Loading...
CCPC Minutes 05/30/2001 SMay 30, 2001 TRANSCRIPT OF THE MEETING OF THE COLLIER COUNTY PLANNING COMMISSION Naples, Florida, May :30, 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 5:05 p.m. in SPECIAL SESSION in Building "F" of the Government Complex, Naples, Florida, with the following members present: ACTING CHAIRMAN: Joyceanna J. Rautio MEMBERS PRESENT: Russell A. Priddy Russell Budd Kenneth L. Abernathy Lora Jean Young Michael Pedone David Wolfley MEMBERS ABSENT: Dwight Richardson ALSO PRESENT: David Weigel, County Attorney Patrick White, Assistant County Attorney Marjorie Student, Assistant County Attorney Page May 30, 2001 Susan Murray, Planning Services John Dunnuck, Community Development Page 2 May 30, 2001 CHAIRMAN RAUTIO: Good evening, ladies and gentlemen. I'd like to call this Collier County Planning Commission Land Development Code Amendment Session to order. We will -- I believe we have a new member, David Wolfley, who represents the third district. We would like to welcome you aboard. COMMISSIONER WOLFLEY: Thank you very much. CHAIRMAN RAUTIO: I hope you can follow the things that we're doing here tonight. It should be fascinating. Okay. We have a new summary sheet, and we're going to take them in order. MS. MURRAY: If that's your preference. CHAIRMAN RAUTIO: They need to come -- I think our attorney is speaking. There are three items which we will not be able to vote on this evening, which will be 1.8 with the nonconformities, 1.19 amendments to the particular code, 3.13 Coastal Construction setback variance. Those will be voted on at the June 7th meeting. We will discuss them at that time, and then take action on those three items. MS. STUDENT: If you want to, you could just -- I don't think they're necessarily -- well, actually 3.13 is up tonight and is part of the advertisement, so you can discuss it tonight as well, and 1.8 is part of the hearing officer issue, so you can discuss that tonight as well. It's just taking that final action at that June 7th meeting. CHAIRMAN RAUTIO: Final action. Okay. MS. STUDENT: I think 1.19 is fairly benign. It has to do with the amendments to the number of times a year the code can be amended. CHAIRMAN RAUTIO: Okay. MS. STUDENT: So you can take discussion on any of those items tonight, just as long as it's understood that final action will Page 3 May 30, 2001 be taken June 7th. CHAIRMAN RAUTIO: Right. COMMISSIONER ABERNATHY: Why is that? Because of the change? MS. STUDENT: That is because some of these things came about after the first advertisement for the meeting, and so -- we have two night hearings when the actual list of permitted conditional prohibited uses is changed but for other matters can just be dealt with under our code at a regular Planning Commission meeting, and those are those type of items. COMMISSIONER ABERNATHY: Okay. Thank you. CHAIRMAN RAUTIO: We also want to remember that when we make motions part of our findings tonight will be that the actions are consistent with our Growth Management Plan. MS. STUDENT: The amendments. CHAIRMAN RAUTIO: Excuse me. The amendments are consistent, correct. The first item up would be Section 5.1, the hearing examiner. MS. MURRAY: I have Fred Reischl up here to speak on that as well as John Dunnuck, and Patrick White will assist them. MR. REISCHL: Good evening, Commissioners. Fred Reischl, planning services. We talked a little bit about this at the previous meeting. I'll quickly go through a brief presentation to bring you up to speed, and then I also wanted to let you know that I did have the opportunity to attend a Lee County hearing examiner session and will be happy to answer any questions on that. As you know, the hearing examiner process was directed by the Board of County Commissioners, and in the original thinking of this it would allow the Planning Commission, the Environmental Advisory Council, and the board to concentrate more on policy issues, such as what we're doing tonight, and Page 4 May 30, 2001 Growth Management Plan amendments. The thinking is, after seeing the directions or decisions made by the hearing examiner, you will get to examine each of those decisions, and if you see things going in a direction that you don't believe Collier County code should go -- for example, with a variance, you believe that variances are being approved in this manner or not being approved in this manner, then what you would do is, after seeing those decisions pile up, make a decision to recommend an amendment to the code allowing or not allowing the direction that the hearing examiner is taking things. As I mentioned before, too, there's a strict regulation on ex parte communications between all parties and the hearing examiner and documented ex parte communication between all parties and the Board of County Commissioners, and this will tend to change the perception that there is not a level playing field, that certain lobbyists have more access to you and the board and the EAC. This way even the access that's allowed to the Board of County Commissioners will be more strictly regulated than it is today in way of a log or something like that. That will be disclosed at the board meeting. The hearing examiner will be the final decider in administrative and variance proceedings. Everything else will still go to the Board of County Commissioners for a final decision. As one commissioner put it, it's a baby-step process. We're starting out with administrative and variance functions, and if they see that this is working in a way that they like, then they can change the code in the future to allow other petitions to have the final decision with the hearing examiner. And the companion issues that we did talk briefly about at the last meeting, if this is approved, we will have to organize a committee to establish criteria for the hearing examiner and then Page 5 May 30, 2001 advertise and select a hearing examiner and negotiate the contract -- that would be between the board and the hearing examiner. Again, something that I just wanted to emphasize a little more than I did last time is that the start date for the hearing examiner is not set by this amendment. The hearing examiner will start when the board passes a separate resolution, a trigger resolution. Therefore, if we have trouble finding a hearing examiner that meets the criteria or the hearing examiner needs more time for learning the code, instead of saying the hearing examiner is going to start January 1, 2002 -- this way the board just waits until they see that the hearing examiner is ready to start and the Planning Commission and EAC is ready to change their functions, and then they will pass a trigger resolution. Another companion issue which, as I say on here, does not depend on the adoption of the hearing examiner amendment would be the public participation strategy. We are proposing that whether or not the hearing examiner amendment passes. Again, I talked about this before. It's guides for public participation, either through EAC and Planning Commission or the hearing examiner, to increase the distance around a subject property that we sent out notifications to, increase the size of the sign, and make it more legible. I think I mentioned before you would be surprised how many calls I get saying, "How much do they want for the property?" They think it's a real estate sign. So a little more user-friendly sign, newspaper ads in plain English, and depending on the size of the project, neighborhood meetings to explain -- by the developer to explain the process -- not the process, but the development to the community. And as I said, I did -- Susan and I and Patrick were able to attend a Lee County hearing examiner session, and the one Page 6 May 30, 2001 impression that I want to try to get across to you is how informal the meeting seemed. Granted I was just an observer. I was not presenting a variance or an alcoholic-beverage waiver at the meeting like the participants were, but it did seem like a more relaxed forum, a one-on-one with the hearing examiner asking questions sitting at the same level. Now, that's just how they do it in Lee County. That's nothing to do with the ordinance. But instead of standing at the podium speaking to nine people on a dais, it was a hearing examiner, a planner, and the applicant sitting at a table. It was being recorded the same way we do. There was a court reporter, and there were microphones, but it seemed that the applicants were more in a one-on-one conversation rather than in a courtroom- type atmosphere. So my opinion from that is that it's not going to stifle public opinion. Both supporters and opponents -- and they were both at the various hearings -- were encouraged to speak. One of the hearing examiners noticed some people in the room who didn't raise their hand when they said they were going to speak, and she asked, "Would you like to speak on this? Are you in favor or opposed?" So, again, at least these two hearing examiners in Lee County were encouraging the people to have their input into the hearing. As I said in here, decisions are based on evidence, testimony, the Land Development Code, case law, and a site visit. Both hearing examiners told me that they go on a site visit for every petition that they see, that sometimes actually seeing the site can make a big difference in their decision, particularly in variances when a neighbor's view or input is called into question. And as I stated earlier, all those decisions are then forwarded -- before I say that, the decisions are not rendered that day as you do. They don't vote on it. The hearing examiner takes the Page 7 May 30, 2001 evidence, studies case law, testimony, and the site visit, and issues a written decision. Most of the cases, I believe, were, what, two weeks? They gave it an approximate decision time of about two weeks. So those decisions will also be forwarded to the EAC and the Planning Commission. So, as I said before, you will have an idea of what the hearing examiner is deciding in each of these cases, and if you see a trend that you don't believe Collier County should be following, then you can initiate code or Growth Management Plan changes. As I said, I would be happy to answer any questions about any of the policy parts and -- CHAIRMAN RAUTIO: Mr. Priddy. MR. REISCHL: -- Pat White is here for the technical aspects. COMMISSIONER PRIDDY: Fred, excuse me if I'm asking a question that was asked the first go around when I wasn't here but -- let's take variances, for example. I feel like our Planning Commission over the years has been probably very flexible in accommodating the citizens, you know, with a variance for whatever reason. Is the hearing examiner, in your opinion, going to have that same leeway, or are they going to look at the code and say, "No. The code says this." And irregardless of what common sense might lead you to conclude, "No, this is the code, and you can't do this." MR. REISCHL: I asked that question because our code does have the ameliorating factors as one of the criteria and asked how much weight they gave to that criteria and if it was, indeed, in the Lee County Code, and they said that Lee County even took out the land-related hardships. So, yes, they do consider ameliorating factors. Again, I'm talking about two separate people that work in Lee County, but I believe that our search committee and criteria committee would establish similar criteria if a hearing examiner is hired. Page 8 May 30, 2001 COMMISSIONER ABERNATHY'. I would like to follow up on that. On a variance the appeal is not to the County Commission but to the circuit court. MR. REISCHL: Correct. COMMISSIONER ABERNATHY.' Now, can that appeal be taken by either the petitioner who's asking for the variances or a neighbor who opposed it, or is it only the petitioner who can appeal? MR. REISCHL: I believe it's either one, but I'll look to Pat White for guidance on that one. MR. WHITE: Good evening, Commissioners. Patrick White, assistant county attorney. The rules of who would have access, if you will, or standing, more correctly, to bring a petition for writ of certiorari will be determined by those types of court rules. Generally, I can tell you you have to be a substantially affected person. That's pretty much the test. It would be -- for example, one of the neighbors who appeared -- or I think adjacent property owners certainly would have that type of right to bring a petition. Just to be clear about what that petition would include, it would only be a review, if you will, of what was in the record, and that's, I think, part of the distinction between quote, unquote, typically what an appeal is, which is sometimes more of a rehearing of the entire case. These are just matters that were in the record before the hearing examiner that would be put to a test of whether they met the essential requirements of law, whether they followed procedural due process, and they had been afforded the opportunity to present the case. COMMISSIONER ABERNATHY: So the answer -- MR. WHITE: So it's based on competent and substantial evidence. COMMISSIONER ABERNATHY: So the neighbor who Page 9 May 30, 2001 objected to a variance, putting a pool enclosure closer to his property, would have to appear before the hearing examiner and register his objection in order to be able to go to the circuit court; is that not right? His issue wouldn't have been raised otherwise. The petitioner is not going to raise it, I wouldn't think. MR. WHITE: Well, I think the way they analyze that is if it's not raised, it certainly couldn't be heard because it wouldn't be in the record. That's the point. COMMISSIONER ABERNATHY: That's what I'm asking. MR. WHITE: And if you want to give the opportunity to the hearing examiner to consider all the matters that are to come before he or she, then you have to at least appear and make your objection known and not sit on your rights, if you will, until a subsequent opportunity to go to court. COMMISSIONER ABERNATHY: Okay. If we're starting this process with a blank sheet and building our system irrespective of what Lee County may have done, why do we not allow either a person who requested the variance or the person who objects to it to come to the County Commission? They're the people's representatives. MR. WHITE: I can tell you, Commissioner Abernathy, that we've heard what has been said by the commissioners as recently as a week ago and have prepared, if you will, an option for them to consider that would allow if two or more of them, for example, were to take quote, unquote, jurisdiction of a decided case within a specified time period after it had been published or rendered by the hearing examiner, and in particular in a variance case -- and this is something that Lee County, in fact, did do back in 1988 when they started their process. What would happen is you would have the opportunity as either the petitioner or the objecting neighbor, or whatever the case may be, to approach each of your commissioners or all of Page 10 May 30, 2001 the commissioners individually, and so long as you did not communicate what you spoke to each of them in a daisy chain or Sunshine violation fashion, you would be able to -- COMMISSIONER ABERNATHY.' Lobby? MR. WHITE: -- appeal to them to, if you will, or fill out a form that would allow the board to take jurisdiction of that case within, say, 15 or 20 days after the decision was published, or whatever we may have the board decide to do. And they can after a period of time, say a year or so, if they're comfortable with the way things have gone -- and that's kind of the way it happened in Lee as it was related to me. The board there found after a year or so that in those cases they did choose to take jurisdiction on, they were, in effect, not changing the decisions of the hearing examiner. But it gives the opportunity to have the board and the citizens be assured that there is some right of review short of having to go to circuit court with a petition for writ of certiorari. COMMISSIONER ABERNATHY: That's not in this packet -- MR. WHITE: No, it is not. COMMISSIONER ABERNATHY: -- but you say you've prepared that separately? MR. WHITE: No, it is not, but it could easily be added. It need not be in this packet, per se, since it's not even contemplated that any of these regulations would apply to the actual cases being heard until sometime after at least what we understand may be two more rounds of I. DC amendments in September and the traditional fall round that's contemplated. That assumes, of course, that the 1.19 provision that's in your packet would receive favorable approval. That would allow four or more of the commissioners to vote to have a, quote, special LDC amendment. COMMISSIONER ABERNATHY: Well, I would rather see it Page 11 May 30, 2001 front-end loaded. This business of, well, we'll do that later or that later and the other later, and the next thing is you turn around and you either forget it or it's too late. So I would like to see it go forward with that option to the County Commission. MR. WHITE: That's certainly a recommendation that if you made it, I would be more than ready to draft those provisions and have them available for the board to consider after the June 6th first public hearing. COMMISSIONER ABERNATHY: I don't want to get on a soap box, but it seems to me the thrust of what's going on in Collier County nowadays is for more participation in government rather than less by the citizens and interaction with their commissioners. To me this whole scheme is a step in the wrong direction, but I find this variance procedure to be particularly galling. COMMISSIONER PRIDDY.' Mr. Abernathy, you're looking at the flip side of things. Looking back at a boat-dock extension that we heard where a fair number of the public was here and testified, I think we probably voted unanimous to approve it, but they were allowed by the time it got to the County Commission to go out and get about twice as many people to fill the room and ended up with some other testimony that perhaps wasn't appropriate to put in at that time but got in and got it turned over. So from a citizen's standpoint, that's attempting to get a variance for a boat dock; it wouldn't allow the public time to go rally the troops that, you know, make it political at that point. So I think there's some plus and minuses to that system. CHAIRMAN RAUTIO: Commissioner Abernathy, do you have a specific suggestion then that you would like us to consider when we actually can vote on this particular one? COMMISSIONER ABERNATHY: I don't have it -- I don't have Page 12 May 30, 2001 it in writing, but the thrust of it was that a provision be included to allow an appeal from a hearing examiner's ruling in a variance case -- an appeal to the County Commission rather than to -- or the option of either party, either side, to appeal it to the County Commission rather than to the circuit court. CHAIRMAN RAUTIO: Okay. MR. WHITE: If I may, Madam Chairman -- CHAIRMAN RAUTIO: Yes. MR. WHITE: Would the notion of a concept where the board would have the option to take jurisdiction of the case after it was decided meet your suggestion or not? COMMISSIONER ABERNATHY: You mean sui responde without a request from either side? MR. WHITE: Well, the request would come through the commissioners by those -- either the petitioner or the neighbor -- going to-- COMMISSIONER ABERNATHY: Yes, yes. MR. WHITE: -- one or more of the board members and asking them to take jurisdiction. COMMISSIONER ABERNATHY: Yes. I think we are thinking the same thing. MR. WHITE: Okay. Thank you. CHAIRMAN RAUTIO.' Any comments here on that? COMMISSIONER PRIDDY: Yeah. That would, in effect, allow the commission to decide whether or not they were going to hear it. Is that what -- COMMISSIONER ABERNATHY: That's right. COMMISSIONER PRIDDY: -- I'm hearing? COMMISSIONER ABERNATHY: Yeah. MR. DUNNUCK: If I could step in for a second, for the record, John Dunnuck, interim community development and environmental services administrator. One of the big picture Page 13 May 30, 2001 items that I kind of want to talk about a little bit before you vote on this item -- and I want to just kind of broaden it a little bit from what was said by Fred -- is the idea of why we're bringing this concept forward. It's the idea of getting the Planning Commission, the Environmental Advisory Committee, and the board, frankly, to talk about policy-level decisions not based upon -- as an item comes forward. One of the things I've seen -- and granted I've only been over at community development for seven months. One of the things I've seen is that we react to what's going on out there instead of get out ahead of it. I would like to set up -- you know, the way I kind of envisioned this process as working is, yes, you build in those safeguards on the hearing examiner's side, but frankly, we work with you-all to set up a schedule where we're reviewing the Land Development Code ahead of these type of issues. We're making presentations on "This is what your Land Development Code says right now, and is there an idea of changing it?" That's where the public participation really gets involved and, you know, says, "Here's the feedback. Here's what we want it to look like. Here's what we want the community to be." The example I use right now, as I've provided direction for this next cycle, is to look at landscaping standards and architectural standards and to get the community involved. Set up a committee within our division to get the community involved in looking at, you know, doing some of that background work on the issue and then bringing something forward to you-all saying, "This is why -- this is why it makes sense. We believe this fits the community's needs," and having you look at it from the broader policy issues and breaking it out that way. COMMISSIONER ABERNATHY: Well, let me make two comments with regard to that. I know it's not popular to come to the county and talk about how things are done in the City of Page 14 May 30, 2001 Naples, but I served on the Planning Advisory Board in the City of Naples for three years, and we ran something of a two-track system where we listened to variances, PUDs, whatever, on our regularly scheduled meetings, and then we had workshops to forward look on broader issues, the ones you're talking about. But I notice there's some disquieting language in something that was faxed to me in the last couple of days. I guess you can order your staff to look at landscaping as an issue -- this material I got a few days ago said if this planning commission wanted to do that we would have to ask permission of the County Commission to do the same thing; is that right? Should that be? COMMISSIONER PRIDDY: I'll answer from experience ahead of that, and you can tell me I'm wrong, but I think the state law says that the planning council is the land-use commission and that the planning staff belongs to us under the chart, and I think there's some language in there that puts us on the organizational chart right above staff. COMMISSIONER ABERNATHY: Well, I thought we were the county's planning agency, and it would seem to me that we could turn to staff and say we would like to talk about landscape without going to the county commission for permission to do that, but it's something I can find -- MS. STUDENT: I can address -- MR. WHITE: You're going to talk about -- THE COURT REPORTER: Wait, wait. COMMISSIONER ABERNATHY: It's boilerplate language someplace else because it talks about the governing authority, which in our case is the County Commission, but it says we have to go to the governing authority to get that permission. MS. STUDENT: I would like to see that fax, but under state law you're the local planning agency. Under the growth management laws as to that, you have the duty for preparation of Page 15 May 30, 2001 amendments and so forth to the comp plan and the land development regulations and I believe -- I don't have it with me -- but even under our special act, the Planning Commission is charged with, you know, conducting studies and, you know, looking at land-use patterns and so on and looking at appropriateness of future rezonings and things like that. COMMISSIONER ABERNATHY: Well, you can read that both ways. We could look at it after we had run it by the County Commission to make sure it was an area they would even be remotely interested it. But I doubt it even says that. MS. STUDENT: Well, I would be interested in looking at that fax. CHAIRMAN RAUTIO: I think the phrase or the sentence we're looking at here is (as read}: "The Planning Commission may take the lead in initiating planning studies in support of Comprehensive Plan amendments with the approval of the governing body since this results in an allocation of staff time and is therefore the prerogative of the governing body to direct its staff and make decisions having budgetary implications." That's what you're referring to; is that -- COMMISSIONER ABERNATHY: That's what I'm referring to. MS. STUDENT: Wait a second. It's a -- COMMISSIONER ABERNATHY: That's -- THE COURT REPORTER: Wait, wait, wait. CHAIRMAN RAUTIO: One at a time. Sorry. MS. STUDENT: What document or what -- CHAIRMAN RAUTIO: This is "function of planning commission post-hearing examiner process." COMMISSIONER ABERNATHY: It was faxed to us in the last couple of days. CHAIRMAN RAUTIO: It's a two-page fax that was sent to us under a memo from Susan Murray, which was attached to Page 16 May 30, 2001 another collection of things that came in. MR. DUNNUCK: Well, you know, I look at that as being a very simple process as far as taking something to the commission. It's a matter of an executive summary. If you are indicating, you know, to indicate back to staff that you want to take a look at it, that's the type of role that I think we're looking for in the Planning Commission, to want to look at those policy- type issues and freeing up that space on the hearing examiner side. You know, I have no problem with us presenting something to you or you presenting something to staff as far as an issue of what you want to discuss and us taking it to the commission and getting a blessing to bring it back. Ultimately, yes, with the county manager's agency, we typically do get direction from the board to give us direction on how we are allocating our time, because I'm sure you-all are aware that we have a lot going on over in our division, specifically, and we do that to the board. We tell the board when we give them a menu on executive summary -- we say, "If you want us to take a look at this, we may have to sacrifice that." It's a give-and-take type thing. Or "you need to give us more resources." But from that standpoint, I look at it as being, you know, part of a maintenance issue that we would deal with as part of that process, where if you gave us some direction and wanted us to take a look at that, we would probably take it to the board for a blessing, and they would evaluate it, but that would be a simple part of the process, I guess, is what I'm saying. COMMISSIONER ABERNATHY: Until they said no. MR. DUNNUCK: Well, that's the right of the Board of County Commissioners because they ultimately determine what stuff does. You know, I think when they want us to spend our time -- COMMISSIONER ABERNATHY: They don't have an Page 17 May 30, 2001 autonomous planning commission then or even semi autonomous. If that's what the county wants, that seems to be what they're going to get, but I don't think it's the way to go. MR. DUNNUCK: I guess the example I would use at the commissioner level is last week we spent four hours on the Beachcomber issue. We talked about one particular area of a setback in RT district. And, honestly, as a staff member saying, "Let's use our time most valuable," I'd love the board to be sitting there spending four hours talking about setbacks in general, you know, where is the trend in the community and what is it that we want to see? That's where, I think, the Planning Commission and the Environmental Advisory Committee come in in the whole process. That's why I think we're talking about -- let's have that hearing examiner -- let's see how it works. At the very least, you know, let's start it off using variances and making recommendations on zoning issues or recommendations on conditional uses or not even allowing them at first to hear zoning issues, but making recommendations on conditional uses and then hearing and making decisions on variances. You know, there's a lot of flexibility in this process to see how it works and to see, you know, if it's going to be something the community wants in the long run. With regard to the public participation, you know, I've committed and our staff is already working on those public participation elements. The board is giving us direction. If we don't bring it back, I suspect that I won't be here, frankly. So we're bringing that back in September, which would be well in advance of any hiring of a hearing examiner. I think that's something that should be noted. COMMISSIONER ABERNATHY: Well, I think the public could ease itself into it much better if there was some recourse to the Page 18 May 30, 2001 County Commission. And as the attorney says, if after a year or two it turned out that those hearing examiner rulings were invariably upheld, the County Commission can rightly say, "Well, we don't need to be in this." But I think if you did it in a gradual way, it would go down much better with the public. MR. DUNNUCK: Absolutely, and if that's the Planning Commission's recommendation, we'll take that to the board. CHAIRMAN RAUTIO: Any other comments on this particular aspect? MS. MURRAY: I have two registered speakers. CHAIRMAN RAUTIO: The first registered speaker. MS. MURRAY: Janet Vasey. CHAIRMAN RAUTIO: Hi. MS. VASEY: Good evening. My name is Janet Vasey, and I'm here to address you regarding the proposed hearing examiner program. I'm looking at this program from the public's perspective, and I see some ma]or flaws. The hearing examiner program strictly restricts -- severely restricts the ability of the general public to influence development decisions. First, the time for public input is greatly reduced. Currently the public has at least 45 days to react to new developments. There's a 15-day public notice prior to the Planning Commission and an additional 30-day public notice prior to the BCC consideration. Continuances increase the available time. Under the proposed new procedures, the public would have a 15-day public notice prior to the hearing examiner meeting, and if the public does not address the hearing examiner, then they cannot address the BCC. So, effectively, the public has 15 days under the hearing examiner program instead of the current 45 days. Second, the public access to elected officials is severely reduced. Currently the general public can address the merits of Page 19 May 30, 2001 their case before the County Commission on any land-use zoning change. They may or may not appear before the Planning Commission, but they can always bring their issues and concerns to the commissioners at a BCC meeting. Under the hearing examiner program, the general public must present their case before the hearing examiner or they cannot address the BCC. Then if the hearing examiner recommends against them, the public could only challenge findings of fact or conclusions of law or present relevant new evidence before the BCC. Either way, the general public will not be appearing before the commissioners at very many BCC meetings that are held to approve new development. The public's ability to learn the legalities of the system during the development review process is also curtailed. The public is generally not represented by legal counsel, and they have limited knowledge of the Land Development Code. Now they can use the Planning Commission to learn the process, see the legal arguments, and focus their issues for presentation before the BCC 30 days later. The hearing examiner process effectively terminates the opportunity for the public to learn from the arguments and logic expressed in the first meeting and apply them to the second meeting. If the public loses the argument before the hearing examiner, they would probably not be able to meet the criteria for addressing the BCC. So the public would have one shot to get it right instead of two. The hearing examiner program changes the whole focus of the debate from the commissioners to the hearing examiner and, as I mentioned, public input will rarely occur at a County Commission meeting because the public will not be able to meet the criteria to be able to speak. This situation will force discussion out of the sunshine of Page 20 May 30, 2001 public commission meetings and into the realm of ex parte communications with commissioners prior to the BCC meetings. Commissioners' office hours will have to be greatly expanded, and more importantly commissioners will have to attest that they have not based their decisions on these ex parte communications. And since the commissioners cannot use these communications with the public in their decision making, then members of the general public really have no meaningful input to their commissioners. Decisions on major developments and growth are some of the most important decisions that are made in Collier County today, and these decisions are of ma]or concern to the public. This program takes the real decision making out of the hands of the commissioners who we elected to make those decisions and places it in the hands of a hearing examiner. Yes, the commissioners do have final approval, but once the hearing examiner makes a recommendation on a proposed development and the hearing examiner has stated that the project meets the LDC and the Growth Management Plan requirements, what else is there for the commissioners to say. How can they require a change even if it's in the public interest. The commissioners should not be in that position. They should be the ones making the final decision based on presentation of facts by knowledgeable individuals representing different viewpoints. There's nothing in the hearing examiner program that benefits the general public, and there is a great deal that harms us. But I don't reject this program without proposing what I think is a superior alternative. I recommend that the money that would have been spent on the hearing examiner program be used to create a citizens advocate program. The current development process doesn't really provide a level playing field for the general public, and as I've just explained the proposed hearing examiner Page 21 May 30, 2001 program would exacerbate the problem. The citizens advocate program, on the other hand, would give the general public an informed voice during the development review process. The citizen advocate would receive notice of all major developments at the time of filing, work with neighborhood organizations to help identify and represent their concerns, negotiate with developers in advance of the hearing, and appear before the BCC giving County Commissioners a clear alternative to developer requests. Unlike the hearing examiner program, a citizens advocate program would provide commissioners with an advocate for the public who knows the law and can give commissioners an alternative to the well-articulated position of the developer. I hope that our county commissioners will want to make these important decisions rather than allowing a hearing examiner to make the decisions. Also, I hope the commissioners are more inclined to encourage public participation rather than exclude it. Thank you. CHAIRMAN RAUTIO: Any questions? (No response.) MS. MURRAY: May I make a couple of comments -- CHAIRMAN RAUTIO: Yes. MS. MURRAY: -- relative to that? I did want to bring to your attention that part of this public-notice amendment is a proposal to actually notify the public when a land-use petition application is received by our office and it is deemed sufficient. That's prior to any public -- the scheduling of any public hearings. So we would actually be mailing out a notice to those affected individuals of that receipt of the application -- sufficient application. So the discussion about limiting the time from 45 days to 15 days as a result of the hearing examiner would not be the case. Page 22 May 30, 2001 The second thing I wanted to bring up and, again, this is based on my experience in Lee County -- Collier County is different. But one of the interesting things about their process was, as Fred mentioned, it was a dialoging session at certain points during the hearing. And one of the nice things about the dialoging session was that there was also a dialogue between staff and the applicant. So when the applicant had questions about the process, I mean, either the hearing examiner would answer that or staff would answer that. As well, there would still be a written staff report and a written staff presentation. I know in Lee County, again, they provided the opportunity for the applicant to question the staff on the process, and as well that's always an open opportunity for the public based on, you know, when they receive notice. And, again, they would receive notice early on in the process. As well, the requirement for the developers to hold public meetings is also another mechanism by which the public will be informed of the projects themselves and the details of the projects and what the developer has planned. So that's another avenue by which the public would be informed. I thought the citizens advocate program was a great idea -- I'd like to see something like that, and that's my personal opinion -- for the policy type of discussions and meeting that you-all would be having if the hearing examiner program was implemented. I think they'd be a great benefit at those type of meetings. That's all I wanted to say. The second speaker is Michael Simonik. MR. SIMONIK: Good evening, Madam Chairman and Commissioners. My name is Michael Simonik, and I'm speaking on behalf of the Conservancy of Southwest Florida. Lucky for you I forgot my hearing examiner file and all of my notes, so I get Page 23 May 30, 2001 to cut right to the chase. The Conservancy supports this concept of a hearing examiner. There's a lot that's good about this amendment to have a hearing examiner. There's a lot that's very good. I like the idea of the Planning Commission and the Environmental Advisory Council looking at broader policy issues and workshopping those. It's things we haven't done in the past that we need to start doing in this community. I've already said we like the concept, but I do believe it includes a fatal flaw in this hearing examiner process. The public is going to be shut out of the process. I think Miss Vasey spoke about that very eloquently just before me about all the reasons why, but the main reason is because if you don't come to the hearing examiner's meeting, this hearing, you don't get to speak to the Board of County Commissioners. Now, staff may have gone to Lee County and sat through a couple of their hearing examiner hearings and thought they were great. I've worked in Collier and Lee County for the past eight years, and I can tell you we don't like the process in Lee County. We get shut out. The public gets shut out. I have many times come to the Board of County Commission meetings in Lee County to find very angry, very agitated citizens of Lee County saying, "What do you mean I can't speak to my elected official?" So I've watched it happen. It goes very well with the hearing examiner. They're exactly right. It's very informal. It's very open. It's very encouraging of the people who know what's happening then. I can tell you that -- let's face it. In this community we know that not everybody comes to the EAC. Many times I'm the only public there. They don't go through the whole process. You-all know on the Planning Commission not everybody comes to Planning Commission, and they don't hear about it until they read Page 24 May 30, 2001 the Naples Daily News article the next day about what you-all did at the Planning Commission. That's what I think is going to happen or I know is going to happen because it happens in Lee County. People are going to read about some development issue, a rezone -- I don't really care about the variances. That's all going to happen with hearing examiners. I'm not speaking on that --just the ma]or rezonings and developments, and they're going to read about that big meeting that happened on some development maybe not within 500 feet of their home, but something that they care about, and they didn't get that communication to tell them that there was public participation available at the hearing examiners. They're going to read about it the next day. They're going to know it's going to come to County Commission in three weeks or however many days it is, and yet they're going to go to the BCC, and they're going to find out that they can't speak to there elected official who they voted to put in that seat. They didn't know about anything else. The first time we did this in Lee County, we weren't able to speak on an issue we wanted to speak on because we were shut out of the process because we didn't know about a hearing examiner process. We just went to the BCC like we do here in Collier. So I think that is -- it's a fatal flaw, in my opinion, because I've watched it work in Lee County, and that part doesn't work well at all. So we urge you to take that out and allow people to speak, even if they didn't come to the hearing examiner. And I know there's all kinds of public participation elements coming up that we'll have townhall meetings and developers coming, but I don't think it's going to cut it. People want -- they don't want to speak to some bureaucratic staffer in the county. They want to speak to the guy or the woman that they voted for, and that's when -- Page 25 May 30, 2001 you-all know that's when they come here. This room is packed on Tuesdays. It's not packed tonight, and it's certainly not packed at EAC, and it won't be packed for the hearing examiner. People are going to be angry that they can't speak. I guess I harped on that enough. One suggestion that we have is, if you don't take our recommendation to allow people to speak at the Board of County Commission meeting after missing the hearing examiner, that you at least allow what the City of Naples does, a second reading. The hearing examiner hears it once, and then in three weeks or enough time for there to be an article in the paper about it -- if it's big enough and people care about it, there will be an article in the paper -- a second hearing on it at the hearing examiner's so that people who didn't know or didn't get the notice because they're not within however many feet or whatever or they're not "affected parties" -- but, you know, many people in this community care about just about everything in this community, and they come to BCC. So if our recommendation fails to have that public participation allowed at BCC, then at least have a second reading. CHAIRMAN RAUTIO: Mr. Simonik, have you had a chance to talk to either staff or Mr. White to give them some language or a suggestion that you would change here? MR. SIMONIK: I just -- we met briefly today with Mr. Dunnuck. I made almost these exact points, and we have not had the opportunity to -- obviously I missed the first hearing on this Planning Commission a couple weeks ago, and so I'm glad there's a second reading because people miss first readings. Yeah, we would be glad to offer something like that, and I would like to join or apply for Miss Vasey's advocate committee. CHAIRMAN RAUTIO: Thank you. I would like to ask staff, then, how does this change dramatically if we allow the public to Page 26 May 30, 2001 speak under some fashion before the Board of County Commissioners if they were not at the hearing examiner's event? Is that even possible, or does that change the whole picture? MR. WHITE: Patrick White, assistant county attorney. There's a number of comments, I think. First off, the distinctions between what's proposed here and what exists in Lee is that there's an absolute prohibition both of ex parte communications with the hearing examiner as is proposed for Collier. But in Lee there's also an absolute ex parte prohibition from the board as well. Now, admittedly, that may not be the best avenue to, if you will, get your point across to your commissioner if you were unable to attend the hearing examiner hearing, but it is an opportunity, nonetheless, as long as that contact is disclosed. Secondly, it's contemplated that typically if you have a neighborhood association that appears and representatives or members of that association who appear as representatives, you can have an agent appointed -- for example, the president of the association or whatever -- subsequently appear as your agent before the Board of County Commissioners. That is specifically contemplated. So although an individual may not have quote, unquote, the right to present their case, the relevant arguments and facts that would weigh on the decision of the board could be brought to bear, and I think that's the thing that's important. It's not how many times the board hears the same thing from a number of citizens, but rather what's the weight of the arguments. I don't know -- to go to the meat of this -- what changes we could bring in terms of text that we would change in the proposed amendments. Certainly it's something that could be fashioned. It would be as simple as adding a new set of provisions. It's not precluded by what we're saying. It just isn't Page 27 May 30, 2001 given the opportunity as greatly perhaps as some folks have argued for. The other thing I can tell you that may be a consideration on the part of the board or certainly could be a recommendation from this commission may be that only certain types of cases, if you will, would be decided or-- excuse me -- recommended by the hearing examiner. For example, you might want to only have recommendations from the hearing examiner with regard to conditional uses or conventional zoning district-type cases so that there can be some time to test the metal of the process and to kind of in a stepwise and logical fashion approach the vision that is allowed for under the current proposed regulations. We've given the board the full set of crayons in the 64 box and said, "You-all go pick the ones that you think are going to paint the best picture or color the best picture." If we had done less, given them only half the crayons, if you will, it would be hard for us to go and create more in the future. We're trying to give them as many options as possible and pick the ones they think that best reflect what the community and they themselves see as the vision for the hearing examiner program. CHAIRMAN RAUTIO: Could you address for just a moment the concept of a second reading or a second hearing versus making a decision, say, within a two-week period and have it written? Is that even a possibility that the hearing examiner would be there and listen? MR. WHITE: Certainly it is. Two general comments: One would be -- I believe what the citizen-participation strategy is intended to do, or at least the component that would provide for neighborhood meetings -- I think those are all geared towards what we all seem to have a concern about, which are ma]or PUD rezones. I don't think that there's a lot of conventional zoning districts cases where these types of issues come out. They're Page 28 May 30, 2001 pretty much cookie-cutter regulations, and you know what you're getting. It's when you have a PUD and you have the flexibility of a major case where there's a lot of acreage, a large number of dwelling units, a lot of commercial square footage, intensity, and those are the cases that bring folks out. I think that there's the opportunity to limit the type of cases that you would have the second hearing for, and if you were to do that, rather than making all of them mandatorily have second hearings, you're not going to make the process so inefficient that it isn't worth the money you spend on it. Now, that's perhaps more my opinion than that of anyone else on staff, but it's a new issue, so I'm giving you the benefit of my thoughts on it. COMMISSIONER PRIDDY: That would be a concern of mine, because I see at least one attorney and one land planner in the room that are probably saying, "No, go for three hearings, you know, run the cost of the developer up, you know, to get through this process." So I would certainly say that we need to -- MR. WHITE: The second -- COMMISSIONER PRIDDY: .. put in some language that not everyone gets, you know, the -- not every case gets a second hearing. MR. WHITE: The second general comment in that regard is that it's typical when you have these types of cases that are that large that you do not get all of the evidence into the record in necessarily one day. Those cases are continued. And certainly if you have a case where there's some sense from the community that there has not been sufficient notice, even though we have all these additional things that we're contemplating -- I don't know what the circumstances may be, but it's certainly something that we could put a provision in that says the hearing examiner would be afforded the opportunity to continue the case Page 29 May 30, 2001 and take further testimony, whether it's from the public or otherwise. That's something that I think is within the discretion of the hearing examiner as contemplated and as it's written, but we could make it more expressed certainly. CHAIRMAN RAUTIO: Mrs. Young. COMMISSIONER YOUNG: I found myself to be most struck by Miss Vasey's presentation, and I plead ignorance on this. It seems to me that many of the functions of the citizens advocate program that she suggests is supposed to be performed by this group, our Planning Commission, and for our Planning Commission you are suggesting that it be supplanted by a $200,000 hearing examiner. I'd just like to know the thinking on this. MR. WHITE: It's not mine per se. I'm more of the messenger. When you say "you," I'm assuming you're using the collective and plural you -- COMMISSIONER YOUNG: Yes. MR. WHITE: -- meaning county staff. I just happen to be the fellow at the podium. COMMISSIONER YOUNG: Sorry about that. MR. WHITE: That's okay. It comes with the job. I understand those concerns, and I recognize them, but I don't believe we're looking to supplant the function of the CCPC. I think we're looking, rather, to enhance it in the direction that the division administrator has mentioned and more so as to the consumer advocate idea. I really want to tread lightly with this one because even I who don't practice law, if you will, in the traditional fashion of what lawyers do, I start hearing folks saying, "Do we have an unauthorized practice of law on the horizon here?" Because those are things that typically lawyers do, and I'm not trying to advocate that, you know, we don't have enough work already. Page 30 May 30, 2001 That's not my point. It's more of the idea that the Planning Commission, I don't believe, is charged with advocating, if you will, the citizens point of view. It is to hear the testimony much in the fashion that the hearing examiner's contemplated to do and to render a recommendation or a decision based upon the merits of the application, the applicant's presentation, as well as the input from the public. The third part of the triangle is that from the staff, and it's an attempt to balance those things. I don't want to suggest that public input is unimportant. It certainly is most important, and that's why we're looking to enhance their participation. But it isn't, I believe, the function of either the hearing examiner or the Planning Commission or the EAC to necessarily advocate the role of the public. I think they're charged with balancing, if you will, those interests in light of what the rules themselves and regulations are. CHAIRMAN RAUTIO: Mr. Budd, do you have a comment? COMMISSIONER BUDD: No. CHAIRMAN RAUTIO: I just want to ask, then, do you think a citizens advocate program would be feasible? Could it be a portion of this whole process and suggested to the Board of County Commissioners? MR. WHITE: I hate to think that I'm the one that's going to give a "yes" or "no" on that. I think it's something that certainly could be looked at. I don't know of any legal prohibition against such a thing other than perhaps that notion of there may be some concerns about the unauthorized practice of law. CHAIRMAN RAUTIO: Mr. Pedone. COMMISSIONER PEDONE.' I have a question for Mr. White. The hearing officer, would he be part of development services or the planning department, or would he be an independent much in Page 3t May 30, 2001 the same vein as the county attorney's office is? MR. WHITE: That's a very good question, Commissioner. He or she would, it's envisioned, be a contract employee much in the same nature as is the county manager or, as you mentioned, the county attorney. The terms of those contracts -- I can tell you, we've looked at those that are from Lee. They essentially have a line of authority that flows from the board -- well, from the citizens to the Board of County Commissioners to the hearing examiner. They report, if you will, to the board, although they are to a great degree independent, if you will. There is no, quote, micromanagement of decision making or recommendations from individual commissioners to the board because of the ex parte communications prohibition which applies to the commissioners as well as to every other citizen. It's just like a case where you have a judge. No one can go in and talk to the judge ahead of time, and that includes any other judge or one of the appellate judges, for example. So I hope that answers your question. CHAIRMAN RAUTIO: Mr. Budd. COMMISSIONER BUDD: I think some good points were raised by the public about more limited accessibility of the County Commission. I think that's exactly the intent. The idea of a hearing examiner didn't start here at this Planning Commission. We didn't take a vote and decide that we're working too many hours and since they aren't going to pay us more, we'll try to figure out a way to eliminate ourselves. We were told, "You're going to be replaced by a hearing examiner. Merry Christmas. Deal with it." That came from the county commission. It is the County Commission's intent, as stated earlier, instead of micromanaging specific tiny, little land variance issues with one particular house that's six inches too Page 32 May 30, 2001 close to the property setbacks, they deal in a more strategic role like a board of directors of a ma]or corporation and less in micromanaging. That's exactly the point of the process. So the criticism provided to the process, I think, is right on the money. That's right, and that's the intent. The process is working. And I think your real protests have to be heard by the county commissioners because they're getting exactly what they asked for. Unless you can convince them that that's not what they want -- which I think you've got a hard way to go because they don't want to be micromanaging relatively small decisions. They want to act in the very broad strategic sense. They only have so many hours in the day, and they're being tied up in insignificant details. So I think we've got to understand where it's coming from. And then the idea of a citizens advocate, I think it has some merit, but I wouldn't support any motion on the whim of a conversation in the process of, although an eloquent presentation, and then we go suddenly off in another tangent with a brand new idea. This hearing examiner first came before us nine months ago. I think we were notified at Planning Commission, and it's working its way through the grind. I wouldn't want to start up with something totally new and revolutionary. It's a good idea. Let it work its way through the process, but let's pay attention to the one that's in front of us right now, and that's the hearing examiner. MR. WHITE: Madam Chairman~ may I make a few comments on that? CHAIRMAN RAUTIO: Yes. MR. WHITE: One is that you raise a very good point; that is, what is the process intended to do. I think the large vision or the big picture is to allow reason Page 33 May 30, 200t and regulations and evidence and testimony, whether it's the opinions of citizens or staff or the applicants, to be what reaches the final decision. There is still the opportunity for the board to deal with that recommendation in whatever fasion they deem best. As to the function of the Planning Commission, just to reiterate, I think it's important that we take advantage of the experience that committees like this and EAC and others have and put it to its maximum use so that we have a process where what we're doing is refining and defining the issues. As an application comes in for a major project, it's worked through staff. There's discussion back and forth with the applicants. You get a staff report that may or may not have certain recommendations and conditions in it, and those themselves can be evaluated in the context of the hearing where folks that are the applicants that may not like them get to present their case. And if there are people who are members of the public that like staff's presentation and those conditions or suggestions or want them amplified, they have that opportunity. And what the process has envisioned and what I believe it's intended to do is to refine and define those issues so that only the ones that are truly the contentious issues are what's left for, in the broadest scope as you've indicated, a policy level type of decision being rendered by the board based upon those recommendations. And I appreciate your comment because it gives me the opportunity to bring that to the public as well. MR. DUNNUCK: If I can just take a minute momentarily just to summarize, you know, some of the conversation that we've had this evening about some of your options that you have, because there has been this concern about citizen participation and where you-all can go with it. Mr. White had mentioned the idea of giving the board the opportunity to request -- after a Page 34 May 30, 2001 decision is rendered from the hearing examiner to make a request within 15 days if two commissioners agree to actually take over the jurisdiction of that issue. That could be an option. Or you could pare back, exactly, all the decision-making authority of the hearing examiner and say, as opposed to jumping in the deep end which -- as Patrick said, it's much easier for us to give you the full view right now and say, "Take the crayons out of the box" as opposed to saying, "Here's some of the crayons." If you want more in, then he's scrambling over the next two weeks to put it all in. So, you know, if you want to take a look at, say, the variance issues and say, yes, you know, we may recommend that the hearing examiner hear those. The conditional uses and your zoning issues, which tend to be your larger issues which instill larger public participation, you may say the hearing examiner makes a recommendation and takes it to the board. And then you allow still that citizen participation up until that level, you know, for right now and see how it goes and see how this process works. In the meantime, we work out the kinks of this public participation plan that we're bringing back to you-all and to the board in September, October, which talks about all the issues of addressing the public participation side of it, and then you say, yeah, do we like it, or no, do we want more. I mean, that's where you can really create the rules of the game. With the administrative code, you had a concern about the variance side of it. You know, you'll have the ability to be involved in the administrative code process that we're creating for the hearing examiner, and then, you know, give direction to say this is what we're looking for out of the hearing examiner when we develop that process. This is one step, but there are a lot of key areas that you will have the ability to make those decisions that will affect public Page 35 May 30, 2001 participation and citizen involvement. And I think what we're saying tonight is, you know, if we can get a recommendation one way or another, that stuff will be coming forward as well as part of this process with the understanding that, you know, the resolution that's created that determines exactly when the hearing examiner starts will be dependent upon having these pieces of the puzzle in place. CHAIRMAN RAUTIO: Okay. Any other comments? I would just like to say that from what I hear there's three major points that we're asking to consider when we vote on this. The first one would be a provision to allow an appeal of the hearing examiner's ruling on a variance case to the Board of County Commissioners. Is that stated correctly? COMMISSIONER ABERNATHY: Anything where the hearing examiner rules finally. COMMISSIONER PRIDDY: I would -- CHAIRMAN RAUTIO: Not just variances. COMMISSIONER PRIDDY.' I would prefer to see the commission have the ability to do that over if the public is pushing them to do that. In other words, two of them have the 15 days to take jurisdiction over that, whether it's a variance or anything else. My other comment is, if we're going to spend this kind of money on a hearing examiner, and I put on my taxpayer hat, I'd rather him be doing something or her be doing something other than boat-dock extensions and variances. CHAIRMAN RAUTIO.' Okay. So on that issue to allow the Board of County Commissioners to have a mechanism to take jurisdiction, does that sound reasonable to all of you? Any more comments on that? Because that's the one part that I think we need to include, I guess, in a motion. Do we have to wait to the end then to make it, or should we? MS. STUDENT: Typically for Planning Commission meetings Page 36 May 30, 2001 dealing with LDRs, we have done one at the end. On the comp plan, as you recall, we take it element by element with one motion at the end kind of wrapping up the whole thing. The only time we've separated them out for the Planning Commission has been -- we had one member at one time where there was a conflict, and we had to separate pieces of it out. I would think what you might want to do is take a straw vote on, you know, a particular item, and then at the end, you know, wrap it all in. That way you could see where you were going. CHAIRMAN RAUTIO: Okay. Well, I've only covered one point. That's the jurisdictional aspect. Then we had another point about creating a mechanism for the opportunity to speak before the Board of County Commissioners if for some reason someone from the public was not able to appear before the hearing examiner. MS. STUDENT: Madam Chairman, if I might, I just spoke with the county attorney, and he sees no reason why we couldn't take a vote, you know, on a particular item but, of course, with that you need to make the finding about consistency with the comp plan then for that particular item as part of your motion if you're going to, you know, take it like that. COMMISSIONER PRIDDY: Your second point, though, is taken care of by our first one, isn't it, if the public -- if someone from the public didn't get a chance to speak, if they can convince two commissioners that they've got substantial evidence, then they can be heard. Otherwise, it doesn't tie up the entire process with automatically getting hurt because I was at my daughter's wedding in New Jersey and wasn't here. CHAIRMAN RAUTIO: So then that also takes care of the third point which was something similar to, say, a second-reading concept under certain types of cases because -- MR. REISCHL: Madam Chairman, if I could address that. It's Page 37 May 30, 2001 one of Mr. Simonik's points. As Mr. White said, with administrative rules -- CHAIRMAN RAUTIO: Uh-huh. MR. REISCHL: -- if it passes, you will be able to review or suggest administrative rules. Another thing they did in Lee County was had a time certain for each hearing. A possible administrative rule for a major rezone would be to schedule something from 10:30 to 11.'30 on one day knowing that it's going to run two or three hours, and then have it scheduled for the next week's hearing. CHAIRMAN RAUTIO: And then there would be publicity in some newspaper-- MR. REISCHL: As a result of the first -- COMMISSIONER PRIDDY: I think that makes a lot of sense. MR. REISCHL.' It would make a big difference. CHAIRMAN RAUTIO: Does that feel comfortable? Someone's going to have to make a motion and wrap these in here. MS. MURRAY: I'm sorry. Did I understand that you were not taking action on this today, that you were on the June 7th meeting? Is that correct, or did I misunderstand? CHAIRMAN RAUTIO: Uh-- MS. STUDENT: No. It's the whole hearing officer item with the exception of 1.8 which deals with nonconformities, and that's part of it. MS. MURRAY: I'm sorry. Okay. Thanks. CHAIRMAN RAUTIO: That's the only part of this that -- so is the pleasure of the board here -- would we like to handle this right now and resolve it so we don't forget what we had three hours from now? COMMISSIONER BUDD: Yeah. CHAIRMAN RAUTIO: Okay. I think that's reasonable. Page 38 May 30, 2001 COMMISSIONER BUDD: I would like to make a motion that we adopt this proposed amendment with the specific inclusion that there be some language that the county commissioners at their option -- say, two of the county commissioners can bring the review process within their -- in front of them. That would give additional hearings to get public comments and two county commissioners. If you don't want to see it, it goes to the hearing examiner, and the next protest or appeal is the circuit court. CHAIRMAN RAUTIO: And part of your motion would be that you feel this is consistent with the -- COMMISSIONER BUDD: Yes. CHAIRMAN RAUTIO: -- Growth Management Plan? COMMISSIONER BUDD: Consistent with the Growth Management Plan, yes. CHAIRMAN RAUTIO: Do we have a second? COMMISSIONER ABERNATHY: I'll second it. COMMISSIONER PEDONE: Second. CHAIRMAN RAUTIO: Well, that was -- do we want to try it again? We have a motion by Mr. Budd and I believe a second by Mr. Abernathy to accept the hearing examiner concept the way it's been presented to us with the changes and suggestions. Do we have any further discussion? COMMISSIONER ABERNATHY: Yes. I would like to state for the record that if it weren't an exercise in futility, I would make a motion to forward this recommending disapproval, but since it is a motion and an exercise in futility, I won't make the motion. I don't think I can get a second for that matter -- CHAIRMAN RAUTIO: Okay. COMMISSIONER ABERNATHY: -- because Mr. Richardson isn't here. CHAIRMAN RAUTIO: Okay. Mr. Pedone, do you have some further comments? Page 39 May 30, 2001 COMMISSIONER PEDONE.' CHAIRMAN RAUTIO: Okay. favor. (Unanimous response.) CHAIRMAN RAUTIO: (No response.) CHAIRMAN RAUTIO.' No, none at all. I'll call the question. All in Opposed, like sign. Motion carries. MR. WHITE: On the motion, Madam Chairman, it wasn't stated, but I'm presuming that it was limited to variances. CHAIRMAN RAUTIO.' No. COMMISSIONER BUDD: No. MR. WHITE: Then I'm, I guess, a little confused. I'll sit down and accept the motion. CHAIRMAN RAUTIO: I think the concept was that it would allow the Board of County Commissioners to take jurisdictional -- to take jurisdiction and then go from there if two county commissioners chose to do that. Is that not correct, Mr. Budd? COMMISSIONER BUDD: Yes. COMMISSIONER PRIDDY: And it was also not my intent with my vote to limit the hearing officer to hearing boat-dock variances and boat-dock extensions. MR. WHITE: I understand. COMMISSIONER BUDD: We knew that. MS. MURRAY: All petitions where the hearing examiner makes a final decision is what I wrote down; is that correct? CHAIRMAN RAUTIO: That is correct. COMMISSIONER BUDDY: That's right. CHAIRMAN RAUTIO: Okay. Moving right along to our next item after an hour and ten minutes, I believe we are up to Section 2.6.34, annual-beach-events permit. I believe -- MS. MURRAY: We've got a brief presentation on sea turtles. It was based on the information you requested at the last Page 40 May 30, 2001 meeting when we heard this. CHAIRMAN RAUTIO: Okay. MS. MURRAY: And Maura Kraus will be making that presentation, and then we will take the items individually. If you don't mind, we'll start with vehicles on the beach rather than the annual-beach-events permit. CHAIRMAN RAUTIO: Okay. What's the pleasure of the board wanting to go with the more controversial vehicles-on-the-beach regulation? MR. ABERNATHY.' That's fine. CHAIRMAN RAUTIO: Okay. Thank you. Miss Kraus, you have the floor. MS. KRAUS: Thank you. Maura Kraus, Collier County natural resources department. I brought a brief presentation that we gave to the Environmental Advisory Board, and I've added some other pages in here in hope to answer some of the questions that were brought up at the last meeting. It has to do with beach hazards and sea turtle protection. Just to remind you, when we were discussing false crawls last week or a couple weeks ago, a false crawl is a non-nesting emergence or an aborted nesting attempt. Sea turtles expend large amounts of energy coming on the beach not being able to find an area to nest. It could also cause them to find an unsuitable nesting location. One of the goals of the Collier County Sea Turtle Protection Plan is to reduce false crawls. I have a couple examples of some false crawls that have occurred when beach items have been left on the beach. It's a little bit hard to see here, but here's a false crawl or a turtle that came up to look for a nesting spot and ran into a stack of chairs. CHAIRMAN RAUTIO: Do you know where that picture was taken and when? How long ago? MS. KRAUS: I can't tell you when, but I recognize the chairs. Page 41 May 30, 2001 Yeah. It happened at the Pelican Bay Conservation Area. CHAIRMAN RAUTIO: The Pelican Bay Conservation Area? MS. KRAUS: Uh-huh. CHAIRMAN RAUTIO: Okay. MS. KRAUS: Yeah. We know what all the chairs look like. COMMISSIONER PEDONE: Excuse me, but is there a turtle in this picture? MS. KRAUS: to -- excuse me. track that a turtle had made. It came up and hit the chairs. It came up here (indicating) and spun around and went back down. CHAIRMAN RAUTIO: He did the cul-de-sac approach. MS. KRAUS: The picture was taken very early in the morning. Just to remind you, it is not on our data sheet when we're out collecting data in the morning to record that a sea turtle came up and hit a chair, so whatever data we're presenting to you now is the minimum numbers. We do have an area where you can draw a picture on what happened when the turtle was on the beach. Some people are better artists than others and include everything in the picture, you know, including the chair, so the numbers that we're looking at are very minimum. COMMISSIONER PEDONE: Do we know where this location -- who put the chairs out? CHAIRMAN RAUTIO: This one, again, was at the Pelican Bay Conservation Area, the second picture. COMMISSIONER PEDONE: Yeah. Whose chairs are they? MS. KRAUS: Pelican Bay. It belongs to the Pelican Bay -- COMMISSIONER PEDONE: Pelican Bay Club? MS. KRAUS: Yeah. CHAIRMAN RAUTIO: And they have been informed that they need to stack these up and move them and chain them? MS. KRAUS: Yes, and they've been very, very good. This There's not a turtle, but you can see -- you have I'm not used to this machine here. This is a Page 42 May 30, 2001 was taken several years ago. CHAIRMAN RAUTIO: Several years ago. Thank you. MS. KRAUS: Yeah. They're very good at doing that. But this COMMISSIONER PRIDDY: I have a question. CHAIRMAN RAUTIO: Mr. Priddy has a question. COMMISSIONER PRIDDY: What is you-ali's procedure for going out daily, and how do you-all get up and down the beach? MS. KRAUS: We use ATVs along the mean-high water, and that's a conservation. CHAIRMAN RAUTIO: You use them along the mean-high water? MS. KRAUS: Yes. CHAIRMAN RAUTIO: So you park and walk up to where you find a nest? MS. KRAUS: Uh, no, not necessarily, because we do have to drive over our tracks so it doesn't get recounted or confuse somebody the next day if there are a lot of tracks on the beach. So we do go up and run over the sea turtle crawl itself, and it's a permitted use under our conservation. CHAIRMAN RAUTIO: I went and purposely walked up and down the beach and took some notes and talked to a number of people and asked a variety of questions this weekend, and I noticed that one of the nests that's south of the Ritz, probably closer to Bay Colony, had an awful lot of ATV tracks all around it, and I thought that was really odd. I was hoping that the beach patrol people didn't go up there to stop and look at it. There were more ATV tracks than people walking there. MS. KRAUS: Well, that's one of the reasons for the tire identification. It's going to be on the -- the tire treads would identify that. There are other ATVs on the beach. The North Naples Fire Department has daily patrols up and down the beach. Page 43 May 30, 2001 CHAIRMAN RAUTIO: And they would be interested or intrigued enough to drive up and sort of turn around and check out that turtle nest? MS. KRAUS: I'm not sure. There could have also been people on the beach where they had to drive around them. There were people walking, and they might have driven around the people that were walking along the mean-high water. I'm not sure exactly where the nest was. That's kind of hard to -- CHAIRMAN RAUTIO: Way up in the dune. We're talking way up in the dune. COMMISSIONER PEDONE: Let me get this straight then. The people who are monitoring the turtle nest and the fire department are allowed to go on the beach with the ATVs in the areas that no one else can go with the ATVs? COMMISSIONER PRIDDY: COMMISSIONER PEDONE: COMMISSIONER PRIDDY: COMMISSIONER PEDONE: And the sheriff's department. And the sheriff's department. And the sheriff's department. Is that true? MS. KRAUS: Apparently so. COMMISSIONER PEDONE: Oh, okay. MS. KRAUS: I don't know. We're on the beach early in the morning, and we're not there in the afternoon monitoring where everyone else is driving the ATVs. COMMISSIONER PRIDDY: Well -- CHAIRMAN RAUTIO: Wait a second. COMMISSIONER PEDONE: Well, it just seems a little funny that, you know, the hotel can't drive up there to get their chairs, but the other three agencies can, and they don't harm the turtles. I don't understand why you don't harm turtles and other people do. MS. KRAUS: Well, we see where our nests are. We're also making one pass once a day, not going back and forth picking up Page 44 May 30, 2001 chairs all day long. COMMISSIONER PEDONE: Okay. CHAIRMAN RAUTIO: Okay. COMMISSIONER PRIDDY: I spent two nights at the Ritz this weekend and went out for a walk early in the morning and within ten minutes had two ATVs pass by me on the beach, that being the fire department and the sheriff's department, and that's what stimulated my question for her. Now we're finding out that there's three and that ATVs on the beach may, in fact, be okay but for certain people. That was where I wanted to lead this discussion. I certainly didn't want to interrupt your presentation, and I want to hear the rest of it but ... MS. KRAUS: Okay. This is just another example of a sea turtle crawl coming in contact with a boat that was left on the beach. My next picture here (indicating) is actually a real picture of a sea turtle that had come up onto the beach to nest and got caught in a beach chair, and it ultimately killed the turtle. CHAIRMAN RAUTIO: That's on our beach? MS. KRAUS: This was on Fort Myers Beach. CHAIRMAN RAUTIO: Fort Myers Beach. MS. KRAUS: This (indicating) is another one on Sanibel Beach. This turtle came in contact with a chair that was lost in the Gulf of Mexico. It could have either fallen off a boat, or it came off of the beach during high tide when it was left out at night or something. We're not sure where the chair came from but, you know, we are requesting limited use of the ATVs to get the chairs off the beach. CHAIRMAN RAUTIO: I could see that that chair probably was in the water for a considerable length of time just from the crud that's hanging on it. COMMISSIONER PEDONE: The barnacles. Page 45 May 30, 2001 CHAIRMAN RAUTIO: The barnacles. MS. KRAUS: Another question that was asked the last time we were here was relative to non-nesting emergences and -- I mean, excuse me -- boats on the beach, beach furniture, and what the percentages and the whole numbers were. I went back through the data. Vanderbilt Beach preventable non-nesting emergences from 1997 to the year 2000 are tabulated on this chart here (indicating), and the beach furniture represented 16 false crawls, which were 22 percent of the nests, and I believe that's what the question was -- CHAIRMAN RAUTIO.' Right. MS. KRAUS: -- at the last meeting. COMMISSIONER BUDD: What is an escarpment that accounts for half of the false crawls? MS. KRAUS: Well, considering this started in 1997 -- in '97 we had just finished the beach renourishment, the 1996 beach renourishment, and that is a typical thing that happens right after a beach renourishment. A scarp forms, and the sea turtles can't get up the scarp to lay their -- COMMISSIONER BUDD: It's like a little cliff? MS. KRAUS: No. It can be a big cliff. We had some quite large ones after that beach renourishment. CHAIRMAN RAUTIO: But how would you know that that's what stopped them? Couldn't the water wash that away before you had a chance to monitor it? MS. KRAUS: No, not necessarily. I mean, if it occurs -- usually scarps form during a storm event -- CHAIRMAN RAUTIO: Uh-huh. MS. KRAUS: -- or an unusually high tide. So there would be some that we would miss, okay, if the tide had come up, but the scarp could stay there for days, week, and we could still see that crawl. Page 46 May 30, 2001 CHAIRMAN RAUTIO: Thank you. It does say fences on here. There are actually fences on our beach that prohibit a -- MS. KRAUS: Construction fences. CHAIRMAN RAUTIO: Construction fences. Thank you. MS. KRAUS: This is a little bit hard to see here (indicating). You asked for the locations of false crawls and nesting activities around hotels, and I put this chart together. Again, it's from 1997 to the year 2000, and the areas -- the blue are the false crawls, and the green are the nests. I've highlighted the different hotels. And you can see the difference in the false crawls and the nests at these various locations, and I have whole numbers for this if you-all are interested in the numbers. CHAIRMAN RAUTIO: These are basically false crawls that are not damage to a nest or a destruction of a nest? MS. KRAUS: Yes. These are just false crawls. The non- nesting -- well, they're false crawls and nests. CHAIRMAN RAUTIO: And nests? MS. KRAUS: Uh-huh. The blue are the nests, and the green are the false crawls. Each one of these (indicating} units represents a thousand feet, so this would be at DNR Monument 17 and the Delnor-Wiggins Pass State Recreation area is here (indicating) through here (indicating). The different hotels are highlighted in yellow. And as I said, that's per a thousand feet of beach. We do have this GPS'd and mapped. CHAIRMAN RAUTIO: And so the Ritz, Remington, and Bay Colony Club -- that is in green -- that's false crawls, so all of those are combined into one point there; right? MS. KRAUS: Yes, because that would be the south portion of the Ritz-Carlton, and it also encompasses all of the Remington and part of Bay Colony Club. CHAIRMAN RAUTIO: Apparently, according to one of the vendors on the beach, there's usually at least one, if not two, Page 47 May 30, 2001 nests in that south direction, and they're very respectful of it on a regular basis. MS. KRAUS: The Ritz usually gets about three nests a year. CHAIRMAN RAUTIO: Three nests? MS. KRAUS: Uh-huh. CHAIRMAN RAUTIO: That's on Ritz property versus south -- MS. KRAUS: Well, as you can see, the more you go south into the Pelican Bay Conservation Area and private, the false crawls-to-nest ratio changes. CHAIRMAN RAUTIO: Huh. COMMISSIONER PRIDDY: Irregardless of what regulations we put in place, though, one half or about 49 percent of this is caused by Mother Nature according to your chart here? MS. KRAUS: Well, what I would have to do to be able to answer that question is to go back through the data and find out exactly where all these scarps were in relation to the DNR Monument, which I didn't do, and if you would like to see that we can do that. COMMISSIONER PRIDDY: Well, but I meant just going by this chart, irregardless of what we attempt to do as humans, Mother Nature is going to take care of 50 percent of it? MS. KRAUS: Not necessarily. We did the beach renourishment, so that scarp would not have been there. COMMISSIONER PRIDDY: Mother Nature removed the sand - MS. KRAUS: Right. CHAIRMAN RAUTIO: -- that we paid to put on there. MS. KRAUS: Right. So that's just the normal process when you do extend the beach out. You know, that's all built into the plans, so we have scarps and -- COMMISSIONER PRIDDY: But if we hadn't of put the sand back, there eventually wouldn't be a place for them to lay eggs. Page 48 May 30, 2001 MS. KRAUS: That's true. COMMISSIONER PRIDDY.' I mean, so Mother Nature is taking care of 50 percent of it. MS. KRAUS: Just as a comparison, we did make a chart for Park Shore beach. Park Shore does not have hotels on it, but it did have a few beach accesses. With this chart I can show you here (indicating) is where we do have the increased possibility of humans being on the beach. You will see an increase in false crawls and a decrease in nests in the beach-access areas. COMMISSIONER YOUNG: Did you -- MS. KRAUS: That can also be seen in the City of Naples, Marco Island. CHAIRMAN RAUTIO: I'm sorry. Did you say humans on the beach? MS. KRAUS: Yes. CHAIRMAN RAUTIO: Okay. Because Ms. Young made a comment about one of these, and I missed that. So humans on the beach tend to -- MS. KRAUS: They can -- CHAIRMAN RAUTIO: -- exacerbate the problem of false crawls? MS. KRAUS: Yep. Yes, they can. CHAIRMAN RAUTIO: Hopefully we're not going to ask the humans to stay off the beach. COMMISSIONER PRIDDY.' If we all move out, the turtles can become more popular, and we'll have more panthers. If we're all willing to leave Florida, we can help these numbers. MS. KRAUS: We're mostly out there looking for turtles. Okay. Our recommendations are to remove all items from the beach and store in designated areas or in an off-beach location, to allow for limited ingress and egress corridors for travel -- for vehicle travel to facilitate the removal of the furniture and other Page 49 May 30, 2001 items, and to regulate the ground-to-tire pressure standards to 10 PSI and require the tire-tread identification. CHAIRMAN RAUTIO: And those recommendations are included in what we're looking at here in the vehicle-on-the- beach regulation specifically, or is it sort of spread out? MS. KRAUS: It's spread out through all three. CHAIRMAN RAUTIO: Okay. MS. MURRAY: Madam Chairman, can I go back to the question you asked at the beginning regarding operation of vehicles on the beach and witnessing of some ATVs? That's particularly bothersome to me. I found the section of the code that really prohibits that during sea turtle nesting season, May 1st to October 31st of each year, except in cases of law enforcement, emergency, or conservation of sea turtles. Whether or not you witnessed somebody in the act of law enforcement or conservation, I can't be sure, but I just wanted to bring that to your attention that, no, it's not limited to a select group of people for recreational purposes. It's for those specific purposes that the law provides. COMMISSIONER PEDONE: I didn't think it was for recreational. I know that the sheriff is out there doing a job and so is the fire department. My question is, doesn't he cause as much damage as somebody else on that ATV? I mean, here we are saying, "You can't do it," but it's okay for him to do it, and he can ruin that turtle nest, but you can't ruin that turtle nest. If you do you're going to get fined $5,000 or whatever it is, and you're going to lose your permit for 70 days. Well, it doesn't seem fair. I agree with everything you're saying about getting things off the beach by a certain time, doing the tire pressure, identifying the tires. It's all well and good, and the fines are well and good. But I noticed that we still have in here the penalty of the permit being suspended that we said we Page 50 May 30, 2001 were not happy with on the last one. MS. MURRAY: Sure. We'll get to that individually. I've summarized it as you'll notice on your handout, and if you want to talk to that one when we get to that, we can certainly discuss that, but perhaps there needs to be some better communication between staff and the law enforcement officials as to whether or not they're, you know, freely driving up and down the beach when they could be driving up and down at the mean-high water line and only going up onto the beach -- COMMISSIONER ABERNATHY: Where was the -- MS. MURRAY.' -- in an emergency situation. THE COURT REPORTER: Wait. CHAIRMAN RAUTIO: One second. COMMISSIONER ABERNATHY: Are they midway up the beach or closer to the water? COMMISSIONER PRIDDY: They were -- CHAIRMAN RAUTIO: Mr. Abernathy, go ahead. You were asking Mr. Priddy that. I want to make sure it's on the record. COMMISSIONER ABERNATHY: Mr. Priddy has given some testimony about -- COMMISSIONER PRIDDY: I was between the water and -- I was walking in sand that was fairly firm from water having come up on it, and the ATVs -- both of them were up higher closer to the nest that I walked by, in between me and the nest that I walked by on the beach. Now, I respect that both of those agencies, as does staff or whoever is monitoring the turtles, you know, has a job to do and perhaps needs to be there. I'm not questioning any of that, but like Commissioner Pedone, I'm questioning the fairness of those folks being able to do their job as opposed to another group of folks being able to do their ]ob. In most cases, the folks that are putting out chairs and/or things for parties are limited to a much smaller area of the beach than Page 51 May 30, 2001 what these three agencies are with coming and going. CHAIRMAN RAUTIO: Right. And I would like to add that on Saturday the tracks that I witnessed were at the nest that's already covered and roped off or the yellow tape around it down past -- I guess, it's toward the Remington or Bay Colony. It was very clearly there. I had an environmental biologist with me who has been adamant that these types of things should be real strict in the code. By the time we finished our field inspection and our discussion, he realized that maybe some of the restrictions were too strict and that indeed -- he stood there and looked and said, "Huh. These tracks are right up next to this nest. Why would they have to pull up an ATV? Why would they turn around?" He actually explained to me this, this, and this. And I said, '~Nell, they must have had to monitor this nest for some reason." And I was surprised that the tracks were right there at the nest and this was -- it must have been one o'clock in the afternoon. So I just wanted to make sure I understood why we would be that close and what that really means for that nest itself. MS. BURGESON: Just for a matter of record -. Barbara Burgeson with planning services -- I wanted to address that section of the code that Susan just discussed where it allows the enforcement -- can I get a copy of that? MS. MURRAY: Uh-huh. MS. BURGESON: The language is written to state that it actually prohibits vehicles above mean-high water during sea turtle nesting season except in cases of law enforcement, emergency, or conservation of sea turtles. We can write the vehicle-on-the-beach permits a little bit more concisely to state that although they are allowed to use those vehicles above the mean-high water specifically for enforcement or emergencies, it doesn't mean that they're allowed to just drive above the mean- Page 52 May 30, 2001 high water when they're not in an emergency or an enforcment case. So we can more specifically tailor those vehicle-on-the-beach permits to require that they stay below mean-high water, which is the intent and the language in the code, except for those cases where they have to go above mean-high water. CHAIRMAN RAUTIO: That would be helpful, because the biologist did suggest that -- MS. BURGESON: Right. CHAIRMAN RAUTIO: -. perhaps this was overdoing it and was somewhat surprised, and we didn't really know because there are no tire-tread identification who it might have been. MS. BURGESON: I think part of the problem is sometimes these aren't brought to our attention so we're not aware that these are happening. CHAIRMAN RAUTIO: Right. MS. BURGESON: We can change that in the future. CHAIRMAN RAUTIO: Okay. I think we took the vehicle-on- the-beach regulation specifically because there was some issue of our Growth Management Plan or comp plan. Mr. Dunnuck, did you want to have staff refer to that? And then I'm sure we have registered speakers. MR. DUNNUCK: Sure. Susan, I don't know if you passed out the Comprehensive Plan document to the Planning Commission as of yet or not. One of the issues that's come up is whether this is actually even a viable use within the way the comprehensive plan is written. We've looked at it and opined from staff's perspective that in fact, no, it's not. Vehicles on the beach is really in violation of our current Comprehensive Plan specifically because our Comprehensive Plan only lists several actions, and one is for maintenance and one is for safety. This is a use activity allowing a vehicle to go down and pick Page 53 May 30, 2001 up chairs or put chairs down on the beach. We feel it's more of a use and not a maintenance issue. So we've recommended that instead of hearing this right now through the Land Development Code cycle that, in fact, you know, if the Planning Commission supports this concept, that they would recommend to the Board of County Commissioners to go back and amend the Comprehensive Plan or make a recommendation to amend the Comprehensive Plan in order to define it a little bit better that would allow the specific type of uses. The liability side -- and I know Mr. White is out of the room right now, but the liability side of the issue from the perspective of moving forward with this is that you create an action of potentially putting the county in a liable situation in the fact that if something were to happen and we granted a use that has not been allowed at the state level through the Comprehensive Plan, that we've kind of expanded upon it, and, say, you know, a turtle egg was destroyed, which is considered a taking, then we could be held liable as a county. We would feel much more comfortable if we had better definitions within the Comprehensive Plan first if, in fact, that's the way the board or the Planning Commission wants to go. CHAIRMAN RAUTIO: And the taking would be defined -- for the liability, what would be the enforcement or consequences for the county? MR. DUNNUCK: The enforcement or consequences could be, one, we could be sued by other organizations -- and I'm kind of treading on thin water because I'm not an attorney. But the other side of it is that you could be facing large fines as well. MS. STUDENT: Okay. I can address it. Mr. White is not in the room, and this was his part of the LDC. However, I believe it to be a violation of the Endangered Species Act, and under that act -- which I looked at a number of years ago Page 54 May 30, 2001 -- there are provisions for fines. And if I remember correctly, it's not only just the governmental body, but any individuals that are employees of the government that, you know, might be involved. Again, it's been a number of years since I looked at what we call the ESA, but there is a provision for fines and other penalties, and it may be even -- I can't swear to this now since it's been so long since I looked at it, but I don't know if there are imprisonment things or penalties as well. I just don't recall. CHAIRMAN RAUTIO: Well, I do believe Mr. White has arrived and not on his ATV. And Mr. Priddy has a comment. COMMISSIONER PRIDDY: Yeah. It seems that what we're all attempting to do is to save the turtle, and we've been shown testimony where chairs on the beach hinder that. We've not had any testimony where vehicles on the beach getting those chairs off have done any harm. I mean, it almost seems to me like we need to encourage the folks to use the vehicle to get the chairs off the beach sooner, get cleaned up by a certain time so that they're out of way. Now, is there anyone here that can tell me that an ATV has harmed a turtle on the beach? No. CHAIRMAN RAUTIO: We aren't seeing any shaking in the audience. Okay. COMMISSIONER PRIDDY: So why are we focusing on needing to get the ATVs off the beach as opposed to focusing on getting the other things off the beach that we know harm the turtles -- CHAIRMAN RAUTIO: In a timely fashion. COMMISSIONER PRIDDY: -. in a timely fashion? MR. DUNNUCK: Well, if I could address that for a second, I think the thing you have to look at is, are ATVs on the beach an allowable use right now, and the answer is absolutely not. So there is no evidence of ATVs causing damage because we haven't allowed it. Page 55 May 30, 2001 Now, they may have been using them in violation of the code but, frankly, outside of maintenance purposes, which has been an allowable use, or outside sea turtle nesting season, we haven't allowed ATVs on the beach to pick up chairs. CHAIRMAN RAUTIO: Now, you're saying that the use of ATVs on the beach at any time in your opinion is not consistent with our comp plan? MR. DUNNUCK: That's correct. CHAIRMAN RAUTIO: And you're not an attorney? MR. DUNNUCK: I'm not an attorney. CHAIRMAN RAUTIO: I bet Mr. White could give us his legal opinion, but I'm sure the two of you had a discussion, so I'm not sure why this -- go ahead. MR. WHITE: I apologize. I had to be out of the room temporarily. I understood just from hearing a little bit that there was a discussion about penalties. CHAIRMAN RAUTIO: Correct. MR. WHITE: And if I could have the benefit of hearing what that question was again I'll -- CHAIRMAN RAUTIO: The question was -- MR. WHITE: -- do my best to respond. CHAIRMAN RAUTIO: .- if the county would be liable if, for instance, a sea turtle was damaged, injured, or killed. It would be a taking. Therefore, it would have a mechanism. There would be some sort of enforcement or penalty involved, and the county would be liable. We were trying to determine what that actually entailed. MS. STUDENT: Patrick, I think it was on the Endangered Species -- under the Endangered Species Act. MR. WHITE: Correct. There is a specific provision that would consider that to be a taking. There are penalty provisions Page 56 May 30, 2001 that are extreme in terms of the dollar amounts. I don't begin to know if there are criminal provisions as well in terms of imprisonment, but certainly the fines alone are extreme. There's a parallel state statute, and the agencies of the state pretty much follow suit to the Fish & Wildlife and the federal government. So there is the potential to be, if you will, penalized twice. The theory is one that has been applied in Volusia County, for example, and I've talked to their assistant county attorneys there who are involved in at this point probably four separate cases of litigation. What the liability theory flows from is the notion that the government has to some degree, if you will, approved the use of instrumentality that otherwise would not be present but for that regulation. And there is a theory of liability that flows that even though you are not the person who, quote, unquote, operated that ATV, but for your regulation that ATV would not be there, and that's the theory under which the liability flows. CHAIRMAN RAUTIO: But if a chair hurts -- excuse me. If a chair tangles up the turtle, that's not a taking, or that's not a liability issue? MR. WHITE: There are folks in the various state and federal agencies who would tell you that it is. I have to tell you that as with every matter that we deal with, there is an attenuation of balance between private property rights and the use of your property versus the potential harm that occurs. CHAIRMAN RAUTIO: Mr. Priddy. COMMISSIONER PRIDDY: From the testimony we've heard here today, logic leads me to believe that we need to put in our Land Development Code the use of ATVs to help speed up the removal of beach chairs to help save the turtles. MR. WHITE: That would only be true if there was a presumption that the use of those vehicles would itself be less Page 57 May 30, 2001 harmful than any other means of removal. CHAIRMAN RAUTIO: Less harmful? MR. WHITE: Less harmful or at least equally. COMMISSIONER PRIDDY: Well, we've been told that there's no record of ATVs harming a turtle, and I don't think we've had any testimony that the people walking out to get the chairs off have hurt a turtle. So that being equal, we're talking about time. And if we could get them off quicker so that the turtles would have more access to the beach, I would think we would be doing a service to what we're trying to accomplish. MR. WHITE: And I don't have an opinion about that perspective or that argument. The only other thing I believe it may be appropriate for me to comment on is you had a discussion, and I believe I heard the words "Comprehensive Plan," and if you have a question about any of that -- CHAIRMAN RAUTIO: Correct. That's the next one. Mr. Dunnuck has stated that staff feels that the vehicle-on-the-beach regulation that we're discussing is not consistent with our Growth Management Plan, and I wanted a legal opinion. MR. WHITE: I believe it would be advisable for this commission to recommend that there be a clarification of policy - - I believe it's 10.4.10 -- brought forward so that we don't have a potential for inconsistency under the regulations that are being proposed. The policy itself contemplates that a certain amount of regulation will take place through the vehicle-on-the-beach ordinance. And the question is, if you expand the vehicle-on-the- beach ordinance sufficiently far enough to allow the types of uses of vehicular traffic that would otherwise offend policy, then you have inconsistencies. It would be necessary for this commission as part of its function in making a recommendation about comp plan Page 58 May 30, 2001 consistency to conclude that the regulations as proposed would not be consistent. But I think that we've all understood at this point that the board has asked for something to be brought forward. This is the best that we can give you based upon all of the parties and folks that have been involved in the process of creating the specific words on paper that you have to consider today. CHAIRMAN RAUTIO.' And the presumption is that an ATV is vehicular traffic? MR. WHITE: There's no question that it's not a presumption, but it's in the definition. CHAIRMAN RAUTIO: In-- MR. WHITE: It includes handcarts, wagons, dollies, pretty much -. whether it's horse drawn, hand powered or motorized. COMMISSIONER ABERNATHY: The question is whether we should recommend amending the comp plan. MR. WHITE: I think that what we're asking you to look at are the specific provisions themselves with an understanding that there would need to be some clarification of the Comprehensive Plan in particular that's affecting this, and that's 10.4.10. COMMISSIONER ABERNATHY: You could clarify the comp plan -- MR. WHITE: Policy. COMMISSIONER ABERNATHY: -- 10.4.10 to say that -- MR. WHITE: Yes. I believe that's the correct one. COMMISSIONER ABERNATHY.' -- approved maintenance purposes would include hotel activities. MR. WHITE: Well, there's any number of ways, Commissioners, that it might be possible to clarify this policy. COMMISSIONER ABERNATHY: Which way does the staff want us to do it? MR. WHITE: I don't think we have a recommendation with Page 59 May 30, 200t regard to that, but that's in part based upon -- we still haven't gotten opinions from other state agencies with respect to whether what we're contemplating doing in these regulations would be with respect to Section 161.58, vehicular traffic. We've gotten previous opinions that they're not -- we're expecting that we're going to get a similar opinion, if we get one at all, from the state DEP counsel that would indicate that the types of, quote, vehicles that Collier County is talking about are not the type that are contemplated under the statute in 161.58. They're only loosely tied to each other with the notion of whether we would be defending the statute in 161.58 and whether we have a comp plan consistency issue. CHAIRMAN RAUTIO: Okay. MR. WHITE: But because they both use the words "vehicle" or "vehicular traffic," there is some touching concern between them. CHAIRMAN RAUTIO: Well, I'm not an attorney and certainly not a planner -- MR. WHITE: I wish today that perhaps I weren't but -- CHAIRMAN RAUTIO: -- but I took the time to read the bulk of 161 and 161.58, vehicular traffic on coastal beaches. I guess there is room in here for attorneys to make different interpretations but -- MR. WHITE: That's why we've asked the agency that's charged with implementing and enforcing and administering it to opine as they have in the past. We are expecting that their opinion's going to be the same, which is that really the statute does not apply to the, quote, types of vehicles that Collier County considers to be vehicles. CHAIRMAN RAUTIO: But we're -- COMMISSIONER PRIDDY: It's clear that the -- CHAIRMAN RAUTIO: Excuse me. Page 60 May 30, 2001 COMMISSIONER PRIDDY.' -- county attorney does not have a recommendation on what to do, so we can run this circle for another 800 laps. Does our planning -- excuse me -- development services have a recommendation? Or, Susan, give us a recommendation of where to go because we're not going anywhere, and I've got a life, and I would like to move on to another topic. MR. WHITE: I believe my recommendation, Commissioner, was that you find the regulations themselves to be acceptable; that as to the consistency matter that you're required to make a determination on, that you make a finding that you believe it would not be consistent unless the policy were clarified. CHAIRMAN RAUTIO: Unless the policy were clarified? MR. WHITE: Yes. CHAIRMAN RAUTIO: So then we -- MR. WHITE: To allow the types of vehicle traffic that would be contemplated by the regulations. MR. DUNNUCK: I agree with Mr. Budd. I've got an anniversary this evening, so I want to keep this thing moving. In all fairness I think it may be appropriate to go to our speakers because I think what you will hear from their representation is that they have a compelling argument that they think currently this is not a part of the Comprehensive Plan and this is not an issue, and they may present that to you, which is for your discretion to make that, you know, recommendation. So with that I think it would probably be appropriate to go to them. MR. WHITE: The only thing I would request, if it hasn't been put into the record, would be just a quick reading of what that policy is, 10.4.10 -- CHAIRMAN RAUTIO: Please do. MR. WHITE: -- if I may. It reads as follows (as read): "Vehicle traffic or traffic on the beach and primary dunes shall be Page 61 May 30, 2001 prohibited except for emergency and approved maintenance purposes. The county shall enforce this requirement with the existing vehicle-on-the-beach ordinance." Now, there was an issue that came up with regard to the dunes and the idea of boardwalks, and I would just like to point you specifically -- there's a policy that talks about that. It's 10.3.6, and it's intended in the second sentence to create an exception for passive recreational structures, access crossovers and matters such as that. So there is a portion of what's proposed that I believe would not be inconsistent with this policy, and that would be the idea that there may be some appropriate construction to the existing boardwalks that may allow ATVs to be used on those boardwalks in conjunction with the idea of a staging area where materials would be brought up there, and then the ATVs would just travel up the boardwalks. CHAIRMAN RAUTIO: But you're talking about the primary dunes, so if you have a boardwalk over the primary dune, that's already been permitted, and it's allowed, and we're going to stretch it to say that an ATV can't drive down on that? MR. WHITE: No, no. What I'm suggesting is that -- not that the end of the boardwalk would be moved further seawards, but rather that perhaps, like, a hammerhead or a turnout would be put on there or be expanded and, again, getting the appropriate variances for the CCSL to allow the ATVs to turn around or trailers to turn around, whatever the case may be, so that they can serve the function of a staging area, if you will, for those materials brought up to the staging area and transport them mechanically over the boardwalk. That aspect of what's contemplated in these regulations with that slight technical fix to the boardwalk, if necessary, I don't believe would be inconsistent with the policy. Page 62 May 30, 2001 CHAIRMAN RAUTIO: You do not believe it would be inconsistent? MR. WHITE: I believe that that would be consistent. So to that extent and that limited degree, I think we have something that you could make a finding of consistency on. But I'm not trying to carve up the baby here. CHAIRMAN RAUTIO: No. MR. WHITE: I'm merely trying to give you the benefit of -- COMMISSIONER ABERNATHY: That's reassuring. MR. WHITE: -- the considerations I've had. CHAIRMAN RAUTIO: I do believe -- MR. WHITE: At this point I'll -- CHAIRMAN RAUTIO: Thank you very much. have registered speakers. Susan. MS. MURRAY: You do. I know you didn't last time. options. CHAIRMAN RAUTIO: Hopefully people aren't going to talk more than five minutes at a time, please. Let's -- I'll give you some latitude, but make your points quickly. MS. MURRAY: Matthew Grabinski, and on deck Ron Albeit. MR. GRABINSKI: I'm Matthew Grabinski here on behalf of the Ritz-Carlton. I take it we're just going to focus on the vehicle-on-the-beach issue; is that correct? CHAIRMAN RAUTIO: Correct. MR. GRABINSKI: I have a couple of pictures here and some handouts for each of you regarding some specific changes we would like to see made to the code. I will focus and touch -- I think there's really just one change we want to see made to the vehicle-on-the-beach regulations. Other than for the penalties, we would like the language clarified in 3.14.3.7, 5.7, and 6.7 to state that the operation of motorized vehicles shall be operated I do believe we Did you want to impose a time limit? I just wanted to give you your Page 63 May 30, 2001 below the mean-high water line the purpose for that being to allow for the hotels to use push carts and dollies on the beach during the day. Included in the handout that each of you has is a vehicle-on- the-beach permit that was issued to the hotel last year that allowed them to use a push cart during sea turtle nesting season. There is also a permit in there that allowed the hotel to rake the beach above the mean-high water line last year during sea turtle season, and there are also some copies of EEP field permits in there for your reference that I'll touch on later. Since the -- I think the issue that we're all hung up on now is the Growth Management Plan issue. I'd just like to make a few points and address some concerns and issues raised by Mr. White. First of all, as he pointed out, the issue with respect to 161.58 of the Florida Statutes and its prohibition on vehicular traffic, so far we have received two letters, and all of you -- I provided copies of those letters with it -- stating that these proposed amendments do not offend 161.58. Hopefully -- you know, if the third time is a charm, then hopefully we'll get that third time, but we've already received written verification twice that it does not. With respect to the definition of vehicular traffic, Mr. White stated that it's defined in the comp plan or in the code. I would like to know where that definition is because the comp plan only states that vehicle traffic or traffic is prohibited, and then it gives its exceptions. The county code unfortunately does define "vehicles" and basically defines them as anything powered by a human, by an animal, anything with two wheels. That's a vehicle. But I don't see a definition anywhere of vehicle traffic. And I know that -- I think everyone is sort of waiting for someone to come in with a definitive answer and a higher authority up to make a decision so that we can all just hang our Page 64 May 30, 2001 hat on that and accept it and, hopefully, you know, we'll all get the answer we're looking for, but part of that is your ]ob. Part of your responsibility is to look at these amendments, to look at the language of the comprehensive plan, and ask yourself, "Is this consistent?" So I'm asking you, do you think that allowing that ATV to drive off to the end of that boardwalk, unload, turn around and drive back up constitutes the type of vehicle traffic that the drafters of the comp plan intended to prohibit? I don't think that it does. I don't think that it constitutes vehicle traffic. Even if it did, I think that you could make a very legitimate argument that such a use could be an approved maintenance purpose. Or, in light of the presentation that was just given by Miss Maura Kraus regarding what the recommendations were to alleviate the problems of the beach furniture, one of the recommendations was to use an ATV to help remove the furniture from the beach more quickly. So I think there is a legitimate argument, one, that this simply is not the type of vehicle traffic or traffic contemplated by the comp plan; two, it can legitimately be called an approved maintenance purpose, or, three, a conservation purpose. You have three options. You can approve this amendment, and you don't have to amend the comp plan to do so. If you feel that the comp plan needs to be clarified, I would at least ask that you recommend that this amendment go forward, that it be approved. You can always clarify the comp plan afterwards. And I would also like to point out, since it hasn't already been mentioned, that if this is challenged by a substantially affected person -- if the consistency were challenged, the standard of review is, quote, fairly debatable. In other words, if it's fairly debatable that this amendment is consistent with the Comprehensive Plan, it will be found to be consistent. I think Page 65 May 30, 2001 that from all the discussion here it's clear to see that the issue is fairly debatable. Again, the issue that was brought up with respect to the possible liability under the Endangered Species Act, you know, it's a new issue that's come up that just started being kicked around. I would like to point out, though, the litigation in Volusia County -- I've read some of the cases as well. Volusia County allows automobiles to drive on its beaches. That's part of the big concern. That's my kind of vehicle traffic right there for you. Okay. I'm talking about push carts. We're talking about letting an ATV turnaround. Please use some reasonableness and common sense. CHAIRMAN RAUTIO: Thank you. MS. STUDENT: Madam Chair-- CHAIRMAN RAUTIO: Yes. MS. STUDENT: I would just like to address one of the points that Mr. Grabinski raised about consistency challenges of land development regulations with the comp plan. As I recall, I've had occasion to look at this within the last couple of weeks, and the process is this: First there is a petition that goes to the local government, and then it would be forwarded to the Department of Community Affairs. The Department of Community Affairs has a hearing. If they determine that the LDR is consistent with the comp plan, it could go on to the Division of Administrative Hearings, and at that juncture or in that type of proceeding the fairly debatable rule would apply if the DCA opined it was consistent. If the DCA in its hearing opined it was not, then I believe it's a preponderance-of- the-evidence standard. I don't have Chapter 163 down here -- I'm speaking from memory -- but I just wanted to state that for the record if it comes up before the Board of County Commissioners, I will have Page 66 May 30, 2001 the appropriate statutory references with me. CHAIRMAN RAUTIO: Thank you. MS. MURRAY: Ron Albeit with Doug Finlay on deck, please. MR. ALBEIT: Good evening. Ron Albeit, Registry Resort. Matt really spoke with great speed and accuracy in what we're trying to accomplish here, and I think he was pretty accurate in his understanding of the law. As a businessman running a business at the Registry Resort, we have -- first of all, last fall -- changed the LDC amendment. So if there was some concern as to the Comprehensive Plan, we have already been here and already changed the code once already. When we came before the commission last year and suggested we would need to operate our business 365 days a year, and the only considerations that we were told -- the reason why we were told to go back was to meet environmental groups and make sure this would be something that they could live with. We could set up rules and regulations, which we've spent a lot of energy and time now to put before you today, of which the Registry Resort is in full agreement with the regulations as they've been presented today. To postpone this actually puts our business in jeopardy. We are currently, last year, operating -- we were given as well -- I didn't have the CCSL variance that we were given. Because of the delay in last year putting forth the code change to allow vehicles on the beach in turtle nesting season, we were given a CCSL variance to operate our business at the beach allowing us to bring our equipment down to the pass in the beginning of the day and returning at the end of the day. So we operated last year with the understanding that by now we would have had this all resolved. So we now are sitting in violation, operating our business continually today under the understanding that this variance -- Page 67 May 30, 2001 actually the CCSL variance we were given also had an ending date of when this matter was to resolve. There was no termination date specifically mentioned on when this CCSL variance would terminate. So we were given a document that said this would terminate upon resolution of this matter. So I'm encouraging us to move forward in this process. There's been a lot of injury done. I would appreciate and applaud you to go ahead and move this forward so that we can proceed with our business and, as Matt said, let the Comprehensive Plan be decided how the interpretation of these things are. CHAIRMAN RAUTIO: So do you feel that this allows push carts and dollies -- the use of dollies on the beach? I think I heard you say that you would accept what we've outlined here. MR. ALBEIT: Yes. Matt's changed -- right now, in fact, I don't know if it's even mentioned in there. At the Registry Resort we have a handicapped chair -- CHAIRMAN RAUTIO: Right. MR. ALBEIT: -- that actually has a PSI of 10 pressure in it. I don't know if that's mentioned in the code. But we would allow a handicapped person to take that on the beach and use it. It's no different than the push dollies that the Ritz-Carlton uses. It's the same exact device except one has a chair and the other has a basket. And that's not in the code either, by the way, that we can use a handicapped chair on the beach. CHAIRMAN RAUTIO: Okay. COMMISSIONER ABERNATHY: The vehicle-on-the-beach regulation that I'm looking at, 3.14, has a section about penalties for violations. Are we talking about that tonight? MR. ALBEIT: Well, uh -- COMMISSIONER ABERNATHY: Do you want us to go forward with this? Page 68 May 30, 2001 MR. ALBEIT: We need to -- yes. I -- COMMISSIONER ABERNATHY: You don't agree with those -- MR. ALBEIT: Well, just losing the permit to be able to do it. I need to move on with my business. I'm going to be assured our staff is going to comply with the rules. Now, there are always circumstances -- as long as we can openly discuss circumstances such as an incident just a few days ago where there was trash dumped on the pass. Bottles were broken, cans were all over the place, and we were told by security, county security, that there were kids out there last night. We went down before turtle inspection to clean up the potential hazard to the public that goes on the beach. Again, without raking the beach we just used the vehicle. Now, did we break the rule that's in here? Yes, we did. But hopefully there's some -- this is all about relationships and understanding. If we're going to clean up broken bottles and beer cans left on the beach by some kids at night .. somebody was there -- so that the people that come to the beach can have a clean environment, which could go -- and I spoke to Mr. Dunnuck -- it could be under an environmental issue because we were -- you are allowed to use vehicles on the beach for environmental purposes. Again, it was before the turtle inspector came. This is -- operating a business today on the beach is a very difficult thing, I assure you. CHAIRMAN RAUTIO: So you want to see the policy -- MR. ALBEIT: No. I would like to see that the penalties -- to lose our right to use the vehicle is where we have a problem in the violation, taking away our vehicle, so that means, again, you shut down the business. So, again, if we are going to change -- if you could change the violation just to be the -- increase the penalty more to give us a bigger fine, I can handle that, and that could be substantial for our business, but you can't stop the Page 69 May 30, 2001 business from operating. There's a lot of -- there's more than just the Registry affected. The public here in Collier County would be affected by us not being able to launch a canoe in the pass. So there's a lot more people -- as I told you before, there's about 70 percent of the people that use Clam Pass are county residents. COMMISSIONER ABERNATHY: I agree with all of that. I just -- the last time we made such a to-do over the penalties that nothing has been said about them tonight, but you're still -- MR. ALBEIT: We don't want to lose our license to operate our vehicle. Yes, I appreciate that. I'm just trying to move this thing forward. COMMISSIONER PRIDDY: If I'm not going to speed, I don't care how much the tickets are. MR. ALBEIT: Right. "If I'm not going to" -- well, no problem, but just don't remove our license to operate. COMMISSIONER PRIDDY: Don't take my car away from me because you think I might speed. CHAIRMAN RAUTIO: Because the second violation is a seven-day suspension of the vehicle-on-the-beach permit, and then the -- MR. ALBEIT: Which is not practical. That means we can't operate the business for seven days, so we're going to tell everybody, "No, you can't rent the canoe today." Then there would be a whole situation because we did engage in a lease agreement with the county to operate on the beach for 16 years now the same way we've been operating it. Nothing has changed. For 16 years they've been operating the Registry Resort this way without any discussions like this, so we just want to comply with the regulations, but please don't stop our business. COMMISSIONER ABERNATHY: I thought two weeks ago we Page 70 May 30, 2001 told staff that we didn't want to talk about suspensions. We just wanted to talk about a scheme of monetary fines. CHAIRMAN RAUTIO: We did. MR. ALBEIT: Well -- COMMISSIONER PEDONE: There is something here, though, in this handout that they gave us that said to remove any language that would result in their revocation of the annual beach-event permit or a few other ones here. COMMISSIONER ABERNATHY: All right. I -- CHAIRMAN RAUTIO: Look for the vehicle-on-the-beach regulation at the top. MR. ALBEIT: There should be something also about not losing your beach permit, and you shouldn't lose your ability to operate an ATV machine. CHAIRMAN RAUTIO: On the beach permit, the paper I have in front of me just says that the change on the penalties is add the words "up to" a fine of $500 per violation. It does not say to remove the 7-day suspension on the second violation and the 30- day suspension on the third violation. COMMISSIONER PRIDDY: We can take care of that in the form of a motion, can't we? CHAIRMAN RAUTIO: Yes, we certainly can. MS. MURRAY: I'm sorry, Madam Chairman. I didn't get a chance to explain your cover sheet. We kind of jumped right into it, but the request portion is basically the request on part of the hotels, and if I'm leaving anybody out, please forgive me, but those were the most verbal speakers. And the change portion is actually the change that staff made as a result of the request and as of the input we received at the last Planning Commission hearing, so there may not be a change as requested. CHAIRMAN RAUTIO: So we could say "remove the suspension of the vehicle-on-the-beach permits from the penalty Page 71 May 30, 2001 section"? MS. MURRAY: Correct. If that's your recommendation, you could certainly give that to us, and we would forward it to the board. CHAIRMAN RAUTIO: Okay. I'm trying to take notes here so that we've covered the various aspects and then have discussion up here to make sure that we go forward with what either you want, staff wants, and hopefully what we want. MR. ALBEIT: Thank you. That's all I have. Thank you. MS. MURRAY: Doug Finlay. MR. FINLAY: Yeah. Good evening. I'll just be very brief. I think usually the law for at least a private citizen sometimes gets a little complicated and hard to understand, especially if you open ordinances and law books and things like that. But one thing that I've been kind of impressed with with 161.58 as well as the comp plan is -- especially the comp plan -- it's black and white. It's really very clear as to what is permitted and what isn't permitted. I think each of you really need to relook at what the comp plan says. The comp plan is pretty important to this county. A lot of effort, I assume, went into preparing it. It's something that has to be taken very seriously. Staff and Mr. Dunnuck have kind of raised a red flag over this issue of allowing a commercial enterprise to operate an ATV on the beach. There is traffic on our beaches. We know it. You've all seen it. You said so tonight. I've seen it. I see the fire department on the beach. I see the police on the beach. I've seen sea turtle nesting monitors on the beach. That's traffic. You know, there are about six or seven agencies in this county that can run an ATV on the beach, but it's all legal. It's legal under the current law. The ATVs that we're talking about now is an expansion of Page 72 May 30, 2001 161.58. 161.58 was meant to limit ATVs. It was not meant to expand its use. But regardless of 161.58, you've got to go back to the comp plan and just read it. It will tell you that this use is not permitted. And when Mr. Dunnuck says you need to look at this closely and we need to pause on this -- he's a county staff member. He's experienced in the management of this county, more than probably anybody else in this room, perhaps a few others, and I think we should listen to him and you should listen to him. CHAIRMAN RAUTIO: Mr. Finlay, you are speaking about the policy clarification we had earlier, 10.4.107 MR. FINLAY: Yes. CHAIRMAN RAUTIO.' That's the thrust of your discussion there? MR. FINLAY: Primarily, right. CHAIRMAN RAUTIO: And I believe Mr. White was telling us that there is a consistency within a turnaround area of the ATV rather than -- MR. FINLAY.' Not in 10.4.10, though. CHAIRMAN RAUTIO: That's your interpretation. MR. FINLAY: Right. CHAIRMAN RAUTIO: Okay. MR. FINLAY: Exactly. CHAIRMAN RAUTIO: Mr. Priddy. COMMISSIONER PRIDDY: Madam Chairman, while we're on that, my interpretation of that is an ATV -- irregardless of whether it's owned by the Ritz-Carlton, Don Hunter, the North Fort Myers Fire Department or the monitoring people -- is approved for maintenance purposes. If maintenance purposes is picking up a broken beer bottle that my teenager or your teenager left on the beach overnight, then that is maintenance, and it's for the health, welfare, and safety of our public. And the removing of chairs or Page 73 May 30, 2001 other items from the beach at an appropriate time is a maintenance function which is clearly stated can take place under 10.4.10. MR. FINLAY: Well, if I can comment, since when does delivering chairs and towels constitute as maintenance of our beach? I mean, I've heard the Ritz mention several times about towel delivery, how they need towel delivery. This qualifies as maintenance? This county is going to go to the State of Florida with this amendment and say, "We think that towel delivery qualifies as maintenance of our beach"? We do not even allow a single load of sand from a dump truck to enter our beaches during sea turtle nesting season. That is maintenance. We do not allow it. When Park Shore Beach was renourished here just recently, they had to finish by sea turtle nesting season, not one dump truck, and you didn't see one dump truck on that beach. That was maintenance. Delivering towels is not maintenance. CHAIRMAN RAUTIO: Okay. Any other questions of Mr. Finlay? (No response.) CHAIRMAN RAUTIO: Thank you. MS. MURRAY: Ilene Barnett. And after Ilene, Michael Simonik. MS. BARNETT: Good evening, Commissioners. I'm Ilene Barnett, environmental scientist and director with Vanasse & Daylor, and I'm representing the Registry. I would like to just focus on a couple of points to keep it brief. The main issue that I would like to point to your attention is something that has come to us rather recently, and that is the taking issue, the possible taking issue, regarding the Endangered Species Act. I've been in this business for 14 years, environmental regulations, dealing with the Endangered Species Act, and the Page 74 May 30, 2001 U.S. Fish & Wildlife Service, and I just don't see how the county could be liable for a taking under the proposed language. And I'm not an attorney, but I've worked with attorneys, and I've worked with the U.S. Fish & Wildlife Service. The language in 3.14 is so protective. If I could point your attention to 3.14.3.4.7, that's a paragraph of protective measures that's repeated throughout this ordinance. "No vehicle may be used on the beach until after completion of the daily sea turtle monitoring." You're talking about an ATV which has equal or less than ground pressure on the beach than a human being walking. The danger to this, as Michael Simonik had mentioned before, was that the tracks may obliterate the sea turtle tracks, and so the sea turtle nest would not be identified. This language is saying you can't go on the beach with the ATV before the monitoring is done. The ingress/egress corridor is specifically and carefully chosen by the expert from the county. They talk about going along the mean-high water line. The sea turtles generally nest way up on the dune, although not always. But, again, this ATV vehicle will be operating during the day. Sea turtles are not nesting or hatching during the day. CHAIRMAN RAUTIO: When you're saying that, towel maintenance or towel bringing to and from the beach happens from after the monitors have gone by-- MS. BARNETT: Right. CHAIRMAN RAUTIO: -- to, say, five or six o'clock in the afternoon? MS. BARNETT: Right. Well, the language in here does -- it might be in one of the other ordinances. It talks about finishing the activity by an hour after sunset. I believe that's in the beach events. But the activity would be done before the sea turtles start nesting or hatching that evening. CHAIRMAN RAUTIO: I would think so, and the other concept Page 75 May 30, 2001 would be that towels are being brought back and forth. MS. BARNETT: Right. CHAIRMAN RAUTIO: They stop having towels on the beach, I think, at the Ritz around five or six o'clock. MS. BARNETT: Right. CHAIRMAN RAUTIO: So we've eliminated that aspect of it. It's only a special event, but we're not talking about it right now. MS. BARNETT: Right. CHAIRMAN RAUTIO: Okay. MS. BARNETT: So, you know, back to the taking issue. If this activity would cause a potential taking, then I don't see how the maintenance by fire, police, or natural resources could not have the same potential taking. I mean, the taking issue is a specific legal issue. Also, foot traffic. If the ATV has no more impact on the beach or compacting the sand than a human, then any coastal county or municipality that allows people to walk on the beach during sea turtle season would be just as in danger of this taking issue as what we're talking about now. Anyway, there are several counties and municipalities that do allow limited ATV use during sea turtle season as this county does. This county allows beach raking below the mean-high water line during sea turtle season now. That's not changing. That's basically -- the main point I wanted to bring out was this taking issue. I think that's really far afield. Representing the Registry, we do support the very protective language. I believe, as an environmental scientist, that this language does offer the highest protection of sea turtle nesting and hatching activities as it can. And as far as the penalty issue, I sympathize with the hotels. Suspending the activities is very onerous, and I do know that they're going to do, as they have before, the best ]ob that they can to comply with these new regulations. They definitely have a stake in it. They've been Page 76 May 30, 2001 working very hard and spending a lot of hours over the last year working on this language. Thank you. CHAIRMAN RAUTIO: I have a question of the court reporter. Are you still okay? I think we have one or two more speakers on this one -- one more speaker. Is that okay? COURT REPORTER: Yes. CHAIRMAN RAUTIO: Thank you. Mr. Simonik, I believe you're next. MS. MURRAY.' Mr. Simonik, your last speaker. MR. SIMONIK.' Good evening again. I'm going to be quick. I've got four dogs crossing their legs at home. Michael Simonik for the Conservancy. I was just told to be nice, so I'll be nice. I didn't get to come before you at the first meeting a couple weeks ago, but we did send a letter that was addressed to Tom Olliff, and I hope that all of you received that. So I'm not going to comment on the technical issues that we've essentially addressed in this letter, but only to say that we still believe that the penalties are severely insufficient so that people don't think of this as the cost of doing business, but that it really hurts when you violate this ordinance. Now let me talk about the ordinance and the comp plan, which is really my points for this evening. When this came to our attention just last week, Policy 10.4.10, I read it. It was pretty obvious to me that vehicles on the beach are to be prohibited. I gave it to volunteers at the Conservancy, other staff, friends, and I said, "read these two sentences and then tell me if vehicles to deliver towels are legal according to this," and everyone says "no." So to me that's my common sense out there. I just ask people, "What do you think it says?" They're not attorneys. They're just regular folks reading the language and understanding it in common sense. That's who I asked, not attorneys who are trying to get Page 77 May 30, 2001 something by us. We read the same way as most people with common sense, not like attorneys. We believe you have no choice on this matter. I'm offending the attorneys in the crowd, but that's always okay. CHAIRMAN RAUTIO: That's okay. They can shoulder it. MR. SIMONIK: So we don't think you have any choice but to deny this ordinance because it's not in compliance with the comp plan. It's very simple. It states it right there. It's too obvious to everyone. CHAIRMAN RAUTIO: So you don't feel that we can go forward with the clarification? You're asking us to just simply deny? MR. SIMONIK: Deny until it's clarified. CHAIRMAN RAUTIO: Until it's clarified, okay. MR. SIMONIK: But it looks to us -- we still believe from us -- I mean, it can be clarified by other attorneys, but we'd still say it doesn't look like vehicles on the beach are allowed. COMMISSIONER PRIDDY: Well, I think there's more in that sentence. Are you saying that vehicles on the beach to pick up the broken bottles is not a maintenance -- I mean, I see that as different than delivering the towels. Granted, the vehicles on the beach to deliver the towels is not the same as a vehicle on the beach to pick me up because I had a heart attack. MR. SIMONIK: Right. There's a difference between health, safety, and welfare vehicles on the beach, which is a necessity, and -- you know, environmentalists are accused of not caring about people. Well, guess what? We don't care that ATVs go on the beach to pick you up because you had a heart attack. We don't even care if you run over a turtle nest -- we hope you wouldn't, but we want to get you off the beach in the middle of your heart attack. So we agree with the statement that emergency uses and Page 78 May 30, 2001 approved maintenance purposes -- but I take exception to someone telling me that a 600-person dinner party is maintenance purposes or to even say that that's a conservation use at the end of the day because you're trying to conserve and protect the turtle by getting the chairs that the people sat in off the beach in time. Sorry. I don't buy that argument at all that it's a conservation purpose. So there's been some very creative arguments here today. COMMISSIONER PRIDDY: How about we send them to the beach and keep them out of the woods to not harm the panther; would that help with -- CHAIRMAN RAUTIO: Mr. Priddy-- COMMISSIONER PRIDDY: Sorry. MR. SIMONIK: Your arguments have been the most creative. COMMISSIONER ABERNATHY: Well, what are the approved maintenance purposes? MR. SIMONIK: Well, sea turtle monitoring, I think, is a maintenance purpose or conservation. It's maintenance because it's maintenance of the beach -- COMMISSIONER ABERNATHY: Approved by whom and where? That's what I'm trying to get at. MR. SIMONIK: The state. This is the comp plan. CHAIRMAN RAUTIO: But it says here in 10.4.10 -- it says, "shall enforce this requirement with the existing vehicle-on-the- beach ordinance," and the vehicle-on-the-beach ordinance is talking about -- COMMISSIONER ABERNATHY: That sounds like the place -- CHAIRMAN RAUTIO: -- giving us the opportunity to do this. COMMISSIONER ABERNATHY: -- where you would find the -- MR. SIMONIK: Well, to me -- it says to enforce this requirement. The requirement that I think it's talking about is to prohibit the vehicle tracks. When you ask someone, "Is an ATV a Page 79 May 30, 2001 vehicle?," well, gee, that's defined its name. It's a vehicle. COMMISSIONER ABERNATHY: You can call it the no- vehicle-on-the-beach ordinance then. MR. SIMONIK: No, because it allows for emergency and approved maintenance purposes. COMMISSIONER ABERNATHY: All right. Well-- MR. SIMONIK: That's the the vehicle-on-the-beach ordinance. COMMISSIONER ABERNATHY: Are you going to define the approved purposes? MR. SIMONIK: They'll define the approved purchases -- or purposes for the sheriff or the emergency -- COMMISSIONER ABERNATHY: It's already -- MR. SIMONIK: That's what's defined in the vehicle-on-the- beach ordinance. CHAIRMAN RAUTIO: Okay. But one thing here, too, is we can't lose sight of the fact that these vehicles do not go on the beach until -- well, they're not on the beach -- no. They would not go on the beach until the monitoring people have gone by completely. There would be no question about that. The bulk of the use that I think is being contemplated here is during the daytime when the sea turtles are not even thinking about crawling up on the beach. And the impression I get from both the Registry and the Ritz, and specifically the Ritz and the vendors, is they want nothing to do with the fact that they might have any employee even slightly create a problem for one of those turtle nests. They're very proprietary. They say, "We're not going to hurt those. We want to make sure there's nothing that would affect -- even people -- affecting those identified nests." And I just have the sense that we're not really affecting the sea turtles during the daytime. MR. SIMONIK: And if you've read our statements and our Page 80 May 30, 2001 positions and letters on this, you will see that we have agreed to those arguments that there can be ATVs on the beach and not harm the sea turtles, because we have been in meetings with the Ritz and have come to an agreement on that and beach raking and the moving of towels and picking up of chairs, but the comp plan trumps everything for us. It's the comp plan. Let's look at the comp plan. It overrides everything else. I'm talking about the comp plan issue today. If the comp plan issue is different than what it says right now, then I might be talking about more of the technical aspects of this. COMMISSIONER PRIDDY: So -- MR. SIMONIK: But to me it trumps it all. COMMISSIONER PRIDDY: Mr. Simonik, when you were meeting with the Ritz and the Registry, you agreed about ATVs and the towels and all of that stuff. You agreed to all of that knowing full well you could come here tonight and say, "But the comp plan doesn't allow it, so it doesn't matter what I agreed to." MR. SIMONIK: No. That's a misstatement. I did not even know of the comp plan -- of Policy 10.4.10 until last Monday afternoon. Neither did anybody else until last Monday. If I had known this, even if I had known this last year, I would have objected to the language that was passed in December for vehicles on the beach because it violates the comp plan. We have watched over the years from the Conservancy the comp plan being weakened time and time again to it being not an environmentally award-winning comp plan, and here we can go again. Is that what we're going to do to our comp plan? So we're saying, "Follow the comp plan." It was supposed to be an award- winning comp plan. It got awards from the state. CHAIRMAN RAUTIO: It did. MR. SIMONIK: I don't believe it anymore the way we've Page 81 May 30, 2001 weakened it. So that's what we're saying for the comp plan. We have worked very hard to come up with a compromise with the Ritz, the Registry, the hoteliers, the vendors, and everybody on this. And I will tell you, we're the only environmental organization doing that, and we've been taking heat from our members and from the public for doing that, for working with the Ritz to make this thing work out. So I'm not coming here objecting just to object. I'm coming here because we're looking at the comp plan now, and we agree with staff's recommendation -- I was confused by the attorney -- but I agree with Mr. Dunnuck saying that it's not in compliance as you read it right now. It should be clarified, and you shouldn't pass this until it's clarified -- CHAIRMAN RAUTIO: Thank you. MR. SIMONIK: -- or it's changed. CHAIRMAN RAUTIO: You're passionate. MR. SIMONIK: Well, I guess I wasn't nice, but sorry about that. COMMISSIONER PRIDDY: Well, as one of your members, let me thank you for cooperating with the hotel folks and trying to work with people as opposed to just filing lawsuits. MR. SIMONIK: Thank you. CHAIRMAN RAUTIO: Okay. That was the last speaker? MS. MURRAY: That was the last speaker. CHAIRMAN RAUTIO: All right. I think this is probably one of those that we definitely need to handle specifically now and then take a break because our court reporter needs a break. Do you have any tape left? COURT REPORTER: I've got about eight minutes of paper left. CHAIRMAN RAUTIO: Eight minutes. Do we want to take a break, or do we want to make the motion? Page 82 May 30, 2001 COMMISSIONER PRIDDY.' We can get it out of the way. COMMISSIONER BUDD.' Let's do it. CHAIRMAN RAUTIO: Okay. My notes show that we have to resolve the issue of the consistency with the Growth Management Plan, the comp plan as we keep calling it. That was one major item here. The second item is to allow that push carts and dollies can be used on the beach in the daytime. The fines could be increased, but the request is not to take away the beach permit for vehicles on the beach. Remove the suspension aspect. Does that sound like -- COMMISSIONER PRIDDY: Yeah. I would -- CHAIRMAN RAUTIO.' It's a lengthy motion. COMMISSIONER PRIDDY: -- make a motion that we find Policy 10.4.10 in compliance, and that it allow ATVs for approved maintenance purposes. And if we need to specify clearly that that is the removal of objects off the beach in a timely fashion or the removal of hazardous materials in the form of trash or beer bottles, then that is acceptable. COMMISSIONER ABERNATHY: Wait a minute. You can't find that the comp plan is in compliance with itself. That's what you're saying. CHAIRMAN RAUTIO: Yeah. Mar]orie. MS. STUDENT: For clarification, I think the finding that has to be made is that the land development regulation is consistent with the comp plan. The comp plan has already been found to be in compliance. COMMISSIONER PRIDDY.' Okay. Then-- MS. STUDENT: It's just a point of clarification. CHAIRMAN RAUTIO: Okay. So we're looking for the consistency -- COMMISSIONER PRIDDY-' Yes. CHAIRMAN RAUTIO: -- of the land development regulation Page 83 May 30, 2001 with the comp plan -- COMMISSIONER PRIDDY.' With the comp plan. CHAIRMAN RAUTIO: -- with the advice of our attorney, Mr. White. That's the first issue. The second issue was that the use of push carts and dollies on the beach during the daytime was not prohibited here. COMMISSIONER PEDONE: Only after the inspection in the morning. CHAIRMAN RAUTIO: Correct, the inspection. COMMISSIONER ABERNATHY: Isn't that in here? CHAIRMAN RAUTIO: I'm not sure. COMMISSIONER YOUNG: Remove the penalty involving the - COMMISSIONER PEDONE.' The suspension. COMMISSIONER YOUNG: -- suspension of license. CHAIRMAN RAUTIO: Remove the suspension of the beach permit -- on the vehicle permit. Is that your motion, Mr. Priddy? COMMISSIONER PRIDDY: Yes. CHAIRIMAN RAUTIO: Do we have a second? COMMISSIONER BUDD: Second. COMMISSIONER PRIDDY: You're as confused as I am. That's my motion. COMMISSIONER YOUNG: I second it. COMMISSIONER BUDD: I've seconded it. CHAIRMAN RAUTIO.' Okay. Well, we have a motion by Mr. Priddy and a second by Mrs. Young on this particular one to go forward with those three ma]or points we discussed. COMMISSIONER ABERNATHY: Are we -- CHAIRMAN RAUTIO-' Is there any further discussion? COMMISSIONER ABERNATHY: Are we sure that this vehicle- on-the-beach regulation is consistent with the comp plan, or do we not want to say to the County Commission that they should Page 84 May 30, 200t examine it to do any clarifying that they find necessary? If they find it's in compliance, then we like this ordinance. If they find that it's not in compliance or there is vagueness, then they ought to decide what to do with the comp plan. COMMISSIONER PRIDDY: Well, my recommendation to them is that I find it in compliance with the comp plan. COMMISSIONER PEDONE: I find that the maintenance -- CHAIRMAN RAUTIO: Excuse me, consistency. Isn't that the word? The word is not "in compliance." MS. STUDENT: If consistency is the test, then under the law the Planning Commission has to make a recommendation or finding of the LDR as being consistent with the comp plan. CHAIRMAN RAUTIO: So do we want the clarification or not? COMMISSIONER PRIDDY: No. CHAIRMAN RAUTIO: Should you amend the motion? COMMISSIONER PRIDDY: No. I don't want the -- COMMISSIONER PEDONE: I think we're finding that it is consistent for maintenance purposes. I'm going to agree, though, I don't think towels are maintenance. I think that -- COMMISSIONER PRIDDY: I think that's a separate issue. I think the towels can be delivered to the end of the boardwalk or they can reconstruct their boardwalk to be a little wider at the end to turn around with that. I don't have a problem with the clean-up purposes. I think that's maintenance. COMMISSIONER ABERNATHY: You've got canoes and all kinds of other stuff. CHAIRMAN RAUTIO: Any other discussion here before I call the question? Mr. Dunnuck, you really look like you want to say something. MR. DUNNUCK: I'm just trying to get a little clarification, because I know the main genesis of this coming forward, you know, has been the issue of maintenance from the standpoint of Page 85 May 30, 2001 placing chairs and removing chairs from the beach, towels, and canoes. And we're talking about whether it's consistent with the Comprehensive Plan, and we're also talking about moving forwards with this policy. So what I'm understanding as part of the direction is that you find that it is consistent from the standpoint of allowing ATVs for maintenance purposes, which is to go pick up your broken bottles, but not as a recommendation from the Planning Commission to allow the placement of chairs on the beach, towels on the beach, and canoes. COMMISSIONER PRIDDY: Well, I would certainly like to find a place in here to put that. I'll ask for some help from my fellow commissioners but-- CHAIRMAN RAUTIO: Mr. Pedone. COMMISSIONER PEDONE.' Well, I think as far as the chairs are concerned -- I think if they have a large enough turnaround at the end of the ramp that the chairs can be brought by hand to that turnaround and the ATVs can pick them up at that point; towels, the same thing. I don't think that the ATV should be allowed on the beach for the towels during turtle nesting season. Canoes are a little different story. I mean, they may take a little more to carry out. If you're doing it after the inspection in the morning and before 9:00 or 9:30, whatever it is in the evening, I don't see any problem with that. And, of course, the maintenance for cleaning up any debris on the beach, that can only help the turtle. After all, if he doesn't have to climb over a beer can or a Coke bottle, that's got to help. COMMISSIONER ABERNATHY: Well, it seems to me that this ordinance is acceptable if you take the position that the approved maintenance purposes are the ones that are defined in the ordinance. CHAIRMAN RAUTIO.' Sounds reasonable. Page 86 May 30, 2001 COMMISSIONER ABERNATHY: If it's in the ordinance, then it must be what the comp plan intended for the county to do enforcing the requirements. COMMISSIONER PRIDDY: I can buy that. MR. WHITE: If I can just make one brief comment. When you read it, as I read it before -- CHAIRMAN RAUTIO: And make it fast because I think we're going to run out of tape. MR. WHITE: -- it says, "The county shall enforce this requirement with the existing" -- which at that point in time when it was, quote, the existing ordinance, there were definitions of what maintenance is. I think there's a distinction to be made between maintaining the beach, quote, unquote, with the notion of stuff that's not normally there as a natural resource and to remove those things. That's the maintenance of the beach itself, per se, as opposed to the use of the beach for the types of purposes of placing chairs, etc., etc., and the other things that are in the regulation. So I don't want to muddy the waters, but we have to put the issue before you. CHAIRMAN RAUTIO: You just did. COMMISSIONER PEDONE: I have a question. On 3.14.7.2 it says, "Ma]or infractions which occur during sea turtle nesting season are subject to the following penalties," and it goes on. But the ma]or infractions are defined as "Any activity that may cause immediate harm to sea turtles or their nesting activities and include, but are not limited to, the following: Use of a vehicle prior to daily sea turtle monitoring and use of vehicle after 9 p.m." So why can't it be used between the daily monitoring and 9 p.m.? That's what this says which has been presented by your staff. Page 87 May 30, 2001 COMMISSIONER PRIDDY.' Well -- and the permits that have -- that are in existence that have been issued today allow you-all to do just that, correct, put out chairs and put out towels? MR. DUNNUCK.' Currently right now they're not allowed to use ATVs during sea turtle nesting season. CHAIRMAN RAUTIO: They can't even turn around -- they can't even bump off of the boardwalk and make a little turn and go back up. I understand that -- MR. DUNNUCK: That's correct. CHAIRMAN RAUTIO: -- and I looked at that, and I just cannot even imagine-- MR. DUNNUCK: That's correct. CHAIRMAN RAUTIO: -- that we would sit here and make that type of regulation. It doesn't even sit into my frame of reference from my value system. MR. DUNNUCK.' Well, I think that goes back to the issue, though, of defining the maintenance in the Comprehensive Plan and whether you find that as being -- consistent maintenance is putting chairs out on the beach and towels out on the beach because that's what the use of the ATVs will be for. CHAIRMAN RAUTIO: Okay. So the issue here is that it sounds like we're being asked from our counsel to do this with the idea that we would ask for clarification. Does the -- let's see. Mr. Priddy, you were the motion maker, and Mrs. Young, I believe, was our second. COMMISSIONER YOUNG: What about adding end-permitted uses. Would that open a can of worms? CHAIRMAN RAUTIO: I can't answer that. MR. DUNNUCK: Are we talking about the Comprehensive Plan, or are we talking about the actual language of this? COMMISSIONER YOUNG: Where is it? COMMISSIONER PRIDDY: We're talking about the language Page 88 May 30, 2001 of the -- COMMISSIONER YOUNG: COMMISSIONER PRIDDY: COMMISSIONER YOUNG: Yeah, the language. -- LDC. Except for emergency and approved maintenance purposes in maintenance and permitted uses. CHAIRMAN RAUTIO: But that's 10.4.10-- COMMISSIONER PRIDDY: That's the Comprehensive Plan -- MR. DUNNUCK: That's the comprehensive plan -- COURT REPORTER: Wait, wait, wait. MRS. YOUNG: We're back to clarification. CHAIRMAN RAUTIO: Yes. I think we're almost out of tape. COURT REPORTER: No. You're just all talking at once. MS. STUDENT: For the record, Marjorie Student, assistant county attorney. This is an LDR hearing. We cannot amend the comp plan tonight. If you wish to make that recommendation as part of the motion that it might be considered for a future amendment with directions to staff for a future amendment under the notice and hearing requirements that we have for the comp plan, I think that's okay, but to amend the comp plan tonight in itself we cannot do. CHAIRMAN RAUTIO: Okay. So we have the question here of the mover. Mr. Priddy wants to ask for this to go forward with the idea of clarification and the second has to agree. COMMISSIONER YOUNG: Yes, I agree. CHAIRMAN RAUTIO: You agree? COMMISSIONER PRIDDY: Yes. CHAIRMAN RAUTIO: Does that sound fair, Mr. White and Mr. Dunnuck? We need some help here. MR. WHITE: The only distinction, Madam Chairman, is that that clarification is something that would be required to find it consistent, not that you're requiring the board to make a Page 89 May 30, 2001 determination that it needs to be clarified. When I made my recommendation, it was specific as to the fact that the regulations as proposed would require a clarification of the existing Comprehensive Plan in order for them to not be found inconsistent. CHAIRMAN RAUTIO: That sounds good. Does that make sense? COMMISSIONER PRIDDY: I think at this point I'm a lot more confused than I was a few minutes ago, and that was pretty bad. CHAIRMAN RAUTIO: So I'm not going to call the question. We're going to get new tape in the court reporter's machine here shortly. COMMISSIONER PRIDDY: I move that we take a break. CHAIRMAN RAUTIO: Let's see. Does that take precedence, that motion? COMMISSIONER PRIDDY: Sure. CHAIRMAN RAUTIO: We're going to do it. No one's going to call the question. Take a break. COMMISSIONER YOUNG: I think we should write out that motion. (A short break was held.) CHAIRMAN RAUTIO: Okay. All right. We had a motion and a second on the floor. We finished our discussion possibly. COMMISSIONER PRIDDY: I'm going to withdraw my motion. CHAIRMAN RAUTIO: Uh-oh. COMMISSIONER PRIDDY: I'm going to make a new motion that I find the Land Development Code is consistent with the Growth Management Plan and that the intent of the language in the Growth Management Plan was to keep a vehicle, meaning like a car, off the beach and not a vehicle as defined by an ATV. Therefore, an ATV going to the end of the boardwalk and turning around in my opinion is consistent. Page 90 May 30, 2001 CHAIRMAN RAUTIO: And so you're going to recommend approval? COMMISSIONER PRIDDY.' I'm going to recommend approval. CHAIRMAN RAUTIO: With the understanding that use of push carts and dollies on the beach during the day is permissible? COMMISSIONER PRIDDY: It's permissible. CHAIRMAN RAUTIO: We're recommending that, and that the fine -- excuse me -- the suspension portion of taking away the vehicle-on-the-beach permit, the suspension aspect be removed? COMMISSIONER PRIDDY: We take that out. COMMISSIONER BUDD.' Second. CHAIRMAN RAUTIO: We have a motion by Mr. Priddy and a second by Mr. Budd on this particular item. Do we have any further discussion or clarification? COMMISSIONER PEDONE: I just would like to ask Mr. Priddy if he would like to include that the vehicles on the beach would be after the inspection in the morning. COMMISSIONER PRIDDY: Yeah. That's already in there. CHAIRMAN RAUTIO: That's clarified. Okay. Any other comments? (No response.) CHAIRMAN RAUTIO: I'll call the question. All in favor please signify by saying aye. (Unanimous response.) CHAIRMAN RAUTIO: All those opposed, same sign. (No response.) CHAIRMAN RAUTIO: Motion carries. Moving right along, should we go to annual-beach-events permit or the coastal construction setback line? MS. MURRAY: Well, if we want to get back on the agenda, we can go to annual-beach-events permit, and how would you Page 91 May 30, 2001 like to handle that? I prepared the summary sheet, and I could talk about it if you want, or if you feel comfortable enough with what's on the summary sheet, you can just have your discussion. I'm not sure, also, if the public that signed up for vehicle on the beach also signed up for this one. I'm going to assume that's the case. What would you prefer? CHAIRMAN RAUTIO: Okay. I think we should have you explain briefly your annual event -- MS. MURRAY: Okay. CHAIRMAN RAUTIO: Excuse me. Annual-beach-events permit summary, and I'm sure there are a few speakers. MS. MURRAY: Yes. CHAIRMAN RAUTIO: MS. MURRAY: Okay. Let's move through that quickly. Again, this was a summary based on a request from primarily the commercial hoteliers. The first request of there's was to amend the staff-supported requirement of a 30-foot radius to provide for a 30-foot diameter, which equates to a 15-foot radius, around each sea turtle nest which has been identified and marked, and to add the language that "unless a greater area is required under an applicable state permit," and it was staff's recommendation that there be no change from their original 30-foot radius. The second request was to amend the staff-supported requirement to remove materials placed on the beach for the purpose of conducting permitted beach events, which were to be removed from the beach not later than one hour after sunset, and the latest sunset during nesting season would be 8:24 p.m. I think on your original presentation, we had a time frame of 9 p.m., and we have since amended that to one hour after sunset. And in the last correspondence I had with the hoteliers they wanted a 10 p.m. Removal. They also wanted to have language Page 92 May 30, 2001 for staging areas. The staff changed the document to add language for staging areas and to provide the staff the ability to relocate staging areas as a result of turtle monitoring. And then, of course, the change in the time just to one hour after sunset. The third amendment was a request to remove the penalties that result in the suspension of the annual-beach-events permit and to insure that the penalties are exclusive to violations associated with the beach-events permit. They object to existing code requirements, all lights off by 9 -- p.m. That should say. The change staff made pursuant to that request was we added language providing for a fine of up to a $500 violation, whereas previously it was a minimum of -- or, it was a $500 violation. No flexibility. We amended time to remove the event materials from 9 p.m. To one hour after sunset. The penalties are exclusive to the beach-events permit, and no change to the lights-out requirement with staff. The standard permit conditions were amended in accordance with the above- noted changes. CHAIRMAN RAUTIO: One question. The lights-out requirement, what lights are we really talking about? Were they on the beach for special events or -- MS. MURRAY: Barbara, do you want to -- CHAIRMAN RAUTIO: Can we clarify that? MS. MURRAY: -- come and clarify that? CHAIRMAN RAUTIO: Because I know there's a -- I think it's a state regulation that you have to have your -- MS. BURGESON: I'm Barbara Burgeson, planning services. To answer your question very specifically, this is lights out in regard specifically to the beach events. All lights for this beach event or for any beach event have to be out by 9 through another section of the Land Development Code, which is specifically for Page 93 May 30, 2001 the sea turtle lighting. All lights have to be out by 9 p.m. Anyway. So this was just consistent with what's always been in the code for beach lighting. CHAIRMAN RAUTIO: Okay. All right. We have some registered speakers. MS. MURRRAY: Yes. Matt Grabinski. MR. GRABINSKI: Matthew Grabinski on behalf of the Ritz- Carlton. If I could just touch briefly on the requested revisions that I would like to see made to the language. Pursuant to the handout that I provided you with previously -- and, again, this is the most important change that I could ask you to make. If Mr. Staros was here -- and unfortunately he can't be; he's away on business in Germany -- he would tell you that the most important aspect of his business is to be able to operate on the beach knowing that he has an unconditional vested right to use his beach and that Collier County is not going to try and come in and shut him down because a chair was left out on the beach or a light was left on at 9:05. We request that all applicable provisions, penalty provisions, of these proposed amendments, including the penalty provisions in the vehicle-on-the-beach amendments that you just voted on -- with respect to all those provisions, if there's any reference to the suspension or revocation of the annual-beach-events permit that that reference be deleted from the language. I just want to clarify that because I know at times in your discussion during the vehicle on the beach you were talking about the suspension of the permit, and then when you actually were talking about the motion to vote, someone said "or the vehicle permit." So I would like you to please consider and make a motion upon and vote whether or not you would delete all references. CHAIRMAN RAUTIO: We had to delete the suspension, and it Page 94 May 30, 2001 was only referring to the beach-on-the-vehicle (sic) permit in that particular section. MR. GRABINSKI: Right. CHAIRMAN RAUTIO: Now, we are on this (indicating). MR. GRABINSKI: What we are requesting -- there's language in the vehicle-on-the-beach regulations as well as on the beach- events permit language that could allow or could provide for the suspension of the beach-events permit. That cannot happen. The Ritz-Carlton and the Registry will contract for events this year that will happen two years from now. And they cannot -- especially when we're talking about a permit that did not exist until December. They cannot be exposed to that possible loss of business. If they cannot guarantee these conventions a beach party or a beach event, they will lose that business in the first place. It will have an inordinate burden on the value of their property, and they will defend with all legal means if necessary. With respect to the curfew issue -- again, I think the last time we were here it was at nine o'clock. We were asking for ten o'clock. Then I came back and tried to work a compromise and said, "Well, give us 9:30. Give us until 9:30. Give us a staging area. We'll get the beach cleared, and everything will be either off the beach or at a staging area at the base of the boardwalk, and then we'll finish removing it by 10." Now staff is coming along and asking that it be pinned to sunset. Well, again, the problem is that at the beginning of sea turtle season the sun sets a little bit before 8. Now we're even willing to say 8:55 or 8:50. Who knows, I think, No. 1, it's impractical to have someone out there looking to see, "Okay. When exactly does the sun set? Now we have an hour. Boom, let's go." Secondly, it's my understanding that the sunset, the one-hour-after-sunset rule, came from -- and John you can Page 95 May 30, 2001 correct me if I'm wrong, but I think the DEP has standard field permit conditions, and that was a rule of thumb and the standard condition that they go by when issuing permits. I don't know if you want to respond. MR. DUNNUCK: That's correct. MR. GRABINSKI: I've seen it in the standard permit conditions. Okay. I want to point out that the DEP, their office of beaches and coastal systems who issue those permits, they have the authority and the discretion under the Florida Administrative Code to amend, alter, waive, delete their standard permit conditions on a case-by-case basis. As I've already provided, last year they were letting the -- they were giving us a 9:30 set deadline. That's what we're asking for now. Please do not tie our hands and make it more restrictive. With respect to the 30-foot diameter change, again, the standard rule of thumb or standard permit condition that the DEP starts with, I'm told, is that all events or activity be at least 30 feet from a marked nest. It's my understanding that they are also willing on a case-by-case basis to reduce that distance down to 15 feet. Of course, they won't put it in writing, but that's my understanding. So, again, I ask you, don't tie our hands and give us the most restrictive distance. That's why I requested that the distance be 30 feet in diameter unless a greater distance is required by a federal or state permit. Again, we're talking -- what we're talking about here is the fact that a member of the public can sit down on a beach chair five feet from a nest. We're saying, "Make us be 15 feet away," and if the DEP comes along and says, "No, we want you to be 20 or 25 or 30," then fine, but don't tie our hands and make us be 30 feet away from that marked nest all the time. The final issue that I wanted to discuss -- and I apologize. I guess we got so wrapped up in the Comprehensive Plan Page 96 May 30, 2001 consistency issue I didn't really discuss it when we talked about vehicles on the beach other than mentioning that we had a permit to rake the beach last year above the mean-high water line. Even though the county code in the past has stated that you could not rake the beach above the mean-high water line, it wasn't enforced. Collier County was raking its beach above the mean-high water line, and it was allowing the hotels to clean their beach above the mean-high water line. I provided you with a copy of the permit. Again, we're requesting the language on the second page of my handout. I basically am requesting that the language be modified to state that if a sea turtle monitoring program is in place, that the hotels can mechanically clean their beach above the mean-high water line. Again, this is an activity that they were allowed and permitted to do last year. And finally with respect to -- CHAIRMAN RAUTIO: Before you go on -- MR. GRABINSKI: Yes. CHAIRMAN RAUTIO: Is that only found in the vehicle-on-the- beach regulations? Because we've already voted on that. MR. GRABINSKI: Pardon? CHAIRMAN RAUTIO: Is that only found in the raking above the mean-high water line -- MR. GRABINSKI: The beach-raking provisions are a portion of the vehicle-on-the-beach regulations. CHAIRMAN RAUTIO: We've-- COMMISSIONER PRIDDY: We've been there. CHAIRMAN RAUTIO: You'll have to bring that up with the Board of County Commissioners because we're passed that one. So what you're saying here, Matt, previous to my interrupting your last thought, is that you prefer 9:30 versus the hour after sunset, which we talked about last time? I believe it was Mr. Page 97 May 30, 2001 Abernathy that brought that up and asked staff to consider that change. MR. GRABINSKI: Right. CHAIRMAN RAUTIO: You want 9:30 as a fixed time? MR. GRABINSKI: Yes, yes. CHAIRMAN RAUTIO: Okay. What was your last point? I'm sorry. MR. GRABINSKI: With respect to the penalties, if staff is recommending that there be an accelerated schedule of penalties, we would request language that it be on an annual basis. If you have a second violation, it's for that year, and at the end of the year the clock resets so that five years from now if a chair is left on the beach or someone's lights are left on, it's not automatically always going to be a $5,000 violation because two years earlier there was a third violation. CHAIRMAN RAUTIO: Fascinating, because I would have made the assumption it was a calendar year, but I guess we have to be specific and state it. Is that correct, staff? MS. MURRAY: I'm sorry. What did you say? CHAIRMAN RAUTIO: For the permits, it's on a calendar year, and we need to state that -- I mean, excuse me. For the violations, it must be on a calendar year. It has to be stated? MS. MURRAY: That would have to be stated in this amendment, that's correct. CHAIRMAN RAUTIO: Okay. COMMISSIONER PRIDDY: I have one question at this point. When you get a permit, you get it from DEP first and then the county, or do you get it from the county and then DEP? MR. GRABINSKI: Well, the county permit is an annual permit. The DEP permits events on a case-by-case basis. For some events -- a DEP permit is not required for some events. COMMISSIONER PRIDDY: What I'm getting at is, you've Page 98 May 30, 2001 asked us in this language to allow the flexibility for you to be 15 feet away if that's what your DEP permit says and -- MR. GRABINSKI: Fifteen feet unless an applicable state or federal permit would also apply to that event. And if the federal or state agency says, "No, you need to be further away," then we'll go by that more restrictive guideline. Keep in mind that all of the changes I've just requested we've been allowed to do last year. We were allowed to rake above the mean-high water line last year to clean the beach. MS. MURRAY: Madam Chair-- MR. GRABINSKI: We did not have a curfew last year. MS. MURRAY: My staff tells me -- I don't want to get into a debate, but my staff tells me otherwise. This permit I'm looking at doesn't allow it during sea turtle nesting season either. And it says that the activities will occur pursuant to the Land Development Code, Division 3.14, which at that time did not allow it above the mean-high water line either so -- MR. GRABINSKI: I believe that the language of the permit -- if you look at the bottom, it states that it will be -- that the permit will be valid once the sea turtle monitoring program is put in place. MS. MURRAY.' But it also states that it has to be consistent with that division, which doesn't allow it. I don't want to get into a debate, but there is some question there, so I'd caution you on that. MR. GRABINSKI: Anybody that was at the meeting that we had last summer at the hotel -- it was very clear that the hotels were going to rake above the mean-high water line, and the permit was issued with those understandings. I was told by staff in conversations regarding this matter that the raking was allowed above the mean-high water line and Collier County, in fact, was raking its beach above the mean-high water line. Page 99 May 30, 2001 CHAIRMAN RAUTIO: So you could be actually in violation by raking above -- MR. GRABINSKI: No, because we're not raking right now. CHAIRMAN RAUTIO: Not raking? Oh, good. Good idea. MR. GRABINSKI: Okay. But we -- MS. MURRAY: Your next speaker is Ron Albeit. MR. ALBEIT: I'm just going to clear up -- Matt was concerned that 3.14 included some provision that would allow his beach-event permit to be removed, and it doesn't, so that's not an issue. And 3.4, as you voted on, I think, is fine. And we could take up with the county commissioners the subject of the mean-high water. Just for your information, Michael Simonik in that same letter that he wrote to Tom Olliff did say that The Conservancy is in favor of raking above the mean-high water line, and that it's actually better for the environment, better for the turtles that that be raked because that's where they nest. But we can take that up with the commissioners. I thought you should know that. If you read Michael Simonik's letter of the code, he felt -- they felt it was a good idea to rake above the mean-high water line. It clears the debris, straws, bottles that would have accumulated above the mean-high water. CHAIRMAN RAUTIO: Right, and that seems to be reasonable, and I'm not sure why it's not reasonable to staff, but they may clarify that. MR. ALBEIT: Well, we will take that up with the commissioners. Thank you. CHAIRMAN RAUTIO: Next speaker. MS. MURRAY: Doug Finlay. Is he still here? Okay. CHAIRMAN RAUTIO: Mr. Finlay. MS. MURRAY: I don't see him. Page 100 May 30, 2001 Ilene Barnett. MS. BARNETT: I'm going to pass. MS. MURRAY: Okay. And then I have Michael Simonik, but I don't think he's here either. COMMISSIONER YOUNG: No, he's not. CHAIRMAN RAUTIO: He could be in the hall. COMMISSIONER PRIDDY: I think he's walking the dogs. COMMISSIONER ABERNATHY: the dogs. COMMISSIONER ABERNATHY: MS. MURRAY: Okay. CHAIRMAN RAUTIO: staff here? (No response.) CHAIRMAN RAUTIO: motion. Oh, that's right. He's walking If they can still walk. That would be it. Do we have any further questions of Okay. I think we can entertain a COMMISSIONER BUDD: Madam Chairman, I'd like to make a motion that on the annual-beach-events permit, that it is in compliance with the Comprehensive Plan; and that we pass it to the county commissioners with the modification of removal of any language that has revocation as part of the penalty; that the monetary fines will be the exclusive remedies; that the time for clean up will be 9:30; and that a 30-foot diameter would be the distance off an identified nesting site unless it's required to be more by an ethical state or federal permit. CHAIRMAN RAUTIO: Okay. We have a motion. You did say "revocation," and I think the word is "suspension." COMMISSIONER BUDD: Suspension. I'm sorry. Yes. That's the language. COMMISSIONER PRIDDY: I would second that, but I would ask the motion maker if 15 feet away from the nest would be acceptable unless a state agency required it to be further. Page 101 May 30, 2001 COMMISSIONER BUDD: Yes. COMMISSIONER PRIDDY: And the time period for which fines are calculated would be annual. COMMISSIONER BUDD: Yes. I forgot that. CHAIRMAN RAUTIO: A calendar year. COMMISSIONER BUDD: Yes, a calendar year. COMMISSIONER PRIDDY: Calendar year. With that I would second that motion. Did you say anything about raking the beach? COMMISSIONER BUDD: No, because -- CHAIRMAN RAUTIO: It's not in here. COMMISSIONER BUDD: That was in the other section that was in the vehicle-on-the-beach regulation section. COMMISSIONER PRIDDY: Okay. CHAIRMAN RAUTIO: So on this item we have a motion by Mr. Budd, a second by Mr. Priddy to approve the annual-beach- events permit, 2.6.34 as modified with the four items. Is there any further discussion? (No response.) CHAIRMAN RAUTIO: I'll call the question. All in favor please say aye. (Unanimous response.) CHAIRMAN RAUTIO: (No response.) CHAIRMAN RAUTIO: All those opposed, same sign. Motion carries. MS. STUDENT: Excuse me. CHAIRMAN RAUTIO: Except we have -- MS. STUDENT: Did you make your finding of consistency? CHAIRMAN RAUTIO: Yes, the first item of the motion. COMMISSIONER PRIDDY: Yes, the first thing. CHAIRMAN RAUTIO: Thank you. Moving right along, the next one is -- Page 102 May 30, 2001 MR. WEIGEL: Madam Chairman, pardon me one moment. David Weigel, county attorney. I've had a rather unique question brought to me, and this is a night of unique questions, I guess, and that is, if you've had a matter that you've discussed and already voted upon, the question was, could you, in fact, go back and reconsider it. I'm not aware that the Planning Commission has ever reconsidered a vote that they've previously taken. I can tell you that the -- there is an ordinance that provides for the Board of County Commissioners to do so, but it addresses the Board of County Commissioners and it does not address you. So if you haven't had this question or never used it in your rules of debate and procedure before, I did say I would bring this up and mention it to you in case you have any -- at this point any determination or potential determination to reconsider a vote that you've already taken by virtue of an omission of something that you might otherwise have included in your motion. But I find -- I know of no particular procedure independent of your own charging ordinance which allows you to do that. CHAIRMAN RAUTIO: Thank you for -- MR. WEIGEL: I just thought I would make that on the record for you. CHAIRMAN RAUTIO: Thank you for that clarification because, unfortunately, we did miss that particular aspect and didn't really cover it, but we are going item by item, and we are voting, so I agree with your opinion. We really should not revisit the vote we already took, and it can go before the County Commission, and they'll understand that from what staff tells them. MR. WEIGEL: Thank you very much. CHAIRMAN RAUTIO-- Thank you. All right. Section 3.13, coastal construction setback line variance. MS. MURRAY: As you recall, this has to do primarily with Page 103 May 30, 2001 the structures such as beach umbrellas and beach furniture. The request to change from the commercial hoteliers was not to place a specific time deadline on the removal of objects from the beach. And the change that was made was no change per the specific request, that we did amend the language to provide for removal of the time -- for removal time to within one hour of sunset rather than prior to 9 p.m. And the other requested change was to delete the penalties section in its entirety, and the change per staff was no change. We simply added the words "up to" for the $500 fine. That's it. CHAIRMAN RAUTIO: Okay. I think this is three in a row we'll probably redo. I assume it's the pleasure of the board to remove any comments in the penalty section about suspension of the exemption allowing structures on the beach, the five day and ten day listed on the last portion. Do we have a registered speaker? MS. MURRAY: I'm sorry. CHAIRMAN RAUTIO: I'm sorry. MS. MURRAY: Well, it would be probably the same speakers. Ilene Barnett. MS. BARNETT: No. MS. MURRAY: Ron Albeit. MR. ALBEIT: Yes. Thank you for pointing that out. Ron Albeit, Registry Resort. Yes, we would like that language removed. And just to be consistent with the annual beach permits, if we can put the 9:30 in I think that would be consistent with the removal of the beach activity at the same time as removing the chairs from the beach at 9:30. Thank you. CHAIRMAN RAUTIO: The calendar year, does that fit in here or not? MR. ALBEIT: The calendar year would be appropriate as well. Page 104 May 30, 2001 CHAIRMAN RAUTIO: Okay. MR. ALBEIT: Thank you. CHAIRMAN RAUTIO: The calendar year is appropriate? MR. ALBEIT: Yes. CHAIRMAN RAUTIO: So we're consistent. MS. MURRAY: Matthew Grabinski. MR. GRABINSKI: Please do not approve this change. I think that what it's trying to accomplish, the intent is good. It's trying to protect the sea turtles, but I think that it's trying to protect them in a way that isn't going to be -- that is going to be impossible to fairly and evenly enforce. Again, I think the purpose of the amendment is to make people clear the beach chairs off the beach so that they don't cause false crawls or interfere with the nesting habits of sea turtles. However, I think that the main concern, really, concerns the hotels and when they're having beach events or just when .. hotels have their beach chairs on the,r beach. And the beach- events language already provides that the hotels must clear their beach at the end of the night. This portion of the code applies not just to the hotels. It applies to everyone. So I'm asking you not just as an attorney on behalf of the Ritz-Carlton, but as a resident of this county, do not put a specific timeline or time frame for clearing the beach. I'm going to the beach tomorrow night if it's nice, and if there's a nice sunset, I'm going to still be there at nine o'clock, and I know people will be there at 9:30, and there will be some people there at 10. And by passing this amendment you're saying that those people have to pick up their chairs and coolers and get off the beach. I think that's outrageous. I think that the public is going to feel that that's outrageous. As an attorney here on behalf of the Ritz-Carlton, Collier County is going to either only enforce this Page 105 May 30, 2001 regulation against hotels and businesses -- which to me is outrageous and unfair to think that a code enforcement officer would show up at the Ritz at 9 or even at 9:30 and tell a guest of the hotel who is still using a beach chair out on the beach in the evening, "Sir, please get up, move, leave the beach, put the chair on the pile," but a hundred yards north if there's a group of people sitting on the beach at 9:30 in their chairs, that will be okay. The alternative is that the code enforcement officers are going to start handing out $500 tickets to everyone that's on the beach at 9:30 with a chair. I think that that's outrageous. I think that the intent was good, but I think that trying to enforce this would be impossible, at least impractical, and would be met with a large public outcry. CHAIRMAN RAUTIO: I would like to ask staff if there should be some sort of a warning aspect in here, and do you-all feel it applies to the public on the beach? You can answer that question. MS. MURRAY: Alex Sulecki could answer that for you. MS. SULECKI: Alex Sulecki with code enforcement. The intent of this was never to stop people from sitting on the beach. It's to keep people from leaving stuff when they leave the beach. So code enforcement wouldn't be going up to guests at the Ritz- Carlton and telling them to get off the beach, nor would they go up to anyone. That's not the intent and purpose of this. I'm not sure I understand something. The whole idea of the ability to use vehicles on the beach was because the hotels consider themselves special because they have a business that they're running so they ought to be allowed to use ATVs while the general public can't. But now when it comes to enforcement, they feel that they're being singled out. So I don't understand. You can't have Page t06 May 30, 2001 your cake and eat it too. CHAIRMAN RAUTIO: about ATVs. MS. SULECKI.' Okay. CHAIRMAN RAUTIO: Actually, right now we're not talking I"m sorry. We"re talking about only having the beach furniture and that type of thing -- I guess they're called structures -- on the beach, and that apparently a guest would take them from the pile, which I think is chained down at a particular hour. But if they were on the beach sitting in a chair, that would be a problem for the Ritz versus if I"m down -- I could be there, too, but I'm not a guest of the Ritz. I'm a public taxpayer who wants to watch the rest of the sunset and see if I can spot a turtle crawling up. MS. SULECKI: All right. CHAIRMAN RAUTIO: Is that going to -- MS. SULECKI: No. That's not something that code enforcement is interested in pursuing, people sitting on the beach and using the beach. It's leaving the furniture. And I only mention the other thing because he -- CHAIRMAN RAUTIO: Leaving the furniture. MS. SULECKI: -- Matt talked about it being an outrageous law. That's the only reason I mentioned the other. COMMISSIONER PRIDDY: Well, why don't we let this say that we're wanting to enforce people leaving the chair on the beach because it doesn't say that. CHAIRMAN RAUTIO: And it gives a specific time. Well, it used to give a specific time. Now it's one hour after sunset. So we really do have a -- we're going in a circle here. COMMISSIONER PRIDDY: I understand what you're saying and what you"re trying to do, but that's not what this says. MS. SULECKI: Well, as a code enforcement officer, I would never go up to somebody sitting on the beach at ten o'clock and Page 107 May 30, 2001 say they have to leave. If they left and left their chair there, I might go after them and say, "Please take your chair." COMMISSIONER PRIDDY: Okay. MS. SULECKI'. But it's not about kicking people off the beach. COMMISSIONER PRIDDY.' All right. Well, then let's put that language in here. COMMISSIONER PEDONE: But what you would do and what another code enforcement officer would do might be two different things. If the law says that you can't have your umbrella up and your chair after 9:30 and some other bright, young, new code enforcement officer decides he wants to enforce that, he's got the law on his side. Whereas, if you put in there that it's only for leaving objects on the beach, then at least we're safeguarding that. MS. SULECKI: Okay. Personally I would have no problem with that. This whole issue with code enforcement is not about finding that exact line where the violation occurs at 9:05 and coming out and hammering someone. It's about repeated violations over years that have not been of five minute or ten minutes. They've been leaving stuff out all night. It's not about finding that line and trying to persecute somebody. COMMISSIONER PRIDDY.' Who are the violators that triggered the writing of this? I mean, who did you have in mind when this was written? Who's the people that has been doing that for years? MS. SULECKI.' This all came about when we had an incident on the beach last year where there was an ATV -- an 18-wheeled truck that came to set up a party at the Ritz. We came up there and looked at it, and we discovered that there were some things going on, and we -- Barbara Burgeson and I, natural resources, set up a meeting with the Ritz to come up and talk about what Page108 May 30, 2001 was going on up there. When we came up for our meeting, we saw tables spread out over the whole beach, and we saw that there was these functions going on, these huge functions on the beach that nobody really understood was happening or was going on up there. So at that point we started looking, and we started seeing things being left out. We have photographs of tables left out overnight, all night, during sea turtle nesting season. That's how this came about. CHAIRMAN RAUTIO: Okay. And in the code enforcement -- like these pictures we were shown -- have you seen a great improvement since your making an effort? There's education not only to the hotels, but to the condominiums. Do we see an improvement, or do we need to put something in here that definitely affects the public? And can we put a warning -- MS. SULECKI: I have seen an improvement since we got into this process with the hotels, but I sat back there and heard the Registry manager tell you that he went out -- their ATV went out before sea turtle monitoring to pick up bottles on the beach. I don't know why they needed an ATV to do that, but that's the type of thing that we've been coming up against. There's always a business need or something that requires them not to follow the laws. COMMISSIONER PRIDDY.' But, ma'am, I would have to argue with you. I see no need to monitor sea turtle nests with ATVs either. Why can't that be done on foot? I mean, that argument goes both ways. MS. SULECKI: That's not really my call, but I guess my understanding is that they do that because they need to monitor the whole beach early in the morning before people get on the beach. CHAIRMAN RAUTIO: And, Alex, while you're still there, in Page 109 May 30, 2001 the code -- excuse me -- in the violation section we're talking about up to a $500 fine, so the assumption is something below a $500 fine. Nowhere in the documents do I see, like, a warning to say that the Ritz or Registry or the Remington or LaPlaya, any of those along there -- did you have discussions about perhaps giving a warning because we're trying to get compliance? So many rules are made to have compliance. Was there any discussion -- is that even a possibility from your code enforcement background? MS. SULECKI: We've gone back over the years and gone through the correspondence between natural resources and code enforcement and hotels, primarily the Ritz, where the rules are spelled out again and again and again as a warning. We just weren't able to get compliance. CHAIRMAN RAUTIO: So then it's only focused on, say, the Ritz versus LaPlaya or one of the other condominiums along there, and I personally as a taxpayer -- MS. SULECKI: Uh-huh. CHAIRMAN RAUTIO: I don't want people leaving all that out on the beach. I wouldn't want the Turtle Club, the Vanderbilt Resort, to have their stuff out. I mean, I quizzed them at great length, and they said, "See that bulkhead. It stays back here. Someone brings it out. We run down there and take it off the beach." I mean, the guy knew exactly what to say, and he didn't even know who I was until I got a chance to introduce myself and tell him what I was doing there, you know, monitoring and trying to get some field experience. But it would make sense that you have some sort of a warning aspect here so that everybody would be affected by that warning. MS. SULECKI: I do focus on -- I do look at everybody. Last year I made several monitoring trips up and down the beach with natural resources staff, and I did have notices of violation issued Page 110 May 30, 2001 to other properties. The issue with the Ritz -- and it's primarily the Ritz because they're the only ones that have these big type of functions on the beach. That's where the major danger lies, not with maybe the one or two chairs that we can call them up or write them a notice of violation and have them remove it. It's the repeated placing of many, many chairs on the beach that constitutes a problem. MR. DUNNUCK.' If I could just interject a little bit more on what Alex is saying, too -- and we've talked about extremes in penalties. You know, one of the things that I saw when this process was brought to me when we were going through this was there needs to be a better relationship between these hotels and our code enforcement up front. I've had a meeting with Mr. Staros and Mr. Albeit and Michelle Arnold, our code enforcement director, to talk about that because our mission as a code enforcement board or staff is to bring into compliance first. CHAIRMAN RAUTIO: Right. MR. DUNNUCK: You know, when you're talking about the practical side of it, when you're treating it with the general public, we are not going to be walking out there with our pad of violations in hand. We don't do that with our park rangers in parks and recreation. We try to talk to people and tell them, "Hey, this isn't a good idea. This isn't" -- you know, we probably do that warning type of process without writing it in the code. We try to be reasonable about it. You know, one of the things I suggested to the hotels and they've agreed is that let's get everybody together. Let's have our natural resources staff-- let's bring maybe The Conservancy or some of those other organizations in. Let's bring code enforcement in. Let's work together and talk about what our expectations are, because I think that's been one of the things that has failed throughout the last couple of years, and I think Page 111 May 30, 2001 that's why we're taking that step. So, you know, when we're talking about being reasonable on the code enforcement side, I think we are. I think what this is to address is the idea of when the code -- when those people aren't being reasonable and coming into compliance on the education side of it. CHAIRMAN RAUTIO: So we actually do have statistics to show a number of violations or warnings, and it's been over a period of time? MS. SULECKI: Yes, ma'am. I have wrote that up -- written that up in a document. CHAIRMAN RAUTIO: A document, okay. Mr. Priddy. COMMISSIONER PRIDDY: Yeah. I certainly suggest that everyone get together and talk about it, and to write another ordinance or law on the book that appears to be directed at one or two businesses in our community I don't think is appropriate. The expectations of the people that live in this county are to have very nice beaches. The money to renourish those beaches come because the Ritz-Carlton is in this community and brings people in, and we get a 3 percent bed tax from them. So, you know, I'm not sitting up here because I'm all on their side or own stock in their company. I want to protect our community and our beaches. And the way we do that is to keep that 3 percent bed tax coming in and keep these folks in business. That's where a lot of my thought process and who I'm siding with is -- where it's coming from so that we can all enjoy our nice, white beaches. CHAIRMAN RAUTIO: Mr. Pedone. COMMISSIONER PEDONE: I guess the question was asked, and maybe I didn't get the answer right, but since you had that first encounter, let's say a year ago, has there been any more violations of that type, or have they tried to at least, you know, take care of the problem? Page 112 May 30, 2001 MS. SULECKI: Yes, sir. There have been other violations. I do believe they're trying to take care of the problem, but they have huge parties, and not everybody is on the same page. Things don't always happen the way they think it should happen, and there are violations. There have been violations. I don't think they're purposely violating. I don't think they want to harm sea turtles. I just think that the activity itself is prone to violation. COMMISSIONER PEDONE: But that activity is a big part of the draw for the hotels, both the Registry and the Ritz, and I would say probably LaPlaya or any of the others. I know that if the Beach Club was out in the county, I mean, what would happen to jazz on Saturday nights during the summer? It would be gone. I think maybe the fine process might be better. If you catch them keeping those tables out past a certain time when they're having one of these big parties, then hit them with a fine. And I sympathize with code enforcement because I'm a past chairman of the code enforcement board. So I know where you're coming from, and I really do sympathize with you, but we've got to -- I think we have to work with them rather than, you know, just come in with a heavy hand. MS. SULECKI: I agree, and I don't think that the Ritz should stop using its beach for parties. I just think during sea turtle nesting season they should have 700-person parties in their ballroom. Have a cocktail party on the beach. Have things that are in keeping with using the resource in a way that maintains it in a condition suitable for nesting. COMMISSIONER PRIDDY: How many of the violations from the Ritz leaving tables out may have been caused by a thunderstorm that came up that ran everybody inside that didn't allow them to get the tables in? Page 113 May 30, 2001 I mean-- MS. SULECKI: Well, I guess that would be something that I would consider part of my point. It's that things happen. When you have these humongous events going on, things happen and violations occur. And there's no way -- you know, they've been doing a lot better, but I don't think they can consistently not violate these rules. CHAIRMAN RAUTIO: I'm intrigued by that because I believe in code enforcement. If we're going to have a rule and a regulation or an ordinance, we should enforce it. And if someone is going to flagrantly violate it, you need to do something, fine them, and make that happen. Of course, having large events can create a problem, but the people that I talked to -- the vendor, a couple of the vendor persons, staff persons, people at Bay Colony, someone standing in front of the Remington just chatting with them telling who I am, why I'm standing out here talking to people -- they all had a lot of respect for what we were trying to do and the protection. But both Bay Colony and Remington people knew that they had to lock up their chairs at night because they use them on the beach. They knew they had to chain them down because people would pick them up and put them out there. And I truly -- one of the comments that was made by each of the people said, '~Nell, can't we educate more?" One of the vendors said, "1'11 send every single employee of mine. I'll make sure they go to the course. I'll make sure that they really understand." He said, "1 think they understand, but I want to make sure that my people aren't going to violate anything." And the Registry and the Ritz, I believe, would also focus on the cooperation, talking to each other, and set up a real understanding so that it's not Mr. Staros or the attorney here that's not going to make these violations, but that staff person Page 114 May 30, 2001 really understands that it's their job and that they're protecting our beach, they're protecting the natural resource, and they're protecting the turtles. So I push for that. MS. SULECKI: In a perfect world, I think that's the way to go. But in Bay Colony, for example, I had a violation with leaving the chairs out. I spoke to the manager, and I educated, and they locked them up. And up later on in sea turtle nesting season I had another violation. It's not that they mean to violate; it's that there's too many ways the violations occur for it to be totally controlled. CHAIRMAN RAUTIO: Right. And, of course, I personally do not like legislating or regulating to the lowest common denominator. As long as breath is in my body, I will say that, because you always are going to have exceptions. But you want to get the cooperation. You want to have the enforcement so people understand, and the education, the public awareness. I don't want to find ourselves legislating to the lowest common denominator and having a problem. That's why I'm strongly supporting pulling out the suspension of these issues. If it gets really bad, you can come back to me in a year or two, and I'd listen to what you had to say because they weren't cooperating. But we also have the public that's out there, too, and I'm part of the public. MS. SULECKI: I've never been in favor of the suspension because I've never been in favor of allowing vehicles on the beach anyway, and I just think -- I agree with Matt. He said in the newspaper article, "It's a bad lie." I would agree with him because it's -- there's -- it's too nitpicky. It's very -- it's unenforceable in my opinion, and I just don't think it's going to work from an enforcement standpoint. CHAIRMAN RAUTIO: And, like I said, lowest common denominator because a large event would create some problems, Page 115 May 30, 2001 I would rather not single that out. MS. SULECKI: Because it has created many problems in the past. CHAIRMAN RAUTIO: And when we get more cooperation, we get better enforcement, and we understand quickly what's happening. COMMISSIONER PRIDDY: Madam Chairman, if there's no public comment, I would have a motion to take care of all of these problems for us. MS. STUDENT: I had to step out of the room, but is this the annual beach events or the coastal? CHAIRMAN RAUTIO: Coastal. COMMISSIONER PRIDDY: Coastal. MS. STUDENT: That is one of the items on your list that we will have the final hearing on June 7th at the regular Planning Commission meeting because this came about after the advertisement for the first meeting, and this is to cure that. CHAIRMAN RAUTIO: So then we would need to direct staff to be consistent with what we're doing to change the time from 9:00 to 9:30? We'd tell staff that we'd appreciate that? COMMISSIONER PRIDDY: My recommendation -- and I doubt if I'm going to be able to be here because I'm having surgery tomorrow, if this meeting is over-- MS. STUDENT: June 7th. CHAIRMAN RAUTIO: June 7th. COMMISSIONER PRIDDY: My suggestion would be to trash this. MS. STUDENT: action on it-- Well, I still don't believe that you can take COMMISSIONER BUDD: You can't even do that. MS. STUDENT: -- until we're at that final hearing on it. CHAIRMAN RAUTIO: So all we're doing is getting direction Page 116 May 30, 2001 then; right? MS. STUDENT: Just to announce to the public when that will take place, it's June 7th, Thursday, Planning Commission meeting. It starts at 8:30 a.m. Right here. CHAIRMAN RAUTIO: And then what comes back to us is our suggestion to remove the suspension language, change it to 9:30, and put the calendar year aspect so that it comes to us in a form that we can discuss it again and then vote on it? COMMISSIONER PRIDDY: Right. MS. STUDENT: Uh-huh. COMMISSIONER PRIDDY.' But my suggestion would be for staff to lose this between now and then. MS. SULECKI: I believe at that meeting we would just take your recommendation and forward it. We wouldn't be making any amendments as a result of your discussion tonight. CHAIRMAN RAUTIO: Well, we amended other things you did. MS. STUDENT: You could, because the requirement's for two hearings. So you could -- two advertised hearings, so that would be the second one that was advertised, so you could. MS. SULECKI: Okay. CHAIRMAN RAUTIO: Okay. So, I guess, moving right along, we are through with 3.13.7 -- COMMISSIONER PEDONE: Madam Chairman, I'm leaving. CHAIRMAN RAUTIO: Thank you, sir, for staying as long as you did. COMMISSIONER YOUNG: Take care. (Commissioner Pedone left the boardroom.) CHAIRMAN RAUTIO: We're on, I believe, page 2 of our summary sheet, which would be floor-area ratio. Okay. We are on Section 2.2.8.4.5, floor-area ratio, and we must pay attention because we have at least three different sets of information that has been presented to us so we can review and carry on a Page 117 May 30, 2001 discussion if I can find that now. MR. WEIGEL.' Thank you. Madam Chairman and Commissioners, David Weigel, county attorney. I'm going to speak first before staff makes presentation only to tell you that you have a full plate of decisions available for you this evening in regard to the floor-area ratio and the related items that follow on that same page. As you're probably aware, the Board of County Commissioners just had some discussion this past Tuesday in regard to floor- area ratio density, height limitations, and other things in regard to a specific agenda item. And you-all have before you tonight speakers from that same community that will be asking you, informing you, and urging you to take particular action. You'll also have representatives from the commercial entrepreneurial community before you which were also players in the decision of the board this last Tuesday. If you don't -- you mentioned you had several things passed out to you. I know you have some staff materials for tonight. If you don't already have it provided by some of the speakers that are signed up for you, I'm going to provide you copies of the Land Development Code in regard to floor-area ratio and some related ordinances in the RT district that shows what the Land Development Code was prior to changes made by the Board of County Commissioners in June of last year. If you don't have those, I have these for you here (indicating), and I'll distribute them to you so you've got them early on in the discussion. There are 15 of each, so you'll have a few left over at the end. Thank you. You will see from staff and what they have provided in materials for you that in regard to floor-area ratio and, again, to lump ahead, some of the other definitions and the other items related, residential hotel and related FAR that, in fact, staff has Page 118 May 30, 2001 certain language changes for you, but you also have in front of you -- you now have in front of you what the changes were that this commission and the Board of County Commissioners adopted last year. You'll have the ability then in the discussion that follows -- which I'll only be here for questions if they are particularly directed to me -- to discuss the pros and cons of maintaining the status quo of what you already have on the books, the modification of what you have on the books, or, in fact, the elimination of what you have on the books in regard to FAR, the floor-area ratio. The elimination would essentially be a request to go back to the standards that were utilized a year ago prior to the standards that are in place today and subject to an amendment discussion. I hope I haven't been too oblique, but I wanted you to know that you've got many speakers here and they'll be coming to you from two or three different directions making these kinds of requests. Thank you. CHAIRMAN RAUTIO: Thank you. Hi, Susan. MS. MURRAY: Hi. Susan Murray, interim current planning manager. I'll just try to be brief and give you a summary of what the objective is behind each of these amendments and kind of a - - as far as the FARs go -- a little bit of history of why the amendment was made back in June of 2000 and kind of what we've learned since then and why we're proposing some amendments to the current FAR section of the RT zoning district. And then, as David mentioned, I'll give a brief summary of the potential reversion to the old language in the LDC prior to the June 16th, 2000, amendments that incorporated the FAR requirement. Starting with the LDC Section 2.2.8.4.8, and 6.3 for FAR for residential hotels in the RT zoning district, we are proposing to Page 119 May 30, 2001 amend the FAR to allow the maximum floor-area ratio for hotels, motels, and timeshare facilities not to exceed a factor of 0.60, which already exists -- there's no change to that -- except for destination resort hotels and residential hotels as defined in Article 6.3 where a floor-area ratio of 0.80 and 1.15 is permitted respectively. So the changes there would be to add a floor-area ratio of 1.15 for residential hotels and also a change to Division 6.3, "definitions," to actually define a residential hotel. And then also a change to 6.3, which was brought forward to you last time, to define or clarify the definition of a destination resort hotel. Our objective behind these changes is to approximate the previous 26-units-per-acre requirement through the FAR process, which will provide some flexibility in terms of unit size for development of properties in the RT zoning district for hotels specifically. The last amendment to the RT zoning district really was based on an analysis of travel or business type of hotels. I think what we're finding is it failed to take into account where certain segments of the market are heading, that being to more suite or extended-stay hotels. The last amendment was based more on conventional hotels we found where full housekeeping facilities were generally unavailable, and when applied to a full housekeeping living environment, it resulted in a decrease in density. And that's why you see the different FARs brought before you today for the different hotel types and then a definition for the different hotel types. Lastly, we needed to address the legitimate concern that the FAR could be used as a subterfuge for a conventional condominum achieving density than would otherwise be allowed. To that end, we are proposing to define the term "residential Page 120 May 30, 2001 hotel" to establish parameters to assure that units do indeed function as a hotel and we don't end up with condominiums. To that end, the FAR is .60 for hotels, motels, and timeshare facilities; .80 for destination resort hotels to account for the full- facility requirement and restaurants and bars; and 1.15 for residential hotels. CHAIRMAN RAUTIO: Wasn't -- excuse me. Wasn't part of that the discussion that we had last time from the public saying that they're condominiums in disguise? So you're listening to what the public -- MS. MURRAY: That's correct. CHAIRMAN RAUTIO: -- and the Vanderbilt Beach homeowners were talking about? MS. MURRAY: That's correct. That's why we've attempted to define a destination resort hotel and a residential hotel and then specify very specific requirements for each of those types of hotels. That includes things like 25 -- for example, in a destination resort hotel, we clarified that you have to have not less than 25 percent of the gross floor area for common usage and support services. And then we went on to define those such as fitness rooms, health spas, media rooms, meeting rooms, dining and lounge facilities, and spaces in support of hotel functions. And then in terms of the residential hotel, we are actually proposing a limitation where we say that you have to have a minimum stay of three days. I'm sorry, it describes what a residential hotel is. Then we have operational characteristics: On-site reservation service, daily housekeeping services, lobby/registration area personnel, conference or meeting rooms, common service areas, occupational license for a hotel, a monthly Tourist Development Council report. And I could read the whole list if you wanted, but Page 121 May 30, 2001 it just goes on and on simply to insure that these are actually hotels and not condominiums. CHAIRMAN RAUTIO: I did have one question. The thought occurred to me -- on-site reservation service. There must be a purpose that you put that in there, and that's not the only way you can make reservations; right? MS. MURRAY: Correct. CHAIRMAN RAUTIO: Why is that there? Do you know? MS. MURRAY: Specifically why I'm not sure that I could answer that other than to say that it's just a common characteristic of a hotel to have an on-site reservation service where people go to a desk and deal with hotel employees that are there on a regular basis and not someplace you just call in, like, to a rental agency or real estate agency and make a reservation. CHAIRMAN RAUTIO: So it's sort of in addition, and then anybody that would handle reservations for that particular unit, they could do it over the internet, they could do it by call centers and all that, but you actually have a place to deal with hotel staff. MS. MURRAY: Correct. CHAIRMAN RAUTIO: Does that make sense? MS. MURRAY: Right. Yes. CHAIRMAN RAUTIO: Thank you. And that's usually considered the reservation area? MS. MURRAY: Uh-huh. CHAIRMAN RAUTIO: All right. MS. MURRAY: Okay. So that's just a very brief summary of the proposal to the FAR change. Now I'll switch gears and go to the proposed change to revert back to the old LDC language, and that's on a separate page. That's Section 2.2.8.4.5. This is another option that Mr. Weigel said that you have to consider Page122 May 30, 2001 tonight. Our objective here, if you wish to consider this option and forward your recommendation to the board, I think basically would be where you feel it is necessary to have some measure of intensity in terms of a density requirement. So you'll notice that we're going back to the maximum of 26 -- or this proposes to go back to maximum of 26 units per acre for hotels and motels and also implements the minimum room size of 300 square feet with a maximum of 500 square feet for hotels and motels and allows that 20 percent of the total units could be utilized for suites. That way, if that's your preference, you would obviously have a known number of units at a reasonably predetermined size -- that being three to five hundred square feet -- and you would propose that approximately 20 percent of the units would be utilized for suites. So the developers would have the option of increasing the sizes beyond 500 square feet, I believe. Essentially this is, as I mentioned, a reversion back to the amendments that predate June of 2000. That's really all I have if you have questions. MS. STUDENT: Madam Chairman, I've discussed parts of this with Mr. Weigel, and we would recommend that the reference to the condominium form of ownership, that that paragraph be deleted because we feel that if anybody wanted to try to argue that it was a condo instead of a hotel, that having that language in there may bolster that argument. It doesn't mean to say that it would actually be determined that way. But I've discussed this with county attorney, and -- he's out in the hall right now, but he and I both feel that that should not be placed in there. CHAIRMAN RAUTIO: That's under-- MS. STUDENT: On my draft -- I have several drafts. CHAIRMAN RAUTIO: 2.34 here? Page 123 May 30, 2001 MS. STUDENT: It's under -- let's see. I believe it's under the definition section for residential hotel. CHAIRMAN RAUTIO: Residential. Okay. MS. STUDENT: And I don't -- maybe -- I'm sorry, Susan. Maybe I jumped ahead a little bit, but I think you mentioned the indicia of hotels and -- CHAIRMAN RAUTIO: Okay. So that would be on LDC 2.34, and it's the one that talks about the floor-area ratio for a residential hotel. It would be the second-to-the-last paragraph on the second page. MS. STUDENT: It just says (as read): "In the event a condominium form of ownership" -- CHAIRMAN RAUTIO: Yes. MS. STUDENT: -- "is established, condominium docs shall be submitted with a SDP application which clearly demonstrates that all units function in the rental pool and are required to abide by the occupancy rules stated herein." CHAIRMAN RAUTIO: And that was one of the concerns that the homeowners were speaking of, that it could be turned into that, so we're saying we should just eliminate this completely? MS. STUDENT: I feel more -- just that one paragraph. CHAIRMAN RAUTIO: One paragraph. I see, yeah. MS. STUDENT: I feel more comfortable with that -- CHAIRMAN RAUTIO: And that is -- MS. STUDENT: -- and so does the county attorney. CHAIRMAN RAUTIO: And so does the county attorney. And the principal reason was -- MS. STUDENT: The reason being that this is a hotel. It is not multifamily. And to have the provisions in there about a condo might be part of a bundle of sticks, that people might try to argue that that's what it is. It's just trying to remove, maybe, a red flag from the code. Page 124 May 30, 2001 CHAIRMAN RAUTIO: Right. So it would almost be like a presumption that it could end up being a condominium instead of a hotel. MS. STUDENT: Perhaps. I'm not saying that it did -- CHAIRMAN RAUTIO'- No, we're not saying that. MS. STUDENT: -- but I just want it removed. CHAIRMAN RAUTIO: Does that -- MS. MURRAY: Madam Chairman, I didn't mean to overlook the amendment we talked about two weeks ago, and that was -- that's the one that's found in your original packet. That's on page 6 of your original packet. CHAIRMAN RAUTIO.' I was trying to follow this from one place to another. MS. MURRAY: Just to reiterate the change, because we did talk about this last week, but I did also want to bring to your attention relative to that change, and that was the "floor-area ratio for hotels, motels, and timeshare facilities shall not exceed a factor of .50 except for destination resort hotels as defined in Article 6.3 where a floor-area ratio of .70 is permitted." That's where I was referring to at the beginning of my statement that an unintended result of last year's change was perhaps some densities that went above the 26 units per acre in some of these cases, and this is where you asked me the last time to provide some information relative to existing hotels. I've highlighted a couple of the destination resort hotels. I hope You can see this. But you'll see there's a comparison essentially of the FAR and the density. And if you look at -- for example, the LaPlaya Hotel has an FAR of .68 with a density of 26.6 units per acre. So this is the information we used to try to tighten up, if you will, last year's regulation to bring it more in conformance with the 26 units per acre which was changed last year. Page 125 May 30, 2001 CHAIRMAN RAUTIO.' The one in our packet is slightly different than the specific ones for the residential hotels, right, the .50, .60? I'm going to need someone to explain that to me. MS. MURRAY: Okay. The handout-- I apologize. The handout that you got relative to 2.2.8.4.8 dividing the FARs into the specific hotels -- destination resort, residential, and your regular business -- your floor-area ratio for hotels, motels, and timeshare facilities shall not exceed a factor of .50. That should be changed on your handout, and that was what we discussed two weeks ago. And then, again, the .80 would be changed to read .70 on your handout. CHAIRMAN RAUTIO.' And that's what it reads in the packet? MS. MURRAY-' That's correct. CHAIRMAN RAUTIO: Okay. So we're on the same wavelength now. MS. MURRAY: We should be. CHAIRMAN RAUTIO: Questions anybody? Mr. Abernathy? COMMISSIONER ABERNATHY.' No. MS. MURRAY: Did you want to go to public speakers at this point? CHAIRMAN RAUTIO: We have some speakers on this one, good. MS. MURRAY: Yes, I have a number of them. CHAIRMAN RAUTIO: Okay. I'm fascinated to hear this. MS. MURRAY: Tim Hancock. MR. HANCOCK: Good evening, Madam Chairman and members of the Planning Commission. My name is Tim Hancock, a director with the firm of Vanasse & Daylor. I'm here to talk about specifically the issue of floor-area ratios and a lot of to-do which has been made about this, some from a lack of understanding of the purpose of FARs and the application of Page 126 May 30, 2001 FARs, but let me start off with -- you've been given this evening somewhat of a buffet of choices, maybe too many some would say, but you have several things in front of you that involve a variety of combinations. One of those combinations I would ask you to disregard out of hand, and that is the one that suggests a limit on hotel and motel uses of 26 units an acre with a range of 300 to 500 square feet per unit. The reason I'd ask you to discard that out of hand is that that type of regulation will preclude Embassy Suites with a minimum room size of 900 square feet, Hawthorne Suites, which is existing in this county with an average room size of 1100 square feet -- that regulation by itself precludes all suite hotels. I see that as not a viable market opportunity and I think would have or potentially carry some liabilities with it for the county to adopt that kind of regulation because you are precluding all-suite hotels, and they are prevalent in the landscape today. So that being said, I would like to talk about the issue of floor- area ratios. FARs basically allow commercial development, and that's what a hotel is. It's a commercial development. It is not a residence; it is a commercial property. FARs allow commercial development consistent with building mass, and that's the whole purpose for FARs. It is to basically limit the actual mass of the structure so that what you're doing is creating, hopefully, a compatibility between the size of that structure with the development around it. In doing that there are a tremendous number of variables. I think what we're here for and what Ms. Murray indicated as an unintended consequence was that we have through floor-area ratios created a building whose mass is comparable to that around them, but the result was there were a higher number of hotel rooms associated with it, and I think it created a lot of, quite frankly, distrust and a lot of finger pointing and what-not. Page 127 May 30, 2001 Quite frankly, that was one of the more ugly hearings I've ever seen as far as the accusations leveled at staff, and it was something I hope not to see again. To give you an idea of floor-area ratios and how they can and should be applied, when we're talking about an RT zoning district where you have a combination of high-density residential and you have residential tourists, let's look at the high-density residential application. If you look at a building which has 16 units per acre, which is the maximum multifamily residential density in the RT zoning district, in other words condos, in that area with the land prices what they are, you don't get 16 units that are 1100 square feet. You get units that are 3,000, 3,500, or 4,000 square feet each. Now, if you take 16 units that are 4,000 square feet each, and you apply a floor-area ratio to that, meaning you simply take the 4,000 square feet, and you multiply by 16, and you add a percentage for common areas, which is little bit lower in a condo than it's going to be in a hotel, maybe 10 percent, what you come up with is a floor-area ratio in excess -- for that multifamily structure that's permitable today in excess of 1.5. So you can go build a condo with 16 units an acre with a floor-area ratio in excess of 1.5. Your staff has provided you information that really, more or less, proves that point. You have in something that was presented to you a floor-area ratio as a valid tool to regulate hotel land-use intensities. I believe this was provided to you. There's a table in there that lists the floor-area ratios, examples of FARs for conventional residential structures on Gulfshore Drive. They range between a Iow of .85 to a high of 2.2. These are residential structures, not hotels. So in dealing with floor-area ratios and how they apply to hotels, there are two factors to consider. How do we control the mass of the building to be compatible? And the second issue, Page 128 May 30, 2001 which I think resulted predominantly from the Beachcomber discussion, is how do we control the number of units inside of that? First and foremost, a 1.15 floor-area ratio for an extended-stay hotel simply isn't practical. You're requiring 25 percent of that area as common space in your 1.15 ratio, and now you have to set out 25 percent of that for common space. What you end up with is the inability to achieve a reasonable density at that Iow floor-area ratio. What I'm proposing to you here today is that -- floor-area ratio for a hotel property that is required to have 25 percent common space, in order to have the comparable structure to what is currently permitted for multifamily, that floor-area ratio is 1.65. And, again, the way you get there is, first of all, you have to take out 25 percent for common areas and then you have to take the rest of that and divide that by the number of units to come up with a reasonable-size unit. I'm not talking about 4,000 square feet. I'm talking about what is a residential hotel, typical size somewhere between 1,800 square feet and 2,200 square feet. Okay. This is something that is being built all over the U.S. My family and I vacation, and when we vacation we tend to pick places you can stay for a week or two, and those aren't one-room hotels that are 5 paces wide by 13 paces deep. Okay. That's what a 500 square foot room is, five paces wide by 13 paces deep. We're not talking about that. So in order for the floor-area ratio of a residential tourist hotel project to be comparable in mass and size to that which is currently permitted for a multifamily 16-unit acre, the floor-area ratio is not 1.15. It's 1.65. That begs the question then of how do you not take that 1.65 floor-area ratio and squeeze as many 500 square foot units or 400 square foot units in it and end up Page 129 May 30, 2001 with a huge number of hotel units. There are two ways to do that. One way is to limit the number of units per acre in con]unction with the floor-area ratio. Here's the floor-area ratio which controls the mass of the building, and here's the maximum number of units in con]unction with the floor-area ratio. That way you don't end up with more than 26 units an acre if that's the number you come to, yet the floor-area ratio allows those units to be a larger size to accommodate a residential hotel. That's one solution. The second solution is, again, using that 1.65 floor-area ratio to require a minimum room size. We keep talking about maximums to cap them, but when we cap the room size at a small amount and use floor-area ratios, you simply grow the number of rooms. So you have two ways of getting to what is currently the practice in Vanderbilt Beach. This is nothing new. For example, the Sea Chase on Gulfshore. It's 26 units an acre. We're not talking about breaking new ground here. We're talking about protecting the practice that's occurred there for the last 20 years. The floor-area ratio without having a cap on rooms or a minimum square footage per unit resulted in something that hasn't happened in Vanderbilt Beach. And to avoid that I hope I've offered at least two solutions. Have I done a good ]ob in confusing anyone or -- CHAIRMAN RAUTIO: So-- MR. HANCOCK: You've got a lot on your plate on this item, and floor-area ratios can be confusing until you understand that all they are is simply an application that results in the height and mass of a structure. CHAIRMAN RAUTIO: Okay. And you did say, Mr. Hancock, that it's a cap on the minimum size, not the maximum -- MR. HANCOCK: That is one of two tools to limit the number of units within a floor-area ratio. One is to simply limit them Page 130 May 30, 2001 numerically. CHAIRMAN RAUTIO: Okay. MR. HANCOCK: The second is to require a minimum size. Remember, we're talking about residential hotels. You're defining a residential hotel. CHAIRMAN RAUTIO: Right. MR. HANCOCK: You can easily define it as a minimum square footage. One thing also that is very important that folks don't understand is, the reason traditionally you've been allowed more hotel units on a given acre of land than condominium or multifamily units is because they are less intensive. People staying in hotel rooms do not get on the road as much as you and I as residents do. They aren't going to work every day. They aren't going to pick up the kids at soccer practice. The actual trip generation, which is the primary external impact from most commercial development, is far less per room in any type of hotel project than it is in residential projects. That's why there's the disparity, and that's why those numbers should remain descript. CHAIRMAN RAUTIO: Are you asking then on Section 2.2.8.4.8 that we change the reference of t.15 to 1.657 MR. HANCOCK: Yes, ma'am. CHAIRMAN RAUTIO: That is your specific request for this if we choose to go with this version? MR. HANCOCK: Yes, ma'am. And in order to do that without the concern that arose specifically with the Beachcomber issue of having far too many rooms, you will need to adopt one of the other two methods to control the number of units within that floor-area ratio. CHAIRMAN RAUTIO: Okay. MS. MURRAY: Madam Chairman, I'm a little confused, and I need Tim Hancock to clarify it because I thought that you said Page 131 May 30, 2001 that residential -- you referenced the residential hotel definition as having a 25 percent common area requirement, and that's not the case. That's for the resort hotel -- the destination resort hotel that that requirement applies. MR. HANCOCK: Well, let me -- MS. MURRAY: Did you misspeak? Because I'm trying to understand your argument and -- MR. HANCOCK: I'm the first to admit with the four things on the menu today I could have easily crossed one to the other. MS. MURRAY: Okay. MR. HANCOCK: But let me tell you that in a hotel, you have requirements in the residential hotel that result in common- space requirements; correct? You have required certain things to be included in order for it to qualify as a residential hotel. MS. MURRAY: That's correct. MR. HANCOCK: The average office building, which simply has hallways and elevators, runs somewhere between 14 and 18 percent common space under air. So the addition of what's on here, if it's not 25 percent, it's darn close because it requires more than you would require in a typical office building. MS. MURRAY: Okay. I just was unclear. I thought you were using that as your argument relative to the residential hotels. MR. HANCOCK: Ms. Murray, I apologize. You're correct. That 25 percent citation is in the other section, but the bottom line is to meet the requirements of a residential hotel the resulting common areas under air are going to be about the same if not more. So, hopefully, the point still stands. COMMISSIONER PRIDDY: Mr. Hancock, what would -- do you have any preference as to how we -- which one or the other method we apply to limit the number of units or any help there? MR. HANCOCK: I don't honestly. I'm trying to give you the tools I can think of to avoid the situation that we're in today. It Page132 May 30, 2001 seems to me, you know, at 26 units an acre it's something everyone can understand. Requiring a minimum size for a unit may be a little odd, but -- COMMISSIONER PRIDDY: So if we simply said 26 units -- not to exceed 26 units per acre as opposed to the not to exceed 800 square feet -- MR. HANCOCK: That would accomplish the same object which would be not to have -- not to have 68 rooms on an acre of land. CHAIRMAN RAUTIO: So you're actually combining two portions to give us one floor-area ratio plus acre limitation of units per acre for residential hotels? MR. HANCOCK: Yes, ma'am. And the purpose for that is simply not to, quite frankly, take away the development rights that exist today under the height limitations and the setbacks that are within the RT zoning district. A 1.15 floor-area ratio would reduce the mass of the building beyond what you could build today for a residential structure. I think there may be some difficulty in that type of regulation being applied. CHAIRMAN RAUTIO: I think we're all glazed over here. MS. MURRAY: Let me give you a number so you can contemplate it. At 26 units per acre, a 1.15 FAR would result in dwelling-unit sizes or room sizes of 1926 square feet, and that would be before you would account for a common area. MR. HANCOCK: That's correct. So the unit sizes would actually be smaller. CHAIRMAN RAUTIO: Now, you're saying 1.15 or 1.657 MS. MURRAY: 1.15. CHAIRMAN RAUTIO: And Mr. Hancock is recommending the 1.65? MR. HANCOCK: Correct. That would result in a yield of approximately 2,100 square foot units. It depends on the amount Page 133 May 30, 2001 of common area in the structure. But, again, using the number of 25 percent, you get to about that number. COMMISSIONER PRIDDY: Let me understand this, because one of the things I always try to apply sitting up here is what a person could do with that property without being here. You're saying that on a given piece of property the owner could go build a residential condominium unit and be equal to these numbers? MR. HANCOCK: That's correct. COMMISSIONER PRIDDY: Equal to or greater than these numbers without coming to government and asking permission? MR. HANCOCK: The mass of the building -- COMMISSIONER PRIDDY: The mass of the building -- MR. HANCOCK: -- would be identical, nearly identical, to what I'm proposing under the 1.65, and that's the rationale for the 1.65. Floor-area ratio controls the mass of the structure. COMMISSIONER PRIDDY: Okay. CHAIRMAN RAUTIO: Any questions? (No response.) MR. HANCOCK: Madam Chairman, thank you. CHAIRMAN RAUTIO: Thank you very much. That was enlightening. Our next speaker -- MS. MURRAY: The next speaker is Bruce Anderson followed by Cai Immel. MR. ANDERSON: Good evening, Madam Chairman and members of the Planning Commission. My name is Bruce Anderson, and I'm here on behalf of LaPlaya, LLC. I would specifically direct my comments to the original floor-area ratio proposal that is in your big packet that proposes to lower the FARs to -- COMMISSIONER PRIDDY: What page? MR. ANDERSON: Page 6, sir, 5 and 6. It proposes to lower the floor-area ratio for a destination resort hotel, which I. aPlaya Page 134 May 30, 2001 is, to .7. If that were to be adopted, that would render the LaPlaya, which is currently undergoing renovations, as nonconforming, meaning that if they ever came in or if they ever needed to do anything to their building, they would have to come in under a nonconformity petition to be able to do it. They would simply like to avoid that, and I offer the following sentence to be added at the end of this proposed floor-area ratio language if indeed this is the version that you wind up going with. CHAIRMAN RAUTIO: The one that's in the packet? MR. ANDERSON: The one that's in the fat packet. CHAIRMAN RAUTIO: Page 6? MR. ANDERSON: Page 6. CHAIRMAN RAUTIO: Thank you. MR. ANDERSON: At the end of that sentence, you would simply add the following sentence: "Any project which received approval at a public hearing prior to July 1, 2001, shall not be deemed nonconforming as a result of inconsistency with FAR limitations." CHAIRMAN RAUTIO: Okay. Read it one more time, please. MR. ANDERSON: Yes, ma'am. "Any project which received approval at a public hearing prior to July 1, 2001, shall not be deemed nonconforming as a result of inconsistency with FAR limitations." CHAIRMAN RAUTIO: Thank you. MR. ANDERSON: I have nothing else. COMMISSIONER PRIDDY.' Mr. Anderson, if we were not to adopt the version out of the fat packet, do you have any words of wisdom for us on the other two items that are before us? MR. ANDERSON: Not on behalf of LaPlaya, no, sir. COMMISSIONER PRIDDY: As a member of the community, could you comment on that? MR. ANDERSON: As a keen observer of the hotel scene? Page 135 May 30, 2001 COMMISSIONER PRIDDY: Yes. CHAIRMAN RAUTIO: That's above ground -- MR. ANDERSON: I would just point out that I think the proposal to go back to the 26 units per acre or any unit per acre basis for hotels would be inconsistent with and in violation of the Comprehensive Plan, and let me explain why I say that. The Comprehensive Plan clearly states that hotels are a nonresidential use. Also, the Comprehensive Plan has a density rating system. The language pertaining to the density rating system in the Comprehensive Plan clearly states that it only applies to residential uses. Therefore, trying to apply the density rating system to a hotel, which is a nonresidential use, would be inconsistent with the Comprehensive Plan. I know what Miss Student is going to say because we discussed this earlier. MS. STUDENT: Mr. Hancock just put on the record that you can use FARs with limits on density. He's an expert on hotels and planning, and he stated that for the record, and I don't find it inconsistent whatsoever. CHAIRMAN RAUTIO: It's so nice to have two opinions. MR. ANDERSON: Well, I'm not here holding hands with Mr. Hancock. MS. STUDENT: No one's indicating that you were. MR. ANDERSON: He's entitled to his own opinion. MS. STUDENT: I'm entitled to mine. MR. ANDERSON: The residential tourist zoning regulations where it talks about maximum density permitted, and it addresses the issue of densities for condominiums and the old language which referenced density limitations for hotels states -- and it's still in there today -- (as read): '~Nhen located outside an activity center, except as provided above, the density shall be determined through application of the density rating system Page136 May 30, 2001 established in the Collier County Growth Management Plan, but shall not exceed 16 units per acre." If that sentence is applied to hotels, that is inconsistent with the Comprehensive Plan. Thank you and have a good evening, unless there are additional questions. COMMISSIONER PRIDDY: No, but please tell Shannon she did another outstanding ]ob at picking your tie out for you. MR. ANDERSON: Thank you. MS. MURRAY: Cai Immel. Following Cai will be Carol Wright. If you-all would come up behind the podium, it would be a little bit helpful to move the process along if I call your name, please. Thanks. CHAIRMAN RAUTIO: Please state your name for the record. MR. IMMEL: Madam Chairman and Commissioners, I'd like to preface my remarks just trying to digest what -- CHAIRMAN RAUTIO: State your name. MR. IMMEL: Pardon me? CHAIRMAN RAUTIO: State your name. MR. IMMEL: Cai Immel of Vanderbilt Beach. CHAIRMAN RAUTIO: Thank you. MR. IMMEL: I would like to preface my remarks by trying to understand some of the things that Mr. Hancock had said. Our condominium was built under the old code, and we're approximately 15-and-a-fraction units per acre. But the maximum size that we could get in that building per unit was approximately 2,000 square feet because there's a height restriction as well as a setback restriction from both the water and from the street and from the driveway, so I don't know where the 4,000 square feet could be coming from if I understood him correctly. I could have misunderstood. In any case, I come as a concerned private citizen, a ten-year full-time resident of Vanderbilt Beach, an area already typical of Page 137 May 30, 2001 certain other congested neighborhoods in the county. We currently have the ability to walk and log and bike and roller blade with borderline safety on this two-lane narrow street also serviced by two-lane roads from the north and from the south. This congestion has developed both under the density codes in existence prior to June 2000 and has been exacerbated by the density and intensity changes that were made in June of 2000 which allow a higher density of hotel and condominium density. Already our area overall for the past ten years has ranked No. 2 in the U.S. For growth -- only second, I think, to Las Vegas -- and this growth in our county evolved with a type of density and intensity code that was in existence prior to June of last year. Can you imagine the congestion in this area had we had this current code in effect for the same ten years? We would, I think, dwarf Fort Lauderdale in the intensity on our streets and the infrastructure. Let's keep growth under control and have our density codes returned to units per acre before parts of our community become row after row of hotels and congested condo buildings. Thank you. CHAIRMAN RAUTIO: Thank you. MS. MURRAY: The next speaker is Carol Wright followed by Joe Connolly. MS. WRIGHT: Good evening. My name is Carol Wright, and I'm president of the Vanderbilt Beach & Bay Association representing some 700 members. I'm here tonight to ask you to please take the Land Development Codes back to where they were before June of 2000 when so many terrible changes were made. We want to eliminate all FARs in RT zoning districts, which is part of Gulfshore Drive. We want to get rid of the destination resort hotel, residential hotel, extended-stay hotel, boutique hotel. I don't care what you call them. All the FARs, floor-area Page 138 May 30, 2001 ratio, increase density which our area cannot handle. The public does not want this, and it's unsatisfactory. Please change back to 26 units per acre per hotel and motels and 16 units per acre for timeshares and multifamily. We also want the 300 to 500 square foot maximum rooms with 20 percent suites for hotels. This is the way it was for 26 years, and everybody was happy. We do not feel it is right to have developers say they are building a hotel when they actually build 3,000 square foot condos and sell them to individuals for around a million dollars. A hotel is a hotel. Let's keep it simple. If hotel units are sold to individuals, which I don't think they should be, then they should become a condo, and that means 16 to an acre. Thank you. MS. MURRAY: Joe Connolly followed by Chuck Brooke. MR. CONNOLLY: For the record, I'm Joe Connolly, and I live on Gulfshore Drive, Vanderbilt Beach. I'm director of the Vanderbilt Beach & Bay Association and an associate of the Save Vanderbilt Beach Association. I'm speaking on behalf of both of them tonight. Carol mentioned, "Keep it simple." A hotel is a hotel, and we don't need -- you know, the RT zoning district is just on Gulfshore Drive, and it's only half of Gulfshore Drive. Less than half of a mile is RT zoned, and all this has been going on for one year -- to hell and back we're going. So we don't need a destination resort. We don't need an extended-stay high-end boutique, which was introduced last week, or a residential hotel. And if it's a duck, and it looks like a duck, and it walks like a duck, and it quacks like a duck, it's a duck. They're trying to build damn condominiums, period. So the safest thing to do is to get back to reality and go pre- June 2000. Go back to the 26 units per acre for a hotel, 300 to 500 square feet; 16 units per acre for a condo and a timeshare Page 139 May 30, 2001 unit, which got put in with destination hotels -- I don't know if that was a shell game with the developer or what, but timeshares are supposed to be in there with condos, and then let's go on and live our lives. We're talking about a half-mile stretch. Mr. Hancock mentioned the Embassy Suites and all this stuff. They don't belong on Vanderbilt Beach to begin with, so what's all the big to-do. What are they trying to build? They're trying to build a Fort Lauderdale and just well heel the pockets of some of their developer clients, and we don't want that. We want to maintain Vanderbilt Beach the way it is, and right now it is 5- and 6- and 7-story condominums and residences. The north end is zoned differently, and it has highrise multifamily with some 13-, 14-, 15-story buildings there, but that was zoned that way. So we want it to conform to the way it is right now. I mean, what's wrong with Vanderbilt Beach today? So why let these people come in? All they're doing is increasing the density, and that's against your Comprehensive Plan and the State of Florida law because you're in a coastal high-hazard area, and you cannot increase density in a coastal high-hazard area. And if you try to, there's going to be some lawsuits against you. And if that happens you will lose your insurance, and people won't be able to get mortgage insurance because they won't be able to get this. So let's do some reasoning and just go back to the way we are, and let them go play games and build high-density things in the commercial area, which is where floor-area ratios are designed to be. Thank you very much. CHAIRMAN RAUTIO: Thank you. MS. MURRAY: Chuck Brooke followed by Sally Masters. MR. BROOKE: My name is Chuck Brooke. I'm a resident of Vanderbilt Beach, director of the Vanderbilt Shores Condominium Association, and also an officer in Save the Vanderbilt Beach Page 140 May 30, 2001 Association. I also urge you to go back to where we were before June 16th of the year 2000. You've already heard what that means, and let me add my reasoning. I don't have a lot of glib figures to give you, but I'm just going to give you my feeling as a resident. One of the things that I don't see in this proposal when you introduce the concept of a residential hotel, just introducing the concept of a residential hotel, is any kind of a blueprint that's going to tell you what impact is this going to have on the livability of Vanderbilt Beach. You know far better than I do how you define livability. I would define it as what happens to the traffic, what happens to the safety, what happens to the sewage problems, and I don't see that spelled out. It may be good or it may be bad for the livability of Vanderbilt Beach to introduce a residential hotel, but looking at what you have here, I don't think you can tell that. Furthermore, I think that I heard at the last meeting of the county commissioners that there's no impact studies. The impact studies are not done on an ad hoc basis. They're done, I believe, once a year. So you really don't know what impact putting in a residential hotel would have on, again, the livability of Vanderbilt Beach, specifically the traffic. To go down an adventuresome path where you don't know what's going to happen in one year, two years, three years, five years from now by introducing the concepts of a residential hotel I think is foolhardy. Until you have reasonable assurances -- and you may have heard some of them tonight -- but I would say that you need to have a little bit more than just a quick hearing on what really is going to happen by introducing the concept of a residential hotel, what impact that's going to have on the livability of Vanderbilt Beach. I don't see how you can make any other decision other than to go back to where it was before, June 16th of the year 2000. At Page t41 May 30, 2001 least you have some kind of data as to what was going on then, and you can make some projections. But to introduce a new concept, which is the FAR or the residential hotel concept, I think is taking it down a perilous path. Thank you. CHAIRMAN RAUTIO: Thank you. MS. MURRAY: Sally Masters followed by Frank Halas. MS. MASTERS: I'm very concerned also about what a residential hotel or the real thing is because this has already happened on the beach. Somebody built what everybody thought was a condo, and by some kind of method they got the density for a hotel. So they got more than the 16 units per acre. And this is the same thing that we fear is going to be happening with so- called residential hotels. I mean, they mentioned 1,800 to 2,000 square feet. That's big. Is that a hotel room? You know, even for an extended stay, these people are going to stay for a total of two months. I forget what the exact wording in it is, but to me that is a big room. That's a big hotel room. We have to be very careful to see that -- and then this one area said something about if it should become a condominium. Well, how can you switch it to a condominium? I mean, obviously everybody would build a hotel because they can get more units in. So why wouldn't everybody build a hotel and then switch it over to a condominium? The condominium density is t6 units per acre. We've got to remember that, in the residential hotel we have to watch that it will not become a subterfuge for what is really sold as condominiums. So watch this. Go back to the 16 units -- or keep the 16 units per condo, and make sure these hotels don't slip in as condos, therefore getting 26 units per acre also. So be careful of the residential hotel idea. Thanks. CHAIRMAN RAUTIO: Thank you. MS. MURRAY: Frank Halas is your last speaker. Page142 May 30, 2001 MR. HALAS: I would like to enter this into the record. Good evening, Commissioners. My name is Frank Halas. I live at 405 Flamingo Avenue in the Vanderbilt Beach area. It is our understanding that you are presently reconsidering decisions that were made last year in the land development plan while preparing this year's recommendations. I would like to comment today on the staff's proposal and other considerations regarding changes in the planned governing of our area. As homeowners in this area, we are extremely concerned about the density, both because of the drain on new development on diminishing resources, road capacity, sewer capacity, clean fresh water, the fragile environment in that area and because of the FEMA requirements for high-risk areas. We fear greatly the potential for loss of insurability for flood and wind. We strongly support the position taken by Save Vanderbilt Beach. On behalf of myself and my wife, I would like to make the following points. Number 1, we support a return to the previous limits of 26 units per acre for hotels and motels and 16 units per acre for condominiums. Number 2, the floor-area ratio adopted last year should be eliminated. Instead floor-area requirements for hotels and motels should revert back to the previous requirements for a minimum of 300 square feet and a maximum of 500 square feet per room with a maximum of 20 percent of the allowed units to be available to be used as multi-room suites. This allows new commercial properties to be competitive, but keeps the density increases to a minimum. Three, building height limits should revert to 75 feet and sensible parking garage restrictions should be added. Four, the, quote, destination resort definition, should be eliminated from the plan. A hotel is a hotel, whether it's a resort hotel, a destination spa, a boutique hotel, an extended-stay facility, or an inn. Motels are motels. Other geographic areas successfully Page 143 May 30, 2001 treat their tourist accommodations in this way. Frankly, aside from the LaPlaya, the Ritz-Carlton, and the Vanderbilt Inn properties, no property left on Vander -- on Gulfshore -- excuse me. No property left on Gulfshore is large enough to accommodate a destination resort in the usual sense. From our research we could find no resort hotels in essentially a residential neighborhood. If units in planned buildings are individually salable, the structure should be designated as a condominium. This would reduce, if not eliminate, future problems like those now experienced with the manatee development. In addition, we would like to see the staff discretion formally limited where variances are concerned. With due respect to staff, we believe that strong oversight is needed to insure that commercial developers are held in the same rigid enforcement standards applied to private homeowners and small businesses. This is especially important in the areas of elevation, offset requirements, submerged land adjacent to improved properties, and waterway infringements. We think this is critical in the interest of prudence, fairness, safety, and common sense. It will eliminate a substantial portion of a myriad of problems caused by the seemingly casual variances granted to the proposed Beachcomber and other recent developments in the area. Formal variances from the zoning authorities should be required. Specifically, in future developments requirements for commercial properties like fire lanes, retention ponds, offsets from property boundaries, and parking berms should be rigidly maintained. Submerged land beyond seawalls should not be factored into available space when computing acreage for buildings. Offsets should be determined by the footprint of the ground floor of the building and not the average of all the floors. Docks should not Page 144 May 30, 2001 intrude more than 25 feet into waterways unless fully meeting the formal standards of variances already established. Land and property elevations higher than 11 feet above sea level that border waterways should be required to meet the same additional offset requirements that are now applied to residential properties in the area, which means five feet additional offset for every additional foot-in-ground elevation. The height of the parking garages in ground floors and above, part of the structure of the building should be calculated in determining the total height of the building. We'd also like very much to see restrictions on lighting, down lights rather than up lights, reduce ambient atmospheric pollution that are now required in many progressive communities. Also, commercial buildings should be required to turn off decorative lights in the evenings as the City of Naples now requires. Furthermore, what really needs to be done up here at Vanderbilt Beach is an overlay study of all of the Vanderbilt Beach area. Thank you very much for your time. CHAIRMAN RAUTIO.' Thank you. MS. MURRAY: No more speakers. CHAIRMAN RAUTIO: This is-- MS. MURRAY: No more-- CHAIRMAN RAUTIO: Okay. Well, we have quite a buffet or smorgasbord before us. COMMISSIONER PRIDDY.' Just as a comment and a starting point, I cannot support the limit of 300 to 500 square feet for hotel rooms. I think that is completely out of character with today's environment in Collier County and is probably not conducive to attracting the visitors that we would prefer to have in our community. Now, where we go with the floor ratio or the number of units is up for discussion. But I think the, you know, limitation of an Page 145 May 30, 2001 antiquated hotel room is not what this community is looking for either. CHAIRMAN RAUTIO: I tend to agree with you, Mr. Priddy. We have other comments. COMMISSIONER ABERNATHY: I would like to suggest that we meld the FAR with some limits per acre. I thought our former commissioner was right on target with that. CHAIRMAN RAUTIO: Do you have a suggestion of the melding? I think one of his points was to make the floor-area ratio -- let's see -- .80 and from 1.15 to change it to 1.65. That was one of his suggestions, and we had to choose between -- okay, let's see -- per acre, units per acre, or a minimum size hotel room. Thoughts? COMMISSIONER PRIDDY: I would support a units-per-acre cap. COMMISSIONER ABERNATHY: Yes, I would too. CHAIRMAN RAUTIO: Units-per-acre cap. COMMISSIONER ABERNATHY: Yep. CHAIRMAN RAUTIO: Do we have some comments down at this end? Mr. Wolfley, you have a look on your face. COMMISSIONER WOLFLEY.' I can see what they're saying. You know, we're looking at the size of the unit. I can agree that three to five hundred these days is -- I mean, I've stayed in hotels all over. When I get into one of those, let me tell you, I want out. But on the other hand, you know, we're looking at a situation where the shell game has the potential to happen and they get an extra 10 units per acre. Well, Port of the Islands just converted some sort of condo- hotel thing, so it's happening. What can we do about that? I mean, how can that be controlled? COMMISSIONER PRIDDY-' I would ask staff, how do we control the -- how do we keep that from happening -- Page 146 May 30, 2001 MS. MURRAY: Keep the -- COMMISSIONER PRIDDY: -- the conversion of hotel rooms into condos? COMMISSIONER WOLFLEY: Just for the sake of getting 10 more units an acre. MS. MURRAY: It really comes down to a code enforcement factor. The definition -- okay. Let me back up. Under your floor-area ratio, we've attempted to define your residential hotels and your resort tourist hotels and then your regular hotels. So from that aspect I think that will help. If it does come into reality that somebody is doing that, then it becomes basically a code enforcement issue. But the nice thing about the definitions we've proposed is you've got some very specific regulations which code enforcement could then grasp onto and insure that they met those requirements. MR. WEIGEL: Madam Chairman, I would like to add to the response for Mr. Priddy, and that is it's easy to mistake density and intensity. And I know the difference is -- one of the last speakers was talking about density of hotels and what our land code talks about, as well as our Growth Management Plan, is density is for residential uses, and intensity really has to do with what we'll call commercial uses like hotel uses. You've heard a lot this evening about the fact that these hotels can't be too large. They're a problem in the area. But the fact is hotels and motels are permitted as a matter of right in this particular subsection of the code, so it's not -- you don't have before you tonight the ability to propose or recommend that there be no hotels in the area. That being the case, you are deciding or at least have the opportunity to discuss and recommend the number of units to a hotel. And, yes, you can, in fact, meld in an FAR ratio if you so choose. But if you talk about the conversion of hotel units to Page 147 May 30, 2001 condominium units, remember this: If you adopt a hotel recommendation that says 26 units per acre, it would therefore be a violation of code to convert those 26 units to condominium because they are residential. You can only have a maximum of 16 per acre. That takes us to another way to look at this. Is it conceivable that a hotel at up to 26 units per acre might start taking out a few of its units and turning them into condominiums and saying, '~Nell, that's under 16 per acre." I don't think that's what is encompassed in the regulations that are before you this evening. So I think there is some protection there. And as Miss Murray indicates code enforcement is aware of current issues up there, and if the standards -- if you ultimately or the board ultimately adopts standards with enough specificity, they can determine what's residential and what's commercial. But the bottom line is, both uses are allowed in there. And by the way, 100 feet or 10 stories is a matter of right. That is not before you tonight, and you can't change that either. CHAIRMAN RAUTIO: Okay. COMMISSIONER PRIDDY.' So if we were to go with, say, a floor ratio of 1.5 and put in a cap of 26 units, the reality is that if the 1.5 is used they're not going to be able to achieve the 26 units because they're not going to be able to get the building inside the footprint. Is that a -- MR. WEIGEL: I don't know. Staff would have to respond to that. MS. MURRAY.' It's difficult to design a site while you're sitting up here, but there's -- obviously it's going to change the size of the room, and that's all I can say. There's no -- in your floor-area ratio, you don't have a room-size limitation. That's where the flexibility comes in to be able to develop these types of hotels. We're very confident that the proposal we're proposing Page 148 May 30, 2001 for the floor-area-ratio changes coupled with the definitions are going to get you to right around 26 units per acre. COMMISSIONER PRIDDY: Well, I'm also comfortable or more comfortable with the floor-area ratio because I know what our market dictates in Collier County, and that's going to calculate into fewer people than if we simply say 26 units per acre or 800 square feet. We're going to end up with more people under those scenarios than we are using the floor area. Now, I'm also sympathetic that the public would like, you know, some number that can't be exceeded, so I would throw out for discussion and see if there's some support to throw out the number of 1.65 floor area with a cap of 26 realizing that if someone uses the maximum on the floor area they're not going to be anywhere near the maximum on the number of units. COMMISSIONER BUDD: I'm in agreement with that. I think it's a good idea. COMMISSIONER ABERNATHY: It sounds right to me. CHAIRMAN RAUTIO: Now that you've said all of that, if you look at your summary -- MR. CONNOLLY: Staff recommends .7 -- COURT REPORTER: Your name? COMMISSIONER PRIDDY: I haven't agreed with staff a hundred percent tonight, and I'm probably not going to this time. MR. CONNOLLY: I think--- COURT REPORTER: Sir, you need to identify yourself. I don't know who you are. COMMISSIONER ABERNATHY: Wait a minute. We can't -- you can't do that. CHAIRMAN RAUTIO: sorry. COMMISSIONER PRIDDY: CHAIRMAN RAUTIO: Yes. You can't talk from the audience. I'm Are you ready for a motion? Well, I had a question. If that's Page 149 May 30, 2001 what you said here, we've got four different items on the summary sheet, and we have to walk our way through this. MR. CONNOLLY: Could I speak for just a minute? CHAIRMAN RAUTIO: Right. Hold on one second. MR. CONNOLLY: Just one minute. CHAIRMAN RAUTIO: Make sure you turn to page 2, and you'll see the floor laid out here so we attach the right statements to the right items because we're not going to approve all of those the way I read this. Okay, sir. Go ahead and make your statement. MR. CONNOLLY: I just want to let you know that, you know, .8 is -- COURT REPORTER: Your name, sir? MR. CONNOLLY: Joe Connolly..8 got you 68 unit hotel rooms at Beachcomber. Going to 1.65 is going to get you a hundred and something -- it's the other way. You go down. COMMISSIONER BUDD: He's limiting it to 26 units. COMMISSIONER PRIDDY: We're going to put a cap on the number of units to 26. The higher the floor-area ratio, the fewer units there are going to be. MR. CONNOLLY: No, that's not correct. COMMISSIONER PRIDDY: Well, it is true. CHAIRMAN RAUTIO: That's why we want to put a cap in recognition of being able to limit it. MR. CONNOLLY: And you're going to call this a hotel? CHAIRMAN RAUTIO: It will be a hotel. MS. MURRAY: Madam Chairman-- MR. CONNOLLY: It's going to be 2,500 square feet units, and that's a hotel? COMMISSIONER PRIDDY: Madam Chairman, we need to remember we're looking for testimony, not dialog. CHAIRMAN RAUTIO: Right. Page150 May 30, 2001 COMMISSIONER PRIDDY'- If the gentleman can make his testimony, then we do our best to make some rationalization out of it. MR. CONNOLLY: Twenty-six units at .8 is going to give you 68 rooms. But if you try to convert that into a hotel, which, you know, they want two- and three-bedroom hotels with a living room, dining room, and kitchen, you're talking about 2,500 square foot units. CHAIRMAN RAUTIO: But we're not converting to a hotel. It's going to be a hotel. MR. CONNOLLY: Well, I don't know about that. I'm just saying that 1.65 is a very, very high figure, and it's a number double the staff is making. CHAIRMAN RAUTIO: Okay. Thank you. County attorney, Mr. Weigel. MR. WEIGEL: Thank you. I would like staff on the record to make sure that this commission and the public are aware of what the floor-area ratio means, so if the number goes up a la over 1.0 as opposed to less than 1.0, what does that mean? It's very important for this commission to know, the board to know, and for everyone to know. So could someone from staff who proposed floor-area ratio make that clarification on the record? MS. MURRAY.' Okay. If I understand you correctly, you're asking what the difference between 1.15 versus 1.65 will result in. If you have a 26-unit cap, obviously you would not be able to go over 26 units per acre, and you're looking at room sizes between 2,500 and 3,000 square feet. MR. WEIGEL: Okay. And to make it even more simple, does a higher number than one -- if you go 1.5, what does that mean in comparison to a .6? MS. MURRAY: It's -- let me try to simplify it..6 you could equate to approximately 60 percent of the land area, whereas 1.5 Page 151 May 30, 2001 you could equate to approximately 150 percent of the land area. Did I -- MR. WEIGEL: So if we're talking -- okay. Because we're really not talking rooms when we talk floor-area ratio. MS. MURRAY: Correct. It's really important to note that if you don't have a room limitation, therein lies the flexibility of a floor-area ratio. It allows somebody to build a room to the maximum size of the floor-area ratio for which the regulation allows. Twenty-six units at 3,000 square feet, that is a possibility if you change the FAR to 1.65. Is that realistic for a hotel? It could be in Naples. I can't answer that. MR. WEIGEL: Does that assist the commission to understand the ratio of room limitation as well as floor-area ratio? COMMISSIONER PRIDDY: Right. And I'm saying -- my thoughts are that those are two limitations, but if they're both used to their max, one or the other is going to get cut short because the building envelope is not going to hold that. I mean, we've got 100 feet. We can't change that. We've got setbacks, landscape -- MS. MURRAY: Exactly. COMMISSIONER PRIDDY: -- all the other requirements. MS. MURRAY: Exactly. COMMISSIONER PRIDDY: And we can't change those, or we're not changing those here. So if our two items are used at the same time to their max, one of them is going to get cut short because of the building envelope. MS. MURRAY: It's a very good possibility with your setbacks, parking, and your height limitation. COMMISSIONER PRIDDY: Both of them can't happen. MS. MURRAY: You start to form the box. Page 152 May 30, 2001 COMMISSIONER PRIDDY: Right, and both of them can't happen. CHAIRMAN RAUTIO: Okay. Any other comments? Mr. Hancock, you look like you would like to give quick additional testimony. MR. HANCOCK: Unfortunately some folks have confused the .6 and .8, which is for a standard hotel, with the 1.15 that was proposed by staff as part of the residential hotel. Those have been confused. I just wanted to clarify that. CHAIRMAN RAUTIO: Thank you. MR. HANCOCK: Thank you. CHAIRMAN RAUTIO: Okay. Now, those of you who like to make motions, I might need some help from staff here. We've got four different items here, and I think it sounds like we might approve three of them. COMMISSIONER PRIDDY: Uh. CHAIRMAN RAUTIO: Let's make sure we understand this, and we also have to understand what the request from Mr. Anderson is or which one of these gets tucked in here. COMMISSIONER PRIDDY: Okay. Let me attempt it. I move that we recommend approval of a maximum floor-area ratio for hotels, motels, and timeshare facilities that shall not exceed 0.5, destination resort hotels would be capped at 0.7, and the residential hotels would go to the 1.65 with a limit of 26 units per acre. Now, did that -- CHAIRMAN RAUTIO: So then the only one that we did not cover here would be the third one down that's talking about density because that restores the 26 units per acre. We would recommend that one not be approved. COMMISSIONER PRIDDY: We would recommend -- CHAIRMAN RAUTIO: Because you hit all of the other three. COMMISSIONER PRIDDY: Which one did I leave out? Page 153 May 30, 2001 CHAIRMAN RAUTIO: You wanted to leave out density, which is page 6-A; is that correct? COMMISSIONER ABERNATHY: The third one down? CHAIRMAN RAUTIO: Third one down. MS. STUDENT: I just wanted to, Madam Chairman, if I may, get clarification on the motion. Where the other hotels are, the regular hotels -- I call them the regular hotels, motels, timeshares, and destination resorts -- they had FARs there of 5 and 7 or .5 and .7, respectively, but there is no density that accompanies those, only with the residential hotel. Is that -- I just want to clarify that. MR. WEIGEL: Numbers of units. MS. STUDENT: Number of units. MS. MURRAY: For all hotels? MS. STUDENT: Are they for all of them? COMMISSIONER PRIDDY: We're going to 26. CHAIRMAN RAUTIO: That did need to be clarified because when I was writing down what you were saying, I was trying to plug them into the right square here, and I did not plug in the 26 per acre or 26 units per acre for the destination resorts, so I think that is a clarification. What's your point? COMMISSIONER PRIDDY: Now, we also need to take care of Mr. Anderson's concern on the LaPlaya. CHAIRMAN RAUTIO: And that is -- COMMISSIONER ABERNATHY: It's just about tacking on that last sentence. COMMISSIONER PRIDDY: That's by tacking on that last sentence. COMMISSIONER YOUNG: Tacking on what last sentence? CHAIRMAN RAUTIO'- That's on page 6, and my thing says -- COMMISSIONER PRIDDY: The last sentence -- COURT REPORTER: Wait, wait, wait. Page 154 May 30, 2001 COMMISSIONER PRIDDY'- The last sentence that we wrote down that stated that any projects approved at a public hearing prior to July 1st of 2001 would not get caught in the nonconformance. CHAIRMAN RAUTIO: Inconsistencies with the FAR limitations. Okay. And that is plugged into 2.2.8.4.5; is that correct, staff? Does that make sense to you and Mr. Anderson? MS. MURRAY: It doesn't make sense to me because I have 2.2.8.4.8 and 4.5 and I'm wondering -- hold on -- CHAIRMAN RAUTIO: Because I have in front of me where I wrote this in the fat packet that it was 2.2.8.4.5. MS. MURRAY: It would be-- CHAIRMAN RAUTIO: And that's the first item I see here. MS. MURRAY: It would be .8. COMMISSIONER YOUNG: What? MS. MURRAY: 2.2.8.4.8 is where you would add the sentence proposed by Mr. Anderson. CHAIRMAN RAUTIO: Well, that's thoroughly confusing me because I never saw an 8. MS. MURRAY: It's on my handout -- CHAIRMAN RAUTIO: On my handout. MS. MURRAY: -- that you got today. COMMISSIONER YOUNG: Oh. COMMISSIONER PRIDDY: And we need to eliminate the "in the event a condominium form of ownership is established." We'll eliminate that paragraph. MS. MURRAY: With that I suppose you're -- CHAIRMAN RAUTIO: Put that paragraph -- MS. MURRAY: I'm sorry. You're making the recommendation to approve the definitions for residential hotel and also the changes for destination resort hotel? COMMISSIONER PRIDDY-' (Shaking head.) Page 155 May 30, 2001 MS. MURRAY: Okay. CHAIRMAN RAUTIO: Right. With the 26-units-per-acre aspect. MS. MURRAY: Okay. CHAIRMAN RAUTIO-' And the residential hotel had the 1.657 MS. MURRAY: Correct. CHAIRMAN RAUTIO.' And the 26 units per acre? MS. MURRAY: Correct. CHAIRMAN RAUTIO: And I just looked at my handout, and the 2.2.8.4.8 is crossed out completely on mine. We're adding that back in and adding the sentence? COMMISSIONER YOUNG: Where? COMMISSIONER ABERNATHY: It's here. CHAIRMAN RAUTIO: We're having a little trouble finding that. COMMISSIONER YOUNG: I don't think I'm getting some of this. MS. MURRAY: It's on the handout you just got. CHAIRMAN RAUTIO: Okay. The next page. All right. MS. MURRAY: Yeah. CHAIRMAN RAUTIO: All right. MS. MURRAY: And also -- CHAIRMAN RAUTIO: Wait a minute. Excuse me. I just want to be very clear. The fat packet that I'm looking at here, this was changed to be the 2.2.8.4.8, and that is this section on the floor- area ratio, which refers to the 1.15 that we've now changed to 1.65. MS. MURRAY: That's correct. CHAIRMAN RAUTIO: And we can allow the sentence to be tacked in there, and it will meet the requirement. Does everybody agree to that? Does our attorney agree to that? MR. WEIGEL: I think so. For the record, did you also remove Page 156 May 30, 2001 the paragraph on condominiums? COMMISSIONER PRIDDY: Yes. Yes, I did remove it. MR. WEIGEL: I thought you did, but I was trying to keep up. COMMISSIONER PRIDDY: I did remove -- CHAIRMAN RAUTIO: Yes, we removed it. COMMISSIONER PRIDDY: We removed that. We took care of Mr. Anderson's request for the LaPlaya, and we made the other changes on the floor area with a cap of 26 units, so the developer's got his choice of what to do, but he can't do it all because he's going to get caught by one limitation or another. CHAIRMAN RAUTIO: So he can't have his cake and eat it too? COMMISSIONER PRIDDY: He can't have a 4,000 square foot room and 26 of them on that piece of property because he's going to run out of either height or width. MR. WEIGEL: Okay. Madam Chairman, could Mr. Priddy tell me how they took care of LaPlaya? I'm sorry. I just couldn't keep up with my notetaking. COMMISSIONER PRIDDY: We put a statement in there that said (as read): "Any project approved at a public meeting prior to July 1st of 2001 would not be" -- CHAIRMAN RAUTIO: Shall not-- COMMISSIONER ABERNATHY: Deemed nonconforming. COMMISSIONER PRIDDY: "Shall not be deemed nonconforming." CHAIRMAN RAUTIO: "As a result of inconsistencies with FAR limitations." MS. MURRAY'- Would that be inclusive of density limitations as well? COMMISSIONER PRIDDY: No, of floor area. MS. MURRAY: Okay. I just want to clarify it for the record. COMMISSIONER PRIDDY: Floor area only. Page 157 May 30, 2001 CHAIRMAN RAUTIO: Okay. Say that again. COMMISSIONER YOUNG: He would have no ex post facto -- what's the last word? -- nonconformity. COMMISSIONER PRIDDY.' Yeah. MS. MURRAY: Correct. COMMISSIONER YOUNG: In other words, after the fact he would be in conformity and would have no problem, ex post facto. CHAIRMAN RAUTIO: Ex post facto. Do we feel comfortable? Yes, Marjorie. MS. STUDENT: Another-- maybe I missed something, too, in trying to write everything down, but does that also include the amended definition of destination resort hotel? COMMISSIONER PRIDDY: Yes. MS. STUDENT: Because there's two definitions here, the residential hotel and the destination resort, and I want to make sure, again, for clarification purposes. CHAIRMAN RAUTIO: Correct. Am I -- I just want to make sure you're clear and I'm clear before we ask for a second to this. The motion covers Block 1, 2, and 4. COMMISSIONER PRIDDY: Where did you get that block? COMMISSIONER ABERNATHY.' Over here. CHAIRMAN RAUTIO: From the schedule. Because when I see density, it tells me here it restores 26-units-per-acre density for hotels in the RT district and that -- COMMISSIONER ABERNATHY: That's the one thing we rejected. CHAIRMAN RAUTIO: That should be what we're rejecting. Would that be your understanding, Mr. Weigel or Miss Student? MR. WEIGEL: I'm not sure why -- if I understand that you're rejecting that, 26 units per acre for hotels in the district. Now, that's the way it was in the past. Page 158 May 30, 2001 COMMISSIONER ABERNATHY: That's the one we rejected. CHAIRMAN RAUTIO: Right, and we don't want this one. MR. WEIGEL: Okay. MS. STUDENT: I think what you're doing is coupling it with the FAR. COMMISSIONER PRIDDY: We're coupling that with the FAR. MR. WEIGEL: Okay. Fine. MS. STUDENT: For all hotels. CHAIRMAN RAUTIO: Right. COMMISSIONER ABERNATHY: But standing alone by itself we don't want it. MR. WEIGEL: Okay. CHAIRMAN RAUTIO: Right. We do not want that one to stand alone. MR. WEIGEL: Thank you. I appreciate that. CHAIRMAN RAUTIO: So that was a motion by Mr. Priddy. Did I have a second? COMMISSIONER BUDD: Yes, second. CHAIRMAN RAUTIO: A second by Mr. Budd. Is there any further discussion? COMMISSIONER PRIDDY-' One last one. CHAIRMAN RAUTIO: Oh, yes. We have an attorney comment. MS. STUDENT: Don't forget the consistency with the comp plan finding. COMMISSIONER PRIDDY: I made that motion finding that it was consistent with the comp plan. MS. STUDENT: Thank you. CHAIRMAN RAUTIO: So we're -- and the second agrees. Any further discussion? (No response.) CHAIRMAN RAUTIO: All in favor please say aye. Page159 May 30, 2001 (Unanimous response.) CHAIRMAN RAUTIO: Opposed, same sign. (No response.) CHAIRMAN RAUTIO: Motion carries -- motions carry. COMMISSIONER PRIDDY: When can I pick up my overtime check? CHAIRMAN RAUTIO: COURT REPORTER: CHAIRMAN RAUTIO: Do you need a break real quickly? How much longer do you think we'll go? We have a number more, but I don't believe many of them are very controversial. MS. MURRAY: I do have three speakers for three individual amendments. CHAIRMAN RAUTIO: Those might be -- MS. MURRAY: Dock facilities, the Goodland Overlay District, and -- CHAIRMAN RAUTIO: I'm sorry. MS. MURRAY: Goodland Overlay and the C-4 general commercial district. COMMISSIONER PRIDDY: I request a three-minute break. CHAIRMAN RAUTIO: Granted. We're in recess. (A short break was held.) CHAIRMAN RAUTIO: Okay. I believe we've made it to the bottom of page 2 on our summary sheet. We are now going to touch on 1.19.1, timing, which is one of ours that doesn't get voted on finally until the 7th of June. MS. MURRAY: Did you want to go through these individually in their order? Would you like to take your -- there's only one public speaker left. Would you like to hear his speech and talk about -- COMMISSIONER YOUNG: That would be fair. CHAIRMAN RAUTIO: That would be fair for the one public person left, and that is Item No. -- Page160 May 30, 2001 MS. MURRAY: That is on page 9 of your fat handout. COMMISSIONER PEDONE: Fat? MS. MURRAY: Sorry. It's getting late. CHAIRMAN RAUTIO: Page 9 of our fat packet. Mar]orie, you had your hand up, and I was looking in the opposite direction. MS. STUDENT: Yes. CHAIRMAN RAUTIO: I'm sorry. MS. STUDENT: I just need to -- when you get to what I call the rooster amendment, it's actually an amendment to, I believe, the rural ag district about poultry. I don't think it's anywhere else. I just need to make a comment. I made it before, but I need to make a comment about that. CHAIRMAN RAUTIO: Right. That will be fine because that's at the top of page 3, and we're not quite there yet. We will handle the C-4 district -- is that -- MS. MURRAY: That's correct. CHAIRMAN RAUTIO: -- what we want to talk about now?. MS. MURRAY: Page 9 of your-- CHAIRMAN RAUTIO: Page 9 of the fat packet. MS. MURRAY: -- fat handout, and the registered speaker is Tim Hancock. CHAIRMAN RAUTIO: We can make him wait. Mr. Hancock. MR. HANCOCK: I couldn't be more pleased than to proceed with the rooster amendment. Thank you again for your consideration. On this particular amendment, what I have is a request for some what I consider to be tweaking. One thing very positive out of this is staff has recognized that many warehouse uses today are not what they were 5 and 10 and 15 years ago. With a combination of our architectural standards and the reduction in C-5 type zoning throughout the county, there's a need out there Page 161 May 30, 2001 that's not being met in the market. And I think what they're proposing is going to help us get there. I initially presented some alternative criteria to the Development Services Advisory Committee subcommittee. It worked through that committee and some changes were made. However, there is a couple of things that remain that I would seek clarification on, if not a whole change to a couple small parts, and let me be very quick about those. The language on page 9 under "motor freight transportation and warehousing" where it says, "air conditioned mini- and self- storage warehousing only and subject to the following criteria," No. I is "no metal roll-up garage doors." The concern, in my opinion, is that you don't have metal roll-up doors externally on the buildings. If the buildings are set up in such a way that internal walls have roll-up doors facing each other, that doesn't affect the community. But without those type of roll-up doors, all you have are small entry doors that you have to go into potentially a non- air-conditioned building. To me, it's overkill. We have architectural standards that these buildings are subject to in commercial zoning. Those standards should apply, and that can be easily resolved by simply stating "no metal roll- up garage doors shall be allowed on the outermost faces of the buildings." So that's Suggestion 1. Also, "All units must be accessible internally." I'm seeking only a clarification on that. Does that mean that I have to walk inside a door on the outside of the building to access my unit? Or does that mean that I can't access it from the exterior of the project? I'm not sure how that is going to be applied. So, Ms. Murray, I apologize for asking that question in this forum. I thought the change had been made, but as I read it I was a little unclear on the application or intended application of that Page 162 May 30, 2001 section. CHAIRMAN RAUTIO: That was one of my questions too. How do you get in? COMMISSIONER ABERNATHY: Accessible and access are two different things, aren't they? MS. MURRAY: Correct. COMMISSIONER ABERNATHY: You don't have to access it internally, but it has to be accessible. MR. HANCOCK: Correct. If the intent is that you drive into basically a compound, if you will, that externally meets the architectural guidelines and access -- everything from, you know, internally, in that sense, that's one thing. If, however, it says that in order to open the door to your unit you have to walk in one wall through a door, then go get to your unit, in other words, requiring a double door -- you have to go through one door on the outside and then go inside and go inside and open up another door, I'm not sure what we just accomplished. COMMISSIONER WOLFLEY.' Doesn't that just track what you said? No roll-up doors on the outermost -- doesn't this -- "must be accessible internally." Doesn't that say what -- MR. HANCOCK: I would think so, but I think there's room for interpretation there. You know, we're all not going to be here in ten years. We're going to be off doing other things a little more fun. MS. MURRAY: I think the intent is not to have access from the outside for all -- each individual units. Obviously, you would have to have a door to get into the building, but you would access the individual units from the inside with no access to individual units. You know, ten units, ten doors. You wouldn't have that on the outside. You would have one door to get into the units. MR. HANCOCK: The problem with that that I see is that it Page 163 May 30, 2001 really requires, then, air-conditioned units. And the reason is, when you design these buildings, if you're not doing an air- conditioned high-end unit, and you're doing one where basically you store things that don't need air conditioning -- the metal garage doors allow the unit to breath from an external wall. If what you have, in fact, is small doors that you access and you go inside the physical building and then access your individual unit, your individual unit isn't going to -- pardon the expression -- breathe the same way. It's just -- MS. MURRAY: You're going to have internal air-conditioned storage is what you're going to have. MR. HANCOCK: But the air-condition requirement was removed. COMMISSIONER YOUNG: It says "air conditioned." CHAIRMAN RAUTIO: Well, dissect -- suggest to eliminate the A/C. MR. HANCOCK: I guess my concern from an overall standpoint is we have architectural guidelines that affect how the project relates to the community. To then go inside the project -- if I drive in a gate, and I turn right to a unit, and I'm staying there in front of what should be this building I'm storing things in, the person driving by on the street can't even see. And to regulate whether I can have one door on the outside or ten doors on the outside, what are we accomplishing? We're requiring high-end air-conditioned storage when -- you know, I don't understand why that is the intent. I think we can address the external impacts visually of the buildings and accomplish the objective of not having blank walls and bear-up type buildings. I think the rest of this is a little overkill. MS. MURRAY: Do you need some clarification from me? CHAIRMAN RAUTIO: Go ahead. MS. MURRAY: The intent behind this -- I mean, obviously Page 164 May 30, 2001 right now today you can only build this in the C-5 zoning district. CHAIRMAN RAUTIO: Uh-huh. MS. MURRAY: The intent here is to allow with some accommodation permission to build this in a C-4 zoning district, but that comes with some architectural controls that limit the type of storage that you're going to have basically to air- conditioned storage because it's in the lesser intense zoning district. MR. HANCOCK: My point is that -- CHAIRMAN RAUTIO: And that means? MR. HANCOCK: Whether it's air conditioned or not -- for example, Olde Naples Self Storage on Goodlette-Frank Road, why isn't -- we allow marinas in C-3. So you can store boats openly, but you can't build an Olde Naples Self Storage? My point is that the architectural controls when applied correctly address the aesthetic issue. And if we need to tighten those architect controls for aesthetics in allowing this in C-4, that's one thing. But to require air conditioning in every building, to require basically double-door access inside the project itself is, again, overkill. What we're doing is driving the price up of construction of this storage, and I'm not seeing where that benefits anybody. So, you know, again, I think it's an overabundance of caution on the part of staff to basically -- it feels like -- to me it's almost as if they looked at one project and said, "This is how they all should be designed, like this one," where basically you have this nice, pretty building that looks like an office building on the outside, and you go inside your air-conditioned unit where you store your expensive oil paintings. That's great, but we don't have a problem with high-end storage. We have a problem with folks trying to store furniture for three and six months. That's not high end. Page165 May 30, 2001 CHAIRMAN RAUTIO: I have a question of Mr. Hancock. Then if we change the first one about the metal doors with the outermost faces of the building, what do you suggest the different wording would be for No. 2? Are you asking it to be totally eliminated? COMMISSIONER PRIDDY: Just scratch it out. MR. HANCOCK: Well, if you want to put a caveat in it that says no units will be accessed from the perimeter of the structure, meaning those that face outward to adjacent properties or the street -- if you look at Olde Naples Storage on Goodlette-Frank Road, the building that faces the road has no access. You drive in a gate, but the building that faces the road is architecturally finished with no doors. They have windows that were put in there. The doors that you access your unit are behind that. In other words, they've presented an architectural front and put storage behind it. CHAIRMAN RAUTIO: I think you've convinced us. We need some words. Either strike it or reword it. Mr. Abernathy, do you have -- MR. HANCOCK: I'm happy with striking it because I think it's redundant. CHAIRMAN RAUTIO: I think eliminate it. MR. HANCOCK: By not allowing metal roll-up garage doors on the external or perimeter of the project, No. 2 is redundant. CHAIRMAN RAUTIO: Okay. COMMISSIONER PRIDDY: I would agree. CHAIRMAN RAUTIO: Do you have another one? MR. HANCOCK: Yes, ma'am. I apologize. "Designed with architectural elements similar to office buildings." Rather than going through that tonight, I'm not really sure what that means. CHAIRMAN RAUTIO: Yeah, I agree. MR. HANCOCK: And so that needs some clarification Page 166 May 30, 2001 because, quite frankly, some of the ugliest buildings in this town are office buildings, so I'm not sure it gets us anywhere. So I would like to see that either clarified or removed. Again, we have architectural design guidelines in place. We can strengthen them if we need to, and I'm an advocate of that. Trust me. CHAIRMAN RAUTIO: Yeah. Okay. COMMISSIONER PRIDDY: And it probably needs to be stricken because if it happens to be next to a residential unit, that may need to look like a residential storage facility. Whereas if it's next to an office complex, it might need to look like an office. Or if it's next to an industrial complex, maybe it needs to have some other look. MR. HANCOCK: And these are typically built single story. I don't know too many single-story office buildings other than like, say -- you know, I think there are some five-in-a-seven buildings. Anyway, to me I'm not sure what it means. I think it either needs to be removed or simply reference the architectural standards in the code. The last item I have on that verbage is, "No building may exceed 100 feet in length." Again, our architectural standards don't tell Wal-Mart you have to stop every 100 feet. Storage typically is 1- and 2-story. The side of a Wal-Mart or K-Mart building is typically 30 to 35 feet. Why is that mass treated differently? The other side is that these units are typically 20 foot by 20 foot that have been broken down into smaller units from inside the structure, so you have the equivalent of back-to-back ten units, and you have to start a whole new building. It drives the construction price up, and it's something we don't require of any other commercial building, that they only have a 100-foot linear run. CHAIRMAN RAUTIO: Was there some major point, Susan? Page 167 May 30, 2001 COMMISSIONER ABERNATHY: Is there anything you like about this? MR. HANCOCK: Yes, sir. No outdoor storage. MS. MURRAY: I think, again, that was an architectural control to just try to minimize the impact of an excessively long building. CHAIRMAN RAUTIO: Because an excessively long building might be perceived as something unattractive? MS. MURRAY: Correct. MR. HANCOCK: We don't regulate the length of buildings except that if you do exceed a certain length, you're required to provide articulation and roof treatments to offset that. MS. MURRAY: That's correct. MR. HANCOCK: We require that of all commercial structures. I think we're looking at antiquated metal warehouse or mini warehouses and trying to say "That's what's going to be built if we don't protect ourselves from it." The protections exist in our design code. So those are my comments on that. The only other thing I would ask, and I guess this will constitute a stretch, is that we are taking this from C-5 to C-4, and while I think that's a good idea, the actual inventory of available C-4 land is not that great out there. I would ask your consideration to allow it as a conditional use in C-3. All that would allow is for a public hearing to review the opportunity to put it in C-3. What that means is if you're going into a C-3 that's adjacent to a quasi-residential structure, when you go through the public hearing you're going to have to do whatever it takes to be compatible with your surroundings. Like I said, in C-3 we allow marinas. You know, there is no rhyme or reason when you go through the commercial districts, and now is not the time to go and revamp everything, although Page 168 May 30, 2001 we do need to take a serious look at how we segment our commercial areas. But most uses that are in one permitted district -- excuse me -- roughly half of them appear as a conditional use in the lesser-intensive district. I think by going to C-4 we're making strides, but thanks to the ZRO process and some other processes in the history of the county, there's a lot of C-3's sitting out there. There's not a lot of C-4 outside of activity centers. So I'm not sure the net result is an increased availability of land for this development to any great degree. By allowing it as a conditional use in C-3, it still forces a public hearing and requires the property owner and developer to prove their point in a public hearing that they are, in fact, compatible. I don't see it as granting an additional right, and the Development Services Advisory Committee subcommittee did agree with me on that point and make that a part of their recommendation at their last meeting. That's the last item I wanted to place in front of you this evening. CHAIRMAN RAUTIO: Well, I don't think you made -- COMMISSIONER PRIDDY: Let's go with a C-2 with a supermajority vote. CHAIRMAN RAUTIO: Miss Murray. MS. MURRAY: I don't want to belabor this too much, but there's a couple of things. The suggestion for "no metal roll-up doors" or "shall be allowed on outermost walls" and then coupling that with "all units must be accessible internally" -- I thought I heard that you felt that just by requiring no metal roll- up garage doors on outermost walls would take -- would address the internal accessibility issue, and I don't read it that way. I read it as "no metal roll-up garage doors on the outermost walls." That doesn't mean you can't have wooden doors or plastic doors. Am I being overly simplistic here? But I -- if you don't want Page 169 May 30, 2001 external access, then I think it needs to clearly state that you don't want external access. CHAIRMAN RAUTIO: That's what we don't want? MR. HANCOCK: External access -- COMMISSIONER YOUNG: We don't? For a storage unit? MR. HANCOCK: External access with a normal door doesn't seem to be the problem. The problem is external access through the large metal garage doors. We access office buildings through regular-size doors. I don't want to prohibit that one. What I'm saying is-- MS. MURRAY: I just need clarification about what you're asking for because you implied that internal accessibility would be acceptable, and the mechanism to enforce that would be no metal roll-up garage doors, and that doesn't -- I don't find that to be consistent with what you were asking. Maybe I -- it's late, and maybe I misunderstood what you're asking. CHAIRMAN RAUTIO: It's definitely late. I will agree with you on that. I think we agreed to eliminate No. 2 completely. COMMISSIONER YOUNG: Yes. CHAIRMAN RAUTIO: And then I think we decided to eliminate No. 3 completely, "designed with architectural elements." I didn't hear enough mumbling up here to see if we decided to further agree with Mr. Hancock and drop No. 4. I tend to support that. COMMISSIONER WOLFLEY: I think the intent was from the street side not to have rows of doors. MR. HANCOCK: Correct. COMMISSIONER WOLFLEY: Isn't there a way that we could quickly word this so that, you know, access is done from the other side of the building? MR. HANCOCK: If it is the direction of the Planning Commission, I would be happy to work with your staff to try and Page 170 May 30, 2001 come up with that language more specifically. The intent, I think, is clearly stated. Finding the wording that accomplishes that is not an arduous task. CHAIRMAN RAUTIO: It seems reasonable to me. Do you-all feel comfortable with that since he's rewritten most of this here now anyway? COMMISSIONER PRIDDY: That's fine. CHAIRMAN RAUTIO: If we want to point that specific item out -- MR, HANCOCK: On the issue of one hundred feet in length, again, if your side yard is next to, you know, a side of a building with relatively few windows on it, why you should have to break up your building every hundred feet makes no sense. Again, it lacks application. I'd like -- COMMISSIONER PRIDDY: How about if we said that -- we leave the 100 feet in if it's next to residential, and on any other adjacent use the architectural standards would take place? CHAIRMAN RAUTIO: You could help that wording be worked out. MS. MURRAY: I think -- yeah. You just need to appreciate that this isn't -- for all intents and purposes, an industrial building is really what it is. You know, originally it was only allowed in the industrial, and we're going to C-5 and C-4, so I think we do need to be aware, as you pointed out, perhaps, of some of the -- COMMISSIONER PRIDDY: I would be comfortable with leaving the 100-foot limitation if it abuts residential. Otherwise, you can have a longer building and let the architectural standards take over. But staff has to also appreciate that storage units are not today what they were back when they were only allowed in industrial. MR. HANCOCK: And please don't misinterpret this. I don't mean to be overly critical of staff. It's just that in dealing with Page 171 May 30, 2001 storage projects, we have some midstream, and I looked at this and thought, "Holy cow, that's going to cause a' -- and they're the same architect that did Olde Naples Storage that I'm working with. COMMISSIONER PRIDDY: Now that you're done, we can vote. CHAIRMAN RAUTIO: And, remember, he did talk about the conditional use in the C-3. Are we going to throw that in there or not? MS. MURRAY'. We have not advertised for any changes to the C-3 zoning district. COMMISSIONER ABERNATHY: That's a quantum leap. CHAIRMAN RAUTIO: Quantum leap. We'll have to catch that one next time, Mr. Hancock. We might as well vote on this one since we pulled it out of sequence, and we can be done with it. COMMISSIONER PRIDDY: Aye. Oh, we haven't made the motion yet. Mr. Abernathy, why don't you make that motion. COMMISSIONER ABERNATHY: All right. I'll move that we forward Section 2.2.15.2 recommending approval subject to clarification of some of the language between Mr. Hancock and staff. MS. STUDENT: And consistency with the comp plan. COMMISSIONER ABERNATHY: And it's certainly consistent with the comp plan. COMMISSIONER BUDD-' Second. CHAIRMAN RAUTIO: We have a motion by Mr. Abernathy and a second by Mr. Budd, I believe. Any further discussion? (No response.) CHAIRMAN RAUTIO: I'll call the question. All in favor say aye. (Unanimous response.) Page 172 May 30, 2001 CHAIRMAN RAUTIO: Opposed, same sign. (No response.) CHAIRMAN RAUTIO: Motion carries. COMMISSIONER PRIDDY: You-all wondered why I brought my sunglasses. I'm going to need them. COMMISSIONER ABERNATHY: He's going to start sleeping. CHAIRMAN RAUTIO: Okay. Now we can go back to the bottom of page 2 of the summary sheet and talk about 1.19.1, timing. Do we have any questions about it? MS. STUDENT: That's one that's not going to be heard. Is it 1.197 CHAIRMAN RAUTIO: Yes, 1.19 was one of them. I didn't know if we -- MS. STUDENT: That's the one going on June 7th. CHAIRMAN RAUTIO: Okay. So-- COMMISSIONER PRIDDY: I move we put that off. CHAIRMAN RAUTIO: Okay. We'll put that off, and we'll move to the next one. I just have one question about that. If the Board of County Commissioners meets on the 6th for their first public hearing and we don't have a final recommendation here, what does that do for the second requirement? MS. STUDENT: We're going to tell the board a couple things. There was this problem that occurred and that the Planning Commission has considered it, and they will be considering it finally on the 7th, and they'll have their recommendation by the final meeting. In the meantime, they can still hear it. If they have any concerns, they can, you know, raise them and then fold it in with what you finally did on the 7th at their final hearing on the 20th. CHAIRMAN RAUTIO: Well, I must have been semi-asleep at the last meeting because I don't remember discussing this one. I guess we just went right over it. I'm not sure why the Board of Page 173 May 30, 2001 County Commissioners would like to go through this exercise more than two times a year, so I'm not sure I really want to change this. MS. STUDENT: At this hour I wouldn't know either. CHAIRMAN RAUTIO: That's my statement on this one. Any other comments? Because we can move through the rest of these and then vote. COMMISSIONER ABERNATHY: Let's move. MS. STUDENT: I just have the rooster -- COMMISSIONER YOUNG: Before we all go to asleep. CHAIRMAN RAUTIO: Oh, that's right. We're now to the rooster. We turn to page -- we are now on your roosters. MS. STUDENT: My only concern with that, and I've discussed this with Tom Palmer of our office, is that it's what we attorneys call constitutional overbreath for one thing. In other words, it's like throwing the baby out with the bath water. Our constitutional law tells us that ordinances should be narrowly tailored to achieve their purpose, rather than throwing the baby out with the bath water. That's one issue. Another issue concerns -- this seems to be a regular police- power type of regulation as opposed to a land-code regulation. There's state law. The intent of this is to prohibit rooster fighting. There is state law that deals with that. And, finally, Mr. Palmer did some research, and they may have some First Amendment problems because certain religious groups keep roosters for religious purposes. There's some case law on that out of Dade County, I believe. So for all those reasons we would recommend that it not be included. CHAIRMAN RAUTIO: So we can just now recommend denial -- nontransmittal, is that the proper phraseology? MS. STUDENT: Or that it just not be included in the land code amendment. Page 174 May 30, 2001 CHAIRMAN RAUTIO: Do not include in the land code amendment. COMMISSIONER PRIDDY: So moved. COMMISSIONER ABERNATHY: Second. CHAIRMAN RAUTIO: We have a motion by Mr. Priddy, a second by Mr. Abernathy to not include this in the transmittal to the Board of County Commissioners. Any discussion? (No response.) CHAIRMAN RAUTIO: All in favor say aye. (Unanimous response.) CHAIRMAN RAUTIO: Those opposed say aye. (No response.) CHAIRMAN RAUTIO: Motion carries. Moving right along, we are on estates district, 2.2.3. MS. MURRAY: The last time we met I basically ran through all of these -- I just referenced the section and gave you the DSAC recommendation. COMMISSIONER PRIDDY: Uh-huh. MS. MURRAY.' If you want I can just state the sections into the record, and if you want to stop me, just stop and we can discuss it. CHAIRMAN RAUTIO: That's a marvelous idea. COMMISSIONER YOUNG: I think we'd better. MS. MURRAY: And the other individuals -- and I don't recall you having any other issues when we met last time with any of these other amendments, so I'll just keep talking until you stop me, MS. STUDENT: final motion -- MS. MURRAY: MS. STUDENT: You can just take the rest of these in one Collectively, okay. .- without individually doing them and then make the comp plan consistency finding and vote. Page 175 May 30, 2001 COMMISSIONER BUDD: Do they have to be read into the record? They're in the agenda. We know which we're talking about. We can all read. MS. STUDENT: I don't know that it necessarily has to be. It was discussed at the other meeting. You have your items all before you. I don't know, Dave, what do you think? MR. WEIGEL: Well, if it just takes a second, why don't you at least identify them by the words as opposed to giving all the numbers. COMMISSIONER BUDD: There you go. MS. MURRAY: Okay. The first one would be the estates zoning district; then commercial professional district, C-1, and commercial professional transitional district, C-l/T, permitted uses; C-4 general commercial district; business park PUD district; Immokalee overlay district, Bayshore mixed-use overlay district; Goodland overlay district; in reference to the dock facility section of the code; reference to the building permit and certificate of occupancy compliance process; reference to the landscaping section of the code; reference to the subdivision improvement section of the code; again, reference to the subdivision improvement section; reference to the site development plan section of the code; reference to the excavation section of the code; and reference to the definition section of the code that we did not previously address earlier this evening. CHAIRMAN RAUTIO: On PSI? MS. MURRAY: On PSI, and the definition of right-of-way, the definition of a structure, and the definition of a yard. CHAIRMAN RAUTIO: Any comments? COMMISSIONER BUDD: Madam Chairman, I'd like to make a motion that all the Land Development Code amendments that were just read into the record by Miss Murray are consistent with Page 176 May 30, 2001 the Comprehensive Plan and that we forward them to the County Commissioners with a recommendation of approval. COMMISSIONER ABERNATHY: Second. CHAIRMAN RAUTIO: We have a motion by Mr. Budd and a second by Mr. Abernathy to approve the items just read into the record. Any discussion? (No response.) CHAIRMAN RAUTIO: aye. I'll call the question. All in favor say (Unanimous response.) CHAIRMAN RAUTIO: Those opposed, same sign. (No response.) CHAIRMAN RAUTIO: Motion carries. I think that concludes our business. I just want to put on the record that at our regular meeting on June 7th we will have elections for a new chair and, hopefully, a new vice chair, so we are adjourned. Thank you. There being no further business for the good of the County, the meeting was adjourned by order of the Chair at 10:35 p.m. COLLIER COUNTY PLANNING COMMISSION JOYCEANNA J. RAUTIO, CHAIRMAN Page 177 May 30, 2001 TRANSCRIPT PREPARED ON BEHALF OF DONOVAN COURT REPORTING, INC., BY MARGARET A. SMITH, RPR Page 178