CCPC Minutes 05/16/2001 SMay 16, 2001
TRANSCRIPT OF THE MEETING OF THE
COLLIER COUNTY PLANNING COMMISSION
Naples, Florida, May 16, 2001
LET IT BE REMEMBERED, that the Collier County Planning
Commission, in and for the County of Collier, having conducted
business herein, met on this date at 5:07 p.m. in SPECIAL
SESSION in Building "F' of the Government Complex, East
Naples, Florida, with the following members present:
CHAIRMAN:
Gary Wrage
Russell A. Budd
Kenneth L. Abernathy
Joyceanna J. Rautio
Michael Pedone
Dwight Richardson
Lora Jean Young
NOT PRESENT: Russell A. Priddy
ALSO PRESENT: Marjorie M. Student, Asst. County Attorney
Susan Murray, Interim Current Planning Manager
Page I
COLLIER COUNTY
PLANNING COMMISSION MEETING
ON LDC AND RELATED
AMENDMENTS
NOTICE OF MEETING
WEDNESDAY, MAY 16, 2001
AT
5:05 PM
COUNTY COMMISSIONER'S BOARD ROOM
ADMINISTRATION BUILDING - 3an FLOOR
3001 E. TAMIAMI TRAIL
AGENDA
1. Amendment to Land Development Code (LDC) - First Public Hearing
(A summary of the proposed LDC Amendments follows this page.)
LDC
Section
2001 Land Development Code Amendments - CYCLE I
Summary Sheet
1.19.1. Page 1
Nino-Current Planning
Page 2
District (A)
2.2.2.2.2.1.
old - Code Enforcement
---AProposed
mendment
allow the County Board of
~)ners the opportunity
amend the Collier County
Development Code on
9ther than the two cycles
xherwise provided by Section
1.19.1.
the number of male foul
poultry to 5
2.2.3.
trict (E)
Page 4
Murray-Current Planning
(RT)
DSAC
Recommendation
EAC
Recommendation
2.2.15.1 Page 7
General Commercial District
Badamtchian - Current
2.2.16.1/2
Page 9
park PUD district (BP).
Badamtchian - Current
2.2.28.
- Page 12
Overlay District
Mosca - Comp Planning
Blair - Comp Planning
04/24/01
to the Estates (E)
;district to require
Use approval for
or earth mining.
in nature with the
uses.
references to
communication towers as
permitted uses, conditional uses
and accessory uses from the
?rohibited Use section of the
Main Street Overlay Subdistrict;
and, amend the Permitted Use,
Conditional Use and Accessory
Use sections of this same
Subdistrict to include these
'eferences. Amend Map 5, the
~_~ibusiness Overla~ubdistrict
1
LDC
Section
2001 Land Development Code Amendments - CYCLE !
Summary Sheet
'-AProposed ~ ~
mendment DSAC EAC
Recommendation Recommendation
2.2.33.
Page 23
Use Overlay District
Preston - Comp Planning
2.2.34. Page 40
Overlay District
~mond Bellows - Current Planning
2.6.11.5.
Page 45
Gochenaur - Current Planning
2.6.21. Page 46
Facilities
Gochenaur-Current Planning
), to include an additional
lot (Newmarket Immokalee
, Block 59, lot 15)
was inadvertently omitted
ubdistrict's boundary.
create the Bayshore Drive
Use Overlay District.
amend the Goodland
District.
~t certain property and
;districts from the
restricting the use ol
fences
1.) Add a provision allowing
ttive approval of more
iberal waterway width
~ts for determining
protrusion distance on
91atted waterways less than 100
wide where the mean high
line has receded from the
line; 2.) Revise dock
extension criteria; 3)
the section dealing with
s to clarify the
p between a boathouse
md its associated dock facility,
identify which criteria (dock
and boathouse, or
alone) apply under
circumstances. In addition
these major changes, a
"housekeeping"
have been made
the section. Due to
difficulty in obtaining LDC
from the vendor, the
inal section has been struck
in its entirety and a cie
substituted. The major
have been
CCPC
Recommendatio~
04/24/01
2
LDC
Section
2001 Land Development Code Amendments - CYCLE
Summary Sheet
AProposed -'-------
mendmentDSAC
Recommendation
2.7.6.(5) Page 56
Permit And Certificate Of
Y Compliance Process
Marsh-Code Enforcement
2.8.3.7.2. Page 58
.ping
Siernion-Current Planning
Nino-Current Planning
Page 59
3.2.6.5.3.
Improvements
Kuck - Engineering Review
Houldsworth - Engineering
3.2.8.2.18.
Blalock - Current Planning
Improvements
Page 61
Kuck - Engineering Review
ldsworth - Engineering
Page 62
3.2.9.1.6.
a Improvements_ _
Kuck - Engineering Review
lorn Houldsworth - Engineering
04/24/01
Blalock - Current Planning
Require a reasonable time
frame to obtain inspections
~nd certificate(s) of
occupancy on issued after the
fact permits.
increase the size of trees in
parking lots proportionately
:he size of the parking area.
Projects with larger parking
lots will have larger trees.
Fo require applicant's
professional engineer to supply
subdivision plat improvement
~lans in which all data be
~lelivered in the State Plane
coordinate system, with a Florida
East Projection, and a NAD83
:latum, with USFEET units; files
;hall be in a Digital Exchange
File (DXF) format; informatior
layers shall have common
naming conventions (i.e. right-
f-way - ROW, centerlines - CL
~dge-of-pavement - EOP, etc.).
lacceptable to the development
~services director at the time of
preliminary acceptance of the
~ovements..
Add requirements for re-
iubmittals of Construction
?fans and Plats.
Fo require applicant's
~rofessional engineer to supply
;ubdivision imprb~ement plans
in which all data be delivered in
the State Plane coordinate
iystem, with a Florida East
?rojection, and a NAD83 datum,
with USFEET units; files shall
be in a Digital Exchange File
IDXF) format; information
layers shall have common
taming conventions (i.e. right-
of-way - ROW, centerlines - CL,
~avement - EOP,
EAC C~~~CPC
Recommendation ~ Recommendation
3
LDC
Section
3.3.12. Page 64
Development Plans
Kuck - Engineering Review
Houldsworth - Engineering
Blalock - Current Planning
2001 Land Development Code Amendments - CYCLE !
Summary Sheet
AProposed
rnendment
acceptable to the development
;ervices director at the time of
3reliminary acceptance of the
;ubdivision improvements.
Fo require applicant's
professional engineer to supply
subdivision improvement plans
in which all data be delivered in
:he State Plane coordinate
~'stem, with a Florida East
Projection, and a NAD83 datum,
with USFEET units; files shall
be in a Digital Exchange File
~DXF) format; information
layers shall have common
naming conventions (i.e. right-
of-way - ROW, centerlines - CL,
I dge-of-pavement - EOP, etc.)
cceptable to the development
rvices director at the time of
eliminary acceptance of the
~ ~ovements.
sec:3~5.3: ::!. page 66
E~hvatio~s ~
~hange the apphcabflx~y
.......................................... ;xcav~ti6n Peg~dih~ ~Ubllc
acfli~Z prpjec~?
Sec: 3.14.3.4. Page 67 Language added to Section
Ve~cles On The Beach Regulation 3.14.3 to allow for additional
~xception to ~e vehicle on the
~ach regulations duhng sea
Maum ~aus - Natural Resoumes turtle nesting season to
accommodate the commemial
aspect of ~e beachfront hotels
~ md concessions.
Sec:6:3:~: i;~:: . ::~:::- pageT~
D~st~non
EAC
Recommendation
CCPC
Recommendation
gec: 6.3 Page 73
Definitions
Maura Kraus - Natural Resources
quahfi~atioh.
Add a definition for PSI
iPounds per Square Inch)
calculations.
04/24/01
4
LDC
Section
Definitions
2001 Land Development Code Amendments - CYCLE I
Summary Sheet
A Pr°p°sed ~^C
mendment [ r'~c°mmenaan°n._L Recommendation
?atrick White - Asst. Co-A~omeY
Page
Page 75
~xa~ner
pr m:
CCPC
Recommendation
Sec: 5.1.
Sec: 5.2.
~ec: 5.3.
Sec: 5.5.
[-/ea~ihgs Exa~fier
Patridk Whit~ ':~ssi',-cO_AitOmby
04/24/01
5
May 16, 2001
CHAIRMAN WRAGE: Let's call to order the Collier County
Planning Commission meeting on LDC and related amendments,
May 16th, 2001. We will call the role.
Commissioner Priddy seems to be absent.
Commissioner Budd.
COMMISSIONER BUDD: Here.
CHAIRMAN WRAGE: Commissioner Abernathy.
COMMISSIONER ABERNATHY: Here.
CHAIRMAN WRAGE: Commissioner Rautio.
COMMISSIONER RAUTIO: Here.
CHAIRMAN WRAGE: Commissioner Wrage is present.
Commissioner Young.
COMMISSIONER YOUNG: Here.
CHAIRMAN WRAGE: Commissioner Pedone.
COMMISSIONER PEDONE: Here.
CHAIRMAN WRAGE: And Commissioner Richardson.
COMMISSIONER RICHARDSON: Yes.
CHAIRMAN WRAGE: It's my understanding there's no
swearing in because this is administrative. MS. STUDENT: It's legislative.
CHAIRMAN WRAGE: All right. When you -- anyone wishing
to speak will be asked to come to the microphone, state your
name for the court reporter. And before we start, Susan, do you
have a feel of what is the hot issue tonight?
MS. MURRAY: I've got the -- I'm sorry. Susan Murray, for the
record, interim current planning manager. I've got the RT zoning
district, four speakers registered; and four -- five for the sea
turtles. So it's probably turtles first, if you prefer.
CHAIRMAN WRAGE: Can I just have a show of hands? How
many people are here for the hearing examiner?
CHAIRMAN WRAGE: I'm sorry. You lose. Okay. So we're
Page 2
May 16, 2001
going to move those two up. And the first one, Susan? MS. MURRAY: Turtles?
CHAIRMAN WRAGE: (Nodded head.)
MS. STUDENT: Mr. Chairman, I need to make a preliminary
announcement, and I'll be making it at our second hearing as
well.
But because of some glitches -- on Division 119, 18, and 313,
because of some things that came later, didn't get in the title for
this meeting. These are not changes that would affect the
permitted conditional or prohibited uses.
So we are going to advertise those just -- you will have seen
them already, but just for your June 7th regular meeting just to
make sure everything's copacetic, because as long as they don't
do that, we don't necessarily have to have the two night
meetings. I just wanted to make that announcement. It'll be
advertised tomorrow, and you just have to vote on it at that
meeting, and then we'll fold it into the board's schedule. But I
just wanted to make that announcement.
COMMISSIONER RICHARDSON: Could I ask the attorney,
Mr. Chairman, if people aren't swearing in, does that suggest
something about the veracity of the statements they're going to
make?
MS. STUDENT: No. This is legislative. And in a legislative
matter, you don't need to swear people in. You're not acting
quasi-judicially as kind of like a court, and this is legislative. And
you take what is said, I guess, you know, assign whatever -- you
don't really have to assign, necessarily, credibility to it, but take
it however you will. All we're looking for here is a rational basis
in relationship to the public health, safety, and welfare for the
regulation that you are going to make recommendations on to
the board.
CHAIRMAN WRAGE: Okay. Any other announcements?
Page 3
May 16, 2001
Disclosures?
If not, Susan.
MS. MURRAY: Susan Murray, for the record. Interim current
planning manager is my title. Tonight I'm going to pretty much
act as a facilitator for all of your LDC amendments. I've got a
whole room of staff here to answer any of your questions. We're
going to start out dealing with the sea turtle amendment. I've
prepared a user-friendly packet for you because I know you don't
normally deal with sea turtles. For anybody in the audience,
there's copies of the packet up there. I'd prefer to just go in the
order of the packet I gave you. It says "Sea Turtles" on the front
cover. And if you don't mind, we'll work through the amendments
that way.
And if you turn to the first page, it says "LDC Section 2.6.34,
Annual Beach Events Permit." There's a brief explanation of
what an annual beach events permit is. Then you'll see the sea
turtle nesting season, which runs May 1st through October 31st,
and during that time there are special conditions and
requirements to the conduct of activity on the beach. So this is
what these regulations are referring to.
Under each section you'll note a bullet and some italicized
comments. Those are -- basically what I'm going to repeat to you
are staff's comments, a summary of what the proposed changes
to that portion of the code are proposing. Is that clear to you, or
does that make it easy? I plan on taking about 15 minutes.
COMMISSIONER RICHARDSON: So the bullets are, in fact,
not part of the code.
MS. MURRAY: That's exactly right. That is basically the
summary of the proposed change for that citation. And in many
cases you'll find that the changes are not substantive, so you
may not want to spend a significant amount of time dwelling on
that.
Page 4
May 16, 2001
COMMISSIONER ABERNATHY: Are the code sections the
same as were provided to us in this packet?
MS. MURRAY: Yes. This is just a reorganization of the
original packet you got. That's all it is. Everything is the same,
the content. As well, if you see shaded items there, that is new
language or slightly revised language that was not in your
original handout, and I will tell you most of that is not
substantive. I'm saying most, not all. So just be aware of that
change. And with that, I'll go down the page. And if you want, I'll
just keep reading, and if you want to stop me and ask a question
or -- my mike's not on?
COMMISSIONER ABERNATHY: Ours are on.
MS. MURRAY: Am I speaking loud enough? While we get it
fixed can I continue?
COMMISSIONER RAUTIO: You're fading on some of it for me.
MS. MURRAY: Okay. I'll yell.
COMMISSIONER ABERNATHY: Here comes Ms. Fix-lt.
COMMISSIONER RICHARDSON: Ms. Murray, just on the first
paragraph there, the part that there's no changes on, just for my
education, an annual beach permit, does that have to be
reapplied for annually, or it's just you get it once and you've got it
forever?
MS. MURRAY: Every year, reapply.
COMMISSIONER RICHARDSON: So they come in January
1st?
MS. MURRAY: That's correct, I believe. Yes. Under section
-- on that page, I'll go ahead and just start. Under Section
2.6.34.1 you'll notice the shaded item there. That is a disclaimer
that was put in by the county attorney's office. It puts
permittees on notice that the county permits for vehicles on the
beach events and exemptions from the CCSL variance will not
and do not act to insulate the permittees or employees from
Page 5
May 16, 2001
liability under enacted laws that may arise from their activities,
regardless of whether such activities are allowed by permit or
not.
The second, 2.6.34.3.3 is essentially an addition of the
requirement of the notification to Collier County Natural
Resource Department during sea turtle nesting season.
2.6.34.5 is a nonsubstantive change, just a rewording.
2.6.34.5.1, again, a nonsubstantive change, rewording.
2.6.34.5.2, it's a rewording of the existing language and an
elaboration on the qualifications for turtle nest survey personnel.
COMMISSIONER RICHARDSON: Excuse me. Back up for a
second. On the field permits, what does that really entail? Do
they have to go to an agency other than to the county? Is that
DEP, or where do they get the permits from? MS. MURRAY: DEP.
COMMISSIONER RICHARDSON: And are they readily -- is this
the sort of thing that's readily available to a hotelier to go do, or
do they have to write them or call them or --
MS. MURRAY: They would have to contact the DEP, fill out
the appropriate application, pay the fee, and meet the
requirements of the DEP.
COMMISSIONER RICHARDSON: So this is done fairly
regularly, so it's not really a --
MS. MURRAY: As I understand, yes. And then they would
have to provide the county a copy of their DEP permit. And that's
all handled by separate agencies.
I'm on page 2 now, Section 2.6.34.5.3. We added a
requirement for physical barriers around sea turtle nests.
2.6.34.5.4, we added reference to a beach raking section
and the operation of vehicles on the beach section. There's
really no substantive change here.
2.6.34.5.45, we added the prohibition of materials within a
Page 6
May 16, 2001
set distance of 10 feet of beach dunes.
2.6.34.5.7, there's a nonsubstantive relocation clarification
and a statement of purpose for relocation and limitations
requirements. Am I going too fast?
2.6.34.5.9, a nonsubstantive change.
I'm on page 3 at the top, penalties. 2.6.34.6, this is a --
obviously, a substantive change. This came about, I believe, by
direction of the Board of County Commissioners when this --
changes to this amendment were adopted last year, I believe.
There was -- a penalty section was not included at that time with
the understanding that staff was going to bring back a penalty
section at a later date, and this is that section that we're
bringing forward now. It adds penalties and fines for violations
of this section of the code that we just went over. In summary, it
provides for a $500 fine for a violation of any of the provisions of
this section which occur outside of the sea turtle nesting season;
and second, it provides for separate penalties associated with
violations which occur during the sea turtle nesting season.
I'm on page 3A, standard permit conditions. All the changes
on page 3A and 3B are the changes I just summarized in the
previous section. They're just written as a reiteration of the code
requirements as they're proposed to be amended. This is the
standard permit conditions list that goes to every applicant that
receives a permit, and it just summarizes the permit
requirements.
I'm on page 4 now. And we're going to move to Section 3.13,
which deals with the coastal construction setback line
variance. If you're not familiar with that section, there's a
coastal construction setback line which is established by the
Department of Natural Resources by the State of Florida. It's --
parallels the beach line, and our LDC prohibits certain activities
seaward of this line and also provides for exemptions to the list
Page 7
May 16, 2001
of prohibited activities. This amendment to this section deals
specifically with the exemption section. Exemptions are made
typically for things like umbrellas and beach furniture.
Section 3.13.7.3, it establishes a regulation -- this is a new
regulation -- which says that beach furniture cannot be moved
onto the beach until turtle monitoring has been complete. That
occurs in the early morning hours and is usually complete, as I
understand, by 7:30 or 8:00 in the morning. This amendment also
establishes a definite time, which is nine o'clock p.m., that the
furniture has to be removed or a variance, which is commonly
known as a CCSL variance, is required to be obtained to leave
the furniture and the light on the beach after this time. It also
establishes the same disclaimer I described before.
COMMISSIONER RAUTIO: I have a question. If you're asking
for this particular time, like nine o'clock at night, is there some
reason that they want to leave the furniture on the beach? Has
that come up?
MS. MURRAY: It may when the audience comes up to
speak. You may want to hold that question. I'm personally not
aware, but it may be -- actually, it's probably related to some
beach events that occur.
COMMISSIONER RAUTIO: Or perhaps it's related to
violations.
MS. MURRAY: I'm on Section 3.13.9, again, another penalty
section. And this is a total new -- a new addition to the code. It
provides for the addition of specific fines and penalties for code
violations to the exemption section of the CCSLV variance
section of the code. That's all this section does.
COMMISSIONER ABERNATHY:
7.3?
MS. MURRAY: Okay.
COMMISSIONER ABERNATHY:
Susan, could we go back to
If you can establish a time
Page 8
May 16, 2001
certain when the beach operatives have to have their stuff off of
the beach, why can't you establish a time in the morning by
which county operatives perform their beach search? Or how do
these people find out that the beach look by Maura Kraus and her
people has been accomplished? Do they just wait all morning if
somebody doesn't come and tell them? How does that work?
MS. MURRAY: Maura, do you want to respond to that? I
know in certain -- in one case, for the Ritz-Carlton, they actually
have Maura or another staff sign off. They've established a sign-
off form whereby when they've completed their monitoring, the
staff person signs and dates. But I'm not sure how maybe other
people handle that.
MS. KRAUS: Hi. Maura Kraus, Collier County Natural
Resource Department. We currently have a log on Vanderbilt
Beach.
And when we arrive to do our monitoring, we sign the log every
morning, and that's worked really well in the past. And last year
we also had one at Clam Pass Park. So it's by request.
COMMISSIONER ABERNATHY: How--
MS. KRAUS: It's hard to give a time certain in the morning
because if we have a day where we have 20 nests on a beach or
something, it might take a little bit longer. But the areas that
we're talking about are close to where access is so --
COMMISSIONER ABERNATHY: Have you had complaints
about being so late that you interfered with their operations of
getting their beach chairs out and --
MS. KRAUS: No. We're typically there at daybreak, and we
have not had a problem in the past with a flat tire or, you know,
where a monitoring personnel could not be there very early.
COMMISSIONER RICHARDSON: Excuse me. Could I ask a
question while you're still up here? I'm not clear under what --
what criteria for granting an exemption would be. If it's -- if they
Page 9
May 16, 2001
should be off by nine o'clock, it sounds like there was a good
reason for that, because that's when turtles might come up;
right?
MS. KRAUS: That's when they start coming up, and that's
also the time of when they start hatching, the little hatchlings.
COMMISSIONER RICHARDSON: So under what -- what are
the criteria -- maybe I'm not understanding this -- that suggests
that an exemption can be allowed by -- exemptions allowed
under this provision. How does a hotelier, for instance, or a
person get an exemption to have an event after nine o'clock?
MS. MURRAY: The exemption would have to be -- it's not
really an exemption. If you wanted to have articles of furniture
or something else on the beach after nine o'clock, then you
would have to get a CCSL variance. Am I speaking correctly,
Barbara? Why don't you come on up.
MS. BURGESON: For the record, Barbara Burgeson with
planning services. The CCSL variances would not be issued to
leave beach furniture or any items on the beach. The variance is
issued to identify storage areas in front of the coastal
construction setback line where they can remove the beach
furniture back up into an area on the dune. Typically we identify
areas where there's non-native vegetation that can be cleared
and an area for storage identified so that during sea turtle
nesting season all that furniture can be stored back off the beach
so it won't interfere with sea turtle nesting.
COMMISSIONER RICHARDSON: And by definition this would
be an area that sea turtles would not likely --
MS. BURGESON: That's right.
COMMISSIONER RICHARDSON: -- go to?
MS. BURGESON: Yes.
COMMISSIONER RICHARDSON: So this does not suggest,
then, there would be an exemption for a party that just ran over
Page t0
May 16, 2001
to eleven o'clock or something?
MS. BURGESON: No. What it states is that the exemption is
not -- does not exist during sea turtle nesting season. That
exemption is outside of sea turtle nesting season.
COMMISSIONER RICHARDSON: All right. Just kind of
backwards language. Thank you.
MS. MURRAY: I believe I went over the penalties section, so
we should be up to page 6, which is LDC Section 3.14, vehicle on
the beach regulations. This section of the code regulates the
operation of vehicles on the beach, and that includes hand,
animal, or engine driven wheel, truck, or other vehicles. It
provides for permits to allow the operation of vehicles on county
beaches.
This section might be a little confusing to you because
there's actually three sections that it applies to. So rather than
go through all three, because the proposed changes are the
same, I'd rather just read the one set of proposed changes,
knowing that it applies to all three sections. All three sections
are the special or annual beach events section, the permanent --
it applies also to permanent concession facilities section, and
also applies to the permitted uses or routine functions of
commercial hotels and condominiums section as well.
So the proposed changes for all three of those sections,
starting with 3.14.3.4.4, basically this clarifies the requirements
for establishing pounds-per-square-inch-tire-inflation requirement
and adds the requirement that permit applications to include --
shall include tire pressure calculations for all vehicles on the
beach. And I want to clarify that this PSI requirement applies to
the pressure which is applied to the ground and not the pressure
that's internal to the tire itself. Just a clarification.
The next section, 3.14.3.4.7, this is a pretty substantial
change. It basically revised the code. Whereas the current code
Page 11
May 16, 2001
as it stands today prohibits the use of vehicles on the beach
during sea turtle nesting season, this amendment proposes to
now allow the use of vehicles on the beach during sea turtle
nesting season under very specific conditions: First, that no
vehicles are allowed on the beach until monitoring is completed;
second, that no setup of equipment is allowed on the beach until
monitoring is completed; third, that all vehicles are to travel on
the Collier County Natural Resources Department established
corridors, which generally run perpendicular to the beach; and,
fourth, that all vehicles on the beach are to operate below the
mean high water line or below the previous high tide mark. And
this is, again, during sea turtle nesting season.
And lastly that -- to point out that the corridors are subject
to change depending on turtle behavior as a result of staff's
monitoring in the morning, most likely. And this is at staff's
discretion. If there are no other corridor alternatives available,
the beach permit may be suspended for the remainder of the
season, again at staff's discretion.
With that, you're essentially done with that section because,
again, those changes apply to the three sections I mentioned.
So now I'm up to page 10.
COMMISSIONER RAUTIO: Quick question?
MS. MURRAY: Sure.
COMMISSIONER RAUTIO: If the hotel doesn't agree with
staff and they're suspending the permit, what happens?
MS. MURRAY: I'm sorry. I didn't hear you.
COMMISSIONER RAUTIO: If the hotel does not agree with
the staff suspending that permit, what happens?
MS. MURRAY: I don't see any alternatives here.
CHAIRMAN WRAGE: There's no appeal?
COMMISSIONER RAUTIO: There's no alternative available?
The staff just says, "Okay. We're suspending your permit."
Page 12
May 16, 2001
There's no further discussion?
That's what I understand. Is that
There's no appeal?
MS. MURRAY:
correct? Correct.
COMMISSIONER RAUTIO: Okay.
COMMISSIONER RICHARDSON: The turtles have spoken.
COMMISSIONER RAUTIO: Via a staff person.
MS. MURRAY: I'm now up to page 10 under Section 3.14.5,
beach raking and mechanical beach cleaning. All the changes
proposed on this page are basically nonsubstantive language
clarification.
I'm now up to page 11 under Section 3.14.6, which deals
with operations of vehicles on the beach during marine turtle
nesting season. This includes motorized vehicles, self-propelled,
wheeled, tracked, or belted conveyances. The proposed change
also includes adding the disclaimer which I described to you
earlier.
Now, I'm under Section 3.14.6.1 in about the middle of the
page. Changes to this section of the code include addition of the
requirement to delay beach raking and clearing until trained and
qualified personnel have conducted sea turtle monitoring, again
in the morning.
In the middle of the page penalties for beach raking and
mechanical clearing violations, Section 3.14.7, a new section
establishing penalties. It includes the addition of specific fines
and penalties for corresponding code violations; includes fines
and penalties for violations during nesting season and outside of
nesting season, so it differentiates between the two. It identifies
major and minor infractions and corresponding penalties for
violations during sea turtle nesting season, and provides --
details a ladder of penalties in case of a continuing breach of the
code.
Now I'm up to page 13, describes penalties for operation of
Page 13
May 16, 2001
vehicles on the beach during turtle nesting season; vehicle on
the beach regulations for permit exemptions; violations of
vehicle on the beach for permanent concessions, events, and
routine functions.
Again, this is a new section of the code. It is the addition of
specific fines and penalties for corresponding code violations,
which include vehicle on the beach permit exceptions for routine
use, special events, and permanent concessions; beach raking;
and the operation of vehicle on the beach during nesting season.
It also includes fines and penalties for violations during nesting
season and outside of nesting season. It identifies major and
minor infractions and corresponding penalties for violations
during turtle nesting season; and details a ladder of penalties in
case of a continuing breach of the code.
COMMISSIONER YOUNG: Susan.
MS. MURRAY: I think that's it.
COMMISSIONER YOUNG: This code applies to the entire
coastline from below Marco right on up, you know, through North
Naples?
MS. MURRAY: Correct.
COMMISSIONER YOUNG: Who is -- who are the people who
are determining that a violation has been committed?
MS. MURRAY: That would be the code enforcement
department. Michelle Arnold is the director. She's here.
COMMISSIONER YOUNG: I just wondered how many people
we had enforcing code violations and how it -- how specifically it
would be done.
MS. ARNOLD: For the record, Michelle Arnold, code
enforcement director. It does -- the beach that we would be
enforcing does not include the City of Marco. However, in terms
of the number of people that I have enforcing the code, currently
I have two environmental specialists on my staff, but we will be
Page 14
May 16, 2001
relying partially on the natural resources department, that's out
on the beach on a daily basis, to report violations that they
witness.
MS. MURRAY: I'm sorry. I omitted one new section of the
code. If you look on page 9, Section 3.14.3.7 provides for
additional requirements for identification of all new vehicles to
be placed on the tire tread. So any of the vehicles that are
traversing the beach will be required to have a specific
identification which ties that vehicle to a specific owner or
property.
COMMISSIONER RAUTIO: Who thought that one up?
CHAIRMAN WRAGE: My question is going to be, what do you
do when you find one that's not identified?
COMMISSIONER RAUTIO: Well, that was going to be my
next question. If we have the old ones, the new ones, and some -
- is this a staff approach, or is this something from The
Conservancy or --
MS. MURRAY: I believe that's a staff approach. Is that
correct? I'm sorry. The hotels actually proposed that, the hotels
along --
COMMISSIONER RAUTIO: So maybe they'll clarify that.
MS. MURRAY: I'm sorry. The concessionaires.
COMMISSIONER RAUTIO: Concessionaires?
MS. MURRAY: Yes.
COMMISSIONER RAUTIO: Okay.
MS. MURRAY: Any other questions of staff at this
point?
CHAIRMAN WRAGE: Any questions of staff? Does anyone
wish to give comments, testimony on what we just heard?
MS. MURRAY: I have registered speakers.
CHAIRMAN WRAGE: Okay.
MS. MURRAY: The first, Ed Staros of the Ritz-Carlton.
Page 15
May 16, 2001
And did you want me to time everybody, Mr. Chairman?
CHAIRMAN WRAGE'- Well, no. I will allow certain latitude.
But if they get too windy, I'll cut them off.
MS. MURRAY: Matt Grabinski? Certainly.
MR. GRABINSKI: Thank you. Matt Grabinski on behalf of the
Ritz-Carlton. This amendment process started over a year ago
when the hotel industry, particularly the Ritz-Carlton, decided to
get in touch with Collier County code enforcement officers and
environmental staff as well as the DEP because they were
concerned about their beach activities and what was and wasn't
allowed, and they wanted to take a proactive approach to that
whole situation.
On May 10th of 2000, Robert Mulhere, who was then the
administrator for community development environmental
services, in a letter to me, stated with respect to this whole
process, and I quote, it is not our intent to develop a process that
is burdensome or one which negatively impacts your clients'
business functions or the expectations of their guests. That was
what we started with.
Over a year has gone by. We have had numerous
discussions, numerous meetings, tried to address every concern
that we could address. And for the most part, we support the
language that's before you except for a few critical points. And if
they are not corrected, they will be burdensome, they will
negatively impact our ability to do business, and they will
negatively impact the expectations of the hotel guests.
The first change or revision to the code that we would like
to address concerns beach raking and mechanical beach
cleaning. Under the current code, beach cleaning and raking
above the mean high water line during sea turtle nesting season
is not allowed. In the past Collier County has not enforced this
code provision and, in fact, last year gave the Ritz-Carlton the
Page 16
May 16, 2001
express permission to clean its beach each morning after the
daily sea turtle monitoring program had been to the beach and
had inspected the beach and cleared it.
The hotel believes that this is an important function. They
are not raking the beach with some type of device that
penetrates the beach deeply. They are dragging a screen across
the beach. It smooths the sand, and it exposes debris and litter,
a great portion of which was not put on the beach by guests of
the hotel but is on the beach through members of the general
public. And they collect a bag of trash every morning after they
clean the beach.
The hotels would like to see the code amended to provide
that they could rake the beach above the mean high water line
during sea turtle nesting season subject to the sea turtle
monitors coming each morning and clearing the beach first.
Again, we are requesting this change. It is something that they
were allowed to do last summer.
COMMISSIONER RAUTIO: Would you be very specific?
CHAIRMAN WRAGE: Quick question, though, before you
answer the vice-chair. From a practical standpoint, you say they
come and search the beach. They're basically looking for nests,
they stake that out, you don't rake that portion; is that what
you're telling me?
MR. GRABINSKI: Yes.
CHAIRMAN WRAGE: And they did that last year; right?
MR. GRABINSKI: Yes. Specifically we would request that
Section 3.14.6.1 be revised in its entirety to read as follows:
Quote, all beach raking and mechanical beach cleaning during
sea turtle nesting season, May I to October 31 of each year,
shall be confined to the area of beach below mean high water or
previous high tide mark unless a state certified sea turtle
monitoring program conducted by personnel with prior~
Page 17
May 16, 2001
experience and training in the necessary procedures and
possessing a valid Fish and Wildlife Conservation Commission
marine turtle permit has performed the daily inspection of the
beach.
CHAIRMAN WRAGE: Do I understand that to mean if no one
shows up that day, you can't rake the beach?
MR. GRABINSKI: Exactly. We would also agree with a
penalty structure that would suspend the hotel's ability to rake
the beach -- but only the ability to rake the beach and no other
permit -- for 70 days if that was violated.
This request is conceptually supported by The Conservancy
in a statement that they have issued today. I don't know if the
members of the Planning Commission have received it yet. But
The Conservancy, we have met with them several times and
discussed this issue, and they have indicated that at least on
this issue, they conceptually agree with the hotels.
The second issue I want to address --
COMMISSIONER RICHARDSON: Could we just pursue that to
the ground here?
COMMISSIONER RAUTIO: I just wanted you to say it really
slowly, what you just read. What was the quote? What's your --
MR. GRABINSKI: The revision?
COMMISSIONER RAUTIO: Yeah. 3.14--
MR. GRABINSKI: 3.14.6.1.
MS. MURRAY: Page 11.
COMMISSIONER RICHARDSON: Her question is, what is the
language change?
MR. GRABINSKI: The language -- we requested the language
be changed -- revised in its entirety to read as follows:
All beach raking and mechanical beach cleaning during sea turtle
nesting season, May 1st through October 31st of each year, shall
be confined to the area of beach below mean high water or
Page 18
May 16, 2001
previous high tide mark unless a state certified sea turtle
monitoring program conducted by personnel with prior
experience and training in the necessary procedures and
possessing a valid Fish and Wildlife Conservation Commission
marine turtle permit has performed a daily inspection of the
beach.
COMMISSIONER RICHARDSON: Doesn't that already say
that?
MR. GRABINSKI: No. The current language states that
during sea turtle nesting season -- if you look on the second and
third lines -- it shall be confined to the area of beach below mean
high water.
COMMISSIONER ABERNATHY: You want to do it all the way
from high water to the dune then. MR. GRABINSKI: Exactly.
COMMISSIONER ABERNATHY: After it's been inspected.
MR. GRABINSKI: Yes, as we were allowed to do last year.
COMMISSIONER RAUTIO: Are you going to give us that
piece of paper for the next time we have this --
MR. GRABINSKI: Yes, I am. I will give it all to you, each and
every one of you.
COMMISSIONER RICHARDSON: Just as a matter of
education, where does your ownership go to? Is it high water
mark or ...
MR. GRABINSKI: This is an overhead layout of the Ritz-
Carlton. The area you see shaded in yellow, which is the beach
-- here's the dune line. This is the erosion control line that was
established pursuant to state law when the beach renourishment
program -- beach renourishment was done in '95 and '96, I
believe. When that line was set, it established where the upland
property owners' property line was in relation to the shore.
As you can see, the Ritz-Carlton owns approximately 65 to
Page 19
May 16, 2001
75 feet of beach from the dune towards the shoreline. And what
they're basically asking to do is to be able to clean this portion of
the beach each morning after the turtle monitors have inspected.
They own it.
COMMISSIONER ABERNATHY: What is that line called? Not
coastal construction; it's the --
MR. GRABINSKI: No. It's called the erosion control line.
COMMISSIONER ABERNATHY: Erosion control. Okay.
Coastal construction
MR. GRABINSKI:
COMMISSIONER
is further inland.
Yes.
RAUTIO: I assume you've discussed at
length with staff this request?
MR. GRABINSKI: We -- actually, I haven't had a lot of time to
discuss it with staff due to the fact that we had always assumed
that we'd clarify the language and get this in when we were
going through our discussions last fall and starting this spring
simply because, you know, we didn't think it would be an issue
since they let us do it last year.
Needless to say, if you've been reading the papers, things
haven't been going too smoothly and amicably between the
hotels and some of the staff members. And, no, we have not had
any recent meetings regarding this. I'd, you know, be happy to
hear what staff has to say, and I'm sure you'll have questions for
them. But, again, I would question why they wouldn't support a
system now that they were willing to support and that worked a
year ago.
COMMISSIONER RICHARDSON: Mr. Chairman, is it
appropriate to go back to staff so we can get rid of --
CHAIRMAN WRAGE: The gentleman's been over his time,
but I wish he'd make his second point quickly. And then we'll
hear the rest of them, and we'll bring it all back to staff.
MR. GRABINSKI: Okay. The second issue that I'll -- I will
Page 20
May 16, 2001
touch on -- and it's a very big one and very significant for the
hotels -- is the 9 p.m. Deadline that is being proposed in various
sections of the code, in the beach events section as well as in
the CCSL variance section, for removal of all objects whatsoever
from the beach unless there's a variance for them.
The Ritz-Carlton has difficulty getting everything completely
cleared from the beach when it has larger beach parties.
In the past they have operated under a deadline of 9:30 to 10
p.m. Until December of this past year, there was no specific
deadline in the code. The language in the coastal construction
setback line variance section merely stated that any objects
placed on the beach had to be removed at the end of the day.
We are asking for language to be added to the code to give
the hotels some leeway; if -- if not an hour, at least a half hour,
for example, to 9:30 to clear the beach. It is not an attempt by
the hotels to be able to have a dinner party at ten o'clock at
night and to cover the beach with furniture and chairs and tables.
Last night the Ritz-Carlton had the largest beach party that
it's ever hosted, over 600 people. And they had their beach
cleared on time. It was burdensome. It negatively impacted
their business, and it negatively impacted the expectations of
their guests. But in light of what's been going on with these
amendments, they tried everything they could to get the beach
cleared in time, and they did it. They very quickly broke down
the tables and chairs, got the chairs off the beach, and got all of
the tables moved to the base of their service boardwalk, which is
new, and I'll show you where it is on this diagram.
This is the Ritz-Carlton's beach pavilion. Prior to this
boardwalk, they had three other boardwalks. They added a
fourth service boardwalk just this past winter. And the hotel can
easily get everything broken down. And if it's not off the beach
by nine p.m., at least have it stacked within a very small area at
Page 21
May 16, 2001
the base of their service boardwalk waiting, then, only to be
transported from the end of the boardwalk back to the main
hotel.
When I discussed this issue with Michael Simonik earlier
today on the telephone, you know, I said to him, "Did you go to
the beach last night? Did you see how quickly the Ritz had
everything broken down? Then they just had stuff at the end of
the boardwalk." He said, "Well, to me, you got the beach
cleared." Well, I don't think that's the way that county code
enforcement staff would read this language. I think that they
would enforce it and say, "You're not off the beach. That's a fine.
That's a penalty." Personally, we think that it's very
unreasonable. We've tried for the past year to work with
everyone and to come up with practical solutions.
What I'm suggesting is that, yes, by 9 p.m. The hotels have
to have everything broken down and removed, but they at least
be given some sort of work area or staging area -- you can even
require them to obtain another variance for it -- some staging
area right at the base of the service boardwalk. Or if they don't
have everything off by nine, they can at least have, you know, 10
or 12 tables stacked there at the base of the dune while their
staff is transporting and making its trips back and forth. I don't
think that that's an unreasonable request. And, again, this is --
this extended curfew under special circumstances is a point that
The Conservancy has come out and said that is -- is one of the
things that they conceptually agree upon.
I also want to talk about the amendments to the vehicles on
the beach language and what it allows and doesn't allow,
because basically it says you can use these ATVs in established
corridors. Okay. And, again, conceptually how that would work,
we have our service boardwalk here. County staff would
basically establish a corridor perpendicular to the shoreline. And
Page 22
May 16, 2001
all this is allowing the hotel to do is to drive an ATV, when it
needs to set up for a beach party, from the main hotel down the
service boardwalk and drive out on the beach far enough to drop
off the tables and chairs, turn the vehicle around, and get back
up to the hotel.
That's what all of the concern is all about. That's what all of
the fuss in the papers has been all about, about getting an ATV
far enough out on the sand to turn around. It's not going to be
able to drive down the beach this way. It's not going to be able
to drive north even 20 yards. It's allowing the hotels reasonable
use of their property. And, incidentally, as we discussed last fall,
the vehicle that they will be using compacts the beach less than
a walking human being.
COMMISSIONER ABERNATHY: I thought I read that these
vehicles could go up and down the beach seaward of the mean
high water line.
MR. GRABINSKI: If a hotel had enough coastline, shoreline,
they would get a second corridor. The Ritz would get a second
corridor at their south boardwalk. The south boardwalk is where
their towel stand is, and that would enable -- they would then
have the option of driving the ATV down below the mean high
water line -- and, again, once you get below that, you're not
concerned about sea turtle nests because they don't lay eggs
below the mean high water line -- and then drive down the beach,
and then get back up that corridor.
COMMISSIONER ABERNATHY: You can't do that under the
present --
MR. GRABINSKI: No, we cannot. But the language currently
states that all vehicles must be operated below the mean high
water line. Under the county code, anything with two wheels is a
vehicle -- anything with a wheel is a vehicle. The Ritz-Carlton
has some hand pushcarts, beach carts. They're not motorized.
Page 23
May 16, 2001
They're, like, big beach wagons with big inflatable tires. They
were given permits to use these pushcarts last summer at the
beginning of sea turtle season because they couldn't use an ATV
or anything else.
The language does not specify -- if you look at -- let me point
to the exact language for you so you can read along with me. If
you look at page 6, for example, Section 3.14.3.4.7, Exception 4.
It states "Except for designated corridors, all vehicles shall be
operated below mean high water." We would like that revised to
read "Except for designated corridors, all motorized vehicles" so
that the use of these pushcarts could continue to be allowed as
it was last year.
And as we have been advised at the beginning of this sea
turtle season, I phoned John Dunnuck and said to him, "What are
we going to do about these pushcarts? You let us use them last
year. Under the current code, we technically can't use them. I
thought we were going to revise the code to change it. Can we
use the pushcarts once the turtle monitors have come?" He said,
"Yes." So we've been using them now. We just want that
clarified in the language, and we think that staff will support it.
Again, this is a point that The Conservancy has conceptually
agreed with us on.
So so far we've covered raking and extended curfew for very
limited circumstances and the use of the pushcarts. All three of
these changes that we are requesting are reasonable. They do
not risk harm to the environment, and all three of these changes
were actually -- would actually allow activities that the Ritz was
allowed to do last year.
Before I get to the final issue, I want to touch now on the
coastal construction setback line variance revisions and, again,
it's related to this 9 p.m. Deadline. To be perfectly honest with
you, this is a bad law. It's a bad revision. And I want to explain
Page 24
May 16, 2001
to you why, if I can get the exact language in front of me and
walk you through this and what the practical effect is.
COMMISSIONER RAUTIO: Are you looking for page 4?
MR. GRABINSKI: Okay. We're on page 4. And it is
confusing, as Mr. Richardson pointed out. 3.13.7.3 is an
exemption from the requirement that you obtain a variance from
Collier County to place an object or a structure on the beach. It
does not apply just to commercial property or to hotel property.
It applies to the county coastline. It applies to all beaches.
3.13.7.3 is a very practical exemption. It's a very practical
provision. It basically states, okay, if you want to go to the
beach -- if you're a member of the public and you go to the beach
and you have a beach chair or some beach furniture or a towel or
a blanket or a cooler, if it's a small structure -- if it's an object
and it weighs under a hundred pounds, you don't need to get a
variance. You can put it on the beach; just remove it at the end
of the day.
Collier County will not be able to enforce a 9 p.m. deadline
fairly and evenly countywide. And if it did, I could -- I would love
to see the reaction of the public when code enforcement officers
started going to the beaches and handing out $500 tickets to
people who were sitting on the beach 20 minutes after sunset
with their chair and cooler enjoying the colors. It's a bad
amendment. We feel that it was created in good faith to sort of
be consistent with this curfew that they want to put on the
hotels, but you won't be able to enforce it. It'll be impossible to
enforce it fairly. If you do, the public will cry foul. It's extremely
unreasonable.
And if you look at the penalties, a second violation, a
thousand dollars; a third violation, five thousand and suspension
of the exemption. It's unreasonable. What this would mean is
that if the Ritz-Carlton, that has a variance to store its beach
Page 25
May 16, 2001
chairs and everything in designated areas at the end of the day --
if a guest of the hotel walks out to the beach at midnight or 2
a.m. For a midnight walk, pulls a chair off the stack, leaves it
laying on the beach, that's a violation. Okay.
If it happens a second or third time, a ten-day suspension.
To enforce the suspension, you'd have to go to the Ritz-Carlton
and say, "We're sorry. You can't allow your guests to put beach
chairs on the beach for the next ten days." Do you really want to
start asking the hotels to do this? Do you really want to start
sending county code enforcement officers to all of the beaches
at nine p.m. Asking people to leave? It won't work.
all.
COMMISSIONER RICHARDSON: Do you have a suggestion?
MR. GRABINSKI: Yeah. Don't approve that amendment at
COMMISSIONER RICHARDSON: In other words, just let
people -- let yourself put stuff out any time of the day or night?
MR. GRABINSKI: I think the -- the variance exception, you
should leave it in there. If you want to regulate the hotels so
that if they set up for a big party, that they get their equipment
off by a certain time, then fine. Regulate that. But be
reasonable. Last year the Ritz was not required to break down by
9 p.m. They can get everything cleared, and they can get
everything at least to the base of that boardwalk to a small
confined area by 9 p.m. And then finish removing it from the
beach there.
Again, certain members of the environmental community
that I think have been rather reasonable in this process have
said to me, "Well, Matt, I think you've cleared the beach if you've
done that much." We would like the code to reflect that because
I think that there's certain members of county staff and code
enforcement officers that like to read the code very strictly and
sometimes do not always grant leeway when it would be
Page 26
May 16, 2001
reasonable to do so.
COMMISSIONER RICHARDSON: Mr. Chairman, may I ask a
question of--just one question?
CHAIRMAN WRAGE: Very quickly. I've allowed that five
minutes to stretch into 20. And I hope you've made your point.
COMMISSIONER RICHARDSON: It seems to me that you
could solve at least one of your problems by yourself. That
boardwalk that you say you can -- you can get the tables and
stuff over there by nine o'clock, you've proven that you can do
that, why not -- why is that boardwalk sticking out so far? Why
don't you pull it back where it's not part of the problem and just
let the people carry the tables another 10 feet before they drop
them off? That's the boardwalk you've got extending out, that
top one?
MR. GRABINSKI: Yeah. I drew that in. It's not to scale. I'm
not sure I understand the question.
COMMISSIONER RICHARDSON: The issue you brought up is
that you can't get everything off -- you can get it congregated at
the end of the boardwalk that's still in a fragile area. Why not
move the boardwalk back where it's out of a fragile area, and
then we've solved the --
MR. GRABINSKI: The boardwalk is fixed. It's been built. It's
constructed. The boardwalk is not going anywhere. The point is
that you have to get --
COMMISSIONER RICHARDSON: Perhaps the regulations are
not going to go anywhere, then, either.
some help.
MS. MURRAY: Are you done, Matt?
Because Ed's a registered speaker.
I'm just trying to give you
Are you finished?
MR. GRABINSKI: I just would like to briefly -- and then Ed
can expand on our last point. Where everyone is in disagreement
on and the issue that is sort of preventing the hotel industry and
Page 27
May 16, 2001
the environmental community from holding hands and moving
forward with this is the issue of fines and penalties. We feel that
the proposed penalties are extremely unreasonable. Any
suspension of the beach events permit is very unreasonable.
You are basically suggesting that the hotels be shut down for a
period of anywhere from ten -- seven days, ten days to a month or
the remainder of sea turtle season.
Again, the Ritz-Carlton has parties next year on its beach
that it contracted for last year. And when you look at some of
these code requirements and the way that it would be very easy
for a minor and honest violation to occur and even be pinned on
the Ritz-Carlton when it was not even necessarily the
responsibility of the Ritz-Carlton, you're just being very
unreasonable. County staff is being very unreasonable to even
suggest such a penalty.
Again, a year ago we were told that it was not county's
intent to develop a process that was burdensome or which
negatively impacted our clients' business or the expectations of
our guests. These penalty provisions do just that.
CHAIRMAN WRAGE: Okay. Again, I allowed you a lot of
latitude. Could we have the next speaker, please. MS. MURRAY: Ed Staros.
MR. STAROS: Ladies and Gentlemen of the Commission, I'm
Ed Staros. I'm the managing director of the Ritz-Carlton. I'm
going to be as brief as possible to make up for a little extra time
that Matt spent up here.
I do want to touch on just that one issue. We use an ATV
with a little trailer to haul all the chairs and furniture back. The
width of the boardwalk is approximately 8 feet. And so to get the
ATV to drive through the boardwalk and having enough space,
you'd need to have a clear boardwalk in order to drive it down
there to make the roundabout to take the stuff off the beach.
Page 28
May 16, 2001
End of subject.
The issue I want to talk about is these penalties and so
forth. Let me make a hypothetical scenario. Three nights ago --
according to the way this is written, hypothetically, three nights
ago a guest of the hotel dragged a lounge chair from the pool and
-- even though I lock up the ones from the beach, the ones that
we have the variance for, I put a cable on them and so forth.
Let's say a couple walked down at midnight and dragged a chair
down to the beach, and in the morning it was found on the beach,
and I get my first violation and my $500 fine.
The following day, hypothetically, I pushed a cart that's no
bigger than this table with balloon wheels on it, with towels on it
to go to the towel station and get my thousand-dollar fine.
And on the third day, just for -- hypothetically, I took my
ATV, and I drove 10 feet off of my -- the area that has been
designated for me, and I get a $5,000 fine, and it shuts me down
for the next 30 days of not having a beach party. I think that's
unreasonable.
COMMISSIONER ABERNATHY: I think you were pretty
foolish on day two and day three.
MR. STAROS: Yeah. But I'm just saying -- I agree, but I'm
just trying to make my point. It seems odd to me -- Eric wrote a
wonderful article a couple of weeks ago. Here is -- now, take
those three hypothetical things. Eric wrote a wonderful article
on Wednesday, May 9th, about the DEP discusses fines for the
rocks on the beach. You probably all read that. Now, let's think
back. During that time there was tens of thousands of pounds of
rocks that were pumped on to the beaches of our county. Then it
was decided -- I was here. I wasn't the general manager then,
but I saw the--
COMMISSIONER ABERNATHY: I was chairman of the beach
committee.
Page 29
May 16, 2001
MR. STAROS'. And then there was a decision made to bury
these rocks, etc. Now, you tell me, ladies and gentlemen, what's
more harmful for the nesting turtle; a half a million pounds of
rocks buried under the sand, or a lounge chair that was left on
the beach? And by the way, the county is furious about a
potential $2,500 fine for half a million pounds of rocks.
CHAIRMAN WRAGE: Rocks are not the issue. What is your
suggestion?
MR. STAROS.' My suggestion is that I think the fines are
outrageous. I really believe that.
CHAIRMAN WRAGE: I got that point, but what's your
suggestion?
MR. STAROS: My suggestion is that we should not tie my --
the permit for the beach events into the penalty. The fine should
be a fine. I agree with that, and that's for you-all to figure out.
But for you to tell me that the party that I was going to have
tonight, hypothetically, I can't have, that was booked three years
ago and I contracted three years ago for that party that's coming
tonight that could be in the hundreds of thousands of dollars
worth of value to the hotel -- that person who I contracted that
with would have some legal ramifications against me if I revoked
his party the day of his party because I left a lounge chair out on
the beach last night.
COMMISSIONER ABERNATHY.' You're not worried about the
fines, then; you're worried about the suspension.
MR. STAROS: I think the suspension is totally outrageous,
and that's really my point. And I just want you to realize that
when you make your suggestions to the commission and so forth.
I really think that it's unrelated to what we're talking about. And
the thing that's really unrelated is that I could rake the beach
inappropriately, and it has nothing to do with the party, yet still
have my party permit revoked.
Page 30
May 16, 2001
COMMISSIONER RAUTIO: Have you had many violations
from the Ritz-Carlton?
MR. STAROS: Last year we -- we made a mistake on two
occasions on the beach raking. I'll tell you about both of them.
The first one we had a new employee that went down and raked
the beach. So when we -- then we called a meeting. We said,
"Now, how can we prevent this from ever happening again?" in a
proactive approach. Keep in mind this whole thing has been --
Ritz-Carlton has hired attorneys, when I came on board 20
months ago, to make sure that we wouldn't offend anybody.
That's how this all started.
So then we all decided -- we all gave a group hug, and we
decided that maybe it would be good if we had a logbook that
was logging the date and time of each time the beach was
inspected. And on one occasion after the logbook was put into
place, the date and the day were different. It was, like, today is,
what, the 15th of -- 16th of May? A Thursday, 16th of May. You
see what I'm saying? It wasn't -- the date and the day was
inappropriately logged and so forth. And so, therefore, the
employee goes down and sees that the day of the week was
already signed in, and it was the wrong date. Now we have
written in the book the date and the time -- the date and the day
on each occasion. So in the 180 days, we did have those two
violations.
The point of the matter I'm trying to make is that I've been
working diligently. I started on board on November 1st of 1999
right after the sea turtle season. I heard how sensitive it was for
Collier County. I hired attorneys to help me so we would not
make any mistakes, and somehow it has reached this fury of
fault and fines and so forth when it has been our entire -- it has
been our entire intent to do everything perfectly.
So I just leave you with that thought. I just would like you to
Page 31
May 16, 2001
consider not tying the beach permits into whatever the penalties
and fines are, whatever you decide is appropriate.
MS. MURRAY: Mr. Chairman, I need to clarify something. Mr.
Staros -- I'm not sure if he understands, but the way I read the
ordinance is that the fines are separate for each of the separate
types of permits that you can get. So, in other words, if you
violate the beach raking one day and then violate a structure or
chair the next, you're not up to your second violation. In other
words, if you violate the beach raking one time, that's your first
offense. If you violate the beach raking again, that's your second
offense under beach raking~ and you'd be penalized under beach
raking, not under chairs. Am I -- is that clear?
COMMISSIONER RAUTIO: I didn't understand that. I'm
sorry. Maybe I didn't read it closely enough.
CHAIRMAN WRAGE: All she did was raise your chances, I
think.
MS. MURRAY: Yes.
MS. ARNOLD: For the record, Michelle Arnold. I just wanted
to point out the hypothetical he gave you was not correct in that
we would not consider those three accumulative violations
because they were violations to three separate sections. The
hypothetical of the furniture on the beach that some of his
guests came out and took down would be the violation to that
exemption. And then the straying off of the corridor would be a
complete other section, so it wouldn't be the second violation,
and it would be the first violation for that particular section for
vehicle on the beach that is outside of the corridor.
We have, at the request of the hoteliers, separated the
violations so they pertain to the actual violation that's occurring.
We had -- initially at one point in this process, had just a set of
violations: The first violation; the second violation, this is a
consequence; and the third violation, there would be a separate
Page 32
May 16, 2001
consequence. So what we have since done is modified, and the
penalties, so to speak, fit the crime. And in one of the sections,
we've gone so far to distinguish between major violations and a
minor violation. And this, too, was done at the request of the
attorney for the Ritz.
MR. STAROS: I -- I still thought there was a tie-in between
the vehicle on the beach, the way I read it. MS. ARNOLD: I don't--
MR. STAROS.' Well, that's fine. Bottom line -- I'll just end in
30 seconds -- if the type of violations that we've been chatting
about for the last five minutes are -- should be $5,000 and should
prevent me from doing business and revoking my business
license to do business on the property that I own, then shame on
all of us. That's all I have to say. I just think that that is
inappropriate for -- I don't think that that should be part and
parcel of whatever the fine is, particularly in a situation where
we are diligently working and trying to make this a better place
to live for all of us.
I just want to mention one other small thing. Last night I
went down to the beach at 8:30 when we got the last piece of
furniture off the beach, and I looked up this beach right on the
end of Vanderbilt Beach Road and there was a lot of noise and
commotion going on. So I walked down there, and there was
about 27, to be exact, local people enjoying the beach with their
folding chairs and their coolers and so forth and so on. That was
at 8:30. So for the hell of it, I walked down there again at 9:30,
and they were still there, and I went home. So I called security
at 10:30, and I just said, "Just for the heck of it, just go down
there and just see if that party's still going on." At 10:30 it was.
It seems odd that I would be fined for something five minutes
over the hour, and then the locals would not be, in this particular
case.
Page 33
May 16, 2001
COMMISSIONER RAUTIO: And, Michelle, could you address
that? Am I really looking at something that's going to stop me
and some people from Oregon sitting on the beach at 10:30 at
night with a cooler and some chairs? Is this what I'm really
looking at?
MS. ARNOLD: As far as the furniture on the beach, yes. But
you and your friends with a cooler, no. We don't -- we're not
regulating people on the beach; we're regulating the -- what is
being addressed is the furniture on the beach.
COMMISSIONER RAUTIO: And how would I know that -- or
how would, say, these other people know that I can't bring that
on the beach and have it there after nine o'clock? How am I
going to know that or friends that are going to come visit me if I
don't happen to go down to the beach with them and tell them?
MS. ARNOLD: That's a good question. And in some of the
county parks, we have signs that note all of the regulations, and
this would be something that would be or should be added to the
regulations to inform the public what they are.
COMMISSIONER RAUTIO: In fairness to the hotels, I think
the public's going to have to follow the same type of thing. MR. STAROS: I agree with you.
MS. ARNOLD: And we have -- believe it or not, we do have
concerns that are raised to us outside of the hotels. These are
not regulations that we simply address with the hotels. There is -
- the same thing addresses -- the same problem exists for the
condominiums, for example, a lot of the condos on the beach
with residents that want to leave their beach chairs out on the
beach overnight. And we have to address those as well, and we
have been. We've been meeting with some of the condominium
associations. There's been variances that have been developed
for some of those condo associations to allow for, similar to the
Ritz, areas where they can place their furnitures (sic) in close
Page 34
May 16, 2001
proximity to the beach without having to, you know, take it up to
their condos on a nightly basis.
MR. STAROS: Let's just say -- if fair is going to be fair, then
the person that's on the beach at ten o'clock last night should
have gotten their first $500 fine. And then tonight, if they do it
again, they should get their $1,000 fine. And tomorrow night, if
they do it again, they should get their $5,000 fine. What's not fair
is that I have to revoke my business license. The individual
doesn't have a business license to revoke. What's fair for one is
fair for all.
MS. ARNOLD: Only in -- we're not asking to revoke their
business license. Only in the event that they violate a section of
the annual business -- I mean beach permit during sea turtle
nesting season is there a suspension of maximum, right now is
being proposed, one week. And my understanding is when they
book events there is a backup location for that particular event
in the event there's rain or something else, because during this
season is fast approaching the rainy season, as well.
CHAIRMAN WRAGE: So in effect --
MS. ARNOLD: We're not -- we're not taking away their
permit.
CHAIRMAN WRAGE: -- they've got three shots per season; is
that what you're telling me?
COMMISSIONER ABERNATHY: In each category.
CHAIRMAN WRAGE: In each category.
COMMISSIONER RAUTIO: And how many categories do we
have? Four? Five?
COMMISSIONER PEDONE: I have a question, Michelle. If I'm
at the Naples Beach Club Hotel on a Saturday night during the
summer and I'm listening to jazz and it's crowded on the green so
I take a chair that I brought with me and I put it out on the beach
and that goes on till 10 or 10:30, either I or the hotel could be
Page 35
May 16, 2001
fined?
MR. STAROS: That's correct, the way this is written.
MS. ARNOLD: It would be probably the hotel that's -- you
know, it's an event that's occurring right at their -- and it would
be the City of Naples, yes.
MR. STAROS: By the way, I just happened to flip through
your document. On page 12 does say that if I use any
mechanical equipment, etc., that it is tied into the annual events
activities, clear as a bell right there on page 12. So there's some
misunderstanding, I think it's on your part, the way I read this.
COMMISSIONER YOUNG: Do you have a recommendation as
to the exact wording that you would prefer to make a reasonable
case?
MR. GRABINSKI: Yeah. We would prefer that any language
dealing with the suspension -- whether it's for 7 days, 10 days, 70
days, or six months, any language that would result in the
suspension of the annual beach events permit be deleted from
the penalties provision of the code. And we are requesting -- we
are going to request that the county commission expressly add
language stating that the beach events permit may not be
suspended or revoked, at least without an extensive hearing
process, considering the extreme ramifications that this would
have on the hotel businesses.
And I also do want to add that these penalty provisions were
not added at the direction of the Board of County Commissioners.
They were not. Please check the record, if you want to do so.
COMMISSIONER RAUTIO: That was going to be my last
question, because we don't need to beat this up anymore tonight
really, because we get another chance at it. But Susan, maybe
Michelle, somebody said that the Board of County Commissioners
directed this. Maybe I didn't hear that right, to put the penalties
section in. Could you clarify that, please?
Page 36
May 16, 2001
MS. ARNOLD: I believe what happened was at the time that
the Board of County Commissioners was considering the annual
beach events permit provisions to the LDC there was a lot of
discussion, and they suggested staff monitor it and look to see
what, if any, penalties would apply. And that's what we've done
at this point. I mean, we -- we didn't have any opportunity to -- to
explore that at that particular amendment cycle.
COMMISSIONER RAUTIO: And so then this is what's been
created with that general direction from the Board of County
Commissioners?
MS. ARNOLD: Right.
COMMISSIONER RAUTIO: And do you have any feel that it's
really strict? What problem are we going to really solve here?
CHAIRMAN WRAGE: Well, the only comment I would make --
and I'm certainly on their side -- is it's a little bit like a speeding
ticket. If you can afford to drive a Mercedes-Benz, you probably
don't mind paying the fine, but it's the points that really bring it
close to home. To me, it's the money. And so I don't think you
can totally do away with the -- not taking the permit. I'm not sure
what the right language is. But, again, no disrespect, but a $500
fine to the Ritz-Carlton is a whole lot different than a $500 fine
for myself.
MR. STAROS: Well, how about a $500 fine for you driving 36
miles an hour on this road out front that's 35 miles an hour speed
limit? That's what I'm saying, is I've got a beach chair -- there's
not a turtle in sight. I've got a beach chair out there --
CHAIRMAN WRAGE: I said I'm on your side. I'm just trying
to make a point here that to some people $500 is a big deal; to
some people it's really not. And it's kind of like "It's only $500.
Do it anyway," I guess is what I'm really saying. And I'm not
accusing you of that, but I --
MR. STAROS: That would never happen.
Page 37
May 16, 2001
CHAIRMAN WRAGE: -- can see that happening. But I think
somewhere we're -- somebody's going to have to work a little
more on this.
COMMISSIONER BUDD: And on that point I think your
analogy bears a little more expression. It is appropriate to have
a fine if you're speeding, and what I hear them saying is they're
just upset when they take the car. That's excessive.
CHAIRMAN WRAGE: That's what I'm trying to say.
COMMISSIONER BUDD.' When you shut them down out of
business, that's excessive, but a fine would be appropriate. MR. STAROS: That's what we're saying.
COMMISSIONER RICHARDSON: Are there other registered
speakers?
MS. MURRAY: Yes, there is.
MR. STAROS: Thank you very much.
CHAIRMAN WRAGE: I would like to get to the speakers
before we address all these issues one at a time, please. MS. MURRAY: Ilene Barnett.
MS. BARNETT: Thank you for the opportunity. My name is
Ilene Barnett. I'm the director of environmental sciences at
VanEss and Dailer (phonetic), and I'm representing The Registry
Resort. We've been working with the county and other interested
parties for quite some time on this. I did have several points, but
I -- I would -- something had just come up, and I'd like to clarify it,
regarding the Board of County Commissioners' direction.
What happened last cycle was the board approved the beach
events permit 2.6.34. The Registry requested that the vehicle on
the beach codes be amended to allow vehicles during sea turtle
season, and the board said, upon hearing staff's comments, that
they wanted us to go and workshop that issue. But the issue of
fines during sea turtle season, for the beach events permit, did
not come up. The Board of County Commissioners unanimously
Page 38
May 16, 2001
approved that with no fines, sea turtle season or not.
Okay. Now I'd like to get back to what -- what I came here
to say, basically, was that The Registry is supporting this
document in concept; is very interested in trying to continue
their business during sea turtle season, which requires the
limited use of ATVs and handcarts and such. And we worked
very hard to come up with protective language -- working with
the county, The Conservancy, and other parties -- that would
allow protection of the sea turtles on the beaches during nesting
season while allowing The Registry and the other hotels to have
limited ATV use so they could set up their concession equipment,
bring the canoes and kayaks down to the pass after the beach
had been monitored, and continue raking the beach as they had
always done.
The language had clarified that beach raking should not
occur above the mean high water line, and The Registry is
agreeing with that. Although, you know, they would rather not
have that in there, but we're not going to fight it. The ma]or
problem that we see is with the penalty section, as the Ritz-
Carlton had stated. It's not the monetary fine; 500, 1,000, and
then $5,000 becomes very substantial. We're willing to pay it.
They have a commitment to try to do everything they can to be in
compliance every single day, but the suspension part of the
violation is very onerous to them.
We were working all along on the assumption that there
would be an appeals process, as other ordinances have. And we
just learned tonight that this doesn't have an appeal process. I
don't know if that's correct or not. We just assumed it would be
part of the ordinance, like all the others. So that's a question
that we have.
CHAIRMAN WRAGE: We'll ask that again at the end.
Okay?
Page 39
May 16, 2001
MS. BARNETT: Okay. One other item. The Registry always
had a question about the tire identification. One of the
concessionaires who has a very small operation brought that up
as a way of saying, "Well, if you're concerned that you don't know
who's making the tracks, then this is a way to identify it." The
Registry has a concern that there may be tracks left over from
the day before, and it looks like -- or somebody could say, "Well,
they went out in the morning before the sea turtle monitor," and
it was really from the day before.
And so it's just something that we're concerned about,
mainly because the violations are rather scary. You know, the
$500 fine for the first violation's not scary. But the monetary
fines if something is done wrong, they can live with that. But
suspending operations -- suspending them from the ability to put
beach chairs out for their guests or using the ATV to move
equipment is very alarming, so we're asking for consideration.
Thank you.
Do you have any questions for me?
CHAIRMAN WRAGE: Any questions?
COMMISSIONER RICHARDSON: Could I ask Ms. Student?
I've heard both of the applicants here say that we are only
supposed to consider items that were brought to the staff by the
BCC, and that kind of runs -- offends me. It would seem to me
that the staff could come up with items based on their own
experience without having to have --
MS. STUDENT: And I think that--
COMMISSIONER RICHARDSON: -- specific direction from
BCC.
MS. STUDENT: -- if staff finds a problem with an ordinance
and it may go beyond BCC direction, staff has the ability to do
that and draw it to the BCC attention at a duly advertised BCC
meeting.
Page 40
May 16, 2001
COMMISSIONER RICHARDSON: Thank you.
CHAIRMAN WRAGE: Okay.
MS. MURRAY: Albert. I can't read the first name, Rose or
Ron Albert.
MR. ALBERT: I think enough's been said. Thank you.
MS. MURRAY: Doug Finlay.
MR. FINLAY: Yes. I'm just here as a private citizen who is
on the beach just about every single morning of the week, all the
way up to Clam Pass most mornings. Most of what I want to say
is right here in these documents, so I don't know who I should
turn these over to.
CHAIRMAN WRAGE: You can certainly give them to
Mr. Budd. Understand that we will keep them, though.
MR. FINLAY: That's fine. One thing I do want to mention is
fairly current. For the first eight days of the sea turtle nesting
season when I was up at the Clam Pass Park, I noticed that The
Registry had stored their watercraft below the dune line. I called
Collier County code enforcement on this. After the first report I
made, the watercraft stayed below the dune line.
The second time I called Collier County codes enforcement,
another investigate -- the code enforcement officer went out
there again. And I followed up with her, and she said, "The
Registry has been ordered to take those watercraft behind the
dune line like they should." And I want to say she said "ordered."
I was rather amazed that eight days would go by considering all
the publicity that's been in the newspaper on this and that The
Registry would not have had those watercraft behind the dune
line on the very first day.
Since -- starting May 9th up through today, which is the 16th --
I've noticed heavy tire tracks on the beach, which I reported to
Collier County code enforcement, and they're investigating. But it
would indicate to me that they're using a motorized vehicle to remove
these watercraft from the dune line. And we're talking about a small
distance that may be, I don't know, 75, 150 feet. It's the same
distance that if I take my kayak to Horizon Park -- and I do have
Page 41
May 16, 2001
one. Or I've seen people come with, you know, wind surfers,
kayaks, small sailboats, sun skiffs, whatever. It's about the
same distance from Horizon Park down to the waterline that The
Registry would have to move their watercraft, and the private
citizen carries their watercraft. They're not allowed to take their
Cherokee or whatever it is to put their watercraft on the beach.
But we heard the manager of the Ritz mention fairness.
Yeah, we do need fairness. No condominium should be allowed
to leave beach chairs on the beach overnight. The Ritz shouldn't
be. No condominium -- my condominium shouldn't be during sea
turtle nesting season. There should be fairness. I can't use a
motor vehicle to put my kayak on the beach, and The Registry
should -- if they want to put their craft on the beach, they should
manually take that craft behind the dune line, especially right
now because my understanding is they were issued a special use
permit that expired on April 30th. They have no permit to use a
motorized vehicle to remove these watercraft until this
amendment is passed.
So it looks to me like the first eight days of sea turtle
nesting season they were blatantly breaking the county code by
leaving these watercraft below the dune line, and they are
currently blatantly breaking the county code by using what I
would assume is a motorized vehicle to remove these watercraft
from the beach.
But what I -- the important thing is I'm on this beach in the
predawn hours, and I see -- I mean, you hear a lot of rhetoric
going on around here. I see what goes on on these beaches
because I'm out there. And what I have seen in past years and
what I am seeing now of at least this resort -- and it's not just
this resort. You know, I see beach chairs just about every
morning on the beach; not necessarily from The Registry, but
they can be from a condominium. It isn't often, but it does
Page 42
May 16, 2001
happen. But I'm just saying I see what happens. I'm a citizen
who is out there.
And I know -- I know from the behavior of this resort that
fines are important, and the ability to suspend is important, too,
because just take a look at just this start of the turtle nesting
season and see what kind of behavior you've had. That's all I
have.
CHAIRMAN WRAGE: Thank you.
MS. MURRAY: David Guggenheim and then on deck Jessica
Koelsch. And that would be your last speaker.
MR. GUGGENHEIM: Good evening, Ladies and Gentlemen of
the Commission. For the record, David Guggenheim. I'm vice
president for conservation policy for the Center for Marine
Conservation in Washington, D.C. Until June of last year, some of
you might remember, I was president and CEO of The
Conservancy of Southwest Florida, and it's hard to stay away
from beautiful Southwest Florida.
I'm here really only to introduce our Florida marine wildlife
project manager who will give our specific comments. But by
way of that introduction, I did want to tell you a little bit about
the Center for Marine Conservation and why this issue was so
important to us. The Center for Marine Conservation was formed
nearly 29 years ago and is the leading national nonprofit
organization dedicated exclusively to protecting our oceans and
marine life.
Our headquarters is in Washington. We have offices here in
Florida based in St. Petersburg and a field office in Key West. We
also have offices in Alaska, California, New England, Virginia,
and the U.S. Virgin Islands. We have 120,000 members
nationwide with more than 10,000 here in Florida.
And over its 29-year history, much of our work has been
dedicated to protecting sea turtles worldwide. There are seven
Page 43
May 16, 2001
species of sea turtles, all of which are in trouble. Six species --
all six species of sea turtles that are found in U.S. Waters are
considered either threatened or endangered on the U.S.
Endangered Species Act.
Over the years the Center for Marine Conservation has
spearheaded efforts to limit long-line fishing practices that kill
sea turtles around the world. We have led efforts to secure turtle
excluder devices, also known as TEDs, on shrimp boats, that
allow sea turtles to escape from shrimp trawlers. We've been
involved in the designation of the Archie Carr National Wildlife
Refuge in Florida and involved in ongoing turtle conservation
efforts there, and we support The Conservancy of Southwest
Florida's ongoing sea turtle monitoring program.
The threats to sea turtles are vast around the world. They
include fishing, marine debris, pollution, beach and habitat
destruction, vehicle use, and hunting. We all share a
responsibility, both globally and locally, to ensure that our
actions, even those that might seem at first glance to be
insignificant, do not harm these beloved animals. The Center for
Marine Conservation continues to have serious concerns with the
proposal before you.
Jessica Koelsch, who is our Florida marine wildlife project
manager in our St. Petersburg office, will provide our specific
comments on this issue. I thank you for your time.
MS. KOELSCH: Had to get the local celebrity to do a little
plug for me, I guess. As David mentioned, I'm Jessica Koelsch
with the Center for Marine Conservation.
I've been involved in meetings with Collier County staff,
hotels, concessionaires, environmental organizations, and other
interested parties since February to discuss amending the
county code to allow limited use of ATVs on the beaches during
sea turtle nesting season, so I have been following this issue for
Page 44
May 16, 2001
a short period of time.
I have some prepared comments which I was going to be
sending to the EAC. They requested some written comments,
and I have a copy that I can leave with you folks as well.
Because there have been numerous recent iterations and
reiterations of these amendments, I might be missing some
point, so I might be revising them yet again, resubmitting.
One underlying issue which has not been addressed by any
versions of the proposed amendments regards the legality of
allowing any additional use of ATVs on the beach. And I'll go
slowly through this. Florida state law Section 161.58 prohibits
beach driving except that which was allowed prior to 1989 or
driving required for beach maintenance, emergency vehicles, or
environmental work. None of the ATV driving proposed in the
ordinances falls under these categories. We have serious
concerns that the proposed county ordinance violates the state
law,
Now, at these meetings and workshops we've brought this
up again and again, and the folks from the hotels have said, "No,
no. It's fine." In conversations with state DEP attorneys, we
asked them to -- or various folks, Patrick White from Collier
County, has asked the county attorneys to review the proposed
ordinances. And initially they said, no, they did not think that
these proposed ordinances would violate the state law.
However, they're taking a second look at it.
Our South CMC, the Caribbean Conservation Corporation,
and the Earth Justice legal counsel are concerned that additional
use of ATVs on Florida beaches does violate state statute. In
fact, Earth Justice has expressed that in their legal opinion the
ordinance is illegal and does violate state law. And our
impression is that as of right now the legal counsel for the state
agencies are currently reevaluating the ordinance for its
Page 45
May 16, 2001
compliance with state law. So that's something that you just
might want to put in the back of your -- you know, in the back of
your mind somewhere. "Wait a minute. Why are we even talking
about this because it might be violating the state law?" I just
want to throw that out there.
One of the big concerns with -- over this driving is that it
really sets a precedent. Any additional driving on the beach
violates or at least stretches the state law prohibiting beach
driving, and it really opens the door to additional driving by other
beach users, further increasing beach traffic. Why is it that the
hotels are allowed to drive an ATV on the beach? What's to stop
Mr. Budd or myself or anyone else from going out and driving an
ATV on the beach? So, again, that's something that I want to
mention.
Because it's still -- the issue is still unresolved, I want to
comment on the proposed amendments as written. The most
recent version of the amendments, we do find them to be
reasonable and provide some of the necessary safeguards for
nesting turtles. We commend the staff for adding strict penalties
for the violations, for establishing the ingress and egress
corridors, for having safeguards to the nests during the beach
events, and requiring removal of gear or impediments to nesting
turtles or hatchlings on the beach.
That's the whole issue about having the chairs and the
furniture on the beach, is that when turtles come up to nest on
the beach at night or when hatchlings emerge and are heading
for the water, if there are chairs left on the beach, oops, bump,
you know, nope, can't quite make it to the water. That's the big
deal about it.
Some of the other provisions that we'd like to suggest that
they consider including are training for operators of any ATVs.
Again, I'm not so sure that ATVs should be on the beach, but if
Page 46
May 16, 2001
they are, I think that operators should be trained. I think that on
these permits they should -- the approved driver should be named
and that there are going to need to be additional resources for
patrolling and enforcing these regulations.
Some of the previous versions of the amendments have
specified additional safeguards which I did not see in this most
recent version of the amendments, and I think that -- I feel
strongly that it should be reinserted. And maybe I'm just missing
it, but one of those stated that the use of vehicles, of ATVs,
should be limited to a one-time setup and removal of equipment
each day, meaning one of the uses of the ATVs was to bring
towels down to the towel station and then back again at the end
of the day.
The hotel had previously expressed concern that towels pile
up over the course of the day, and so they asked to be able to
make multiple trips. I see a couple of trips a day as probably not
being a problem. But as it's written now, it's completely omitted,
and basically, you know, there's no limit to the number of times
that hotels can use their ATVs on the beach each day. The --
under the reason, the rationale, for the amendments, it clearly
says "proposed amendments indicate limited vehicular use."
Well, right now there are no limits on the number of trips allowed
each day, so it's, in effect, not limited, at least in that aspect.
I think the county should also consider limiting the total
number of ATVs that could receive permits each year. Again,
once they open the door and allow two or three hotels and two or
three concessionaires to operate ATVs on the beach, what's to
limit every condo or homeowner on the beach to requesting a
vehicle permit as well?
Some of the other points that I wanted to comment on were
the penalties section. I feel that strict penalties for violations
during sea turtle nesting season should be included in the
Page 47
May 16, 2001
amendment. I feel leniency for the first violation is reasonable.
And, in fact, in light of conversations tonight, you know, the
tourists, the local, who just happens to have -- to have chairs on
the beach after nine o'clock, I don't think a warning is
unreasonable at all. I don't think that, you know, you and your
friends that are down from Michigan should be fined $500
necessarily.
But I feel that harsh penalties are strong motivation to
encourage compliance, and that's the whole point. The
violations (sic) are not there to make anybody's life miserable.
They're there to ensure compliance. Previous versions of the
amendment have proposed fines and suspension of various
limits. We would like to see reinstated the violation -- the third
violation to have a 60-day suspension of the beach permit.
And I think probably county staff will explain to you the
reason for that 60 days is because that's the incubation period
for a turtle nest. If a violation causes the misidentification or
unidentification of a turtle nest, that's how long it would take for
that nest to hatch. And so you wouldn't want to have activities
going on on that beach, whether it be setting up beach
equipment on top of -- on top of one of the nests -- I'm sorry. You
look confused.
COMMISSIONER RAUTIO: I'm sorry. But how would a chair
or two being left on the beach create a misinterpretation of
where a turtle nest was? I'm not --
MS. KOELSCH: Well, if a turtle lays a nest and it's not
marked and beach activities are continued to be allowed --
suppose a beach event or a chair or something is set up over a
nest when it's getting ready to hatch -- then it could impede the
actual hatching of the -- the emergence of the turtles.
COMMISSIONER RAUTIO: So the concept is that it was a
failure of the monitoring people to spot where that nest was --
Page 48
May 16, 2001
MS. KOELSCH: Because of--
COMMISSIONER RAUTIO: -- the night that they --
MS. KOELSCH: -- whatever the violation, yeah. And I think
that the county staff will probably touch on that a little bit.
Just some of the other -- some of the other points that I
wanted to make, The Conservancy is not here tonight, but I'm
sure that some of you did -- I hope that you received their
comments. And I don't want to speak on their behalf, but I noted
when I was reading it that some of the comments of the -- no?
You folks didn't receive them?
MS. MURRAY: We have it to hand out. And I'm just getting
ready to give it to you after Jessica speaks, and I wanted to call
your attention to a --
MS. KOELSCH: Some of the things that the hotels
mentioned that The Conservancy agreed with conceptually in
their letter they have changed their position because they found
out about actual state standards which are contrary to what they
had conceptually agreed to. So that's something that I think that
you will -- that you'll want to pay attention to.
Another point that we feel strongly about is the -- allowing
the beach raking on the area above the high tide line.
Again, if the -- if the Ritz wants to do the raking of their beaches
-- they talked about the responsible manner in which they rake --
that's fine. But, again, what's to stop every other hotel and
waterfront owner to be raking their beaches as well? This raking
activity is going to be going on in the area of the turtle nests,
marked nests presumably, but again, accidents occur. I think
the more activity, the more raking activity, other activity, you
have going on in the -- in the soft sand, if you will, above the high
tide line, the more chance you have of accidentally damaging a
sea turtle nest.
You are looking for suggestions. I guess one of the
Page 49
May 16, 2001
suggestions that -- one of the points that came to my mind was
talking about the ma]or versus minor infractions. That was
something that was just recently added to the amendment, and I
think that was an excellent idea that -- or it was an excellent
action that the county staff took because it does kind of clear up
some of the penalties that might be assigned for a lesser
infraction, and now it's been cubbyholed into that minor
infraction category.
Again, you're looking for suggestions about -- well,
everything, but one of the suggestions I thought of, the Ritz was
concerned about someone taking -- one of their guests taking
chairs and setting them up. Well, Ed talked about locking up the
chairs that are on the beach. Excellent idea. How about a sign
up by the pool that says, "Pool furniture is not allowed on the
beach"? That might, again, help minimize the chance of some of
these accidental violations as well.
Again, that's all the comments that I had. I can give you the
write-up, but I'll likely be --
COMMISSIONER RAUTIO: Two things. Yes. I'd like to see
your write-up on the next setup that we have, I guess for the 30th
of March -- excuse me, 30th of May. And the other one I wanted
to clarify, you said the state law that you were -- when you were
quoting was 161.587
MS. KOELSCH: Yes.
COMMISSIONER RAUTIO: That's the Florida Statute that
talks about the legality of riding on beaches?
MS. KOEI-SCH: Right. Exactly. And my understanding is
that state legal counsel, both with the DEP and the FWC, are
currently reevaluating that.
COMMISSIONER RAUTIO: You said reevaluating.
MS. KOELSCH: Right. That originally they had come out
with a statement -- and I'm sure almost all of us have files in our
Page 50
May 16, 2001
records -- where the DEP attorney indicated that the proposed
ordinances did not violate the state statute. But, like I said,
they're kind of taking a closer inspection. I think I'm -- this is
kind of second-, thirdhand information, but apparently originally
they had determined that use of the ATVs would not constitute
vehicular traffic, that the original ordinance was supposed to
prevent, like, what you have in Daytona Beach with people
driving their trucks up and down the beaches. However, again,
when does use of ATVs become -- when does the level of use
translate into vehicular traffic? It is pretty gray, and that's why
they're reevaluating it.
COMMISSIONER RAUTIO: So if they reevaluate, how soon
will we, A, have a reevaluation; and, B, will they change the
definitions and say ATVs are good guys or bad guys?
MS. KOELSCH: I have no idea.
COMMISSIONER RAUTIO: No idea.
MS. KOELSCH: No. I'm waiting for them to say more.
COMMISSIONER RAUTIO: Don't think it'll really impact us.
MS. KOELSCH: So would you like a copy of more or less
what I went over tonight?
CHAIRMAN WRAGE: Give that to Mr. Budd, please.
Are there any other speakers, Susan?
MS. MURRAY: No registered speakers. I just wanted to
point out the letter from The Conservancy. And I did want to
point out one thing real quick, and this was related to the
gentleman from the Ritz that spoke. They referenced that The
Conservancy supported the extension of the curfew for the
removal of the beach furniture, and I don't read that. That's No. 3
on The Conservancy's letter. It reads, to me, that The
Conservancy supports the state standard, which is a sunset
curfew.
MR. GRABINSKI: I'd like to clarify three points that I feel
Page 51
May 16, 2001
you've been -- unintentionally, perhaps, but you've been misled
OI1.
CHAIRMAN WRAGE: Don't mean to interrupt you, but I'm not
sure we're going to get any back-and-forth discussion here. And
before you speak, I'd ask you to sit down, please. I want to talk
to the commission just a little bit.
I don't know about all of you, but I've got a list of stuff here a
mile long that I've been through. This'Il be about 12 of these.
And if there's ever been an item that should be sent back to the
drawing board, that's -- we can discuss this stuff until one in the
morning. And I'm not sure we're the ones that will be sitting
around the round table, so to speak, hashing this out. I mean,
that's -- and I think it's an important issue.
You know, the ordinance that's there now has obviously
worked up to this point. It's not working. It needs to be
changed. But we've got some -- a lot of major issues, both the
hotel, The Conservancy, the environmental, and staff. I'm not
sure what the mechanism is, but I would certainly like to send
this back and say, "You-all need to sit down around the table and
come up with a better one than what's been presented to us."
MS. MURRAY: Well, I -- I'm not overly familiar with the
history of this entire thing, but I believe I can speak accurately in
that I think the two groups have met for a very extended period
of time, and I think what you're seeing in front of you is what
staff will support in terms of an amendment to these various
sections of the code.
And I think what you're coming down to is they've -- the
groups have agreed to disagree on certain points, and we've
agreed to present the points that staff supports to you today.
And then, of course, in this format or this setting, the other side
can present their objections as well. And I'm not sure that -- it's
totally up to you, but I'm not sure that you're going to come up
Page 52
May 16, 2001
with something entirely different. But we'd be happy to entertain
whatever direction you'd like to go.
COMMISSIONER RAUTIO: I think we were warned,
Commissioner Wrage, last year during the LDC period that we
were going to have some rather extensive changes to the sea
turtle sections and the beach driving and raking, etc., and it's
here. So maybe by our next hearing, we could have a sheet; one
side staff, one side hotels. And if the hotel people have to put
theirs that they don't agree with yours, that might be helpful.
But I do have a pretty long list here, and I have a lot of
concerns that I'm not sure we can hash out here. And I would
like to at least do my duty and provide something to the Board of
County Commissioners of what we can and can't accept here. So
I -- I think we can't really send it back.
MS. MURRAY: You don't have to decide tonight. Obviously,
you have one more meeting, and then you could decide then if
you want. If you just wanted to ask staff questions tonight --
CHAIRMAN WRAGE: Let me clarify. Staff stands on what
we're looking at; is that -- Michelle, do you have something to
say?
MS. ARNOLD: One of the questions that you asked was with
respect to the $500 penalty. I do have a suggestion where we
can say "up to $500" for that. And the reason why I'm stating
that is we currently have a citation ordinance that allows us to --
after giving sufficient warning and time to correct, in the event
that the violation occurs again, there is a stepping process. The
first violation after that is $105. The second violation after is
that is $250 and then 400 thereafter. So if we change that
language, it would give us the opportunity to kind of step up the
penalty. Rather than an outright $500 fine, you know, step up the
penalty but using that particular ordinance that already allows us
to -- to issue fines that way.
Page 53
May 16, 2001
COMMISSIONER ABERNATHY: I don't think any of us are
wedded to any particular scale of numbers, but the Draconian
penalty of suspending operations seems to have people hung up.
It seems to me if this is new out of the gate, that it would be
worth trying for a year without the suspension provision. And if it
turns out you have people who are taking $5,000 fines and
writing them off as a cost of business, then come back and
amend it to include that.
The other thing that occurs to me is we go round and round
on this nine o'clock time frame, and that seems to be tied
somehow to when the turtles start coming in. And I suspect that
the turtles are more motivated by sunset than they are by nine
o'clock. So maybe there's some sort of a scale of sunset is at a
given time; last light is a half hour after that; and give another
half hour to get things off the beach. In other words, sunset plus
an hour, and that would slide it into a different time at different
times of the year, and we would have a rational basis. Nine
o'clock is a long time after sunset in December.
MS. ARNOLD: I can't -- well, yeah. It's only during turtle
season. I can't address specifically the nine o'clock time frame,
and I think our natural resources department can. However, with
respect to the suspension, I think the natural resources
department may want to speak on the section -- 3.14.7 section
which has the severe suspensions of 70 days, and that is for
beach raking activity or any activity that adversely affects the
nests.
And the -- they can speak to that in that they believe if there
is something that affects the nests, there's a 70-day period for
hatching, that they don't want any activity to occur within that
area where the violation may have existed. So you -- you may
want to talk to the natural resources department with respect to
that section. And that's the only time period, really, for
Page 54
May 16, 2001
suspension that I think you may want to give more consideration.
It's others where it's a seven day and three day --
COMMISSIONER RICHARDSON: Thirty day.
MS. ARNOLD: I don't remember what they are now.
COMMISSIONER RICHARDSON: Page 3, for instance.
CHAIRMAN WRAGE: Well --
MS. ARNOLD: Seven day and thirty day.
CHAIRMAN WRAGE: -- I assume we're going forward, but
what -- and I heard the appeal process is -- what do other
ordinances do? Isn't there -- there should be an appeal of some
type.
MS. ARNOLD: Well, what they would be appealing is the
penalty, and if they-- I mean, if they're appealing the penalty,
they're also appealing that the violation didn't -- whether or not
the violation existed. Now, if they disagree, the process in my
department would be to go to the code enforcement board and
argue their point. And if they --
CHAIRMAN WRAGE: It's kind of moot because it only meets
once a month; right?
MS. ARNOLD: Yes. But the violation occurred and is
irreversible too. So it's not like a litter violation, for example,
that we photographed and they can clean up. It's, you know,
they left the chairs out and possibly damaged the path of the
turtles. I don't know.
CHAIRMAN WRAGE: But I did hear you say between now
and two weeks that maybe you'll have something a little better
on the penalty side?
MS. ARNOLD: My suggestion was the "up to $500" for those
minor infractions or those citation -- those sections that refer to,
you know, $500 penalty regardless of how many times it
occurred. And that would work nicely with our citation ordinance
already.
Page 55
May 16, 2001
COMMISSIONER RICHARDSON: Mr. Chairman, just on this
subject, I would have some concern about separating the linkage
between the fine and the suspension for the very reasons that
were mentioned, that you could just make a business decision to
go ahead and violate. I mean, it's only going to cost you $5,000,
and you're risking a hundred thousand dollars, by your own
testimony. So I can see that you might be motivated in a
particular event to say, "Hey, I got a contract. I'm going to run
this party to 11:30, and it's my third violation, but it's only going
to cost $5,000." So I would just be concerned that we would de-
link those.
CHAIRMAN WRAGE: Okay. Well, has anybody got any
comments to --
COMMISSIONER RAUTIO: I want to ask Michelle something.
CHAIRMAN WRAGE: -- Michelle while she's up here?
COMMISSIONER RAUTIO: Let me see. I think what we're
trying to do is protect the turtles getting to where they can nest.
We're trying to protect the nesting turtles, the nests while they
are ready and then while they hatch. MS. ARNOLD: Right.
COMMISSIONER RAUTIO: From code enforcement's review
of the last several years, have we had condominiums, have we
had hotel people, creating problems where turtle nests are
damaged and destroyed by their activities of, say, regular
activities or these special events? Do we have any list of
creating those problems? Maybe you can't answer that, but
you're code enforcement. Would natural resources tell us that?
MS. ARNOLD: I think natural resources probably could
answer with respect to damaging the nests and those type of
things more so than I can. I know that -- that we have had
violations in the past, and some of them have been minor.
COMMISSIONER ABERNATHY: Most of them lights, isn't it?
Page 56
May 16, 2001
COMMISSIONER RAUTIO: Commissioner Abernathy said
lights. I am concerned that we've got an incredible amount of
detail here to talk about things, but are we really destroying the
nests and all? And I certainly don't want impediments on the
beach leaving furniture behind and boats and those types of
things. Get the poor guys up there to do their nesting. But what
are we really protecting here? And from a code enforcement
standpoint if you can't answer that, I'd really like to hear from
natural resources.
MS. KRAUS: Hi. Maura Kraus, Collier County Natural
Resources. We had a presentation for the EAC, and we didn't
bring it with us today. However, I do have some data here. And
from 1997 to the year 2000, 7 percent of the false crawls, which
is a nonnesting emergence -- a turtle comes up intending to make
a nest, and there are conditions that cause it to go back in and
not nest, which is bad for the turtle because it could abort the
eggs at sea, or it could cause it to nest in an improper or
unsuitable nesting area.
Anyway, we have 7 percent that were attributed to
beachfront -- 7 percent of the false crawls between '97 and 2000
were attributed to beach furniture being left on the beach at
night.
COMMISSIONER RAUTIO: And that -- you say 7 percent.
What's the total? What are we taking 7 percent of? Two? Ten?
Twenty?
MS. KRAUS: Oh, no, no, no.
COMMISSIONER ABERNATHY: Thousands.
MS. KRAUS: Yeah. I don't have that data with me right now,
but I can have it for you for the next meeting.
COMMISSIONER RAUTIO: That would just be sort of
intriguing to know.
MS. KRAUS: And in addition to that, there has been a case
Page 57
May 16, 2001
where stakes that are marked -- where the nests that are marked
have been knocked down during beach events, and we've also
had a vehicle drive through a nest that was marked. So that --
that does occur. And if the stakes are moved, we don't have any
way of telling exactly where that nest was.
COMMISSIONER RAUTIO: Right. Unless somebody
witnessed it, they wouldn't know whether it was someone from
the hotel or someone from that beach event, or someone from
the general public's coming along to aggravate us.
MS. KRAUS: Yes. That's correct.
COMMISSIONER RAUTIO: Okay. Thank you.
CHAIRMAN WRAGE: Any questions of staff?
COMMISSIONER RICHARDSON: One last question. Michelle,
can I ask you another question? I was concerned that the Ritz-
Carlton apparently was given a verbal okay to violate our codes
by Mr. Dunnuck. Are you familiar with this, with that allegation,
said that you could use the carts to push out, even though it was
in violation of our code?
MS. ARNOLD: I'm not aware of that provision.
COMMISSIONER RICHARDSON: All right. They further said
in your department that they've regularly been violating the code
for the past year, and there's been kind of a tacit agreement that
you weren't going to enforce the code. Is that why we have the
new language coming to us for us to consider, so that we can get
rid of this? Because once you start violating the codes, you
know, I don't know where you stop.
MS. ARNOLD: I believe Mr. Grabinski indicated that they
were given express permission to rake on the beach. I'm not
sure who gave them that express permission. I know that I didn't
give them that express permission. I think there may have been
a misunderstanding that it was allowed to be done just because
maybe no one brought it to their attention that it was not
Page 58
May 16, 2001
permitted. It has always been -- to my knowledge, it has always
been prohibited to rake the beaches during sea turtle nesting
season above the mean high water line.
COMMISSIONER RICHARDSON: So it would be your position
that there's been no code violations brought to your attention
that you've ignored?
MS. ARNOLD: Right.
COMMISSIONER PEDONE: One question. I guess I need
someone from natural resources. But I know nothing about sea
turtles, and I am very far from being an environmentalist. But my
question is this: If you have somebody out there in the morning
and they're identifying the area where the sea turtle nests are,
what's wrong with -- after they've been identified, with somebody
raking the beach? Doesn't it make it smoother for these turtles to
get back and forth or -- or, you know, do they like the garbage?
MS. KRAUS: Sea turtles have been nesting on our beaches
for 190 million years, and we didn't have beach rakes back then.
COMMISSIONER PEDONE: No. But you had driftwood, and
you had everything else on the beach, and they seem to have
gotten around it at that point. There was nobody there cleaning
the beach or taking away driftwood at night so that they can
make it. So my question is, is that if you're monitoring it and you
know where they are and you block them off somehow so nobody
goes near them, what's the problem with cleaning the beach or
putting your chairs out in these other areas or taking them in and
piling them in one spot until you get them off the beach and onto
the boardwalk?
MS. KRAUS: Well, that's --with the permit process, that's
what's being allowed, is they're allowed to store them in certain
areas. The problem with the beach raking is that in the past
there have been violations, and the raking has occurred before
the monitoring has occurred. And if there was a nest there, any
Page 59
May 16, 2001
beach event where they're putting in an umbrella or something
could destroy a nest, and the county could be liable for that.
COMMISSIONER PEDONE: But if they're identifying the
nesting areas and they take precaution to make sure nobody
goes near that area, I mean short of mounting somebody there
with an Uzi -- you know, have some people stand there and -- you
know, they have plenty of people in their employ that could stand
there and say, "You can't come over here." Wouldn't that be
sufficient?
MS. KRAUS: I don't quite understand your question. I'm
sorry.
COMMISSIONER PEDONE: Okay. If you have a beach -- an
identified nesting area -- MS. KRAUS: Yes.
COMMISSIONER PEDONE: -- okay, and you don't want the
hotel guest or the hotel personnel near that area; correct? Am I
right?
MS. KRAUS: The whole -- the whole county shoreline is a
potential nesting area.
COMMISSIONER PEDONE: Yeah. But you've identified the
areas that the nests are in; right?
MS. KRAUS: We could have missed them. If raking has
occurred or a storm event, a lot of rain or something, or if there's
a lightning storm -- and we can't be out monitoring during a
lightning storm. So a morning monitoring might not occur until
after the storm has been completed, and the storm could be
heavy enough to wipe away the evidence that --
COMMISSIONER PEDONE: So, in other words, then the
whole beach is actually a nesting area, and then people walking
on that beach could also cause a problem if they happened to
walk on turtle nests that you don't know about that are midway
between the dunes and the waterline.
Page 60
May 16, 2001
MS. KRAUS: Could -- possibly could.
MS. MURRAY: I think what I heard Maura say at the last
meeting was that the idea was to minimize the amount of activity
on the beach as much as possible for nests that they may have
missed in their regular monitoring due to other conditions. Is
that correct, Maura?
MR. LORENZ: For the record, Bill Lorenz, natural resources
director. And picking up what Susan said, the whole attempt
here is to minimize the risk to the turtles since they are such an
endangered and threatened species. Our current code does not
allow raking of the beach above mean high water during turtle
nesting season.
When we were asked to try to work with the hoteliers to
try to develop some type of system so that they could get out on
the beach with their ATVs to help move the furniture off the
beach -- and that was the point. We wanted to get the furniture
off the beach. So we would allow some degree of a corridor that
would be set up along the beach, as a result of our monitors
monitoring where the nests are, such that we could get furniture
off the beach. That was -- that was a -- that was the priority.
Every time, however, we allow activity on the beach,
we've got increased risk to the sea turtles. Somebody walking
along the beach is a lot less risk than a raker day in, day out over
the whole beach. So there again, we're minimizing the risk.
Even though we -- even though we're monitoring the nests, there
could be some nests that we miss, and therefore we don't want
to have raking during the nesting season. And that is our -- that's
our current code right now.
COMMISSIONER RAUTIO: One other quick question since
you're standing up here. Isn't there a program on the East Coast,
you know South Beach and North Beach -- doesn't North Beach
have an area where they actually go and find the turtle nests and
Page 61
May 16, 2001
move them and keep them in a compound-type area and then
watch for them to hatch and go forward? I remember two years
ago or so chatting to this very nice lifeguard person who
explained that to me because we were so surprised to be
walking on the beach and find these blobs in actually a fenced
area. And they seemed to have really great success. But is that
a sea turtle program that's approved by the DEP and the state?
MR. LORENZ: Let me have Maura speak to the philosophy of
relocating nests.
MS. KRAUS: I know that over in Broward County and Dade
County in the past they've permitted to have a sea turtle
hatchery because of lighting problems that they couldn't get
under control with AIA and things like that. They are being very
scrutinized by the state right now. The state is moving away
from hatcheries. That's putting all your eggs in one basket.
And there's been a lot of studies that have proven that
hatcheries are not good for sea turtles. It could change their
incubation, success or sex ratios. When turtles are released
from a hatchery, the fish have become accustomed to knowing
where these hatcheries are, and they're immediately predated
(sic} upon by the fish. And the state is moving away from
hatcheries and has ordered the various counties to get their
lighting problems under control so they can get away from the
hatcheries. They're not good.
COMMISSIONER RAUTIO: But the program does exist, and
it's being evaluated.
COMMISSIONER ABERNATHY: It's been evaluated.
COMMISSIONER RAUTIO: And they say no?
MS. KRAUS: Well, I'm not sure if Dade County has a
hatchery right now. I know that Broward County, they were
supposed to be moving away from the hatchery, and they're
being encouraged to leave more of their nests in site, in situ,
Page 62
May 16, 2001
where they were placed. And just by relocating a nest in itself,
you're decreasing the hatching success of that nest, and it could
be harmful to, you know, the sea turtles.
COMMISSIONER RAUTIO: And is there something other than
stakes they could use to protect those nests that are there? I
mean, isn't there something more substantial you can put so
they're not going to run over them or walk over them?
MS. KRAUS: We do -- we do have screens on nests that are -
- have the potential of being predated (sic), which is actually just
south of the Ritz. The Pelican Bay area we do screen the nests.
But that wouldn't really help. If the screen could be removed or
it could be run over, that wouldn't really protect the --
COMMISSIONER RAUTIO: Or one of those turtles snuck up
there and had a nest that you guys didn't find when the monitors
came on the beach; right? Is that what you're concerned about?
MS. KRAUS: That could happen, especially during a storm
event, you know, where we cannot be on the beach to do it at the
appropriate time.
COMMISSIONER RAUTIO: Thank you.
CHAIRMAN WRAGE: I need to apologize to the gentleman
from the Ritz-Carlton. I cut him off, and I want him to go ahead
and give him -- allow him a few minutes for some rebuttal. The
only thing I would encourage is most of us have --
MR. GRABINSKI: I will be very brief.
CHAIRMAN WRAGE: -- short memories up here.
MR. GRABINSKI: I will be very brief.
CHAIRMAN WRAGE: Center in on your main point.
MR. GRABINSKI: There are three points that I feel that
you've been misled on, and I want to clarify; first of all, with
regards to the issue of whether or not this conflicts with state
law. Granted, I'm sure that there are various environmental
organizations that -- that have their own personal opinions over
Page 63
May 16, 2001
whether or not this conflicts with a particular provision of the
Florida Statutes 161.58 that they're focusing in on. When you
read it in its entirety, it is clear that it does not.
I did, last summer when this issue was first raised,
obtain a letter from the office of general counsel of the DEP
stating that the amendments that we passed last December were
not in conflict with state law. I, again -- when we met for one of
the first times to discuss the amendments for sea turtle season,
it was actually very frustrating because we were trying to ask
the environmental community, "What are the concerns you want
to address? What is the specific harm that you're concerned
with about our proposed use?"
And the first and only issue that they brought up right
away was, again, that this conflicts with state law. In other
words, they weren't trying to explain a specific harm with the
limited use of the ATVs and handcarts that we were proposing.
They were trying to block it on a technicality. I again wrote to
the office of general counsel of the DEP and got another letter,
and I will be sending you copies of all the letters and the legal
memos on this subject. So I just wanted to sort of calm you
down a little bit regarding that issue.
Again, Jessica pointed out that they had a concern over
this amendment creating a precedent and opening up beach
driving for everyone, and I believe she said what's to keep me or
another member of the public or someone who lives on the beach
from getting a vehicle on the beach permit or a permit to drive
their ATV. I'll explain to you how that will not happen under
these amendments.
The amendments for the limited use of ATVs or
pushcarts apply specifically to hotel beach events, beach
concessionaires, and routine hotel beach functions. They apply
to activities that are conducted pursuant to the annual beach
Page 64
May 16, 2001
events permit. In other words, you have to have an annual beach
events permit first in order to -- for these coprovisions to apply to
you. The annual beach events permit applies to commercial
beachfront property owners. It does not apply to residential
beachfront property owners. It does not apply to multifamily
beachfront property owners.
And then with regards to the comments with respect to
The Conservancy and what The Conservancy does and doesn't
support in their position, you're going to get The Conservancy's
letter. But as far as what they said, first, I'll touch on the two
easy ones. The beach raking, they said we are comfortable with
language allowing for a single beach raking above the mean high
water line providing that morning beach monitors have checked
the beach for turtle activity, period. That's what the letter says.
With respect to handcarts and dollies, The Conservancy
is also comfortable with language that does not restrict the use
of handcarts and dollies with inflatable tires, above the mean
high water line, after the daily marine turtle nest survey has been
conducted, period.
With respect to the curfew, the letter states, we also
conceptually agreed, past tense, to allow the hoteliers to extend
the curfew from 9 to 10 provided that they would hire a qualified
biologist to monitor the events after 9 p.m. The state standards
under special events calls for a sunset curfew. We have been
informed that the state has on occasion allowed a one-hour
extension past sunset. The latest extension is 8:24 at the end of
June, which will allow the event to continue until 9:24 on that
date. We are now concurring with the state standard for the
sunset curfew with possible special allowances for a one-hour
extension.
Okay. First of all, I want to address the issue of
state standards. State standards are attached to state permits
Page 65
May 16, 2001
issued by the DEP. The DEP has the authority and the discretion
on a case-by-case basis to make exceptions for their conditions,
to eliminate conditions, to add conditions, etc., on a case-by-
case basis particular to a particular event or a particular piece of
property. We are confident that we can work with the DEP in
establishing a reasonable deadline to get the beach cleared,
especially to get it cleared to the point where they are at least --
the tables and chairs are at the foot of the boardwalk. Okay.
Adding a -- a specific deadline to the county code will frustrate
our ability to negotiate and cooperate with the DEP.
Second, the reason why I said we were still conceptually
in agreement with The Conservancy on that point is because, like
I said, we don't have any problem getting the beach broken down
and set up at the edge of the boardwalk on the beach by 9 p.m.
Michael Simonik of The Conservancy said to me on the phone
today, '~Nell, I think you've met it then. You've cleared the
beach." Well, no, we haven't because not everything's off the
beach. And we would like something in the code to give us
leeway to at least have everything broken down and cleared,
sitting at the end of the service boardwalk.
MS. BARNETT: Can I have a chance for rebuttal?
CHAIRMAN WRAGE: Just a moment, ma'am. I give you a
moment.
MS. BARNETT: Ilene Barnett for the record. Just -- this is an
appeal to you-all. Please don't put this on hold. We've
workshopped this to death, and all parties are not going to agree,
and staff is supporting language. We have the opportunity to
bring forth our issues, and some members of the environmental
communities are bringing forth theirs. We have been to the table
with them lots of times, and we've just not been able to get any
further than we've gotten today. So by tabling this, what will
happen is the hotel operators are being damaged. They're the
Page 66
May 16, 2001
only ones that are being hurt by this.
We were sent back to the drawing board at the last EAC
and DSAC meeting. It hurts the hotels that are trying to go
forward in good faith. So I'm just asking that you not ask that
this be tabled. What we're talking about with ATVs are vehicles
with 10 PSI of ground pressure. That is less than or equal to the
ground pressure of a human being, just to keep it in perspective.
Thank you.
MR. ALBEIT:
Registry Resort.
Good evening. Ron Albeit, manager at The
I gave up my opportunity to speak, but I thought
it would be appropriate at this point, since we have a concerned
citizen that has mentioned some of our violations which has been
brought to our attention.
The watercraft issue, on May 1st, the first day of
turtle season, I went down to the beach to see where we were.
There was beach craft there. When I asked our beach attendant
manager who has been working for The Registry Resort for over
15 years -- goes back with Maura Kraus and her staff of actually
monitoring the beach with Maura. They would call county
services, let them know there's a turtle nest here and help them
and assist. And they've worked that way for a long time. There's
a very good relationship.
So Paul's comments to me, our beach manager, was that
we have always kept the beach craft out there. I said, you know,
"We need to check. There's been some changes in the
language." Well, actually, allowing more things to happen
because the language was very restrictive before. "Please call
Maura.' They passed each other phone calls for a number of
days and didn't actually -- Maura actually happened to call me on
another issue, and I asked her, "By the way, have you hooked up
with Paul?" "No."
And I immediately addressed the issue about that was
Page 67
May 16, 2001
why he was trying to get in touch with her. At that point she
said, "No. We've got to move the equipment off the beach." The
next day the equipment was off the beach, and that might have
taken seven days. We --
CHAIRMAN WRAGE:
do.
MR. ALBEIT: Okay.
CHAIRMAN WRAGE:
in on the point.
MR. ALBEIT: Okay.
business at Clam Pass.
And I understand what you're trying to
But I just--
But that's -- I want to -- let's zero back
The point is that we have operated this
Sixty-five to seventy percent of the
people that come to Clam Pass are county residents to enjoy
Clam Pass. We are the operators of that facility. Seventy
percent of the people use our kayaks, our canoes, and our
recreational facilities to go in the backwater. And for 16 years
they've been operating year-round using the ATV machine to
bring our equipment down to the pass. And as we did in the last
development code cycle, we asked, and we said we'd be back
here to ask, that we be able to conduct our business year-round.
And that's all I wanted to say.
And I thank you, and I agree with Ilene Barnett, who
also we've contracted with to help us from an environmental
standpoint. So with the Ritz-Carlton and the legal counsel, we
have an environmental -- we've been trying to work together, and
hopefully we can move forward because we have businesses to
operate. Thank you.
CHAIRMAN WRAGE: Any final comments?
MS. MURRAY: I think Barbara Burgeson just has a quick
handout for your information that you can take with you and
consider for your next meeting.
CHAIRMAN WRAGE: Do you have some comments, or just
handing something out?
Page 68
May 16, 2001
MS. BURGESON: I just wanted to bring this to your
attention. The Ritz-Carlton had probably one of their largest
events on the beach just yesterday. They had 700 people out
there for lunch. Staff went out and took pictures so that we
could show you what an event like that would look like on the
beach and to let you know that it was set up without the use of
vehicles. There weren't any violations in terms of what the
current code has right now. And those -- those tables were there
for lunch for 700 and for dinner for 700.
And when I went back out to the beach in the evening at
eight o'clock, by that point they had all manually been removed
from the beach, and everything was taken care of, no violations.
And so just so that you understand, this event was conducted for
a very large number with over -- at least a hundred tables. We
counted 96 at the time. They were still not completely set up at
lunchtime. But they were removed off the beach by 8 p.m.
CHAIRMAN WRAGE: Thank you. Okay. Final comments?
COMMISSIONER RICHARDSON: Mr. Chairman, I'd just like to
indicate my support for the staff work on this. And in particular I
appreciate the work that she did to -- Susan did to summarize
this in a way so we could see what was significant versus what
was not significant, and I think it's helped sharpen the focus for
us on the issues. And I believe that the turtles have to be spoken
for, and I think they're honestly trying to do this. There may be
some tweaking we have to do around the edges, but for the most
part, I'm pleased with the strength of those changes.
CHAIRMAN WRAGE: Any other comments?
I think the court reporter and I need a break for about
five minutes. Thank you.
(A break was held.}
CHAIRMAN WRAGE: All right. Okay. We are back in order.
Before we leave the turtles for one last time, anybody got any
Page 69
May 16, 2001
comments to -- recommendations to Susan before -- between now
and the two weeks?
COMMISSIONER ABERNATHY: I have a question. Are we
supposed to vote on this thing tonight? MS. STUDENT: No.
MS. MURRAY: Not tonight.
COMMISSIONER ABERNATHY: Would it be purely for --
CHAIRMAN WRAGE: But I'm asking if you want to send
some recommendations to staff. I got the impression Susan
stands on what she's got, but if you need to make a comment or
a recommendation, now's the time.
COMMISSIONER ABERNATHY: I'll make a couple. You have
a better chance of getting my vote if you drop the suspension
penalties and just make it monetary, at least with the
understanding that'll be for the first year. And I would like for
you to take a look at the rationale for the nine o'clock curfew and
see if it isn't related to sunset and switch it to that. Those are
the two problem areas that I see.
COMMISSIONER PEDONE: And I have to agree with
Commissioner Abernathy. I think a one-year test of just the fine,
and then if we see it being abused, then hit with a penalty that's
even more strict or harsher than the one you're putting into --
trying to push now.
COMMISSIONER RICHARDSON: Which would include the
consideration of suspension of events.
COMMISSIONER PEDONE: After one year.
COMMISSIONER RICHARDSON: Okay. I could go for that.
COMMISSIONER RAUTIO: And on page 6 where they were
talking about 3.14.3.4.7, on the Item No. 4 about the designated
corridors using the vehicles, I think motorized seems reasonable
to insert in there, and I'd like you to look at that a little more
closely. And if possible, can we get a clarification on who can or
Page 70
May 16, 2001
can't use pushcarts on the beach?
COMMISSIONER RICHARDSON: I think we should keep the
beach raking, though, since that has been such a sensitive issue,
that that should be left in and not weakened along with
everything else.
COMMISSIONER RAUTIO: And, of course, I think they
volunteered, didn't natural resources, the turtle section,
monitoring, that you will provide us some more statistics about
what has or hasn't happened to the various nests? Just sort of a
breakdown of that would be helpful for the next time.
COMMISSIONER YOUNG: And when you give us those
statistics, I would be extremely interested in how many
occurrences are in front of condos, in front of private areas, and
in front of hotels. It would be interesting just to get an idea of
the geographical areas.
COMMISSIONER RAUTIO: That would be very nice to have.
CHAIRMAN WRAGE: And with that, Susan, are we going
back to square one, or do you have another issue you want to
bring forward?
MS. MURRAY: Well, the next most popular issue is the RT
zoning district and the floor area ratio discussions. So I'd
planned on presenting that very briefly if you would like to do
that.
COMMISSIONER PEDONE: Which?
CHAIRMAN WRAGE: I see no objection. Let's do that. Which
page is that?
MS. MURRAY: That's actually a separate handout. It was
not anticipated that we were going to speak about this tonight,
and we are.
COMMISSIONER ABERNATHY'. What is it?
MS. MURRAY: It's a four-page memo.
COMMISSIONER ABERNATHY: What's the subject?
Page 71
May 16, 2001
MS. MURRAY.' It says to change to amend Section 2.2.8.4.5
to revise FARs for hotels in the resort tourist zoning district.
COMMISSIONER ABERNATHY: And this is the first we've
seen of it?
MS. MURRAY: That's correct.
(A discussion was held off the record.)
CHAIRMAN WRAGE: Susan, why are we getting this as a
handout rather than prior to the meeting?
MS. MURRAY: My apologies. There was some confusion on
the part of staff as to whether or not we were actually going to
discuss this at this meeting. And one staff thought that we were
not going to bring the amendment forward during this cycle, and
another staff did. So the decision was made to bring it forward
knowing that this was your first public hearing, and you would
have some time to contemplate.
COMMISSIONER RAUTIO: This must relate to the Vanderbilt
Beach?
MS. MURRAY: I believe that most of the speakers that are
here are probably from that area. I know that they've had
opposition to this in the past.
CHAIRMAN WRAGE: Although there's some displeasure
about not having it prior, we will go forward.
MS. MURRAY: This is just an option as well. You could also
consider, if you wish, going back to the old method of 26 units
per acre. So I just wanted to bring that to your attention. The
purpose of this amendment really is to try to revise the floor area
ratio that was adopted on June 16th of the year 2000 to reduce
the volume -- that's what a floor area ratio basically creates or
regulates, is the volume of space -- to reduce that volume to a
point at which you're more closely tied to the 26 units per acre,
which was the regulatory mechanism in place prior to June 16th,
2000. That's really the purpose of the -- the first amendment
Page 72
May 16, 2001
here, to 2.2.8.4.5. Would you like me to elaborate a little bit more
on that, or is that sufficient?
CHAIRMAN WRAGE: Please.
MS. MURRAY: Just from a historical perspective, when we --
the floor area ratio basically produces, as I said, the total amount
of floor area for all the floors of the building or the total volume
of space that can be developed on a particular parcel of land.
The number of rental rooms within that volume then really
becomes a function of the design and size of the room. So
obviously, if you have larger rooms, you have less units.
And this is typically the way building space is
regulated for a commercial development. In fact, in our land
development code, we had reserved a section to regulate it in
this manner. And we're not really sure why previously it was
regulated in the dwelling unit fashion, but I guess at one point in
time somebody determined that that was an appropriate
mechanism. But typically your commercial space is regulated by
floor area ratio.
So staff explored looking at a floor area ratio that was
comparable to what was permitted out -- under 26 units per acre.
And in doing that they did some research locally for -- with a few
hotels, most of which are in the City of Naples, that had
developed under the 26 units per acre, and they had floor area
ratios of a .5 or less. And then two hotels in the City of Naples
had FARs of .77 and .71, but they produced greater than 26 units
per acre. So that's kind of the rationale we used to try to
determine this number.
And I think what we've seen, once this number has been
implemented, the current .60 for hotels, motels, and time-share
facilities was a little bit high, and we are getting significant more
dwelling units and for -- the same for the resort hotels. So this is
basically an adjustment to that FAR to try to bring us back down
Page 73
May 16, 200t
to a 26-units-per-acre type of density or intensity.
COMMISSIONER RAUTIO: This was what we looked at at
the previous land development --
MS. MURRAY: Right. This was adopted in June of 2000, so
you would have looked at it at the first cycle of 2000, last year.
COMMISSIONER RAUTIO: And I don't think we fully
understood what the implication was, even though I didn't know
how to ask the question "What would this do to a particularly
small piece of property on the beachfront?' And now I certainly
do know. So you're suggesting that it be changed?
MS. MURRAY: Right. And that change is also coupled with --
and I'll lump to the next proposed amendment, but it's attached
to this memo -- the definition section of Division 6.3. So it's
actually the third page of your memo. The definitions for a
destination resort hotel, what we've done here is we've actually
clarified what a -- what a resort hotel includes, where it needs to
be located, and have included some regulations to require that
not less than 25 percent of the gross floor area would be devoted
to common usage or support services areas because when you
start adding those areas into the calculation of an FAR, obviously
you get less dwelling unit space because you're required, as a
destination resort hotel, to have these common areas. And I
think that was an oversight as well the last time, that it just
really wasn't clear, what a destination resort hotel entailed,
some of the characteristics of it. So these are kind of coupled
together, the result of the issue we've had.
COMMISSIONER RAUTIO: By putting this new rationale to
the property in question that's created such controversy, does it
change?
MS. MURRAY: I'm sorry?
COMMISSIONER RAUTIO: How dramatically does the
property in controversy right now --
Page 74
May 16, 2001
MS. STUDENT: Excuse me, Commissioner. I would -- this
matter's in litigation.
COMMISSIONER RAUTIO: So we can't talk about it?
MS. STUDENT: You can talk about the amendment, but
when you get to the subject property, it makes me a little bit
nervous because it is in litigation.
COMMISSIONER RICHARDSON: Mr. Chairman, may I ask this
question, then? Come at it slightly different. Does this specify
what the minimum acreage that -- to which the FAR could be
applied?
MS. MURRAY: Well, that would be applied under the RT
zoning district, which is currently I acre minimum.
COMMISSIONER RICHARDSON: So it wouldn't be possible --
MS. MURRAY: To answer your question, no. This
amendment --
COMMISSIONER RICHARDSON: And so it wouldn't be
possible to have an FAR apply to a property that was less than 1
acre?
MS. STUDENT: It would under -- you need to explain lots of
record, Susan. There's a savings clause, if you will, for
nonconforming lots of record in the land code. And the reason
it's there is one time way back when when things were platted
and subdivided, the lots were smaller, and the zoning at that time
would have allowed development on those smaller lots.
Sometime later the lot size, minimum size requirements, were
changed.
Because it's in a platted and subdivided area where the
lots have been sold and no opportunity to combine, the county
has to do something to grandfather those smaller lots in so they
can be developed because if the county doesn't do that, the
county has to take out its checkbook and buy those lots from
those individuals because they would never be able to build on
Page 75
May 16, 2001
them because they could not meet the minimum lot
requirements.
So it's a savings provision to permit old platted,
subdivided areas to still develop, even though their lots don't
meet the minimum areas. Failing that, as I previously said, the
county would have to buy those lots from those people because
you would have a regulatory or inverse condemnation and a
taking, and that's why it's there.
COMMISSIONER RICHARDSON: Let me ask this question,
then. If you had I acre -- this is a hypothetical -- and you applied
last year's code to it, FAR, how many units would you get versus
how many units you would get out of--
MS. MURRAY: It depends on the size of the units.
That's the permitting factor. If you have -- COMMISSIONER RICHARDSON: Let's say you're going to
build a hotel.
MS. MURRAY: I'm not a math person, so I'm not going to
stand up here and try to calculate this. But if you -- the larger the
rooms, the less the units; the smaller the rooms, the more the
units. It's not a per-unit regulation; it's a space regulation. So it
allows some flexibility.
Another thing I'd like to point out is if this amendment
was passed specifically for-- to the definition section, this also
requires that -- a destination resort hotel to be located on the
Gulf of Mexico. So in the case of the Beachcomber, for example,
that property is located on the bay side so that a destination
resort hotel would not be permitted there.
COMMISSIONER RAUTIO: Question for our attorney. So we
can discuss this change, even though there's litigation?
MS. STUDENT: This change and the basis for it. But I would
caution you that we are in litigation, and anything you say up
here can be probably used in the litigation about that specific
Page 76
May 16, 2001
property.
COMMISSIONER RICHARDSON: We're not on the record.
You told us that before.
CHAIRMAN WRAGE: We're on the record.
COMMISSIONER RICHARDSON: You told us that there was
no testimony taken here today by oath.
MS. STUDENT: That's -- this -- Commissioner Richardson,
that's an entirely different matter. This is a legislative matter.
Anything that's said here about a specific matter that's in
litigation doesn't have anything do with if this is a quasi-judicial
body or not. It may be something that could come back to haunt
the county. So I'm cautioning the commission not to mention
specifics because it can damage our case and damage my client.
So,,,
COMMISSIONER RICHARDSON: Well, we are your -- can I
ask this? You've gone from .60 to .50, these numbers here.
Could you give us some sort of a chart, maybe, next time that
would show a iljustrative workup and show us what would
happen if this number were even lower?
MS. MURRAY: Again, it depends on the size, but I can -- I
could use various examples.
COMMISSIONER RICHARDSON: But assuming there must be
something bigger than a shoe box here they're going to build.
MS. MURRAY: That's no problem. I could get you some
examples.
COMMISSIONER RICHARDSON: That would help me.
Because otherwise I'm really inclined to stick with the units per
acre because that's something I can count.
MS. MURRAY: That's always an option. This is, again, a
staff attempt at trying to utilize the floor area ratio of calculation
but bring it down to -- closer to the 26 units per acre, which was
approved before.
Page 77
May 16, 2001
I also have registered speakers, about five of them, if
you'd like to hear from them if you're done questioning me.
CHAIRMAN WRAGE: Okay. Speakers.
MS. MURRAY: Diane Ketcham.
MS. KETCHAM: Good evening. My name is Diane Ketcham,
and I live on Vanderbilt Beach. I am a board member of the
Vanderbilt Beach and Bay Association, but I'm speaking tonight
as the head of the Save Vanderbilt Beach Association, an
organization representing hundreds of homeowners that live
around Vanderbilt Beach.
Our group was formed because of the changes that were
made last year to the land development code. To put it
succinctly, the county messed up big time. The changes your
commission recommended and the board of commissioners then
approved to bring in a floor area ratio allowed the density on
Gulfshore Drive to more than triple, this in a coastal high hazard
area. In one specific hotel project which we are fighting, the
changes you made last June allowed the density to increase by
nine times.
I could tell you how this increased density would be
disastrous to the character of our neighborhood, what it would
do to the traffic which is already a nightmare on a narrow two-
lane road. I could tell you what it would do to the sewage
problem, already overflowing, or to the water problem,
underflowing as it is.
But not only does this increase in density threaten the
infrastructure, it threatens our lives. By increasing density in a
coastal high hazard area, you have endangered the lives of those
who live on the beach. We have only one evacuation route, the
narrow two-lane Gulfshore Drive. By approving increased density
on this road, you are threatening our safety. We will do whatever
it takes to protect our families and our community, but we are
Page 78
May 16, 2001
hopeful that you will listen to us tonight, to the people who live
on Gulfshore Drive; and understand, many do live there.
A brief statement about RT zoning. Besides Marco
Island, which now has its own government, Gulfshore Drive is the
only area of Collier County zoned RT, residential tourist; not
resort tourist that you see on your packet, but it's residential
tourist. In the future when you hear the words 'RT, residential
tourist," think Gulfshore Drive and think of the thousands of
people who live there. Although it may be zoned residential
tourist, the road is 90 percent residential.
So what do the people of Gulfshore Drive want? They
want you to eliminate the floor area ratio that you put in last
year. Do not vote for this amended floor area ratio formula. The
planning department couldn't tell you last year what kind of
density their formula would give. Well, we can. We've had
something and it's disastrous. This new one would be the same.
Last year's changes, we believe, were made to help the
expansion of La Playa. We don't know why this year they would
also amend them, but we don't believe it would help us, the
residents of Gulfshore Drive.
We want you to restore the land development code to
the way it was for 26 years. We need you to get rid of the floor
area ratio, go back to a maximum of 26 hotel units an acre, but
also make sure you go back to the size of the hotel rooms being
a maximum of 500 square feet in 80 percent of the hotels. We
can cite the sections specifically that would eliminate it. And
there are two very important ones, and they go together; not only
the 26 units per acre, but the size of the hotel units.
Because what's happened on Gulfshore Drive is the
developers -- and they've already done this -- are saying they are
building a hotel when they're actually building condominiums.
The code says only 16 condominium units an acre, but 26 hotel
Page 79
May 16, 2001
units an acre would be allowed. To get increased density, the
developer says he's building a hotel but instead sells the units as
a condo. If you don't limit the size of the hotel units, you will
have more developers saying they're building hotels when they're
actually building condos. If the developer wants to build a new
concept, a large unit hotel, condo, whatever he wants to call it,
residential hotel, make its density be the same as time-shares
and condos, 16 units an acre.
Please listen to us, the residents of Vanderbilt Beach.
We weren't here last year because we had no idea this was going
on, but believe me we now know whenever we hear anything RT,
we will be here. Please allow us to have a say in our destiny. I
thank you. And if you have any questions, I'd be glad to answer
them.
CHAIRMAN WRAGE: Thank you.
MS. MURRAY: Joe Connolly.
MR. CONNOLLY: For the record, my name is Joe Connolly,
and I'm also a director of the Vanderbilt Beach and Bay
Association and associated with the Save Vanderbilt Beach
Association. And I want to -- the changes that are being
recommended on the .5, .7 that you asked a question you never
got an answer, it's like doing you-know-what in the Gulf. To get
back to a 26 per acre, floor ratio should be about .4 or .45. But
the thing that needs to be done is throw the damn floor area ratio
out and go back to the 26 units per acre which your
comprehensive plan supports. Now, there was a problem with
the La Playa, and the La Playa's problem got solved by all this
shenanigans and the .8. They are building their thing, but we
don't want any more of that. Witness what has happened with
the Beachcomber.
The second thing on the destination resort hotel, you
know, I -- the KISS principle, keep it simple, stupid, a hotel is a
Page 80
May 16, 2001
hotel. And why they come up with this destination resort hotel is
for one reason: They call it intensity, and it's to increase density.
Why should they be able to say destination means more density?
It does not. And we ask you to repeal that also. Thank you very
much.
CHAIRMAN WRAGE: Thank you. Next speaker.
MS. MURRAY: Carol Wright. After Carol will be Chuck
Brooke.
MS. WRIGHT: Good evening. My name is Carol Wright, and
I'm president of the Vanderbilt Beach and Bay, representing over
700 members. We are gravely concerned about the changes that
were made to the land development code last June of 2000. If
left standing, they will have a detrimental effect on Vanderbilt
Beach. Our road, which is I mile long, has just been narrowed.
Sewage has backed up at existing buildings into parking lots,
and this is a coastal high hazard area where density should be
decreased.
We are so disappointed here today to see the only
change to try to appease us is to change the FAR from .8 to .7. I
cannot believe this. If you approve this, you certainly are letting
the public know that you're not working for us. I thank you very
much.
CHAIRMAN WRAGE: Next speaker.
MS. MURRAY.' Chuck Brooke. After Chuck Brooke is B. J.
Boyer. If you want to stand up just behind Chuck.
MR. BROOKE: I'm Chuck Brooke. I'm a resident of Gulfshore
Drive. I've been there for about 12 years, and I've seen the
changes that have happened. I urge you to go back to where we
were before June 16th, 2000. Looking at this, I share the same
perplexity as I think I heard in some of your voices. I don't know
what it means to go to .6 or to .5 FAR. I sure as beck know what
it means to put up a ten-story hotel with 68 units and to take a
Page 81
May 16, 2001
quick guess at what the proliferation of that type of hotel can do
to Vanderbilt Beach. And I won't bore you with the details of
what can happen to Vanderbilt Beach if you do get 10, 15 of
those types of hotels on Vanderbilt Beach.
So, therefore, when you say let's change it from .6 and
.8 to .5 and .7, that doesn't tell me anything. I don't know. What
does that mean? That instead of having a hotel that right now
can be 10 stories high with 68 units, does that mean it's now 8
stories with 54 units? I mean, what does it really mean? And
unless you have an idea of what the impact is, I don't see how
you can do your ]ob in terms of protecting the citizens, the future
development of that area.
And, therefore, until you have that clarity -- which I
think you had with the existing codes before June 26th (sic),
2000 -- I would urge you not to approve this and to go back to
where we were before. Thank you.
CHAIRMAN WRAGE: Thank you. Next speaker.
MS. MURRAY: B.J. Boyer. And on deck, Bruce Anderson.
MS. BOYER: Good evening. My name is B. J. Boyer, and I
am an officer of Vanderbilt Beach Property Owners' Association;
however, I'm here tonight on my own accord because I do live in
the Vanderbilt area. It seems that our area is being inundated
with hotels, condominiums, parking lots, extended boat docks,
narrowing roads. You're smothering us.
I haven't been here that long in Naples. I've been here
about seven years. I didn't get involved until just last year. I
don't know who changes these laws. I don't know why they're
changed. I don't know why you're hurting the people that have
lived here for so long. You're lessening the value of our property
and increasing the value of developers' properties or whatever.
You know, it's this Harris Act or whatever. Everybody is afraid of
being sued because this person has the right to make the most
Page 82
May 16, 2001
money on their land. Well, what happened to the people that
have been here for so long? You know, we don't need ours
ruined either.
We have asked for an overlay study in the Vanderbilt
area. I don't know where it is. I don't know who we asked. I
thought it was a commissioner. We haven't heard anything back
yet. We need an overlay study just like they have in Golden Gate,
just like they have in Goodland, just like they have in other
sections of Naples. If this was done, we wouldn't be constantly
here, taking your time, stamping out fires, and getting nowhere.
And I agree with whatever everyone else said. What they said I
agree with. Thank you.
CHAIRMAN WRAGE: Thank you.
MS. MURRAY.' Your last speaker is Bruce Anderson.
MR. ANDERSON: Good evening, Mr. Chairman,
Commissioners. For the record, my name is Bruce Anderson,
here on behalf of oppressed private property owners. I have a
couple of questions for staff. Number one, has there been any
examination by the staff of whether and how many hotels will be
made nonconforming by this amendment? MS. MURRAY: Not to my awareness.
CHAIRMAN WRAGE: Please ask the questions of us, and
we'll ask them the questions.
MR. ANDERSON: Oh, sorry.
CHAIRMAN WRAGE: Okay? Is that okay?
MR. ANDERSON: That's fine. Mr. Chairman, I would ask that
you ask the staff to provide that information to you at your
second hearing so that you fully understand the implications of
this feel-good amendment.
The second question I have, Mr. Chairman, which I would
ask you to share with your staff is, why isn't this same
amendment being made to the C-4 zoning district, which also
Page 83
May 16, 2001
allows hotels and also has the same FARs as the RT district?
Shouldn't we be consistent?
And my last question that I do need to ask for the
record is, is this amendment aimed at the Beachcomber Hotel?
COMMISSIONER RICHARDSON: Mr. Chairman, could I ask
Mr. Anderson a question?
CHAIRMAN WRAGE: Sure.
COMMISSIONER RICHARDSON: I'm not clear from what you
said whether you're for or against the floor area ratios. I couldn't
decipher that from what you --
MR. ANDERSON: I didn't take a position, so you did decipher
it. I didn't take one. I merely asked some questions.
COMMISSIONER RICHARDSON: All right. The question what
units -- what hotels would be made nonconforming, I don't quite
see how that fits into this discussion.
MR. ANDERSON: Okay. You are proposing to change the
standards.
COMMISSIONER RICHARDSON: The standard which was,
what, the floor area ratio numbers? MR. ANDERSON: Yes, sir.
COMMISSIONER RICHARDSON: Which were just put into
effect last year which presumably put a bunch of things in
nonconformance at that time. I mean, it -- you know, the code
moves on. So I don't understand the import of your question to
find out what these new numbers are going to mean to past
events.
MR. ANDERSON: If a hotel is made nonconforming by this
code amendment, if they go to make some change or expansion
to the hotel, then they would be required to come in for a change
of nonconformity petition or an increase in nonconformity
petition, which they would not otherwise be required to do.
COMMISSIONER RICHARDSON: But presumably with the
Page 84
May 16, 2001
code that was passed last year, we created a bunch of those
already, and I didn't hear you there bringing up this issue.
MR. ANDERSON: I don't know that you did create any
nonconformities last year because my recollection was that staff
carefully examined existing hotels, both in the city and the
county, in order to justify the FAR numbers that they came up
with. And I did ask that question, or someone did, about
nonconformities last year.
COMMISSIONER RICHARDSON: Well, I'm not persuaded that
the codes can't create nonconformity. If that's -- it seems to me
code changes will change things. That's the nature of life,
Bruce.
MR. ANDERSON: Yes. I understand that. But I'm asking,
has anybody taken a real-life look at the impacts of this change?
Yes, I know nonconformities get created. That's not the
question.
COMMISSIONER RICHARDSON: Okay. Well, perhaps staff
understands your question. I'm not sure.
MS. MURRAY: I'm going to look to you-all for direction. If
you're interested in that information, I'd be happy to try to --
MR. ANDERSON: Thank you very much and have a good
evening.
COMMISSIONER RAUTIO: I'm interested. And I guess I'm
interested in being able to have in front of me next time what the
language was before we changed it to the floor area ratio to
make sure that I'm not misunderstanding this change to what we
changed before. Because I think I understand that if-- if we
accept or reject -- if we reject this particular change, it stays the
way we changed it last year.
MS. MURRAY: That's correct.
COMMISSIONER RAUTIO: Okay. So that really doesn't do
anything different.
Page 85
May 16, 2001
MS. MURRAY.' You could certainly make the
recommendation that you don't approve this and what you would
like to see -- and we could carry that forward to the board -- is
you would like to revert back to the 26 units per acre which was
in effect prior to the change in June of 2000.
COMMISSIONER RAUTIO: Okay. And some of the
information about nonconforming or perhaps the C-4 district
would help us know whether we want to accept this change,
stick with the old one, or perhaps go back. So my personal
request is to have a sheet of paper attached that shows me what
the old LDC language was, and perhaps then I can make a -- shall
we say, maybe, an intelligent decision this time. Thank you.
CHAIRMAN WRAGE: Go ahead.
COMMISSIONER YOUNG: I'd like to follow up on what you
are saying. I find this very hard to comprehend. I know I'm a
newcomer, but I don't understand the reason for going beyond
good, honest English and call a hotel a hotel and -- and calling
this an FAR. Why not maintain the same derivation of words that
we all understand and comprehend so that when we do -- when
we are faced with this decision, we won't make any really
terrible mistake?
MS. MURRAY.' I think what I'm hearing is -- unfortunately,
like I said, at 3:30 this afternoon, we were told we were going to
do this, and I would prefer to present, probably, some more
information. FAR is a difficult concept, I know, if you don't deal
with it. It's even difficult for me. And perhaps some examples,
as Commissioner Rautio suggested, and some impacts, a chart,
as Mr. Richardson requested.
CHAIRMAN WRAGE: Because I heard what Mar]orie said,
and I heard what Mr. Anderson said. And the question I would
like to ask is, where is this coming from at this 11th hour? And,
frankly, I don't know why, but it would make sense to me, why
Page 86
May 16, 2001
not C-4 too? I mean, this is obviously specifically designed for
something.
MS. MURRAY: I think, in part, as a result of the public's
reaction to last year's change. Of course, the RT zoning district
allows residential land uses as well; whereas, your C-4 is strictly
commercial, so your impacts are going to be a little bit different.
COMMISSIONER YOUNG: But isn't that all the more reason
not to hand us this incomprehensible piece of paper at the very
last minute and we haven't had a chance to study it or--
MS. MURRAY: Again, I apologize for that. That's not my
style, I think as you know. And I did the best I could within the
time frame, and I'd be happy to give you any more information I
can that'll make it more clear for you so you can make an
informed decision.
COMMISSIONER RAUTIO: And I just have one other point of
clarification. This says resort tourist, and one of the speakers,
Ms. Ketcham, referred to residential tourist. Am I missing
something?
MS. MURRAY: It's residential tourist. That's correct. I think
probably the word "resort" got switched in with the destination
resort hotel.
COMMISSIONER RAUTIO: So truly it should say "residential
tourist district" on our first page. MS. MURRAY: Correct.
COMMISSIONER RICHARDSON: Mr. Chairman, just in follow-
up, I guess I'm -- besides the clarifications we've asked for, just
for understanding, I think I'm also hearing -- at least I would like
to see you bring back the language that we could send forward
that would revert to the change before the change; that is, back
to the 26 units per acre. I'd like to see that language so we'd
have a chance to reflect that.
But just as a matter of small education here, I heard
Page 87
May 16, 2001
one of the speakers say that you could have a 26-unit-per-acre
building go up as a hotel and then it be converted into a
condominium; whereas, if it went in as a condominium to begin
with, it could only have 16 units per acre. Where's the level of
code enforcement on that? How do we keep that from happening
if that's a way to skirt the intent of the 26 versus 167
MS. MURRAY: Well, one way we could do that, and what we
would do, is when an individual submits for building permits, our
planning staff reviews all of our commercial building permits for
compliance with zoning regulations. So it would likely be caught
at that point if it was not caught before.
COMMISSIONER RICHARDSON: But it might start out, you
know, legitimately as a 26-unit operation and then sell off as a
condominium a year later, and they've beat the system. Is there
any way to safeguard against that?
MS. MURRAY: I understand what you're saying. I just don't
think I have an answer for your question.
Marjorie, do you have any --
MS. STUDENT: I think it's -- I think, Commissioner, what you
said, it becomes an enforcement issue.
CHAIRMAN WRAGE: I was going to say, the original permit
is still in effect. They just can't get up in the morning and decide
to switch from a lumberyard to a dog kennel. Same thing.
MS. MURRAY: That's correct. But I think it -- it could
happen. But, again, there's still the catch in place where they
would have to probably do some type of interior renovation. That
may be one -- I don't think I'm answering your question too well.
To be honest with you, I don't think I really know the answer.
MS. STUDENT: I think it's an enforcement issue. And I don't
know if you have code enforcement people there, and, you know,
seeking to register and then saying, "This isn't a hotel anymore;
it's a" -- I mean, but I think it's an enforcement issue.
Page 88
May 16, 2001
COMMISSIONER RAUTIO: I would think perhaps the sale of
a piece of property from residential -- excuse me, a -- yes -- a
residential tourist unit in a hotel and suddenly it becomes a
condominium, there's a whole lot of legal things that have to
happen that somebody would notice that, gee, they're now
condominiums. And I would bet someone in the area would say
something.
MS. KETCHAM: And someone in the area has said
something. May I just interject? Because I see that there's a
little bit of leeway here. This builder that we're concerned about
has already done this once on Gulfshore Drive. We have
something that was built as a hotel and is now a condominium.
It was done within the last three years. And we have discussed
with the county code enforcement regarding it. It has already
happened, and that is our concern.
And that is why, if I may say, at this point the
developer's attorney and us probably agree that we should go
back to 26 units, but that's when we part company. They want
the 26 units because, we believe, they're going to then say
they're building a hotel when they're building a condo, and they'll
put 24 units on this one piece of property.
That's why it's so important for us to have the second
thing that was eliminated, which was the size of the hotel rooms.
If this developer wants to put a Ramada Inn next to where I live,
unfortunately that's allowed right now. If it was 24 units, it's
allowed. It's something we need to deal with in the future, but it
would be allowed. But to build a 24-unit condo, that's not
allowed. And if we get back to say, "Okay, 26 hotel units per
acre" and then we're a little vague as to what a hotel is, you're
going to get 24 condo units, because we already have something
like that on Gulfshore Drive. So that's -- the importance to us is
getting the code back exactly the way it was.
Page 89
May 16, 2001
CHAIRMAN WRAGE: We heard you the first time.
MS. STUDENT: For the record, I just want to clarify
something that's in our comp plan. Hotels and motels are
considered commercial, and so they don't have a density
assigned to them in the general part of the comp plan. There is a
business park district in the comp plan that does have a density
assigned for hotels, and I think it's 26 units an acre. But
generally in the comp plan there is not. They're considered
commercial uses, and there's no maximum intensity standard in
the comp plan for commercial uses.
However, for residential dwelling units, there is the
maximum of four dwelling units an acre in the comp plan. The
reason RT district has the 16-acre (sic) standard is because it
went through zoning reevaluation. That's what it was before we
did our comp plan and took the density down in 1989. And
because it was improved property and that whole area was
improved, it passed through zoning reevaluation at 16.
I'm not trying to further confuse you, and if I have the
history wrong, planning can advise. But that's my understanding
of the history of it, and I'm just trying to frame it for you so you
understand it a little better, why there's a density problem with
residential dwelling units, and there isn't necessarily with hotels,
because hotels are not residential dwelling units.
COMMISSIONER RICHARDSON: So the hotel can have more
than 167 Is that what you're --
MS. STUDENT: I beg your pardon?
COMMISSIONER RICHARDSON: The hotel can have more
than 167
MS. STUDENT: Yeah. Because it's not considered a
residential dwelling unit. And even under the old standard, you
could have 26 an acre.
CHAIRMAN WRAGE: Okay. Final questions? Can we get
Page 90
May 16, 2001
into our regular agenda, or do you have some more speakers?
MS. MURRAY'- Actually, I have one registered speaker for
the regular agenda, and the hearing examiner might be
something you would have questions on. Would you like to go to
that first? That's part of your regular agenda, and then the rest I
think are relatively minimal.
CHAIRMAN WRAGE: Well, we've messed the schedule up to
this point. We might as well do it again.
MS. MURRAY: Fred Reischl's going to do that presentation.
CHAIRMAN WRAGE: Let the record show Mr. Pedone has
left the building.
MR. REISCHL: Fred Reischl, planning services. I had passed
out, earlier in the evening, the hearing examiner time line. Before
I get into that, though, just a little bit about it. This amendment
was directed by the Board of County Commissioners with the
idea that there would be certain benefits to the board and the
people of Collier County.
The first one would be that the ins -- beginning of a
hearing examiner program would allow the Board of County
Commissioners, the Planning Commission, and the Environmental
Advisory Counsel to concentrate more on policy issues, days like
today, growth management plan changes and land development
code changes.
And the second important part is that it would regulate
ex parte communication. From speaking to people about this
subject, there is a perception that there's not a level playing
field, that lobbyists have more of an access to the Board of
County Commissioners, to the Planning Commission, to the EAC,
than the average citizen who's not a lobbyist or an attorney. This
is a perception. I'm not stating that that's true, but it's a
perception that I've heard.
With this hearing examiner ordinance in effect -- and
Page 91
May 16, 2001
I've spoken to people in Lee County -- you cannot speak to the
hearing examiner outside of the sunshine. Every communication
to the hearing examiner is in a forum like this. What this
proposal has done is have all final decisions being made by the
hearing examiner except for rezones and conditional uses. The
main reason for the rezones is that there is more of a policy
decision. It doesn't go strictly on a list of criteria. Even the
conditional use does go on a list of criteria, but that is one that
the board had directed us to reserve the final decision to them.
In a rezoning action, both straight rezone and rezone to
PUD, the board, by code, can grant up to a certain density.
Therefore, there's more of a policy decision that the board
wanted to reserve for themselves rather than just a list of
criteria: If you meet this, then you get this density; if you meet
this, then you get that density. So they have decided to reserve
that for themselves. Fiscally, the hearing examiner program will
cost over $200,000 a year with an additional startup of $42,000.
It's my understanding that this is being planned to be put in the
budget for next year.
And if you now want to turn to that time line that I
handed out -- and if anybody from the audience -- there's copies
up at the front table here. Next month, if the board adopts this,
then staff will begin working on the public participation strategy.
This was discussed with the board at the development services
workshop, I believe last month. And I'll get into a little more
detail on that later.
And, again, if all these things are contingent, if they
follow the time line, in July of this year a committee will be
organized to establish what criteria are going to be used for
hearing examiner selection, and then we would advertise for the
hearing examiner. In September the hearing examiner would be
selected and a contract negotiated with the board. Also in
Page 92
May 16, 2001
September-- I'm sorry. I'm looking at the old copy.
COMMISSIONER ABERNATHY.' We can read it, Fred. Is
there anything you need to tell us?
MR. REISCHL: Okay. Well, basically just the one thing that
has come as a controversial point in -- basically in letters to the
editor is the public participation. And if you want me to
elucidate any of the --
CHAIRMAN WRAGE: Can you clear up the point about they
said if they had not talked to the hearing examiner, they cannot
talk to the board. Is that kind of--
MR. REISCHL: Thank you. Yes. And I have spoken to
people in Lee County, and they think that that's a very important
portion of it. If someone did not show up for the hearing
examiner and did not put the participa -- did not participate on
the record at the hearing examiner hearing, then the feeling in
Lee County was that eliminated any surprises when something --
for example, a rezone would go to the board and all of a sudden
there's an emotional cry from somebody who was not on the
record with the hearing examiner. The hearing examiner did not
hear that testimony, did not put that in his or her findings of fact.
The findings of fact not only are from the testimony
that is given at the hearing, but then the hearing examiner--
unlike you who make a decision that same day, the hearing
examiner goes back, studies case law, does site visits~ other
things, more judicial, I think I would call it. And then all these
things are considered: Testimony, case law, site conditions. And
finding of facts and a report are written, and that is presented to
the board. So it's -- it's more of a fact-finding position that he or
she is presenting to the commission.
And the -- again, the people in Lee County I talked to
thought it was good that that wasn't circumvented by all of a
sudden somebody coming to the last hearing in front of the
Page 93
May 16, 2001
board, that hearing examiner could not look at that testimony,
compare it to the land development code, compare it to case
law, and just let the board be the first persons to hear that
testimony.
CHAIRMAN WRAGE: When you say "rezone," simple
question, but the very basic ag to PUD still goes to the board,
though; right?
MR. REISCHL: Correct. Straight rezones and rezones to
PUD will go -- the board -- well, that's the proposal language. The
board directed us to reserve those for their final decision.
COMMISSIONER RAUTIO: Could you elaborate a little bit on
your statement about making an emotional appeal to the hearing
examiner versus the statement of facts and testimony being
given? What do you mean?
CHAIRMAN WRAGE: Filling the room, in other words; right?
MR. REISCHL: Well, even that doesn't necessarily have to
be emotional. Emotional -- and I may have been using the word
incorrectly, but I meant without having competent and
substantial evidence to back up your testimony. That would be a
better choice of words.
COMMISSIONER RAUTIO: Right. So that it becomes more of
an emotional appeal on issues and concepts --
MR. REISCHL: '1 just don't like it." Something like that.
COMMISSIONER RAUTIO: -- instead of saying fact here, fact
there, fact there. Because we're trying to get the hearing
examiner to more or less pay attention to facts, and they make
decisions on findings of fact.
MR. REISCHL: And base their decisions on the codes.
COMMISSIONER RAUTIO: On the codes.
MR. REISCHL: Which would be -- your main job then would
be to look at the policy issues and say, "Is that a good thing to
have in the code in the future?" And that would then become
Page 94
May 16, 2001
your ma]or -- yours, EAC, would be -- your major ]ob then would be
to look at code and growth management plan changes in
amendments.
MS. STUDENT: Just kind of to add to that and more of what
we talked about here tonight and the case with the Vanderbilt
Beach area. And one person mentioned an overlay and a study,
and it would be devoted to looking at our codes, looking at the
areas, how they're developing, and what -- and taking a proactive
approach rather than having development orders come through
and, you know, being processed through this commission and the
board.
And just a little addition, the hearing officer makes
findings of fact and conclusions of law. That's part of the report.
Conclusions of law are based on the criteria that we so often talk
about. I explain to this board that you need to look at the criteria
and apply the testimony to that criteria, and that's really what
they'll be doing. That's what quasi-judicial is. It's the
implementation of existing policies expressed in the code by
those criteria and our other regulations.
COMMISSIONER RICHARDSON: Mr. Chairman, if I might ask
a question. I'm interested in the notion that you've suggested
that this will improve the public input to the process, that this
hearing examiner will give us more access -- the public more
access to the planning process.
MR. REISCHL: Not necessarily the hearing examiner change
per se. But as you see on the time line, along with that we are --
if this is approved in June, we are proposing several ideas to
improve public participation, including written guides that will be
distributed to homeowners' associations. Instead of a 300-foot
radius for property notification, it would increase to 500 and
1,000; more visible signs posted on property and better location
requirements for it; plain English ads in the paper. And one of
Page 95
May 16, 2001
the other things that is being proposed is neighborhood meetings
for projects that exceed a certain threshold prior to public --
COMMISSIONER RICHARDSON: But arguably, these are the
sorts of things we should have been doing all along or should be
considering. This is independent of the hearing examiner
process. But I'm puzzled as to how -- we get all this information
out to the public, and then they are siphoned down through a
legal loophole, meaning going towards the hearing examiner.
And it seems to me they've obviously got to have an attorney to
represent them; otherwise, they're going to get shut down.
I mean, I read the words in your hearing examiner
program, and it gives this hearing examiner considerable leeway
in not permitting people to give their views on what's going to
happen. And I think this is a democracy we have. We need to let
people have a chance to express their views. And I look at the
hearing examiner program, at least as it's been explained and as
I read it so far, as moving in the opposite direction of our
democracy.
MR. REISCHL: I can just make a comment. I can let Patrick
White -- he worked with that in another location. But, again, the
people I spoke to in Lee County said that the hearing examiners
are extremely strict, I guess would be the word, with attorneys
and more liberal with people who they know are not attorneys.
Now, that's hearsay. I'm repeating what somebody said in
another county, and that's nothing that's necessarily in the code.
COMMISSIONER RICHARDSON: Well, I can perhaps find the
language. But it says the hearing examiner can, you know, really
shut down somebody if they -- if they get up and speak their
mind. And I think that's what the process needs, is the ability for
people to react to what's going on. And, you know, they may not
-- it's good to have bigger signs. It's good to have people
involved. It's good to have them go out and talk to them. But
Page 96
May 16, 2001
this is really very disturbing to me as far as the public is
concerned.
MS. MURRAY: Mr. Chairman, may I comment on that? I
think -- and I'm going to ask Patrick White to elaborate a little bit
on this as well. But I don't think it's necessarily precluding
people from coming before the hearing examiner and saying
whatever they want to say. I think that what the hearing
examiner is going to look at is extract from what they say what
is relevant to the current codes and regulations and assemble all
of that testimony and put it in a report based on the regulations
that the county has adopted and forward that to the Board of
County Commissioners.
As well, I understand that this process does not
preclude somebody from appearing at the Board of County
Commissioners -- and correct me if I'm wrong Patrick -- but that
at the Board of County Commissioners hearing, if they had not
been in front of the hearing examiner, then they could still speak,
but I believe it would have to be identified as ex parte
communication. And, again, I'd defer to the attorneys for some
clarification on that.
MR. WHITE: Good evening, Mr. Chairman, Commissioners.
Patrick White, assistant county attorney. I appreciate the
opportunity to address your comments, and I'll start with
Susan's. I think it's more correct to state that if a citizen had not
been a participant in front of the hearing examiner but did
discuss a matter prior to the board's public hearing on that
matter, that that ex parte discussion would have to be disclosed
at the hearing that the board itself would have. There's an
opportunity for, if you will, some input in terms of those ex parte
communications.
COMMISSIONER ABERNATHY.' You're talking as far as the
communications to the county commission.
Page 97
May 16, 2001
MR. WHITE: Correct, sir.
COMMISSIONER ABERNATHY: Not the hearing examiner.
MR. WHITE: Correct. There's a prohibition against those
kinds of communications to the hearing examiner.
And to turn to the comment that Commissioner
Richardson had about what the limitations were put in place with
regards to the types of testimony that might be restricted, I think
if you look at that again, you'll note that what it's intended to do
is to avoid a type of, I guess, irrelevant testimony. Now, what --
COMMISSIONER RICHARDSON: But how do you know what's
relevant?
MR. WHITE: What makes it irrelevant is a good question.
COMMISSIONER RICHARDSON: Right. Until you hear it, you
don't know.
MR. WHITE: And I think that in the seven years that I saw
the hearing examiner practice used in Lee County, I can count
on, perhaps, one finger the times I've seen where there was
someone that was asked to basically sit down. And it was more
a question of maintaining the decorum of the hearing examiner
process, and that's what that provision's intended to do. It's not
intended to shut down or limit in any fashion any aspect of any
person's testimony before that hearing examiner.
It's intended to get just those types of testimony into
the record and to put them into the record in a way they would
be used as competent and substantial evidence without the
benefit of an attorney, if that's what that individual chooses, so
that everybody has an opportunity to present their case.
COMMISSIONER RICHARDSON: It strikes me, though, that,
you know, in truth, that isn't a level playing field because Joe Q.
Citizen -- and I'm one of them -- coming before a hearing
examiner maybe one time in six months is not going to have the
fluidity and expertise of the process to be able to make
Page 98
May 16, 2001
themselves that clearly understood.
MR. WHITE: How do they do it today?
COMMISSIONER RICHARDSON: They do it today because
they come to the Collier County Planning Commission, and we
listen to them, and we sift and sort that sort of thing out. And we
have a very benevolent chairman that will allow people to talk.
And even if they get emotional about it, we can help pick and
sort that out.
MR. WHITE: I understand what your concern is, and I'm not
addressing this by talking about these words on paper. I'm going
to relate to you what my experience has been in seeing this
process. And I agree that to some degree what your concerns are
would be based entirely upon the individual who would fill those
shoes.
But I'm telling you just the same as any of you sit here
and are willing and interested in what every citizen has to say,
that is what this process is intended to do. And I can assure you
through the contract that that hearing examiner would have,
through the relationship they would have with their employer, the
Board of County Commissioners, that if there was a
circumstance ever to arise where that kind of testimony were
precluded for reasons other than as I've mentioned, to preserve
the decorum of the proceeding, I can't imagine that that
individual will be employed for very long. That's not what, I
believe, the intent of the board was in directing us to pursue this
process.
And I think if there's some tighter language you would
like to have with regards to how to control the decorum of the
proceeding but still allow all testimony, I'm welcome (sic) to it.
COMMISSIONER RICHARDSON: I'd like to see some looser
language. I mean, you've got the thing tightened down so much
that I think people are going to be afraid to show up.
Page 99
May 16, 2001
MR. WHITE: I may have --
COMMISSIONER RICHARDSON: One question and a
comment and I'll shut up. In this time line I see no opportunity
for the Collier County Planning Commission to be involved. Can
you point out where that might be?
MR. WHITE: I think you have to read it in between what
happens at the point in time that the board in June considers
these LDC amendments and what happens in July in terms of
organizing the committee. And although we've had preliminary
discussions with the division administrator, our county attorney,
and other persons -- and I personally have talked to a number of
individuals about the possibility of people serving on a
committee such as this.
Certainly I would think it appropriate to have one or
more representatives from the Planning Commission, the EAC,
and other entities that the board has created for the express
purpose of getting public input, so that those individuals who've
seen what it takes to sit in your chairs would know the type of
individual, their demeanor, their philosophy, if you will, their
attitude towards citizens in Collier County and be able to make
that kind of a determination.
COMMISSIONER RICHARDSON: I would then ask you to
reflect that suggestion in your comments for the BCC; that is,
that some members of this body be involved in that process. I
think it's very important.
MR. WHITE: Certainly. And if you would choose to favor
staff with a favorable recommendation with regard to hearing
examiner process, I would think that would be an appropriate
recommendation. I think that, you know, any structure that you
can add to the process would be of great benefit. You're the
folks that have the wisdom and experience in hearing these
kinds of cases.
Page 100
May 16, 2001
COMMISSIONER RICHARDSON:
last comment --
CHAIRMAN WRAGE: Okay.
COMMISSIONER RICHARDSON:
And my last comment -- my
-- is that I don't think the
system's broken, and we can save $240,000 by leaving the
commission intact instead of cutting us out of the process.
MR. WHITE: There's no way I can respond to that, but I
appreciate your comment nonetheless.
CHAIRMAN WRAGE: Commissioner Abernathy.
COMMISSIONER ABERNATHY: Mr. Reischl, in one of his
preliminary or opening remarks, said that one of the goals of this
process was to level the playing field, that it was felt that
developers and their lawyers had access to us and to the county
commission where the guy on the street does not have that
access. If he's correct in saying that, then you came along and
said that developers and their lawyers can communicate with the
county commissioners -- not the hearing examiner, but yes, the
county commissioners -- as long as it's disclosed as an ex parte
communication, which is what we do now.
So it seems to me the playing field, if it was leveled,
it was for a blinking of an eye, and it's tilted again, if what you
say is correct. Where does it say that people can have ex parte
communications with the commissioners as a part of this
scheme? It would seem to me to be inconsistent with the
scheme because Section 5.1.2 limits the public in a very, very,
very stringent way to questioning only the correctness of
findings of fact and conclusions of law.
MR. WHITE: And I think you've hit upon --
COMMISSIONER ABERNATHY: So certain members of the
public, that is those with access, could go beyond that in these
ex parte communications, could they not?
MR. WHITE: You've hit upon a very central and important
Page 101
May 16, 2001
point, and that is what information is used in making these types
of recommendations and decisions? The hearing examiner
process is intended to define competent and substantial
evidence in a record, in testimony, from presentations, etc., and
then have that evaluated with a written recommendation with
findings of facts and conclusions of law.
COMMISSIONER ABERNATHY: And the commission is bound
by those, I assume.
MR. WHITE: The commission is not bound by the
recommendation.
COMMISSIONER ABERNATHY: Bound by the findings of fact
and the opinions of law?
MR. WHITE: Those are those -- findings of fact, conclusions
of law, and the recommendation only. Okay. They're not --
COMMISSIONER ABERNATHY.' Are they committed to those
findings? Can they go into additional fact finding?
MR. WHITE: The purpose of the hearing examiner is to sift
the facts. The only types of factual information that typically
would be allowed to be put into evidence at the board hearing
would be newly discovered types of evidence or evidence that
would support the conclusion that the facts relied upon by the
hearing examiner were somehow in error or that the conclusions
of law reached were somehow in error.
Now, the other avenue to approaching the board, as
we've indicated, is through what would be considered generally
an ex parte contact. Those are generally disfavored, both by the
case law in the State of Florida and by certain ideas that the
statutes set forth. There is a process, however, where you can
overcome the supposed prejudice of those kinds of ex parte
lobbying contacts by disclosing the nature of those contacts.
And what is anticipated, if these LDC amendments go
forward, is that there will be a further amendment to the existing
Page 102
May 16, 2001
rules pertaining to ex parte communications with the board that
would tighten up, if you will, and more clearly detail the nature of
the ex parte contacts so that if those were to be, quote,
questioned or challenged in front of the Board of County
Commissioners, there'd be the issue.
For example, someone wanted to come in and talk to
Commissioner X about parking, Mrs. Jones. There would be a
disclosure that Mrs. Jones saw me on such and such a date, and
we discussed parking with respect to this case. Therefore, if
anybody wanted to ask a question about the greater nature and
detail of that communication, they could do so. So it's intended
in that sense to ferret out and level those types of
communications that are, quote, off the record.
Those are also not intended to be used by the board in
reaching its final decision because they are not, quote, unquote,
within the record. And if a citizens' group were to subsequently
challenge the board's decision, that decision would be reviewed
by a circuit court, only looking at what's in the written record,
not what's part of the ex parte contact. So if you attempted to
support your decision as a commissioner based upon an ex parte
contact, that wouldn't be in the record, and it would likely lead to
a conclusion that a judge might quash the decision that was
rendered.
COMMISSIONER RICHARDSON: Even though that ex parte
information might have -- might significantly alter the type of
decision that should be made based on the merits?
MR. WHITE: I'm not sure what factually you're alluding to
could have that moment and that great weight but --
COMMISSIONER RICHARDSON: Well, I don't know what it
would be, either, but I wouldn't think that we could exclude that
there might be new facts come up that should be brought to bear
on--
Page 103
May 16, 2001
MR. WHITE: That's a separate issue. If there's new facts,
those generally can be allowed to be brought into the record at
the board hearing. But the problem there is, is that if you get
into the legal standard of newly discovered evidence and if you
could have otherwise discovered those facts prior to the point in
time that you brought them to the board, well, you know, I think
everybody recognizes that might be intentional in the sense that
it could be perceived as, perhaps, sandbagging.
And so the notion is that you bring your information to
the hearing examiner, and you don't sit back and wait until you
get to the board to bring out something, quote, unquote, under
the ruse of it being newly discovered. If it's truly newly
discovered evidence in the sense that it's something that
couldn't have been discovered beforehand, then certainly it's
important for the board. But I think that given the time line that
these cases have followed in all of the years that I've been, you
know, participating in this process, that's a rarity.
What this system is designed to do and what I've seen it
do in Lee County -- and I know most folks don't care how they do
it up north. But regardless, what it's been able to do is to provide
a written record so that if there are issues, they are distinctly set
forth in that record so that it can be discussed by that board.
And it's that fact sifting and finding and the
relationship of the specific facts to the LDC provisions that apply
and the comprehensive plan provisions that apply that ensure
that you're going to have compatibility and consistency with the
comp plan. And you're going to have a written record to go back
to that has to support. And I think to the extent that Mr. Reischl
had said that it might tend to be something that might be more,
quote, emotional than factual, if you will, I think it was only in
that sense that he was making that comment.
I'm -- I hope I'm not appearing to argue in favor of
Page t04
May 16, 2001
this. I'm only trying to help you to better understand how it's
been envisioned and in practice, what a lot of these regulations
are proposed to do, actually function in a neighboring county.
COMMISSIONER ABERNATHY: The whole process that led
to this scheme being before the county commission now had its
genesis with the previous county commission. Has anybody
taken any soundings of the present county commission which
seems to be more inclined to encourage public participation and
do away with the concept that everything is too easy in Collier
County? Has anybody talked with the new commissioners as to
how they view this scheme?
MR. WHITE: Commissioner Abernathy, the only way that I
can respond to that, because we obviously haven't had it on the
agenda before the board other than to the extent that it was this
sitting board that helped move this forward through the
legislative delegation in order to have this Special Act amended
so that we could, through this amendment process, implement
the hearing examiner program. So I took that as being a --
certainly a positive indication that there had not been any
change in vision, thought, or heart.
COMMISSIONER ABERNATHY: Was that part of
Commissioner Carter's presentation to the legislative delegation
back in January or whenever that was? MR. WHITE: Yes.
COMMISSIONER ABERNATHY: Was that one of his items?
MR. WHITE: Yes, it was. And there was a discussion about
it. They were in these chambers.
MS. MURRAY: The commissioner says, well, we've a
discussion with the board on this at their workshop that we
presented before them and did not receive any negative
feedback from the process.
COMMISSIONER RAUTIO: On the issue of ex parte
Page 105
May 16, 2001
communication, maybe I misunderstood something.
MR. WHITE: With the hearing examiner or --
COMMISSIONER RAUTIO: With the hearing examiner and/or
the Board of County Commissioners. I thought that one of the
reasons we wanted to have the hearing examiner was to remove
the county commissioners from being lobbied directly with these
ex parte communications and it was to make it simpler for the
Board of County Commissioners to make some of the decisions
they needed to on the facts and conclusions of law. Am I
missing something here?
MR. WHITE: No. I don't think so. I think you've actually,
again, hit upon an important point. And if the net effect of having
an ex parte communication with a commissioner and not being
able to have one previously or as part of the hearing examiner
process is going to be that, one, you're required to make the
disclosure, so other folks are going to know about it. If they
have a concern about it, they can raise those issues either in a
subsequent litigation or at that hearing with the board.
But more importantly I think that over time, that the
practice is going to be one that's going to be recognized as not
leading to any factual information in the record that can
ultimately support what the decision is that the majority of that
board may reach. And when you can't get there from here, I
think there's going to be less likelihood that folks are going to
make those ex parte contacts, especially when they're going to
be disclosed and kept of record.
COMMISSIONER RAUTIO: Well, we disclose now when
people talk to us. The county commission doesn't?
MR. WHITE: The vision is that it would be a more detailed
process, perhaps with logs, keeping track of who, when, and
what with regard to the nature of the discussions. And I think
that that's something that is perhaps an evolution from the
Page 106
May 16, 2001
current process. It may be somewhat similar, but I think it's a
little more refined.
COMMISSIONER RAUTIO: Okay. Well, I'm a big proponent of
public participation, and no matter what the issue is, I would
rather listen to somebody talk and explain something to me that
may not feel comfortable coming before a body and making a
major presentation. However, I was intrigued by seeing the
public participation aspect. We're -- in October we're going to
have guides to participation? Is that something that the
attorney's office or planning's going to create so that
homeowners' offices are going to --
MS. STUDENT: I think planning is going to have to create
that because it's going to be an opportunity for homeowners'
associations and so forth to be informed about a project and its
planning, that it receives the applications for rezones and the
like, and they're the ones that have the factual information; isn't
that correct, Fred? I've seen a draft of that language but --
MR. REISCHL: That's the proposal as I understand it.
We won't start unless this amendment is approved, and then the
board directs us to start that.
COMMISSIONER RAUTIO: Okay. So this guide will be sort of
like a checklist of how you participate, what you can talk about,
and what you can do; and that's if we have a hearing examiner.
Why don't we have that --
MS. STUDENT: I think it's going to be in either case.
COMMISSIONER RAUTIO: Getting to my point here, at this
point in time if we have guides for the public to participate and
understand the process a lot better, that would be great,
because I think you'd have more people really not thinking that
so many things are done behind the scenes that we get accused
of now. But the second part is that, gee, we've been waiting for
an orientation on this board for quite some time. That guide
Page 107
May 16, 2001
would certainly help a new board member.
MS. STUDENT: You're going to have an orientation
tomorrow. It's been postponed a number of times.
COMMISSIONER RAUTIO: Okay. So I want to say I strongly
support the concept, that guides for participation, whether they
happen to be for the county commission -- excuse me, for the
Planning Commission right now or whether it's for the hearing
examiner, for the public in general, I want to support that and
heartily say put this information so that regular people can read
and understand. I want to make that very clear.
The second thing is that -- on the committee aspect
which we discussed a little bit, that was the other thing I item --
highlighted here. It says to organize a committee to establish
criteria, and the committee has not been identified. A, who
establishes that committee; B, what are the components of it? I
want to know just a little bit more about how that committee's
going to be established. Do you know, or do we make that
decision who makes that decision? MS. MURRAY: Patrick?
MR. WHITE: Commissioner, as I'd mentioned earlier, I
believe that many of those ideas -- because we don't have, if you
will, the board's vote from June, we're trying to balance spending
time and resources on this program and this process with where
we actually perceive we are.
COMMISSIONER RAUTIO: "We" being the county
commission or Planning Commission?
MR. WHITE: The actual Board of County Commissioners.
So were we to get some notion of a favorable recommendation
being, down the line, in conjunction with a determination that
these provisions with regards to the hearing examiner being
consistent or not inconsistent with the comprehensive plan, that
gets us the next small step along the road.
Page 108
May 16, 2001
I think, regardless, having gotten this far with all of
these things, only, as you can probably tell, recently having been
included, staff, myself, and others in the county attorney's office
are going to be free to be able to act on these ideas that we've
had, the visions that we're discussing. And I can tell you that it
was only as recently as this morning that we sat down with the
division administrator and the interim current planning manager,
Mr. Reischl, and myself, and we started to have those
discussions and bring some meat, if you will, to these bones.
Certainly, as I've mentioned before, if you have some
specific recommendations about how that process should occur
or any recommendations about who should be a participant in it,
we would certainly appreciate those. The thing I need to make
everyone aware of here, and both in the public, is that if we do go
that route -- and it hasn't been determined yet, but if we do, and
there's a committee established, it's important to understand
that, just like this process, is one that would have to occur in the
sunshine.
COMMISSIONER ABERNATHY.' Mr. Chairman, I have one
housekeeping matter before we leave this for the council. I've
discussed with Mar]orie, and it needs to be cleared up. Section
5.2.3.3 on page 40 of 60 -- MR. WHITE: Yes.
COMMISSIONER ABERNATHY: -- talks in terms of members
of the new Planning Commission being selected from the Coastal
Area Planning Commission or the Immokalee Area Planning
Commission. Now, whether that's in the enabling legislation or
whether that language came from that or whatever --
MS. STUDENT: I can --
MR. WHITE: I'll let Mar]orie address that, but it's not --
MS. STUDENT: I've looked in the Special Act since we
talked because I have the Special Act here, and I just note that it
Page 109
May 16, 2001
references Planning Commission in the parts that I looked at. I'll
do a more comprehensive look before our next meeting. I read
the old ordinance that was here when I came back in 1988 that
referenced the two planning commissions, and all I can tell, we
had a consultant that prepared our land development code in
1991 when we adopted it, and I had involvement in parts of the
preparation of the LDC, more the substantive parts. Our
consultant did this, you know, Division 5 or Article 5.
And all I can just tell by looking at this, and based on
the history that I have of the county, is that the consultant took
this from an existing ordinance and somehow melded it in here.
But we don't have two planning commissions. I don't know that
we ever had an Immokalee one. But I do know I've seen old
resolutions and so forth from this body, and I do know at one
time I believe it was called the Coastal Area Planning
Commission. And that's something that doesn't have to do with
the hearing officer, but it's a housekeeping item that, you know,
we need to clean up.
COMMISSIONER ABERNATHY: Are you telling me that
5.2.3.3 is a current Collier County ordinance? MR. WHITE: It's in the code.
MS. STUDENT: I'll get it out here right now. I have it right
here with me. Let me look it up.
MR. WHITE: As I mentioned, it wasn't proposed to be
changed.
COMMISSIONER ABERNATHY: Tell us in two weeks what's
happened and what we need to do to change this.
MS. STUDENT: All we have to do is strike it through, and I
assumed -- and, you know, again, when you assume, you get into
trouble. But I assumed that the printed document that you
showed me was a computer rendition of what was in our --
CHAIRMAN WRAGE: That sounds like something that just
Page 110
May 16, 2001
needs to be cleaned up.
MR. WHITE: It may be that that even had its genesis as far
back as the Special Act itself.
MS. STUDENT: It's not in the Special Act. I've looked at
parts of the Special Act that I have here, and it just says
Planning Commission.
COMMISSIONER ABERNATHY: I just wanted to bring it up.
MR. WHITE: I appreciate it.
CHAIRMAN WRAGE: It's so noted.
Any further questions?
COMMISSIONER RICHARDSON: Summary comments for
Susan. It seems like the transition down the track, and so I may
have to just collapse and get out of the way. But in getting out of
the way, I would -- I think it would certainly be appropriate for
staff to redefine what it is this Planning Commission's going to
be after we go away. You know, I look at this list of decisions by
hearing examiner, you know, and we're left off the list
completely. So I know a good bit of the meetings that I've
attended would not occur. I think I mentioned this at the last
meeting.
MS. STUDENT: Commissioner Richardson, what would
happen is there's a couple things left that the Planning
Commission would be doing, but they're not little things; they're
big things.
COMMISSIONER RICHARDSON: I'm not arguing what they
should be or -- I just want to know what they are. I think I need
to have a new job description, if you will, of what my role is on
this commission on behalf -- as the planning agency of this
county, what it is we're supposed to be doing. And we need an
education process.
MS. STUDENT: I can tell you that you would be doing
comprehensive --
Page 111
May 16, 2001
COMMISSIONER RICHARDSON: You don't have to tell me
now,
MS. STUDENT: You don't want to --
COMMISSIONER RICHARDSON: I don't want to know that
now. I want to have somebody write that down in more than just
three sentences and let me know when I get up and put my
shoes on in the morning to come down here, whether it's --
CHAIRMAN WRAGE: Correct me if I'm wrong, but that's not
going to take place until the Board of County Commissioners
meets in June, right, and, like you say, when the meat goes on
the bone, so to speak?
MR. WHITE: It's important to understand that the proposed
revisions to the LDC that we're discussing today, the 60 or so
pages --
CHAIRMAN WRAGE: I understand that, but I'm talking about
our regular meeting.
MR. WHITE: I'm sorry. I didn't understand,
Mr. Chairman.
CHAIRMAN WRAGE: I think what you're talking about, what
we're doing today I see as still going to be the function of the
Planning Commission what we're doing today. But our regular
meetings, such as tomorrow, when we review the PUDs and
variances and the boat docks, is going to look entirely different,
if not at all.
MR. WHITE: And other than just starting from what's
proposed in 5.2.2, we'll take that and flush it out so you'll have
some kind of more --
COMMISSIONER RICHARDSON: That would be helpful.
MR. WHITE: -- traditional words to use.
COMMISSIONER RAUTIO: Mr. Richardson, you mean you
didn't understand this five- or six-page wonderful graph that told
us the process for --
Page 112
May 16, 2001
COMMISSIONER RICHARDSON: I got the --
CHAIRMAN WRAGE: Any final comments?
MS. MURRAY: Mr. Chairman, real quick I had some written
correspondence from Nancy Payton, who was here to speak on
hearing examiner, but she had to leave. She wanted me to read
into the record that she's representing the Florida Wildlife
Federation in support of the hearing examiner proposal, and she
will return in two weeks.
CHAIRMAN WRAGE: Good. No other speakers?
MS. MURRAY: No.
CHAIRMAN WRAGE: Okay. We can move from this -- the
only thing I want to say before we go on, Mr. Richardson, I agree
with you a hundred percent. The only time that I've served on
here that we had irrelevant testimony, there was a lady that sat
right over there from southern Golden Gate and told this
commission not only where they were going to go, but what it
was going to be like when we got there. And that was so noted.
COMMISSIONER RICHARDSON: But you let her make those
statements. That's the important part to me.
CHAIRMAN WRAGE: Is the court reporter able to go on, or
do you need a brief break? We're just getting started.
About two minutes, okay, so her fingers can cool off.
(A break was held.)
CHAIRMAN WRAGE: Okay. We are back on the record.
Susan, briefly, unless there's really something burning on each
one of these items --
MS. MURRAY: How about if I let you stop me. I'll just
mention them and the section number and give you the DSAC
recommendation. However, I do have a registered speaker for
the dock facilities, so I'll stop there, and I'll let Ross Gochenaur
come up and explain. And then perhaps if you want to take
public at that time
Page 113
May 16, 200t
-- it's only one person.
MS. STUDENT: And I'm sorry. I forgot I've got to comment
on the chickens. I'm sorry. The roosters and the chickens and
the fowl and --
MS. MURRAY: I'll be working from your summary sheets,
which are pages I through 6 -- I through 8 at the beginning of
your packet. The first -- Section 1.19.1 -- and I'm not going to
give you a summary. I'll just tell you DSAC recommended
approval. Stop me if you have questions.
COMMISSIONER RICHARDSON:
more than two cycles?
MS. MURRAY: That's correct.
COMMISSIONER RICHARDSON:
That's the ones that took
It talks about super
majority. Is that -- that's four out of five. If there's only four
members there, is it three out of four?
MS. STUDENT: No. It's still four out of five.
CHAIRMAN WRAGE: Super majority.
COMMISSIONER RICHARDSON: That's the definition of
super majority. Thank you.
MS. MURRAY: The second is Section 2.2.2.2.2.1, and the
DSAC recommended denial, and that's the chickens.
MS. STUDENT: And I need to say, we have -- I've talked to
an attorney in our office that handles animal control matters, and
he wrote me a memo. He's going to have to get with his
department, but there are constitutional problems with this.
There are First Amendment problems because some of these
critters can be used in religious services. It may be
constitutionally overbroad because it's an absolute prohibition,
and there may be a less restrictive means to take care of the
problem, that being the noise the creatures generate and the
possibility that they may fight.
And, also, we felt in the office that this is more of a
Page 114
May 16, 2001
police kind of regulation than a land development regulation, and
it belongs in another part of the county code and not in the land
development code. And state law does deal with certain aspects
of this. So I talked with Tom Palmer in our office, and I talked to
Michelle Arnold. And he was supposed to get in touch with
animal control -- who I think this originally came from there -- and
I talked to his client agency about it. So just put those caveats
on the record.
MS. MURRAY: Section 2.2.3, the DSAC recommended
approval with some clarification. That clarification was made by
staff.
Section 2.2.12.2.1, DSAC recommended approval.
COMMISSIONER RICHARDSON: Question on that one. I
notice that brings in churches. Does this somehow, then, change
the 35-foot limit as we've done in the past with churches?
MS. MURRAY: I'm not sure what you're referring to.
COMMISSIONER RICHARDSON: Well, churches seem to go
higher than 35 feet.
MS. MURRAY: No. This change is only to allow churches as
a permitted principal use in the C-1 and C-1/T zoning --
COMMISSIONER RICHARDSON: So this would be limited to --
does it change the --
use.
MS. MURRAY: It does not change --
COMMISSIONER RICHARDSON: -- height restriction?
MS. MURRAY: -- the height restriction, no. It just allows the
Section 2.2.15.1, DSAC recommended approval with the
elimination of the requirement for air. conditioning units and the
100-foot maximum length.
On page 2, Section 2.2.16.1/2, DSAC recommended
approval with the elimination of the AC requirement and the 100-
foot maximum length requirement.
Page 115
May 16, 2001
Section 2.2.28, DSAC recommended approval.
Section 2.2.33, DSAC recommended approval.
Section 2.2.34, they recommended approval, however
they would like to see some fencing requirements around
personal and the vehicular equipment storage areas.
Section 2.6.21, dock facilities, they recommended
approval. And this is the one where I have a registered public
speaker if you want to take her testimony now. And then I also
have Ross Gochenaur here able to summarize these amendments
for you, if you'd like.
What's your preference? Ross?
CHAIRMAN WRAGE: Yeah. Let's hear from Ross.
COMMISSIONER BUDD: Why don't we hear what the issue is
from the public rather than hear about the other 99 items that
Ross is going to tell us about that we're just fine with?
CHAIRMAN WRAGE: Is that --
COMMISSIONER RAUTIO: I'd like to hear from the public.
CHAIRMAN WRAGE: Okay. We'll hear from the public.
MS. MURRAY: B.J. Boyer.
MS. BOYER: I have to say this was my very first time of
reading all of this. And I'm not sure that I understand if there is
going to be a notice mailed out to all of the homeowners within
300 feet of this variance. I didn't see it here anywhere.
Also, I didn't see where a specific boat had to be --
that the dock had to be built for a specific boat. I didn't see that
in here anywhere. And if -- if there is a specific boat, I have an
affidavit that was given to me from the owner of Boat Haven.
And he said he's been in the operating of a marina for 42 years,
and the draft of an average 30-foot boat is 2 1/2 to 3 1/2 feet.
Now -- and nowhere does he mention that you have to have extra
depth for a boat lift. Now, as you know, I've been here before
over these boat -- these dock extensions.
Page 1t 6
May 16, 2001
The other thing in this, I see where it says that the
view should be limited to abutting properties. Now, if you
remember when I was in here before, we were here because of
the lagoon villas and the property that was on -- facing the
lagoon villas. And when they wanted to go out 60 feet, the
property owners that have lived there for a long time would not
have any view of the Vanderbilt Lagoon. So I don't feel that
abutting properties is going to address everybody.
I think it should be worded differently, that it should
not affect, you know, neighboring properties or whatever. I don't
know how, but a property on either side is certainly not where
this Vanderbilt Lagoon is because there isn't any property on one
side, and the property on the other side faces out into the lagoon
also. So I think a wider scope has to be put into wording there
for the homeowners.
What else did I have here? I don't -- I don't
understand why this was changed in the first place last year
because it says last year, before it was changed, docks and the
like are primarily intended to adequately secure/moor vessels,
provide safe access by users for routine maintenance and use
while minimally impacting the navigability of the waterway, the
native marine habitat, manatees, and the use and view of the
waterway by surrounding property owners. Now, when I was
here last year, I showed you-all the pictures of the manatees.
Some of you were impressed by the pictures of the manatees,
but that went out the window when we had the dock expert talk
about the depth of the water and the length of the dock that was
needed for a boat that didn't exist.
I -- I find that I can't refute these people that are --
I mean, nobody listens. You know, it's kind of frustrating. And in
this it says --
CHAIRMAN WRAGE: The only point I would like to make,
Page 117
May 16, 2001
what is it specifically about this?
MS. BOYER: Specifically about it is that it says abutting
properties. That's one on either side; is that right? CHAIRMAN WRAGE: (Nodded head.)
MS. BOYER: Okay. The other part of this says that it should
be extended if -- if the depth of the water is insufficient. And, yes,
in our area we do have -- close to the sea wall the water depth is
2 feet or 2 1/2 feet or 3 1/2 feet. And these people -- the
petitioners are saying that they need more than that. Well, I
have an affidavit here from a person that says you only need 2
1/2 to 3 1/2. So -- and we -- we've had measurements taken of the
lagoon and -- and close to the sea walls.
I live at the end of the waterway in the Vanderbilt
Lagoon. And since they closed that free flow that went into
Pelican Bay, we get everything up there. And, yes, our dock is --
our sea wall -- our water depth is less at the sea wall than it is in
the northern part of the Vanderbilt Beach area. We learned to
live with these docks without extensions. If everybody gets an
extension, it's going to be a mess.
And I could give you the pictures of the manatees if you
want to look at them. It's really quite wonderful.
So I guess it's the extension because of the -- of the
shallowness of the water. I don't think it's necessary. And I
think that the -- the surrounding neighbors should be considered.
And I think that there should be a subject vessel.
Doesn't have to be a vessel?
COMMISSIONER RAUTIO: I can't agree with that.
MS. STUDENT: I think if people have guests, you know, that
-- somebody the -- say their in-laws have a boat and they don't.
CHAIRMAN WRAGE: So far I've got two specific items.
You're talking about abutting property and the depth.
MS. BOYER: And the depth of the water.
Page 118
May 16, 2001
CHAIRMAN WRAGE: Okay. That -- those are the two things
you disagree with.
MS. BOYER'. Well, I guess -- I guess the reason that I'm
talking about a vessel is because one of the -- one of the docks
that I was here before was on a vacant lot, and there was no
boat. But they were asking for that -- that dock that went out 60
feet -- but there was no boat. You know, it just didn't make a
whole lot of sense.
CHAIRMAN WRAGE: Okay. The code addresses that.
MS. BOYER: Okay.
CHAIRMAN WRAGE: And I'll ask that question. Okay.
Anything else?
MS. BOYER: That's all I can think of -- that's all I can figure
out to talk about.
CHAIRMAN WRAGE: Can you address those three issues?
One of them was the abutting property.
MR. GOCHENAUR: Yes, sir. Chairman, for the record, Ross
Gochenaur, planning services. View is very hard to be objective
about. We've found that everybody has a view. If you have a
window, you have a view. What you see from that window, what
happens out there, affects your view. What is difficult to assess
is the exact impact on your view. People can get pretty
emotional about waterfront views, but basically a waterway is
intended to convey boat traffic to a bigger waterway. Vanderbilt
Lagoon, for instance, is a man-made basin. It was intended as a
boat basin to accommodate development and the intended boat
docks and boats.
We feel that making the criterion directly relative to
the adjacent property owners is about as far as we can really go
to assess the true impact of view on the neighbors. It's a very
emotional thing for people. They think of property values. But
it's very hard to be objective about that, and that's why we tried
Page119
May 16, 2001
to relate this directly to the people most affected, the people we
felt were most affected, the abutting neighbors.
CHAIRMAN WRAGE: I tend to agree with that. The depth? I
mean, that issue has been a big issue here a lot of times, and
we've had expert testimony on what it takes to put a boat in and
out of the dock. I -- I don't have any problem with it.
The last thing -- I lost my chain of thought. Oh, the
-- not the notification. The last issue?
MS. BOYER: Whether notification was going to go to within
300 --
CHAIRMAN WRAGE: And that's in the code now.
MR. GOCHENAUR: Notification of dock extensions?
MS. BOYER: Yes.
MR. GOCHENAUR.' That's already in the code. That's
standard advertising. When somebody petitions for a dock
extension, we have standard advertising procedures. The
property's posted, it's advertised in the newspaper, and the
property owners within 300 feet are notified by mail.
No?
MS. BOYER: Okay. I just didn't read that in here.
CHAIRMAN WRAGE: Okay. Thank you. Any other speakers?
COMMISSIONER RICHARDSON: Ross, can I just ask a
question? If you had the language "surrounding," how would you
interpret that? I mean, how -- what is "surrounding"?
MR. GOCHENAUR: "Surrounding" is not my word. That
came with the code when I started working on docks. It's very
difficult to assess. Whenever you've got a point somewhere, it's
surrounded by everything else in the world. So it's really hard to
figure whether somebody 5,000 feet away is going to be able to
say that as a property owner surrounding what's happening, their
view's affected.
COMMISSIONER RICHARDSON: Well, you've had a lot of
Page 120
May 16, 2001
experience with docks. You're our dock master. What -- in your
view -- no, that's using the wrong word. What -- how far out in
adjacent properties are reasonably impacted by an extension of
a dock? Abutting, you know, is a specific definition. But you've
seen a lot of these. Are there some situations where it goes out
so far, and because of the configuration, that it would bother
somebody three lots up, I mean, realistically bother them?
MR. GOCHENAUR: "Bother" is the word. Does it have a
significant effect on their view of something, and does it have an
impact on their property values? It's -- again, it's very difficult to
assess it the further you get from the property owners immediate
-- immediately adjacent. You know, if we tried to say four lots on
either side or three lots on either side, that itself would be pretty
-- pretty subjective. Again, it's very difficult to assess, but the
conclusion that we came to was that view is not really a critical
issue when it comes to boat dock extensions.
COMMISSIONER RICHARDSON: The people within 300 feet
of it, though, will find out about it. And if they come up to -- well,
I guess they won't come to us much anymore. But, say, if they
go to a hearing examiner and hire an attorney and the attorney
says, "Look, this is going" -- and shows them the sight lines and
brings pictures and transits and all that sort of thing, then they'd
be able -- even though they weren't abutting, they were -- if they
could prove that they were impacted, what would -- how would
the code apply?
MR. GOCHENAUR-' Well, my point is anything that someone
can see from their property has an impact on their view. If you
have a vacant lot next door and somebody builds a house there,
that has an impact on your view, or across the street. But is that
critical, and should you have more or less expected it? When
people move to a boating community, normally they want
property on -- they want waterfront property in order to have a
Page 121
May 16, 2001
dock and a boat, normally. So we kind of have to assume that
most people aren't going to be offended by the sight of a dock
and boat on their neighbor's property.
COMMISSIONER RICHARDSON: Well, we'll let the hearing
examiner sort this out.
CHAIRMAN WRAGE: Thank you.
MS. BOYER: Can I just say one more thing before I sit down?
CHAIRMAN WRAGE: Quickly.
MS. BOYER: We did meet with the Vanderbilt Lagoon
people. They revised their dock considerably, and you might be
hearing it tomorrow. They went from 60 feet to 25 feet. They
were able to do that. I have a picture of it.
MS. STUDENT: It's -- that's a quasi-judicial matter. It's not
really appropriate to be discussing that at this hearing.
MS. BOYER: All right. Sorry about that.
CHAIRMAN WRAGE: Back to the issue.
MS. STUDENT: And remember to disclose that tomorrow in
your ex parte --
MS. BOYER: I'm very sorry. I should not have opened my
mouth. Well, I still don't agree with a lot of this.
CHAIRMAN WRAGE: Thank you. Fortunately, we've covered
the next item; right?
MS. MURRAY: Correct. So I'm now on page 4, Section
2.7.6(5}, the DSAC recommended approval, however to put 60
days to obtain a certificate of occupancy.
Section 2.8.:3. --
COMMISSIONER RICHARDSON: Excuse me. When you get a
recommendation from an advisory committee like the DSAC,
does this -- are you suggesting that's something you're going to
do, or you're just reporting to us that that's what they said?
MS. MURRAY: We report to you and to the Board of County
Commissioners that that was their recommendation.
Page 122
May 16, 2001
COMMISSIONER RICHARDSON: And are you looking to us to
-- you know, since we're breezing through this -- looking to us to
certify what they said, or do we certify what the staff --
CHAIRMAN WRAGE: We will be able to put our own
recommendation in two weeks.
MS. MURRAY: That's correct. I'm just informing you of their
recommendation so that you will have --
COMMISSIONER RAUTIO: So look real closely at that one
when you review for the next one because we will have to make
a decision on whether we like what they said or not.
MS. MURRAY: Some of these staff-generated amendments,
when we do go to folks like the DSAC and yourself and you make
recommendations that we agree with, then we will mention that
we support that.
Section 2.8.3.7.2, DSAC recommended approval. And I
believe that there was an amendment that --
COMMISSIONER RICHARDSON: We had a separate sheet on
that, didn't we?
MS. MURRAY: That's correct.
COMMISSIONER RAUTIO: We did somewhere.
MS. MURRAY: Do you have any questions about that? I
have Nancy--
COMMISSIONER RICHARDSON: I wasn't quite sure why we
reduced the size on the -- I note you're trying to spread them out
based on size of the lot, right, but you've gone from 6 down to 4
on the second one. And I'm not inclined to want to support
reducing the size of trees.
MS. SIEMION: Actually, we've increased the size of the
trees. I'm Nancy Siemion, landscape architect with current
planning. And the first -- Item No. I is what's currently in effect;
Item No. 2 is what will be in effect.
COMMISSIONER RAUTIO: If we approve it.
Page 123
May 16, 2001
CHAIRMAN WRAGE: If it's approved.
COMMISSIONER RICHARDSON: Okay. So this is different
than what I'm looking at in the material you sent out.
MS. SIEMION: Correct. The single sheet is the most recent
amendment.
COMMISSIONER RICHARDSON: Okay.
MS. MURRAY: Section 3.2.6.5.3, DSAC recommended
approval.
I'm now on page 5. Section 3.2.8.2.18, DSAC
recommended approval.
Section 3.2.9.1.6, DSAC recommended approval.
I'm now on page 6. Section 3.3.12, DSAC recommended
approval.
well.
Section 3.5.3, DSAC recommended approval.
Section 3.13 we addressed earlier.
I'm now on page 7. 3.14.3.4 we addressed earlier today.
Section 5.5 we've addressed.
Section 6.3 on definitions for PSI we addressed as
Section 6.3, definitions concerning right-of-way, DSAC
recommended approval.
Section 6.3, definitions concerning structure, DSAC
didn't take any action on that. That was -- MS. STUDENT: Glitch, I think.
MS. MURRAY: -- a glitch that the staff caught in -- while
addressing an issue.
COMMISSIONER ABERNATHY: Is there a glitch in it as it's
stated here? Fences are intended to be regulated in the same
manner as fences?
MS. MURRAY: I'm sorry. You're right. That was a -- that's
an error in --
COMMISSIONER ABERNATHY.' Is it walls --
Page 124
May 16, 2001
MS. MURRAY: It's walls.
COMMISSIONER ABERNATHY: -- to be fences or fences to
be walls?
MS. MURRAY: Fences and walls are intended to be
regulated in the same manner.
COMMISSIONER RICHARDSON: Is this the same area where
we're talking about chain-link fences that have to be -- I can't
find the section of it.
MS. MURRAY: No. No. This is Section 6.3 of definitions,
and it's actually the definition of a structure. And the definition
of a structure does not include fences, and the word "walls" is
not included in there as well. However, fences and walls
-- and I'm talking about walls that act as a fence; I'm not talking
about a structural wall of a primary structure -- is -- was omitted
as kind of a glitch in our code that we discovered when trying to
apply it.
COMMISSIONER RAUTIO: Did you just -- what did you just
say? That a wall was a structure?
MS. MURRAY: A wall that functions as a fence.
COMMISSIONER RAUTIO: Not a structure?
MS. MURRAY: Correct. The code does not constitute a
fence, and hopefully someday, a wall as a structure.
COMMISSIONER RICHARDSON: So that structure has --
MS. MURRAY: And there's a whole different provision in the
code to address fence regulations.
COMMISSIONER RICHARDSON: If that wall is not a
structure, then it has to meet the height restrictions of 6 feet?
MS. MURRAY: That's correct. It has to meet all the
requirements of the fences and walls section of the code that
addresses setbacks, height, all that. It's almost its own zoning
district, fences and walls.
COMMISSIONER RAUTIO: Walls don't make good neighbors.
Page 125
May 16, 2001
CHAIRMAN WRAGE: They make great neighbors.
MS. MURRAY: And the last page, page 8, Section 6.3, too,
another glitch to correct an error in the definition of "yard." And
this was, again, one that was discovered just earlier this week,
so DSAC did not make any recommendation on that.
MS. STUDENT: And, Mr. Chairman, I just need you to
announce -- I know there's nobody here, but just to keep it
according to Hoyle, if you'd announce when the next meeting is,
date, time, place, and all that.
CHAIRMAN WRAGE: It is in two weeks, as I recall.
MR. WHITE: Mr. Chairman, before we go to the end of the
agenda, there's just one item that I have to beg your indulgence
on. Again, I'm Patrick White, assistant county attorney, and I
apologize for this. This is something that in the time since the
consolidated impact of the ordinance was passed, we've known
we've had to make some minor points of connection to reflect
that new ordinance by amending the two sections that we
handed out today for your consideration at the next meeting. I
just want to make a note of them. I think they're very simple and
straightforward changes, but we did want to at least get them in
the record today so that -- we're going to have them as part of
the package -- part of the packet for the next meeting so we can
get your recommendation and decision.
COMMISSIONER ABERNATHY: So that amounts to the first
reading of those?
MR. WHITE: It -- it's included with the advertising in terms of
the division in 2.2. I don't believe that they're all that substantive
in change. It was more of a housekeeping kind of a
thing. And, again, I understand --
MS. STUDENT: It's a reference.
MR. WHITE: I understand how much we do not like to give
you things at the last minute. Unfortunately, there wasn't
Page 126
May 16, 2001
anything else to do with all the changes to the vehicles on the
beach and everything else that has been going on.
COMMISSIONER RAUTIO: So these are just procedural
changes that are not going to come back to haunt us later. MR. WHITE: No.
COMMISSIONER RAUTIO: That's why we're doing these.
This is recognizing procedural changes.
MR. WHITE: Right. It's intended -- the meat of it is in the
center. There are two identical provisions that appear in two
different places in the code. One's with regards to PUDs, and the
other with regards to other types of zoning amendments. And
the meat of it is right there in the center of that paragraph at the
bottom of the first page. It says "may be credited towards such
impact fees to the extent authorized." And the connection point,
back to the ordinance passed earlier this year, is the county's
consolidated impact fee ordinance.
CHAIRMAN WRAGE: Any questions on that? Clear as mud;
right?
COMMISSIONER RAUTIO: And if we didn't put that in there,
what would happen? We'd go to the unconsolidated impact fee
ordinance?
MR. WHITE: Well, I think maybe the more operative words
are "to the extent authorized by." It itself makes the changes
that have been in effect since, I believe, March now.
MS. STUDENT: And as a matter of statutory construction, if
you refer to an older law and it's amended, I mean, it's better to
fix it and refer to the new law. But if it doesn't, it's presumed
that it refers to the newer one if it's related to it. It's a matter of
statutory construction.
COMMISSIONER RAUTIO: Thank you for that.
COMMISSIONER ABERNATHY: Are we going to take up
these two volumes tomorrow, Ron?
Page 127
May 16, 2001
CHAIRMAN WRAGE: Those are for information purposes,
right, the two big --
MR. NINO: Yes.
CHAIRMAN WRAGE: And our next meeting is May the 30th,
right, at 5:05 p.m. Be there.
Anything else, Susan?
MS. MURRAY: No, not tonight.
CHAIRMAN WRAGE: See you all tomorrow morning.
There being no further business for the good of the County,
the meeting was adjourned by order of the Chair at 9:23 p.m.
COLLIER COUNTY PLANNING COMMISSION
GARY WRAGE, CHAIRMAN
TRANSCRIPT PREPARED ON BEHALF OF DONOVAN COURT
REPORTING, INC., BY BARBARA DRESCHER, NOTARY PUBLIC
Page 128