The underlying text is the additions that we're proposing to the Land Development Code. MR. HILL: Right. Then in the last three lines at the bottom of page 2, the proposed-to-be-deleted section is a proposal by the Ritz -- MS. BURGESON: Yes, that we're considering. MR. HILL: -- which is a deletion of what staff has proposed Page 23 May 2, 2001 to be added. MS. BURGESON: Right. MR. HILL: Okay. I'm clear on that. Should we ask for comments now, Mr. Chairman, from staff or wait? CHAIRMAN SANSBURY: What I think staff would like to do -- and you can correct me -- is go through all three documents and then go to comments, if we could, if that's fine with everybody. Okay. MR. SOLING: Wait a minute. I have one more question. CHAIRMAN SANSBURY: Yes, sir. MR. SOLING: I assume it's page 3 of the documents we're looking at. It's 3.14.3.6.1. There's a statement, and I'm trying to understand this rationale. And then afterwards there's in brackets "(proposed to be deleted.}" What is that? The whole thing that preceded it or -- MS. BURGESON: Yes. MR. SOLING: -- what follows? MS. BURGESON: That would be proposed to delete that Section .1. CHAIRMAN SANSBURY: The portion of it that follows is proposed to be deleted. I think that's what -- MS. BURGESON: Well-- MR. SOLING: No, precedes. MS. BURGESON: -- where it's just -- where it follows a section, then it's proposing to delete the entire section. Where you see it in the middle of the section, then what's proposed is what follows. CHAIRMAN SANSBURY: Okay. Yeah. MR. SOLING: When it's preceded you're saying the thing preceding is being deleted? MS. BURGESON: In the case of 6.1 they're requesting that entire sentence be struck. Page 24 May 2, 2001 MR. SOLING: Preceded. MS. LYNNE: Can we get the transcript of the board's direction to staff regarding this amendment? CHAIRMAN SANSBURY: Excuse me. I believe that we requested staff to sit down with -- at that time of the discussion and to come up with ideas back and forth. I think the way they projected it here is it's our determination after we've heard everybody to determine whether we agree with these proposed deletions or not, and I'm very clear that they're doing what they asked us to do. MS. LYNNE: Did you mean our board -- CHAIRMAN SANSBURY: Yes. MS. LYNNE: -- or did you mean the Collier County commissioners? MR. LORENZ: Collier County Commission. CHAIRMAN SANSBURY: Us also. MS. LYNNE: Right. But I thought Bill was referring to the original charge by the Board of County Commissioners to examine this further. MR. LORENZ: Originally, that's correct. Then when you heard it at the last meeting, you wanted to have some additional information from staff in terms of what was the rationale. From that point we also -- staff had also sat down with the hoteliers as well to discuss items to draft that you currently have in front of you now. It's in a form in terms of the underlining where staff is recommending, and staff is very comfortable with that, but the -- and you'll hear from the speakers that they are not. And it's in those areas that it says "(proposed to be deleted)." They're not comfortable with that language. CHAIRMAN SANSBURY: And that's where we have to make a decision at the end of this hearing. Page 25 May 2, 2001 MR. LORENZ: I'm trying to show you both sides of the proposal. CHAIRMAN SANSBURY: Okay. MR. GAL: They have a question. CHAIRMAN SANSBURY: Yes, sir. MR. GAL: Can the public ask questions? MR. SOLING: Not yet. CHAIRMAN SANSBURY: Well, what we are going to go through is all three of the -- the term I want to use is ordinance, but that's not right. MR. LORENZ: Yes. We want to go through all three documents or sections of the Land Development Code. CHAIRMAN SANSBURY: And then we'll make it a public discussion if that's acceptable with everybody. Okay. What's your second one? MS. BURGESON: The second one is Section 3.13, and that's the coastal construction setback line variance. In making amendments to the vehicle.on-the-beach section, we recognized that there were some sections that were missing in other parts of the Land Development Code. So we went into the coastal construction setback line variance and clarified the exemptions paragraph, which requires that the beach furniture and equipment be removed from the beach by 9 p.m. And clarifies the appropriate personnel to do that monitoring. And then it adds a penalty section which has not been a part of that section of the code. Under 3.13.9.3, the proposed deletion is the language following that. Under the section violation they're proposing to delete the suspension, and on the third violation they're also proposing to delete the suspension. CHAIRMAN SANSBURY: Questions? (No response.) Page 26 May 2, 2001 CHAIRMAN SANSBURY: Hearing none, we'll move on to No. 3. MS. BURGESON: The last is the annual beach-events permit. Again, the majority of this is clarification and adding penalties to this section. On the second page, it's a simple clarification that the documents have to be provided to Collier County and to natural resources during sea turtle nesting season. It cleans up a little bit of the language describing nesting season and the DEP permits and then makes this section consistent with the vehicle- on-the-beach section regarding structures that need to be removed from the beach. On the next page, we're proposing that whenever a nest is identified at a hotel where there will be beach events on that beach that that nest have additional protection by placing a 25- foot barricade around those nests. That entire paragraph, 2.6.34.5.3 is being proposed to be deleted. MR. CARLSON: Is that like radius or diameter? MS. BURGESON: That's 25 foot out from the center of the nest and a radius placed around that. CHAIRMAN SANSBURY: Radius. MS. BURGESON: 2.6.34.5.4 and 5.5 are just clarifications, as well as 5.7. Then the addition on the bottom of the page -- at the bottom of that page is the addition of the violations for the annual beach-events permits. The proposal to delete or to make changes on the second violation in 6.1 is to reduce the second violation fine to $500 and reduce the third violation fine to $500. And in 6.2 the proposal to delete -- the second violation is to delete the suspension, and the proposal to delete in the third violation goes also to delete the suspension. CHAIRMAN SANSBURY: Questions from council? MS. BURGESON: The following two pages are corrections to Page 27 May 2, 2001 the standard permit conditions which are attachments to all the annual beach-events permits, and that's also clarification language consistent with what's presented in the pages preceding this. CHAIRMAN SANSBURY: Okay. Questions to staff before we go to input from the public? MR. COE: Yeah, I've got one question. Patrick, is the law in the State of Florida? Who owns the beach? MR. WHITE: Patrick White, assistant county attorney. There's any number of potential owners depending upon first whether you're above or below the mean high waterline. Typically the state is the owner, if you will, below the mean high waterline held in trust, if you will, for the public. Above and to what may be an identified property line by way of a conveyance and a deed or some type of legal description, there is an area that may be, if you will, owned by the county or the public again. And, thirdly, there is the circumstance where some properties are owned by a property owner down to the mean high waterline. So there's any number of potential combinations. Indeed, there's also another one where some of the lands may be held by the cabinet sitting as the administration. Actually, it's the trustees to the Internal Improvement Fund. So there's -- factually you would have to look at each individual case in order to know who owns "the beach." But going to a more geophysical type of definition of what the beach is, it's traditionally the area that's the fore shore and up to and just behind the dunes, I guess, is generally regarded as the beach depending upon which statutes or rules you're looking at. I hope that answered that. MR. COE: So, in other words, let's just throw this out: Hypothetically I decide to have a party for 25 of my Marine buddies, and I get a permit to drag down 25 kegs of beer in front Page 28 May 2, 2001 of the Ritz-Carlton. Could I do that if I had a permit and all of that? MR. WHITE: I think there's some facts that you may have not provided me that could determine the answer. MR. COE: I mean, I would have to get the permits. I would to do all that sort of thing. Could I take it down on the beach where their events are being held and have my party for my 25 Marine buddies? MR. WHITE: I think if you were going to, quote, have your party below the mean high waterline -- MR. COE: No, above it. It would be above the mean water -- I mean, it would be basically in the same area where they have theirs on the beach. MR. WHITE: Without knowing where their property line begins and ends relative to the mean high waterline, it's impossible for me to answer the hypothetical. I can do it by saying that if we assume they own down to the mean high waterline you would be trespassing. MR. COE: But how would a -- MR. WHITE: If there was an area -- MR. COE: -- public member know that? MR. WHITE: I don't know of any simple way short of putting signs all up and down the beach, which I don't think is aesthetically pleasing. Regardless, I don't know some simple way to know. You can always know by looking in the public records and doing title searches and things of those type. There's also a state agency, a department of which if you ask them or are in doubt about whether there is, for example, sovereign in submerged lands or not, they make those determinations. So there's a process available, but it's just not one that's readily apparent or easy to follow. MR. COE: I mean, if I sound amazed, I really am quite Page 29 May 2, 2001 surprised. I came from North Carolina. The public owns up to the mean dune line, from the waterline to the mean dune line, period. MR. WHITE: Each state traditionally has the right to set those rules differently. There is all different kinds of jurisdictional lines, if you will, but ownership is a different concept. In the State of Florida, typically, land is held by the state below the mean high waterline. MR. COE: Okay. CHAIRMAN SANSBURY: Before we get to it from the public, I'm sure those folks want to address that also -- yes, ma'am. MS. LYNNE: This is another question for Patrick. CHAIRMAN SANSBURY: Wait a minute. He's reading something else. MR. WHITE: I'm sorry. MS. LYNNE: Two other legal questions. Are federally endangered species such as the sea turtle protected on private property? MR. WHITE: I'm unaware of any exemption affecting the nature of ownership of the land with respect to those rules. MS. LYNNE: My second question is, if somebody owns property and habitually and regularly allows the public to cross it, isn't there some sort of provision for that becoming law, the access to that property? MR. WHITE: Those types of prescriptive easements or other types of traditional uses, again, in different states are handled differently. I'm not aware of any judicial decisions that may have decided those matters on the beaches in question, so I think you would have to go back to a factual analysis of where each individual property owner owns to under their deeds and legal descriptions and where that line falls relative to the mean high waterline. Page 30 May 2, 2001 MS. LYNNE: Thank you. CHAIRMAN SANSBURY: All right. Yes, sir. MR. SOLING: I would like to -- Chet Soling. I would like to offer a general comment. After our last meeting -- I live not too far from the Ritz, and I did make several trips down to the beach and through the Ritz or down from Vanderbilt Beach. Admittedly, it was before 9 p.m., but it was about sunset at that time, and I did make observations. One, there are a lot of condominiums up and down that beach in Pelican Marsh that have long boardwalks elevated, narrow, that no vehicle could run down or up with steps down to the beach. At the foot of all of these ramps, there are stored beach chairs, which probably stay there year in and year out, for the convenience of the residential tenants to take out and put on the beach or hopefully bring back. But I am sure these chairs and equipment stay yearround parked on the beach. At the Ritz I did also notice boats, chairs, and everything else stacked on the beach. No one was there, but as I said, it was admittedly before 9 p.m. I did go -- on two of the visits the Ritz was having parties, but it was on their big swimming pool deck. To me it's inconsistent for the level of tenancy that the Ritz has to see these women with their dresses, etc., walking out on the beach to have a beach party when on the terrace it's much more pleasant, nice. They did have stands set up for a buffet, several different stands for different types of food, and the participants were standing around drinking cocktails on this beautiful terrace that they've just enlarged with a new swimming pool and enjoying themselves. And, as I said, it was inconsistent for me to conceive that these women and the men in their suits would happily walk down on the beach to be doing the same thing. So my question is -- I don't know -- well, the last point I make is this: We have probably 20, 30 hotels up and down the beach in Page 31 May 2, 2001 Naples and Collier County. We may have a couple of -- maybe 100 condominiums that are up and down the beach in Collier County. I object strenuously for having our staff spend a great deal of time on making proposed regulations and then having one hotel delete the whole essence, the whole enforcement, of these regulations to satisfy the one hotel. We were given this just this morning and have had no opportunity to really see the potential of what's being deleted. And I don't think that we have the hours to spend to go through all of this and comment on what our staff did and then having it excised because of one hotel. But that's my general comment, and I thank you. CHAIRMAN SANSBURY: I think, Mr. Soling, in defense of staff, I think we asked staff the last time to sit down with -- and we used the term, I believe, plural "hotels." I don't know how many hotels came forward other than the Ritz. But I think they've done what we've asked them to do, to come back and say, "This is the way we would like to see it. The hotels would like to delete this." If you don't want to delete it, that's our decision to make today, and we need to go through it. I think they made a pretty simple way to look at this way rather than go back and forth, back and forth. I don't know if any other hotels gave you input, but they certainly had the opportunity from our last meeting because we asked everybody else to do that. So, you know, I don't quite see it in the same manner. I see it -- I'm setting it up so that when we go through this, we need to make these decisions. It's clearly stated that this is a proposed deletion by the hotel industry. And if we agree with it, we do; if we don't agree with it, we don't. The staff has said the way they'd like to see it. I think it works kind of good in this way. Page 32 May 2, 2001 Let's -- go ahead. MS. LYNNE: I'm sorry, but I just looked through the minutes, and I don't see any place where we directed the staff to talk to the hotels. We directed staff to come back to us with additional information about sea turtles and what's necessary for their safety. I also agreed that having the hotel industries preferences put into the official staff report is inappropriate. That's something that the hotels can do on their own, and I don't think our county staff should be putting that forward to us. Also, it never says specifically in this proposal who proposed those deletions. We had to ask to get that information. Otherwise, you could assume staff made those recommendations. CHAIRMAN SANSBURY: Point well taken. Let's move forward. MR. WHITE: Let me just address that last point first, if I may, since I was the one that inserted the propose-to-be-deleted type of text. It was done -- and I just checked this with Mr. Grabinski -- at his request. Although it probably is similar for the folks that aren't his clients, but it was only for his particular clients. So it's not the "hotel industry" speaking as of yet with one voice. These are individual requests, and I'm certain that if the others choose to chime in they will do so. My understanding is that it's probably representative of the industry. It's just that I don't want to make the statement specifically. CHAIRMAN SANSBURY: Let's --yes, sir. Go ahead. MR. GAL: I have a legal question on a totally different topic. CHAIRMAN SANSBURY: Sure. MR. GAL: Do you think that the county has the authority to create a civil cause of action to enforce the provisions of this ordinance? You know, in many environmental statutes and Page 33 May 2, 2001 federal and state they create a private cause of action, and I know enforcement is a problem. If any citizen can see a violation and go to court to enforce it, I mean, would the county have that authority to do that? MR. WHITE: That's an interesting question. I don't fully know the answer. My belief at this point, without the benefit of further research, is that wouldn't be something that the state has delegated to political subdivisions such as counties or municipalities. I think it's something that may be reserved. Causes of action are something that typically either the legislature or the constitution may set forth in the statutes and otherwise. I don't think it's something that is delegated to the 67 different counties and hundreds of municipalities. Otherwise, I suspect we would need far more number of judges than we have. CHAIRMAN SANSBURY: Okay. Thanks. Let's move forward and hear from the public, if we could, regarding these three items. MR. STAROS: Good morning. Ed Staros, I am the managing director of the Ritz-Carlton Hotel. I started full time -- I've been with the company -- I'm in my 19th year with the company. I helped Mr. Freni open the hotel back in 1985. However, I started full time at the Ritz-Carlton, Naples, in November of '99. I had just -- the turtle nesting season was just coming to a close. And when the previous general manager, Mr. Bill Hall, sat with me in an orientation as to the issues of the hotel, he spent a great deal of time with me as to the sensitivity of the environmental impact of the hotel to the county. I immediately -- because I didn't know the laws having come from Georgia, I immediately hired Tom Garlick and Matt Grabinski to help me work through this simply due to the fact that I wanted to be a good citizen, and I wanted to make sure Page 34 May 2, 2001 that we followed the law to the tee. On the record, I've been in the industry 30 years, and I have a reputation as being an environmentalist and businessman all at the same time. So at any rate that was the whole purpose of hiring a law firm, to make sure that I knew what was going on, etc. With reference to some of the things that were said today, I want to just make a couple of comments. One, I learned today of these 13 violations. I know of two. One was human error, a brand new employee raking the beach last season, and one was - - we have a logbook, by the way, that we set up so every morning when we get checked we sign a logbook. One of the -- the second violation was -- take today's date, May 2nd, it's a Wednesday. It was in the book as May 2nd Thursday, so it was misunderstood as to which day of the week was already previously signed, and that was just human error in both cases. I am aware that we have called Alex on numerous occasions when we find tire tracks on the beach, and I am sure in that 13 number that those are also part and parcel of the count, as far as that is concerned. I would also like to mention that "vehicles" is plural. We own one vehicle. It is one ATV. So there is a -- when you're talking "vehicles," it sounds a little bit like Daytona Beach. This is not Daytona Beach. We own one vehicle simply for the purpose of delivering towels and -- taking dirty towels and delivering beach furniture and taking it off the beach. So it is not something that we take advantage of. It is simply a mechanical vehicle to help get from Point A to Point B. The laundry is a thousand feet away from the beach. Hand carrying a thousand towels down and back and forth is a little bit difficult. So it is simply a singular vehicle. I would also like to mention that the reason why Page 35 May 2, 2001 we took the -- we are requesting not to stop the raking is because -- I like to use the term "cleaning." When we rake the beach, it kicks up all the straws, all the paper cups, and so forth. On a daily basis, we walk the beach all the way from our property line, inclusive of the Remington right next door because they're our neighbors and we like to help them out and pick up their beach as well. It makes it all look better for us, all of us. We pick up a garbage pail full of miscellaneous things, some of which are left from our guests and some of which are left from the public. We know that because of the products that we're picking up we don't sell; beer cans, etc., etc., and so forth. So the raking of the beach is really the cleaning of the beach. Yes, I'll be the first one to admit on my watch we've violated it twice last year, both by human error and so forth. We're highly sensitive to it. I asked Matt to put together a five-page document with reference to the sensitivity of the issues that happen here in Collier County environmentally. Every single employee has to read and sign that, and it goes into their employment file. So we will not have -- or it was a preventative measure so we would not have a new employee not understanding. They have to go through that orientation before they work on the beach. I would like to also state a couple of other things. The nine o'clock issue with reference to requesting a later time frame -- and I'm talking about one hour, ten o'clock, to take everything off the beach with reference to parties is simply due to the fact that here it is, May 2nd. If you looked at the Weather Channel this morning, the sunset is going to be at 8:01 tonight. By the time June 21st comes around, it's going to be nine o'clock. There's not a person that comes to Florida -- and the whole reason they come to Florida is to put their toes in the sand, et cetera, and to watch the sunsets and so forth. I think it's just a little Page 36 May 2, 2001 unreasonable to think that you can have a gathering on the beach, even for your 20 friends or your 20 Marine friends and your kegs of beer, etc., and be off the beach before the sun sets and/or the second the sun sets. All we have asked for -- we're not trying to be uncooperative. There's probably only about ten parties of any size during the sea turtle season that we're talking about. We're not talking about 150 parties. We would like a little variance or a little wiggle room in order to comply because we want to comply. Last, but not least, Mr. Coe, I would like to address your friends, your Marine friends coming. We would love to book your party. I'll get the proper permits. And by the way, it would be on our property. One hundred percent of all these parties that we're talking about -- one hundred percent of those parties are on our property line. MR. COE: Good. MR. STAROS: So all we're trying to do is be a good citizen, and I sincerely mean that. I used to be the vice president of operations for our company. I opened every hotel worldwide. I chose to come here. I feel -- I chose to come here to finish the last 15 years of my career. I will be the one -- unless I drop dead, I will be the one that you'll be working with for the next, hopefully, 15 years, and I'm going to follow the letter of the law. I would just like the letter of the law to allow us to do some business. That's all. Thank you. CHAIRMAN SANSBURY: Thank you, sir. MR. STAROS: I'd like Matt to address the property line. CHAIRMAN SANSBURY: Okay. Do we have any -- we may have some questions before that. Yes, ma'am. MS. SANTORO: I think the biggest concern -- I mean, if an employee -- if the tape, the yellow police tape, and the stakes are up and the employee hits it, that's really vagrant, I think. So my Page 37 May 2, 2001 biggest concern is, if we allow them down there, prior to monitoring to get around -- if we amended that portion to not let vehicles on prior to the monitoring being completed, and they've indicated that nine o'clock in the morning is the last time frame for all the beaches, if we added the 9 a.m. In the morning, would that -- tell me what that would do to your hotel. MR. STAROS: Well, quite frankly, we have a good rapport with the people that come by in the morning -- or at least we did last season -- that rake the beach, and they're normally there around 7, 7:15, sometimes even a little bit earlier. That's why we put in the logbooks. Because once we made the first mistake last year and raked the beach, we decided that a logbook would satisfy both parties. We put the logbook down there, so we're perfectly happy to wait until we get permission to rake the beach and clean the beach. But we did mess up twice last year, and I'll be the first one to admit it, both human error. I think we've got enough -- since that time I think we've got a greater awareness with all employees that work the beach because of what Matt was kind enough to put together for me to sensitize, if you will, all new employees, and all we want to do is rake and clean the beach after it has been checked. So when Matt made some -- at my request -- he said, "Look, if the beach has already been checked" -- and raking it, by the way, is the same ATV, the one that we own -- it goes back and forth numerous times to rake it and so forth. If it's been checked and if there are no turtle nests, respecting anything that's already there, of course, by diverting that, and we allow the raking which has always been the case in the 16 years the hotel has been open, why couldn't we 30 minutes later, hypothetically, deliver something to the beach in that same raked area that that same vehicle just went back and forth 50 times? It's not okay to do Page 38 May 2, 2001 that. So I asked Matt, I said, "If it's at all possible" -- I mean, let's allow common sense to prevail that we've already recognized that there are no nests there. We've already had it checked. We've already raked the beach. We've already been on the beach with the ATV. Why couldn't the ATV come back later in a minimal use of -- later to deliver more product to the beach?" That was one of the issues in these changes that you were concerned about. MR. SOLING: Well, I thank you for a very rational and honest proposal. You make everything understandable. I have no objection when it comes to voting to make it 10 p.m. That's minimal. And I did, upon reading these things, accept the fact that once the beach is patrolled, ATVs could be operated on there. There's no sense restricting it after the fact that everything is okay. I just -- when we get to it -- object to some of the deletions that's been proposed. CHAIRMAN SANSBURY: That's fine. MR. SOLING: But I compliment you on your presentation. MR. STAROS: And I -- quite frankly, sir, I could go with those penalties because they're not going to happen. That's how I look at it. And I want to clarify one other thing. The Registry is part of this as well. Ron Albright could not be here this morning, but Ron has also sat in on our meetings, just as fellow hoteliers, figuring that we're the two big guys on the beach, etc. There was some question if this was the Ritz only, and no, it's not. It's the Registry as well as the Ritz. I happened to have already retained the firm, and you know, rather than -- so Ron just sat in as a courtesy to help us with this. I think that covered everything. CHAIRMAN SANSBURY: Mr. Carlson has a question for you. MR. CARLSON: You brought something up that I need Page 39 May 2, 2001 clarification on. MR. STAROS: Sure. MR. CARLSON: I think it's for staff. Because I thought that after the beach was checked and the raking had occurred that these corridors would go into effect and the beach -- the ATV couldn't go down the beach. Why am I -- MR. STAROS: Well, presently it's once in the morning and once at night. I'm saying that if it's okay to take once in the morning to deliver towels and once at night to take the dirty towels back to the laundry, why wouldn't it be okay, say, at noon to bring down some more product and bring it back if we've already been through this and we've already played by the rules. And I'm going to play by the rules; I really am. You know, I'd like to be considered innocent until proven guilty rather than the other way around. And, by the way, we happen to have an aerial photo of our property line showing that 100 percent of the parties that we're talking about are on our property. MS. LYNNE: I've got a question. CHAIRMAN SANSBURY: Yes, ma'am. MS. LYNNE: The Ritz, you're saying, has only one ATV vehicle right now. MR. STAROS: Yes. MS. LYNNE: Is there anything in these amendments that's going to limit that to one ATV? MS. BURGESON: No, there isn't. MS. LYNNE: So they could get two or five or ten or a hundred? MR. STAROS: I'd be happy for you to write that in. MS. LYNNE: No. I'm just asking-- MR. STAROS: I just want to say that. MS. LYNNE: Okay. MR. STAROS: I'd be happy for you to write that in. All I want Page 40 May 2, 2001 is one vehicle to help me out. That's all. MS. LYNNE: Okay. I just also have to say that I don't agree with the argument that just because you can't prove that it's dangerous in this particular situation means that it still shouldn't be allowed. I'm not sure I said that right. The point is that protecting of federally endangered species is extremely important. Any time that we're looking at safety issues, whether it's human life or people life or property life, we put into place regulations that do more than protect the bare necessities. And what I hear you coming to me with is exceptions that, you know, if you look at them, yeah, if you absolutely follow them, blah, blah, blah, blah, it would work. And if I might return to the old analogy of an airplane, you know, you can take out one rivet and that airplane is still probably going to fly. But that doesn't mean that we allow -- the FAA allows people to take rivets out of airplanes before they fly. So my point is that sea turtles deserve not just the minimal protection, but also the maximal protection and that human error still destroys nests. Even if you do your best, human error is going to occur. We've been told that as many as 150 eggs can be destroyed at a time or in one instance. MR. STAROS: I understand that but, you know~ as a resident -- all of us go to the beach. We have the ability to accidentally do things too. I'm just saying -- I agree with you wholeheartedly. I'm a turtle hugger, okay? So I just want you to know that I'd like this all to work out. But what I'm saying is, when we say things like we would like to delete the 60 days of not raking the beach because we did make an error, well, what are we saying there? We're also saying that we're not going to clean the beach for 60 days. We're going to have plastic straw and plastic cups and garbage up on the beach, the same beach that the sea turtles are Page 41 May 2, 2001 now going to have to heave-ho over the plastic instead of us cleaning it. So I think that there is a little give and take here. We don't want to make a mistake, and I truly mean that. But to say that you covered up a potential track -- by the way, I'll be the first one to sign up on having our logo on the tire tracks. I'll be the first one to do that. I don't care because I know it's not us in some of these incidents. We have actually called Alex to say, Hey, there's tracks down here" in the morning and so forth. So if you want to put Iogos on the tire treads and so forth, have at it, because I would be more than happy to walk my talk. MS. LYNNE: Can't you pick up the -- CHAIRMAN SANSBURY: Okay. MS. LYNNE: -- junk on the beach by hand? MR. STAROS: Yes, but you don't see it because it's all muddled. You don't see the straws. When you rake it with -- and that's another issue that I'd like to discuss. I think that there should be some regulations on how a beach is raked, quite frankly, because you could plow a beach and call it a rake, or you can do what we do. We pull, like, a chain-link fence that smooths out the beach, and it kicks up all the straw and plastic cups and so forth. Then you go around and you pick it up. There are days that we pick up a 55-gallon plastic bag full of junk. So if you don't rake the beach, yes, we'll be able to pick a lot of that up, but not all of it. It's really a cleaning service to make our beaches better. CHAIRMAN SANSBURY: Okay, sir. Yes, sir. MR. COE: I've got one question. CHAIRMAN SANSBURY: Okay. One question. Go ahead. MR. COE: I've got one more question, sir. I think you see what our intent was in the penalties. MR. STAROS: Yes. Page 42 May 2, 2001 MR. COE: We want to make it stiff enough -- MR. STAROS'. I agree. MR. COE: -- to make sure that it doesn't keep occurring. What's your suggestion as to the level of penalty that will make it hurt enough for you-all to understand and whoever else is a violator -- because this isn't just against the Ritz. MR. STAROS: I understand, yes. MR. COE: What level of penalty is sufficient to hurt somebody bad enough to make them understand we don't want the second and third and the fourth attempt? MR. STAROS: If you, sir, had to write a check for $5,000 I think that's a pretty heavy penalty. MR. COE: My income last year was a hundred thousand dollars. What was your income in the hotel? MR. STAROS: Well, after net, net, net, and paying the mortgage -- MR. COE: I'm talking about the hotel now, the hotel itself. MR. STAROS: Okay. MR. COE: That was my gross. What was the hotel's gross? MR. STAROS: The hotel's gross -- MR. COE: Let's put this kind of in the proper context. I was kind of prepared for that. MR. STAROS: I would be happy to discuss all of our figures with you, and I honestly will, but you have to understand what the net is too. The net is extremely small. The gross is extremely high. You know, my payroll alone is $22 million. MR. COE: I'm asking you, sir, what level of penalty is sufficient to make sure that whoever is the person that goes against this ordinance won't do it again and that they understand. Because in my case I can write a check for $500 if I violate an ordinance -- MR. STAROS: I think these are -- Page 43 May 2, 2001 MR. COE: -- and that hurts me. I mean, that hurts. MR. STAROS: This would hurt me, too, the $500, $1,000, and $5000 to answer your question. I think that is a pretty strict penalty. All we're saying is why take the 60-day suspension of raking. It should say a 60-day suspension of cleaning. MR. COE: I have no other questions. CHAIRMAN SANSBURY: Okay. Thank you. Any other questions? Yes, sir. MR. GRABINSKI: I'm Matt Grabinski. I'm here on behalf of the Ritz-Carlton. I would also like to make a few comments on some of the things that were said as well as clarify a few of the reasons why we propose to delete some of the language and also withdraw a few of our requests to delete some of the language. First, just to get the property line clarified and out of the way, I promised you I would bring back a survey indicating exactly where the erosion control line is located. As you can tell from the diagram, the bold line that you see running down the beach dissecting it is where the erosion control line was set by Collier County. And pursuant to Florida Statutes, Chapter 161, when that line became fixed, title to the property above that line vested in the the upland property owner. Therefore, the area that you see that is yellow, which is an area of the beach that is approximately 60 to 75 feet in width from the erosion control line up to the dune line, would be owned and is owned by the Ritz- Carlton. As Patrick indicated there are some areas that would be owned by the county and some by the state. From the erosion control line down, it would be owned by the state. The area that you see that is pink, a portion of that would be owned by Collier County. Collier County has the parking facility and the beach access. So what you're looking at as far as for purposes Page 44 May 2, 2001 of where the beach events are taking place, from the north boardwalk of the Ritz north to the property line -- to the north property line, you're looking at approximately an area of 75 feet in width by about 300 feet in length. It's more than enough room for the Ritz to hold its beach events on its property. Again, as Ed mentioned, the violations that Alex Sulecki talked about, a significant number of those were violations concerning the existence of tire marks that the Ritz did not cause. In fact, county found out about these tire marks appearing because we told them. Because the Ritz called me up and said, "Matt, there's some tire marks out on our beach, and we didn't do it, would you please call Barbara and Alex and let them know that it's occurring, and we'll try to find out where they're coming from. There are other ATVs that are driven on the beach on a routine basis." With respect to the penalties -- and I'll talk more about them in a minute as we go through the language specifically, but I would like to reiterate as noted on staff's cover page that there are already very stiff penalties, both at the state and federal level, if sea turtles are harmed. MR. WHITE: That would be the cover page for the provisions for 3.147 MR. GRABINSKI: Yes. MR. WHITE: Thank you. That's just for the record. MR. GRABINSKI: Federal penalties can reach as high as $250,000 if sea turtles are harmed or taken. I think that would hurt the Ritz at $250,000. A member of the council mentioned the fact that perhaps the public would have an easement in front of these upland property owners. Again, I'm not in a position to give an opinion either way with respect to that issue, but I would just like to point out that even if the public had some type of an easement right, it would Page 45 May 2, 2001 not be an exclusive easement, and it wouldn't change the fact that would still be the hotel's property and they would still be conducting the beach events and operating on their property. If I could go through some of the changes that we've requested to the language on a step-by-step basis starting with the vehicle-on-the-beach regulations -- in 3.14.3.4.7, the reason why I requested that one ingress and egress corridor perpendicular be deleted and that all vehicles be operated below the mean high waterline be deleted is simply due to the fact that, as we've requested in our proposal to delete Section 3.14.3.6.1, which was discussed with members of county staff, the Ritz- Carlton would like to be able to get the ATV -- after the beach has been inspected and raked during the day, make periodic trips with its ATV in order to take fresh towels out onto the beach and to get dirty towels back to the hotel. If you look at this diagram, the southernmost boardwalk of the hotel is located at the bottom of the diagram, and the Ritz- Carlton's new service boardwalk is located at the north edge of its beach pavilion. So when towels and equipment and beach supplies are brought down to the beach through the service boardwalk, they have approximately 300 feet to travel. And the reason why we were requesting that 3.14.3.6.1 be deleted is because we discussed our concerns with staff, and we feel that it's reasonable that once the beach is raked and any turtle nests are identified and we use the ATV in a responsible manner with its proper tire pressure, that it would not be an unreasonable request to be able to make periodic trips -- and I'm not talking about 20 trips. We're talking about three or four trips during the day every couple of hours to get a clean supply of towels out on the beach and the dirty towels back rather than having to do it by hand with handcarts that are compacting the beach in the same manner as the ATV would. Page 46 May 2, 2001 I'm aware that members of the environmental community are going to object to our request to delete the mean high waterline distinction. I've been informed that -- and I'm sure they'll explain it to you more -- but it has to do with the concern over the vehicles creating ruts and tracks that hatchlings may be trapped in. Once they hatch in their nest, they try to crawl back down to the water. I think that with some proper and careful drafting that we can come up with a reasonable compromise that would address those concerns. Again, there would be -- we're asking, basically, for an established corridor that runs parallel to the shoreline up near the dune -- not within ten feet of the dune, but near the dune so that the ATV can get from the service boardwalk at the north end of the beach to the boardwalk at the south end of the beach. And if the concern is over beach ruts, it would not be difficult to rake and smooth the beach by hand at the end of the day to remove any possible ruts. With respect to the penalties, the reason why we requested that the suspension for violations -- suspension of the permit for violations that occur outside sea turtle season be deleted is for, No. 1, again, the possibility of any violations occurring outside of sea turtle season is unlikely, but this language was already approved and passed. In fact, when we met last December, beach raking wasn't even an issue. We spent a lot of time in this meeting talking about beach raking and our concerns with beach raking and how it affects sea turtles. You don't have to make a decision at all on beach raking, and it's still going to continue. It's already allowed or has been allowed under the code. MR. LORENZ: For the record, Bill Lorenz. If you don't mind, beach raking above mean high tide is not allowed during sea turtle nesting season. That's the existing prohibition in the code. Page 47 May 2, 2001 MR. GRABINSKI: Okay. I guess it hasn't been enforced in the past, and we've, I guess, examined the issue and tried to figure out why. And one of the reasons why I think that beach raking was prohibited was due to the nature and the type of beach raking that was going on. I think, like I said, the way Collier County rakes its beach is a lot different than what occurs at these hotels as far as the smoothing effect and the cleaning effect. MS. LYNNE: Excuse me. Michelle, did you have a comment? MS. ARNOLD: Did I have a comment? MS. LYNNE: Yeah. About why we do or don't. CHAIRMAN SANSBURY: Excuse me. Excuse me. Excuse me. I'm the chairman. MS. LYNNE: Sorry. CHAIRMAN SANSBURY: If you would please refer that to me. MS. LYNNE: Excuse me. CHAIRMAN SANSBURY: We refer to the pulpit to do that. Okay? Does staff have further comments? Anyone from staff have a comment on it? Okay. Ed. MR. CARLSON: Okay. Just for clarification, beach raking at this point or sea turtle nesting is not allowed even after the beach has been checked in the morning for crawls? MR. LORENZ: That's correct, above the mean high tide. MS. BURGESON: Above the mean high tide. CHAIRMAN SANSBURY: Above the mean high tide. MS. BURGESON: Just as a matter of record, yesterday as we were starting to issue our first vehicle-on-the-beach permit for beach raking, I brought it to the attention of the Collier County staff that picked up that permit that we would probably be enforcing that this year. They recognized that although they Page 48 May 2, 2001 haven't done it in the past, if it's determined that the rake line is what they will be raking this year, then that is what they will adhere to. So even though we have not necessarily enforced that in the past, we are bringing that to everyone's attention this year that that is something that's a strong possibility that it will be enforced this year. MR. CARLSON: Okay. And this language does not change that. MR. LORENZ: That's correct. MS. BURGESON.' Right. It still prohibits beach raking above mean high water or the last high tide line mark. MS. ARNOLD: I just wanted to -- THE COURT REPORTER: Your name, please. MS. ARNOLD: Michelle Arnold for the record. I just wanted to point out that at the last EAC meeting this question was raised, I think, as a result of comments that were being made, and I think there was a lot of confusion as to what was permitted and what wasn't permitted, and we determined that, in fact, the raking of the beach above the mean high water during sea turtle nesting season is prohibited. It indicates that on the permit. It indicates that in the Land Development Code and those types of things. The language that's being proposed with respect to the corridors was derived partly because we make allowances for beach raking -- for the vehicles for beach raking to use a corridor -- establish a corridor for where they're going to go down and do it below mean high water. This language that's being proposed with respect to the corridors for the vehicles on the beach for furniture and special events is consistent with that beach-raking language, and that's kind of how we came to where we are today. Page 49 May 2, 2001 CHAIRMAN SANSBURY: I'm missing something on 3.14.7.1. How does 3.14.7.1 relate to -- since we're talking about the time out of sea turtle nesting season -- MS. ARNOLD: Three point what? CHAIRMAN SANSBURY: 3.14.7.1. How do you violate what we're talking about outside of -- what we're saying, then, is the violation would be -- tell me what the violation would be. I don't - - I'm missing something. MS. ARNOLD: For instance, using a vehicle with greater than 10 PSI tires. CHAIRMAN SANSBURY: Big tires and stuff like that. MS. ARNOLD: Or if that vehicle were used and damaged any of the dune while they were at the north end -- CHAIRMAN SANSBURY: Okay. MS. ARNOLD: -- or the landward edge of the beach doing their raking. CHAIRMAN SANSBURY: It's not turtle nesting related in any manner? MS. ARNOLD: Right. CHAIRMAN SANSBURY: Okay. MR. LORENZ: And those would be vehicles -- that section is specifically tied to 3.14, 5 and 6, so vehicles that were used in con]unction with beach raking or mechanical cleaning. CHAIRMAN SANSBURY: Okay. An example also would be if they didn't have a MR. LORENZ: proper permit. MS. ARNOLD: Right. CHAIRMAN SANSBURY: All righty. Let's move on. MS. LYNNE: I have a question. CHAIRMAN SANSBURY: Yes, ma'am. MS. LYNNE: Is Delnor-Wiggins Pass beach raked? anybody know? Does Page 50 May 2, 2001 MR. LORENZ: I don't know. I would have to look at my staff. MS. KRAUS: They don't rake it. CHAIRMAN SANSBURY: Identify yourself, please. MS. KRAUS: Maura Kraus, Collier County natural resources. Delnor-Wiggins Pass state recreation area does not rake the beach themselves, however, I do know that there have been times when the county beach raking has gone into their parks, but they prefer a natural beach. MS. LYNNE: Okay. Thank you. The other question I had involved the violations, alleged violations to the Ritz-Carlton, and you folks are saying there were only two. Alex. MS. SULECKI: For the record, Alex Sulecki, code enforcement department. I want to correct something on the record. Maura said there were 13 violations. I didn't explain my paper well enough to her. There were actually eight violations that I handled in the last two years. Three of them were for vehicles on the beach which concerned vehicles or tracks that were seen early in the morning by natural resources staff. After an investigation we determined that these vehicles were being used late at night. All the tracks headed up the boardwalk onto the Ritz property. I did speak with the Ritz staff about this. They stated they were doing an in-house investigation to determine where this vehicle was coming from because they denied it was there's, but the actual reports of this were turned in by natural resources staff. CHAIRMAN SANSBURY: Thank you. Yes, sir. MR. SOLING: Before we go further, our witness objected to page 2, 3.4.7, saying there should be more than one vertical access to the beach. And I don't understand that comment because my knowledge of most hotels is they only have one point of entry to the beach because of where the vehicle is kept. Page 51 May 2, 2001 So why is there any objection to having -- restricting it to one and, in essence, asking for more than one access? MR. GRABINSKI: What we're asking for is not more than one access. The access will always be through the service boardwalk. What we're asking for is language that would allow the Ritz during the day to make several periodic trips from its service boardwalk to the north down to its boardwalk that services their pool and where most of their guests go between the beach and the pool to get towels and beach supplies down there and to remove dirty towels. Right now the language provides that all operation of vehicles has to be below the mean high waterline, so that would prevent the Ritz from in any way being able to do that. And with respect to -- if I could just comment on the beach raking and beach cleaning, because I'm looking at 3.14.5.1, and I don't see where this proposed language here prohibits beach raking above the mean high waterline. And, again, there is an issue that we've been discussing and picking around in meetings, and we're trying to -- we want to basically ask why not. If the beach is inspected every morning and cleared, and we're dragging a screen across it with an ATV that doesn't compact sand anymore than a human, why can't the beach be raked? MR. LORENZ: Bill Lorenz. Let me answer that. First, it's 3.14.6.1 where it says, "All beach raking and mechanical beach cleaning during sea turtle nesting season shall be confined to the area of the beach below mean high water or previous high tide mark." That's the current -- that's basically the current language in the code. We've talked about not being -- and it must not be done prior to the turtle monitors coming out in the morning. That's the additional language. So it still does not allow raking above the high tide line during nesting season. The reason is we're sitting here and we're saying that we're Page 52 May 2, 2001 capturing 100 percent of all the nests when we do the monitoring. That's not true. We don't know that we're capturing 100 percent. We may be missing some. The rationale for not having raking throughout the whole nesting season is because we are not completely infallible in our ability to understand where all the nests are. So we're talking about risk management here. The nesting season, you didn't have raking during the nesting season to try to reduce that risk as much as possible to zero. That's the current status quo. When we add an ingress/egress corridor during nesting season, quite frankly, we're increasing the risk a little bit more than the status quo. Staff is saying that we will tolerate that increased risk with the other restrictions that we're placing in the code. MR. GRABINSKI: But as was discussed at the prior EAC meeting, we haven't heard an explanation, a sound scientific explanation of how that risk is increased. If a nest is undetected, whether it's in front of the Ritz-Carlton or down at the Vanderbilt Beach public access -- if a nest is undetected and the tracks get covered up either by rain, water, or human activity -- it's undetected until it hatches -- what is the difference between a human walking over it and placing 10, 11, 12, 13 PSI or maybe 20 PSI if someone's running down the beach and an ATV driving over it impacting it 9 or 10 PSI? MR. LORENZ: It's because the human is going to -- it's very unlikely -- the probability that a human is going to walk on that nest each and every day during the whole incubation period is not there, but when you rake it each and every day, you've just increased that amount of time over top that nest because we don't know where that nest is. CHAIRMAN SANSBURY: I think at this time -- I mean, we're starting a debate of philosophy about to rake or not to rake or Page 53 May 2, 2001 when to rake. I think if we're going to get anywhere with what we're doing we need to look at starting at 4.7 -- and I think you've explained that -- as to why you feel that the proposed -- why you believe that your item should be deleted, and I think we need to walk through this in order and stay on the subject here and try to solve what we're doing here otherwise we're going to be going around in circles all day long. Do we -- do I hear any objection to that from the council? MR. GRABINSKI: Okay. If we could move past that then and go to 3.14.8.1 -- MS. SANTORO: Before we go through that -- CHAIRMAN SANSBURY: Yeah. MS. SANTORO: I wanted to ask the staff or the monitoring people a couple questions when it's appropriate. CHAIRMAN SANSBURY: Go ahead. Go right ahead. MS. SANTOR: Okay. I have some concerns. I'm wondering whether we should add nine o'clock in the morning prior to any vehicles being on the beach or if you feel comfortable enough that all hotel beach activity entities have checked in with you to make sure the nests are located if you come at 7. I'm a little concerned about that. My second question is, sea turtle nesting season is May 1st to October 31st. Does that mean that all nests have hatched or might we still have nests that have not hatched? And if so, I'm thinking that we should change the penalties -- amend the penalties from the 60 days to 70 days, whichever is greater, to consider the hatchlings. Are you following my question, or have I lost you? MS. KRAUS: You kind of lost me a little bit. MS. SANTORO: My first question was -- CHAIRMAN SANSBURY: Identify yourself. MS. KRAUS: Maura Kraus, Collier County natural resource Page 54 May 2, 2001 department. MS. SANTORO: My first question was, you're monitoring in the morning. I'm very concerned that if we accept this that we make sure that all entities are assured that it's monitored and marked prior to using any vehicles or beach activities during the turtle nesting season. Would it be advantageous to amend this to put a time frame saying "also not prior to 9 a.m." to make sure that the monitoring people in all the areas have been completed? I'm concerned about this. MS. KRAUS: Yeah, but I'm a little concerned about putting a time in there. What if somebody's car breaks down and they don't make it to the beach until a quarter to nine, you know, or something like that? The Ritz is the only ones that we have a sign for currently right now. All the other hotels have not had a problem with waiting until -- MS. SANTORO: So you've notified each hotel and they know that you're there at the time that you're there? MS. KRAUS: Yes. We've worked with the Registry, and they don't even set anything up until after nine o'clock or way after nine. MS. SANTORO: So it's not a problem. Okay. MS. KRAUS: Yeah. It's not a problem with any of them. MS. SANTORO: My second question was, in the penalties we're saying that if a violation occurs, they're either not to do it for the balance of the turtle nesting season or 60 days, whichever is greater. The turtle nesting season is May 1st to October 31 st. So, technically, if we say the end of turtle nesting season ends October 31st, they can then start their activity again. My concern is, are all the nests hatched or should we make the change from 60 days to 70 so if there is still a nest at the end of October 31st and people have been Page 55 May 2, 2001 prevented from activity by the penalty, then 70 days then would allow that last nest to hatch. That's my only other question. MS. KRAUS: Typically most of our nests are hatched and off the beach by the second and third week of October. I've never seen it go beyond October 31st. Turtles stop nesting -- I believe the latest one I can remember was, like, September 8th, so that's pretty early on. MS. SANTORO: Thank you. MS. KRAUS: Seventy days not being able to use the vehicle on the beach came from it takes 60 days for a nest to hatch. If it's been inundated by water or something, up to 70 days, and 70 days is not uncommon for a nest to hatch. MR. LORENZ: Bill Lorenz. Let me add to that. That was part of the presentation earlier, and this is where it comes together. That 70 days, as I said earlier, is not punitive. What that means is if somebody rakes the beach and we cannot tell where there is a nest, then what we're saying is, if a nest has been laid there, it's going to take 70 days for it to hatch. We do not want to have any activity in that area because we cannot now determine with a high enough degree of certainty that a nest does not exist there. So it's not so much a punitive penalty as much as it is trying to protect a nest that gets laid there that we weren't aware of. We do not want to have raking occur on that nest day in and day out, which is a much more -- a higher set of activity than simply somebody walking along the beach and possibly going over the nest. That's the difference. MS. KRAUS: Did I answer your question? MS. SANTORO: Thank you. CHAIRMAN SANSBURY: Okay. Now we're going to 3.14.3.6.1, and that's the use of one time a day. I think you've made your point on that. Does everyone understand what the Page 56 May 2, 2001 hotel's position is on that? That's why they would like to see that deleted. That gets us to 3.14.3.6.7. MR. GRABINSKI: Again, that contains the language that -- we've already discussed that issue regarding our concerns with overseeing any operation above the mean high waterline. This language is in the code three times; one to address the use during beach events, one to address the use of vehicles in beach concession areas, and one to address the use for day-to-day hotel operators. CHAIRMAN SANSBURY: Okay. Then 3.14.3.7, the proposed to be deleted is after the whole paragraph. Are we proposing to delete the whole paragraph there? MR. GRABINSKI: We propose to delete the tire-tread identification simply because -- CHAIRMAN SANSBURY: I thought you said it wasn't a big deal a couple of minutes ago. MR. GRABINSKI: Well, I guess in an ideal world it's not a big deal, but in a practical world it's impossible to enforce. Because unless you want to ask the hotels to rake their tracks, when you get there in the morning and you see a tire track with the Ritz- Carlton's emblem on it or their initials on it, how do you know whether the tire track was created that morning by using an ATV before the patrol monitor got there or if it was from setting up or breaking down a beach event that occurred the prior evening? CHAIRMAN SANSBURY: Well, I'm confused because I heard a few minutes ago that that wasn't going to be a big deal to you guys, and now you're telling me it is. No? MR. GRABINSKI: I apologize. I just think that it was -- MR. STAROS: I'm confused. MR. GRABINSKI: The tire-tread identification -- it was suggested by one of the operators of the beach concession Page 57 May 2, 200t stands as a way to resolve where these phantom tracks are coming from. CHAIRMAN SANSBURY: Okay. MR. GRABINSKI: So if the Ritz sees tracks that it belives are not theirs, they can say, "Look, we have these tracks, and they don't have an RC identification mark on them, so you can't cite us and you can't hold us in violation." And it's a really good idea. I just think that it's going to be very difficult to use this effectively. If the Ritz has their ATV marked, and they have a beach event in the evening, they can -- they'll legally be able to get the ATV out on the beach to drop off supplies and to break down at the end of the event. And once they're done there will be tracks out on the beach with their tire mark on it. They could wait the next morning and never take an ATV out there again that evening or the next morning until the turtle monitors come. The turtle monitors come and see tracks that were created the night before. CHAIRMAN SANSBURY: We understand. Mr. Carlson has something. MR. CARLSON: But if we adopt the conditions suggested by the county and the tracks are all below the mean high water and in these corridors established, then your tracks are just on those areas, and your tracks are fine no matter when they were put down. MR. GRABINSKI: If that can be understood, yes. MR. COE: That's the way I understand it. MR. GRABINSKI: Okay. CHAIRMAN SANSBURY: I mean, am I incorrect in hearing that when I heard from your GM he said you didn't have a problem with that, and you're telling us we do have a problem with it? Page 58 May 2, 2001 MR. GRABINSKI: Well -- MR. STAROS: Ed Staros, again, for the record. I was speaking about the raking portion of it and the tire tracks. He does have a point. I was not on that subject. If we use the vehicle to deliver a product, a food or beverage product, to the beach for a beach party, obviously it would still have that same logo on the tire. You know, that's a point that I didn't cover earlier. MS. BURGESON: What the markings of the tires allow staff to do is identify areas where that vehicle has been used that are prohibited areas. CHAIRMAN SANSBURY: Okay. What I'm saying here is, do you continue with your proposal to delete the marking? MR. GRABINSKI: No. We withdraw that request. CHAIRMAN SANSBURY: Thank you. Okay. Next. MR. GRABINSKI: 3.14.7. The problem we have with the violations occurring, again, outside of sea turtle nesting season is that this council as well as the BCC and the CCPC all passed this language last December without these increased penalties and temporary suspensions of the permit. We question why county feels now that it needs to be inserted particularly when we're here to discuss possible effects and possible potential harm to sea turtles. We're creating fines and language pertaining to violations that occur outside sea turtle season. The reason why we object to the suspension of the beach raking or beach cleaning permit even temporarily, even outside of sea turtle season, is that the violations could be any violations. I mean, outside of sea turtle nesting season, if you have a permit to rake your beach, there aren't too many bad things you can do other than, say, rake too high if that issue can't be resolved or drive over sea oats. But there are all sorts of conditions regarding vehicles on the Page 59 May 2, 2001 beach that can result in technical violations that aren't really addressing any specific harm. It's technically a violation if you don't have the permit with the vehicle at all times. That's why we had discussed -- I had discussed with members of county staff defining major violations and minor violations and having the increased stiff penalties when a major violation occurred. We asked ourselves, what is a major violation? Well, during sea turtle season, a major violation would be raking the beach or driving the vehicle on the beach before the sea turtle monitors came. If that happens -- again, last year that happened twice at the Ritz. Both times it was from human error. We developed a process and we're still revising and perfecting it, and the Ritz took measures to insure that that type of mistake wouldn't happen again, and it didn't. So, as Ed said, I think we're confident that we can, you know, avoid raking the beach before the sea turtle monitors come. But if we're talking about language that would cause the hotel to lose its right to rake its beach for two months on a mere technicality, we just think that completely unreasonable. Particularly -- the reference to 3.14.6 -- 3.14.6 deals with operations of vehicles on the beach during sea turtle nesting season, so that could not be violated outside of sea turtle season. So even for that reason alone that reference should be deleted. But that's why we object to the suspension of the vehicles during sea turtle nesting season as well as outside of sea turtle nesting season, because we don't -- we don't -- we don't -- sort of define and try to pin down the harm for these major violations, and we think it's unreasonable to suspend a permit on a technicality. It would be possible to do so. That is also why -- it was not noted in here, but we would request in 3.14.8.1 and .2 that the suspension language be deleted. Page 60 May 2, 2001 Again, that's dealing with the use of ATVs for beach events, for concessions, after the raking has occurred. The real harm that everyone has been focusing on, and rightfully so, is raking is not raking until the beach has been monitored. We think that once that has been addressed that the potential for harm for, say, using an ATV or some type of vehicle -- again, we're also focusing solely on ATVs here. Under the county code, anything with wheels on it is a vehicle. I mean, I think it's unreasonable to cite the Ritz and charge them 5,000 bucks because at the end of a day after the beach had been monitored and raked and an ATV had been used, a new employee brought a dolly out onto the beach that the Ritz forget to get a vehicle-on-the-beach permit for, which Collier County would want to require them to do. That's why we object to this language. MS. BURGESON.' I need to add some -- CHAIRMAN SANSBURY: I think, though, sometimes -- we do have some reasonable people in code enforcement that I don't think are going to look at it that way, but let me ask one question first. Does staff have a problem with the definition of "ma]or/minor" here? Is there -- MR. LORENZ: The code enforcement staff and the county attorney's office kind of work on the violations. Michelle will come up with that. MS. ARNOLD: For the record, Michelle Arnold. I don't particularly have a problem with clarifying what's ma]or and what's minor and working with the county attorney's office to formalize that a little bit more clearly because, as you said, we try to be reasonable in our enforcement, and if we can clarify things so that there's no confusion, it's all the better for us when we're going out and enforcing it. With respect to how we do enforcement, if somebody doesn't Page 61 May 2, 2001 have their permit on their person or a vehicle on the beach, we usually go and check to see whether or not one was issued before we consider it a violation. So, you know, although it's technical that they need to have it on the vehicle and they don't, we'll insure that a permit was actually issued for that particular vehicle before we cite somebody for it. CHAIRMAN SANSBURY: Thanks. MR. WHITE: Mr. Chairman, the notion of characterizing penalties as minor and major to some degree already exists in the proposed structure given the fact that the existing penalties for any code violations that are set forth in the LDC and Section 1.9, if you will, constitutes minor violations. These are, if you will, enhanced penalties that perhaps could be characterized as major violations and penalties, but certainly no objection at all to refining the definitions of those and which should be classified as what. CHAIRMAN SANSBURY: Barbara. MS. BURGESON: There were a couple of things that were discussed. I need to state that in the past two weeks we've made revisions to these three ordinances probably eight times. So even reading through it this morning and discussions late yesterday after these were amended it was brought to my attention that I should have made this disclosure during the presentation that staff has a concern regarding the beach-raking violation during sea turtle nesting season. During discussions we used to have language in there that said the first violation would automatically be a suspension for the number of days that the nest would take to possibly hatch, and discussions with the natural resources department and code enforcement staff has indicated a desire to put that language back in the ordinance. So the first violation would be a $500 fine and the suspension of the beach raking for that time period that it would take for Page 62 May 2, 2001 that nest to hatch. CHAIRMAN SANSBURY: MR. COE: I'm confused. CHAIRMAN SANSBURY: So that 70-day period would be in there. Bill Lorenz. Yeah. I'm confused too. Go ahead. MR. COE: Stop right here. I've spent two hours, and I'm still confused here. During the nesting season, May to the end of October, no beach raking is permitted; correct? MR. LORENZ: On mean high tide. CHAIRMAN SANSBURY: On mean high tide. MR. COE.' Okay. So, therefore, the area that they're currently raking that we're not enforcing is really -- they can't do it anymore. Why are we even talking about it? Why are we suspending beach raking for 60 or 70 days when they can't do it anyhow? MR. LORENZ: This was a clarification I'm going to make. We are -- what we need to suspend is any activity within that beach area, and we would allow an -- we would be moving an ingress/egress corridor. Remember the premise of what we're working under. We will know where the nests are such that we can -- our monitoring staff will provide an ingress/egress corridor for the use of the ATV through that area. If they rake the beach and we don't know now where the nests are, all of our permitting activities from there on are -- we will jeopardize that unknown nest. So for me it's not a penalty. We need to rewrite this to indicate that activities that we would currently allow within that area are no longer going to be allowed because we don't know whether there's a nest or not because the beach was raked prior to our monitoring. MS. BURGESON: Also, I wanted to address the concerns that Matt had brought up regarding once the beach raking is completed or the monitoring is completed in the morning, why would staff be concerned if, for instance, they took a vehicle out Page 63 May 2, 2001 on the beach in the later afternoon or evening. One of our greatests concerns is that -- they have events that are scheduled in the evening, and they need to break these down. If this is approved, they can use a vehicle to break those down. Sea turtles nest at sunset, and the hatchlings will start to hatch at sunset. So we need to be very careful that we minimize the vehiclar use on the beach in the evenings. So that's why we wanted to make sure that we're limiting the use of vehicles. And it's not just a concern the first thing in the morning. It's also a concern in the evening. MR. STAROS: I'd like to address that for a second. Ed Staros, again, if you don't mind, Chairman. All I want is a roundabout. All I want is to be able to come down my boardwalk and make a U-turn and be legal in doing that. I don't want to be driving product all up and down the beach. I'm going to hand carry my product from there all the way to where it's going to be set up. So all I want is that little permission for a -- right here (indicating) is my new boardwalk. All I want is a little turnabout. That's all. MR. SOLING: Mr. Chairman. CHAIRMAN SANSBURY: Yes, sir. MR. SOLING: I'm cognizant of that concept. I don't know whether this would be a problem, but why can't the Ritz put down a mat for the turnaround, and with a mat permanently in place no sea turtle is ever going to nest there, and you have a permanent turnaround area for your vehicle. That to me makes 100 percent sense. MR. STAROS: I'd be happy with that if it's okay with everybody else that environmentally it doesn't screw anything up. CHAIRMAN SANSBURY: Do you want to comment on that? I think I know what the answer is going to be. Page 64 May 2, 2001 MR. LORENZ: Bill Lorenz. The answer is, our egress/ingress corridor allows for that now. I mean, the way it's written allows for that. Now, we may have to move that if a nest were to be placed in that corridor, and that's the whole point of the regulation. We will then move the corridor to accommodate your ability to do that to the degree that the nests are -- you know, I mean, we are subject to where the nests are being laid. But the rules that staff is proposing would allow that. CHAIRMAN SANSBURY: Mr. Carlson has a comment here. MR. CARLSON: Just so I understand further, the rule is you can go down the beach below the mean high waterline and then back in at designated corridors so you can get your material all the way down the beach and all the way down to the other end of your property. MS. BURGESON: Is the Ritz -- MR. CARLSON: Then we would need -- THE COURT REPORTER: Wait, wait, wait. MR. CARLSON: But we would need two corridors. CHAIRMAN SANSBURY: Oh, wait. One at a time. Hold it. MR. CARLSON: But they're saying, if I understand this, that there could be additional or more than one corridor back up to the beach? Hello? If the vehicle has an access point to below the mean high waterline, goes down the beach, and they've got 300 feet, then are there other access corridors back to the beach that can be designated? MR. LORENZ: We are only recommending the one corridor. MS. BURGESON: They would need to bring their equipment down to the trailer or the ATV to stack that to bring it back out off the beach. MR. CARLSON: Okay. MS. ARNOLD: For the record -- MS. BURGESON: But what I understand -- I'm sorry. Page 65 May 2, 2001 MR. CARLSON: I'm getting there. It's slow -- MS. BURGESON: It sounds like -- MR. CARLSON: -- but I'm getting there. THE COURT REPORTER: Wait, wait, wait. CHAIRMAN SANSBURY: Wait. One at a time. MS. BURGESON: I just wanted to find out if the hotel is suggesting that they're interested in less than what the language is proposing, that they just need the turnaround, and they'll be removing -- MS. ARNOLD: Can I try to clarify it? CHAIRMAN SANSBURY: All right. THE COURT REPORTER: Your name. MS. ARNOLD: Michelle Arnold. I believe what they want is an additional corridor for their towels. Right now the proposed language, staff's proposed language, allows for a corridor for the vehicle to drop off equipment and those types of things, and it doesn't limit the number of times that they do that. But we do limit the number of times that they can use the vehicle to drop off their towels. We only allow it once in the day and once in the evening. They want to be able to establish a corridor for that towel operation and not limit the amount of times that they're using it for the day. So we would then approve two corridors; one for the vehicles for the event and another one for the towels. That's what they're trying to address. MR. STAROS: Ed Staros one more time. There's a little confusion here that I think I can clear up. The service boardwalk is right here (indicating). The towel distribution point is right here (indicating). There's about 300 feet between the service boardwalk and where the towels are. You might say, "Well, why don't you move the towels up here, and then everybody is happy?" The reason being is 90 percent of Page 66 May 2, 2001 our customers come this way because this is where the pool is. They go from pool to beach, beach to pool. So this is the logical location for the towels some 300 feet away from the service boardwalk. So there are two issues here. One, on beach parties all I want is just a roundabout because I'm not going to ride up and down the beach on my ATV. I just want to get the product to the beach. However, to operate the hotel efficiently, I am now allowed to go down this corridor once a day to deliver towels and back once a day to take the dirty towels. All we've asked for is to have a little bit more leniency to do it more than once a day. That's all. CHAIRMAN SANSBURY: Okay. Yes, sir. MR. SOLING: I don't want to be confrontational, Mr. Staros, but if my memory is correct, that towel bin is up the steps and on your boardwalk at the pool. At the other end of that little walk about within 25 feet or 50 feet, there is another towel bin with a roof over it, and there's a woman or a man sitting there. So I would assume that most of the towels don't come down the beach but come across your pool deck to service both towel bins. MR. STAROS: This particular boardwalk down here (indicating) by the pool -- as many of you have probably walked it, it has many -- it has four steps up, four steps down, and so forth so it can't be used with a vehicle to roll things to and from. There is a towel bin right here (indicating) on the pool deck -- you are quite correct -- which normally services the pool, and we have a towel bin on the beach that services the beach. It is not unusual on a busy day for the Ritz-Carlton to go through two to three thousand towels on the beach in addition to the towels at the booth. MR. SOLING: In the summer? Page 67 May 2, 2001 MR. STAROS: In the summer. It's not unusual. That's 3,000 towels, clean towels; 3,000 dirty towels on a full house. CHAIRMAN SANSBURY: Okay. We've gone through 3.14. We've heard the various paragraphs which you are objecting to or are requesting to be changed. I would like to see if there's anyone else from the public who would like to -- and I think there's someone right behind you -- who would like to address those if we could. Let's hear the objections or the comments, if we could, and go from there. MS. BURGESON: We'll need to take a break very soon. I don't know if this is a good time. CHAIRMAN SANSBURY: What's your pleasure? Do you want to take a break, or do you want to get through this one? What do you want to do? MR. COE: Let's get through this one. CHAIRMAN SANSBURY: Let's get through this one and we'll take it then, Barb. Thanks. Are you all right? THE COURT REPORTER: Yes. CHAIRMAN SANSBURY: Okay. MS. BARNETT: Eileen Barnett, environmental permitting manager, Coastal Engineering, on behalf of the Registry Resort. I appreciate this opportunity to speak. Also, on behalf of the Registry, we really appreciate the opportunity that the natural resources department and development services have given us to work back and forth with them. Chronology-wise, we saw a "final draft" yesterday, and there were a flurry of faxes, e-mails, meetings, and telephone conversations all day yesterday. I appreciate that you haven't had a chance to look at all these revisions, but as you heard from Barbara Burgeson, it wasn't by any sudden moves on the hotel industry's part. We've been working diligently and at every Page 68 May 2, 2001 opportunity we were given to work with the county on our concerns and the protection of the sea turtle at the same time allowing the hotels to operate their business. We were working with the Ritz-Carlton in con]unction with Matt Grabinski on the comments that you heard him speak about earlier. I did want to bring to light a couple of other things. The natural resources department, Bill Lorenz and Maura Kraus, I think did an excellent job of telling you about the intent of the law and what the environmental issues are. Number I is to protect nests during sea turtle nesting season. That requires no beach raking before the turtle monitor can go and monitor the nest area because it wipes out the tracks. That's easy to visualize. The other major thing is having furniture on the beach that can cause false crawls. A picture is worth a thousand words. You've seen that. One of the biggest problems with taking the intent of protection to legal language is a lot of times something gets lost in the verbage of the law, and that seems to take on a life of its own, I think, as you're all well aware. That sometimes happens. That's why I'm bringing forth a couple of clarifications in addition to the Ritz's comments. In 3.14, 3.4.7 is also reiterated in 3.14.3.5.7 and 6.7. Items 1 and 2 we agree with. The one ingress and egress corridor, we were asking for some relief on that. As Bill had mentioned, any time you might add an ingress/egress, also, if that's done before the nests are monitored or a nest is missed, that's an incremental increase, perhaps, in a possible undetection. But I believe that's negligible or maybe even impossible because the ATV tracks are similar in size to the turtle tracks. The turtle makes a U-turn. There's several feet between their ingress, and then they turn around and make an egress. If this is what it has to be, we will go along with it. I just Page 69 May 2, 200t wanted to bring out that the ingress and egress may be a little bit going too far on saying that that could wipe out an undetected turtle nest track. The discussion -- we've had a lot of discussion about the mean high waterline. What we were asking for was a consideration that -- and I hope that Maura can clarify this. She's the expert, and we would go along with whatever she says. The mean high water is a very protective line, however, it's unmanageable because it's basically a surveyed line, an imaginary line, an elevation line. A lot of times the mean high waterline is underwater. I know the intent is to have it at the line of the last high tide, which you can see is a line of wet sand. That language is in 3.13, and I'm asking at least to add that language into here and get rid of mean high water because it's a survey elevation line. The experts know what that means, but as I said before, the law sometimes take on a life of its own. What we were asking for was consideration that -- actually the turtle's way above that area, much closer to the dune vegetation line. Traveling up and down the area of wet sand would in no way impact a turtle nest. Traveling back and forth across the beach close to the vegetation line -- now you're talking about a very big chance that an undetected nest will get run over. So I'm asking for consideration at least to talk about the wet sand or line of last high tide, but also to please consider using another line or another demarcation to allow the hotels to clean the beach in a nonimpactive manner during sea turtle nesting season beyond the mean high waterline. We reiterate very strongly the concern about the penalties. In 3.14.7, 3.14.8, I think because of the flurry of work that has occurred back and forth, they were duplicated. It's just a Page 70 May 2, 2001 bookkeeping issue. But 3.14.7.1 has violations of suspension of activity outside of sea turtle nesting season, and I'm asking to please consider to delete those. They have nothing to do with the protection of sea turtle nesting activities. It's outside of nesting season. The violations that they can violate are basically -- they can be taken care of in other areas of the law. Again, the suspension of activities during sea turtle nesting season, the beach-raking activities or beach ingress and egress, if it is going to be at the very lower end of the beach, there's no sea turtle nest there. So we have -- we're juggling a couple of issues. I would like to answer any of your questions or have Maura Krause come back up to the podium to clarify it. Our main concern is really whatever the reasonable way to protect sea turtle nests are, the Registry is completely and 100 percent behind that, but they are asking for consideration of these certain issues I brought up so that they can continue to operate. Thank you. MS. BURGESON: Regarding the first language -- CHAIRMAN SANSBURY: I -- MS. BURGESON: I'm sorry. CHAIRMAN SANSBURY: Excuse me. MS. BURGESON: I can clarify one of those rather quickly. We do already use language that refers to mean high water or the line of the previous high tide, so that language is completely acceptable to staff, and we have been using that -- MS. BARNETT: Thank you. MS. BURGESON: -- and we can incorporate that into the code. CHAIRMAN SANSBURY: Yes, sir. MR. SOLING: Just a point of information, the Registry is using a county beach, aren't they? MS. BARNETT: Yes. Page 71 May 2, 2001 MR. SOLING: And do you rake the county beach? There is one access that the county uses for the public along the boardwalk. Do you have another access at the Registry to the beach other than that boardwalk? MS. BARNETT: The Registry does use the county beach. The Registry does rake the county beach. They work in conjunction with county parks and rec. They're in constant communication. I believe they have a very good relationship with county parks and rec's staff, as well as the natural resources' staff. They use the same access points that the parks and recreation division uses. MR. SOLING: So then no matter what happens, you can only have one access. MS. BARNETT: I wasn't discussing the access issue. The Registry does have different activities and different concerns, but they're overlapping concerns with the Ritz-Carlton. I didn't want to go into all that detail. Actually, the Registry has very few beach events. They do have several, but I believe it's under a dozen a year. But their main concern is the concession getting the chairs set up and taken down and getting the canoes and kayaks down to the pass and back again for the trips. CHAIRMAN SANSBURY: Okay. Why don't we do this. Why don't we take about a five-minute break and then come back and see what further discussion we want to have. Is there anyone else from the public that wants -- MR. GRABINSKI: Excuse me, Mr. Chairman. CHAIRMAN SANSBURY: -- to discuss -- excuse me. I'm sorry. Let's do this. Let's get all the public discussion out of the way first. MR. GRABINSKI: Mr. Chairman, could I make one final point CHAIRMAN SANSBURY: Go ahead. Page 72 May 2, 2001 MR. GRABINSKI: -- regarding vehicles since we're just doing the vehicles? Because Mr. Lorenz and I sort of exchanged a brief debate regarding foot traffic and the amount of foot traffic that's to be exposed versus if there was an established corridor for an ATV on an undetected nest. And I would like to point out that, again, what we're asking for, okay, is the periodic trips throughout the day to get beach towels down to the south end of the beach. Okay. We're talking about either using an ATV that compacts the sand no more than a human, maybe less than a human -- using an ATV four times a day, four trips a day, approximately, four or five, not constant all day, but four or five trips a day as opposed to forcing the hotel employees -- forcing the hotel to use handcarts like they do now that are going to compact no more but require more trips over a possible unmarked nest or, if they didn't use handcarts, regular foot traffic. Then you're talking about literally having to have a beach towel staff on site that would be using that same path. Because I guarantee to ask an employee to carry beach towels back and forth all day -- they're not going to make random trips throughout the beach so they're avoiding a particular path consistently, and so the same area of the beach is going to be used. The question is, do you want an ATV that's compacting the beach no more to go over a possible unmarked nest or to drive across the beach 4 times a day, or do you want 8 trips or 10 trips or 20 trips by pedestrian traffic that's going to cause the same compaction in the same area? CHAIRMAN SANSBURY: Okay. I think that's clear. I think what you're proposing is clear to us. Okay. Yes, ma'am. MS. LYNNE: I just would really like to have a break now. I'm having a hard time following it, and I don't think I can listen to Page 73 May 2, 2001 the next two. CHAIRMAN SANSBU RY: MS. LYNNE: Thank you. (A short break was held.) CHAIRMAN SANSBURY: back to order. Thank you. Okay. Let's take five then. Okay. Are we ready? Let's come MR. SIMONIK: Michael Simonik with the Conservancy of Southwest Florida. I'm going to make comments in the beginning, and then I'll go to specific comments in the code language. We had hoped to come here today in a group hug with the hoteliers and county staff and sing Kumbaya. CHAIRMAN SANSBURY: You and I both. MR. SIMONIK: That was our plan until 4 p.m. Last night when I received by e-mail all new language after maybe eight changes in the past two weeks and several more changes in the last two months. We applaud the Ritz for coming forward a year ago, I guess, from my understanding, and saying, "We want to do right by the sea turtle. What do we need to do with what we do now and what we've been doing for 15 years?" That's commendable to say, "Let's get language in place so that we can do it right so that there's no harm to the sea turtle." I personally have been involved in all of the meetings over the last few months representing the Conservancy discussing all of the concerns and issues as was directed from the Board of County Commissioners. From my understanding -- I was not there at the meeting and I didn't read the minutes -- but they asked county staff to get together the hoteliers and the environmental community to discuss all of these concerns to bring back language through the process, I assume, beginning with BAC. We've got three meetings today. At this point, I don't think I can verbalize the amount of frustration that I feel sitting here this morning that my boss felt, Page 74 May 2, 2001 Kathy Prosser, the new president of the Conservancy, at 5:30 last night with all of this. We thought we had our position nailed down. We thought we had that group hug, and I was ready to sing Kumbaya. We are very -- extremely disappointed to learn of a meeting that happened between, I think, just the Ritz -- but Mr. Dunnuck called a meeting, as my understanding, with either the Ritz or both hotels, the Ritz and the Registry on last Friday. I was totally unaware of that meeting. And from that meeting came language of proposed deletions to some of the very important aspects of these documents that we were in favor of. And I didn't know that until four o'clock last night. And it's a good thing I checked my e-mail because there was no call to me saying, "We just sent you all new language with ma]or deletions proposed." And by whom I didn't know until the Naples Daily News reporter told me. So we have -- we're starting off bad this morning. We were happy yesterday afternoon until four o'clock. We feel a little disenfranchised from this process now because we have been so involved all along. I've been to the EAC meetings, been at the table with the hoteliers, and the Conservancy is the only environmental group that has done that, been at the table the whole time. I'm making sure I get through my comments before I get to the actual code. Well, my biggest point right now on comments is that because of what happened Friday and because of what happened last night at 4 p.m. With new language, we are not ready to go to public hearing today. Look what you just did for two and a half hours, and I didn't even have a chance to input yet. It's been way too technical to take to a public hearing. That's why we thought we were meeting this whole time. I was on the Page 75 May 2, 2001 phone to the Ritz and the Registry Monday and yesterday finding out more and doing my best to do my due diligence to stay in touch without people contacting me to tell me of these changes. Now, I'm going to go to some of the changes -- and there's even more this morning that I'm hearing about. For the record, with these changes we strongly object to this language being passed. On the document "Vehicle on the Beach Regulations," 3.14, going straight to 3.14.3.4.7, which is the language that appears over and over again, one ingress/egress corridor. We strongly object to taking out the language that says only one ingress/egress corridor. If there is a case to be made on a case- by-case basis and argued for some kind of variance from the one to go to two, maybe. We recommend keeping it at one ingress/egress. The mean high waterline under No. 4 in that paragraph -- we've heard from Maura Kraus and in speaking with our scientist and our biologists at the Conservancy who have been working on turtles for the last 20 years -- we just celebrated our 20th year. As I said before, we have privately spent more than a million dollars protecting sea turtles in this county. Mean high waterline -- having the ATVs run up and down the beach above the mean high waterline would harm the hatchling sea turtles, and we've heard about alternatives. I don't know sitting here by myself if those alternatives of raking those ATV tracks every single day is good enough. I have to talk to the biologists. I can't do it this morning. This is why we needed to be in a workshop mode at the table so I could learn things, take it back, discuss, bring it back again; not at the last minute at four o'clock last night. I agree with some of Eileen Barnett's comments about the Page 76 May 2, 2001 definition of mean high water and the wet soil area or the line of the highest tide or the last tide or something, but our issue is opposing the deletion of being able to drive the ATV above it along the dune line. Whether it's 10 feet, 15 feet, we don't know. At 5:30 last night we didn't have a chance to discuss or look up studies of what happens when you do that. I'm turning the page to 3.14.3.6.1, the one-time set up and one-time removal of equipment each day. We did discuss that yesterday with our biologists, and we could not see a reason that that would harm the sea turtles if the ATV went down to the mean -- below the mean high waterline, traversed across, came up to pick up some towels at 11 a.m. And 3 p.m. We have no objection to that language being deleted. And I'm only speaking for the Conservancy because there may be other environmental groups who do object. Turning the page there's more of the same language on mean high water and ingress/egress. Tire-tread identification, frankly, I'm very confused at the position of the hoteliers on this one. I don't know what they want on it. I think that there may be practical problems working with that. That's some of the discussion we need to have at the table. Make it practical. So that's something that needs to be worked on, not in the middle of a public hearing. I need to go back to the scientists and say, you know, "Is that going to work?" Then 3.14.5, "Beach Raking and Mechanical Beach Cleaning." I wrote I'm very confused on 3.14.6.1. I must be because I'm still confused. Oh, that's whether or not hotels can rake above the high tide mark or mean high waterline. I need to go back and ask our biologist, "Is there harm to the turtles or the ecosystem raking above the mean high waterline during sea turtle nesting season or during the summer?" I don't know what else goes on in the summertime. Maybe there's crabs or something that breed Page 77 May 2, 2001 in that line of-- in the rock line or something. need to ask. That's why this needs to be in a workshop. do it this morning. The penalties under 3.14.7 -- CHAIRMAN SANSBURY: Excuse me. Let's go back to 3.14.6.1. MR. SIMONIK: Right. That's what I just did. I don't know. I I can't CHAIRMAN SANSBURY: Okay. That's one, but that's not something that's been asked by the hotels. That's something that's been recommended by staff; am I correct? MR. SIMONIK: No, the hotels -- I'm confused today because I think the hotels just asked this morning to have language that says they're allowed to rake above mean high water during the sea turtle nesting season. There is no language to that effect, unless I'm totally confused, in this document. That's a whole new language that was proposed this morning. MS. BURGESON: I understood that they were possibly confused, that they weren't able to do that, but I didn't specifically hear that they wanted an exception to be able to do it. CHAIRMAN SANSBURY: Nor did I. MS. BURGESON: So I think that we're keeping the language as it is. MR. SIMONIK: Well, I don't want them to answer it, but the question may be, are they already doing it? And did they do it this morning, the second day of sea turtle nesting season? If they need to do that, let's get it in language and work it out. CHAIRMAN SANSBURY: Okay. Let's stick with the copy. MR. SIMONIK: I'm not asking the question. CHAIRMAN SANSBURY: Let's stick with the copy here. MR. SIMONIK: Okay. The penalties, 3.14.7, we're talking about outside of sea turtle nesting season. I've already -- the Page 78 May 2, 2001 Conservancy has spoken previously to the Ritz about issues dealing with penalties and fines outside of the sea turtle nesting season. We care about sea turtle nesting season. I'm not going to comment on whether or not there should be language proposed, deleted, amount of fines, whatever, outside of sea turtle nesting season. That's not our mission. Our mission is to protect the sea turtles, 3.14.7.2, during sea turtle nesting season. We are not supportive of the language you see that was changed about three weeks ago from the first violation being 70 days of suspension of the beach raking or mechanical cleaning activity for the first violation. That's what we saw two months ago when we sat at the table. In the last couple of weeks, we've had new language changed here, and I think Barbara spoke to that. Staff now would like to see that changed back to 70 days for the first violation based on Bill Lorenz's comments and based on Maura Kraus's comments. We agree. We've always agreed on the 70 days on the first violation. It hasn't changed in the last couple of weeks. All right. 3.14.8, it might have been an oversight, but I think about I p.m. Yesterday I called the county and said, "Where are the penalties -- where are the penalty sections for ATVs on the beach?" 3.14.8 was not there until 4 p.m. Yesterday. There were no penalties in this language last month for ATVs on the beach. I think it was an oversight, but it might have stayed there until this morning had I not caught it. Now we have penalties, so I'm looking at the penalties. All right. We have another new addition this morning, "propose to delete," but that's outside sea turtle nesting season, so I'm not going to comment on that on 8.1. 8.2, once again, that's the 70- day first violation. Now, you see, I've confused myself. It's either a 70-day first violation, or if the language stays that there's a suspension of the vehicle beach permit, we object to it only be Page 79 May 2, 2001 a suspension of the beach permit. The Conservancy wants stronger language in the penalties to be the beach-event permit suspended, not just the ATV. I'm talking about violations of the ATV-on-the-beach permit to taking and suspending the beach- event permit on the third violation. CHAIRMAN SANSBURY: Okay. MR. SIMONIK: On coastal construction setback-- CHAIRMAN SANSBURY: Why don't we do this. We're going to -- let's get through 14. We're going to get to the other ones. Let's concentrate on 14 right now. MR. SIMONIK: Oh, that's all we've been doing all morning? CHAIRMAN SANSBURY: Yeah, unfortunately. MR. SIMONIK: Well, I disagree, but okay, Mr. Chairman. CHAIRMAN SANSBURY: Okay. Let's get back to it. We haven't heard anybody else's comments on the other ones. We ought to get through 14 first. Okay? Okay. What is the pleasure of the council? Let's take -- yes, ma'am. Okay. I'm sorry. Come on in. I'm sorry. Come right up. Come right up on 14. I apologize. I wasn't paying attention. MS. KOELSCH: No. I shouldn't have been standing over there lingering in the wings. Hi there. My name is Jessica Koelsch, and I am with the Center for Marine Conservation. I haven't appeared before you previously, so I'm just going to take :30 seconds and let you know that the Center for Marine Conservation, CMC, we're a nonprofit marine advocacy organization. We support science-based conservation of our oceans and the marine life that supports us. We're based in Washington, D.C., but we have a regional office in St. Petersburg, and that's where I drove down from this morning to speak to you today. We've been involved in the discussions with staff, the hotels, Page 80 May 2, 200'! concessionaires, and environmental groups since February on these proposed amendments. I thought that a lot of the issues had been resolved at these meetings, but based on the version of the amendments that I received yesterday afternoon and the discussion this morning, I'm sorry to say a lot of them apparently haven't been worked out. One general issue that I want to get out of the way early relates to the underlying issue of the legality of operating vehicles on the beach. The Caribbean Conservation Association based in Gainesville, they also expressed the same opinion. Earth Justice Legal Council, the Florida Fish & Wildlife Conservation Commission Bureau of Protected Species Management -- we all have questions regarding the legality. There's debate on whether this amendment violates state law Section 161.58 which prohibits beach driving except for that allowed prior to 1989. I'm just going to read just a little short bit. (As read): "After 1989 no additional beach driving can occur except that required by maintenance, emergency vehicles, and environmental work." Although beach raking admittedly causes a lot more impact to the beach than operating these ATVs, there is -- it is, in fact, legal, and there is some debate over whether an extension of the county ordinance would violate that state law. Now, we have been in touch with the state's DEP attorney to inquire as to their interpretation of the law, and these conversations are ongoing. The Earth Justice Legal Council are still discussing with them. But our understanding is that they felt that the degree of use of the ATVs on the beach would not constitute vehicular traffic, so it does, therefore, not violate state law. So it's kind of a gray area, and it's kind of something that we're continuing to explore. I'm not prepared to challenge the state law at this point, but I just want to let you know that we Page 81 May 2, 2001 are still investigating it -- well, I'll get to that in a minute. When I received the latest round of amendments last week, the Center for Marine Conservation felt that they were reasonable and provided the necessary safeguards for nesting sea turtles. We received this latest proposal last night. We didn't have the opportunity to prepare formal written comments but, you know, we are concerned about them. I wanted to commend the staff on the round of amendments that I received last week. I want to commend the staff for adding the strict penalties, establishing the ingress/egress corridor, limiting the degree of traffic, safeguarding the nests during the beach events -- which I know we're not talking about yet -- requiring the remove of gear and impediments to nesting turtles on the beach. But, in addition, we would also like to see training for the ATV operators. As we heard from the Ritz-Carlton, human error does occur. I think that if we are going to allow operation of these ATVs on the beach during nesting season there needs to be some additional training, some sort of safeguard, maybe a list of names of the approved drivers of the ATVs, and also make sure that the county does provide the necessary resources for additional enforcement and monitoring. Let's see, one of the issues that we hear a lot at these working group meetings was, "What's the harm of driving on the beach?" And I just want to mention that, briefly, one is that it sets a precedence. It potentially violates or at the very least stretches the state law against beach driving. And if you start to allow just these few concessionaires, few hotels, to operate their ATVs, what's to prevent other ATV operators, other smaller hotels to begin operating them as well, therefore increasing the level of traffic. Then maybe you'll start to push the envelope of that state ordinance again. Page 82 May 2, 2001 Also, as staff mentioned, the major harm is if beach activities such as equipment left on the beach impedes sea turtle nesting activities or hatchlings or raking, ATV driving, equipment set up, that obliterates and obscures turtle tracks and prevents the identification and protections of the nest. So I just want to touch on that. They keep asking, "What's the harm? What's the harm?" Well, that's two of the causes of harm. In this most recent version of the amendment, we found several provisions that unacceptably increase the risk to nesting turtles, and I'm going to go through those comments now. On the very first page, there was that note they proposed to delete the note about the environmental community opposing the use of vehicles on the beach, and I wasn't really sure why they wanted to have that removed. I guess there are -- different environmental organizations have different levels of comfort or discomfort with the use of vehicles, and I would just propose maybe leaving that in but amending it to say something to the effect of "the environmental community has concerns with use of vehicles on the beach during sea turtle nesting season." Strike the rest of that sentence and "voice concerns of disbelief" and maybe add something about "and seek to minimize the risk to the sea turtle population." I think that it is important to note that there are a lot of groups that have concerns with these amendments, but they need to be maybe generalized a little bit, and they also need to be cleared with the different environmental groups cited before it's inserted. Going through 3.14.3.4.7, the same thing again, deleting the ingress/egress corridor and allowing the driving. Deleting the restriction to using the vehicles behind the mean high water, I think it's fine to change that to the last high tide line; that's great. Page 83 May 2, 2001 I did have one question with the hotels wanting to delete the language. I was wondering what they do now. I don't know if I can ask that or not. But they're making it sound as though it's a hardship to not be using the ingress/egress corridors and not be driving their vehicles only below mean tide water. I mean, they're not supposed to be using any vehicles on the beach at all during sea turtle nesting season, so I don't understand why allowing some limited driving is going to be a problem if technically they're not supposed to be doing any driving now. Is there anybody that can speak to that? Can I ask them that? MR. GRABINSKI: I guess the -- Matt Grabinski for the record -- simplest answer is when there's no additional harm, why not? When there's an easier way to operate your business, when there's a more efficient way to operate your business and it's not compacting the sand and increasing a risk, why not? I would like to address the issue that you brought up with respect to Chapter 161 because you did raise it at the first meeting. Subsequent to that issue being raised, I again contacted Patrick Krechowski -- he's an attorney with the office of general counsel with the DEP in Tallahassee -- and again obtained a letter from him. If any of you would like a copy, I would be happy to give you a copy of the letter. He stated that the amendments that we were proposing have limited use, values. ATVs at commercial beachfront property sites was not prohibited and was not intended to be prohibited by Florida Statutes Chapter 161 which pertains primarily to coastal construction, and it has one section addressing the prohibition of vehicular traffic. And if you research that section of the statute in West Law, you'll find that all of the cases that have even dealt with those sections arise again out of the east coast. It was our position all along that that was addressing -- you Page 84 May 2, 2001 know, allowing access to automobiles to the beach, the Daytona Beach type of scenario -- the DEP confirmed our initial impression of that, and so we feel that is a moot point. CHAIRMAN SANBURY: Okay. Let's address this. We're not addressing today what the present operation of the Ritz is. We're addressing this particular proposal. So I would like to continue addressing this. MS. KOELSCH: Is that all right? Did you want to add -- that's fine. Okay. Well, continuing along those lines -- well, I don't know if I should mention this or not. I was making little notes through various presentations. When Matt mentioned or was talking about making a few trips a day across the beach to move the towels versus using several trips with a handcart or dolly or a person -- heaven forbid, a person walking back and forth across the beach, and I was visualizing a field with fresh snow over it, and I was trying to imagine a person taking the shortest distance across this field a couple of times and how many tracks would be made versus even one trip of a four-wheel wide-tired vehicle moving across it. I was just thinking about the surface area of sand or snow that would be impacted. I didn't think it was a good argument to make that ATVs would impact less sand than a person making several trips, but regardless -- moving onto 3.14.3.6.1, "Use of the vehicle shall be limited to one-time set up." Well, I have a couple problems with that proposed to be deleted. One is it just adds to -- if you're making multiple trips per day, it adds to the public perception that beach driving, driving of ATVs on the beach, is okay. You know, if you're making one trip a day, I don't think that the public is going to be seeing a lot of it. The more driving you get, the more precedence it's going to be setting. Page 85 May 2, 2001 Also, what's to stop them from making 20 trips a day? What's to stop them from -- instead of carrying the towels back and forth to the consession area, what's to stop them from bringing towels to individual guests sitting on the beach? It's just sets a precedence. Also, the whole idea of using the ingress/egress corridor I thought was to keep the ATVs away from areas where most of the sea turtle nests would be occurring to force them to operate down at the high tide line where there would be less chance of interacting with the turtle nests. Again, as we heard, human error occurs. I spoke with someone from another county north of here where a county natural resources staff actually operating an ATV legally on the beach ran over a marked sea turtle nest. It was human error. It was an accident. I just think the more driving you have on the beach in the vicinity of nests, marked nests even, it increases the likelihood of error. We know human error occurs. So I would request that council leave in those two sections where -- leave in the proposed to delete language. As far as the penalty section, 3.14.7, for driving outside of the nesting turtle season, again, I'm not so worried about that. I think there should be some sort of stepwise penalties, but I don't know if they need to be as strict. I'll leave that up to the other folks to hash out. As far as the violations during the sea turtle nesting season, I mean, the harm in these amendments is if -- it stems from if violations occur. And I think the weaker the penalties, then you have an increased chance for noncompliance. So I think that leniency in terms of the first violation is reasonable, but I do support having strict penalties for subsequent violations and that apply to 3.14.7 as well as 3.14.8. CHAIRMAN SANSBURY: Thank you very much. Page 86 May 2, 2001 MS. KOELSCH: Thank you. MR. GAL: I've got a question. CHAIRMAN SANBURY: Yes, sir. MR. GAL: Does your group have a position as to whether ATVs should be on the beach at all during sea turtle nesting season? MS. KOELSCH: I don't think we have an official position. I think it would be correct to say we're concerned about it. It's not so much because of the compaction factor, but it's as much just accidents occurring, running over nests, and things of that nature. Also, it just sets a precedence for driving on the beach. Again, going back to the state statute I know that -- I understand that the state attorney's office has indicated that they don't feel that this law violates the -- or this ordinance would violate the state statutes but -- CHAIRMAN SANBURY: Okay. We're not here to determine the state statutes today. Okay? MS. KOELSCH: Okay. Exactly. Anyhow -- thank you. CHAIRMAN SANBURY: Okay. It's twelve o'clock. We still have a ways to go here. What's the pleasure of council of what you want to do? I know a lot of staff is going to have to be leaving. Barb, why don't you tell us what's happening so we can determine what we need to do. MS. MURRAY: Susan Murray for the record. We have a DSAC meeting this afternoon to discuss all the LDC amendments to this as well, and then this evening at 5:05 we have CCPC as well. So everybody's going to be going through this three times today. We need to take off at one o'clock, as I mentioned to you, Mr. Chairman, and we also still have the hearing examiner information to present to you as well, which I'm sure you're going to have a lot of questions about. What I suggest is that you-all go Page 87 May 2, 2001 ahead and have your brief discussion and make a recommendation that we can forward to the board, and then we go on to the hearing examiner information. Close your public hearing. Thanks. CHAIRMAN SANSBURY: Okay. Does that sound good to everybody on the board here? On 3.14 -- MR. SOLING: I was going to offer a motion, but I didn't fully comprehend. Do you want a decision from us now, or do you want us to hold off a decision? MS. BURGESON: Now. This is the last opportunity you're going to have to forward your recommendation, so now if you could, please. CHAIRMAN SANSBURY: Okay. The suggestion is that we just take these items and look at them individually, where the proposed changes have been made, and then -- and I think-- do you have other comments on that, sir? Very quickly. Very quickly if you could, please. MR. STAROS: This will be very brief. There was just one comment, Michael, that you made on the end. I appreciated a lot of the things that you did say. On that 3.14.8.2, the absolutely very last portion of the vehicle-on-the-beach permit, if I heard you correctly, Michael, you wanted to tie in a violation of the ATV to the beach-event permit, and I don't know if I heard that correctly. But if that's what I heard, I don't think that that's related. In other words, if there is a violation of using the vehicle, what are we doing penalizing another thing that already has its own permitting process, etc.? It would be like saying take away your liquor license or take away your business license, etc. I don't know if I heard that right, Michael. I was confused by your final comment. That's all. CHAIRMAN SANSBURY: All right. MR. SIMONIK: If I can respond to that. Page 88 May 2, 2001 CHAIRMAN SANSBURY: I think we understood what your comment was. MS. MURRAY: Is the public hearing closed? Okay. THE COURT REPORTER: Your name, please. CHAIRMAN SANBURY.' For the record -- MS. MURRAY: I'm sorry. Susan Murray, again, for the record. You will be meeting on June 6th. I'm sorry I wasn't aware of that. So at that time you could have the opportunity if you would like to have further discussion or make your vote at that point, and we would still have the opportunity to bring your recommendation forward to the board which is meeting that evening at 5:05. However, consider that your recommendation would not be able to be forwarded to the CCPC because the last meeting in front of them is May 16th. CHAIRMAN SANSBURY: What's your pleasure? The two alternatives we have -- we have about three things to talk about. We have to determine real quickly whether we move forward on this or table it until the next meeting, and that is the beach issue. We have the hearing examiner's report. We have the annual report and a couple other little things that we have to face today. What is your pleasure? Yes, sir. MR. SOLING: I would like to offer a motion without going through the entire or every change that's been offered. My motion states that we are all here because we're concerned with the sea turtles. The most -- the best way to protect the sea turtle is to close the beach off completely to all occupation or use. That would be the best for sea turtles. But recognizing that impossible and recognizing that businesses have to go on, I think Mr. Ed Staros's comments were very reasonable and practical that in some way our staff -- not to the extent that's been offered Page 89 May 2, 2001 -- should work out a way to protect the sea turtles but allow business to function somewhat reasonably within that parameter. That's my motion to leave it to the staff to finalize. CHAIRMAN SANSBURY: Okay. I think at this point because we're getting ready to make a decision on this, I think I'm going to turn the chair over to Mr. Coe and kind of listen. MR. COE: Let me hold the bag, is that what you're saying? CHAIRMAN SANSBURY: You're holding the bag. MR. COE: I'm not real clear on what your motion was. Your motion was to just table it and let the staff work it out? MR. SOLING: In essence, yes, let the staff work it out, but not to the extent with all the deletions that are currently -- MR. COE: Okay. Discussion on that? MR. HILL: I disagree totally. I've been quiet all day, somewhat unusual. I've been very disappointed -- MR. WHITE: Just as a point of order, Mr. Chairman, do you have a second for the motion, because if you don't, you need not have a discussion. MR. COE: All right. Do I have a second? Okay. MR. CARLSON: I'll second it. MR. COE: Thank you. All for? MS. LYNNE: Don't we get to discuss? Now we get to discuss it. MR. COE: Okay. Discuss. MR. HILL: I'm totally against this motion to handle it in this fashion and will put a different motion on the table later after the action is taken here, and I'll reserve my comments until that time. But at this point I do not think it's proper that we put the entire decision back on staff. I think the decision has to be ours. I don't think we can do it today. And with some additional comments in a few minutes, that's all I'm going to say right now. MR. COE: Any other comments? Page 90 May 2, 2001 MR. CARLSON: My comment is that this just seems to be way too complicated for this issue here. I mean, I just can't believe the amount of discussion that's gone on. It's not like we've just discovered sea turtles on the beach in Naples, and it's not like we've never had hotels on the beach in Naples. Everybody in this room has expressed the same objective, which is to save the sea turtles. And with all the expertise of staff, I just -- I don't understand. It seems to me like a tempest in a teapot. I mean, all the horrible things that are happening in this county that we deal with which result in, you know, real environmental, you know, horrible problems and affect our future -- you know, I don't want us to lose a single sea turtle, but you know, putting in context, I just can't believe that this is this big of a problem. I just can't understand why the hotel industry and the staff and the Conservancy can't get together and work this out. You know, I'm very upset that these changes came at the last minute, and I don't feel comfortable voting on this. You know, if someone can come up with a better idea than turning this back to staff, you know, great, but I haven't heard one yet. MR. COE: Any other comments? MS. LYNNE: Am I allowed to ask the question at this point? MR. COE: Sure. MS. LYNNE: The changes that the Conservancy is objecting just were made yesterday; is that true? MR. LORENZ: As I understand it, the changes that we're talking about for the most part were -- what's proposed to be changed is what Matt Grabinski requested. Those were his changes to be made. Staff is not recommending those to be made as changes. MR. WHITE: I think what Mr. Lorenz is saying is, where you Page 91 May 2, 2001 read the words "proposed to be deleted" or words of similar effect, those were proposed to be deleted by the hoteliers, not by staff. But I do believe, also, to be clear about this that Mr. Simonik had said that there were additional changes to those provisions, the result of last Friday's meeting, that he objected to as well. MS. LYNNE: Whose decision was it to include those proposed changes, the ones proposed by the Ritz incorporated into the proposal we got today? MS. MURRAY: Susan Murray for the record again. Forgive me, I sort of seem to be hearing the same issue come up over and over again. I think it's important to understand that this was a board-directed process between all entities involved. What staff attempted to do is bring forward where staff would support changes versus where the hotel industry would support changes in one document. Perhaps that wasn't the best course of action to take, but that is what's before you now. You know, perhaps now you might want to consider if you are going to make a decision today going through the documents and highlighting those areas where you might agree with staff or disagree with staff and agree with staff or disagree with the hotel industry. That's just a suggestion. What you have before you today is a culmination of efforts to this point. If you would like to direct staff to go back and work further, it sounds like we were in agreement with some of the hotel industry stipulations that they brought forth this morning. Ultimately you will likely end up with a document where staff disagrees with some of the proposals that the hotel industry is coming forward with. So I don't think you're going to end up with an agreement, I believe, based on all the meetings we've had so far. But just to present that to you for your consideration, this is a Page 92 May 2, 2001 board-directed process, so this is why you're seeing both sides of the story here. MR. HILL: MR. COE: MR. HILL: Mr. Chairman-- Yeah. Essentially I'd like to move to table this until the June meeting with the following caveats: One, request staff to present a clean document to this counsel with their recommendations which essentially we have before us today modified with some of the industry suggestions. Two, in some manner allow the hotel industry, the Conservancy, Audubon, and any other interested party to submit to this council through staff by the 20th of May their recommendations as far as the staff recommendations. And this council -- three -- make a decision at the June meeting which, as I understand, gives us a very small window to present to the BCC -- although we will miss the Planning Commission -- and that we act on this officially at the June meeting subject to those caveats. MR. COE: Well, we've still got a motion on the table. MR. SOLING: Mr. Chairman -- MR. COE: We've still got a motion on the table down here that's been seconded. MR. SOLING: I will withdraw my motion if my second will. CARLSON: I'll withdraw it. SOLING: And I will second the motion to -- COE: All right. Withdrawn. Do I have a second on his MR. MR. MR. motion? MS. MR. SANTORO: Second. COE: I have a second over here. Any discussion? MR. WHITE: Yes, just one question, Acting Chairman. With regard to the text or opinion that would come back based upon what staff's revised proposal would be, are you asking to have Page 93 May 2, 2001 those entities who also want to comment to comment generally or with regard to specifics as to what the text of the code should be? MR. HILL: Specifics. MR. WHITE: Thank you. MR. COE: Any other discussion? MR. HILL: Is it clear what I'm asking? MR. COE: Yeah, it's clear. I've got a couple of comments that I've jotted down here. It's just my own feelings. I don't think the document was clear enough, and it was obvious because it came up several times during our discussion. The document wasn't clear enough that there was no beach raking period permitted during the turtle season from the 1st of May to the end of October. That needs to be clarified. MR. HILL: That's not germane to the motion, Mr. Chairman. MR. COE: Pardon me? MR. HILL: I don't know that's germane to the motion. MR. COE: Well, what is germane, though, is we need to give them some policy as to what our thoughts are. We've listened to three hours' worth of testimony here. They've listened to -- that's this time, not including the last couple of hours that we had before. It's gone into numerous workshop hours where the county can't get it hammered out either. Now it's come before us, and what we're doing now, it appears to me, is not making any decision at all. We could at least discuss what our recommendations are to the staff so we can send them off with an idea. They've already beat this thing until it's half dead. As a matter of fact, it is dead. This is roadkill we're looking at this far. And to not give the staff some direction, I think, is just pushing off a decision. I realize we've sat here for a long time listening to Page 94 May 2, 2001 all this testimony. I would be more apt to feel like going to a special meeting if we have to, as we've done in the past, in order to finish this thing and get it hammered out. We can do it. To bounce it back to the staff, they're just going to have to go right around in circles again with the hotel people again, and there's no need for that. So that's why I would be against the motion. MR. CARLSON: Unless this change that was presented to us today was the result of the hoteliers reacting to something they saw very late in the process, and there's still room for everybody to get together and hammer out these -- get an exchange going to solve some of these problems that may have happened very quickly in the last couples of days. MR. COE: The last couple of hours almost, yeah. I prefer to leave it with no more comments. We're tired up here. I want to talk to the board, and if they have questions of you, that's fine. Any other comments? Okay. I've got a second to go ahead and send it back to staff and let them work on it. Let's take a vote. All for? MR. HILL: Whoa, whoa, whoa, whoa, whoa. No. MR. COE: What? MR. HILL: The motion -- the staff has already given us their recommendations. We have in this document -- taking out the deleted proposals, we have staff's document; am I correct? MR. LORENZ: Yes. MR. HILL: Up to what they may judge on the basis of what they heard today. We already have that. All I'm saying is that I would like to have this document cleaned up, taking out all of those proposal for deletions, and given to us a clean staff recommendation on these items. MR. WHITE: My further understanding, Mr. Hill, was that we would be entitled, also, to incorporate those things that staff Page 95 May 2, 2001 would support and make a recommendation or proposal on that brought forward by the hotel industry today. MR. HILL: That's right. MR. WHITE: And were either agreed to or not depending upon which of the environmental groups you want to -- MR. HILL: That's correct -- MR. WHITE: Okay. MR. HILL: -- if they wanted to change anything. MR. WHITE: Thank you. MR. HILL: But I want to give the Conservancy, the hotel industry, and any other environmental group for any other entity an opportunity to address this and bring it to us by -- what did I say -- May 20th -- MR. SOLING: May 25th. MR. WHITE: The statement was May 20th. MR. HILL: -- comments in a document that will be distributed along with the staff report to us in a timely fashion following the 20th, and that this board be prepared at the June meeting to act. MR. WHITE: Although it's not part of the motion, Mr. Chairman, there has been an inquiry from hotel representatives with regard to how long it would take staff to prepare its position so they could respond to it by the 20th. And certainly the commitment I believe we would be able to keep would be a week from today we would be able to publish that and have it available. MR. COE: Does that work for you-all? MS. LYNNE: I agree with Mr. Coe in that we have a responsibility to make some decisions about the proposal by the planning service staff, and by sending it back again and again we're just prolonging this. Somebody referred to it as beating a Page 96 May 2, 2001 dead horse. I don't think that it's going to be -- I don't see what's going to happen to improve the situation after another month, although I have no real objections to discussing it another time except the amount of time we spend doing it. MR. GAL: I have a comment. We did beat this dead. I do object to discussing it again. I think we've heard most of the evidence that the hotels have. The Conservancy presented their testimony. I know he said he was not -- he was shanghai'd a little bit and was not prepared on every detail, but the record is clear what's been handed to us. We should have at this time the ability to vote on this ordinance up or down on each of the changes and make our own changes. I don't see the use of sending it back to staff or to get more comments. I think we pretty much know what they are at this point. MR. HILL: I guess in response to that -- and I understand what you're saying, but I believe following the comments of the Conservancy that our feet may be held to the fire on the basis of this procedure as it has occurred and that we, in essence -- and I'm not pointing fingers, but we have essentially disallowed some of the public groups or the private groups to address this situation. And I think it would behoove us to give that window to the Conservancy and the hotel people and anybody else out there that might not have been advised of this document and the proposed changes at this time. I think in our interest to serve the public we need to do that. At the expense of having another meeting and another discussion, I think it's critical that we do that. MR. GAL'. We tabled the matter the last time the Conservancy was here. They made good points. I understand his points. But it's been another month, and I think the next time he deals with the hotels there's a certain lack of trust now in their Page 97 May 2, 2001 negotiations probably. But, you know, a decision has got to be made at some point. Delaying this another month is not going to be useful, you know, unless they make written comments and submit it to us ahead of time and we vote on it and there are no public comments at the next meeting. MR. HILL: That's the motion. MS. LYNNE: That's part of it. MR. GAL: It's just a vote; no public comments. I mean, we get -- MR. HILL: May 20th. Bill Hill. We are to be in receipt of it from the staff and all interested parties, and we will come together in the June meeting prepared to vote. MR. WHITE: Mr. Chairman, just as a point of information, I have been advised that the Conservancy and the hoteliers agree with the form of the motion, if that's at all helpful in your deliberations. MS. LYNNE: I'm sorry. I couldn't hear you. MR. WHITE: I've indicated that both the Conservancy and the hotel industry agreed with the proposed motion that's on the table. They have no objection to the motion. MS. SANTORO: I would like to say something. MR. COE: Sure. MS. SANTORO: I would not be prepared to vote. I have spent three hours last night going through this grammatically, detail by detail. I feel very badly for the Conservancy, but he's got to realize that we're in the same boat. We get this in the mail two days prior to the meeting, and it's all changed. And I had just spent three hours -- I mean, we just got the revised today. MS. LYNNE: Uh-huh. MS. SANTORO: I am not prepared to put my name and approval -- it's probably conceptually fine, but I want the time to Page 98 May 2, 2001 go through it. I want the time for the environmental groups to look at it and get their information to me so we come out with the best documents. MR. COE.' Any other comments? MR. GAL: Well, I think our votes could be a denial of the whole ordinance. MS. SANTORO: You're just voting to table it. MR. COE: What you're voting for is to table it, get the staff and hotel people and everybody back together and let them come up with a smooth document; correct? And then they're going to give us their written input by the 20th of May. MS. LYNNE: What I would like to see is -- being able to get all the information from the public or whoever wants to give it to us, and then having a session where we get to actually discuss what's going on. Does that make sense, where we actually hash this out together as a board about what's the best thing here? MR. COE: Okay. MS. LYNNE: That's -- I just wanted -- MR. COE: But we've already had the public input and the staff input. MS. LYNNE: Right. MR. COE: What is remaining is a smooth document and for them to work out some details and then bring it back to us in writing. And during our June meeting we will not have any more discussion; we'll just vote on it. MS. LYNNE: But we can discuss it? MR. COE: Yes. Of course, we're going to discuss it. MS. LYNNE: Okay. MR. HILL: My intent -- and maybe I wasn't clear enough -- was to cut off, essentially, public input, verbal public input at a meeting, rely on staff's clean document without the hotels deletion suggestions and anything else that went into that Page 99 May 2, 2001 document, give the opportunity for the Conservancy and any other interested private group to comment on this within the window of the 20th of May for us to receive those documents, written documents, and at our June meeting in a closed public hearing discuss those documents and vote. MR. COE: All right. Is everyone prepared to vote, or is there any other comments? MR. HILL: I will say part of the reason for that is the same thing that Allie said. I'm not prepared today to vote on this. MR. COE: All for the motion say aye. (A chorus of ayes.} MR. COE: All against? MR. GAL: No. THE COURT REPORTER: Just Mr. Gal said no? He's the only one? MR. GAL: I'm against, yes. CHAIRMAN SANSBURY: And I abstained. MR. COE: One abstention. All right. Are you back as chairman again? CHAIRMAN SANSBURY: I'm back again. Okay. We only have about a half hour. Do we talk about the hearing examiner program? Is that what we're going to do next? MR. WHITE: Mr. Chairman, if I understand where we are in this process, you had indicated earlier that these discussions applied to 3.14 only in that we hadn't talked about 3.13 or 2.6. If that's still true or not -- CHAIRMAN SANSBURY: MR. WHITE: Thank you. CHAIRMAN SANSBURY: I think it should include all three. I just wanted it on the record. Concur. MR. WHITE: Concur. Excuse me. Sorry to interrupt. CHAIRMAN SANSBURY: Okay. Moving right along. MR. REISCHL: Good afternoon, council members, Mr. Page 100 May 2, 2001 Chairman. The hearing examiner-- THE COURT REPORTER: Your name for the record. CHAIRMAN SANSBURY: For the record -- MR. REISCHL: For the record, Fred Reischl, planning services. The hearing examiner proposal, as you know, was directed by the Board of County Commissioners last year. There are certain benefits that are proposed to be derived from this. It would allow the Board of County Commissioners, the Planning Commission, and the Environment Advisory Council to concentrate on policy issues -- basically what you're doing today -- land development, code amendments, and growth management plan amendments. It would regulate ex parte communication, the purpose of which would be to create a more level playing field as opposed to the way the situation is today where professional lobbyists, whether in reality or perception, have greater access to commissioners or yourselves. And another maybe is that it may reduce the likelihood of appeals of the final decision. The fiscal impact is approximately $212,000 a year with an additional start-up of $42,000. In front of you is a one-sheet table, and also on the visualizer is a summary of the major changes. The ones that would affect the EAC for the most part would be the special treatment overlay which, except for one recurring case which you've seen over the last year and a half -- you rarely see a special treatment go as far as the Board of County Commissioners. The next one would be the rezones, both the Rezone II commercial or a residential district or a Rezone II PUD. In that case the hearing examiner would be the first public hearing followed by approval by the -- or approval hearing -- approval or denial by the Board of County Commissioners. The conditional-use process, again, you don't hear as many of Page 101 May 2, 2001 those, but the EAC is involved with several conditional uses when there are environmental issues involved, particulary excavations. And those also would be heard by the hearing examiner and then going to the Board of County Commissioners. Environmental impact statements, when they are not connected with another petition -- most of the environmental impact statements that you see are connected to another petition with the PUD or with a rezone or the conditional use. There are rare occasions when the environmental impact statement is required on a stand-alone basis with an administrative process like a site development plan. In that case, the proposal is for that to go to the hearing examiner who would be the final decision maker on that. As you can see, Patrick White is here for any legal questions. I'll try to answer any of the policy directions. CHAIRMAN SANSBURY: Questions? MS. SANTORO: Can I ask a question? CHAIRMAN SANSBURY: Yes, ma'am. MS. SANTOR: I'm not sure why this is on the agenda. I didn't know if this is for information or whether we have a vote to decide whether there's a hearing examiner or what. I guess my -- again, we get these booklets. It's not on the agenda. We get these things. And if it's just informational then perhaps we can table it to another meeting time. MR. WHITE: If I may deal with that one, this is part and parcel of the proposed Land Development Code amendments that appear as Agenda Item V (A}, old business, for today's agenda. I apologize if you did not receive those until this morning. That was an oversight on our part. What we would hope you might be able to do is take a look at those things. If you're going to meet again on the 6th, certainly we have no objection to you bringing back a recommendation at Page102 May 2, 2001 that point in time, but it is provided because one of the functions that the council does perform is make recommendations with respect to Land Development Code amendments that are proposed. Although these are a block of proposals that are traveling as part of that package, they are in some sense separate because they are anticipated to have a separate effective date from the balance of the LDC amendments that you're otherwise being asked to consider today. MS. SANTORO: Has not the Board of County Commissioners already approved having a hearing examiner? MR. WHITE: They've approved the steps necessary to have a special act amended which, even as recently as today may be heard by the Senate, certainly this week. We required that legislative amendment in order to authorize the creation of a hearing examiner program. These are the provisions that would create that program because it's to be created by ordinance pursuant to the special-act amendments we're looking to get from the legislature this week. MS. SANTORO: We're reviewing it for recommendation? MR. WHITE: Yes, ma'am. MS. SANTORO: Might I suggest we possibly table this to give us a chance to read it. CHAIRMAN SANSBURY: What is the time frame for our recommendation to go back to the BOCC? MR. REISCHL: It's the same as the environmental amendments, June. CHAIRMAN SANSBURY: So we can table it, but it would be -- it will give us a full plate at next month's meeting. What's the pleasure? MR. HILL: Two quick questions, if you permit me, Mr. Chairman. The BAC is essentially out totally from this matrix of Page 103 May 2, 2001 responsibility, and I'm not disagreeing necessarily with that. The program document seems to include informal legislation for the Planning Commission, BCA, but nothing in there for us. MR. WHITE: I'm not following you. MR. REISCHL: I think I can answer that. Those are required by state statute. The planning commission, board of zoning appeals -- MR. WHITE: Are you saying that the draft text that you have available does not make reference to any changes pertaining to the Environmental Advisory Council? MR. HILL: No. I guess I'm saying that this matrix takes away all of these functions from the EAC. MR. WHITE: I believe that's essentially -- MR. HILL: We're no longer involved with these petitions and MR. WHITE: With cite-specific determinations. MR. HILL: Right. Which puts us, I guess, in a policy mode. MR. WHITE: Correct. MR. COE: A much better situation, I agree. MR. HILL: But then I look at this document, and there's nothing in here that defines our role, but it does enable the planning commission, the BCA-- MR. WHITE: I did understand your comment correctly. Let me tell you, I don't know which draft you have. You may have -- if you look on the second line following my name, there's a parenthetical, and I think yours may say four twenty-three, the very first page. CHAIRMAN SANSBURY: Four twenty-three, correct. MR. WHITE: It was an oversight on my part not to include the provisions in what's known as Division 5.13 which pertains to the Environmental Advisory Council, and in the four-thirty draft that is available. We do have those for you if you'd like them. I Page 104 May 2, 2001 think -- I don't have a copy with me. Essentially what I did in 5.13 was adjust accordingly the changes that are reflected in that table in 5.13. MR. HILL: I guess the crux of my question is, if I'm going to be asked to make a comment on this, I would like to have more official information on what our role is in the new scenario, and that's not here. MR. WHITE: The only changes that would occur are those that would implement the specific changes that you see all throughout the rest of the code. 5.13, if you will, is kind of the big picture of the EAC's function and role and all of the administrative aspects of it. The part that deals specifically with the powers and duties is contracted to reflect each of those specific changes that appear elsewhere in the code as evidenced by the table you have. And that's what I put in -- MR. HILL: That will be included in the updated verion of this? MR. WHITE: Yes. MR. HILL: That will be included in it? MR. WHITE: Yes. What you will see in your agenda packets -- and if we can get it to you, hopefully, maybe even by the 20th to kind of go with the rest of the information you'll have. Given the larger quantity, I'll commit to getting it to you by the 20th as well so that you'll have more time than normal to review it. What you'll have by then would be essentially a third draft based upon further discussions staff and other individuals are going to have early next week. We recognize that, you know, it's to some degree a work in process, but the rough contours of it are pretty much what you see in the one-page table. CHAIRMAN SANSBURY: Okay. Any other comments? What I'm hearing is what we're going to be doing is getting a second draft. We're going to be looking at that draft. We're going to be Page 105 May 2, 200'1 agendaing our discussion for the June meeting; is that correct? Okay. All right. Do you want to take a break for just a second? Are you all right? THE COURT REPORTER: Yes. CHAIRMAN SANSBURY: Okay. We have a couple of things. Can we jump to new business while you guys are still here because I have a quick question for you. Miss Santoro has asked that we agenda a request she has to attend -- could you just tell us what it is? MS. SANTORO: The 2001 Florida Land Trust Conference. And I would like to -- I wanted to go to the Saturday program. A lot of it is on preserving land, both working with private land owners and other organizations. CHAIRMAN SANSBURY: Do we have authority under what we're doing to do such things? I don't know. MS. MURRAY: I don't believe you do. Patrick, do you know the answer to that? THE COURT REPORTER: Your name, please. MS. MURRAY: Susan Murray for the record. You don't have a budget, do you? CHAIRMAN SANSBURY: I don't think so. MS. MURRAY: I don't believe so. MR. COE: Not one that includes a salary. MR. HILL: Put that on the agenda for the meeting. CHAIRMAN SANSBURY: I think the hearing will be over by then. MR. COE: The hearing will go a lot quicker if they pay us $100 an hour. MR. LORENZ: Bill Lorenz--for the record, Bill Lorenz. I'm not exactly sure how this is handled, but I have seen it handled in the past on other advisory boards that I was just looking from Page 106 May 2, 2001 the outside on. Typically they would go to the Board of County Commissioners through our consent agenda item that it's been requested that so-and-so attend whatever conference it is and request the board to authorize that expenditure fund. Then if the board authorizes that expenditure, then that individual can then be reimbursed. Typically what I've seen also on the advisory committees is the advisory committee would make a recommendation -- take a vote and recommend that a member, you know, attend that conference or whatever it is, that it's in the benefit of the EAC in conducting its business. You would have to have board authority, then, to do that. That's at least what I have seen. MS. SANTORO: It's $100, and the advantage is it's right here at the Naples Beach Club, so for me it would just be the $100 registration; no travel, no hotel. MR. HILL: If it's proper, I move, Mr. Chairman, that we request an allocation of $100, not to exceed $100, for expenses for Allie to attend that. MR. COE: I'll second that. MR. LORENZ: If I could, Mr. Chairman -- CHAIRMAN SANSBURY: (A chorus of ayes.) CHAIRMAN SANSBURY: All those in favor say aye. Opposed? None. MR. WHITE: A point of order. I think Mr. Lorenz has correctly identified the process. If I understand the nature of his comments and the request of you, it would be that this council would support the request and make a determination that it would be -- and there's a section that applies specifically to this entitled "reimbursement of expenses" under Division 5.13 which is -- the section is 5.13.8, and it says, "Entitled to receive reimbursement for expenses reasonably incurred in the performance of their duties." Then it says "upon Page 107 May 2, 2001 prior approval of the board." The timing of this is, I guess, maybe a little out of sync, but still the notion that you-all would make a determination that this would be within the scope of the duties of council and that it's an expense reasonably incurred, I believe, would be the form of the motion, and that's what you-all act on, including the recommendation that the expenses be reimbursed. CHAIRMAN SANSBURY: Sir, would you like to revise your motion to speak as to -- MR. COE: Yeah. We'll use legal-speak. MR. WHITE: Sorry. MR. HILL: I move that attendance by a representative of the EAC at the land trust conference would be appropriate in carrying out the duties as a member of this council, and we request support for this from the Board of County Commissioners to the tune of $100. CHAIRMAN SANSBURY: MR. COE: Seconded. CHAIRMAN SANSBURY: favor? (Unanimous response.) CHAIRMAN SANSBURY: Moved. Seconded? Mr. Coe seconded it. All those in Unanimous. No opposed. Okay. Barbara, you look like you want to leave. Don't write that down. Okay. One other question before you guys get out of here. We're going to be talking about our report -- our annual report in a few minutes. Is that going to be -- when will that be agenda'd before the BOCC? MR. LORENZ: Well, if you're able to provide me the annual report today, I can put it on the board's meeting for -- I believe it's the 22nd. MR. COE: Okay. Page 108 May 2, 2001 MR. LORENZ: That's a Tuesday. CHAIRMAN SANSBURY: Okay. MR. LORENZ: If not, it would have to go onto the Board's June -- the first meeting in June, June 6th. CHAIRMAN SANSBURY: Okay. Very good. I do want to have a discussion here very quickly of two things. I put together a little outline, and I think Mr. Hill has put together -- in fact, all the things that are in my outline are in Mr. Hill's review of -- MR. HILL: Did everybody get a copy of it? CHAIRMAN SANSBURY: Did everybody get a copy of Mr. Hill's -- do we have any comments on it? Would we like to look at it, come back on it? I think it pretty well says what we're doing here. Yes, sir. MR. HILL: I meant to ask, June 6th we will -- that's a Tuesday? MR. GAL: No, negative. The 5th is Tuesday. MR. HILL: The board meeting on the 6th -- I'm wondering if we have our June meeting prior to that one, but if it's a Monday, the 6th, we should have our June meeting the previous Wednesday. MR. WHITE: You talk without the benefit of a calendar. CHAIRMAN SANSBURY: Why don't we do this. I mean, is there any deadline? I mean, do we have to have it in May, or can we have the meeting in June? I asked you that before, I think. MR. LORENZ: Well, the ordinance says May of each year. CHAIRMAN SANSBURY: What's the penalty? MR. LORENZ: You'll have to ask -- CHAIRMAN SANSBURY: Suspended for 60 days or what happens? MR. HILL: Allie will have to spend her own money. MR. COE: What, this, you're talking about? Page 109 May 2, 2001 CHAIRMAN SANSBURY: Yeah. MR. COE: Let's do it. CHAIRMAN SANSBURY: I feel comfortable with this document. What's the feeling of the council? MR. COE: I don't have any problem with it. MR. HILL: We meet on the 6th. MR. WHITE: Is that a Tuesday or Wednesday? MR. HILL: Wednesday, the 6th. MR. WHITE: Thank you. CHAIRMAN SANSBURY: I would like to hear a motion. If they table it -- this document is prepared by Mr. Hill. MR. COE: I'd like to make a motion -- CHAIRMAN SANSBURY: Okay. MR. COE: -- that this goes as it proceeds except for the comments at the bottom, but that's obvious. We'll let it go the way it is. CHAIRMAN SANSBURY: As the annual report of the Environmental Advisory Council to the BOCC. MR. HILL: Whoa, gosh. MR. COE: Do I have a second for that? CHAIRMAN SANSBURY: A second to the motion? MR. STONE: I'll second it. CHAIRMAN SANSBURY: A second. Discussion? MR. HILL: Just allow me to clean it up a little bit. CHAIRMAN SANSBURY: Yeah. I think we can give you that time. MR. HILL: Bill, like you did last year, can you summarize the petition figures and so forth? MR. LORENZ: Yes. We'll put that in as the attachment of activities. We'll shoot for getting that on the board's agenda for May 22nd. Last year the chairman made a presentation to the County Commission for it, so I would propose that that would be - Page 110 May 2, 2001 - to do something similar this year. CHAIRMAN SANSBURY: Mr. Coe, if you would like to attend, I would like to have Mr. Hill attend also because I'd like to have Mr. Hill actually do the verbage of it and do the introducion and go from there if that's all right. MR. HILL: May 22nd? MR. LORENZ: May 22nd. CHAIRMAN SANSBURY: May 22nd. MR. HILL: I can't. CHAIRMAN SANSBURY: Mr. Coe, are you available May 22nd? MR. COE: I don't know. CHAIRMAN SANSBURY: back to Barbara because you can't get back to me directly. MR. COE: Why not? CHAIRMAN SANSBURY: You heard what Patrick said about that. Okay. MR. HILL: Tom, if you want any of your specifics to go into here, let me know. CHAIRMAN SANSBURY: Okay. If you could -- Bill, if you could just go ahead and -- however you'd like to clean it up, or put everything in there. MR. HILL: If there's some items anybody wants, give me a call. see. I don't have my schedule with me. Okay. Let's get -- why don't you get Okay. Thank you very much. Let's Mr. Hill. For a CHAIRMAN SANSBURY: We have one final item. MR. HILL: I have two. CHAIRMAN SANSBURY: Two. MR. HILL: One, an apology before Bill Lorenz leaves. variety of personal problems and reasons and schedules, I have not been able to discharge my responsibilities very well to the subcommittee on growth management, and I apologize to Bill and Page 111 May 2, 2001 Allie and Ed. They have carried the brunt of the load, and I'm not sure my situation is going to change very much in the next month or two. So if you would like to add somebody to that mandated or required subcommittee of the council, I would be more than happy. The other thing is the thank you letter that was approved two months ago. I submitted -- I was asked to write it and submit it in the April meeting. I would ask, again, that that be sent out. CHAIRMAN SANSBURY: Okay. Does everyone have a copy of the letter thanking Mr. Mulhere for his services? No? Yes? MR. GAL: I believe I do. MR. HILL: I think I gave them out. CHAIRMAN SANSBURY: What's the pleasure of council? MS. LYNNE: I have a question. CHAIRMAN SANSBURY: Uh-huh. MS. LYNNE: I thought Mr. Mulhere was leaving after April 1st, and I've still seen him around, so I actually thought maybe he decided not to leave. MR. WHITE: I suspect we're going to continue to see Mr. Mulhere around. He actually works about a hundred yards from where he previously was employed, but he is in the private sector now. CHAIRMAN SANSBURY: He's in the private sector now. MR. LORENZ: I can comment there. He may be under a contract with the county, as well, doing some report writing and some other deliverables for the rural fringe conceptual plan. CHAIRMAN SANSBURY: Thank you. MS. LYNNE: He chaired one of the workshops for the BCC after April 1st, the one on development. MR. WHITE: I think his actual last day may have been the 12th. MR. LORENZ: Something like that, the middle of May. Page 112 May 2, 2001 MR. WHITE: The 12th or 13th. MR. HILL: You can sign and send that copy. CHAIRMAN SANSBURY: Okay. Do we have a -- what am I hearing from the council? Any objection? MR. HILL: I move we send it out. MR. SOLING: I'll second it. CHAIRMAN SANSBURY: All those in favor? (A chorus of ayes.) CHAIRMAN SANSBURY: Opposed? MR. COE: Nay. CHAIRMAN SANSBURY: Mr. Coe is objecting. Okay. Do we have a report from the growth management subcommittee? No. Okay. Any other council member comments? Hearing none, June 6th -- MR. WHITE: Mr. Chairman. CHAIRMAN SANSBURY: Yes, sir. MR. WHITE: If I may inject under public comment -- CHAIRMAN SANSBURY: Yes, sir. MR. WHITE: I think there's perhaps two things. One is there's the balance of the LDC amendments other than the sea turtles and hearing examiner proposals that you're also going to have on your plate for the 6th, because I didn't hear any formal action in terms of a recommendation today. It's just so you know that all of that -- I don't know if you review those typically or not, but they may be on your plate as well. I don't know that they quote, unquote, have some environmental component or not and if that's a limitation of what you review but -- MS. SANTORO: Would they be in the mail to us prior to our meeting so we can review them, please? MR. WHITE: It's more my lack of experience that I'm bringing that to your attention. It may be there; I'm not sure. It may be that everything that you're requesting or are required to Page113 May 2, 2001 consider you already know about. The second thing is, at our last meeting there was a brief discussion off and on the record with regard to Sunshine and public meeting requirements. I just want to make a point of referring everyone back to a letter I sent each of you individually. And if you did not get it because you weren't on the board at the time, I would be happy to provide it to you. Essentially, there's a sentence included in part of the second paragraph that said (as read}, "Because a disclosure is not required except for matters that are quasi-judicial in nature," i.e., a site specific project, "a meeting with a citizen or staff pertaining to general policy matters would not require an ex parte contact disclosure." Perhaps in thinking about this after the last meeting, that may have been where the notion of the discussion about general policy may have arisen. I just wanted to clarify that that is with regard to individual citizens or groups or with individual staff or groups of staff. The general policy prohibition, I think, as we discussed at the last meeting still exists between council members outside of a meeting where there is also something that you are likely to consider at some future date. MR. COE: So what you're saying is if two of us are there talking to a staffer, that's not allowed, but individually if we're talking to a staffer, that is allowed; is that correct? MR. WHITE: That's a new hypothetical that we haven't discussed before, but I think you're correct in analyzing that. MR. COE: Can we talk about specific projects, say, with staff or with the developer as individuals? MR. WHITE: Yes, as long as you then subsequently make an ex parte contact disclosure -- MR. COE: MR. WHITE: -- at the meeting where that decision is made. Page 114 May 2, 2001 MR. COE: So, in other words, let's say I call Bill about, say, a project, and I talk to him on the telephone about it, then when I come to the meeting I have to let you-all know about the ex parte or whatever; is that correct? MR. WHITE: My preference would be that you would make that disclosure. Although technically under some provisions that wouldn't be considered lobbying per se. I think the general point or spirit of the document or the resolution that controls these matters would be that you make the disclosure. The point is that if there's anyone in the public or the applicant who would want to cross-examine either you or the staff with regard to the nature of those discussions, they would be able to do so the same as they would anyone else who would not be staff, such as some other individual who had an interest. CHAIRMAN SANSBURY: Yes, ma'am. MS. SANTORO: In other words, we could call people for information, but we just have to disclose at the meeting that we called certain people and the date? MR. WHITE: Yes. CHAIRMAN SANSBURY: Any further discussion? Hearing none, we are adjourned. MR. WHITE: Thank you. There being no further business for the good of the County, the meeting was adjourned by order of the Chair at 12:50 p.m. Page 115 May 2, 2001 ENVIRONMENTAL ADVISORY COUNCIL THOMAS SANSBURY, CHAIRMAN TRANSCRIPT PREPARED ON BEHALF OF DONOVAN COURT REPORTING, INC., BY MARGARET A. SMITH, RPR Page 116