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BCC Minutes 06/06/2001 S (LDC Amendments)June 6, 2001 TRANSCRIPT OF THE MEETING OF THE BOARD OF COUNTY COMMISSIONERS Naples, Florida, June 6, 2001 LET IT BE REMEMBERED, that the Board of County Commissioners, in and for the County of Collier, and also acting as the Board of Zoning Appeals and as the governing board(s) of such special districts as have been created according to law and having conducted business herein, met on this date at 5:15 p.m. in SPECIAL SESSION in Building "F' of the Government Complex, East Naples, Florida, with the following members present: CHAIRMAN: VICE-CHAIRMAN: James D. Carter, Ph.D. Pamela S. Mac'Kie James Coletta Donna Fiala Tom Henning ALSO PRESENT: Tom Olliff, County Manager David C. Weigel, County Attorney Page COLLIER COUNTY BOARD OF COUNTY COMMISSIONERS AGENDA June 6, 2001 NOTICE: ALL PERSONS WISHING TO SPEAK ON ANY AGENDA ITEM MUST REGISTER PRIOR TO SPEAKING. SPEAKERS MUST REGISTER WITH THE COUNTY MANAGER PRIOR TO THE PRESENTATION OF THE AGENDA ITEM TO BE ADDRESSED. COLLIER COUNTY ORDINANCE NOo 99-22 REQUIRES THAT ALL LOBBYISTS SHALL, BEFORE ENGAGING IN ANY LOBBYING ACTIVITIES (INCLUDING, BUT NOT LIMITED TO, ADDRESSING THE BOARD OF COUNTY COMMISSIONERS), REGISTER WITH THE CLERK TO THE BOARD AT THE BOARD MINUTES AND RECORDS DEPARTMENT. REQUESTS TO ADDRESS THE BOARD ON SUBJECTS WHICH ARE NOT ON THIS AGENDA MUST BE SUBMITTED IN WRITING WITH EXPLANATION TO THE COUNTY MANAGER AT LEAST 13 DAYS PRIOR TO THE DATE OF THE MEETING AND WILL BE HEARD UNDER "PUBLIC PETITIONS". ANY PERSON WHO DECIDES TO APPEAL A DECISION OF THIS BOARD WILL NEED A RECORD OF THE PROCEEDINGS PERTAINING THERETO, AND THEREFORE MAY NEED TO ENSURE THAT A VERBATIM RECORD OF THE PROCEEDINGS IS MADE, WHICH RECORD INCLUDES THE TESTIMONY AND EVIDENCE UPON WHICH THE APPEAL IS TO BE BASED. ALL REGISTERED PUBLIC SPEAKERS WILL BE LIMITED TO FIVE (5) MINUTES UNLESS PERMISSION FOR ADDITIONAL TIME IS GRANTED BY THE CHAIRMAN. IF YOU ARE A PERSON WITH A DISABILITY WHO NEEDS ANY ACCOMMODATION IN ORDER TO PARTICIPATE IN THIS PROCEEDING, YOU ARE ENTITLED, AT NO COST TO YOU, TO THE PROVISION OF CERTAIN ASSISTANCE. PLEASE CONTACT THE COLLIER COUNTY FACILITIES MANAGEMENT DEPARTMENT LOCATED AT 3301 EAST TAMIAMI TRAIL, NAPLES, FLORIDA, 34112, (941) 774-8380; ASSISTED LISTENING DEVICES FOR THE HEARING IMPAIRED ARE AVAILABLE IN THE COUNTY COMMISSIONERS' OFFICE. 1 June 6, 2001 1. PLEDGE OF ALLEGIANCE m AN ORDINANCE AMENDING ORDINANCE NUMBER 91-102, AS AMENDED, THE COLLIER COUNTY LAND DEVELOPMENT CODE, WHICH INCLUDES THE COMPREHENSIVE ZONING REGULATIONS FOR THE UNINCORPORATED AREA OF COLLIER COUNTY, FLORIDA, BY PROVIDING FOR: SECTION ONE, RECITALS: SECTION TWO, FINDINGS OF FACT: SECTION THREE, ADOPTION OF AMENDMENTS TO THE LAND DEVELOPMENT CODE, MORE SPECIFICALLY AMENDING THE FOLLOWING: ARTICLE 1, GENERAL PROVISIONS, DIVISION 1.8. NONCONFORMITIES; DIVISION 1.19. AMENDMENTS TO'THIS CODE; ARTICLE 2, ZONING, DIVISION 2.2. ZONING DISTRICTS, PERMITTED USES, CONDITIONAL USES, DIMENSIONAL STANDARDS, DIVISION 2.3. OFF-STREET PARKING AND LOADING; DIVISION 2.4 LANDSCAPING AND BUFFERING, DIVISION 2.5. SIGNS; DIVISION 2.6. SUPPLEMENTAL DISTRICT REGULATIONS; DIVISION 2.7. ZONING ADMINISTRATION AND PROCEEDURES; DIVISION 2.8. ARCHITECTURAL AND SITE DESIGN STANDARDS AND GUIDELINES FOR COMMERCIAL BUILDINGS AND PROJECTS; ARTICLE 3, DIVISION 3.2. SUBDIVISIONS; DIVISION 3.3. SITE DEVELOPMENT PLANS; DIVISION 3.5 EXCAVATION; DIVISION 3.9 VEGETATION REMOVAL, PROTECTION AND PRESERVATION; DIVISION 3.13. COASTAL CONSTRUCTION SETBACK LINE VARIANCE; DIVISION 3.14. VEHICLE ON THE BEACH REGULATIONS; ARTICLE 5, DIVISION 5.1 BOARD OF COUNTY COMMISSIONERS; DIVISION 5.2 PLANNING COMMISSION; DI~/ISlON 5.3 BOARD OF ZONING APPEALS; AND TO ADD DIVISION 5.5 HEARING EXAMINER; ARTICLE 6, DIVISION 6.3. DEFINITIONS, INCLUDING, BUT NOT LIMITED TO THE DEFINITIONS OF PARTICIPANT, PSI (POUNDS PER SQUARE INCH), RIGHT-OF- WAY, STRUCTURE, UNAUTHORIZED COMMUNICATION AND YARDS; SECTION FOUR, CONFLICT AND SEVERABILITY; SECTION FIVE, INCLUSION IN THE COLLIER COUNTY LAND DEVELOPMENT CODE; AND SECTION SlX, EFFECTIVE DATES. ADJOURN 2 June 6, 2001 June 6, 2001 AN ORDINANCE AMENDING ORDINANCE 91-102, THE LAND DEVELOPMENT CODE, AS AMENDED - SECONDED PUBLIC HEARING TO BE HELD JUNE 20, 2001 CHAIRMAN CARTER: Can I have your attention please? Calling this meeting to order of the Board of County Commissioners for the first of two meetings on the Land Development Codes. It's currently 5:15 in the afternoon. I'm going to ask you all to stand for the pledge of allegiance, and then we will start the agenda. (The pledge of allegiance was recited in unison.) CHAIRMAN CARTER: We have a number of interesting items under the Land Development Code this evening, and I've been looking and chatting with our county administrator, Tom Olliff. And with the pleasure of the board, I think, Tom, you can give us an overview of the subject that has the most public speakers at this point. We're going to try to work through this. As I left Tom two minutes ago, it looked like the RT zoning area was the one that had the most public speakers. Does that still hold, Mr. Olliff? MR. OLLIFF: Yes, sir. That still has the largest numbers of public speakers, and then your vehicles on the beach item would be next. COMMISSIONER MAC'KIE: That's a good idea, to take them in order of -- CHAIRMAN CARTER: That's where we will go tonight, ladies and gentlemen, so that those of you who are here for those particular high-interest issues will have an opportunity to state your views. For our listening audience, all of these have been reviewed with the planning council; the DSA, which is a development services group; and also with the environmental advisory council. So there's been a lot of input and a lot of changes as we've gone along. Page 2 June 6, 2001 Tonight we do not make final decisions on these Land Development Codes. We take input, and the commission looks at one of these. And if everybody's in agreement, we just give it a nod and go forward because that's really fairly simplistic. It says by the next meeting if everyone was in agreement here and there really wasn't anybody that had any concerns about it, then that would be pretty much not a problem in the second meeting. But the second meeting is where the final decisions are made. So if you're here tonight for an issue, and whatever the outcome is, remember that at the second meeting you have an opportunity to be here and present again. And I believe that's June 20th; is that right? Mr. Oliff, am I correct on that? MR. OLLIFF: Yes, sir. CHAIRMAN CARTER: Okay. June 20th at 5:05 p.m. Let us proceed. MS. MURRAY: Good evening, Commissioners. I'm Susan Murray, interim current planning manager. And I have a couple of procedural things to go over with you so you'll better understand how to follow along in the packet that you've been given, and then we'll get into it. First of all, I handed out an amended summary sheet to you, and the summary sheet is essentially a spreadsheet-looking item like that. And that's the primary tool that you'll work from tonight, and that summary sheet references each amendment individually. You'll note on that summary sheet that the page numbers that were typed in were X'd out and there's a handwritten number. Those are the numbers we'll work from. As well, when you go through your packet, you'll notice that some pages have double page numbers on there. There's a handwritten page number and a stamped page number in the right-hand corner, lower right hand. We will work from the lower-right-hand-corner Page 3 June 6, 2001 number. COMMISSIONER MAC'KIE: Susan, I -- and maybe this is a more appropriate question for Mr. Oliff, but it's disappointing to me that, for example, EAC was meeting on issues as recently as this morning. I was able to work my schedule so that I could watch that on TV. But why is it that we are here getting handwritten information? How did that happen in the scheduling? And maybe that's less important than, can you keep that from happening again in the future? MR. OLLIFF: Susan, correct me if I'm wrong, but I think in the EAC's particular case, it was because of quorum issues. COMMISSIONER MAC'KIE: Is that why? MS. MURRAY: That's -- well, I don't think in the EAC it was a quorum issue. They wanted it to be brought back before them for some further clarification. There was a quorum issue for the CCPC meeting, and that bumped the meeting back an additional two weeks, which then stacked all the remaining meetings back. COMMISSIONER MAC'KIE: And when that happens, what's the reason why our hearing of it can't be postponed another two weeks so that we get a more organized presentation? MR. OLLIFF: It could be it just -- it would require readvertising on staff's part. COMMISSIONER MAC'KIE: Just while we're on procedural matters, for me it would be a lot better because I give a great deal of weight, for example, to EAC or to, you know, different ones, and it would be good to have that to be thinking about instead of to have seen it this morning, here's their opinions, now come here and make a decision. It would be better. CHAIRMAN CARTER: Well, I think we try to work with that the best that we can. But, remember, we are also coming up on budgets, and we are crowding up to the last week in June. And after the last week in June, we are in recess. So if there's a way Page 4 June 6, 2001 to start the cycle sooner and adjustments, perhaps. But currently because of requests from the various committees who want to revisit or sometimes they fail to have quorums, it does move pretty quickly to this point. But, remember, we have a second meeting, and there's an in-between two weeks in which to deal with a lot of these issues. That may have not been totally understood or clarified. But, Susan, let's go forward and see how well we can do tonight. MS. MURRAY: With that, if you want to start with the RT zoning district, I would ask that you turn to page 19. And I know Mr. Weigel was going to give a brief introduction before I got into that. COMMISSIONER MAC'KIE: Where is it on this? I don't have 19 pages in there. MS. MURRAY: On that -- CHAIRMAN CARTER: You got to get in your book. COMMISSIONER MAC'KIE: I understand that's where it is in my book. I want to know where it is on my spreadsheet. MS. MURRAY: On your spreadsheet it's on page 4 in the middle, right there in the middle there. It says "floor area ratio." MR. OLLIFF: 2.2.8.4.5. It's actually the second page of your handout, second item on the list. COMMISSIONER MAC'KIE: So floor area ratio is this one. MS. MURRAY: That is correct. COMMISSIONER MAC'KIE: And it was approved at DSAC and did not go to EAC, and there's a longhand written thing here on Planning Commission. Okay. MR. WEIGEL: Good evening, Mr. Chairman and Commissioners. David Weigel, county attorney. And thank you, Susan. I'll try to be brief. But you have before you tonight not only floor area ratio, but other related items that appear on page 4 of the index, including definitions: That of destination resort Page 5 June 6, 2001 hotel; density; and another term for consideration, residential hotel; and related FAR, floor area ratio. So we have contiguity with all of these items that we just mentioned right here, these four. You'll note on page 5 -- excuse me, page 19 in the agenda that it discusses reasons for a change that came to this district a year ago. And, in fact, a floor area ratio was adopted. The board knows this quite well; the public may not be as well versed, although many of them are. A distinction came last year, a revision to the potential for development in the RT district where hotels could have a floor area ratio, and that ratio came to replace a specific unit number within the district. Before the board tonight and before the CCPC in its -- and the EAC in their deliberations, is the fact that this board wanted the opportunity to review the standard of floor area ratio in the RT district. They wanted to have the opportunity to review and consider returning this district to the regulation that existed prior to June of 2000, that is where there could be up to a maximum of 26 hotel units on an acre of land. And, in fact, interestingly, as Susan or John will tell you, the CCPC has actually come up with a recommendation for a mixture of both those concepts. Another question that you have before you tonight in regard to floor area ratio and the consideration of either confirming the standard that's in place, amending the standard that's in place, or repealing it altogether, is the fact that there will be discussion to you by members of the interested public or entrepreneur representatives talking about creating a nonconformity within the district. Now, because of the fact that a standard was adopted, a revision to a standard was adopted, last year, to retreat or change from that standard may, in fact, provide for a nonconformity on any construction that has occurred under the Page 6 June 6, 2001 standard adopted last year. And, again, you'll learn, in a little further discussion, that the Planning Commission heard discussion on that, and their recommendation had -- to this board was, in fact, to address nonconformity by stating that there is no nonconformity for certain construction under the June 2000 standard, construction that occurred since June but prior to July of 2001 this year. Susan, am I leaving anything else out that you'd like to hear at this point in time? MS. MURRAY: No. I don't think so. MR. WEIGEL: Okay. I don't want to bend too far. I can talk a little bit about the destination resort hotel or, in fact, the extended-stay hotel. But if this board wishes, I could either address it briefly now or come back to that later. MS. MURRAY: I'll address that. I think it's important to note, and I like the statement you used at the Planning Commission, that on their plate before them they have essentially three -- three choices, and those -- a summary of those choices was just given by Mr. Weigel, and I will go into detail about that and then be happy to answer any of your questions. It's a complicated issue. I have some calculations to show us an example if you wish, but I'll let you ask me the questions as you wish. MR. WEIGEL: One last thing I'll mention to the board, and that is, you do not have for your consideration tonight in this Land Development Code cycle the potential review and revision of the ten-story, hundred-foot regulation that exists in the RT district and, in fact, exists in many districts, many zoning districts, in the county. You may come from the hearing tonight or the final hearing on June 20th and give some direction to staff to look into that for the upcoming Land Development Code cycles pertaining to this RT district or to all of the districts or to come Page 7 June 6, 2001 back with a report to the board generally so that they can consider height limitations in all of the districts. The same goes for setbacks generally. This is not, in fact, a discussion tonight specifically about the Beachcomber Resort Hotel project. Yet, in fact, the recent daytime advertised board hearing about the Beachcomber project -- I should say public meeting, not advertised meeting -- did, in fact, contain significant discussion of some of the elements that are before the board tonight. You will have tonight some of the proponents and opponents of that project here speaking to these specific regulations. As they potentially may be amended for the future, they do not specifically -- the changes you make tonight do not specifically apply to the decision that you made in the past, although the decisions that you may make tonight and ultimately finalize on June 20th may, in fact, affect construction of any kind that's not permitted in the future. And the action you took at your most recent daytime board meeting had to do with the recision of a site development plan approval and the revocation of a building permit. So this project -- that land at issue may, in fact, have a new site development plan and a -- a new building permit review, application review, before the board at some point in the future. And those kinds of reviews will be subject to the standard that's in place at that time. Thank you. CHAIRMAN CARTER: Mr. Weigel, before you leave, just a quick question. I believe that we have pretty much agreed as a board that we are going to have an -- in between the June and December cycle somewhere, September, October, that we're looking to for-- and I'm going to call it a short cycle because we've got a number of moving items that we cannot afford to wait six months. So for the audience you need to know that we Page 8 June 6, 2001 are changing our process so that we will have more opportunity on shorter cycles to deal with some of these issues so they don't hang out there so long and afford windows of opportunity, as I call them, for those who might try to do something which, in the overall plan, we don't want to have happen. MR. WEIGEL: That's true. CHAIRMAN CARTER: Am I correct on that? MR. WEIGEL: You're absolutely correct, and the development services staff and the county attorney staff are already working on the next cycle, let alone this one. Thank you. MS. MURRAY: I'm working off of page 20 again, Section 2.2.8.4.5, which should read 2.2.8.4.8. I apologize for that typo. Let me explain a little bit about what this attempts to do. This attempts, basically, to correct the FARs in the RT zoning district which were adopted last year as a result -- and the correction comes as a result of further research done by staff for both conventional types of hotels and destination resort-type of hotels. The attempt here is to bring these types of facilities, using the FAR intensity measurement technique, to more comparative to the 26-unit-per-acre regulation. COMMISSIONER MAC'KIE: Okay. Pause me there for a second, because I -- I'm going to have to go slow on this because I want to really get it. From a professional planner's perspective, what you're going to be giving us is an FAR -- a recommendation for an FAR that would be as close to 26 units an acre as you can get. MS. MURRAY: That's correct. COMMISSIONER MAC'KIE: All right. CHAIRMAN CARTER: That's on hotels. But on condominiums it would be 15, if I understand it. MS. MURRAY: Nothing changes on condominiums. Condominiums are measured with a density calculation and not Page 9 June 6, 2001 an intensity calculation. COMMISSIONER HENNING: Could you tell us what the Planning Commission's recommendations were? MS. MURRAY: Sure. It's actually -- if you'll let me kind of go through all three proposals, at the end I'll tell you what the Planning Commission recommended because theirs is actually related to the last one, if you don't mind. So this is the first proposal, and you'll note that it reduces the FAR from .6 to .5 in the case of regular hotels and motels, and from .8 to .7 for destination resort hotels as defined in Article 6.3. This proposal should be coupled with the proposed definitional change to the destination resort hotel, which is on page 85 of your packet, but let me explain all that does is more clearly defines the conditions as a prerequisite to qualifications for a destination resort hotel. And specifically and of particular importance is the requirement that not less than 25 percent of the gross floor area must be devoted to common usage and support services. That's different from what's in the code now. There is no minimum requirement for common usage. Okay. That's the first proposal. The second proposal is on page 20A. Essentially, this is a reversion back to the previous method of regulating density in unit size. You'll note that the language 'a maximum of 26 units per acre for hotels and motels" is reinserted under a maximum density provision, and you'll also note that there's a limitation, a 300-square-foot minimum with a 500-square-foot maximum for hotels and motels -- that's for room size -- except that 20 percent of the total units may be utilized for suites. That's the language that was in the LDC prior to the June of 2000 cycle. It's the original language. In this case you would have, obviously, a known number of units because the maximum would be 26, but it does limit Page 10 June 6, 2001 flexibility in terms of building size and unit size. And I think what staff is finding through its research is that the maximum and minimum room size -- or the maximum room sizes don't address the market needs for the residential-type of hotels that you commonly see around the beach. And I'll get to that, what a residential type of hotel is, in just a second. Actually, I'll get to it now. It's one in -- a residential hotel is one in -- which is intended for family occupancy normally exceeding a week stay and offers full living accommodations, including kitchens and two or more bedrooms. So the negative part of this is we're not addressing a market condition that exists out there. The third proposal, which is on page 20B, is essentially we're back to utilizing the FAR. Your packet should read under Section 2.2.8.4.8, the maximum floor area ratio for hotels, motels, and time-share facilities shall not exceed a factor of .50 - - that's the correction I just described earlier -- except for destination resort hotels and residential hotels as defined where a floor area ratio of .70 for destination resort hotels -- and then this is the new thing we're adding here -- and a 1.15 FAR for your residential hotels. Coupled with that we have a definition further down on that page of a residential hotel. And if you read it, it says it's intended for family occupancy. There's a minimum stay requirement. There's also a maximum stay requirement. And the definition goes into detail on the types of facilities that a destination -- a residential hotel is supposed to have, that being such things as on-site reservation services, daily housekeeping services, a lobby area, common service areas, an occupational license for a hotel. I won't read through all of them. CHAIRMAN CARTER: I think another important part there is it does have conference or meeting rooms, which again, was Page 11 June 6, 2001 something that was an issue on another building. MS. MURRAY: This says conference room/meeting rooms is required in this case, yes. So that's the third proposal. Now let me get to your question, Commissioner Henning, and that was, what was the recommendation by the CCPC? The recommendation by the CCPC was to approve this revision that I just read into the record for you, the third one, with a revision to add the residential hotel at an FAR of 1.65 and a vesting provision. And that vesting provision reads as follows: That any project which received approval at a public hearing prior to July 1st of 2000 shall not be deemed nonconforming as a result of an inconsistency with an FAR limitation. And then it goes on further to say that for existing hotels from FAR -- I'm sorry. I'm repeating here. And to require that in no event may any hotel exceed 26 units per acre. So what you've got kind of is a hybrid here that the CCPC recommended. You've got your FAR calculation, but then you've also got your limitation on the 26 units per acre. COMMISSIONER HENNING: In what case -- can you give us examples where we don't want to deem them inconsistent and yet limiting them to 26 units per acre? MS. MURRAY: If I'm understanding your question correctly, that limitation was actually brought forward by a member of the public. It's not a staff recommendation. As I understand, there was -- specifically the La Playa Beach Hotel, I believe, would be deemed nonconforming if the language as proposed by staff was adopted. And so any changes to that hotel would then require the owner of that hotel to go through various processes in order to even make minor changes because it would be a nonconforming structure. COMMISSIONER HENNING: And if they would want to Page 12 June 6, 2001 remodel in the -- in future dates, then it being nonconforming, they couldn't remodel. MS. MURRAY: Again, depending on what they're doing. But, yeah there's a very strong possibility that they'd have to go through many extra steps in order to remodel, to remedy the nonconforming use status of that. COMMISSIONER FIALA: I also had a question. It said here on page 20A, 16 units per acre for multifamily uses when located within an activity center or if the RT was in existence. But I wondered, what if it isn't located within an activity center? MS. MURRAY: Then the density rating system applies in that case, and that's not proposed to change. I just want to make that real clear. That's existing language that's in the code today. We're just talking about floor area ratio for hotels. Multifamily uses, condominiums, are all subject to the current maximum of 16 units per acre when in an activity center and then subject to density rating when outside. CHAIRMAN CARTER: Other questions by members of the board? Then I think we're ready to go to public speakers. Have we covered all the things under this before we do that, Susan? I don't want to -- MS. MURRAY: Yeah. I have sample calculations if you want. Maybe when the public speakers come up, if you have questions about how an FAR change would impact, for example, a room size or the square footage of a building, I can throw these up on the visualizer and show you. CHAIRMAN CARTER: If I'm understanding again, Susan, that it doesn't change what I'm going to call the physical structure, the four walls. It does determine what you can put inside the four walls, and that is what the FAR ratio is about for the internal development; am I correct? Page t3 June 6, 2001 MS. MURRAY: The FAR is a regulation that determines the volume of the structure. And you have to remember that you have -- setback requirements and parking requirements and all of those other requirements shape the volume and shape of the structure. The height limit, for example, is one -- CHAIRMAN CARTER: But once you have met that criteria, then the floor area ratio says, this is what you can put inside it. MS. MURRAY: Essentially. And then, of course, depending on the hotel type. As I mentioned, we have the different types. CHAIRMAN CARTER: Okay. Let's go to speakers. MR. OLLIFF: Okay. Mr. Chairman, I'm going to go ahead and call two at a time. And if the first speaker could go ahead and come to the podium and the second speaker could just stand here and be in the on-deck circle, if you will. Joe Connolly is the first speaker followed by Cai Immel, the second speaker. CHAIRMAN CARTER: And I remind speakers as you come up, we do have the same criteria for all public input meetings. You have five minutes. MR. CONNOLLY: For the record, Joe Connolly. I live at 106:3:3 Gulfshore Drive, and I am speaking on behalf of the Vanderbilt Beach and Bay Association and the Save the Vanderbilt Beach Association. And good evening again. CHAIRMAN CARTER: Good evening. MR. CONNOLLY: We've been through two sessions of the Planning Commission meetings, and I'm not sure they understand any more this cycle than they did at the last cycle. It didn't appear to me that they did at the end of the discussions. They were presented a menu of hotel hotel, residential hotel, destination hotel, boutique hotel was mentioned, and it got very confusing. And there were different ways of -- an FAR of this for this one and an FAR of this for this one, and they even said that :3 to 500 square feet was not adequate in the Naples market. But Page14 June 6, 2001 we checked with the Ritz-Carlton, and their average room size is 400 square feet, and I believe that that hotel stands on its own. So if we are allowing 500 square feet more than their average room size, you would consider it to be more than adequate. So what we recommend is that we throw out all this hotel. We don't need a residential hotel. We have on Gulfshore Drive right now hotels, motels, time-shares, and condos. You can rent from one day to one week to two weeks to one month to three months, anything from one bedroom to two bedrooms to three bedrooms. We have restaurants and cocktail bars all around so that we're supplying the market right now, and we don't need a new definition to just complicate things. It's already there for the people, and it's there available on the time frame basis that they need it. So we say let's stick with what we have. Go back to the pre-June of 2000 code, and keep it at that until the Vanderbilt corridor study is complete, which now I believe has Gulfshore Drive incorporated in it. CHAIRMAN CARTER: You're right. MR. CONNOLLY: I don't know the time frame for that but -- CHAIRMAN CARTER: The next 12 months. MR. CONNOLLY: Huh? CHAIRMAN CARTER: Within the next 12 months. MR. CONNOLLY: Okay. So can't we live with that until we get the information that's going to provide us on the traffic at least, because no one knows what the La Playa beach club is going to do traffic-wise, Signature Properties' beach club, and you've got The Dunes, and you've got the Cocohatchee thing. And all of this has to be factored in because, you know, it's a two-lane street in a coastal high hazard area, and you're playing with fire. So I say that we ought to wait, and use the best intelligence you can to make the decision at that time. And until you get that information, stay where you were. Page 15 June 6, 2001 I believe that just about covers what I wanted to say, and so I will not use my allotted time. I hope I made my message. And thank you very much again. CHAIRMAN CARTER: Thank you, Joe. Next speaker, please. MR. OLLIFF: Next speaker is Cai Immel followed by Diane -- I think it's Holds (sic). MR. IMMEL: Thank you, Mr. Chairman and Commissioners. I'm Cai Immel. I live at 9400 Gulfshore Drive in Vanderbilt Beach. I'm full -- we've been there ten years, and we are full-time residents. I think it's symbolic that we meet today, which is D- Day anniversary, and decision day for the commissioners on what on the surface seems to be a simple issue. The issue as determined by the resolution passed by the Planning Commission last week could have significant influence on a new growth pattern the county may be taking if you, as the elected representatives of the people, sanction that resolution as presented. Staff had made recommendations, one which restored the previous hotel intensity of 26 units per acre, for condominium density of 16 units per acre, codes which had been in effect for many years. That ruling was desired by the residents of Vanderbilt Beach and, quite likely, by residents of any other areas of the county. But a flaw in the resolution provided for hotel room sizes to be in excess of 2,000 square feet. This resulted from an expanded land use ratio increase from 1.15 to 1.65. The result of allowing these hotel suites to be at that size opens the door for a conversion to condominiums at 26 units per acre. Consider that the Collier County area for the last decade was the second fastest growing community in the country, and that growth rate was achieved with density codes of 26 hotel units per acre and 16 condominium units per acre. Can you imagine Page 16 June 6, 2001 what would have happened here if the Land Development Code established last June had been in place the previous ten years? That thought is almost frightening. Since 1990 at least nine condominium buildings were erected on Gulfshore Drive alone, not counting The Manatee Resort Hotel and The Regatta, both which have densities well beyond the 16 condo units per acre. Had Vanderbilt's nine condominium buildings been built under the new code, the number of potential residents might have been doubled. On the table is the impact of a 1.65 land use ratio. With a ratio at 1.65, newly constructed luxury hotels could have a suite size larger than typical condominiums on Vanderbilt Beach. Most condos are 2,000 square feet or less, and very few have three bedrooms. We believe your objective should be to control hotel construction at a size to preclude the practicality of converting it to a condominium which would violate our condo land density code. If hotels are allowed essentially to have most or all of the suites as large as 2,000 square feet or larger, you can be assured they will some day be converted to condominiums at a density as high as 26 condos per acre. This is not tolerable. It was suggested that code enforcement will not allow that to happen, but what provision will alert the Bureau of Condominiums in Tallahassee to check the density code in Collier County when the declaration of condominium is filed? If there is no such guarantee provision, then you can be certain that there will be many new condos of 26 units per acre being built in the county, all from future conversions of luxury hotels. On Gulfshore Drive alone, there are currently seven or eight potential 1-acre sites that at the right price could be purchased, and these small condos or private residences will be torn down and converted to hotels with some ending as high-density Page 17 June 6, 2001 condos. That surely is not what the residents of Collier County wish to see. During a unanimous vote two weeks ago rescinding a building permit for a high-density hotel, suggests you concur that controlled growth for our county is in your agenda. Please approve a revised Land Development Code which will protect this wonderful county from high-density projects. Thank you. CHAIRMAN CARTER: Thank you, sir. If I'm hearing you correctly, that if there was a provision where that if you built a residential hotel, that you could not convert it to a condominium - - not -- then you would be comfortable with the fact that it exists as it does as long as it functions on that basis. But you would never have any conversion rights, and if you did, you'd have to go back to whatever the condominium allotment was allotted in a given area. Thank you, sir. MR. OLLIFF: Next speaker is Diane, I believe it's, Halas followed by Frank Halas. MS. HALAS: Hi. My name is Diane Halas. I live at 405 Flamingo. We heard a lot of discussions over the last few weeks about property rights, profitability requirements of developers, and state of the art for hotels. Particularly at the Planning Commission meeting, some of the speakers were essentially told that they didn't understand the hotel industry and that was why we were not in favor of room size limitations and the more liberal floor area ratios. So I did some research. I talked to some high-profile industry consultants in the hotel industry. I looked on the Internet, like you probably all do, and I found some interesting things that I wanted to share. One was that destination resort hotels and other tourist accommodations are essentially being built to blend into the landscape. Generally, in beach areas, they're being designed for no more than four stories and to leave huge vistas Page 18 June 6, 2001 of ocean available between buildings. They often only occupy 58 percent of the space available and sometimes only the same portion is given to rooms. In pristine areas boulevards are being put in between the oceans and the hotels so that the view and access to the beaches aren't blocked. Although it's a little late for boulevards in our area, it's not too late to protect the views or limit the infringement of buildings into the greenspace, and there's still time to prevent the remaining areas with beach access from turning into concrete canyons. Several other resort cities have severely limited building on their beaches and other fragile land areas. Delray, for example, doesn't allow any building on the beach. Newport Beach has adopted density standards that make ours look like invitation to traffic jams. Our Iow-density zoning requirements essentially match up with their high-density standards. Their FARs for tourist accommodations are .75, by the way. I spoke with Dennis Simmons of Hanscomb, which is an international hotel consultant firm with a new office in Orlando, and to some of his colleagues, and they recently have consulted in the development of several upscale projects. What they told me was that the new Ritz-Carlton in Orlando has 1500 rooms, and all but ten of these are standard rooms of 573 square feet. The larger rooms are only in their ten luxury suites, which they plan to operate only at 50 percent capacity. The new Marriott in Orlando has a thousand rooms, and the average room size is 496 square feet. There's a destination resort being completed in Puerto Rico that uses only -- 58 percent of its floor space is guest rooms. Its average room is 440 square feet, and its average suite size is 868 square feet. In Negril Beach in Jamaica, the resorts only can be four stories high and have to have greenspace in between them. Page 19 June 6, 2001 In the process of fact gathering, I was fortunate to locate some expert opinions also: John Miller of design and planning for Peninsula Hotels; Hank Brennan for Brennan, Beer, Gorman & Mony; and Brian McDonough of Hanscomb. And all of them agreed that hotel rooms are getting more efficient, and the trend toward the larger room is essentially gone. Even the Hilton has standard-sized all their rooms. The experts say that a large room is not economically viable even in destination resorts, and the new rule of thumb for the industry generally is that guest rooms must directly use 65 to 75 percent of the total area of the hotel. And in resorts in particular, external landscaped areas are to be used for the amenities that used to occur inside the hotel, which makes the outside perimeter very important in those hotels. In a recent publication, Brian McDonough offered some standards for three-star and four-star hotels, and essentially what he said was that you need to factor into the floor space the net floor space of the room itself and some predictable amount for circulation, public function, back-of-the-house support, and administration. And his bottom line and what he's recommended to his clients, which are some of the shooters in the industry, is that 403 to 545 square feet of square space be used to accommodate each planned room. Now, that's gross. That's dividing that into the whole space of the hotel, and that doesn't include parking, of course. What this says to me, that the standard that a lot of people are requesting of up to 800 square feet of space for just the room is more than adequate, even for the pricier establishments; that a four-story facility is state of the art for tourist destinations; that concrete canyons are out and greenspace and ocean views are in with well-heeled tourists; and the economic viability of new ventures depends on efficient use of space, not in maximizing Page 20 June 6, 2001 floor space. I, therefore, would join with others that ask that the LDC changes focus proactively on what the community wants to see built instead of prescriptively; that we're asking for strict height limits; guidelines to ensure adequate space between buildings; a limit on developments higher than four stories when they're on lots of an acre or less; affirm outer side limits in tourist accommodations of all types; designated beach access for the public at the property line of new structures; and a limitation on the east side of Gulfshore on the Vanderbilt Lagoon waterways to residential construction. Thank you very much. CHAIRMAN CARTER: Thank you. And the next speaker, please. MR. OLLIFF: Next speaker is Frank Halas followed by Sally Masters. MR. HALAS: Good evening. I'm Frank Halas. I live at 405 Flamingo Avenue. I think my wife summed up everything pretty thorough on the deal. Here's my feelings. I'm one of the fairly new residents here in the Vanderbilt Beach area, and one of the things that brought me to this area was the fact of the pristine beauty of the area. And since we moved in, we've seen some vast changes in that area. And of concern in regards to traffic and things that are going to be forthcoming -- such as when The Dunes project comes on board, we're going to have additional 8, 900 more residents in that area. And now we're talking about building hotels on Gulf Shore Boulevard (sic). The first thing that comes to my mind when I hear about hotels being built on Gulf Shore Boulevard, ten stories, a hundred feet, whatever, is some of my earlier days, I spent some time traveling over in Fort Lauderdale. And as you drive along AIA and you look up, all you see is a canyon of buildings, and you feel like you're a little ant. And I hate like Page 21 June 6, 2001 heck to see this happen to such a pristine area as the Vanderbilt area or, in fact, anything along our shoreline here in the Naples area. The builder is saying that he needs to build this building in this nonconforming piece of land to fit this building. Well, it seems that at one time this was a conforming piece of land whereby there was a one-resident home, and there was a mom- and-pop, Iow-profile, one-story condominium. It seems to me that now that it's a nonconforming piece, that we want to build some kind of a monstrosity that's there. And, as you can see, there's a lot of people that are upset about it; not only building a hotel, but there's been talk about putting in some kind of a Sea-Doo type of ramp to offend the neighbors even more so with noise and everything else and pollution. I look at land buying, where a builder comes in and buys land, is like buying stock. Sometimes in your portfolio the piece of stock that you buy is very beneficial; and other times it turns out to be a dog, so sometimes you have to get rid of it. I believe that in the future that -- to protect Gulf Shore Boulevard that a committee of residents and county people should get together whereby we draw height restrictions so that in any future developments -- no matter what happens with the Beachcomber at the present time, but any future developments are limited to 75 feet, and that land has got to be an acre and a half so that you can have additional greenspace so that as people travel down Gulfshore or travel around the community, they can see that we have taken pride in trying to establish codes and establish an area that everybody would like to come and visit, and we'd have less impact. Presently, I want to thank the commissioners and everyone in Collier County for the wonderful job they did in putting together the park over there. It's being used every day, and that's a real Page 22 June 6, 2001 benefit, and it's an added piece of greenspace that really adds to that community. Thank you. CHAIRMAN CARTER: Thank you. And thank Signature Properties. They're the ones who -- they're the contractors who built all that and saved us a lot of money. MR. OLLIFF: Next speaker is Sally Masters followed by Chuck Brooks (sic). MS. MASTERS: I'm Sally Masters, a resident at Vanderbilt Beach and on the board of the beach and bay association, and I'm trying to follow this confusing issue. It seems to me, number one, Dr. Carter said we somehow can guarantee that these hotel -- these condo-size hotels rooms cannot be changed into condos, that there's a possibility of putting something like that in, so I don't want to talk about that anymore. Supposedly these big hotels rooms will not become condos. Now, what I do not understand yet is what kind of hotel would be the 1.65. Now, we're talking about -- I have in my mind this Beachcomber property. Would it be under the 1.65, or would it be under the 1.157 Am I allowed to ask questions? I don't know. CHAIRMAN CARTER: Yes, ma'am. MS. MASTERS: Could somebody tell me that? CHAIRMAN CARTER: Miss Murray. We will not take away from your time. MS. MURRAY: I believe -- I'm not that familiar with Beachcomber, but I believe it would fall under -- gosh, I don't know. CHAIRMAN CARTER: It would have been a residential hotel. MS. MASTERS: This is a lot of-- because I know you have a short-term problem here because we got to get rid of the thing that gave us the 68 rooms. I know we have to get rid of that, which you did thankfully. MS. MURRAY: It's a destination resort hotel, which would be Page 23 June 6, 2001 .8 currently, proposed to be reduced to .7. MS. MASTERS: Well, that doesn't help us. That gives us a real -- CHAIRMAN CARTER: Well, in this calculation, if I understand it correctly, if you look at the size of the property, that would translate, I believe, to 24 units on a residential tourist hotel. MS. MASTERS: For how many square feet then? CHAIRMAN CARTER: Per room? MS. MURRAY: It really -- that's the factor. It really depends on if you have a room size limitation or not. If you don't have a room size limitation, then it could vary either above or below 26, slightly either way. CHAIRMAN CARTER: So-- MS. MURRAY: And I don't think I made that clear when I presented it to you because -- CHAIRMAN CARTER: Doesn't the floor area ratio, then, determine what you cannot exceed, or does it not say that? MS. MURRAY: No. A floor area ratio calculation would not determine that it could not exceed 26. If you didn't want it to exceed 26 units per acre, you need to put that caveat in there. However, you can control it somewhat by limiting the maximum size of the rooms. It's proposed. I mean, there is some language in here that's proposed to go back to the old language prior to June of 2000 which has a maximum of 500. You could use that if you wanted, or you could vary from that. It's up to you. CHAIRMAN CARTER: So if I understand this correctly -- I don't want to take all your time, ma'am. MS. MASTERS: I don't get it. I hope you clarify -- CHAIRMAN CARTER: Well, I'm not sure I do. What I -- what I'm -- I think what I'm hearing is that you could add -- no matter -- Page 24 June 6, 2001 if you put in the new floor area ratio, that almost tells me that it has to be a larger room. However, if I put 26 units on there, that says you have two criteria: .7 and/or it cannot exceed 26 units per acre. MS. MURRAY: That's correct, if you put both in there. CHAIRMAN CARTER: So there's language -- wordsmithing here that it's possible. I don't know. I'm one commissioner, and I don't know the legalities or anything yet, but I'm making these notes as I go. COMMISSIONER FIALA: And that means that each room, then, can only be 500 square feet at the -- at the maximum? MS. MURRAY: In the absence of a units-per-acre regulation, the number of units is a function of the design of the rooms, so it could be more or less than 26. What we've attempted to do is look throughout countywide to see what's developed out there and then compare it -- the existing hotels and their FAR and their number of units, and this is where we're getting your .5 and .7 change. COMMISSIONER HENNING: I like Commissioner Carter's recommendation, so let's put that language in there. CHAIRMAN CARTER: I made a note of it, and then I'll come back and find out what folks think. MS. MASTERS: Okay. Well, the point I'm making here is we had a problem with the present numbers, whatever they were, which allowed the Beachcomber to be a perverse use, which we thankfully squelched at the last commissioners -- Board of County Commissioners meeting. What we want to watch out for short term here is that we don't get the same thing again, because a lot of times we're not clear on what these numbers are, these .6, the 1.5, the 1.15. So there's a lot of numbers running around, so we have to be sure that -- CHAIRMAN CARTER: And I don't want to get confused Page 25 June 6, 2001 either, but if I go to 2.2.8.4.5, it says maximum density permitted, a maximum of 26 units per acre for hotels and motels and 16 units per acre for multifamily uses when located within an activity center or if the RT zoning was in existence at the time of the adoption of this code. Does that not give me the same hammer? MS. MURRAY: That's a reversion back to the old language that eliminates the -- CHAIRMAN CARTER: If it's changed back to that -- if it's changed back to that, then we're getting where you want to be. MS. MASTERS: Okay. That's all I'm asking, is that you find some way to stay on top of this because we're trying hard, too, to get -- to do the short-term thing, which is pertaining to this Beachcomber project. So, please, Staff, keep in mind that this Beachcomber project is the imminent problem here, the short- term problem. Now, all these other speakers have been very eloquent about what we need in the long term, which is not, evidently, possible for this next few months. CHAIRMAN CARTER: Yeah. In this cycle you're right, ma'am. MS. MASTERS: So that's -- those are my points. Thank you. CHAIRMAN CARTER: Thank you. Next speaker, please. MR. OLLIFF: Next speaker is Chuck Brooks followed by Bob Mulhere. MS. MURRAY: Mr. Chairman, if I might while they're walking up, I don't want to -- I don't want to sound like an advocate of the 500-square-foot maximum because I think what our research is finding is that's really not what's out in the Naples market. And so I just wanted to make that point, that we were asked to bring back the old language from the code, and that's why you have it in front of you for consideration. Page 26 June 6, 2001 CHAIRMAN CARTER: Okay. Thank you. MR. BROOKE: My name is Chuck Brooke. I've lived on Vanderbilt Beach for approximately three years. I'm also on the board of directors of my condo association, and I am the treasurer of the Save Vanderbilt Beach Association. I'm also, by virtue of being a resident of Vanderbilt Beach, an endangered species. Right now I think that you could safely say that Vanderbilt Beach is predominantly residential. If you allow the LDC to stand as it is now or worse, in my opinion, accept the Planning Commission recommendation, you will turn Vanderbilt Beach into a hotel zone. I attended the last meeting of the Planning Commission and was struck at how casually the LDC recommendation was put together. There was little consideration that I could see given to the impact of the change. The comment from one of the commissioners was that he didn't like the 500-square-foot limitation on hotels proposed by the county staff, and that he much preferred the FAR approach. That's fine. That's opinion; that's not logic. Then he added that just so that developers didn't get everything that they wanted, he would cap the units for hotels at 26, and that's what I think we're looking at right now. On traffic, the planning commissioners evidently heeded what, to me, was the incredible advice of one of the persons speaking for the developers. He stated that people staying at hotels would clog up roads less than residents because residents had to take their kids to school and to soccer practice. Let me tell you, there aren't many residents on Vanderbilt that take their kids to school or soccer practice anymore. Furthermore, do you really think that people staying at a residential hotel are going to pass up the great dining opportunities in Naples? No. They're going to head for Fifth Avenue every other evening. So that really didn't make sense to me as a profound analysis of what the Page 27 June 6, 2001 impact on traffic was going to be. I firmly believe that you as commissioners need to give some very serious thought to the long-term impact of leaving the LDC as it is or of accepting the proposed amendment. In either case it doesn't appear to me that you get much help from staff or from the planning commissioner (sic) as to what that impact is going to be. And although I'm far from a professional, just let me give it a try. In the LDC prior to June of 2000 it seems to me that the economic choice between building a 26-unit hotel on an acre of land with a maximum of 500 square feet per unit versus building a 16-unit condo was pretty much equal. By the way, 26 units with a cap of 500, that translates to 13,000 square feet which, divided by 43,560, which is an acre, that's an FAR of .3, .289 to be specific. So any time you see an FAR going higher than that, you're going to get more square feet in a hotel than you had before June of 2000. That, at least for me, is a simple way of looking at it. The hotel would be a long-term investment and would require knowing how to run it. The condo might be a riskier investment, but if you were a developer, you would get your money out much faster. With the existing LDC and with the proposed amendment, it seems to me that you fundamentally alter the economics of the choice between building a condo and, I want to use the example of, a residential hotel. And let me try to explain why. On an acre of land, you would not be able to build 24 units at 3,000 square feet per unit. And heeding what county staff said, you've got to define how much each unit is going to be. So, again, not to drag you through the arithmetic, that's 43,560 times 1.65 divided by 300 -- by 3,000 gives you 24 units. Somebody can check on my arithmetic; that would be fine. Now you have 24 units competing against 16 units. In a residential hotel you could sell each unit and structure the organization in such a way that Page 28 June 6, 2001 owners could use it almost as often as if they had a condo and rent it just as often through the residential hotel arrangement. Now, who in their right mind wouldn't want to develop and sell 24 units rather than just 167 More is better. But more is better only for developers and not for the residents. Whatever spaces are available or were made available will tend to go for 24-unit, ten-story hotels and not for 16-unit condos. And in no time at all you will have converted a predominantly residential area into a hotel zone. As for impact on traffic, I'll give you my simple example: 24 units versus 16 units tends to hold 50 percent more people, and that's 50 percent more people on the traffic. Okay. My time is up. CHAIRMAN CARTER: Yes, sir. MR. BROOKE: Just let me say, don't pass this last amendment. Go back to June of 2000. Think about it very carefully, get lots of input, and then make a very reasonable decision. Thank you. CHAIRMAN CARTER: Thank you, sir. MR. OLLIFF: Next speaker is Bob Mulhere followed by Armand Pirro. MR. MULHERE: Good evening. For the record, Bob Mulhere speaking on my own behalf. I'm a resident of Collier County living at 1946 Sheffield Avenue on Marco Island. I have a very brief comment, really. The one caveat I wanted to share with you is that we need to be a little bit careful when we add something like a new definition to the LDC because it transcends really what is predominantly the issue here, the issue being, as we've heard, the impact of hotels in an area -- a primarily residential area such as Vanderbilt Beach Estates. And -- but when you change or add a definition, there are other districts that will be impacted or can be impacted by that. Page 29 June 6, 2001 Hotels are also permitted in commercial districts, and they're also permitted in commercial components of PUDs. And the residential hotel definition has one restriction that strikes me as perhaps being appropriate in some locations but maybe not in all, and that restriction is the restriction on the length of stay to no more than eight weeks by any person or family within a particular unit in the residential hotel and no more than 12 weeks within any unit within the hotel. A couple of things I see. One, I think it's going to be awfully difficult to enforce, but I understand the rationale behind it. And the rationale within the RT district is that to not have that restriction might allow a structure that is ostensibly a hotel to function as a residential condominium at a higher density than would otherwise be permitted, and that's really what the issue is here. However, if you look at a different scenario, if you take, for example, a commercial portion of a PUD and if there is, in fact, a market for this type of product -- and I believe there is -- and you have someone who wishes to build this type of residential hotel within a commercial component of a PUD, then why would we care how long someone wishes to stay? So I think that that's one issue that maybe we need to look at a little bit closer. I would be happy to -- in fact, I would even go so far as to say you could have another restriction on there within a commercial PUD where the residential density of the PUD is reduced by an amount equivalent to the number of units in the hotel if they wish to have that restriction excluded, and then you would have even no additional impact in terms of transportation and other things. So I don't have the specifics. It just struck me as an issue that I thought we should consider. And I would be happy, if -- if you're so inclined, to talk further with the staff about that prior to the next meeting. Page 30 June 6, 2001 COMMISSIONER MAC'KIE: question? CHAIRMAN CARTER: Sure. COMMISSIONER MAC'KIE: May I, Mr. Chairman, ask a Bob brings up an issue that has been on my mind, and that is maybe what we need is something called a RTV, which is residential tourist Vanderbilt, because I am worried about the far -- the fallout, the unintended consequences of this. There are issues here that will trans -- that clearly what's appropriate for Vanderbilt Beach is not countywide appropriate. It's not necessary to put those same kind of limitations all over the whole county, and I'm just wondering if RTV isn't the way to go. I don't know if staff has considered some of that or if it's even possible. I know this is the only RT district we have. This is the only land that's currently zoned RT; true? MR. DUNNUCK: No, that's not correct. There are a few pockets throughout the county, some in Golden Gate and some in East Naples as well. For the record, John Dunnuck, interim community development/environmental services administrator. I think you bring up a very good point. And actually you're stealing a little bit of my thunder when I get into the hearing examiner presentation because I think this is something that -- that I've heard from the board that we really need to start looking at these policy issues in a bigger picture as opposed to looking at them in a vacuum. And I think Mr. Mulhere brings up some very valid points, and I think we'd be willing to look at that. CHAIRMAN CARTER: Can we do that in this cycle in terms of dealing with that in the language, or are we beyond this cycle? MR. DUNNUCK: I'd have to defer to the attorney's office a little bit on that issue because I think a lot of it's dependent upon the advertising and how broadly we've handled that advertising. MS. STUDENT: For the record, Marjorie Student, assistant Page 31 June 6, 2001 county attorney. We have two issues, maybe even three, with that. The first would be the advertising and that the creation of such a zoning district was not advertised. The second would be the legal requirement that these matters go through the Planning Commission. And such a district had not been reviewed by the Planning Commission, which acts as our local planning agency. COMMISSIONER MAC'KIE: But, Marjorie, only technically, I mean, because God knows they talked about every issue, and they talked about it with regard to Vanderbilt Beach. I'm just saying we add a letter, one letter. They talked about it to death. I just -- anyway. COMMISSIONER HENNING: Can we talk about the advertising? Because we have another hearing on the LDC, and the Planning Commission is going to meet prior to there -- that. MS. STUDENT: Okay. But let me explain a couple things. The advertisements, I believe, even for the other meeting because we also do a 15-day ad, it was -- they've been accomplished. The 15-day ad -- we do two; a five-day -- COMMISSIONER MAC'KIE: We could do another one. MS. STUDENT: -- and a 15-day ad. The planning Commission has to have -- when you create another zoning district which cre - - you know, arguably you may be creating uses and so forth for that district, and we have a local requirement that we have two night Planning Commission meetings. And you'd be breaking out -- I don't know if there's a comp plan consistency issue here too, and I don't see anybody from comprehensive planning staff. And I'm not trying to be a naysayer, but I need to protect you as my client. What I think maybe you offered and what some of the public has alluded to -- and this is your decision -- for the short term, to go back to what it was. And I think it would be entirely appropriate to conduct a study and maybe bring it back in our Page 32 June 6, 2001 next cycle to deal with quite a number of issues, quite frankly: Height, density, and a number of these issues. And we have protection when we do a study, because if there should -- if a lawsuit should ensue, we have the protection of that recent study and a recommendation by our planning staff. And I see Mr. Weigel at the podium, so he may wish to chime in as well. MR. WEIGEL: I'm just chiming because you've already hit on it, and I think that, you know, from the discussion comes the genesis of what can be very good. I really think that rather than put any potential risk of an RTV in this cycle, which isn't advertised, you could explain to us that if we -- if the board should adopt something that is RT-wide at this point in time, we can break it out in the September cycle just a few months away. And, you know, we don't know of any projects that are out in Golden Gate, long-term resort-hotel-type of projects and things like that. So I think it's clearly addressable in a very short term, but I would suggest that we not try to break that out now and give someone the opportunity to put this at risk. COMMISSIONER MAC'KIE: David or Marjorie -- may I ask another question, Mr. Chairman? Are we -- is the county at risk of some kind of a lawsuit if we don't provide for this concept of resort hotels? I mean, if we just say we're just going to have hotels in this county, you know, we're not going to provide for -- is resort hotels -- I get so confused. It's the one with two bedrooms and a kitchen that looks like a condo. I think that the risk of having that -- that as a land use in Collier County, considering the conversion to condo, is so significant, I wish we could not offer that. MR. WEIGEL: The reason -- you know, the reason we have a definition for hotels rather than just saying hotels and motels is because if you don't provide some definition, then you can get Page 33 June 6, 2001 the whole assortment of hotels, whether it's long-term stay or short-term stay or some crazy versions in between. So we have had a definition of what hotel is at this point. There is now on the plate for the board in this cycle this extended-stay, high-end boutique hotel, as it's been called. And you don't have to put that in there. You don't have to include that in the allowable definitions of hotels that are allowed. It isn't allowed unless you put it there. But if you were to just go and not have any kind of definition of hotel and refer to them generically -- please remember, as I mentioned back at the board meeting a couple weeks ago, in this RT district, permitted as a matter of right, are hotels and motels. And so you do need to keep some kind of definition of hotels. And the question is, do you want to add to that definition of an extended-stay hotel, which potentially has the same limitation as other hotels, and that is 26 units as one part of the factor and conceivably a symbiotic FAR ratio thrown in also. And when we talk about these hotels and the envelopes of buildings that can be on a particular parcel -- remember the ten stories, hundred feet high -- the fact is is you may have on one side a limitation of 26 units max, but at the same time if they go to exorbitant room size because we've given the FAR that allows them to have exorbitant rooms, you're going to have less units in the envelope that you can build in. CHAIRMAN CARTER: So that becomes a marketing decision. What I want to do is protect Vanderbilt for, like, a 60- to 90-day period until we get some of these other issues resolved so that the worst case scenario is back to where we were before the June change of last year. I think that is as clear of a goal as I can articulate from the community. COMMISSIONER MAC'KIE: But, Commissioner, if we go back there, aren't we still at risk of a ten-story building? We are. Page 34 June 6, 2001 MR. WEIGEL: Yes. COMMISSIONER MAC'KIE: And I don't want to be there. That's probably more important to me than the number of units. I don't want a ten-story building there. CHAIRMAN CARTER: Granted, but I think it's a hundred feet at this point, and I have an understanding from earlier discussions tonight we cannot address that in this cycle. MR. WEIGEL: No, you can't. COMMISSIONER MAC'KIE: Well, on that particular -- CHAIRMAN CARTER: We can give direction, but we can't -- we can't deal with it in the next -- this meeting and the next one. We can give direction to change it in the next cycle, and I'm -- you know, I'm on board with that for 110 percent. What I want to figure out is how can I do the best that we can in this cycle to ensure this community in, what I'm going to call, a worst-case scenario and all the protection's in place so somebody has no wiggle room? MR. WEIGEL: Right. And, Commissioner Carter, a good point which we haven't really discussed tonight is along that road, Gulfshore Drive, there are 14- and 15-story buildings there too. So a ten-story concept's been around for many years, long time. And so, again, as we approach it in this district or through board direction approach it and give it a look-see in all the districts, we'll be looking at it from both a commercial standpoint and a residential standpoint. But it's not like a ten-story building is something new to this district. There are a lot of -- several of them there; some are larger than ten story, and some -- some buildings are six and five and seven stories, the condominiums and things like that. But hotels and motels are in this district as a matter of right. COMMISSIONER MAC'KIE: And so we -- we know we already have probably one lawsuit, at least, threatened in the area. Are -- Page 35 June 6, 2001 I guess what -- I'm just trying to look at Commissioner Carter's goal. You know, the simplest way to get there would be to have a moratorium on hotels in this 1-mile stretch while we -- for six months. What's the legal implication of that? MR. WEIGEL: Go ahead, Marjorie, if you want to start. MS. STUDENT: Okay. And I'll ask David -- COMMISSIONER MAC'KIE: Well, six months, I mean, you know -- MS. STUDENT: I'll ask -- I'm sorry. I'll ask Mr. Weigel also to chime in on any comments he might make. Again, with the moratorium you need to have -- you know, be doing something like a study, and it has -- COMMISSIONER MAC'KIE: We are. MS. STUDENT: -- to be funded, a real study; not just, you know, like, an idea. Also, we would not be able to do a moratorium in this cycle because it has to be part of the land code, and it has to have been advertised. And, David, if you have any -- COMMISSIONER MAC'KIE: Is a moratorium a cycle issue? I don't think so. MS. STUDENT: You could bring it back. A moratorium is -- COMMISSIONER MAC'KIE: It's just an ordinance. MS. STUDENT: It's an ordinance, and it's part of the land code. I've done some research on that, and the research suggests that it is part of the land code. And, if you recall, we did our final order moratoria as part of the land code. However, one of the amendments you have before you tonight is to bring -- you know, we can bring ordinances or LDC amendments back to you at more frequent intervals than twice a year now, so you know, that is a possibility out there. But the courts come down very strongly. This has happened in the past with local governments just kind of off the cuff doing a moratorium, and Page 36 June 6, 2001 they're thrown out because they must be advertised. COMMISSIONER MAC'KIE: And what kind -- if we were to decide tonight that we wanted to start a study for hotels on Vanderbilt Beach, then we could advertise that in the next month? MS. STUDENT: Well, I believe that you would have to direct staff -- I don't know if you'd want a consultant or if you would rely on our planning staff which, as you know, we've lost a lot of key people at the time. But there should be direction for a study, and there should be a beginning date for it, and it should be funded before you could do the moratorium. And the moratorium can -- you know, certainly six months or whatever's a reasonable time frame. COMMISSIONER MAC'KIE: And under those conditions at -- what kind of financial risk in a lawsuit is the county -- can we reasonably defend a lawsuit for a temporary taking under those conditions? MS. STUDENT: Well, under Burt Harris -- moratoria are exempt from a Burt Harris claim. And I think as long as you have, you know, a -- valid public health, safety, welfare reasons for so doing -- and I know traffic is one of them and so forth -- I think that it would, you know, survive any lawsuit. And just -- maybe this isn't in my purview, but some issues have been brought up regarding traffic. Issues have been brought up regarding height and density and maybe not only for hotels, and it may be an opportunity to look at the whole area and to take into account some of the suggestions made by the public; for example, differing density -- excuse me -- heights for the gulf side as opposed -- and uses as opposed to the lagoon side and so forth, and all those things could be considered. I couldn't say how long it would take to do the study, especially given the situation with having lost a lot of key staff. Page 37 June 6, 2001 COMMISSIONER MAC'KIE: We'd probably have to hire a consultant, and it would probably cost three or four hundred thousand dollars like it did in the triangle and -- CHAIRMAN CARTER: Well-- MS. STUDENT: But the point I want to make about the study, when you have that and there is a lawsuit -- because whatever's done must be related to the -- you know, have a rational basis, the public health, safety, and welfare. Otherwise, it's arbitrary and capricious, and the courts will throw it out. Armed with the study, you have a defensible position in court. COMMISSIONER MAC'KIE'- It just seems like in this case, Commissioners -- I don't know. I mean, I didn't -- I didn't come prepared to discuss this, so I haven't researched it before I got here. But, you know, we are playing so much defense here. We're trying so hard to -- to preserve what's there while we get appropriate regulations in place. Maybe this is the time when it's appropriate. MS. STUDENT: And if I may, there's another point that I would like to make about that. This area came through our zoning reevaluation program by policy with the comp plan. And as Mr. Mulhere alluded to, you know, it's kind of you just see the tip of the iceberg. But there are a lot of things involved here, and that may be something that we'd need to look at too, particularly because this district was old. It was brought through the zoning reevaluation process and pretty much survived as it was. And because that area was considered to be improved under ZRO, that's why it passed through it. And so we may have some comp plan issues, and I'm just -- regret that there's nobody here from comp planning here to discuss those. COMMISSIONER MAC'KIE: And, obviously, this isn't something we would do tonight because it's -- we'll have the next hearing before we make any kind of decisions. But it's just kind Page 38 June 6, 2001 of -- it's just something that might be worth some research. CHAIRMAN CARTER: I'm going to take two more comments from commissioners. Commissioner Henning. COMMISSIONER HENNING: Commissioner Carter, I just want to say a couple things, and the concern that I have is if we have a bunch of nonconforming in that area -- and, you know, we said about not just hotels, but condominiums -- that means that if these people want to update their unit, they might not to (sic) because it's not going to be -- it's a nonconforming use; therefore, the atmosphere is not going to change in it where you want to bring up a neighborhood, and it will stay the same for now and forever. That is my concern. CHAIRMAN CARTER: You're right. You have nonconforming issues. I'm not going to play attorney, but I think it can be worded that anything that's under way now is certainly not going to be interfered with, number one. And while you do this study, whatever terms you want to put on it, it would freeze any future activity in that area for X period of time while Y study goes on, that needs to be scoped and determined so that we could address all those issues as it pertains to a singular community. Am I correct, Counselor? MR. WEIGEL: You are correct as usual. You can give us the direction -- CHAIRMAN CARTER: I'm going for my law degree next year. COMMISSIONER MAC'KIE: Good training here. COMMISSIONER HENNING: And the other concern I have is there is -- that RT zoning is commercial, and it has been for a number of years, so is this a downzoning? A taking? MS. STUDENT: Well, it would depend upon what the results of the study revealed. Just to do what is also called an interim development control, which is, I guess, a less intrusive or whatever word for moratorium -- Page 39 June 6, 2001 CHAIRMAN CARTER: I like that term, "interim development control." MS. STUDENT: -- wouldn't do that. But then once you had the study and if some of those uses were eliminated, it could be looked at. That's not to say you couldn't do it as long as you had a public health, safety, welfare reason to justify it. That's not to say that you might not get some Burt Harris claims out of it, but having a study like that goes a long way to help defend it. CHAIRMAN CARTER: One more. Comment Commissioner Fiala. COMMISSIONER FIALA: Actually to Pam, being that she had started this question about a RTV. And then we spoke of density in that particular area, and somebody said there's a lot of 10 story and even 15 story. But just because there is, doesn't mean we have to stay there; right? I mean, we could -- in this particular area, we could actually go down to, like, four stories? I mean, we're all kind of tired of not even being able to see the gulf because you can't see through all the tall buildings, so that would be a prime time. Is that what you were going for? COMMISSIONER MAC'KIE: Yes, we could do that. And then as, God forbid, the ten-story structures are blown away by a hurricane, then they would be rebuilt at four stories instead of ten. And that's -- that's the nonconforming issue that others are bringing up. CHAIRMAN CARTER: That is -- that certainly would not make a lot of people happy in the room tonight. I don't -- I don't want to go there. I think that that is -- that whole issue of nonconforming and what is allowed because of an existing structure would have to be addressed through all of this. MR. WEIGEL: I'll just state again, we're four months away from the next cycle, not too long in any event. This board certainly can tell us to initiate the study with some direction as Page 40 June 6, 2001 to what they want the study to come back to them. The only -- the only matter I mention in regard to the history that there are some tall buildings there is when we do a study, we'll come back and say, "Hey, there's been a lot of development here, commercial, residential, particularly the residential, where you've got a lot of tall buildings." So the concerns we have about building height and density, there's already a lot of building height and density there, and that becomes part of our study that we report back to you. We're not working with a clean slate, which makes it a little more difficult. But we can do that study, and we look forward to your direction. But the worst thing is -- to say is, "But we're only four months out from another cycle, in any event." And you have on your plate tonight and on the 20th several remedial actions and variations which also reduce the developable standards in that area, even in the meantime, which is pretty good, I think. CHAIRMAN CARTER: I know Mr. Olliff is going to remind me I have a lot of other speakers on the issue. Mr. Mulhere, have I stolen all your time? MR. MULHERE: Well, I started by saying -- CHAIRMAN CARTER: You came in here, and you raised enough hell. It's time for you to go home. MR. MULHERE: I started out by saying my comments would be brief, and they were. COMMISSIONER FIALA: And they were. MR. MULHERE: I just wanted to just quickly state that the -- the definitions -- the new definitions, I think, do add greater clarity, and they do make a lot of sense in some cases; and in other cases they may not provide the kind of protection that you would prefer. So, again, I'd be happy to get with staff and share my concerns with them. And thank you. CHAIRMAN CARTER: Thank you. Page 41 June 6, 2001 MR. OLLIFF: Next speaker is Armand Pirro followed by Michael Volpe. MR. PIRRO: Good evening, County Commissioners. To me, after all -- all the discussion and confusion regarding the Beachcomber land or use of land, it is my sincere hope that the commission will continue to favor the people and the environment of Vanderbilt Beach and return to the June 2000 codes. Thank you. CHAIRMAN CARTER: Thank you, sir. COMMISSIONER FIALA: That's brief. MR. OLLIFF: Michael Volpe will be followed by Carol Wright. MR. VOLPE: Good afternoon -- good evening, Mr. Chairman, members of the board. My name is Michael Volpe. I'm an attorney. And I'm here this afternoon -- I keep saying this afternoon; it's evening. I apologize -- representing the Save the Vanderbilt Beach Association. Very quickly I just want to take us back to prior to June of 2000. We had a fairly uncomplicated Land Development Code that provided for 16 units an acre for multifamily, 26 units an acre for hotels/motels. Interestingly enough, time-shares were considered to be multifamily units, 16 units an acre. In June of 2000, a decision was made to go to a floor area ratio. What was the reason for the -- the change? Your staff has indicated that hotels are more like a commercial structure, and therefore, because they are more commercial, that's why we should go to a floor area ratio. Mr. Anderson, I believe, at the CCPC pointed out that the concerns are that you cannot use a unit per acre for anything other than residential dwelling units. It's a violation, according to Mr. Anderson, of our Comprehensive Plan. Now, it occurred to me, why did we make the distinction between multifamily dwelling units and hotels? Why did we allow Page 42 June 6, 2001 16 units in one instance and 26 in another? Well, I'm told that the reason for that is the way in which these units function. They function differently. Hotels function differently than multifamily dwelling units. I went to the Comprehensive Plan, and I said, "Well, since you can only use a density rating system for residential dwelling units" -- that's what we're told; you can't use units. I looked, and I looked in vain. And maybe the staff can help me, but I couldn't find a definition of a residential dwelling unit anywhere in our Land Development Code. There are definitions of dwelling units, but not residential dwelling units. A dwelling unit under our Land Development Code as defined -- dwelling, multifamily - "a group of three or more dwelling units within a single conventional building" and so on and so forth. And then it goes on and says "Any multifamily dwelling in which dwelling units are available for rental for periods of less than one week shall be considered a tourist home, a motel, motor hotel, or hotel, as the case may be, and shall only be permitted in districts where specifically designated." The point I'm trying to make is that it's a function as to how these units are functioning which determines the density. When you look at the concept which is being introduced, which is an extended-stay hotel, as your staff has said it's intended for a longer stay. It's -- it is for family occupancy for periods of time in excess of one week, limitations on time of eight weeks. The issues become so very complicated because of the introduction of floor area ratios as it relates to hotels. I would ask that the staff check with the City of Naples to see whether the City of Naples has, in fact, adopted a floor area ratio formula for hotels. I don't believe that they have. I believe the City of Naples is still using the per-unit formula for calculating hotel units. Page 43 June 6, 2001 I submit to you that there was no legitimate reason as it relates particularly to the residential long stay -- extended-stay hotels to use a floor area ratio at all considering the functions of these -- these structures. And so I would submit to you that at this particular point given the complications -- complications and the -- the advice that we've gotten from Mr. Mulhere, that at the very least what the board should do is go back to where you were before, just simply 16 units for multifamily, 26 units for hotels, Option No. 1. Option No. 2 would be, as I think is being discussed at least, put some type of a temporary suspension of the issuance of building permits for any type of hotels for a period of six months, if that's the period, because you are currently involved in a corridor study which you've incorporated Gulfshore Drive, and it is funded, so you've got the basis for doing that. The people who have advocated the extended-stay hotel are not talking about 500- or 800-square-foot units. They're talking about a minimum of 1600-square-foot units, and the calculations that were introduced before the CCPC would allow units depending upon -- depending upon -- the building mass remains the same, but you can -- using the floor area ratios that the staff - - the CCPC has adopted would allow units of 4,000 square feet, up to 4,000 square feet. I think staff will confirm that. And so my -- if you look at what the function is, at least on an interim basis --just the discussion here, it has become unnecessarily complicated. These residential hotels are really how they function. They function more as dwelling units than they do as the traditional hotel. And I'll leave with just one question, because I frankly don't understand the recommendations or the -- what the staff has reported. Will there be, under this proposal, three separate definitions: One for the traditional hotel, one for the destination Page 44 June 6, 2001 resort hotel, and one for a residence hotel? That's a question. I really don't know. CHAIRMAN CARTER: Ms. Murray, would you -- COMMISSIONER MAC'KIE: As far as I knew, residence and resort were the same thing. MS. MURRAY: There is a proposal for a new definition for residential hotel. There is an existing definition for resort hotel, tourist resort hotel, with some modifications to clarify the requirements for that. COMMISSIONER MAC'KIE: And the difference -- MS. MURRAY: So then there would be three different -- COMMISSIONER MAC'KIE: The difference between a residential and a resort hotel is what? MS. MURRAY: The residential hotel is intended for long -- you know, family occupancy. There is a requirement on the stay, minimum and maximum. There's requirements for on-site reservation services, daily housekeeping services, a lobby registration area, etc. COMMISSIONER MAC'KIE: That's residential. MS. MURRAY: That's residential, correct. And for your resort tourist -- or destination resort hotel, I'm sorry, the requirement there is primarily a -- there's a minimum 25 percent common element as well as Iocational requirements. They have to have direct access to the Gulf of Mexico. They have to have a restaurant facility, a bar facility. COMMISSIONER MAC'KIE: Those are The Registry and The Ritz. MS. MURRAY: Correct. COMMISSIONER MAC'KIE: And residential is this new concept of a hotel that looks like a condo but operates like a hotel. MS. MURRAY: Correct. Page 45 June 6, 2001 COMMISSIONER MAC'KIE: And then what's the third one? MS. MURRAY: Then you would just have a regular hotel, like your business-class hotel that you would find commonly along interstates and things of that nature. MR. VOLPE: So the concept that's being introduced by your staff is the residence hotel, not The Embassy Suites, but a residence hotel. And we were told at different times that this is a concept that is being adopted all over the United States. I have not done exhaustive research. The only place that I have found any concept that is close to a residence hotel is in Las Vegas, Nevada, and even then it doesn't approximate 1800 square feet and up, which is what the residence hotel, under your proposed Land Development Code, would allow for. What would be the minimum square footage of a room within a residence hotel, minimum square footage? MS. MURRAY: 1638 square feet. MR. VOLPE: So that would be the minimum size. And what you've heard members of the public say, "In all these other places, the most you've ever seen is 800." So we're talking about doubling. As I said to you, with the calculations it could be as much as 4,000. MS. MURRAY: That would be at 26 units per acre. Let me clarify that. MR. VOLPE: Understood. COMMISSIONER FIALA: And at 16 it says it would be 3500. Gee, that's double my house, 3500 square feet, you know. Yet it says that they may not occupy the unit for any more than 12 weeks. So they're taking a place that's twice my house size, but they're only going to stay in it for less than three months? MR. VOLPE: In any calendar year. So if you plan that right in any calendar year, you can do it, you know, during the holiday - - you know, during the high season. You can do it, you know, so Page 46 June 6, 2001 you can get more -- you can get more if you really want it. You can get 24 weeks, the way I calculate it. COMMISSIONER COLETTA: Mr. Volpe, are you saying that this is just a rush to be able to get into a condominium later? MR. VOLPE: No, I'm not saying -- what -- what we're looking at is function. We're looking at how the unit is functioning and why you would have a difference in the number of units per acre. And the -- the reason why you went to floor area ratios is because hotels function more as commercial structures. I submit to you that when you take a -- a, quote, residence hotel at 1600 square feet or more, it is not functioning in the same way as your traditional hotel. And I'm telling you, from a legal perspective, I don't believe that your Comprehensive Plan says that you can't use the density system because it talks about residential dwelling units and when you look at dwelling units and the definition. So I'm just saying that, at the very least, if you go back to where you knew what you got, you knew what the result was. And what Mr. Mulhere and others have said is that there may be some fallout here that you really don't anticipate, and it is a new concept. If someone could say to you, "Here's the Land Development Code from Palm Beach County, and here's how they do that," I -- and maybe someone has that. I mean, I looked, and we couldn't find anything, but it may just be an oversight on our part. CHAIRMAN CARTER: Your points are well taken, Mr. Volpe. MR. VOLPE: Thank you very much. COMMISSIONER HENNING: Mr. Volpe, I have a question also, if I may, and I need to get through this because thinking about 1600 versus 400 square feet per unit, the 1600, what kind of person is going to stay there versus the 400? And in my mind, is you're going to get somebody maybe high caliber. I got to Page 47 June 6, 2001 watch how I say this. CHAIRMAN CARTER: Get somebody that's got a big pocketbook; put it that way. COMMISSIONER HENNING: There you go. That's where I'm going to go. You've got somebody with a larger credit card with the 1600 than you do the 400 square foot. Now, is that a benefit to the community by going 16007 MR. VOLPE: Well, two things. Number one, we've looked at The Registry Resort hotel, the La Playa, we've looked at The Ritz- Carlton. We know what the room sizes are there. I venture to say that the new Ritz-Carlton, the golf resort, probably isn't going to have units -- their presidential suite probably will not be 1600 square feet. I submit to you that if you go up and down Gulf Shore Boulevard, you will see any number of condominiums that are rented on a seasonal basis that would attract the same type of person who would be apt to use a residential hotel. The difference is that the high-end condominiums along the beach now are limiting the length of stay, so you can only lease there, you know, so many times a year and maybe the length of stay. This allows for a length of stay less than 30 days. So there may be a market niche there that I'm not sophisticated enough to realize. But in direct response to your question, if your concern is an economic one for our community, that somehow there are affluent people who would not be able to find acceptable or sufficient accommodations for their family for an extended period of time in Collier County, I don't really think that's a concern. COMMISSIONER HENNING: Okay. The other question is, if we -- if you go to that 1600 square foot versus the 400, would you get more units out of the 400 or less units, versus the 16007 Page 48 June 6, 2001 MR. VOLPE: I think the -- if -- I'm not sure I understand the question, but the idea is to have -- going back to where you were before, you knew it was 26 units an acre for a hotel. That's it. That's -- that's the maximum, and you had the room sizes. And at least on an interim basis -- because what I'm suggesting is -- I mean, we've sat through this going back to December of last year. And, frankly, I mean, I'm confused. CHAIRMAN CARTER: Well, I would say this to the commissioners: As I understand it, whatever we did here, we would not allow any conversion from residential hotels to condominiums, and we would say that they can't exceed 26 units. That really probably gets back to the very simple term that there was before. MR. ¥OLPE: I don't think so, Commissioner Carter, because it. COMMISSIONER MAC'KIE: But we'd never be able to police MR. VOLPE: -- when you look at the definition of the residential hotel that the staff has submitted, they talk about meeting rooms. Every condominium on the beach has a meeting room. It has a -- you know, a function room for parties and things like that. That's not a special -- that's not 25 percent of the hotel being used for, you know, conventions and the like. It isn't -- COMMISSIONER MAC'KIE: They have a fitness center. They have, you know, a common kitchen. You know, as far as I'm concerned, we just need to eliminate this concept of a residential hotel in Collier County. We don't need to provide that particular amenity or whatever you want to call it. MR. VOLPE: But we already have the definition of a destination resort hotel. Staff wants to tighten that up a little bit. But if you do that, leave the concept of the residential hotel to another day when you have more research. And in the Page 49 June 6, 2001 meantime, if you went back to 16 units an acre, 26 units an acre, everybody knows where you are. The alternative to that is -- if you need to do this study, is to do some sort of a temporary moratorium. CHAIRMAN CARTER: Okay. Next speaker, please. MR. OLLIFF: Mr. Chairman, you've got four speakers left. The first is Carol Wright, followed by Dick Lydon. MS. WRIGHT: Good evening, Commissioners. My name is Carol Wright, and I'm president of the Vanderbilt Beach and Bay Association representing some 700 members. First of all, I want to thank you again for rescinding the Beachcomber Hotel. We may have won that war, but we still have this battle going on, and we are asking for your support one more time. My 700 members and voters in our area are very upset over what has happened in our area regarding this hotel issue. It makes us want stringent laws. We want them tightened up, and we want them adhered to. The Planning Commission wants you to approve huge hotel suites for our area, far larger than ordinary hotel rooms. Somehow, someway the developer will turn those hotel units into condos when you allow an FAR of 1.65. If he didn't think he could get his 24 units -- condo units, he'd be up here lumping and yelling. He'll find a loophole. You can't tell me code enforcement will take care of it. I can name you several places that are in violation, and nothing has been done. One is The Manatee Resort across from where I live, which has a density of a hotel but operates and has been sold as condos. This was built by the same developer who wants to build the Beachcomber. It's illegal, and we don't want this anymore. Who is going to watch out for these violations? We do not need 2- to 3,000-square-foot hotel rooms on Vanderbilt Beach. Page 50 June 6, 2001 Therefore, I'm asking you to please take the code back to where it was before June of 2000. This means 26 unit -- hotel rooms per acre, 3 to 500 square feet with 20 percent suites. Anything larger invites trouble with developers. If larger units are needed, they should be in the 16-unit condo law. You can make the change. Don't be seen as a tool for the developers. Be seen as a tool for us, the public. Be the commissioners who can say no to developers and say yes to those who vote for you. I also ask you to have the 100-foot maximum height be from the foundation to the top of the roof. Since I can't speak later, and if you don't -- and if you have to go with an FAR, the parking garages must be included in the FAR. You have the right to do something. You have promised to help us. You can make the changes. This is what your voters want. Thank you. CHAIRMAN CARTER: Thank you. MR. OLLIFF: Dick Lydon will be followed by Tim Hancock. MR. LYDON: Good evening, folks. You'll have to forgive me if I stutter a little. The eye doctor and I had a bout this afternoon. I'm still blinking. CHAIRMAN CARTER: That's all right, Your Honor. Go ahead. MR. LYDON: I'm Dick Lydon, president of the Vanderbilt Beach Property Owners' Association. We've flogged this dog about as long as we ought to, it seems to me like, today. We still are working under some legal and technical confusion. Our concern in our property owners' association is that we don't make this a canyon over there, that we get back to something that looks realistic in the way of a community that we and our association like to refer to it with Vanderbilt pride. Let me clarify one thing. Several people have mentioned that we're talking about Gulf Shore Boulevard. Gulf Shore Boulevard starts south of The Registry. We're Gulfshore Drive. Let's not confuse those for the record. Page 5t June 6, 2001 The other thing, this Beachcomber thing, there may be a very simple answer. Let the county buy the property and put beach parking on it. The man only paid $5 million. We authorized $3.8 million for a parking garage that nobody wanted. We put -- you built another 80 or 75 parking lots (sic) up on the north side which we're delighted with and we're delighted with the park. But there's one other -- you know, that's -- we put about 700,000 in that park and parking lot thing. That's getting pretty close to the 5 million. And if this man wants to cut and run, there's an opportunity for everybody. Secondary, there's another property right on the beach that just came on-line. We might take a look at that one and see if we can put a little beach parking over there. We are concerned about what's happening. I'm delighted to learn that Gulfshore Drive is now being included in the Vanderbilt study, and let's put some money into that study, folks. You know, we can't sit around and not have any money to get some of this stuff done. I'm delighted with that, and I want to thank you for your concern. I think the answer is that we've got a lot of problems. Let's not put that bit in our teeth and run with them until we know what the hell we're doing. Thank you very much. CHAIRMAN CARTER: Okay. Thank you, Dick. MR. OLLIFF: Tim Hancock will be followed by your last speaker, Bruce Anderson. MR. HANCOCK: Good evening, Mr. Chairman Commissioners. My name is Tim Hancock. We're not dealing with any new issues tonight. You have seen residential hotels before. In the last LDC cycle, you were asked not to act on it; you didn't. It's back here today for your consideration. This is nothing new. A lot of the discussion this evening, as I hear all the different items being brought up -- some of which are applicable; many of Page 52 June 6, 2001 which are not -- your position is something like trying to hit a moving target with a feather in a wind storm. You're in a tough position. There's a lot of information, and trying to process it all can be very, very difficult. What I'd like to do is maybe boil it down to a couple very simple facts. Number one is that a hundred feet's permitted, period. The buildings in the area don't creep up to a hundred feet; they meet it. The areas north of the property everyone seems to be concerned about are 13-story buildings. So I think this needs to be put into perspective. The floor area ratio concept is simply so that the mass of the building is controlled. If you control the mass and size of the building, you control the relationships from one building to the next. To say that because it is a hotel, it should not be afforded the same right of heighth and mass that a condominium is afforded bears no logic. The floor area ratio that's being proposed for residential hotels is being proposed because there are additional requirements that go along with that. Those requirements include things that The Ritz-Carlton does not have in their average rooms, like a kitchen. When you start putting kitchen facilities in, the size grows. The idea that before June of this year nothing exceeded 500 square feet in hotel rooms is just ridiculous. How did the Hawthorn Suites get there with 1100 square foot rooms minimum? There are example after example after example of hotels that have not met that criteria. And without casting aspersions, quite frankly, it is a market factor. Embassy Suites builds rooms at 900 square feet minimum size. A 500-foot -- square foot cap will preclude all-suite hotels from being built. I don't think that's a road we want to travel. The bottom line is in the RT district the land is very, very expensive. If someone is going to put forth that kind of money to Page 53 June 6, 2001 develop it and they are limited on the size of their hotel rooms at 500 feet, they're going to recoup their investment through the associated uses with a hotel, many of which are far greater traffic generators. So let me back up once again to the floor area ratio concept. By limiting the floor area ratio so that the mass of the building is no more and no less than that that a residential condominium -- which by the way, the ones your staff surveyed averaged 1.55, was the floor area ratio in the condominiums. By having a 1.65 floor area ratio for a residential hotel, you end up with the same building mass because of the common area requirements that your code now has. The discussion you've heard about -- and you've actually heard folks today tell you condominiums are being used as hotel rooms. They're being rented out on a weekly basis. Those condominiums do not have the same fire protection standards required by the state that a hotel requires. They do not have the same amenities and requirements that your code will now impose on a residential hotel. You're being told this is a step backward. It is not a step backward. It's a step that preserves a massing element that is identical to that of the residential component currently permitted in the RT zoning district, and it has standards with it that require that these properties operate as a hotel. These are requirements you previously did not have in your code. And as you move from a standard hotel room to the residential tourist, which I have not fully reviewed, you get an increased level of standards. As you move to the residential hotel, you get an increased level of standards. Nothing is for free. To qualify as a residential hotel, you have to meet a set of standards that are rather restrictive, and those standards all come off of your floor area ratio. Page 54 June 6, 2001 The division you have heard of taking the total square footage under a 1.65 floor area ratio which is approximately 61,000 square feet on an acre of land and dividing it by 26 is simply not true. You have to allow for common areas. At a minimum in an office building your common area is 15 percent. The requirements in your code as proposed here this evening would require common areas that well exceed that 15 percent. You can't have 400,000 square foot units under a floor area ratio of 1.65 with a height restriction of 100 feet. COMMISSIONER MAC'KIE: I have a question for you. What's the planning rationale? Is Singer (phonetic) going to accept this concept of residential hotels? What's the planning rationale for the density of a residential hotel to be greater than a condominium? MR. HANCOCK: The rationale comes to external impact from the property. Residential hotels, while they operate a little bit more like condominiums -- and I'll give you an example. When my family and I vacation, one of the places we like to go is Palm Island, which is about an hour and a half north of here. Those are residential hotels. It is a hotel. You go, you rent your room. It's a 2200-square-foot room, upstairs and downstairs. Okay. When we get there, we walk to the restaurant. We enjoy the beach. We don't get in our car and take the kids to school in the morning. You may not have kids at soccer practice; I do. There are people living in Vanderbilt Beach that have children. It's not a children -- no-children zone. Okay. But the reality is, there's no preclusion in those condominiums that you have to be retired to live there. Families live there. And the bottom line is that if you look at every Institute of Transportation Engineering study for hotels, the trip generation per room is less than that of a residential unit. That has always been the reasoning for the Page 55 June 6, 2001 difference in density. COMMISSIONER MAC'KIE: Even if it's this residential hotel, that -- that traffic analysis still applies? MR. HANCOCK: Yes, ma'am. And the difference is, a single- family home anticipates year-round occupation. Year-round occupants tend to average out more into the family range, so you get a higher number of trips on a daily basis. The bottom line is that people that vacation, on a daily basis, do not get out on the roads as much as people who live there, and that's one basis for the external impacts. All other impacts being the same -- size, mass -- the only effect, then, is traffic. COMMISSIONER MAC'KIE: And the other question, then, might be if that's relevant in this neighborhood, which gets me back to needing a Vanderbilt -- MR. HANCOCK: I wouldn't get on the road at early bird special time. The demographics change. Just because you are retired or have a family doesn't mean you stay locked in your home every day. The reason we live down here is to enjoy the outside, not the inside. People leave their homes. COMMISSIONER HENNING: Mr. Hancock, you gave an example of Hawthorn Suites having a minimum of 1100 square feet. MR. HANCOCK: Yes, sir. COMMISSIONER HENNING: What's the makeup of that 11007 Is there a kitchen in there? MR. HANCOCK: They call it a minikitchen or a kitchenette. It does not have cooking facilities. It is a bedroom, a small sink facility area, and a sitting area. And that's typical of Embassy Suites also. They don't have a kitchen facility or a dining area. COMMISSIONER HENNING: And we have a Hawthorn Suites in this area that we can look at to get that visual thing that I need? Page 56 June 6, 2001 CHAIRMAN CARTER: Yeah. It's at 3657 Pine Ridge Road. That's on your screen. MR. OLLIFF: Commissioner Henning, I can give you, probably, a better example than that. The Marriott Residence Inn on north 41 across from the DeVoe Cadillac dealership has units that are generally two bedroom, two bath, full kitchen, dining, and living room and I think are exactly the unit that you're talking about. So if you want to see one firsthand, I think that's a good example to go look at. MR. HANCOCK: As you cap those units, the number of units will increase. Without a cap on the units and the size is allowed to go up, you may see fewer units than with a size cap on them. That's a reality of floor area ratios. CHAIRMAN CARTER: Questions of this speaker? MR. HANCOCK: Thank you. CHAIRMAN CARTER: Seeing none, does that conclude our-- oh, we have one more. MR. OLLIFF: Mr. Anderson. MR. ANDERSON: Good evening, Mr. Chairman, Commissioners. My name is Bruce Anderson. I'm here on behalf of La Playa, LLC. And I'm here to simply request that if you do make changes to the floor area ratio requirements when you make the Land Development Codes amendments, that you include the language that was recommended for your approval by the Planning Commission so that you don't make any of the existing hotels nonconforming by any of your actions. Thank you, CHAIRMAN CARTER: Thank you. Ms. Murray, do you have any comments, based on this discussion, for us? MS. MURRAY: No further comments at this time. CHAIRMAN CARTER: Okay. COMMISSIONER MAC'KIE: What action is -- is necessary for Page 57 June 6, 2001 this evening? MS. MURRAY: None, really. COMMISSIONER MAC'KIE: We could give you direction to draft some changes if we wanted to, but it's not like we have to take a vote tonight. MS. MURRAY: No, you don't have to take a vote. CHAIRMAN CARTER: No vote. MR. OLLIFF: But anything that you want to see that you want to have an opportunity to vote on at the second hearing, you need to tell us that this evening. COMMISSIONER HENNING: And I like the language that the CCPC has interjected into this issue. CHAIRMAN CARTER: That's in regards to existing -- existing properties? COMMISSIONER HENNING: Exactly. COMMISSIONER MAC'KIE: Yeah. So we don't make nonconforming uses. CHAIRMAN CARTER: Right. Am I getting three nods on that? COMMISSIONER MAC'KIE: I have no problem with that. CHAIRMAN CARTER: I mean, I'm with that certainly, and I don't want to interrupt what's there. COMMISSIONER MAC'KIE: Would a majority of the board be interested in the moratorium research? CHAIRMAN CARTER: You mean the interim development control? COMMISSIONER MAC'KIE: That one. CHAIRMAN CARTER: Interim development -- yeah. I would like to explore that myself. COMMISSIONER FIALA: I think that would be very interesting, yes, as a matter of fact. COMMISSIONER HENNING: And I also agree. Is anybody Page 58 June 6, 2001 interested in the long-term-stay facilities? I think that's something that -- individually that maybe we can look at, by Mr. Olliff's example. COMMISSIONER MAC'KIE: I'm willing to consider having residential tourist -- whatever they're being called -- resorts, residential -- those suites. COMMISSIONER HENNING: Long-term stays. COMMISSIONER MAC'KIE: But not right here and not right now. You know, that's -- that's why I'm kind of interested in this - - what is the word besides moratorium? CHAIRMAN CARTER: Interim development control. COMMISSIONER MAC'KIE: That. COMMISSIONER HENNING: county to pay for a stay to -- COMMISSIONER MAC'KIE: Gee, and I was looking for the I think we should go on a research tour. You're right. Anything else we want the staff to look at? CHAIRMAN CARTER: Well, I hear one that's -- where are we on that issue? I don't know if I got a quorum on the last one. COMMISSIONER FIALA: Could you explain what -- tell me what you want us to do with that, Tom. COMMISSIONER HENNING: Well, I -- it is something -- a new concept here, and I know they have it in the Orlando area. Again, I'm a visual person, and Mr. Olliff has given us an example of a choice that could be in RT area. COMMISSIONER COLETTA: You want to keep the option open. COMMISSIONER HENNING: Yes. COMMISSIONER COLETTA: I can't argue with that. CHAIRMAN CARTER: And that's what I'm hearing, that we don't want to make a decision tonight. Keep the option open. Not remove it at this point, but do some investigation visually for Page 59 June 6, 2001 ourselves. COMMISSIONER FIALA'. During the interim development control study, huh? CHAIRMAN CARTER: No. Don't confuse that. That's longer term. Now, my question on that is if we're going to do that, is that something that's brought back at a regular board meeting, Tom? Do we deal with that, or how do we -- how are we going to deal with trying to accomplish that and what effect is it going to have on the cycle? MS. STUDENT: I think that you may want to have the discussion about the study and what it would encompass at a regular board meeting. However, to do an IDC ordinance, because it does prohibit uses, we've got to have two night Planning Commission and two night board meetings. We did that for the final order IDC. COMMISSIONER MAC'KIE: Well, it's -- I think what I'm asking for at this point is some research on what the parameters would be and for our next meeting, or hopefully before it, to have some information on if you consider this, these are matters that you should investigate and this is the procedure and -- you know, we don't need to decide tonight. CHAIRMAN CARTER: No. Let's find out how you scope this out. As we said earlier, let's really find out what that is, and we do have some opportunities. We have an LDC meeting. We've got regular scheduled two board meetings, and I think we also -- I don't want to put in another workshop -- I mean not another singular workshop, but you may have something in a workshop that could be discussed in a short agenda item that says, Commissioners, here's where it is. So you at least have some opportunities to do this. MS. STUDENT: Point of clarification, I can come back -- I've done research on IDCs, but as for the meat of what the study Page 60 June 6, 2001 might do, that's not the legal function. That would be staff. And I -- so I think we have to work in tandem on that. COMMISSIONER MAC'KIE: But we'd need to hear from you what the parameters of such a study would reasonably need to include. Because, you know, right now we have this traffic study. Is that enough, or would we have to expand it? That would be basically from a legal perspective. MS. STUDENT: Fine. Thank you. COMMISSIONER MAC'KIE: And, again, I just -- it's because of the feeling that we're being backed into a corner here that we're having to play defense on Vanderbilt Beach, and if we can have a halt while we study it, then maybe that's better than being backed into a corner because we're likely to have some unintended consequences countywide, as Mr. Mulhere was pointing out. CHAIRMAN CARTER: Commissioner Coletta. COMMISSIONER COLETTA: Yeah. Just two little points: One would be possibly we can arrange for the county manager's office to make arrangements for us at our own convenience to be able to go to one of the hotels that have these residency suites and be able to view them ourselves. The other thing is, should we at this point be eliminating certain possibilities so we can narrow the scope of what we want to do? COMMISSIONER MAC'KIE: What would you suggest? I mean, that-- COMMISSIONER COLETTA: That's what I'm looking at. Or is it -- do we just normally -- this is my first experience with this. Do we just normally give staff direction on what we want them to do rather than what we don't want them to do? COMMISSIONER MAC'KIE: No. We -- CHAIRMAN CARTER: We can do either/or. COMMISSIONER MAC'KIE: We normally tell them strike Page 61 June 6, 2001 through this; we don't want to see it. If you get three nods saying we don't want to see this at the next meeting, then we don't have to talk about it again. So if there's something that we can eliminate and not talk about again, then the public will know. And, I mean, I'm certainly open to hearing what we might be able to take off this list, because as much as I enjoy seeing all these wonderful people from Vanderbilt, good Lord, we've talked about this enough. If there's a few things we could take off the list, I'm interested. COMMISSIONER COLETTA: Did you ever think, Pam, what are they going to do when this issue is finally brought to a resolution? COMMISSIONER MAC'KIE: Yeah. Go back to the beach. COMMISSIONER COLETTA: There's not going to be much left to do. CHAIRMAN CARTER: First of all, if you want to go visit one of those things, you just drive up there and say, 'I'd like to see a unit." There's nothing to it. Secondly, because you're in that investigative mode, I think it's going to be a little difficult for you to say, 'I'm going to strike something out" in regards to those definitions because it may change your impression on it. I don't know. So I guess, back to what you said earlier, Commissioner, is you leave your options open. What could I eliminate now? I would like to do that, but I am not sure -- what I'm hearing from the board is some inquisitive things -- that we can do that tonight. It's still on the table, I guess, for the most part. COMMISSIONER FIALA: Is -- maybe I could ask Tom. Is the Marriott Suites -- or yeah. Is that 1.657 MR. OLLIFF: The ratio I don't know because I don't know the size of the property or even the number of units. I just know about the floor plan of a particular unit simply from relatives having stayed there. Page 62 June 6, 2001 COMMISSIONER FIALA: I guess that we'll find that out during our investigative search. CHAIRMAN CARTER: Maybe there's some -- a couple of things that -- there was a concern about conversion, and I would certainly want to see that in the next language, where it would not -- no matter what we do, to see a residential hotel be allowed to convert into condos which may exceed what a condo allotment would allow here. I'm not -- I don't -- I want that gate closed. COMMISSIONER MAC'KIE: And if we can't do that adequately so that we can police it effectively, then, it seems to me, a residential hotel should have the same density as a residential condo. I mean, I don't know how we can police that. And, I mean, I filed condo docs for a living in my former life, and nobody ever asked me at the Secretary of States's office, "Was this formerly a hotel?" They don't ask that question. CHAIRMAN CARTER: But if somebody -- I guess how would we know. Do they go through any process in the county where somebody says, "We're changing it"? Mr. Weigel. MR. WEIGEL: I think it could be established very easily with a computer checklist with some regularity, periodic review. There's a checklist that could be done. You check with the state as well as the local property records to see if it's been changed. I can pretty well assure you that any private ownership interest of condominiums wouldn't go bear and, at the advice of their counsel, wouldn't go bear and wouldn't have that recorded in the public records. And so it seems to me that within a district -- in this case it's only this district where this particular concept is being proposed. If it were to be adopted, it would be very easy to track. And another thing we don't want to lose sight of is 16 units per acre for residential. Condominium is residential. If the hotel Page 63 June 6, 2001 converts to residential, it's not only in violation of the Land Development Code, it's in violation of our Growth Management Plan and the density that we've been talking about there. So there's no question of our ability to get on top and hammer that kind of thing down and make it go away if it ever were to occur. And we can conceivably have -- well, we already have the code enforcement aspects of not only prohibition, but fining that would occur in that regard. It can be absolutely prohibited. COMMISSIONER MAC'KIE: Respectfully, though, we have history to look at, and I would hate to -- we also have a PUD monitoring ordinance that says once a year the PUDs have to report if they've complied with all the conditions of the PUD. And surprise, they haven't. And surprise, we're not doing anything about it. And this would fall into that category. And even if they didn't legally convert to a condominium, they're likely to use it as a condominium. COMMISSIONER HENNING: I can tell you how we can monitor it, and very simple, is those units should be drawing a tourist tax, and if we're not getting tourist dollars out of it, then -- MR. WEIGEL: That's another one. COMMISSIONER MAC'KIE: There's a flag. MR. WEIGEL: We already have the allegation of condominiums that are being used like hotels or hotel, condominium. So it's a question of county application, direction, resource, that is through the county manager, county attorney, code enforcement, and the board putting a resource to even take care of a condition of which there are allegations that already exist. So if we should put another standard of hotel in there where there's, call it, the possibility of someone doing the bait and switch to a different use than what's allowed under our Growth Management Plan and Land development Code, it's really a question of resource and application to take care of it, I think. Page 64 June 6, 2001 MR. OLLIFF: Mr. Chairman, to try and summarize it -- and, Susan, you catch me if I'm wrong here and, John, you do the same. But what I heard from the board was yes to the Collier County Planning Commission language that avoids creating the nonconforming uses. The county manager's office will make some arrangements for you to view some hotels. And, frankly, I don't know that I've ever been asked as your county manager to set up hotel viewing, but we will take care of that. CHAIRMAN CARTER: Well, you can do that, Mr. Oliff, but I -- we're all big boys and girls. All you have to do is get on the phone or walk in -- I have never been turned down -- and say that '1 would like to tour one of your suites." COMMISSIONER COLETTA: We could have repercussions if two commissioners showed up at the same time. CHAIRMAN CARTER: Well, go to different suites. MR. OLLIFF: I'm not going there. The third item, research and bring back interim development control, both the process for that and just the impacts of that, what needs to be done for that. And, finally, conversion restrictions was the last thing that I heard from the board. COMMISSIONER MAC'KIE: What was the last one? MR. OLLIFF: Conversion -- CHAIRMAN CARTER: Conversion restrictions. MR. OLLIFF: Which are in place, to a certain extent, but I think that there are some additional restrictions that you've talked about this evening that we can bring back for your consideration as well. CHAIRMAN CARTER: And lastly, no matter what we end up with, am I also hearing from the board that on a 1-acre it would never have any more than 16 condominium units or 26 whatever- we-end-up-defining units so that the people of Vanderbilt can be assured, no matter how the final language ends up, that you're Page 65 June 6, 2001 going to have an either/or, but you're not going to exceed those numbers in this cycle? COMMISSIONER COLETTA: I think that's the biggest element. CHAIRMAN CARTER: And that -- if that gives everybody some peace of mind, then you know that no matter what the final wording is or how we define some of these, those are the basic criteria. COMMISSIONER FIALA: Yes. CHAIRMAN CARTER: So does that kind of help pull it together? COMMISSIONER COLETTA: I think that's it. CHAIRMAN CARTER: Okay. Thank you for your patience, audience. Thank you, Susan. We've been at this -- Magic Fingers, you are worn out. We got to give her a break. Take ten. (A break was held.) CHAIRMAN CARTER: Okay. We're back in session. We're going to move this -- move this forward, and the next one is about the ATVs. Susan Murray, again, is up to discuss this. You-all be quiet and sit down. If you've got any cell phones on, be sure to turn those off. Thank you. All right. Commissioners, we are back in session. Ms. Murray. MS. MURRAY: John Dunnuck has some information to give you first, and then we'll consider vehicles on the beach, if you want to, after that. MR. DUNNUCK: I just want to touch base with you before we kick this off, and maybe we could take all three of these code items, you know, kind of in tandem, you know, in an effort to save time. I think we have 11 speakers on the docket tonight. What I first kind of wanted to say, though, was -- you know, outline the process. This process -- you know, this baby's been ugly -- and I can honestly say that -- for the last six months. You Page 66 June 6, 2001 know, we've been -- CHAIRMAN CARTER: Folks in the back, please, please. If you want to have a conversation, step in the hall. Thank you. MR. DUNNUCK: We've been working for the past year with the hotels and the environmental community to discuss the issue of vehicles on the beach and whether we think it's a viable use within sea turtle nesting season. And, you know, through much negotiation and many, many meetings and e-mails and everything else, I think we've come to the conclusion that, yes, vehicles on the beach, from a staff perspective, was okay, you know, and that we were actually bringing forward an amendment that allowed that with some restrictions. Eleventh-and-a-half hour, a couple weeks ago, it was brought to our attention that there's an element within our comprehensive plan that pretty much, in my opinion, restricts us from moving forward with this amendment till we can go ahead and take a took at the Comprehensive Plan and, should the board direct, amend the Comprehensive Plan to allow vehicles on the beach. On the monitor I have -- I have the language that's enclosed in the Comprehensive Plan. I just want to read it to you because I think there's going to be some discussion on whether or not it actually -- you know, there's an outside interpretation from representatives of the hotels that they, in fact, believe that this is an allowable use under the Comprehensive Plan and what's being proposed tonight. It reads, "Vehicle traffic or traffic on the beach in primary dunes shall be prohibited except for emergency and approved maintenance purposes. The county shall enforce this requirement with the existing vehicle on the beach ordinance." And just to give you an idea of how I interpreted that, because there's going to be discussion on, what does vehicle traffic Page 67 June 6, 2001 mean? And allowing an ATV down to the beach and turning around on a daily basis may not -- may not constitute vehicle traffic. But I kind of looked at the second part of it and what the allowable uses were. And it says, you know, for maintenance purposes and emergency purposes only. And, frankly, you know, I thought it was a stretch on staff's part to say putting chairs down on the beach or putting towels down on the beach and bringing it back and forth constitutes a maintenance issue. Now, they're going to argue to the contrary tonight, and feel free, because I think our county attorney's office is in support of staff's position on this. But I just kind of wanted to outline the issue up front. Having said that, I'm going to turn it over to Susan, who -- I think it may be important also to discuss some of the elements within that vehicle on the beach code just to let you know where we were headed on the issue as far as allowing it, but understanding we don't think we can move forward with it until we can amend the Comprehensive Plan. With that, I'll turn it over to Susan. COMMISSIONER HENNING: I just have one question for you, John. Are we going to still extend the permit for the use and -- until we have an amendment of the code? MR. DUNNUCK: By "use" I'm assuming you're talking about outside sea turtle nesting season, because right now, in your past -- in your past cycle or, I believe, the cycle before, you actually made a Land Development Code decision to allow vehicles on the beach outside of sea turtle nesting season. Now, certainly, you know, I kind of liken it to the rule of holes by Mike McNees, and when you find yourself in a hole, you quit digging. While we may not want to go back and revoke that and take the risk of having something occur with that issue outside of the sea turtle nesting season, we certainly may not want to consider Page 68 June 6, 2001 adding to that by allowing vehicles on the beach during sea turtle nesting season. COMMISSIONER HENNING: Okay. And I appreciate your comments, but what I understand is these hotels have been using this operation for a number of years, and I think with some common sense, we need some balance there. MR. DUNNUCK: I don't think we disagree. You know, I think what we're saying is we need to go back and take a look at the Comprehensive Plan first, before. And just to clarify one thing, you know, they've been using vehicles on the beach, you know, historically-- and I believe, you know, Mr. Albeit may have brought it up at a previous cycle and opened up this issue that, in fact, you know, they wanted to take a look at it and make sure that they were following the Land Development Code. Because I think, you know, understandably, what they were using it for may be a practical use, but we, in fact, I think, need to go back and make an amendment to the Comprehensive Plan. MS. MURRAY: What I did for the Planning Commission was I essentially just summarized those proposed changes in the code where staff differed with the -- I'd say for the most part, the commercial hoteliers. If that's what you would like me to do, I'd go ahead and do that, or would you rather go through all of the proposed changes? CHAIRMAN CARTER: We have how many speakers? MR. OLLIFF: You have 11 speakers, Mr. Chairman, and I would suggest a summary is probably a good way to go. CHAIRMAN CARTER: I would say that would be as quick and as expeditious, looking at the new information we have here. MS. MURRAY: Okay. I'm starting from page 92 and -- actually, starting on page 93. In the middle of page 93, Section 3.14.3.4.7, the hoteliers requested an amendment to amend the requirement to ensure that only motorized vehicles shall be Page 69 June 6, 2001 operated below the mean high water line, the purpose of which was to allow the use of handcarts and dollies on the beach after a daily sea turtle monitoring. Staff's response to that request was we made no changes to the -- relative to the request; however, we did add language providing for a staging area for large special events, and that was one of their requests as well. I'm now on page 96, Section 3.14.6.1. The request was to revise the section to confine beach raking and mechanical clearing during sea turtle nesting season to the area of the beach below the mean high water unless a state certified sea turtle monitoring program was conducted by appropriate personnel and has -- which have performed a daily inspection of the beach. Once that inspection was complete, the raking may occur above the mean high water line. Staff's response to that request was no change to the current language or the language you have before you. The third request was Section 3.14.7, which was the penalties section. I'm working off the bottom of page 96 now. The request was to remove any language that would result in the revocation of the annual beach events permit and to clarify that the violations are calculated on an annual basis and each year the permit holders start with a clean slate. Staff's change was to add the words "up to a $500 fine per violation" and no further changes. That essentially summarizes the vehicle on the beach. CHAIRMAN CARTER: Okay. Thank you, Susan. I think we ought to go to registered speakers and listen to this and take it from there. So let's do it. MR. OLLIFF: The first speaker is Matthew Grabinski followed by Ed Staros. MR. GRABINSKI: Good evening, Commissioners. I have a handout for you, that I think will be helpful, summarizing our Page 70 June 6, 2001 requested revisions to all the amendments that will come before you, as well as some pictures for each of you to review, of the hotel's beach carts as well as the ATV that's causing so much controversy. COMMISSIONER MAC'KIE: At the risk of shortening this discussion, I watched the Environmental Advisory Council today and their discussions on this matter and found myself agreeing with -- with most of their results. This seems to me -- and you guys know I'm as green as anybody gets up here -- that it's an environmental battle without a cause. You know, we're not fighting to save anything. There's not a risk. There's not a damage. There's nothing that's been harmed. It seems to me that we need to increase the fines for noncompliance but that otherwise this is not a very controversial -- I mean, it's been controversial, but I was hoping that when it came to the Board of County Commissioners, it would become a common sense issue, and we would look at how it's been operating, what's broken out there; we would get an interpretation of our comp plan and maybe a direction to amend it; and eliminate this business about suspending people's licenses, but maybe give them a $10,000 fine. But, you know, am I the only one thinking that this has been much ado about nothing? COMMISSIONER FIALA: I don't -- I don't understand. Are you talking about the ATVs on the beach? You mean allowing them now versus not before? COMMISSIONER MAC'KIE: I'm saying continue to allow them the way that we have allowed them. Some of these -- some of these changes to -- for more specificity -- well, basically, if Susan could outline for you what the EAC did today, that's what I think is a good compromise. Except what did they do about penalties? Page 71 June 6, 2001 MR. GRABINSKI: The EAC denied any of our changes that would have allowed this limited use of the ATV. COMMISSIONER MAC'KIE: Then I misunderstood what they did. COMMISSIONER COLETTA: If that's okay, I'd like to comment on this, if I may. And I think you were heading in the right direction on quite a bit of it. And the EDC (sic), while I appreciate all their efforts and everything, I would expect them to be extremely conservative in their judgment to be passed on to us. One of the things I would suggest is that we look at the fine structure. We drop the idea about closing this out where if there's two or three mistakes made in a row, that automatically they lose it. You cannot plan a business with business events that are planned way in the future -- it's like all of a sudden finding out your daughter's wedding's canceled because the church is not going to be able to be open that day because three times in a row they left confetti out front. You know, it borders on the ridiculous. What I would recommend, though, is that they -- a couple of things. One, that there's a -- there's a limit to the fine we can do, from what I understand, by state statute, that we come up with something where we get into the higher reaches. If we have a problem that's ongoing and repetitive, that we have something that would be in excess of the fine -- we get, hopefully, the petitioner to agree to it -- where they would contribute, to the sea turtle program at The Conservancy, X number of dollars. Also, I would recommend that The Ritz-Carlton play up to this, that they're very much involved in it and that they make this a little bit of an ecotourism factor and they make their guests very much aware of what they're doing and play up the positive aspects of this whole thing. It will be a positive factor for Page 72 June 6, 2001 everybody, the residents coming to -- the guests coming to the hotel to be able to benefit from the educational process. They'll feel one in tune with nature. They'll be very much in tune with the turtle situation. The Ritz-Carlton employees will pick up on this over time, and I see it as a win-win situation for everyone. COMMISSIONER MAC'KIE: I think that maybe we could short-circuit this discussion, then, by -- well, maybe not -- but just by taking a poll of the board because I want you to have your changes to the ordinance. I don't want you to have all of the -- that we revoke your license, but I'd like you to reasonably be able to use these ATVs to haul canoes around on the beach after inspection of the beach by the turtle people, and let's just get to some common sense here. MR. GRABINSKI: That's what we've been asking for all along. In addition to being allowed to use the ATV, again, we are asking for the language to be clarified so that the dollies and pushcarts can be used on the beach. We want all references to the suspension or revocation of the annual beach events permit removed. If it is not, it will substantially impact my client's business. And Mr. Staros will address that. And we are also asking to be able to rake above the mean high water line. In the packet that I handed out, there's a permit in there. We were allowed to rake above the mean high water line. We were allowed to clean our beach, as well as The Registry, after the daily sea turtle monitoring program had been performed. This was allowed last year. All of these amendments, all of the changes that I am requesting, aside from the use of the ATV, reflect an activity that we were allowed to do last year. COMMISSIONER MAC'KIE: And has there been any evidence, staff, of damage to turtle nests by virtue of last year's activities? Page 73 June 6, 2001 MR. DUNNUCK.' Well, if I could clarify a couple things, Matt said -- and maybe I could help out. Last year they weren't allowed to, you know -- and, Michelle, it may be even better for you to speak about it from a code enforcement standpoint. But from any sea turtle nests being damaged, no, there weren't any damaged. But I think one of the issues -- and if you wanted to hear the presentation tonight, you could. But in the essence of saving time, you know, what we've opined is -- you know, what our natural resource department will tell you is that leaving chairs on the beach may create false crawls. COMMISSIONER MAC'KIE: Of course, and that's a bad thing. And we want to prohibit the chairs on the beach, and these are the guys who are taking the chairs off the beach. It's somebody who wanders over and, you know, pulls -- leaves their chair or pulls one of their chairs out or something like that, that is the real problem. The big hotels aren't the problem with the leaving chairs on the beach, and we're talking about taking their license away. That just seems so warped. MR. DUNNUCK: With respect to those issues, you know, we've been discussing -- and I think that was a theme of many of the advisory committees that -- you know, that we need to take a look at. And I think what staff would propose as a counterproposal is let's limit it to just fines in this cycle, and maybe we go back and take a look at it after, you know, a year or so and see how they're doing. And then if they're not abiding by the current rulings, you know, then we take a serious look at what we need to do to beef that up. I would also propose, you know -- and we've been talking with the hotels over the last couple months about getting our natural resources department, our code enforcement people out there to meet with them, you know, and let's establish the expectations and the rules of the game on how we perceive them. And I think Page 74 June 6, 2001 they've been, you know, very amenable to those recommendations, and they're willing to work with us. And I think, you know, that may be the compromise step and what we bring back to you on the 20th. COMMISSIONER MAC'KIE: And just -- that sounds to me like exactly where we ought to be going, because they should be able to use the vehicles. They should be able to do what they did last year, and -- but I liked what Commissioner Coletta was adding about maybe as a condition of the permit, you have to have this training from our staff, and you have to do some kind of public awareness for your guests, and you have to -- MR. GRABINSKI: We've already welcomed that. And John Dunnuck and Michelle Arnold called -- invited us to a meeting a couple months ago and discussed that possibility, so that's already been -- the -- you know, the die has already been cast with respect to that. That's something that we welcome, and we intend to do. As far as educating the guests, The Ritz-Carlton already devotes, I would say, a quarter of its interim newsletter to information regarding sea turtle nesting season. COMMISSIONER COLETTA: I might further suggest you might even consider a display dedicated to the sea turtle which you can work it out with The Conservancy and have brochures that would be there that would be of interest to your guests. This might be something -- I don't think it would look tacky if it was done in the right way. It's just a thought. I mean, we're going to be continuing this for another meeting. COMMISSIONER MAC'KIE: For the record -- COMMISSIONER COLETTA: But I'd like to see something a little more aggressive than just possibly a newsletter that goes out once a quarter, something that's right there they can pick up and -- COMMISSIONER MAC'KIE: This is in their room. Page 75 June 6, 2001 CHAIRMAN CARTER: This is in their rooms, Commissioner. When you check in, it's part of your check-in package. It tells you the -- MR. GRABINSKI: I'm sure that The Ritz-Carlton -- The Ritz- Carlton has been recognized and awarded numerous times as an organization that operates in an environmentally responsible manner. I'm sure that it would be happy to entertain any additional suggestions that you have with respect to environmental awareness. COMMISSIONER MAC'KIE: Maybe if the board is already sort of going in that direction, we could hear from speakers that disagree with that, because I'd like to know what's wrong with the idea. MR. GRABINSKI: That's fine, and I'm going to sit down right now. But I just want to point out a few things, because I know that members of the environmental community are going to bring up a state law issue that I feel has already been addressed, and you have letters from the DEP. There's been talk that the DEP is looking at the issue again. I guess two times wasn't enough. I think that they're probably going to give us a no comment on that. And there have also been some assertions or suggestions that members of county staff or this county commission could incur civil or criminal liability and possibly even be imprisoned for passing a law that, if violated, would result in a taking. And I can tell from the look on your faces that you agree with me that it's absurd. It's laughable. If that issue comes up and any of you are concerned, I would be happy to come back up here and explain to you how that is impossible. Thank you for your attention. MR. DUNNUCK: And just for the record, some clarification on that. That came from an outside source; that didn't come from staff. Page 76 June 6, 2001 MS. ARNOLD: For the record, Michelle Arnold. If I could just say a few words with respect to the educational part of it, your natural resources department, on an annual basis as a part of the sea turtle nesting season, does an excellent ]ob of educating the public, whether they're in a hotel or condominium or residences along the beach. So they're already doing that, and they could, I'm sure, extend that to The Ritz-Carlton and The Registry and any other hotel along the beach. COMMISSIONER MAC'KIE: Whoever gets this permit. MS. ARNOLD: Right. One -- one point of clarification that I wanted to note that -- was with respect to what was permitted. During sea turtle nesting season, vehicles on the beach were not permitted. COMMISSIONER MAC'KIE: And they shouldn't be. MS. ARNOLD: But that's what's being asked of you today. COMMISSIONER MAC'KIE: After the crawl, though -- I mean, after the inspection. MS. ARNOLD: No. They were never permitted, period. COMMISSIONER MAC'KIE: In the past. COMMISSIONER FIALA: What does he keep referring to last year for? Is last year something different than the year before? MS. ARNOLD: What they did versus what was permitted was two different things, okay, and I just want to make that clarification. Nobody ever signed a permit saying that you can utilize your vehicle after monitoring, after anything during sea turtle nesting season, with the exception of below mean high water line. COMMISSIONER MAC'KIE: The only question I would have about that -- and I've already asked this outside of this forum -- is whether or not the PSI of the ATV is such that it, you know, impacts the sand to a point that it inhibits nesting. MS. ARNOLD: I can't answer PSI questions. Page 77 June 6, 2001 COMMISSIONER FIALA: I don't know what PSI is. CHAIRMAN CARTER: Pounds per square inch on balloon tires. COMMISSIONER FIALA: This is all the guy stuff. MR. DUNNUCK: If I could clarify that real quickly, that's another amendment that you have before you this evening. I think it's to the latter part of the package, but there is some regulation on the pressure per square inch as it relates to ATVs. COMMISSIONER MAC'KIE: The point being that we could relate -- we could regulate the PSI of the ATVs that are allowed on the beach if we decided to allow any of them on at all. MR. DUNNUCK: Correct. And then it goes back to the -- it goes back to the basic issue tonight, too, though, of -- and I don't want to lose focus on -- the Comprehensive Plan. You know, do you feel that it's consistent with the Comprehensive Plan, or do you think that we should amend the Comprehensive Plan first before we work towards allowing this code. COMMISSIONER FIALA: But Michelle said that it wasn't allowed; right? Is that the Comprehensive Plan? MR. DUNNUCK: The Comprehensive Plan -- CHAIRMAN CARTER: Excuse me. Last year, she said, what they did wasn't allowed, but I have the feeling we looked the other way once the inspectors went out there, signed it, and they went ahead and did what they did even though -- remember, the hotel industry is the one that brought it to our attention. It was The Ritz-Carlton who said, "1 am not comfortable the way this is, even though in the past have been allowed to practice it." So give them credit for coming to us and saying, "Let's get clarification because we don't want to do anything that is illegal." And they caught a lot of stuff for that. MR. GRABINSKI: And if I could just clarify, because when I submitted my changes, I said, "We are asking -- with the Page 78 June 6, 2001 exception of using the ATV, every other change we' are asking for reflects what we were allowed to do last year." Now, I -- I am frustrated by county staff now saying, '~Ne never let them rake above the beach," because they gave us a permit to rake. I know -- I can assure you that county staff -- I met with Barbara Burgeson when we (sic) issued the permit, when everyone was talking about it. That is why the sea turtle monitoring program was implemented last summer, so that we could rake the beach afterwards. Collier County knew that we were cleaning the beach. COMMISSIONER MAC'KIE: Everybody's got so much energy in this because you guys have been fighting it for so long, but let's don't go over -- I mean, I don't think there's anything to be served -- CHAIRMAN CARTER: No. COMMISSIONER MAC'KIE: -- by going over last year. COMMISSIONER COLETTA: I don't think so either. COMMISSIONER MAC'KIE: Let's just talk about what -- what is -- I'd like to hear from people who oppose your proposed changes, to hear environmentally what's the science behind that opposition. CHAIRMAN CARTER: We need to roll through them, and let's do it, and let's take them, Mr. Oliff. MR. OLLIFF: Ed Staros is your next speaker. Doug Finlay would be your next speaker. COMMISSIONER MAC'KIE: Would it be possible to ask if -- instead of to have the speakers come, Mr. Chairman, in the order they're registered, could we ask who -- CHAIRMAN CARTER: Who is here to speak for the environmental community? COMMISSIONER MAC'KIE: Yeah. I want to hear from the environmental community. Page 79 June 6, 2001 MALE AUDIENCE MEMBER: I'm here to speak for the law. COMMISSIONER MAC'KIE: That'll do. CHAIRMAN CARTER: Okay. Well--okay. That'll work. You can do that too. MR. FINLAY: I'm Doug Finlay. I sent you quite a bit of information on this. I hope you've read it. COMMISSIONER MAC'KIE: We have. MR. FINLAY: Mr. Grabinski has said something here that is a remark that I would assume is attributed to me, to the EAC about criminal liability. If-- I'm guilty as charged. Where did I get that information? I got it from Sandy MacPherson of the U.S. Fish & Wildlife in Jacksonville, Florida. I can assure you tomorrow morning I'll be calling Sandy MacPherson to see if she can stand by her words. I don't recall at any time I mentioned imprisonment. And if-- if Mr. Grabinski is accusing me of saying "imprisonment," frankly, I'd like for him to prove it. And if he can't, I'd like for him to apologize. CHAIRMAN CARTER: What I would like you to do is make your presentation, sir, and then if you have any written documentation from the U.S. Florida (sic} Wildlife -- MR. FINLAY: No. CHAIRMAN CARTER: -- or U.S. Florida (sic} Wildlife, you need to get it to us. What some one person in any agency ever tells anybody by the phone, I will not accept as the gospel because I could talk to ten people in the same agency and get ten different answers. Just try the IRS. MR. FINLAY: Right. But understand I'm just a private citizen. I've never been involved in anything like this before. First time. COMMISSIONER COLETTA: Thank you for getting involved. MR. FINLAY: This is the first time. CHAIRMAN CARTER: And I appreciate that. Page 80 June 6, 2001 MR. FINLAY: And all I was doing was seeking information just to become knowledgeable, calling the DEP, calling the DCA. You know, I've talked to everybody that I could possibly talk to. COMMISSIONER MAC'KIE: And we appreciate that. MR. FINLAY: That comp plan up there and those words are what seems to be the crucial issue here. Yes, the resorts were using ATVs on the beach. As far as I know, they weren't using them during sea turtle nesting season. I didn't get involved in this because the resorts were using ATVs. I only got involved in this because all of a sudden the county had drawn a line, and they had decided to move the line back at the request of the resorts. That's when I got involved on this. Delivering beach chairs, sound systems, and towels certainly can't qualify as maintenance or cleanup of our beaches. And with six or more agencies already operating ATVs on our beach -- and these are county agencies plus, I believe, The Conservancy, but they're doing it legally. The additional use of three resorts of ATVs, or more, certainly would constitute traffic. So I think, you know, if you read the simple words up there, you can see there's a serious problem with the LDC amendment. Mr. Grabinski made a comment to the Naples Daily News some time ago. His words proved not only accurate but, I feel, somewhat prophetic. He referred to a recent draft of the LDC amendment as just a bad law. And after countless months of preparation and rewrites, the LDC amendment, in my opinion, has turned out to be just that; a bad law. To use a crude term, I would say it's an illegal law, at least if it were to be passed the way Mr. Grabinski and the resorts want it passed. Why the CCPC did not accept the county staff recommendation, I don't know. I think the EAC did. I do know that it was all in black and white, Policy 10.4.10 in the comp plan. And the EAC saw that, and the EAC went even further, Page 81 June 6, 2001 recognizing that strong penalties are needed to protect the county's and sea turtles' interests. Could business be harmed at these resorts? No. Are people going to stop renting kayaks and water tricycles at The Registry? No. Will beach events be canceled at The Ritz because there are no ATVs to haul down the sound system? I don't think so. I don't think they probably were last year during sea turtle nesting season, But what will happen, or what at least should happen, is that these resorts will be expected to live within the law, like other citizens of our county. I have a kayak, weighs 41 pounds, more than their kayak weighs. If I want to go down to the gulf, I have to haul it down. Our condo has a golf cart. Also at our condo there are seven kayaks, and I happen to live in a 55-and-older building, so we have a lot of seniors that have kayaks. What they have to do is haul their kayaks down to the waterline. They can't use a golf cart, as far as I know. Maybe you would like for them to use our golf cart to haul it down. Maybe if The Ritz can use its ATVs, maybe we should be allowed to use our golf cart during sea turtle nesting season. Maybe all the condos on Gulf Shore Boulevard should be allowed to do the same thing. COMMISSIONER MAC'KIE: Maybe if they did it after the inspection in the morning and if the PSI of the golf cart doesn't compact the sand, maybe that's not a bad idea instead of having our residents -- MR. FINLAY: It might not be except for what's up there. COMMISSIONER MAC'KIE: And we've got to deal with that. MR. FINLAY: You know, it's what's up there. And when I lived up north, I used to drag a catamaran all the way down and back, you know. And my catamaran was bigger than their catamaran is. This happens all over in the state of Florida where people have to drag equipment around on the beach. It's not just Page 82 June 6, 2001 The Ritz and The Registry. They have a large, young, and strong staff to do these things, and their business is healthy and strong, and it will stay healthy and strong regardless of their ATVs on the beach. So -- and The Ritz -- this isn't the Chrysler Corporation of 1979 coming to you and appealing for assistance as to what's going to happen to their business. But in closing, as a board of elected officials, I feel it's imperative that you recognize the conflict that the county staff has pointed out to you. You need to look at the comp plan, and you need to vote and stand by our county's Growth Management Plan. CHAIRMAN CARTER: Thank you, sir. All I'm asking you to do is anything you get from an agency, please have it sent in writing. I say that not only to you, but to everybody that ever listens to any of these things. That's the only way that I can accept it as a commissioner. I cannot go on what somebody says to somebody on the telephone. Next speaker, please. MR. OLLIFF: I'll try to do this the way that you wanted, I think. Nicole Ryan. And Nicole would be followed by Jessica, and I believe it's, Koelsch -- Kelsh (phonetic). MS. RYAN: Good evening. For the record, Nicole Ryan here on behalf of The Conservancy of Southwest Florida. And as all of you, I'm sure, know, The Conservancy has been working for the past several months with county staff, with The Ritz-Carlton to come up with some kind of language that protects the sea turtles and also allows businesses to have their businesses on the beach in an appropriate manner. We came up with some language. I know that we differed with the hotels on some of the points of it. But a bigger issue has now come up, and that is our Growth Management Plan. In our Growth Management Plan, it clearly Page 83 June 6, 2001 states that vehicle traffic on the beach is not allowed unless it's for emergency or maintenance purposes. I think we all agree ATVs are vehicles -- they're all-terrain vehicles -- and taking towels and chairs and tables and that type of equipment is not maintenance of the beach. Maintenance is beach maintenance of the beach itself. COMMISSIONER MAC'KIE: Nicole, can I ask you a question? I'm sorry. MS. RYAN: Sure. COMMISSIONER MAC'KIE: And I'm sure the chairman will give you time for the -- because you know how much I value your opinion and The Conservancy's position. Is there a sea turtle nesting risk with -- just forget -- we're just talking about science here for a minute; we're not talking about law. Is there a sea turtle nesting risk with the proposal in front of us? MS. RYAN: Well, if the monitors would not go by and check before an ATV went down on the beach, then -- COMMISSIONER MAC'KIE: That would be terrible. MS. RYAN: -- with the 10 PSI, perhaps the nest wouldn't be crushed, but the crawl marks could be erased so that you wouldn't know where the nest was, and then -- COMMISSIONER MAC'KIE: But if they didn't go until after the inspection, then would you be thinking that this science -- on science we'd be okay? MS. RYAN: Originally we had stated that with those things in place, we would be okay with some ATVs on the beach, and that's why I'm saying it's a bigger issue now. COMMISSIONER MAC'KIE: I understand. MS. RYAN: It's an issue of our comp plan. And, you know, it's tough because nobody really knew about this comp plan amendment. We just found out about it several weeks ago. So all of the work that was done, unfortunately, gets kind of pushed Page 84 June 6, 2001 to the side, because we have this award-winning comp plan -- it was a model when it was created, but a lot of things have happened to it. We're under a moratorium because we tried to put in so many amendments that would have weakened natural resource protection. And our concern is that if this clear language is interpreted as something weaker than it clearly is or if it's amended to weaken natural resource protection, then we no longer have an award-winning comp plan. And we don't want that plan weakened, and so that's our concern with that. And as far as what we would like to see in the language for the other things besides the vehicles on the beach, we believe that for the -- the annual beach events permits, if there is a 30- foot buffer, radius, around the nest during the event, we think that that's the best thing. It's the state standard, and you asked for the science behind that. It's the state standard, and their biologists determined that. It's not a law, but it is the standard. And we also believe that curfew should be at sunset or one hour after the sunset for the special exceptions. Again, the state standard. And what we really think will kind of put some teeth in this is to have fines, tough fines, monetary and also suspension of permits. Monetary fines, in the proposed language in front of you, I believe that it's 500, 1,000, 5,000 fine. The EAC today decided to up those fines for the major or serious infractions to be 1,000, 5,000, 10,000. The Conservancy would like to see it a little tougher than that, but certainly the EAC is moving in the right direction. We also believe that you need to keep the suspensions in there. It does put some more teeth into the penalties. COMMISSIONER COLETTA: What is the limits under the state statutes for the fine? MR. DUNNUCK: I believe under -- you know, I'll try to answer on behalf of the attorneys. I'll put my attorney hat on. I believe Page 85 June 6, 2001 right now the limit is $5,000. But, Patrick, if you want to elaborate. MR. WHITE: Patrick White, assistant county attorney. In order to go above $5,000 for a code enforcement board type of fine or penalty, we'd have to have specific findings and perhaps some amendment in the code with regards to that, in order to get up to 15,000, I think, is the max. COMMISSIONER COLETTA: Question. Would it be illegal, in lieu of a fine over the maximum amount -- suppose it was a number of occurrences, and I don't know if three occurrences, you know, if they're minor little infractions, would warrant going above that. But if we did go above that, could we have some sort of contractual agreement with The Ritz-Carlton and The Registry that they would pay the money over that amount towards The Conservancy for their turtle program? Would that be within the law? MR. WHITE: I would imagine some type of a stipulated or contractual agreement that they may choose to enter into for penalties could be allowed. I have not seen one, but that doesn't mean that you couldn't try it. COMMISSIONER HENNING: I think it should be fair for everybody that -- across the board, not just -- COMMISSIONER MAC'KIE: Not just these two. COMMISSIONER HENNING: Not just the hotels. CHAIRMAN CARTER: Because you're right, Commissioner. You start applying these things -- and the gentleman said, "I'm from the condominium, and we drag these things across the beach." Well, my question is, well, what happens when you drag it across the turtle's nest? I mean, does that give us scrambled turtle eggs or what? I mean, I don't know. And if somebody from a condominium leaves chairs out there on the beach and that interferes, are we going to have penalties there? Do we have a Page 86 June 6, 2001 mechanism to police that? I don't know. But I do not want to -- I'm like you, Commissioner Henning, I do not want to single out any one group and say, "You are the ones that we're going to hold accountable." We got to hold everybody accountable here. COMMISSIONER MAC'KIE: I have another question for the lawyers, if I could, lawyer question. Marjorie, I don't care. Could we -- I am interested in a fine structure that's the maximum allowed. I mean, it might have to be 1,000, 5,000, 10,000, might have to be maxed at five, whatever it is. But then could we also add a provision that said after a hearing we could suspend their license, we could suspend the permit? COMMISSIONER COLETTA: You got it the one -- your increment already. Wouldn't that suffice to be able to -- COMMISSIONER MAC'KIE: Well, but, you know, we might need to have the right to have some sort of emergency hearing or a code enforcement -- it's just -- the problem that I have with suspending the permit is there's no hearing, there's no discussion, and all of a sudden tomorrow they can't operate the way they always have. If there were a flagrant violation, I think they should lose the ability -- they should have to have, you know, standard bearers carrying things out there. CHAIRMAN CARTER: But on the other hand, from the hotel industry, when -- and if you're a meeting planner, you're not booking this year. You're booking two years, three years, sometimes up to five years out. And they count on that, and associations count on that, and they schedule it. And Io and behold, if you come along and say, "We can't have you here because we did this," that meeting planner and that association is in major trouble because the prime locations they want to go to may already be booked. So you're really beginning to penalize people in a major industry who are saying, "1 didn't do anything. Why did I suddenly Page 87 June 6, 2001 lose the right to have a beach event at this resort?" So I agree with the fines. I think there needs to be punitive retribution here, but I think removing somebody's right to have a beach event -- and, you know, I mean, you'd have to be out there, I think, bulldozing turtles' nests or something. Then that's maybe another case. But I don't think anybody in the business is going to be that stupid to go out there and intentionally destroy turtle nests on the beach. COMMISSIONER COLETTA: What is the state regulations? If someone did damage some turtle nests on the beach, wouldn't the state come in at that point in time, or the federal government also, with their particular enforcement? MR. WHITE: There's a state statute 370.12. That's the state parallel to the federal Endangered Species Act, and in those there are sections that indicate that if you harm the nest or the sea turtles or the hatchlings, that can be considered a take. And as mentioned, there are penalties, and those can be large fines. And the statute does provide that you have some criminal component to them, but as Mr. Grabinski's argued, that something that would apply to this board in terms of criminal liabilities are practically nil. So to go back to the issue, I think, that Commissioner Mac'Kie had with respect to the suspensions being in the proposed text, these violations would be heard typically either by a county court judge or the Code Enforcement Board. And each -- both the dollar amount of the fines and the suspensions, in particular the suspensions, are up to X number of days. So it's an enforcement mechanism, if you will, that is available to that entity that is hearing the case. CHAIRMAN CARTER: I guess there's mechanisms there, Commissioner. If you really do a serious thing, you could end up in a courtroom. Page 88 June 6, 2001 COMMISSIONER COLETTA: I was just trying to get the rationale where everything comes together. CHAIRMAN CARTER: We all want to do this right, and I don't want anybody to get off and, you know, just write a $500 check and say, well, you know, "Big deal." But I want this to be an equitable way to work with this, yet not penalize a major source of tourist tax revenue in this county. COMMISSIONER HENNING: We're on a turtle crawl pace here. CHAIRMAN CARTER: Other environmentalists. MR. OLLIFF: Jessica Koelsch will be followed by Brad Cornell. MS. KOELSCH: environmentalists. of. That sounds so bad, other I'm Jessica Koelsch. COMMISSIONER COLETTA: That's a title you can be proud MS. KOELSCH: Oh, I am. But just something about the way you said it. I'm Jessica Koelsch, and I'm with the Center for Marine Conservation, and believe me, I'm going to try to be brief because I need to drive back to St. Petersburg tonight when we finish. I sent a letter to the commissioners on Monday, and hopefully you received it. I just want to touch on a couple of points, maybe address some of the items that have come up here tonight. Again, we've also been involved in meetings with Collier County staff, hotels, concessionaires, the environmental organizations trying to come up with amendments that would allow limited use of ATVs on the beaches during sea turtle nesting season. We, too, have been trying to use common sense and reason in working with the hotels and concessionaires to try to allow them to do their business while still implementing the necessary measures to safeguard protected and -- and protect Page 89 June 6, 2001 the threatened and endangered sea turtles. I have some documentation that might address some of your questions before about the whole liability and whatnot. I have two things. I have some excerpts from the Endangered Species Act, and I've just circled a couple of definitions that talk about the term "person" and then the term "take" and what the prohibited acts are. I don't know if that's -- it's not spelled out very clearly, but it might give you some guidance. CHAIRMAN CARTER: You might want to introduce it for the record, ma'am. MS. KOELSCH: This is a copy. I'm introducing this for the record, Exhibit 1. And then Exhibit 2 is a letter from the U.S. Fish & Wildlife Service. It was actually sent to Volusia County when they were discussing their own vehicle on the beach issues. And in it, again, they spell out, "As a governmental entity which issues permits allowing vehicles to drive on beaches used by nesting sea turtles, Volusia County is responsible for ensuring that activities authorized," blah, blah, will not be harmful to the sea turtles or other listed species. Prohibitions against take apply to persons, blah, blah, blah, blah, blah. They don't talk about the penalties, however. And I'm going to submit this as Exhibit 2, or it is B? I'm not sure, but you know what I mean. I also, in one of the earlier versions of the LCD (sic) amendments, which -- here it is. This was the May 1st version. It actually spelled out what those penalties would be. Federal penalties for violations of the U.S. Endangered Species Act can be as high as $250,000 fine and up to one year in prison. So it just -- the information is out there. It's just kind of spread out, but I hope that that will clarify it some. But I agree with Matt. The chance that a test -- if a turtle nest is damaged, that you-all are going to get hauled off to jail, it's pretty unlikely. But still, I think it is -- the take-home message is Page 90 June 6, 2001 that you-all are going to be responsible for what happens to sea turtle nests on the beach if you allow ATVs out there. I wanted to address some of the risks to sea turtles. I guess that's one of the questions that I keep hearing again and again. As Nicole pointed out, the state has set standards for protecting sea turtle nests on the beach with respect to, I guess, vehicles or activities on the beach, even. And they set the standards of having everything removed from the beach one hour after sunset and having a 30-foot diameter around the nest during special events. And they're state standards, as she pointed out. It's not a law. They're standards, and the state does allow exceptions to these -- to these rules. However, what the hotels are recommending, it's not an exception; it's going to make blanket rules have -- shortening the diameter of the barrier around the nest and lengthening the time. So, again, if there's, you know, perhaps, special occasions and they want to try to extend it, again, that was intended -- those were intended to be standards to be adjusted on a case-by-case basis, not by a blanket rule. Other activities such as beach raking above the mean high tide water line, I actually just learned today that the county staff do have some data that show that repeated raking over a nest will decrease the hatching success. And you say, well, our turtle monitors are out there marking all the nests, so hopefully there won't be any -- you know, all the nests will be marked, and the rakes will avoid it. But what happens if there's a storm in the middle of the night and there's a nest that's not marked because the tracks are washed away by the rain? Then you're going to have a rake driving over this nest every single day for the 60-day incubation period and, therefore, decreasing the hatching success. Also, operator error can happen. Oops. Oh, boy. Page 91 June 6, 2001 CHAIRMAN CARTER: I just need to have you wrap up, ma'am. That's all. That wasn't intended to scare you. MS. KOELSCH: Anyhow, I've heard of -- in other counties staff accidentally -- county staff accidentally running over nests destroying the marking, just normal operating their ATVs on the beach. Accidents happen. We're just trying to limit the amount of traffic which is going on above the mean high water line so that way the risk to the nests, marked and unmarked nests, will be minimized. As far as the penalties, I -- we feel -- Center for Marine Conservation feels that the suspension should stay in place. I think maybe one potential compromise might be adding language that says up to X number of fine and suspension, as they have for the 500 for the first violation, having that up to language inserted everywhere, so that way if there was some ma]or event, you know, you could have a little buffer to work with the hotels a little bit more. But based on a history of noncompliance and a history of violations, I think that the suspension language needs to be included to provide some teeth to the enforcement regulations. COMMISSIONER HENNING: Can we stay to the five-minute rule, please? MS. KOELSCH: I'm sorry. I just wanted to address some of your -- some of your questions. CHAIRMAN CARTER: Thank you very much. Any questions by commissioners? Seeing none, thank you very much, and you have a safe drive back. If you can't make it tonight, the Ritz-Carlton will probably put you up, COMMISSIONER COLETTA: On the beach. COMMISSIONER MAC'KIE: Literally. Page 92 June 6, 2001 MR. OLLIFF: Following Brad Cornell will be Ronnie Poplock. MR. CORNELL: Hello, Commissioners. I'm Brad Cornell with Collier County Audubon Society. And -- excuse me. It's been a long night so far. I will be very succinct. I think the first issue is that we concur that this is something that we probably should not be talking about right now because it is a comp plan violation. I think that the proper channels, as staff has said, would be to change the comp plan first, if this is what you want to do with regard to vehicles on the beach. And so all this time is probably not well spent, other than talking about the merits of the issue. Getting to the merits of the issue, I think, as has been said, the problem is not one of we don't want businesses to be able to do what they need to do to operate on the beach. But what we have seen is violations, repeated violations, in the past, and we have to assume that there will be inevitable violations in the future. And, one, this is a problem with educating staff, not our staff, Collier County staff, but the hotel staff. And I don't think that's been done very well, apparently, since there have been violations. COMMISSIONER MAC'KIE: What kind of violations are you aware of? MR. CORNELL: I understand in sitting down -- Collier County Audubon, I have sat down with the parties that have been discussing this -- these issues and also participating through e- mail discussions in response to the numerous versions of this LDC language that the -- a couple of the hotels have -- have gone out before the monitoring has occurred. And they have been cited and -- by code enforcement, and I believe you could hear more about that from your code enforcement staff. Presumably, there would be more violations than code enforcement staff would have cited them for, and that is my Page 93 June 6, 2001 point. Code enforcement staff is not adequate to monitor the miles and miles of Collier County's beaches to enforce the timing of the operations after the monitoring. I think that that's a big problem. We need to solve that problem before we can talk about sea turtle nesting season impacts. We are very happy to sit down and talk about ways to facilitate beach users during off season, off turtle nesting season. But during the turtle season, we feel it's not -- that code enforcement is just not going to be able to enforce. No matter what the penalties are, we're going to have violations; we're going to have problems. And since we're dealing with threatened and endangered species -- we are blessed with their presence; hundreds and hundreds of them come to our beaches -- I think we should -- we should err on the side of the turtles. And things will -- business will go on just fine, Thank I think, without amending the -- making these changes. you. CHAIRMAN CARTER: Next speaker, please. MR. OLLIFF: Ronnie Poplock. MS. POPLOCK: Ronnie Poplock, Citizens for the Protection of Animals. With all due respect, for a sea turtle this is definitely not much ado about nothing. This is definitely much ado about something and -- because most of them don't make it, Commissioner Mac'Kie, so that's why it's important that we protect them. And I'm looking at it as like a cost-benefit. As an accountant I'm looking at it as a cost-benefit equation here, and the cost is really not that much. The cost is inconvenience, basically, and very small inconvenience, but the benefit is great. The benefit is protecting a protected species. Isn't that basically one of -- you know, one of our major issues here is to protect our protected species? So that's why -- and, now, Brad from -- Cornell from the Page 94 June 6, 2001 Audubon Society stated that it's going to be very difficult to monitor. I haven't seen -- the petitioner's state how -- haven't convinced me how they're going to effectively monitor this. And also, there have been violations. I've heard about the violations as well. And so, as Brad said, why not err on the side of protecting the protected species? So our group recommends that under no circumstances that ATVs be allowed on the beach during nesting season. Thank you. CHAIRMAN CARTER: Thank you. Next speaker, please. MR. OLLIFF: Mr. Chairman, that's all of the speakers on that side of the house, if you will. I think that there are some other registered speakers who still would like an opportunity to be able to-- CHAIRMAN CARTER: Yes, sir. How many people do we have left, if I can take a hand count? We have one, two, three, four. MR. STAROS: Good evening. I'll be very brief. It's a long evening. Excuse me. My name is Ed Staros. I'm the managing director of the Ritz-Carlton Naples hotel. I just want to make a comment about being environmentally responsible. It was 1992, November of 1992, when President Bush congratulated The Ritz- Carlton Hotel Company by giving us the Malcolm Baldrige Award. Those of you who know about the Malcolm Baldrige Award know that there is a major criteria within the award that requires the corporation that wins the reward (sic) to be environmentally responsible. It's the number one award given by the United States of America to any corporation for being a model corporation. In 1999, in October of 1999, President Clinton gave us the Malcolm Baldrige Award again. We're the only service company ever in the history of the award to receive it twice, and he personally thanked us for being a model corporation and being environmentally responsible. And it wasn't just June of last year Page 95 June 6, 2001 when Jeb Bush invited me to Orlando to give me the Sterling Award, and he thanked me for being a model hotel within the State of Florida which was -- is environmentally responsible. I've made every commitment in the 20 months that I have been here to be environmentally responsible. I will put displays in the hotel. I put the -- I put a -- a serious article in our daily newsletter about the turtles, etc. You're dealing with an extremely environmentally responsible company, and I just want to leave you with that thought. Thank you. CHAIRMAN CARTER: Thank you. Next speaker, please. MR. OLLIFF: Rich Yovanovich. MR. YOVANOVICH: Good evening, Commissioners. For the record, Rich Yovanovich representing The Registry Resort. I want to address a couple of issues real quickly. First of all, the issue of having a permit to do what we're seeking to have the Land Development Code amended to permit, was, in fact, issued to The Registry Resort under the same criteria that's being proposed. And I'll leave this. I wasn't planning on leaving this, but I will leave this. But the importance of that is it was issued for ATVs on the beach during the turtle nesting season. So you can know for a fact that you have evidence to support that this has been done, and it has been done successfully without harm to the turtles. COMMISSIONER MAC'KIE: Can we see that? MR. YOVANOVICH: And I would think that what we're here to do is to make sure that we're not harming the turtles. And I think you've heard from the environmental individuals that the science does not support -- let me rephrase that -- that the science supports what we're proposing. We're not going to harm the turtles. What's trying to be done here is they don't -- there are some individuals who do not want to get to the merits of the proposal, and the merits of the proposal, I think we would all Page 96 June 6, 2001 agree, support the adoption of the changes to the comp -- I'm sorry -- to the LDC that are being proposed. Nicole said she didn't want -- she wanted to make sure that the natural resources were not weakened, and I think Commissioner Mac'Kie brought that out, that what we're proposing will not weaken the protection to the natural resources. So I would -- I would submit to you that what is proposed is -- is environmentally friendly and environmentally responsible, and the resort -- The Registry Resort is also a good steward of the environment. Regarding suspending people's privileges, I think that's awfully harsh. I think you need a trial period to see if the fines work. I mean, it -- everything has worked well to this point. There really hasn't been any harm to the environment, so I don't know why going to a suspension is in any way necessary. Regarding the Comprehensive Plan, I think you have to put in context what the Comprehensive Plan was trying to protect, and it's my belief-- and ultimately it's up to the commission to interpret its Comprehensive Plan -- that it was intended to prohibit vehicular traffic. And the word "traffic" is what's important, because if you didn't want any vehicles on the beach, you would have said that. What did you mean by adding the word "traffic"? And I think what you were trying to do was protect against a Daytona Beach. You didn't want cars driving up and down your beach or indiscriminate use of the beaches by motor -- motorized vehicles. What we're proposing is a very limited use of the beach with very careful standards, and I -- I believe it's consistent with the Comprehensive Plan as it is written. If you really wanted to go to a ludicrous interpretation, the word "traffic" is there by itself. If you look in Webster's, traffic even means pedestrian traffic. Certainly you didn't mean to say that nobody's entitled to use the Page 97 June 6, 2001 beach. So I think we need to get beyond a strict constructionist interpretation and go with what was really intended to happen. The intent was to protect the beach. What we're proposing today is protecting the beach and the sea turtle -- the sea turtles. So I think it is consistent with the Comprehensive Plan. If there's any ambiguity that you feel you need to clarify, you certainly can clarify the ambiguity. You can find this to be consistent, and then through the next cycle, clarify any ambiguity you may think is out there. And that's not unprecedented. That occurred most recently with a PUD that involved RVs. There was a question about what exactly did the comp plan mean regarding the use of RVs. You found it to be consistent and that was the intent of the Comprehensive Plan, but you also went through and clarified the language in the Comprehensive Plan. You can do that today, and I think we all agree that what's proposed is environmentally sensitive, scientifically supported. It's form over substance, the argument. Let's go ahead and approve the provisions. And if you feel like you need to clarify some of the intent, go through that with the -- during your next -- or the current cycle. It'll be taken care of in December. We'll have the regulations that make sense in place, and that's what we would propose you do, that you adopt the regulations with the revisions suggested by Mr. Grabinski. And if you need to -- if you feel you need to amend the Comprehensive Plan, the county attorney can go ahead and draft those amendments to clarify the Comprehensive Plan. But I would submit that let's not lose well-drafted regulations because of a technicality, if there is even one -- if there's a technicality, which I don't think exists. CHAIRMAN CARTER: Okay. Next speaker, please. Page 98 June 6, 2001 MR. OLLIFF: Mr. Chairman, I'm going to go ahead and just call the balance of the speakers. If they want to waive, let them just notify us that they're going to waive. The next speaker will be Dick Lydon followed by Ron Albeit. MR. ALBEIT: I'll waive. MR. OLLIFF: Following Mr. Albeit will be Ilene Barnett. MR. LYDON: For the record, I'm Dick Lydon, speaking as a fellow that spent most of his life in the meeting planning business. And as a meeting planner, if I were sitting in this room tonight and thinking about running a convention between May and October of next year on the beach at Vanderbilt, I would have some real serious thoughts about it. Let's look at what the economic impact of this whole thing is. Here's Mr. Staros with a hotel on the beach, another one that's just being finished over at Tiburon. If I bring a group to Vanderbilt or to Naples, I want a beach party. I don't care whether it's in July or November. We have to protect our cash cow, ladies and gentlemen. And you heard me when we were talking about the I cent on tourist tax, talking about the cash cow and the $9 million a year that that cash cow produces to keep our beaches, our passes, and all those other good things which are going on. The major thrust of the money that we spend as a result of that cash cow in advertising and promotion of tourism in this town is devoted towards the tourism in between May and October, exactly the time when you're saying, "Hey, you can't run a beach party because you can't get the stuff on the beach to run the beach party with." Let's use a little common sense in this whole thing and not quit feeding that cash cow that you-all can figure out more ways to spend than I can figure out how to get. Thank you. CHAIRMAN CARTER: Thankyou. Page 99 June 6, 2001 MR. OLLIFF: Next speaker is Ilene Barnett followed by Herb Savage. MS. BARNETT: Good evening, Commissioners. Thank you very much for your understanding of this issue. My name is Ilene Barnett. I'm the environmental sciences director at Vanasse & Daylor, and I've been retained by The Registry Resort for the last year and a half or so to get through these issues. And you've called it completely right. I appreciate Commissioner Henning's comment about being a visual person in one of the last presentations. I am too. This is my Exhibit 1: People, 12 PSI everywhere; ATVs, 10 PSI, limited to a 3-foot-wide corridor. I don't know if you want this. COMMISSIONER MAC'KIE: Yeah. I think you ought to submit it. MS. BARNETT: When you charged us last cycle to get together with county staff and the environmental community to work out protective measures so that the hotels could use ATVs on the beach during sea turtle season, I thought we were in for an easy time because I knew that we were going to have protective measures that would not compromise the endangered species at all, but allow the hotels to work and operate in a more efficient manner, actually having less compaction impact with the limited ATV use versus having people running around up and down, and getting the furniture off the beach in a more timely manner. I really thought, mistakenly, that it was a no-brainer. I have just a few points. I hope I can make the five minutes. But the comp plan amendment, as you know, came up at the 11.5 hour. It's very disappointing, but these things happen. Looking beyond the policy to the objective, Objective 10.4, which is what the following policies were meant to support, the Objective 10.4 says, (as read): "Developed coastal barriers and developed shorelines" -- which this refers to -- "shall be continued to be Page 100 June 6, 2001 restored and then maintained when appropriate by establishing mechanisms or projects which limit the effects of development and which help in the restoration of the natural functions of coastal barriers and affected beaches and dunes." This proposed language will not impact the natural functions of the coastal barriers and dunes. As a matter of fact, it will actually help get the operational situation there better for sea turtles and more efficient for business. So the policy that deals with the vehicular traffic or traffic was written to support the natural functions of the coastal beaches. So I'm not a lawyer and I don't play one on TV, but it looks like the objective that is the cause of all this is still intact if you allow this ordinance to go through or LDC amendment to go through. You heard some comments about code enforcement. The turtle monitors are out there every morning, and they're able to monitor and pass the information along to code enforcement. That was one of the main issues in our workshops that we had conducted over the last several months. As far as an undetected nest, I'm not sure what the difference is, if you have an undetected nest, if an ATV running down the beach in a limited corridor would have versus people running around playing volleyball, playing Frisbee, putting their blankets down. I understand that beach raking above the mean high water line before the turtle monitor comes along could erase the tracks but that's not what we're talking about for the majority of this issue. You've heard reference to Florida Statute 161, a law that DEP implements. That law is to protect coastal barriers from erosion, and they have a law in there that talks about vehicular traffic that was clearly meant to protect the beach from erosion due to automobile traffic. And we had already got an opinion from the DEP attorneys. That subject just keeps coming up, and we're not Page 101 June 6, 2001 sure why that keeps coming up, but it doesn't seem to support the intent of Florida Statute 161 at all. The same with the Endangered Species Act. That topic keeps coming up. A take is when an endangered or threatened species is killed, disturbed, molested, their habitat is disturbed. This proposed language is not going to harm the sea turtles. A violation of it may harm the sea turtles, but I don't see how that would be a violation by the county of the Endangered Species Act. If you have an environmentally sensitive law -- I knew I wasn't going to make it -- environmentally sensitive law and somebody violates it, I don't -- it doesn't make sense that the federal government would come after you. That's it. Thank you very much. CHAIRMAN CARTER: Thank you very much. MR. OLLIFF: The next speaker is Herb Savage followed by the last registered speaker, Jerry Thirion, who has waived. MR. SAVAGE: Good morning, Mr. Chairman. COMMISSIONER MAC'KIE.' Morning? MR. SAVAGE: Yes. I feel like I've been here all night. I want to compliment you all for your patience to listen to all of this, and thank you to this magnificent staff you have because they're going to be able to present to you the proper way to handle this, and I know you will accept it. Thirty years ago this coming December we opened a hotel on Marco Island called the Marco Beach Hotel, now called the Marriott. I say we; Deltona Corporation did. And I trust that you will not find one instance where somebody voluntarily damaged any turtle nests along that beach. And I also asked today somebody in the meeting that I was in all day practically, how many miles do we have of coastline in the State of Florida? Does anyone know here? About 14 to 1500 miles we talked about. 1400 to 1500 miles, and there are turtle nests all along those Page 102 June 6, 2001 coasts. COMMISSIONER MAC'KIE: And they need -- MR. SAVAGE: Ma'am? COMMISSIONER MAC'KIE: They need that room. MR. SAVAGE: That need that room. And I asked the question today in front of the hotel, "How many feet do you own on the beach?" They said, "800 feet." "Well, how many turtle nests did you find on that beach last year?" And I think the word was, "Three." And there was one instance -- one this year. In 800 feet, one turtle nest this year. COMMISSIONER MAC'KIE: So far. MR. SAVAGE: So far, absolutely. Last year totaled three. And you wonder all the money that you've spent and time considering this -- and it's very important. I'm as much as an environmentalist as any of them. How much money we're spending in talking about something that could be handled very simply. And I think, Colonel, you mentioned it earlier -- pardon me, Commissioner -- that -- COMMISSIONER HENNING: We've been called worse. CHAIRMAN CARTER: I got to tell you, he's got a new name. MR. SAVAGE: It's important that we have the vehicles taking care of the maintaining of the beach and maintaining of the towels and the chairs. I was at the Marriott recently at Quinn's, and they had a turtle. They were displaying it to the people at sundown, which they do, and that's very nice, and they bring different things down there. And this turtle was walking towards this chair, and do you know what happened to it? It bumped into a chair. And do you know what it did? It turned and walked about 3 or 4 feet beyond and went on its route. My point to you, we're making such a big issue of all this. It's important to take care of it, but let's be fair to the cash cow, as it was called earlier, of this area. It's a magnificent resort area. Page103 June 6, 2001 And let's don't forget there's also a species around here that have two legs, and I'm saying we're getting so perfect in our world, we're having nothing but a finger to push buttons, you see. Somebody said to me there's going to be a cartoon pretty soon with a finger with two legs. You just need two legs to get around and a button (sic} to push things that get to be done. We have to do it. And I just ask you to consider that when you make your judgment on this, Mr. Chairman. I appreciate very much your time. CHAIRMAN CARTER: Herb, thank you. I find that -- I've heard a lot of trained acts. The trained sea turtle act is one that I will remember. And, also, from now on, Commissioner Henning, you will be known as the Colonel. COMMISSIONER COLETTA: Congratulations on your promotion. COMMISSIONER HENNING: Thank you. COMMISSIONER MAC'KIE: And he didn't say it was a sea turtle, and we just have to hope and pray it was not. COMMISSIONER HENNING: I have a question for-- COMMISSIONER MAC'KIE: Yeah. I do too. COMMISSIONER HENNING: -- history of how this got in the Growth Management Plan, if it was during the conception, or was it brought before -- it was an ordinance before Growth Management Plan? No. We had a Comprehensive Plan long before that. MR. OLLIFF: Yep, you did. MR. LORENZ: For the record, Bill Lorenz, natural resources director. What I recall is the ord -- we had an ordinance prior to the Growth Management Plan when the Growth Management Plan was adopted in '89. I believe that the '89 plan referred to the vehicle on the beach ordinance that was in effect prior to the '89 plan. Page 104 June 6, 2001 COMMISSIONER HENNING: Okay. COMMISSIONER MAC'KIE: And that -- COMMISSIONER HENNING: The reason I bring that up -- and I remember back '73, '74, there was a lot of kids going on the beach with their Jeeps, and that's why the -- it was enacted for that reason. COMMISSIONER MAC'KIE: He was one of them. He did that. CHAIRMAN CARTER: Chased by the turtle. COMMISSIONER HENNING: If it was a carryforward from that, I must have to tend to agree with what Rich has said. It is, you know, about vehicle traffic and not ATVs. COMMISSIONER MAC'KIE: And if I could tag on to that. COMMISSIONER HENNING: Sure. COMMISSIONER MAC'KIE: My question is so simple it must be wrong, because somebody would have thought of this already. It says, "The county shall enforce this requirement with the existing vehicle on the beach ordinance." It doesn't say that that ordinance can never be amended. So shouldn't we be amending the ordinance to clarify what we mean, what are the exceptions, and then we don't have a comp plan problem? Isn't that -- COMMISSIONER HENNING: The meaning of it, yes. COMMISSIONER MAC'KIE: Isn't that -- it must be -- because it's too obvious to be -- CHAIRMAN CARTER: Counselors, address that. MR. WHITE: Again, Patrick White, assistant county attorney. Thank you, Commissioner Mac'Kie, for the opportunity. This is an ordinance that has been around, to the best of my determination, since, Commissioner Henning has indicated, in the early '70s. What I believe the policy says in that second sentence in the concluding phrase "existing ordinance" is as it existed when it was adopted in 1989. And part of the reason we believe it's necessary to amend Page 105 June 6, 2001 the Comprehensive Plan in order to allow certain parts of the proposed amendments to go forward is because that existing or then-existing ordinance stated what vehicles are, and they included pretty much if you put wheels on me, I'd be a vehicle. But that's just our interpretation and -- COMMISSIONER MAC'KIE: But that's just -- I mean, and I appreciate that that is one. But I can't buy that that settles the issue, frankly, because the more I think about this, I -- we -- for example, our comp plan refers to the ground well water -- ground well monitoring ordinance, which we amend, and it becomes a part of -- you know, it becomes the one that's referred to. Why can't we do that with this one? MR. WEIGEL.' What Patrick's talking about is the Growth Management Plan objective that you're talking about here specifically says this ordinance as opposed to general. But I think the solution is before you, and you've created a very fine record tonight, you and the speakers before you. We've talked about what appears to be a potential ambiguity in the Growth Management Code -- Growth Management Plan provision. Yes, potential ambiguity. It's a little difficult for me to know exactly what it means because we're a bit removed from the history of that Growth Management Plan provision, and we're also significantly removed at this point in time from the vehicle on the beach ordinance. But we do know historically and we know our county manager in his prior life and others -- and I've heard this, too, from old-timers in Naples -- that they drove their vehicles on the beach, some of them even skied using the vehicle running along the surf. So I think we've got significant ambiguity here in a sense that, one, yes, you could direct us to amend our vehicle on the beach ordinance. Happy to do that and bring it back. Also, I think, just as Mr. Cuyler used to say, in an overabundance of caution. I Page 106 June 6, 2001 don't think it's an overabundance, just cautiously. I think you can tell us to come back with a clarification of the Growth Management Plan provision that we're talking about here, not because we don't think we know what it means now, but because we want to make it clear to the world what we believe it means now, and that you can go forward with any recommendation you wish in regard to the provisions that are before you this evening. COMMISSIONER MAC'KIE: Well, we clarify things all the time. CHAIRMAN CARTER: Right. Going on that basis, let's say that -- can we get that clarified by the next LDC meeting? I mean, can we get the -- do whatever we have to do? Can we move that so that providing we can accomplish all of the above -- and you can check out with legal counsel in Tallahassee if you're on the right track. Can we not, then, look at everything else that's proposed? And if we assume that Policy 10.4, 10.10 is not going to put us in trouble by what we do here, can we get an agreement tonight from the commissioners that say, is there anything you disagree with? Anything you want to change? And let's say at the end of -- and by the next meeting, if you've done all this work, then it's just a question of when you're going to implement it. COMMISSIONER MAC'KIE: May I summarize what my recommendation would be? My recommendation would be that the county commission direct staff to amend the ordinance, the vehicle on the beach ordinance, to include a description -- a definition of traffic that excludes the traffic permitted by section -- whatever this ends up being -- and bring that back. I even think maybe bring it back in this cycle, but you guys will tell me if I can or can't do that. MR. WEIGEL: We can't bring that back, you know, with the Page 107 June 6, 2001 advertisement requirement. That would come back in a normal daily board meeting, one of your day meetings. COMMISSIONER MAC'KIE: So pending that change, you know, we may -- we have already made the record here tonight that we don't think it was intended to mean pedestrian traffic. We don't think it was intended to mean, you know -- anyway, a lot of other things. MR. WEIGEL: Absolutely. COMMISSIONER MAC'KIE: And then my recommendation would be that we adopt the changes that were proposed with the -- with the penalties being amended to say 1,000, 2500, 5,000, and ask staff to investigate and draft a penalty for flagrant violations that, after hearing, could result in a revocation of the permit. COMMISSIONER HENNING.' Through code enforcement they could probably do that. CHAIRMAN CARTER: I see Michelle shaking her head in the affirmative. COMMISSIONER COLETTA: Who pays for the code enforcement inspections every day? Is that -- that is paid by the hoteliers? We're paying for it out of our own funds? CHAIRMAN CARTER: It's like every code enforcement process. It's paid out of general revenue to -- to perform the function, no matter what you're trying to enforce. COMMISSIONER COLETTA: We're giving them a service. How about the permit fees? Do they cover it? I'm just curious -- I'm just tracing the money. COMMISSIONER MAC'KIE: That's a good idea. The fee for the permit ought to be enough to factor in the potential cost of code enforcement. COMMISSIONER COLETTA: That's what I was thinking. It only makes sense. Page108 June 6, 2001 MS. ARNOLD: For the record, Michelle Arnold. With the annual beach event permit, there is a fee that is associated with that, and the majority of the uses that they're asking for the vehicle on the beach is to accommodate those events. So, you know, we are collecting some fees for -- COMMISSIONER COLETTA: Are they adequate to cover what we're doing? COMMISSIONER HENNING: That's another issue. MR. OLLIFF: We can take a look at that. COMMISSIONER FIALA.' I still want to ask one question. I think that's a great compromise that you've put together, Pam, and your green is showing. On the other hand, I wanted to ask, what do the hotels do right now with -- with the Growth Management Plan as it is, and what have they done since 19897 How did they get their things on and off the beach? MS. ARNOLD: Currently-- COMMISSIONER MAC'KIE.' Can I just beg that we don't get into that? MS. ARNOLD: Currently they're just removing it manually, and with the modifications they would have a more expedient way to remove it. COMMISSIONER MAC'KIE: He just gave us a copy of a permit, and they're going to argue, then, about who got the permit, what it was for. It's just not relevant. MR. YOVANOVICH: No. We're not arguing. We -- I'm just telling you, we've been doing it with ATVs. That was the question, how we've been doing it. We've been doing it with ATVs. COMMISSIONER FIALA: That's what I was -- CHAIRMAN CARTER: Mr. Oliff. MR. OLLIFF: And to clarify as part of all of that, I'm assuming that that includes raking above the mean high water Page109 June 6, 2001 line would be a yes after the -- COMMISSIONER MAC'KIE: Inspection in the morning. MR. OLLIFF: Raking below the mean high water line obviously is yes. It's allowed today. Handcarts would be yes after the monitoring as well. And then you're making a finding -- you're making an interpretation of what this policy within the code says, but we will also bring back ordinance amendments to you that will reflect your findings. But that's also the opportunity for you to look at the fee schedule associated with vehicle on the beach permits, and that's during a regular board meeting. MR. WEIGEL: In fact, Tom, Marjorie reminds me that the ATV ordinance is part of the code as opposed to a separate one, so it may need to come back in the evening meetings which, again, you do in your next September cycle. But I'm talking -- COMMISSIONER MAC'KIE: Because meanwhile -- MR. WEIGEL: -- in terms of just -- I'm talking just in terms of housekeeping at that point, to bring it back. And I'd like to even have the prerogative to do a little tweaking clarification of the Growth Management Plan provision also so it's clear to all and we won't have anyone from any sector coming back and challenging what we have discussed tonight, both historically as well as practically. CHAIRMAN CARTER: All right. Members of the board, can we have three nods that says we'll go forward on that basis? COMMISSIONER MAC'KIE: Nod. COMMISSIONER HENNING: I'd just like to see The Ritz's room, 500 square feet, compared with the other one. Just kidding. COMMISSIONER MAC'KIE: Mr. Chairman -- CHAIRMAN CARTER: What a rascal you are, Colonel. All right. COMMISSIONER MAC'KIE: Mr. Chairman, there's two pizzas Page 110 June 6, 2001 in the county commission office that are available to anybody as long as they last, if you wanted to call a break. CHAIRMAN CARTER: How you doing, Magic Fingers? MR. OLLIFF: And we'll take that as unanimous direction since I saw no nods the other way. CHAIRMAN CARTER: All right. Thank you. MS. MURRAY: Susan Murray for the record. We still have two sea turtle issues to go through. MR. OLLIFF: I don't think so. MS. MURRAY: Are we -- CHAIRMAN CARTER: We have taken care of the sea turtles. MS. MURRAY: Okay. Thank you. CHAIRMAN CARTER: All right. We are to the next -- MS. MURRAY: Hearing examiner now. CHAIRMAN CARTER: Hearing examiner? Then we got to take ten before we get into that. And let's make it quick, folks. (A break was held.) CHAIRMAN CARTER: We're live. Welcome back. The next subject will be hearing officer. Members of the board, we have all been briefed, and what I would suggest, we have, what, seven MR. OLLIFF: Yes, sir. CHAIRMAN CARTER: -- seven people who would like to address the issue. I think we need to hear that. And then John Dunnuck is going to come back and do his presentation summary and, in that, address some of the issues that may be brought up by the public. So I think that would probably cover all the bases and make everybody feel reasonably comfortable. So let's go to public comment on hearing officer. MR. OLLIFF: The first registered speaker is Janet Vasey followed by William Kerrigan. MS. VASEY: Good night. Janet Vasey for the record. I'm Page 111 June 6, 2001 sorry to be speaking to you right after dinner. I know how tired people get. CHAIRMAN CARTER: That pizza's wonderful. With the indigestion I'm feeling from that, I'll probably be awake for a long time. Thank you. MS. VASEY: Well, good for me, then. I'm here tonight representing the Collier County Republican Executive Committee, and at our executive committee meeting on Monday night, we adopted a resolution that calls for disapproval of the hearing examiner and establishment of a citizen advocate. Most people agree that the current development review process is broken, but there are many ways to fix a broken problem (sic), and the hearing examiner way is really not the answer. First of all, it reduces the ability of the general public to influence development decisions and nearly eliminates public access to you during BCC meetings on major development issues. Currently the general public can address you in county commission meetings on any land use or zoning change. They may or may not decide to appear before the Planning Commission, but they can always bring their concerns to you 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. 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 you at very many BCC meetings that discuss development issues. Imagine the consternation when people show up at a county commission meeting advertised to decide the fate of a major new development and -- only to discover that they cannot address you, their elected officials. This situation occurs in Lee County Page 112 June 6, 2001 under their hearing examiner program. Second, the hearing examiner program forces discussion out of the sunshine of public commission meetings. Since citizen input will rarely occur at a county commission meeting, it will be forced out of public meetings and into the realm of ex parte communications conducted in private with you prior to BCC meetings. Since you cannot use these communications with the public in your decision-making -- you have to attest to that -- then members of the general public really have no meaningful input to you, their commissioners, at all. This program takes the real decision-making authority out of your hands, when we elected you to make these important decisions. You will have the final approval on major rezones, but once the hearing examiner makes a recommendation and states that the project meets the Land Development Code and the Growth Management Plan, what else is there for you to say? How can you require a change even if it's in the public interest? You are basically stuck with the recommendation of the hearing examiner. He or she operates under a quasi-judicial system and hears testimony and applies the law to see if the project is consistent with the Growth Management Plan. Then the hearing examiner makes findings of fact and conclusions of law, and then you operate like an appellate court. Unless the hearing examiner has made an error or there is new evidence, you really have nothing to consider. In the final analysis, it comes down to public access and who really makes the decision. You should want to make these important decisions on growth-related issues rather than allow a hearing examiner to make them, because I would trust five people to reach a fair decision before I would put my confidence in one. And public participation should be encouraged rather than controlled to near extinction. Page 113 June 6, 2001 Instead of the hearing examiner program, we think the process needs a citizen advocate program to provide a level playing field for the general public during the development review process. A citizen advocate program would provide the general public with an advocate who knows the law and the development review process, and it would provide you with an alternative to the well-articulated position of developers. Specifically, the citizen advocate would receive notice of all major developments, attend the developer's citizen meetings required under the proposed citizen participation plan to determine areas of public concern, work with neighborhood organizations to help identify potential solutions that are supported by the LDC and the Growth Management Plan, negotiate with developers in advance of hearings, and then appear before the Planning Commission and the BCC giving you a clear alternative to developer requests. The citizen advocate -- I've got just a little bit more. The citizen advocate should be an attorney with an office and a staff, and the program should be funded using development fees, not property tax, since the program is required as a consequence of growth and new development in Collier County. At the meeting on Monday, our Republican committee executive board members were quite impassioned in their conviction that the general public has little chance against developer attorneys. They felt strongly that the citizen advocate program would actually provide you with legal, defensible arguments to support public concerns and would help you find a legal basis to support a decision that you feel is in the best interest of the public without subjecting you and taxpayers to an expensive lawsuit. In conclusion, the Republican executive committee asks you Page 114 June 6, 2001 to disapprove the hearing examiner program and approve the Thank you. And I would welcome any citizen advocate program. questions. CHAIRMAN CARTER: please. MR. OLLIFF: by Nicole Ryan. I think hearing none, the next speaker, The next speaker is William Kerrigan followed MR. KERRIGAN: I'm William Kerrigan. I live in Poinciana Village. I'm also the treasurer of the property owners' associations in North Collier County, and I believe you've all gotten our letter, so I won't -- I believe you all read it too. So that said, I'd like to just give my concerns. I think if we were going to teach a class in Political Science 101 for Collier County, I think you could easily say that for the most part people are reactive; they're not active. The Naples City Council, their charter, operates that way. They have two votes. The first vote's to generally tell the public this is what we're going to do. Well, then you hear it. You can be at that second meeting that counts, and you can voice your concerns. With this hearing examiner, if you're not at the first meeting with the hearing examiner and there's an appeal here, you have no standing. That just shouldn't happen. I know people feel that this works well in Lee County. Well, if it works so well in Lee County, why recently do we have two new cities, Fort Myers Beach and Bonita? One of the ma]or issues that caused their formation was they didn't like the Lee County zoning process. They wanted out from under it and got local control. The hearing examiner didn't help anything there. So I also think we're going a little too fast on this, as the property owners have said. I mean, we asked the county attorney not long ago for information, said we don't have any. The legislature acted, and this thing was shot out of a cannon. Page 115 June 6, 2001 We'd like to help educate the public about it. There's pros and cons. I've heard one version of this from Commissioner Carter; I've gotten another one from Commissioner Mac'Kie. One's more intensive; one's less. So, you know, I think, as Janice just said, a citizen's advocate would be another alternative to this, to the process. So, you know, I just hope we keep an open mind, and I hope we just don't rush into this. I think we're going too fast. CHAIRMAN CARTER: Thank you, sir. I appreciate your input. And yes, I've read your letter. I've read all the proposals, and I have met with Janet Vasey also. Next speaker, please. MR. OLLIFF: The next speaker is Nicole Ryan. And is Herb Savage still here? COMMISSIONER MAC'KIE: Oh, darn. MR. OLLIFF: We lost the colorful Mr. Savage. Nick Hale would be your next speaker. COMMISSIONER FIALA: He's gone too. MR. OLLIFF: Go ahead, Nicole. Bob Mulhere will be your next speaker. MS. RYAN: Good evening. Again, for the record, Nicole Ryan here on behalf of The Conservancy, and The Conservancy does support the concept of a hearing examiner for Collier County. We think that a hearing examiner would be good. It would help to streamline the decision-making process for issues such as variances, conditional uses, some rezonings, so that could be very helpful. We also like the fact that there would be a lack of ex parte communication with the hearing examiner, and this way everything will be out in the open and on the record, hopefully, and this is also a good thing. We do have several concerns, the biggest one being the lack of public participation or citizen input. This could be a big Page116 June 6, 2001 concern if someone doesn't know about the hearing examiner hearing and a decision is made and then they see it in the paper the next day, they are shut out of giving comments on that issue. This could be remedied in a number of ways. Just a couple examples would be allowing people to comment at county commission when the hearing examiner hearing decision is being discussed by you as a board, letting that person comment even if they didn't comment at the hearing examiner hearing. Another idea could be having two hearing examiner hearings so that if it was a very controversial issue and someone, because they didn't see the public notice or they weren't considered to be an affected party because they didn't live close enough or whatever, they could comment at the second hearing examiner hearing. So that could help in that way. Another minor concern is that in the language in front of you -- and I know that as you move forward, that language can be modified and tweaked, but we do have somewhat of a concern because county staff will be giving the hearing examiner their staff recommendations, and we know that at the board level, staff recommendations are very helpful. But a hearing examiner is supposed to be completely fair and impartial, and we're just concerned -- we don't want staff's recommendations to unduly influence the hearing examiner, so that's something to keep in mind as you move forward. And we also think that as this process moves forward, more research needs to be done. What other counties use a hearing examiner program? We've heard a lot about Lee County. Where else is it used around Florida, around the country? What works? What doesn't? What's good? What's bad? It's better to take this process slowly now than to create a program that's just going to have headaches in the future. But we do support the idea of a hearing examiner, and that's it. Page 117 June 6, 2001 Thank you. CHAIRMAN CARTER: Okay. Thank you very much, Nicole. Appreciate that. Next speaker is Mulhere. MR. OLLIFF: Bob Mulhere followed by Nancy Payton. MR. MULHERE: Thank you. I'm representing myself here. Bob Mulhere, for the record. The hearing examiner program in no way reduces the opportunity for public input. When you couple it with the recommendations that the staff is bringing forward for enhancing public involvement, that is even further driven home. One of the things that I think will be very important -- I do agree that it's extremely important to have notification and to have people involved in the process. The same thing certainly can happen right now. People can be unaware of a board meeting. People can be unaware of a Planning Commission meeting. What we have to do is reach out to a larger degree, make sure that people are notified. And that's what those public input enhancements are intended to do that the staff is bringing forward. When you sit in review of a quasi-judicial land use petition, you are making your decision based on the laws that are in existence. You can't make policy while you're sitting looking at a site-specific rezone or a site-specific land use petition. And you're put in that position very often where people would like for you to make policy decisions, but legally you cannot do that. If the applicant demonstrates through competent substantial evidence that they meet the warrants for approval and there is no competent substantial evidence put on the record to refute that, then the burden shifts to you as the trier of fact to develop some evidence or some competent substantial evidence or some reason why legally you cannot approve that petition. And to have an independent hearing examiner look at these types of applications and bring forward to you a comprehensive Page118 June 6, 2001 recommendation based upon legal fact and conclusions of law would be extremely helpful to you. The biggest benefit would be that you would have the kind of time and opportunity to engage your public advisory committees and the public at large in the policy-making process which, as we can see time and time again, is the root of the problems here. If we spend more time looking at the policies, we're going to have less site-specific activities that cause us consternation. And this process will allow you the opportunity to focus more on the policy-making process, and that really is one of your primary functions. Thank you. CHAIRMAN CARTER: Commissioner Fiala has a question for you, Mr. Mulhere. COMMISSIONER FIALA: Well, one of the things that I've -- one of the concerns that I have with this particular item is -- you were saying that this hearing officer -- or hearing -- hearing examiner -- thank you. It's late, isn't it? -- would then be able to adhere to the law and he'd know all the laws. And, quite frankly, you know, when I came on board -- I'm only six months old as it is. I don't know all of the laws. But the little bit that I do know tells me that there's a lot of revision that needs to take place on the Land Development Code and on the Growth Management Plan. And right now that hearing examiner's hands would be tied because he would have to adhere to the -- the current LDC and GMP. And I think that maybe -- just as Nicole Ryan said, maybe it's a little early -- and I think Janet Vasey similarly said that. It may be a little early. Maybe we ought to first put the cart -- I mean, the horse before the cart and get our house in order, our LDC in order, our GMP in order, and then hire a hearing examiner. MR. MULHERE: I don't disagree with that. The only -- if you Page119 June 6, 2001 look at the flip side of that, then you will have -- you will have those petitions coming through one way or the other under the current scenario unless you adopt a moratorium. COMMISSIONER FIALA: But now it's our interpretation. One of the things that I liked so much about -- oh, I'm sorry if I -- can I still talk? Like, for instance, Goodland. Goodland was our very first night. I mean, we were -- we were 12 hours old when Goodland came up, and that was a very important subject to me, and it was strictly interpretation. Staff felt that -- COMMISSIONER HENNING: Commissioner Fiala, that is -- MS. STUDENT: That's in litigation and -- COMMISSIONER FIALA: I see. Okay. I had one interpretation and others had another interpretation. So I feel that sometimes the laws as they stand are interpretation, and I -- I like the idea of all of us being able to interpret, rather than just one person. MR. MULHERE: And I understand what you're saying, and the only additional comment that I can make is, you know, the Land Development Code has been amended over time in many different ways through the years. But it's been 12 years since that was comprehensively reviewed and adopted, and there are a lot of things -- frankly, I tend to agree with you that comprehensively there needs to be a review of the Land Development Code. I hate to raise that issue, but to me it is a legitimate issue. But to do that, it's going to take some time, I agree with you, six months, a year, I don't know. And those -- and that process -- to engage the public and other stake holder groups in that process would be very critical. And, again, that's the whole idea behind this process, would be to allow you the opportunity and the time to be able to look at those policy decisions in a much more deliberate manner. And, of course, the way we've Page 120 June 6, 2001 structured the hearing examiner, there really -- you still -- on the major land use petitions at this point, would still have the final decision-making authority. And, by the way, it places a responsibility on everyone to be prepared. The developer or the applicant, the public does have a responsibility to be prepared because, frankly, the fact that the room may be filled with 500 people who are opposed to a petition has absolutely no bearing legally on whether that petition should be approved or not. I hate to say it, but that is the law. COMMISSIONER MAC'KIE: Okay. You got your five minutes. Come on. COMMISSIONER COLETTA: I have a question for him. CHAIRMAN CARTER: We could ask him questions here, and we have one more public input, and you might note some of these. COMMISSIONER MAC'KIE: It's your question, Bob. COMMISSIONER COLETTA: May I? CHAIRMAN CARTER: Commissioner Mac'Kie, you got in line here. COMMISSIONER MAC'KIE: I didn't have a question. I was just -- COMMISSIONER COLETTA: I do have a question. Bob, tell me, you've had a lot of experience in county government for a long time. What do you think about a citizen advocate or an omnibusman (sic) to move this forward? That sounded like an excellent idea. MR. MULHERE: We talked about that while I worked for the county, and I think that having a citizen advocate is a very good idea. I would caution you, though, I don't think an attorney is the appropriate person to be a citizen advocate because an attorney, their testimony here is not competent substantial evidence. They're an advocate. You may find their information to be very Page 121 June 6, 2001 useful, but competent substantial evidence to refute the other competent substantial evidence will be necessary, and the citizens will still need to develop and have experts come forward in quasi-judicial land use petitions. That is the way the law reads. So, I mean, you have a staff whose job it is to be impartial, and this will provide them an opportunity -- a greater opportunity to review these applications and make their findings to the hearing examiner who will make an impartial decision. The staff's job really is to be advocates for the community. Now, if you want to think about another position or a position who particularly focuses on meeting with neighborhood groups, I think that's a great idea. CHAIRMAN CARTER: Okay. Let's go to the last speaker, and then Mr. Dunnuck is going to address some of these issues. And any questions the commissioners have along that area might be incorporated in his presentation. MR. OLLIFF: You actually have two speakers left, Mr. Chairman. The first is Nancy Payton followed by Bruce Anderson. CHAIRMAN CARTER: Thank you. Ms. Payton. MS. PAYTON: Nancy Payton representing the Florida Wildlife Federation, and I'm here to support the hearing examiner program and the accompanying public participation plan. They got to go together. And together I think they'll get us what we need, which is professional, knowledgeable, unbiased, nonpolitical, and steady implementation of policy. What we're looking for is an impartial fact finder, and we've been looking for that person for seven years. By having a hearing examiner, it'll allow you, the Planning Commission, and the EAC to deal with those lingering comp plan/LDC issues and those ones that are looming, such as we have those nature policies that still need to be drafted and Page 122 June 6, 2001 implemented after 12 years. And we have the community character plan and some smart growth initiatives hopefully coming forward. And I remind you that, as I understand it, the Planning Commission and the EAC both supported the concept of the hearing examiner program. I think that's an important point because that's a citizen committee that wants to give up that quasi-judicial responsibility and concentrate on policy, which is very important, and we haven't concentrated enough on it in this county. The public participation plan has to have the highest degree of public involvement in its design, and once it is implemented, we recommend an ombudsman to make sure that it's properly undertaken, that there's one person or two or some division, some group -- I forget what the proper term is under the county, but there is this department that they can go to, that the public can go to, and find out about the comp plan and find out about the process. But also, they're responsible for letting neighborhoods know when things are going to change, and we think that this plan, as it's developed and when it's implemented, will result in greater public involvement. It will result in a more educated and engaged public. We think it can work, and we're going to work hard with staff to make sure that it does. Also, we recommend and support a citizen committee to establish criteria for the hearing examiner, and that includes recommending, interviewing, evaluating candidates, making a recommendation, and also making proposals for rules on how the hearing examiner operates, such as those hearings are going to be at night and they're going to be time certain and various other processes. In summary, we approve the hearing examiner program and Page 123 June 6, 2001 urge you to adopt it, but you don't have to do it with an implementation date. You can wait and have, as part two of your recommendation, to instruct staff to move ahead with the public participation plan and the criteria for selecting the hearing examiner with great intense public involvement so everybody buys in. They're involved. They know ahead of time what is going to happen. And when it's all said and done, we have all those plans and procedures and criteria in place. Staff returns to you, hopefully, with great public support, and then the hearing examiner program is established with a date that the person takes the seat. That's it. CHAIRMAN CARTER: I thank you very much. MS. PAYTON: You're welcome. CHAIRMAN CARTER: I value your comments, as always. You know, you used the term, and so correctly, it is a concept that you approve in this cycle, and it's a blank sheet in terms of how you develop the criteria. And it doesn't mean if we adopt this as a board, that tomorrow morning you've got a hearing officer. This is months and months away. But you have to start somewhere with a conceptual framework, and thank you for articulating that well. MS. PAYTON: That's right. doesn't work. Thank you. CHAIRMAN CARTER: Okay. Because what we've got now Mr. Anderson. MR. ANDERSON: Good evening again, Mr. Chairman, Commissioners. Tonight for the first time and perhaps not the last time, I rise to agree with the statements of the Florida Wildlife Federation. (Applause.} COMMISSIONER COLETTA: They said this day would never come, Page 124 June 6, 2001 MR. ANDERSON: You better say your prayers. The world may be coming to an end. What do opponents of a hearing examiner have to fear from an objective, fact-based recommendation made to the commission by a person experienced in environmental and land use law? A recommendation by a person with such knowledge would be invaluable assistance to you all in wrestling with the very complex environmental and land use issues that you're going to be facing in the future. And, again, it's not an abdication of your power or your responsibility of a commission as elected commissioners to adopt a hearing officer concept because all they're making to you are recommendations. It's not like you're handing over the reins of power to them. You have to deal with so many, many issues as a county commissioner, a hearing examiner would be able to concentrate solely on environmental and land use issues and give you the benefit of their knowledge and having, you know, conducted a fact-based, lengthy hearing. I would urge you to approve the ordinance that is before you and ask staff to bring back to you the implementation strategy in the fall at the same time as they bring back to you the public participation ordinance provisions, and then at that time you can all vote it up or down one final time. Thank you. COMMISSIONER MAC'KIE: Mr. Chairman. CHAIRMAN CARTER: This may be a record evening in a lot of respects, but thank you very much. Ms. Mac'Kie -- Commissioner Mac'Kie. COMMISSIONER MAC'KIE: Just a couple things, that it seems to me we need to have a hearing examiner. It needs to walk before it runs. It needs to start with variances, maybe eventually conditional uses, those administrative matters that are handled by -- currently by the Planning Commission, like boat Page125 June 6, 2001 dock extensions. Then the hearing examiner needs to be hired to draft the administrative process by which it will operate, and that's when we'll work out the details on two hearings, one hearing; do we take -- do we take testimony at the appeal to the county commission or do we not? That is to be determined as we flesh out the hearing examiner. But the other, and probably the most important job of the hearing examiner, would be to shepherd us through our LDC and our Growth Management Plan for a clean sweep because before we turn it over to them at whatever date it would be, it has to have -- it has to reflect our vision. And we know that it doesn't right now on some real important issues, like the checkbook concept for concurrency, like interconnections and not -- you know, not having gated communities without interconnections, those kinds of items. We know there are many others. So I hope this board is going to go forward with the hearing examiner with a very small amount of power now, variances, maybe conditional uses, something that the Planning Commission currently spends time on. You guys, on Tuesday we have a variance for some playground equipment, I think. CHAIRMAN CARTER: Yes. I saw that in here, and I thought, you know, I really want to do that one. COMMISSIONER MAC'KIE: That's something that I'm ready today to give to a hearing examiner, and I think that is a more effective use of the county commission's time. But now I'm going too long. I wanted to try to make this short. Then I didn't like the idea of a public advocate or whatever we were calling it. CHAIRMAN CARTER: I think the term was "ombudsman." COMMISSIONER MAC'KIE: Well, I didn't like it because I was thinking, "Darn it, that's what I ran for office to be." I ran for office to be a citizen advocate. That's what I thought my ]ob was. But something occurs to me, that when we are doing zoning Page126 June 6, 2001 matters, we're quasi-judicial. We don't get to be advocates. We have to be interpreters of the law. We have to be judges. I would, therefore, very much like for there to be someone who can take that role in those quasi.judicial concept matters. And, you know, I've done some research, and here -- this is not a brand-new concept. I mean, here's the -- on the Internet here, City of Colorado Springs and how they make citizen participation more effective, how they do it. Here's another one I tried to save. I mean, there's -- anyway, there's several. There's a lot of stuff. There are a lot of communities that have -- maybe we could call it something other than a citizen advocate because I still like to think of myself as that. CHAIRMAN CARTER: Well, I think you are, Commissioner, if I may interrupt just a moment. I think that a commissioner works in concert with that public participation process, whether you call it an ombudsman or whatever it is, someone who is good at conflict resolution even initially where something is proposed, works with community groups, takes all its information, participates in the hearings. And there's a number of ways to structure it, but now we're trying to create what we think it should look like. I think tonight, if it's the nods of the board, we go forward with the conceptual approach and then work through the whole program involving everything that's been said by Ms. Payton and Mr. Anderson, along with everybody's input, so we can get there. COMMISSIONER MAC'KIE: And let me just say, I want to do two -- I want to do both. I want to have the hearing officer and the approach the way that we've all been talking about it. But I also think that it is worth examining having a community counselor, you know, whatever you want to call it. CHAIRMAN CARTER: Whatever you want to call it. COMMISSIONER MAC'KIE-' Ombudsman, but now let's focus Page 127 June 6, 2001 on -- and I hate it when Lytle raises a good issue, but he did in his editorial about independence of that -- of that office. That person can't work for Tom because then they just become staff like everybody else. So I think there's two alternatives that I can consider so far. One is that they work for David because David works for us. If they work -- if this is a person who works under the county attorney, then he's not a part of staff. He works directly for David and then for us. Or there might even be the possibility of privatizing the function, somehow granting funds to a miniagency that, you know, we only hand them over the money and audit the cash to be sure it's spent appropriately, but this civic group takes over that function. I mean, there's -- there are other options so that we could solve that problem. But I think what -- was it Nancy who said it first, that we need both? Yeah. That's what we need. CHAIRMAN CARTER: Okay. Let me -- I'm going to go to the commissioners. Then, Mr. Olliff, you have some comments. MR. OLLIFF: Given Mr. Anderson's comments earlier, I think they must be handing out parkas in Haiti down there with those two agreeing on the same day. And I'm just -- I had to jump up to the podium and participate in a day where those two are agreeing. I wanted to tell you that from my personal experience, having sat here for 17 years, I am telling you this is an important issue for us, and I will tell you that it was important enough that the previous board directed us to amend the Comprehensive Plan to allow for this to happen and allow a legislative change to go forward so that our state legislature actually provided the opportunity for us to have a hearing officer. It was that important. And the old board recognized that after having sat through the public hearings for a number of years. Page 128 June 6, 2001 I want to make sure that the board understands that the hearing officer concept as it's proposed to you today does not have all of the details that put the restrictions on that hearing officer that I -- I believe you think it does. You have the opportunity, as it moves forward, to be able to limit the responsibilities of that hearing officer and to dictate exactly the type of process that we would have for a hearing officer. And my recommendation to you would be, just as Commissioner Mac'Kie stated, that you begin with very limited responsibilities for the hearing officers, variances and boat-dock-type extensions only. Secondly, I would suggest to you that we do have some sort of a two-hearing process for the hearing officer when we get to that point because I think the public comments that oftentimes the public's not aware of what's happening until that first hearing are a very good and valid comment. And if we had a two-step hearing process with the hearing examiner, then you've got an opportunity for the public to hear it the first time, know and understand what the process is, and then come back and speak at a hearing officer hearing the second time. And, lastly, I absolutely agree that we should not implement any type of a hearing officer concept without having the public participation plan in place concurrently with that. And I think with a public participation plan, there will actually be more opportunities for the public, and there will be more effort on the part of the county to make sure that the communities involved and affected will be notified and will be able to participate than there are in the process today. And I keep saying, people in this community are not satisfied with the development review process that we have. And if we think that they're going to get satisfied if we continue doing the same thing over and over, we're kidding ourselves, and we need to do something different. And my suggestion to you is, and I've Page 129 June 6, 2001 told you from the very beginning, this board needs to set its eyes and its sights on policy issues. You need to change the rules of the game if you want to change how the development review process works here, and that's where this board needs to function and where this board needs to spend its time. If you don't like the RT zoning district the way it's currently written, then we need to spend time looking at the RT zoning district as a policy. And I promise you that with the amount of public participation and interest that there is in these type issues today, when we put together a schedule for you to start looking at these policies on a regular scheduled basis, the public will be here, and they will participate, and that's where you make real change on how this community develops in the future. CHAIRMAN CARTER: Commissioner Fiala. COMMISSIONER FIALA: First of all, I'm not real nuts about anything the last board did. I think that, you know -- is that wrong to say? Am I getting cranky? CHAIRMAN CARTER: Yeah, you're getting cranky, but that's all right. COMMISSIONER FIALA: Anyway, and I always -- I always appreciate what Nancy and -- and Nicole have to say. But I still think that we're putting the cart before the horse, and I think we need to start changing the rules. Yes, you can plan for hearing examiner sometime down the road. But the lobs that you've given him that are nondescript right now, affordable housing bonuses~ you've given him cjuster development, you've given him COMMISSIONER MAC'KIE: See, that list -- COMMISSIONER FIALA: That's what it says. CHAIRMAN CARTER: Yeah, but, excuse me, Commissioner, the last 15 minutes I think we've wiped that all off and said -- COMMISSIONER MAC'KIE: We have. Page130 June 6, 2001 CHAIRMAN CARTER: -- we only want the concept. We're not making any decision what's going to be included on that sheet of paper. I think those are examples of. And we're not going to go there, I mean, unless I have totally missed the last 15 minutes. COMMISSIONER MAC'KIE: I agree. I think -- COMMISSIONER FIALA: And there's planned unit development and so forth on here. COMMISSIONER MAC'KIE.' We're rejecting -- as I -- you know, you're -- I think we are, as a board, rejecting the ordinance in front of us. We are directing staff by the next reading to come back with something different along the lines of what Tom described. And I'm hoping that we are also going to consider a mechanism for having an ombudsman. I like to think of it as an extension of the public participation plan. It's the person who will implement that. COMMISSIONER FIALA: Now, some of my other questions. So what if we hire this hearing examiner who seems like a fine person, and all of a sudden we find out that this person isn't what we thought he was going to be -- COMMISSIONER MAC'KIE: Fire him. COMMISSIONER FIALA: -- or that he isn't interpreting -- CHAIRMAN CARTER: Fire him. COMMISSIONER FIALA: Yeah, right. Except that by the time you find out -- and I won't mention any names, but we had a problem with somebody that was on staff for a while and until we could actually remove that person from staff, it took us a little over two years. And the damage can be done by somebody like that, and that's something that -- that I'm very concerned with. Another thing that I fell -- I absolutely agree with you. We're here to serve the public. One of the big things we're trying to do is gain the trust of the public and the confidence of the public, and right now I don't think they're ready to not be heard in front Page 131 June 6, 2001 of the commission. I think we really have to give them that opportunity. First let us earn their trust and their confidence and then start moving toward a hearing examiner. COMMISSIONER MAC'KIE: But we haven't said we're going to eliminate that, either, Commissioner. We've said that we're going to add two opportunities. We're going to add a process by which they're notified. We're going to add staff to help them organize their position. We're going to add two, hopefully, hearings before a hearing officer in the evening when they can come, and then we're going to allow those people who appeared at one of those two hearings to also give testimony before us as we make the final decision. COMMISSIONER FIALA.' And do you know why so many people are gone? A lot of people can't drive at night. Some of the people who are retired have a problem driving at night. So -- COMMISSIONER MAC'KIE: We could have one during the day. COMMISSIONER FIALA: Could we have one in the morning and one at night? COMMISSIONER MAC'KIE: Maybe. CHAIRMAN CARTER: I think that's a mechanics thing that -- COMMISSIONER FIALA: I realize that, but it's just something I feel that we're starting -- I realize that they might have started this a couple years ago. This is the first time for us to get into it, and I just think that maybe we have some refining of our LDC and GMP to do before we get this person aboard. Yes, variances like the playground and -- CHAIRMAN CARTER: I'm going to go to Commissioner Coletta, but with all due respect, Commissioner, you have to keep refining all of this. It never stops. It's never perfect. You have to jump in at some point and say, "We're going to do this in con]unction with," and then it'll evolve. Page 132 June 6, 2001 COMMISSIONER MAC'KIE.' And I got to tell you, I've been trying to get this for six years. It took a long time to get the old board to agree to it because, frankly, what this does that some people in the community have begun to recognize is it takes the politics out of it. No longer will there be any incentive for some developer to want to be my buddy because I'm going to have a hearing officer who's going to say whether their petition meets or doesn't meet the law. I'm not ready to give them that power yet because I got to go through the book and revise it. But I would like it if -- just think, for the trust issue, how it would change Collier County if it were no longer that developers needed to wine and dine or had a desire to wine and dine and golf county commissioners, because the hearing examiner's going to be laying out the facts for us, and then we're going to make our decision based on what we hear right out here in the room. COMMISSIONER HENNING: So when did they start wining and dining? Nobody invited me. CHAIRMAN CARTER: I don't know when that took place. I mean, there's some need for policy level things that are up here on your screen. And, Commissioner Coletta, I'm going to take your comments first. COMMISSIONER COLETTA: Thank you very much. I do appreciate it. Eventually at the end of the dais here, you do get somebody's attention. No offense. Thank you very much. The hearing examiner-- CHAIRMAN CARTER: You're getting cranky, you know. I'm going to put you back in your office. COMMISSIONER COLETTA: I did have dinner too. COMMISSIONER FIALA: We've been here 15 hours already. COMMISSIONER COLETTA: It's true. We have. You're going to make me lose -- forget my thought, and then pretty soon I'm Page 133 June 6, 2001 going to lose my turn to Para again. You know, hearing examiner, as we got proposed now as a conceptual plan or thought, I'm for going forward with it provided that we do not even consider it unless we have this tied into the same thing, the omnibus (sic) person, to be able to work with the public. And that should be coming into effect even sooner than the hearing officer. And I also agree with what I've been hearing about the fact that we do have to tighten up our ordinances or start the process going forward so we don't get into the trouble that Lee County did when they started off -- remember the big thing there in Estero with the car lot? That was quite a -- I would like to receive direction from this commission to be able to go forward and interview two of the commissioners from Lee County with about 20 questions that I would -- CHAIRMAN CARTER: You can do that any time. In fact, I apologize. I was going to have Doug St. Cerny give everybody a call here, you know, and discuss any questions that you have. You can go up there any time. They would be more than willing to share what works well in their system. And you know how open Doug is, and he's been in it -- he's been in it for ten years. COMMISSIONER COLETTA: That's true, and that's what I would like to do, and I'd like to take a member of staff with me at that time too. CHAIRMAN CARTER: That's -- certainly you can work that out with Mr. Oliff. And they'll be happy to share the successes and failures. COMMISSIONER COLETTA: Thank you. CHAIRMAN CARTER: Sorry I didn't see you down there. You're going to have to wave more often, Commissioner. COMMISSIONER FIALA: I was blocking him, really. CHAIRMAN CARTER: I see. Okay. Commissioner Henning. Page 134 June 6, 2001 COMMISSIONER HENNING: Commissioner Mac'Kie, you brought out some -- I think where -- the direction we're going is to go slow, start out with the variances. And I think that you -- I heard you say that let the hearing officer also work on amendments to the GMP and the LDC. COMMISSIONER MAC'KIE.' That's what I think. Why not? COMMISSIONER HENNING: That's fine. Because my understanding is in order to get an unbiased person, you know, we can't have somebody working on both sides of the hall. COMMISSIONER MAC'KIE: No. That's right. COMMISSIONER HENNING: So we're going to have to spend the monies in order to receive the services and -- for this person to make a living. So, you know, I wasn't too much in favor of the concept of just doing it slowly and paying them $250,000 or whatever -- COMMISSIONER MAC'KIE: Can I apply? COMMISSIONER HENNING: -- for just listening to variances. But -- and I am in favor of the on-back-of-the-bus concern. COMMISSIONER MAC'KIE: Public participation person. COMMISSIONER HENNING: And I would like to see some -- a lot of changes. And also, how we're going to get to public participation -- that's going to be in December; I know that. But there is a lot of fear out there that the -- this process is going to limit the public to their elected officials, and that is one thing that I definitely do not want to do. I think there is an education process of the Land Development Code or the -- what drives the development because it's a fear of people not knowing how those rules work when it's coming in their backyard. So those -- CHAIRMAN CARTER: I think those are very well-founded concerns, and this is off the top of my head, and I would just suggest it to staff. The board can agree or disagree. I would like Page 135 June 6, 2001 to see a production on Channel 54 that outlines conceptually what we're talking about here; involve -- you know, Ms. Payton and Mr. Anderson both made statements in favor of what the benefits are, along with the public staff. Just enough to let people know it's an evolving process, this is what it means, this is what it doesn't mean, and this is kind of a time schedule in terms of which we are going to crawl, walk, run with it. So I think we could frame that because I think -- and that could be available to homeowners' groups. A lot of them are gone now. They can bring back, they can run that in the fall so that we can communicate with a community that this is not something that we're rushing out into and we're taking the commissioners away from the process. COMMISSIONER COLETTA: I might point out one other thing. Donna, you had concern over the fact that we get somebody in there we might not be able to get them out if they became a problem. It's a lot easier to fire a hearing officer than it is a commissioner. COMMISSIONER FIALA: That's true. COMMISSIONER MAC'KIE: Amen. COMMISSIONER FIALA: That's true. I wanted to note, one of the things we mentioned a lot was an unbiased person. I don't know many unbiased people. COMMISSIONER COLETTA: Well, I'm one. CHAIRMAN CARTER: There was a way to get on talk radio for a while. A lot of unbiased people call you. Okay. Are we -- do I see three nods up here that we can move forward with any refinement and language by the next session that kind of clarifies what is and isn't and incorporate what we need to do here? Are we all right? MR. OLI. IFF: And I think with all the limitations that you've provided, we'll try and bring that back in that form for your Page 136 June 6, 2001 second hearing. CHAIRMAN CARTER: Thank you. All right. Let's go to the next item. MR. OLLIFF: The next item -- Susan, it's your call, but the dock facilities is the item that has the next number of speakers. MS. MURRAY: Okay. The dock facilities would be on page 62 of your handout. I have a staff member to make a presentation, or if you wish, I could just have him stand here and answer questions after you hear public input. COMMISSIONER MAC'KIE: How about that. CHAIRMAN CARTER: Let's go to public input on this and let staff answer questions. MR. OLLIFF: I have two speakers, Mr. Chairman, Anthony Pires followed by Dick Lydon. CHAIRMAN CARTER: All right. Let's do it. MR. OLLIFF: Mr. Pires, the court reporter has asked me to inform you on your way up that you need to talk slowly. MR. PIRES: Even at 10 p.m., I'll try to talk slowly. Tony Pires, for the record. I'm here not representing any particular client but -- (A discussion was held off the record.) MR. PIRES: -- not here representing any particular clients, but just expressing some concerns about the proposed changes to the dock facilities extension portion of the ordinance based upon my recent experience in representing individuals. The preamble to the dock facilities portion of the LDC states that -- in 2.6.21.1 that it's to basically allow for safe mooring of vessels while minimally impacting the navigability of the waterway and the use and view of the waterway by surrounding property owners. Yet in the proposed change made later on at page -- at Section 2.6.21.3.2.4, the view impact on the surrounding property owners doesn't -- is not factored in; it's the Page 137 June 6, 2001 abutting property owners. And that becomes significant because, if you recall the Liberty Ventures case where this board reversed a decision of the Planning Commission, the major impact of view was to a person across the canal, not abutting that particular petitioner. So I think in one sense the LDC states that we're taking -- we're trying to minimize impact of view on surrounding property owners, but you look at the criteria, it says we shall look at whether or not it has a major impact on the waterfront view of abutting property owners. So as opposed to having a public participation process~ this becomes a public nonparticipation process, and you are, in fact, narrowing the range of individuals and making it easier for the dock facilities extensions to be granted. If that is your desire, that is your wish, that may be your legislative desire, but that is not what is stated in the beginning because you're trying to protect surrounding property owners, and you're narrowing it down just to abutting property owners. Furthermore, there is a use of the -- as far as how the Planning Commission, under this concept, would hear it, in Section 2.6.21.3 it states the Planning Commission at a, quote, duly advertised public hearing. And I'm not aware of any definition of duly advertised public hearing. Right now notice is given to surrounding property owners by mail, and the property is posted. I think it needs to be very clear that that occurs, the posting of the property and the notification by mail to the surrounding property owners. Additionally, another -- I think this is more than housekeeping or housecleaning issues. I think they're major revisions to make it easier to get extensions, quite frankly. Section 2.6.21.3.13 (sic) adds what appears to be an innocuous term, as far as when you're looking at impacts to navigation, where the petition has to Page138 June 6, 2001 present a drawing to scale showing the proximity of the facility to any adjacent marked navigable channel, as opposed to the prior text just said to the -- any adjacent navigable channel. We have a lot of waterways where they don't have marked navigable channels. Vanderbilt Lagoon is a classic case of that. COMMISSIONER HENNING: What's that number? MR. PIRES: Section 2.6.21.:3.1.3. MR. OLLIFF: It's on page 70 of your booklet. MR. PIRES: And I apologize. I was using the text off the Web site versus the text that was available out here tonight with the stamped version. So that, I think, actually, again, makes it easier. You're making it easier for the petitioner, contrary to the surrounding property owners' interests that they may have. I think what also should be part of any petition process, because I believe it's critical to understand the relationship of a proposed extension to the surrounding uses, is the survey should not only show water depths -- and by the way, it doesn't say at what intervals. It doesn't say I foot, 5 foot, 10 foot. I think that needs to be clear, like at 5-foot intervals at a minimum -- as well as showing surrounding dock facilities and surrounding properties so you really have a good picture as to what the impact is. That is not a requirement of the petition under the proposal. Furthermore, one of the secondary criteria is -- the existing criteria as to view, I think, is very protective of abutting and surrounding property owners because there are two criteria that need to be looked at: Whether or not the proposed structure is at minimal dimensions to minimize the impact of the view of the waterway by surrounding properties owners, and then whether or not the proposed vessel -- the addition of the structure will increase the impact or negatively impact the view of the Page 139 June 6, 2001 waterway by, again, surrounding property owners. Here the -- once again, the test becomes a little bit easier, whether or not it would have a major impact. The difference between minimizing impact and having a major impact is minimizing impact is go to the store, don't spend much money. Major impact is don't spend a lot of money. So I think it's a significant difference. I think there are a lot of areas of this ordinance that need to be revised to more properly protect the surrounding property owners, not just abutting, and to clearly notify the property owners of the hearing. And I can provide the comments. I have not talked with staff about this, and we ask that you take this into consideration. It's not just mere housekeeping. I think these are ma]or changes. MR. OLLIFF: Mr. Chairman, just to respond for staff quickly, I think it was never our intent to make it easier for a boat dock extension. If Mr. Pires has some suggestions for some language amendments, we'd love to be able to get them from him, and we'll work with him prior to your next hearing and then make some revisions that we'd get to you in advance. MR. PIRES: I'll provide them to the staff this week. CHAIRMAN CARTER: You took the words right out of my mouth. I think that'll work fine. Any other questions that we need to address to -- oh, I'm sorry, Mr. Lydon. I apologize. You're still here? I thought you were home having a toddy. MR. LYDON: I had one out in the hall. You didn't know I brought my flask. Dick Lydon for the record, Vanderbilt Beach Property Owners' Association. We're probably impacted more by this. And I think Rocky Scofield did a real good job in the rewrite, staff. I think you called on a pretty good fellow to get that done. I agree with the comments that Tony had. We are very concerned about people other than abutting property. That Page 140 June 6, 2001 would tell me that some guy could build a Taj Mahal across the canal from me, and I couldn't say a thing about it because I am not an abutting property. There's one other thing, and as long as you've given that charge to Tony, I'll be glad to pass it along. There's one place in here where navigation has to be no more than 20 feet. You get two boats that are 10 foot wide, and there could be a little problem in meeting one another in a canal somewhere, but we can get into those details. I am concerned that this be done and done properly. And my comments to you-all on the hearing examiner were explicit in that connection. The hearing examiner is only as good as these pieces of paper are good. And, unfortunately, the hearing examiner will not have to do anything to have you offset because his word will be the final word on docks. Thank you. CHAIRMAN CARTER: All right. You have comments that you can share with staff, and we have Tony's comments for the next meeting. Any other comments, questions? MR. OLLIFF: Mr. Chairman, you've got three speakers registered on three separate items. If you're willing, we'll just go ahead and call those speakers. CHAIRMAN CARTER: Sure. MR. GOCHENAUR: I have a comment, Mr. Chairman. CHAIRMAN CARTER: On which issue? MR. GOCHENAUR: I'd just like to clarify one statement that the gentleman just made. For the record, Ross Gochenaur, planning services. This amendment was drafted by staff. It was not drafted by Mr. Scofield. CHAIRMAN CARTER: And I think everybody up here, you know, recognizes that. COMMISSIONER MAC'KIE: And besides, if Rocky did it, it would be really good. Page 141 June 6, 2001 MR. OLLIFF: Mr. Chairman, your next speaker would be Ed Fullmer to speak on the Goodland item, 2.2.34. CHAIRMAN CARTER: Page? MR. OLLIFF: I knew you'd ask me that. MS. MURRAY: Fifty-seven. MR. OLLIFF: Fifty-seven. Thank you. CHAIRMAN CARTER: Thank you. MR. FULLMER: My name is Edward J. Fullmer, president of the Goodland Civic Association. I signed up earlier tonight to thank staff and the commissioners for authorizing the overlay of Goodland. It's been a very trying three years, and we're up -- coming up to the final meeting. But I noticed when I got here tonight the fax that I got on the 30th has changed tonight, so there's a few things that I'd like to go over with you so we can get them clarified. On the original page here, on page 43 and down on the bottom it says 57, the fax that I got from Ray Bellows on the 30th, for "reason," it seems that between the 30th and tonight was added (as read): "Furthermore, any new subdivision on the remaining vacant lot will allow lots that reflect the currently plotted RSF-4 lots." I'd like an explanation on that. Does that mean the rest of the lots in Goodland that are registered RSF-4 will need the hundred by a hundred in order to build a home on there? Because what we're doing was trying to conform the lots that are there now in -- case of a hurricane, that we could rebuild back on them the way they are. So this was added here, and I don't know what it's for. CHAIRMAN CARTER: Mr. Fullmer, just a second. I think Ms. Strudent -- Strident -- Marjorie, answer the question. MS. STUDENT: I made some changes to it, but not to affect the substance. I was trying to clarify it. I'm not sure if that's one of the changes. But, Ed, I'll be happy to meet with you before the Page142 June 6, 2001 next meeting and talk about it. Okay, Marjorie. It wasn't intended to change anything MR. FULLMER: MS. STUDENT: substantive. MR. FULLMER: Thank you. Okay. And then on -- one more thing we have here, on 2.2.34.2, listed underneath of it it says -- I'm sorry. It's 2.2.34.6.1, "Property owners within the VR and RSF- 4 zoning districts may store or display fishing equipment (crab traps, anchors, and other similar equipment) in," it says, "any yard subject to the following conditions." We'd like to have that changed to "their yard." I don't know what "any yard" means. It sounds like somebody else's property or something. CHAIRMAN CARTER: We're coming over to your place, Ed. MR. FULLMER: Well, we just had that done in commercial. I mean, it's pretty important. Okay. On -- under A, again, the storage of fishing related equipment is allowed only in association with that property owner's fishing related business. We would like "that property owner" inserted in there because "with a fishing related business," he could be leasing property. We don't want it leasing. We want it for the people that are fishermen down there now to be able to use their property the way they've been using it for the last 50 years. COMMISSIONER COLETTA: But if they're leasing the property, would they be exempted from doing it if they've been there for 50 years? MR. FULLMER: As far as we know, there's nobody leasing the property in VR or RV (sic). There's people there leasing commercial now for it, but there's not in the VR or the RS (sic}. There's people that's been down there like Frog and Old Man -- COMMISSIONER HENNING: Kirkwood? Kirkland? COMMISSIONER COLETTA: Marjorie, what do you think? Page 143 June 6, 2001 MS. STUDENT: I need to -- and I can talk to -- MR. FULLMER: -- that's been there for years that we don't want to stop their business because they're in VR or RSF-4. We want them to continue, and that's just a few things. And, again, I'd like to say I thank you's very much for all the help you's been in the last three years, and for staff. And I will meet with Marjorie. I'll be up here Friday, and I'll meet with Marjorie on Friday. MS. STUDENT: I just have a concern. I don't know if that was one of my changes or not, but treating somebody that leases property different than a person that owns it for a purpose like that, we may have a equal protection problem, because you have to have a rational basis when -- to the public health, safety, and welfare when you make those kinds of distinctions, and I just want to put that on the record. It's a legal thing, and we want to make sure we stay within those parameters. MR. FULLMER: Okay. I notice on the -- at the zoning -- I mean, at the planning board there's a note on here about "however, require fencing around personal vehicle and equipment," but I can't find it anywhere in the writing where that refers to. I noticed it last month when I was here also, but the meeting was so late at the planning board, I left. But I can check it over with Marjorie when I come up on Friday, and get it over with. Otherwise, from the village of Goodland, we say thank you, and we think you're doing a great job. CHAIRMAN CARTER: Thank you, sir. MR. OLLIFF: Next speaker is -- and I'm not sure she's still here -- Kathleen Avalone. Nope. She's gone. The next speaker is Tim Hancock. MR. HANCOCK: Good evening, Mr. Chairman, Colonel, Commissioners, Tim Hancock with Vanasse & Daylor and also Page 144 June 6, 2001 representing a host of formerly fired county commissioners. It's easier than you think, Jim, trust me. I'm here to talk about C-4 zoning district. The Planning Commission recommendation on this I'm in agreement with. The Development Services Advisory Committee is in agreement with. However, one thing the Planning Commission requested is that I work with staff in developing some additional language on, particularly, the issue of motor freight transportation and warehousing. I don't want to chew up too much of your time. In fairness to Ms. Murray, I handed her language today because I've been out of pocket since Wednesday's meeting, and she has not really had ample time to review it. I'd be more than happy to go over it quickly with you. If you wish to table it and let me work with Ms. Murray in the meantime on any concerns she might have and come back to you at your next hearing, that would be fine in the interest of the hour. I'll leave that to you. COMMISSIONER MAC'KIE: I like that plan. MS. MURRAY: I'd prefer that. CHAIRMAN CARTER: Works for me. COMMISSIONER HENNING: I'd like some discussion on this one. Motor freight transportation in C-47 Can you explain that to me? MS. MURRAY: It's basically describing your mini- and self- storage -- air-conditioned mini- and self-storage warehousing only. That's the classification under which it's listed, but if you'll see the caveat after that, 4225 should only refer to self-storage. COMMISSIONER HENNING: There is -- is self-storage allowed in C-47 MS. MURRAY: Not currently. This is an amendment to allow self-storage. COMMISSIONER HENNING: Self-storage. You know, we really need to take a look at the -- in my opinion, the C-4 here in Page 145 June 6, 2001 Collier County and the locations and see if it's what -- if it fits the community character. I have real concerns with this one. So I'm I suggest-- I'd like to know the overall going to be taking a look at that. CHAIRMAN CARTER: Yeah. implications of that. MS. MURRAY: Certainly. CHAIRMAN CARTER: But, you know, you haven't had a chance to see what Mr. Hancock has written up, and let's come back and revisit that and flag it for the next meeting. MS. MURRAY: Very good. MR. OLLIFF: Mr. Chairman, that's all your registered speakers. Ms. Murray or Mr. Dunnuck, is there anything else we need to get on the record for this evening? MS. MURRAY: I don't believe there is. Everything else is relatively benign, and I'd be happy to go through -- MR. OLLIFF: Ms. Student has some closing comments, Mr. Chairman. MS. STUDENT: I just have to make one comment on the rooster amendment. As it's currently drafted, it's constitutionally overbroad, and I have some language to tailor it, narrowly tailor it to achieve the purpose. (Several speakers at once.) MS. STUDENT: And I'll bring that back next meeting. COMMISSIONER COLETTA: And the roosters, the problem is the fact that you have people raising them for fighting cocks. They get 50 of them together in one spot in a residential area of the estates, and the things go crazy all night long. In the early morning hours, you can hear them for blocks. It drives the people out of their minds. They get animal control down there. They address the situation. They just ship them someplace else - - to a friend, a relative, or a neighbor -- and they bring them back again in a short time. So that's the reason for this particular Page146 June 6, 2001 ordinance change. COMMISSIONER HENNING: Commissioner Coletta, it's not just in the estates, and I can assure you of that. COMMISSIONER COLETTA: It happens in Golden Gate City too. Okay. I didn't realize that. CHAIRMAN CARTER: It's time for a rooster hunt. MR. OLLIFF: Mr. Chairman, at close we need to announce the next public hearing, which is June 20th at 5:05 in this same chamber. And with that, I believe we've done all the business we need to do here. CHAIRMAN CARTER: All right. Thank you. We stand adjourned. Page 147 June 6, 2001 There being no further business for the good of the County, the meeting was adjourned by order of the Chair at 10:21 p.m. BOARD OF COUNTY COMMISSIONERS BOARD OF ZONING APPEALS/EX OFFICIO GOVERNING BOARD(S) OF SPECIAL DIS~DER ITS CONTROL JAMES'. C~RTER, Ph.D., CHAIRMAN AT, rEST: .* . DwIGHTE.. BROCK, CLERK A::est as to Chairman'S signature These minutes approved by the Board on presented c-~ or as corrected , as TRANSCRIPT PREPARED ON BEHALF OF DONOVAN COURT REPORTING, INC., BY BARBARA DRESCHER, NOTARY PUBLIC Page 148