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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