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EAC Minutes 06/06/2001 RJune 6, 2001 TRANSCRIPT OF THE MEETING OF THE ENVIRONMENTAL ADVISORY COUNCIL Naples, Florida, JUNE 6, 2001 LET IT BE REMEMBERED, that the Environmental Advisory Council, in and for the County of Collier, having conducted business herein, met on this date at 9:00 a.m. in REGULAR SESSION in Building "F" of the Government Complex, East Naples, Florida, with the following members present: CHAIRMAN: Thomas Sansbury Ed Carlson Michael G. Coe William Hill Erica Lynne Alexandra "Ali" Santoro Barry Stone Alfred Gal NOT PRESENT: Chester Soling ALSO PRESENT: Patrick White, Assistant County Attorney Barbara Burgeson, Senior Environmental Specialist Page 1 ENVIRONMENTAL ADVISORY COUNCIL Maureen Kenyon AGENDA Minutes & Records June 6, 2001 9:00 A.M. Commission Boardroom W. Harmon Turner Building (Building "F") - Third Floor I. Roll Call II. Approval of Agenda IlL Approval of April 25, 2001 and May 2, 2001 Meeting Minutes IV. Land Use Petitions A.Site Development Plan No. SDP-00-111 "Tamiami Square" Section 9, Township 48 South, Range 25 East B. Planned Unit Development No. PUDZ-2001-AR-620 "Mediterra PUD" Section 11 & 12, township 48 South, Range 25 East V. Old Business A. Continued discussion on Land Development Code Amendments VI. New Business A. Appointment of one EAC member to a Select committee for the new Community Development Administrator VII. Growth Management Update VIII. Subcommittee Report A. Growth Management Subcommittee IX. Council Member Comments X. Public Comments XI. Adjournment Council Members: Please notify the Division Administrator's office no later than 5:00 p.m. on June 1, 2001 if you cannot attend this meeting or if you have a conflict and will abstain from voting on a particular petition (659-5741). General Public: Any person who decides to appeal a decision of this Board will need a record of the proceedings pertaining thereto; and therefore may need to ensure that a verbatim record of proceedings is made, which record includes the testimony and evidence upon which the appeal is to be based. June 6, 2001 CHAIRMAN SANSBURY: Let's call the Environmental Advisory Counsel meeting of June 6th to order. Shall we call the roll to determine we have a quorum? MS. BURGESON: Stone? MR. STONE: Here. MS. BURGESON: Soling? (No response). MS. BURGESON: Santoro? MS. SANTORO: Here. MS. BURGESON: Coe? MR. COE: Here. MS. BURGESON: Carlson? MR. CARLSON: Here. MS. BURGESON: Lynne? MS. LYNNE: Here. MS. BURGESON: Hill? MR. HILL: Here. MS. BURGESON: Gal? MR. GAL: Here. MR. WHITE: For the purposes of a quorum, Mr. Chairman, it's important to note -- Assistant County Attorney Patrick White -- that Mr. Gal cannot constitute a member of that quorum, but I believe we have one regardless. CHAIRMAN SANSBURY: And I am here, Barbara, even though you missed me. MR. WHITE: Do we have a quorum regardless of Mr. Gal? MS. BURGESON: Yes, we do. CHAIRMAN SANSBURY: Yes, we do. MR. WHITE: Thank you. I just wanted to put that in the record. And, Mr. Gal, you may want to adjust your microphone. It seems to be a little bit close to your mouth. Page 2 June 6, 2001 MR. GAL: Okay. I'll try to speak more clearly. Am I allowed to vote? MR. WHITE: You're just not allowed to participate in terms of the quorum. MR. GAL: Okay. MR. WHITE: The meeting can proceed as normal. MR. GAL: Okay. MR. WHITE: Thank you. CHAIRMAN SANSBURY: Just for the record so everyone knows that Mr. Gal is attending the meeting by audio. Okay. And Mr. Sansbury is present also. Okay. We have minutes from April 25 and May 2 for approval. What's the pleasure? MR. COE: Make the motion to approve both as written. CHAIRMAN SANSBURY: Motion by Mr. Coe. MR. CARLSON: Second. CHAIRMAN SANSBURY: Second by Mr. Carlson. In favor? MR. STONE: Aye. MS. SANTORO: Aye. MR. COE: Aye. CHAIRMAN SANSBURY: Aye. MR. CARLSON: Aye. MS. LYNNE: Aye. MR. HILL: Aye. MR. GAL: Aye. CHAIRMAN SANSBURY: Opposed? (No response.) CHAIRMAN SANSBURY: No opposition, passed unanimously. MR. HILL: Mr. Chairman? CHAIRMAN SANSBURY: Yes, sir. MR. HILL: At the expense of complicating the agenda, can I shift back to Item 2? I think I discussed it last meeting. Should Page 3 June 6, 2001 we, as a council, take a formal stance on the hearing examiner program? Should we add that to the agenda and possibly do that if time permits? CHAIRMAN SANSBURY: Mr. White, you have a comment? MR. WHITE: I .believe it would be appropriate to do so to the extent that the EAC is one of the bodies that would be affected, if you would, by the proposed change. And, certainly, I believe that it's within the scope of what it is that your charge is in the Land Development Code with regards to making recommendations to the Board of County Commissioners. CHAIRMAN SANSBURY: Okay. Where would we like to place that on the agenda? MR. HILL: I guess under new business. CHAIRMAN SANSBURY: Under new business, okay. MR. HILL: As time permits. CHAIRMAN SANSBURY: And we'll do it as B on new business. MR. WHITE: It may also be appropriate, Mr. Chairman, if it were under 5-A, since it is part of the Land Development Code amendments as well. CHAIRMAN SANSBURY: Okay. How about under -- all right. Okay. And I apologize for jumping over the agenda approval. Okay. It looks like we have -- the next thing we have are the land-use petitions. MS. BURGESON: The first petition on the agenda is Tamiami Square Site Development Plan No. SDP-00-111. For the record, Barbara Burgeson with Planning Services. This property is located immediately south of Two Lakes Plaza PUD, which this board approved within the past year. It's approximately ten acres located on the east side of U.S. 41 approximately a half mile south of the Congregational Church up near the Bonita Beach or Lee County line. It consists -- the Page 4 June 6, 2001 property consists of two wetland areas, one isolated, which was not found to be viable by South Florida Water Management District, which was the isolated wetland, and a second wetland at the northeast corner of the property. The wetland at the northeast corner of the property is adjacent to and contiguous to the wetland that was approved on the property to the north, and is contiguous and adjacent to the property to the east, which also has wetland preservation. The petitioner is proposing to preserve the entire wetland at the northeast corner with an upland buffer adjacent to it to protect that wetland. And that will be put under a conservation easement by South Florida Water Management District in Collier County. Also on the property were identified a couple of gopher tortoise burrows. The tortoises would be relocated, escavated at the time of final site development plan -- after final site development plan approval -- and prior to any preconstruction into the upland area adjacent to the wetland preserve. The petitioner expects that only one tortoise may be located on the property at this time. The property has 7 acres of pine flatwoods, less than an acre of cypress wetlands surrounded by.6 acres of wet prairie and the isolated 1.6 acre wetland, which will be mitigated for off site at a ratio of, I believe it's 3 to I -- actually 2.:39 to I for the impacts to that wetland. And staff is recommending approval of this petition with the two stipulations as identified in the staff report and the stipulation for the Water Management District to have the final permitting over the water management issues. The environmental stipulations are for a gopher tortoise relocation management plan and to address the setbacks that are required strictly by the Land Development Code, which they would have to adhere to but may require them to make some Page 5 June 6, 200t amendments to the way the project is currently laid out to provide for appropriate setbacks from preserve areas and wetlands. CHAIRMAN SANSBURY: Okay. MS. BURGESON: I'm not sure if the petitioner wants to talk on this. CHAIRMAN SANSBURY: Does the petitioner want to speak on this? Okay. What -- anybody that's going to speak -- let's do a quick swearing in, if we could. Anybody that's going to speak on any of the matters before us today, could we quickly swear everyone in. Since Patrick's not here, I'm going to have to ask you to swear them in, if we could. MS. BURGESON: Do you want to do this on all items today? CHAIRMAN SANSBURY: Huh? MS. BURGESON: Do you want to swear in on all items today or individually? CHAIRMAN SANSBURY: Let's just -- I think it's easier just to swear everybody -- okay, do you -- okay, I'll -- would you want to swear them in? Would you do that for me? Okay, go ahead. (The oath was administered.) CHAIRMAN SANSBURY: Thank you. MS. GREEN: Hi, my name in Gina Green. I'm the project engineer on the site with McAnly Engineering & Design. The only thing I wanted to let you know is that we have obtained the South Florida permit on it, and we're in the midst right now with the setback issue. We're scheduled for the Planning Commission at the end of month as far as a variance on the setbacks for the building to adjacent properties, which had been recommended as far staff to approve. And we're just -- and once we have that, then we will be finalizing SDP plans. CHAIRMAN SANSBURY: Where do you stand -- are you Corps Page 6 June 6, 2001 jurisdictional also, are you required to get a Corps permit? MS. GREEN: Actually, I'd have to refer to Jeremy Sterk. COURT REPORTER: I'm sorry, you have to refer to whom? MS. GREEN: Pardon? COURT REPORTER: You have to refer to whom? MS. GREEN: Jeremy Sterk, he's the environmentalist. MR. STERK: For the record, I'm Jeremy Sterk. I'm with Boylan Environmental. We are in the process of getting our Army Corps engineer permit. We -- they are writing the staff-- the statement of findings right now. MR. CARLSON: I have some questions. CHAIRMAN SANSBURY: Yes, sir. Go right ahead. MR. CARLSON: A couple of questions. CHAIRMAN SANSBURY: Mr. Carlson. MR. CARLSON: When I see there was going to be a wetland impact, I tried to determine from the literature in here, you know, what the status of that wetland was, what the hydrology of it, the health of it. And I noticed -- maybe I just missed it, but in everything I read, including the environmental impact statement -- where it says "determine the present seasonal high water levels and high water levels "-- it's Section 4-B under wetlands. You really don't get into a statement of the condition of the hydrology of these wetlands. Whether they've been impacted, whether they're fine. MR. STERK: Actually, hydrol -- in terms of hydrology, the wetland has adequate hydrology. That wasn't really the issue when it came to determining whether or not to go off site. MR. CARLSON: Okay. And the issue was? MR. STERK-' Adjacency to U.S. 41, just more of a hazard for wildlife, the district's criteria for less than 3 acres would -- they would prefer that you go off site. MR. CARLSON: Okay. So the portion of that wetland that I Page 7 June 6, 2001 see preserved in the parking lot, is that going to be altered in any way? MR. STERK: to? Which -- I'm sorry, which part are you referring MR. CARLSON: Okay. The-- MR. STERK: In the northeast corner? MR. CARLSON: No, the isolated wetland that's going to receive the -- the major impact -- MR. STERK: Yes. MR. CARLSON: -- and basically be almost eliminated, there's still a portion of that that's part of the water management system in the parking lot? MR. STERK: Yeah, that is just deemed native open space, and the function for that is mitigated for off site. MR. CARLSON: Okay. MS. BURGESON: They are mitigating for that entire isolated wetland. And that small portion there is being preserved to accommodate or to fulfill the 25 -- not 25 percent, but 15 percent native vegetation requirement for the site. MR. STERK: It will remain at natural grade as is, but the function for it was mitigated at 2.4 to I off site -- MR. CARLSON: Okay. MR. STERK: -- for the entire wetland. MR. CARLSON: Thank you. CHAIRMAN SANSBURY: Any other questions for the petitioner? MR. HILL: I have one. Since you do have your Water Management District permit, my question may be moot, but the documents indicate that they consider this wetlands in the northeast corner to be part of the flow-way. Is a conservation easement satisfactory to them to maintain that as part of the flow-way? Page 8 June 6, 2001 MR. STERK: Yes. Yeah. In fact, it'll be -- MR. HILL: That will be maintained as -- MR. STERK: There's a conservation easement over the portion of the wetland that's on this property, and it will also be monitored -- MR. HILL: All right. MR. STERK: -- so they'll have a five-year monitoring plan, and it will be, you know, in perpetuity. CHAIRMAN SANSBURY: Okay. Any other questions for staff, petitioner? Anybody from the public that would like to speak on this item? Hearing none, what's the pleasure? MR. COE: I'd like to make a motion to approve. Do I hear a Motion by Mr. Coe. Second by Mr. Hill. Passed unanimously. Okay. CHAIRMAN SANSBURY: second? MR. HILL: Second. CHAIRMAN SANSBURY: Hearing none, in favor of the motion? MR. GAL: Aye. MR. HILL: Aye. MR. CARLSON: Aye. CHAIRMAN SANSBURY: Aye. MS. LYNNE: Aye. MS. SANTORO: Aye. MR. STONE: Aye. MR. COE: Aye. CHAIRMAN SANSBURY: Opposed? (No response.) CHAIRMAN SANSBURY: very much. MR. STERK: Thank you. CHAIRMAN SANSBURY: Discussion? Thank you Page 9 June 6, 2001 MR. BELLOWS: For the record, my name is Ray Bellows, and I'm a principal planner with Planning Services presenting petition PUD-2001-AR-620; this is the Mediterra PUD. Petitioner is proposing to rezone approximately 213 acres from agriculture and agriculture ST to PUD for the purposes of amending the Mediterra PUD. As you can see on the location map, the existing Mediterra PUD is located straddling the Lee County and Collier County jurisdiction line. It's also adjacent to Old U.S. 41, future east/west Livingston Road, and the north/south extension of Livingston Road. The shaded area is the area to be added to the Mediterra PUD and subject to this petition. There will be no additional dwelling units proposed with this amendment. It's -- they will, however, shift some of the existing approved dwelling units in the Mediterra over to this tract along with a village commercial center. I have a copy of the master plan for you. As you can see, they've integrated the road networks to interconnect with the village center area coming into this part of the development. The residential tracts are an R. It will have preserve areas along the -- in the northeast corner, and the village center will be located adjacent to the extension of Livingston Road. The Growth Management Plan consistently indicates that the site is in the urban residential area, the -- a base density of 4 units per acre. The proposed density with this additional land is.64 units per acre; therefore, it's consistent with the density rating system. The Growth Management Plan and the Land Development Code allow for a village/commercial, neighborhood/commercial that serves the residents within these PUDs. It tends to keep traffic off the arterial roads, and this project's consistent with Page 10 June 6, 2001 that. And I'll be happy to answer any questions for you. CHAIRMAN SANSBURY: Questions from council? Hearing none, petitioner? Oh, wait a minute. Steve -- I got to do the environmental part. Wait a minute, I'm not quite finished. MR. LIMBERGER: For the record, Stephen Limberger, Development Services. As Ray said, the proposed product here is an expansion to the existing Mediterra PUD. There's two expansions going on at the present time. One is an addition to the north end of thePUD in Lee County and one in Collier County, which is this portion of the PUD indicated right here. The subject property historically had a lot of alteration, a lot of disturbance, agricultural uses. And if you look at the aerial I have on the display here, you'll notice that the light areas here show up as former agriculture areas. That site is also heavily impacted with melaleuca at this time. Most of the native vegetation occurs at the north end of the property in a sliver, roughly the upper sixth of the property. Wetlands on site occur primarily at the north end. They also occur in this area here, as well as here and here. About 70 percent of the site is uplands; about 70 percent. Petitioner did a protective species survey. They found two listed species. They found an American alligator in this melaleuca impacted wetland, roughly in this area. And they found three gopher tortoise burrows, one roughly in this area and two down in this area. And the petitioner believes that there are probably two tortoises on site. The product, as proposed, will relocate tortoises to the existing gopher tortoise preserve within Mediterra, which is located in this portion of the PUD. As far as wetlands on site, there is approximately 63 acres of wetlands, and the petition will Page 11 June 6, 2001 impact about 70 percent of those. Preservation on site will be approximately 24 acres of wetlands. They're indicated in green. This portion of the PUD I have on a larger scale over here. The preserves are -- will be in this area where the cypress head is and also willow. And they'll also be in this portion of the property where some of the nicer flatwoods are located. They abut the preserve to Ronto Livingston PUD. Much of Ronto Livingston was cleared in the past for agricultural uses and native habitat on the PUD -- and it's not developed at this time -- occurs primarily in this area of the property, as well as other areas indicated to be preserved, so they are adjoining. As far as the wetland impacts, the petitioner is estimating that approximately 11 credits of off-site mitigation will have to be purchased off site. If you have any questions, I'd be glad to answer them. The petitioner is here and would also like to say a few words. CHAIRMAN SANSBURY: Any questions for Mr. Limberger? Mr. Gal, do you have any questions? MR. GAL: No. CHAIRMAN SANSBURY: Good. Thank you. MR. HILL: Brief one, Mr.-- CHAIRMAN SANSBURY: Yes, sir. MR. HILL: Steve, you said the area around to the north and east was undeveloped, the Ronto PUD? MR. LIMBERGER: Right, the Ronto Livingston PUD is undeveloped at this time; that's correct. MR. HILL: Did that come before us? Have we MR. MR. MR. looked at that one? LIMBERGER: I don't know. It's been there a while. HILL: I don't recognize the name. LIMBERGER: Yeah. Page 12 June 6, 2001 CHAIRMAN SANSBURY: Any other questions? You know, I forgot to do disclosure the last time through. I just -- very quickly, has anyone on the council had any discussion regarding this particular petition with the petitioner? (No response.) CHAIRMAN SANSBURY: No? Okay. Would the petitioner like to make a presentation? MR. THINNES: Good morning. For the record, my name is Bob Thinnes. I'm the planning manager with Bonita Bay Group. I want to thank staff for their comprehensive overview of the project. And I'd like to introduce our environmental consultant, Clay Carithers, with WilsonMiller for any questions that you may have with the wetland issues. And I'm available for any questions that you may have on any other items. CHAIRMAN SANSBURY: Any questions? Hearing none, any questions for the environmental consultant? MR. CARLSON: Yes. CHAIRMAN SANSBURY.' Yes. Okay. Mr. Carlson has a question. Identify yourself, please, sir, for the record. MR. CARITHERS: For the record, my name is Clay Carithers. It's spelled C-a-r-i-t-h-e-r-s. I am an environment consultant with WilsonMiller here representing the petitioner. And you have the ElS before you and versus giving you a rehash of all the data in there, I'm simply here to answer any questions or address any issues you feel need to be discussed. CHAIRMAN SANSBURY: Mr. Carlson. MR. CARLSON: I -- I think the ElS is really complete, and I do understand the condition of these -- these wetlands and that they are degraded. But based on the percentage impact to the jurisdictional wetlands, that off-site mitigation is kind of important to me. Can you give me some kind of confidence level Page 13 June 6, 2001 in that, that that's going to happen? MR. CARITHERS: Yes. I mean, right now in terms of the permitting process for this project, we have submitted an application to the Water Management District for an amendment to the existing permit for Mediterra and as well as an application to the U.S. Army Corps of Engineers for a modification to their existing permit for Mediterra to add these lands. As part of both of those applications, mitigation for the wetland impacts that we're addressing here on the Mediterra east property consists of the on-site enhancement activities in the conservation areas that Steve talked to you about, which will include activities such as replanting these melaleuca monocultures that remain to a native wetland forest, which will include some selective clearing and replanting of other portions of wetlands where melaleuca sort of exists in pods, and we can save the remaining forest, plus wetland creation in the form of turning a dirt road into a wetland that used to be a wetland and upland enhancement. In both the applications, to the Water Management District and to the Corps, the functional lift provided by our on-site mitigation activities is not enough to compensate for the functional loss that we're going to experience from our-- our direct impacts to the on-site wetlands. And in both those applications we have proposed purchasing mitigation credits from the Panther Island Mitigation Bank. Right now the amount of credits that we have proposed is roughly eleven and a half. Where that number actually ends up being, I'm not sure. I think it's a fairly accurate estimate. Obviously, both the Water Management District and the Corps will be the final say in what that number ends up being, but it's a given that we will not get a permit from either agency until that number is agreed to and -- and there is a contract in place to -- to purchase Page 14 June 6, 2001 those credits. MR. CARLSON: Okay. The eastern addition and the original project look like two different projects because there's so much residential packed into that eastern addition compared to -- to the other one. With the movement, my understanding is that units were moved from the original project over to the east project. There's no additional units coming in here? MR. CARITHERS: It's more a question of semantics than anything else. Go ahead. MR. THINNES.' Yeah. It's basically shifting the approved units from the current PUD boundaries to the east. MR. CARLSON: Was there any open space or preserve gained on the original project to the west with all these units that were moved to the east? MR. CARITHERS: To a limited degree, yes. During the -- in the original PUD application for the existing Mediterra property that already has zoning on it, there were some minor gains in conservation areas. More importantly some -- some improved linkages in -- in conservation areas that had formerly been isolated from one another that evolved during the permitting process for that piece of property. I can't say that those were necessarily substantial gains, but they did arise somewhat from being able to drop density over there a little bit, and the rest of it was shifting land plan details around to satisfy agency requirements. CHAIRMAN SANSBURY: All right. Any other questions of council? (No response.) Hearing none, what's your pleasure? MR. COE: Make a motion to approve. CHAIRMAN SANSBURY: Motion to approve by Mr. Coe. Do I hear a second? Page 15 June 6, 2001 MR. CARLSON: I'll second. CHAIRMAN SANSBURY: Second by Mr. Carlson. Discussion? Hearing none, all in favor of the motion say aye. CHAIRMAN SANSBURY: Aye. MR. CARLSON: Aye. MR. COE: Aye. MR. STONE: Aye. MR. GAL: Aye. MS. LYNNE: Aye. MS. SANTORO: Aye. MR. HILL: Aye. CHAIRMAN SANSBURY: Opposed, same sign. (No response.) CHAIRMAN SANSBURY: Motion passed unanimously. Okay. The Land Development Code. Who is going to be our leader on this one, Barb? MS. BURGESON: I'm going to make a presentation of the changes. I think that maybe what we might want to discuss first is what Mr. Hill had asked us -- CHAIRMAN SANSBURY: Okay. MS. BURGESON: -- on the hearing examiner, whether you want to hear that item again or whether you want to make a vote on that item, and then we can go forward with the environmental ordinances. CHAIRMAN SANSBURY: Okay. Why don't we do that. Why don't we have a discussion regarding our position on the hearing examiner, and why don't I give the floor to Mr. Hill and let him start it off. MR. HILL: Basically, I'm opposed to instituting this procedure for several reasons. One is, I believe taking the EAC totally out of the current procedure eliminates a potentially very Page16 June 6, 2001 effective check and balance for the approval of these development projects. Secondly, the nature of the responsibility of the proposed hearing examiner, I think, falls short of giving the public and the county proper impact in this entire process. Thirdly -- and I guess this is based on -- I don't know whether it was the GOP's position or somebody else's position as reported in the paper, that they want to -- they're suggesting to hire somewhat of an ombudsman, which seems to me is totally irrelevant here and puts the impact in the wrong place. As constituted now -- and I'm not so sure that this document represents the current proposal -- this hearing examiner program that we have, I think it needs more refinement to make an improvement in the process of which we are currently a part. CHAIRMAN SANSBURY: Thank you, sir. MR. HILL: Let's kick it off with that. CHAIRMAN SANSBURY: Mr. Carlson. MR. CARLSON: I work with this system in Lee County. And I was just up there yesterday appearing before the Board of County Commissioners, and they overturned a decision of the hearing examiner based on testimony at the county commission meeting. So let me tell you what I think are the pros and cons of this. The pro is that when you institute the hearing examiner process, the hearing examiner has one thing on his agenda and that is that application. That's one thing. And I've been to two of these hearings, and they are advertised; anybody's allowed to come. There doesn't seem to be any limit to the amount of time that you can make your presentation to the hearing examiner. There's no limit on how many people can be there. If this thing takes all day, if it goes past one day and into the next day, by golly, you stick with that Page 17 June 6, 2001 hearing until everybody's heard and that entire case is built. And that's very different than having an item on an agenda where people are looking at the clock, and, you know, they've got a lot of things to do. So I think that's -- that's a real pro. I mean, the con is you've got one person there and that's a human being, and, you know, if that human being has any biases, then you've got some big problems. In the Lee County system, which I'm not sure if it's proposed for this hearing examiner proposal' but you can appeal a decision of the hearing examiner to the county commission, and then everyone who testified to the hearing examiner has standing then at the next county commission meeting. But again, you go into a county commission meeting where there's a long agenda, and you get three minutes to address the commission. But those hearing examiner decisions can be overturned. It happened in Lee County yesterday. So I think there is or can be a balance to this so -- you know, you build your case, and there's a record there, and it can be a very thorough case and very lengthy record and everyone is heard. I think the burden, then, is on the committees like this to have every, you know, "1" dotted and "T' crossed on our Growth Management Plan and Land Development Codes so that the hearing examiner has a very thorough and detailed base to work from. I think that's the key to it. If we go with this hearing examiner system, we need to go back through these codes and make sure they are absolutely bulletproof, and I -- you know, I think that can work. CHAIRMAN SANSBURY: Mr. Gal, do you have a comment? MR. GAL: Are you asking me? CHAIRMAN SANSBURY: Mr. Gal. MR. GAL: No. No, I don't have a comment. Page 18 June 6, 2001 CHAIRMAN SANSBURY: Okay, sir. Ms. Lynne. MS. LYNNE: I've been reviewing the hearing examiner proposal with the property owners' associations of North Collier County, and in the edition that I read, there is a time limit in the sense that the hearing examiner may cut short any testimony if he feels it's irrelevant or too emotional or just has gone on too long. There's also provision in there to fade out the EAC, to be reviewed every four years and maybe get rid of it. And that's not done in any of the other boards. In terms of the appeal process, the appeal process is limited to the people who appeared before the hearing examiner. If this is an issue you learned about later, then you are no longer going to be able to testify. It shortens the period of time that the public can be involved from a period of four to six weeks having to go through several boards, to a period of fifteen days. The one suggestion that I've seen that makes sense if they're going to go through with the hearing examiner, is to -- the suggestion was made for the Board of County -- the Board of Collier County Commissioners that if two board members felt that a petition needed to be heard by the whole board, they could bring it before the Board instead of having responsibility at the hearing examiner level. And this could also be done at the EAC level if there were two EAC members who felt that a proposal was environmentally significant that it would have to be brought before the EAC. CHAIRMAN SANSBURY: Ms. Santoro, do you have a comment? MS. SANTORO: I definitely think it needs revision. I'm concerned because it does take the Environmental Advisory Council out of any decisions on excavations, special treatment lands, wetlands. We've discussed not having to look at each Page t9 June 6, 2001 petition, but I certainly think we need some way to get input. I'm very concerned about the fact that the public's time may be impaired for learning about a project and having input to members. I'm even more appalled at the fact that $250,000 is being spent in view of the Zoning Board, the Planning Board, and the Environmental Council. I'm sure -- and I'm listening to Ed with great interest -- I'm sure that there's a combination. I definitely would like to see the public approach so that they have time to learn of a project and have input. I'm very concerned about that. I'd like to see some combination, but I'm also concerned that we who are interested - - unpaid volunteers who are interested in the environment with no other vested interest are being faded out to a degree. I think that anybody who serves on a Board, has the true interest of the public at heart, I'd like to see some grave considerations of either revising it and allowing the hearing examiner some purview, but also balancing it with the public and other interested volunteer citizens' concerns. CHAIRMAN SANSBURY: Okay. Mr. Stone, do you have any comment? MR. STONE: I agree with Ms. Santoro. work. CHAIRMAN SANSBURY: All right, sir. I think it needs more Mr. Coe. MR. COE: I agree with Ed almost completely in that I like the idea of a hearing examiner who actually is going to look at the rules and regulations that we as councilmembers or the Planning Advisory Board come up with and that we will then have the opportunity to focus on those regarding development in the county. Up to this point, we're kind of knee-jerk reacting to whatever is brought before us. And, you know, we've got some of these codes that we've looked at for three, four times that we're trying to revise, and we Page 20 June 6, 2001 just can't quite seem to get to it because of other projects that pop up. A good example is the ATV problem on the beach. We've spent, as a board, not including spare time at home studying this, eight-and-a-half board hours. It's eye-watering. It would be much easier for us to evaluate the ordinance, write it in such a way, you know, whatever way it went, where the hearing examiner could take a look at it and very clearly decide whether the application for ATVs on the beach, for example, met within the Growth Management Plan. It was real simple, but we have been wrapped around various representatives from the conservative -- or from the Conservancy all the way to the head of the Ritz-Carlton coming before us, which, quite frankly, takes us away from what I feel is our real ]ob, and that's to look at the development of the county in light of the environmental concerns that we have as community members. So I'm very much for it. I want to make sure, though, that the hearing examiner will be provided with enough testimony in front of him to make a good decision. And he should be able to cut out, you know, people that are just up there to pontificate. Their wife is tired of hearing it, and so the guy decides to come before the Board. That's all I have. CHAIRMAN SANSBURY: Thank you. I listened to what Mr. Carlson had to say with interest because he's had experience in this in the Lee County situation. And the biggest concern I have is the fact that does it eliminate the public input. And what I hear from Ed is that there's still available -- available time for the public input. That concerns me. The objective approach of a hearing examiner is something I think would be positive. I think we have to look at past the function of this particular council. I agree with Mr. Coe and Mr. Page 21 June 6, 2001 Carlson both that if we could concentrate on things such as the Land Development Code, such as policies and procedures and -- that's where our focus should be, and that's what I think that this policy would do. Like Mr. Carlson and Mr. Coe, I would support it with some modifications to make sure that there is input from the public. So with that in hand, it sounds like -- go ahead, Mr. Hill. MR. HILL: One other comment, and this was what originally caused me to question it. In this document, which I think that -- Pat, you are the author-- put this together? MR. WHITE: Guilty as charged. MR. HILL: Okay. The Planning Commission function is outlined; the BCA function is outlined; EAC is conspicuous in its absence. And I'd be concerned that at least if we go this route that in the process we define who and what we're going to be. MR. WHITE: I believe the Division 5 provisions you're referring to, indeed, do set forth all of the boundaries, if you will, of what each of the various entities you mentioned have as duties and functions. The only function that's being removed from the EAC or the Planning Commission is the determination of quasi-judicial matters. All other functions and duties remain in place. And as to Ms. Lynne's comment that there's a provision in there about four years and phasing out, I can tell you that is not new language. That's the way it has always been since this council was constituted, and that's not proposed to change. So I understand the concerns about diminishing the role with respect to quasi-judicial matters and the experience and the time and the effort that -- and the commitment that all of you have to that regard, but I believe that some of the members have gleaned what the intent is here, which is to focus on the face of the coin that deals with policy refinement and policy review and Page 22 June 6, 2001 bringing those matters into the fold of the land-use decision- making process. The thing that's important to understand -- well, there's actually two that I want to make sure that you-all understand. And first is that -- that this is the next in a series of steps that have to occur before we ever have a gentleman or lady sitting and hearing cases and best-case scenario that's next year. But before that happens this next baby step, at some point, would have to occur. We're proposing that it look like what you have in front of you, but that is not cast in cement. It is not going to harden because that cement doesn't set until the Board of County Commissioners by a subsequent resolution, four-fifth vote, would then make these provisions effective. And it's understood that those will not -- that resolution will not be anticipated by the folks who are drafting this provision, staff and myself, until such time as the matters pertaining to citizen participation, enhanced notice, prehearing meetings, the concept of an ombudsman or some other means of assuring additional public input are all adequately addressed by the board. The idea is that this does not implement a hearing examiner program. It merely creates the first, if you would, set of regulations that would apply if at some point in time in the future the Board made them effective. So I want the make sure that, you know, those concepts are out there. The idea that it needs more work, agreed. But unless you have some place to start from, there's nothing, if you will, that we can modify or work from. What we've hoped or I personally have hoped, in all of the hearings that I've been in on this matter, is that there would be a substantive discussion about those provisions. But for your question and other limited ones from the DSAC, I've heard none. Page 23 June 6, 2001 The whole discussion has been, in my mind, from what I've heard, about whether we should have a hearing examiner or not. I don't believe that's totally what the discussion ought to be about. If we're really having a earnest discussion, we ought to be talking, I believe, about how it ought to look because I was under, I guess, the board's direction to at least bring them back something that would allow them in the future to implement a hearing examiner process. First we have to create it. And what we have for your consideration is perhaps all of the 64 crayons in the box. We may have gone, quote, unquote, too far. But the point is that the direction we've gotten from the board in October was to come back in June with these proposals. And the idea, rough contours, were that the hearing examiner would only make final decisions about variances and lesser types of quasi-judicial matters including some administrative matters. Every other type of use changing land-use decision would remain with the Board of County Commissioners, and it would help clarify that it wouldn't be sometimes sitting as the BZA sometimes sitting as the BCC; it would help to simplify the process. I'll conclude by saying that I understand the concerns. I think there are amongst them ones that are very legitimate, that have been heard and have been understood even before this set of regulations were proposed and put down on paper, that they would occur before the program itself was actually, quote, implemented. And I'll kind of get off my soapbox at this point. I thank you for your input, truly I do. And if there are any specific questions, I'll be happy to address them. CHAIRMAN SANSBURY: Anything further, Mr. Hill? MR. HILL: No. I was somewhat playing devil's advocate to start with not realizing I was going to be called upon to set the -- set the platform here. But -- no, I -- in essence, I agree with the Page 24 June 6, 2001 concept. I think it has a lot of scary aspects to it at this time. MR. WHITE: Those are the things that I think if we were, quote, not necessarily hearing quasi-judicial cases every month, we might have the time to have more detailed discussion about, without spending all of our time on solely that. MS. SANTORO: May I ask Ed a question? CHAIRMAN SANSBURY: Yes, ma'am. MS. SANTORO: Just because you have worked with it in Lee County. MR. CARLSON: Yes. MS. SANTORO: How user-friendly is it to the public? What if somebody wants to go, but they're working? Do they set hours where it's nighttime or where people can go, or do they have to just go and sign up on a list and take their chances and sit for hours? And same thing with maybe one of us Board members. I mean, how friendly is it to people? MR. CARLSON: Okay. Having had two experiences in Lee County, maybe -- Patrick, you're from Lee County. Maybe you could answer this better than I can but-- MR. WHITE: Actually, I'm from Western New York, but quite honestly, I did serve previously as an assistant county attorney in the Land Use Division in Lee County for seven years. And I can tell you that I've participated and sat in probably hundreds of hearing examiner hearings. I need not tell you what my opinion is or my observations have been. You have staff -- well, certainly Mr. Reischl present today. We as a group went up there a week ago -- two weeks ago Thursday, I believe, now and observed. And I can let you take his input on what his observations were. Simply, I think it is far more user-friendly than having to appear before a group of individuals. It's certainly less intimidating, and it's more akin to a dialogue than any other Page 25 June 6, 200t forum that I've seen for, quote, quasi-judicial proceedings so... MR. CARLSON: Yeah, I think that's a -- I think that's another good point. But just to answer Ali's question, both the hearings I went to were advertised, and they were -- they were during the day, and they well attended by residents, housewives, and, you know, tradespeople. You know, the room was full of those -- those, you know -- that slice of residents. And that's a good point because you're not addressing an entire board, and you're not in this kind of environment. And one of the -- one -- I think, one of the factors to consider is, it's a much more informal setting when you're talking to one hearing examiner, and there's a court reporter over in the corner, and you're not in this very formal -- TV monitors and things all around you. So, you know, I think that is -- that is probably another-- another pro to add to the list of that process. But they were daytime meetings, both the ones I went to. And I think the first one extended into the next day there was so much testimony. They cut it off, and they continued it the next day. MR. WHITE: To address the Councilmember's question specifically with respect to the time, yes, typically they were daytime proceedings. But I think that's the case with every other quasi-judicial determination entity that we have, whether it's the BZA the BCC, the CCPC, or the EAC. So that's -- but certainly that's something that could be considered because instead of having to flex five o'clock to nine o'clock schedules, you have one to set an evening meeting if that need be. The second point I'd like to make in response to that is that if you're, quote, not able to appear because you have to work that day, maybe you have to be in court for some other matter, for example, you can have an agent represent your interests. It need not be an attorney; it certainly ought not be an attorney if Page 26 June 6, 2001 what your concerns are are similar to those of, for example, your neighbors and pertain to maybe traffic or noise or glare, whatever the case may be. And if you are present, even by an agent, in front of the hearing examiner, you're entitled to appear as yourself or with a different agent representing your interests in front of the Board of County Commissioners. And although the time period is brief, I'd just like to say that -- although Mr. Carlson's right, it is brief, it's certainly longer than three minutes. And you can, on occasion with the permission of the board chairman, accumulate your time. For example, you have five people who all want to speak, but they all have the same, quote, agent representative, whether it's an attorney, an engineer, a planner, or whatever the case may be, whoever is going to try to present the most compelling argument to the board. They can, with the board chairman's permission, accumulate that time so they can make that presentation. I'd really like to get Fred's comments if we could, Mr. Chairman. Hopefully, he'll be more brief than I have been. CHAIRMAN SANSBURY: Okay. Any further discussion? Oh, yes, sir. Excuse me, I'm sorry. I wasn't paying attention. MR. REISCHL: Fred Reischl, Planning Services. I'll echo what Mr. White said, that it was very user-friendly on my one visit there, informal. Again, you don't have nine people sitting up on a dais questioning the average guy standing at the podium. It's one hearing examiner sitting at a table -- this is how they do it in Lee County; I don't know if we'd incorporate the same thing -- but one hearing examiner at a table. Across the table is the other person talking one-on-one. Instead of putting pictures on a visualizer, they would go over and hand them the photo and point out on the photo one-on-one. Page 27 June 6, 2001 As to public input, the hearings were time certain. So at 10:30 the hearing would start for case '"'X.' everybody who wanted to appear and testify before case '"'X" would be there at 10:30, and they knew it would start at 10:30. So you don't have what you have in front of the EAC, CCPC, and BCC where you sit there for nine hours waiting for your case to come up. If the case before it looked like it was going to run over, I think they said generally about 15 minutes, they'd let it go over the time by about 15 minutes, then as Mr. Carlson said, they'd move it to the next day or the next available hearing date. So it's much more user-friendly that way. Both hearing examiners that I saw would go out of their way to ask people in the audience, "Do you have something to say? Are you in favor? Are you against?" Some people were just sitting in the audience, and the hearing examiner said, "Did you want to testify? Are you for or are you against?" And so they were -- instead of just believed to be there as observers, they were actually evoking their testimony. Any other questions? I mean, I was there at a hearing, and it didn't change my opinion of it, but it made it appear a much more realistic and, as I said, user-friendly type of hearing. CHAIRMAN SANSBURY: Questions from council? MR. WHITE: I'm assuming Mr. Reischl's original opinion was in favor, but at least he thought it was a good idea. CHAIRMAN SANSBURY: Okay. MR. CARLSON: Also, when that -- when that hearing examiner report comes out and is submitted to the Board and available to the public, everyone who even wrote a letter who didn't even appear at the hearing, if they wrote a letter, that's included as an appendix in the back of the -- the name and the address of everyone who responded pro or con. Page 28 June 6, 2001 MR. WHITE: And they -- then they receive a written copy of that decision or recommendation. MR. CARLSON: Now, if they wrote a letter, would they have standing before the county commission if they didn't appear at the hearing? MR. WHITE: They would not be entitled to testify or -- but the idea is whether any of the issues that may have been in their letter have been raised by others. And certainly those issues are the things that, I believe, the process is attempting to identify what the issues and concerns are. Because the big picture here is, you have a development that's proposed. It's going to have impact. Off site, on site and whatever they may be, the process is intended -- all the policies of the plan, all of the regulations of the code are intended to balance those private-property interests in a way that the impacts are addressed. And the idea becomes are we going to have the issues as you've indicated decided by reason in the application of, if you would, facts to the regulations, or are we going to have a different kind of process. I believe that the government has invested a tremendous amount of the taxpayers' money in creating a process that is issue driven and is reason based and in attempting to find the best possible answer. And I'm not negating any of the comments that were raised with regards to public input. I think it's absolutely essential, and the process should be the best and most innovative, user-friendly one that Florida's ever seen. So, again, get off that soapbox. CHAIRMAN SANSBURY: Okay. MR. REISCHL: Mr. Chairman, if I could just throw in another observation. CHAIRMAN SANSBURY: Yes, sir. MR. REISCHL: Another thing that I found interesting actually Page 29 June 6, 2001 observing it rather than reading the text, was that the decision is not rendered that day. The hearing examiner gathers all the testimony, the evidence, takes approximately two weeks, is what they told us, looks at the code, the Growth Management Plan case law, and actually makes a site visit. I asked this question of one the hearing examiners. He said he makes a site visit for every hearing that he hears, except, I think he said, like upper Captiva or something that he was very familiar with and took a long time to get there, but he makes a site visit on every hearing. And I know you, the Planning Commission, and the board cannot possibly as volunteers have the time to visit every site that you look at. So I thought that was an important thing to put in. They take all that into the mix and then issue a decision approximately two to three weeks later. CHAIRMAN SANSBURY: Okay. Thanks. Any other questions? Yes, ma'am. MS. LYNNE: They're voting on the hearing examiner proposal, Mr. White, on this LDC cycle; is that correct? MR. WHITE: The proposal for the hearing examiner is a subsection of the entire LDC round of amendments that the Board will consider this evening at a 5:05 hearing and on June 20th similarly at a 5:05 in these chambers. Even if the board approves the package as it exists or with some modification, they may direct this evening, for example, with respect to the CCPC's recommendation, they found the proposed package for their hearing examiner consistent and asked that there be -- as to those things that were final decisions only, that if two or more of the board members within a specified period of time after the decision comes out and is published by the hearing examiner, that if two or more of the board members desired to have the board take jurisdiction, to, quote, rehear the Page 30 June 6, 2001 case, then, for example, that would be something we would amend what you already have seen. And that would be decided on on the 20th. But as I'd mentioned earlier, even if that is decided on on the 20th, it is still not effective. There's a provision in that you- all may have read at the end that talks about the effective date, and it indicates that the only way that this subsection of the LDC that pertains just to the hearing examiner won't become effective until the board by a four-fifth vote on a separate resolution either sets a future effective date, specifically, or as of the date of that resolution. What that means is that you-all stay in business doing exactly what you're doing under the rules as they are today until that point in time. And my belief is that we can take this next baby step very safely knowing that none of the rules are going to change, per se, until the point in time that the board is satisfied that all of the concerns that everyone here has raised and everyone in the media and all of meetings have raised. So the idea is do we take the next baby step, or do we do something else? And I think I'm pretty clear on what my preference is, but I don't get a vote. CHAIRMAN SANSBURY: Yes, ma'am. MS. LYNNE: What I don't understand is why when there's been so much feedback about changes that need to be made, why do we need to push to hear it this cycle? Why not spend another six months getting it right before people have to give their recommendations? MR. WHITE: If I were hearing specific comments about how we should change the proposed text, I'd tend to agree with you far more. But I've heard none of those things. What I go back to is there seems to be a more global issue about whether we're going to do a hearing examiner or not, as opposed to how we're Page 31 June 6, 2001 going to do a hearing examiner. MS. LYNNE: I think the Second District has made some specific suggestions as well as the Republican Party. MR. WHITE: I perceive those suggestions to be ones that would act in concert with or would complement what it is that's proposed. And I'm specifically referring to the notion of a citizen advocate or an ombudsman. I'm not too familiar with the Second District proposals. But, certainly, I believe its appropriate to consider all of those things, and I'm not trying to diminish the need to consider them. But, as I'd mentioned earlier, there's one face of the coin that deals with having those volunteer boards work in concert with the Board of County Commissioners to look at the policies of the comp plan, to look at the Land Development Code, take a chunk of it on a regular basis, every four years, whatever it may be, and review it. You're the folks that have seen these quasi-judicial cases. You've heard what the folks have said; you've applied these rules. We need the benefit of your experience. I'm not suggesting to any extent that we diminish your role. I'm really looking at this in a way that it helps to polish that face of the coin that says the participation and the policy refinement is where the value is. The other side of the coin with respect to the quasi-judicial process for individual cases, yes, it needs to be supplemented. Those ideas need to be implemented. But does that stand as justification to step off of the tracks we've been on? I don't know. CHAIRMAN SANSBURY: Okay. Let's move forward. What is the pleasure of the council regarding the hearing examiner issue? Hmmm, we discussed this a while. MR. HILL: I move we go on record approving the concept of Page 32 June 6, 2001 the hearing examiner and at the same time requesting a role in the future -- in the future legal standing of the hearing examiner in the development review process. CHAIRMAN SANSBURY: Motion by Mr. Hill. Do I hear a second to Mr. Hill's motion? MR. COE: I don't know what you just said. MR. CARLSON: Can we discuss it yet? CHAIRMAN SANSBURY: Yeah, let's-- MR. COE: I don't know what you said. MR. CARLSON: Would you like to add the specific concerns of the board now about -- MR. COE: Well-- MR. CARLSON: -- public notice and all those things that we -- that were brought up here? MR. HILL: I could. I didn't want to miss something in putting that grocery list together, but my motion was that we approve the concept of a hearing examiner but would like to reserve a position for the EAC and the review of the final document or the final legislation, whatever, because of concerns. MR. WHITE: I can tell you that the commitment from the division administrator is that this Council would absolutely have input on whatever additional LDC changes might be proposed with respect to this package. As a matter of fact, I'd be willing to meet with any of you individually or as a, quote, formal meeting to discuss those ideas that you may have about how to enhance citizen participation; how to find, perhaps, some role in the input and final decision making that the hearing examiner has. So -- I don't mean to muddle. CHAIRMAN SANSBURY: Okay. We have a motion on the floor. Do we hear a second to Mr. Hill's motion? MR. CARLSON: I want more discussion. MS. LYNNE: I do. Page 33 June 6, 2001 CHAIRMAN SANSBURY: Second to -- okay, discussion. MS. LYNNE: I would like to see attached to the motion a similar qualification like the Planning Commission did, that if there's a certain number of people on this board who thinks that a decision needs to be reviewed by the EAC, that we can pull it back for review. That's what you said, isn't it, Patrick, that theCCPC recommended? MR. WHITE: The CCPC's recommendation was directed towards the Board of County Commissioners being able to take jurisdiction of matters that the hearing examiner had final decision-making authority on, variances in lesser matters. They did not, for example, if I understand the nature of your motion, recommend that the Planning Commission be able to take jurisdiction to hear a case. The distinction I hear in your proposed amendment to the motion is that the EAC would also be receiving decisions of the hearing examiner and copies of recommendations of the hearing examiner in all cases as with the CCPC and the board. That's the way it's proposed to be right nOW. You-all would have, if I understand your proposal, a period of time -- if two or more or whatever the numbers you'd suggest -- if they were to request this council to take jurisdiction to, quote, hear the case, and I believe that's what you're suggesting. MS. LYNNE: Uh-huh. CHAIRMAN SANSBURY: Does the maker of the motion wish to revise the motion? MR. HILL: I'll accept that as an amendment if that's... CHAIRMAN SANSBURY: Okay. Do we have any idea at this point what the motion really says? Can we try to do that real quick? MR. COE: I'd like to throw this out. I think two people is too small of a group. Two people to drive a group this size is too Page 34 June 6, 2001 small. CHAIRMAN SANSBURY: We haven't decided that two, three -- that part we haven't decided yet. MR. COE: Okay. CHAIRMAN SANSBURY: I don't think -- we're just saying we have the option to sit and set those kind of -- make those kind of requests. Am I correct? Whether it be two or five. MR. COE: I think we ought to vote on what we're going to do mi CHAIRMAN SANSBURY: Okay. MR. COE: -- and give that to Patrick so he can give that recommendation to the county commissioners. CHAIRMAN SANSBURY: Why don't I ask Mr. Hill to restate it MR. HILL: Apparently, my motion is falling on deaf ears. Let me simplify it and simply say that I move that the EAC go on record as approving the concept of the hearing examiner, period. CHAIRMAN SANSBURY: Do I hear a second for that motion? (No response.) CHAIRMAN SANSBURY: Okay. Motion dies from lack of second. Shall we try again, Mr. -- would anyone else like to try? MR. COE'. I'd like to make a motion to approve the concept of a hearing examiner, however, with the caveat that if three members or more of the EAC after review of the hearing examiner's decision, if they decide they would like to bring it before the EAC for a full review, then three or more, if they do that, they can bring it before the EAC. CHAIRMAN SANSBURY: Discussion on that -- second that motion? MS. SANTORO: I'll second. CHAIRMAN SANSBURY: Second by Ms. Santoro. Discussion Page 35 June 6, 2001 on that motion? MR. WHITE: If I may comment briefly, Mr. Chairman? CHAIRMAN SANSBURY: Yes, sir. MR. WHITE: If I understand the motion maker's motion, it is that it would be the three members with respect to final decisions of the hearing examiner only, the variances and lesser included? MR. COE: Yeah. CHAIRMAN SANSBURY: MR. COE: Yeah. CHAIRMAN SANSBURY: Okay. Okay. Any further discussion on it? MR. HILL: I go back to Ed's question, then. Do we want to put in all of our other concerns then? Do we want to try to rewrite the text at this time? Then some of our other concerns ought to be in there. If not, then we -- we drop it and simply go on record to approve the idea. CHAIRMAN SANSBURY: Just a question of -- are we saying -- I think we all agree on one thing -- or most of us agree that we approve the concept of a hearing examiner, but we would like to, as a council, have input in how the operating rules or how the actual rules are written when they're actually detailed as to how the hearing examiner operates and as to what input the Environmental Advisory Council has on that operation. I think it's hard to get into detail on that right now because we don't know where those rules are going. We reserve the right to -- or request the right to have input on how -- Patrick, would they be rules? What would it be called when the actual ordinance is set up? MR. WHITE: Let me share with you what the -- the -- I guess you'd say the vision has been so far. Assuming we were to take this next baby step -- and that's why I think it's so important that we at least attempt to take this step because it then allows you Page 36 June 6, 2001 to have those discussions with something as a backdrop in a framework from which to move forward and to adjust it if it needs to be adjusted. One of the things that has to occur is there has to be an administrative code that the board will ultimately pass that will deal with some of these procedural aspects of establishing the mechanics for a hearing examiner program, including how you go about selecting the hearing examiner. The vision there is that one or more members of each of the quasi-judicial decision-making entities that presently exist, including the EAC, the CCPC, would serve on a select committee that would make recommendations to the Board, ultimately, as to who they thought was the best set of candidates. That committee would also, as it's envisioned, establish any additional criteria that they thought were essential to have in a hearing examiner and would participate in the initial round of resume review and interviews. So I see that as having a significant role, both in the selection of who that individual may be and in the process by which you create the rules under which they will operate, which means not only the administrative code that will be necessary, but also any further amendments to the Land Development Code which are anticipated in September with respect to citizen participation, which may include, for example, an ombudsman or some other notion of enhanced notice in prehearing meetings for certain types of land-use cases, large PUDs, whatever the case may be. So I think that's envisioned. And if I could just maybe, perhaps, make a simple suggestion. When I've seen committees and boards deal with these types of complex issues, sometimes it is helpful to take them in a step-wise approach. If you want to make a series of motions that leads you through the mine field, if Page 37 June 6, 2001 you will, you might want to start with a motion approving the concept, and then move to a motion that says, okay, but we want to recommend that there be enhanced citizen participation and that we participate in the creation of that process. You may have one that's a further recommendation that says that we want to participate in the selection of the actual hearing examiner. I think those are all things that, if set forth separately as motions that you vote on, may send a more clear message to the board because, believe me, I do want to deliver your message at 5:05 this evening, whatever that may be. MR. HILL: Mr. Chairman, my original motion said, I think -- maybe it said it poorly, exactly what you repeated, that we approve the concept but reserve the right to have a role in the finalization of the legislation. I think that's what you just -- CHAIRMAN SANSBURY: Why don't we use the two terms that Patrick used, and that is that we reserve the -- a role in the establishment of the administrative code and any amendments to the LDC which may affect the hearing officer, and that would include the selection of the hearing officer, okay? MR. COE: We have a motion and a second for a vote. CHAIRMAN SANSBURY: Okay. There's a motion and a second -- Mr. Hill -- who's motion is on the table? MR. COE: Mine. CHAIRMAN SANSBURY: Yours. MS. SANTORO: And I seconded it. CHAIRMAN SANSBURY: I even forgot what yours was. MR. COE: And you've got a second for it. SANSBURY: Okay. Do you want to restate your motion? MR. COE: I voted for the hearing examiner, and it would require three members or more to bring any -- any decision that was made by the hearing examiner before the board for a full hearing. In other words, instead of hers, which was two or more, Page 38 June 6, 2001 my recommendation was three or more. And we've got a second from Mrs. Santoro. CHAIRMAN SANSBURY: Santoro. In favor of Mr. Coe's motion say aye. MR. MR. MS. MS. GAL: Aye. COE: Aye. SANTORO: Aye. LYNNE: Aye. Let's vote on this motion. MR. STONE: Aye. CHAIRMAN SANSBURY: MR. HILL: Aye. MR. CARLSON: Aye. MR. COE: Four to three. CHAIRMAN SANSBURY: can't do it, right? MS. MR. MR. Opposed by same sign. Aye. Well, that means four to three. I BURGESON: I believe Alfred -- WHITE: Did we get a vote from Mr. Gal? GAL: I voted for the motion. MR. WHITE: That's five three. CHAIRMAN SANSBURY: Five to three with Mr. Gal voting affirmative. I forgot you Mr. Gal, I'm sorry. MR. COE: Five, three. CHAIRMAN SANSBURY: So that is the position. Okay? Move forward. MR. HILL: Nothing else. No other -- CHAIRMAN SANSBURY: Continued discussion of the Land Development Code amendments. MS. BURGESON: The next three items are the environmental items that are proposed as Land Development Code amendments during this cycle. I met with the development services administrator this morning, and in his absence at this meeting I was asked to give you a brief presentation. Page 39 June 6, 2001 I've been asked to let you know that staff has found the -- that any proposed additional -- or that the proposed additional use of vehicles on the beach is not consistent with the Collier County Growth Management Plan, and that staff would recommend that you should not approve any language from -- for inclusion in the LDC that is not consistent with the Growth Management Plan and that it needs to be amended first. Staff is suggesting to this council and will also be making a suggestion to the BCC this evening not to hear those items that are not consistent. You don't need to hear the item as presented by staff or hear any discussions on that. And I'm prepared to present to you LDC amendments this morning without that inconsistent vehicle-on-the-beach language for your considerations and approval. CHAIRMAN SANSBURY: What's your pleasure? MR. COE: That's fine. CHAIRMAN SANSBURY: Go ahead. MR. COE: Go ahead. CHAIRMAN SANSBURY: Do it. MS. BURGESON: Moving forward with the language, what I've submitted to you this morning does not have the deletions of the inconsistent language, but if you'll take a look at the vehicle- on-the-beach regulation, 3.14. CHAIRMAN SANSBURY: Which page, Barb? MS. BURGESON: What I've handed out to you is three separate Land Development Code amendments. CHAIRMAN SANSBURY: Oh, the new ones, the new ones. Okay. I'm sorry. MS. BURGESON: I'm looking -- looking at the one that's 3.14, vehicle-on-the-beach regulations. A great deal of that is not going to be recommended for approval. I'll just present to you those items that we are recommending that are consistent with Page 40 June 6, 2001 MS. LYNNE: MR. WHITE: would be, "yes.". the Growth Management Plan. If you go to the second page, the fourth paragraph down, "all vehicles shall be equipped with large pneumatic tires having a maximum ground-to-tire pressure of 10 PSI." that language we are recommending be added into the Land Development Code. Is everyone following me? MR. WHITE: Just for my information, I'm sorry -- I -- could I -- I believe you said Section 3.14.3.4.47 MS. BURGESON: To make it easier, I'm going to hand out a copy that I'm working off of here. What I'd like you to do with the copy I'm handing out is just pay attention to those items that are not struck through or highlighted, and those are the recommendations of staff to be included in the Land Development Code. MS. LYNNE: So everything that's gray is omitted? MS. BURGESON: Everything that's gray staff has determined is inconsistent -- inconsistent. And so what we're recommending are those areas that are not highlighted. Got it. Just for the record, the answer to my question MS. BURGESON: I'm sorry, Patrick. On the second page, it's easier to see now, the paragraph that is not highlighted, we're recommending that we add a clarification to the PSI. If you flip four pages past that, we have some minor clarifications to the beach raking and mechanical beach cleaning section, 3.14.5. Those are just minor changes. Under 3.14.6 we are suggesting changes to operating vehicles on the beach during marine turtle nesting season. Those are more substantive changes. They include a disclaimer on the Endangered Species Act at the bottom of the first paragraph. "Permits issued pursuant to this division are not Page 41 June 6, 2001 intended to authorize any violation of 370.12 Florida Statutes or any of the provisions of the Endangered Species Act of 1973 as it may be amended.". MR. WHITE: If I may, just briefly. The 370.12 is the state parallel to federal ESA. MS. BURGESON: Under 3.14.7 we're recommending adding tire tread identification. That was something that was discussed during the last presentation. There hasn't been any changes to that. On the next page, which discusses penalties, we are saying that violations of Section 3.14.5 which do not occur during sea turtle nesting season are subject to up to a $500 fine per violation. And in 3.14.8.2 we're identifying minor and major infractions during sea turtle nesting season. That hasn't changed since the presentation to you last time with the exception that we've clarified the first, second, and third violation. MR. WHITE: If I may interrupt briefly, again, Mr. Chairman. I believe we may have had a discussion -- I had a discussion with staff and would propose adding after the words, "minor infractions and major infractions," just to be abundantly clear, the words of Section 3.14.5, so it's absolutely certain that what we're talking about are infractions of the same section that's mentioned up above pertaining to violations that do not occur during sea turtle. So that ones that do occur during sea turtle that are violations of Section 3.14.5 also be included. MS. BURGESON: The first, second, and third violations include increasing fines. And each violation includes a suspension for 70 days, which is the length of time that it would take a nest to hatch if one were missed due to these infractions. 3.14.7.3 keeps violations -- or adds violation to the vehicle- on-the-beach section of the Land Development Code. Page 42 June 6, 2001 :3.14.3.2, which is what has been in the Land Development Code since 1991, and it just allows the code enforcement department the ability to cite those violations with up to $500 fine per violation. I don't know if you want to discuss these as a board individually or whether you want me to go through the other two items first. CHAIRMAN SANSBURY: What's the pleasure? MR. COE: I'd like to discuss this and get it out of the way. CHAIRMAN SANSBURY: Individually, okay. On this particular item, again, as I did last time, my employer does own property that could possibly be affected by this, so I'm going to pass the gavel to Mr. Coe. MR. COE: Any discussion? MS. SANTORO: I have one comment. I didn't think the monetary fines for major infractions during sea turtle season is enough. I'd still like to see that increased. MR. COE: What would you like to see it increased to? MS. SANTORO: Example, the five hundred changed to a thousand, the thousand changed to two and leave the other one at five thousand. And that I do -- I do concur about the 70-day surveillance of the sea turtle nesting site. MR. COE: So you're saying it should be 1,000, 2,000, and 5,000? MS. SANTORO: Uh-huh. COURT REPORTER: I'm sorry, Ms. Santoro. Can you speak up a little? I'm having a little trouble hearing you. MS. SANTORO: All right. He just reiterated what I said. MR. COE: Any other comments? MR. HILL: What were the values? I did not hear them. MR. COE: 1,000, 2,000, and 5,000. Any other discussion? MR. STONE: I have a question for Patrick. Has it ever been Page 43 June 6, 2001 determined if this is compliant with the 161.587 MR. WHITE: Good question, Councilmember. At this point in time, my understanding is that the Counsel for DEP is meeting with his superiors and others in the DEP for the purposes of a discussion precisely about that issue. It's occurring, to the best of my understanding, even as we're having our discussion. That's what I learned from prior e-mails. It may be that we may neither have their -- the benefit of their opinion before the board meeting this evening, or that they may choose to not opine as they have previously, that 161.58 of the statutes is not offended by the proposed regulations as they previously related to vehicles on the beach outside of sea turtle nesting season. And that's the best information I can give you. Thank you for asking. MR. COE: Any other discussion? I feel the same as Ali does, except that I'd probably go with 1,000, 5,000, and 10,000. And that's to ensure that there is a very clear understanding after the first violation that we ratchet it up to such a level that we don't expect another violation. So I would propose 1,000, 5,000, and 10,000 penalties for the ma]or. Any other comments ? MR. WHITE: I probably should put in the record, Mr. Chairman, that if that's going to be your ultimate recommendation, that anything above a $5,000 fine would require the board to make a specific finding to get it beyond -- in order to get it beyond 5,000, there's a statutory limit if you go in front of the Code Enforcement Board. MR. COE: I don't understand how that works. MR. WHITE: Well, the statute allows you to increase penalties above $5,000, but it requires the board to make a specific finding that they want to do so with respect to this ordinance. So your recommendation would have to include a recommendation to the board -- MR. COE: Well, we would have to -- yeah, we would have to Page 44 June 6, 2001 vote on that, absolutely. MR. WHITE: Well, I'm saying the Board of County Commissioners would have to do that. MR. COE: I understand. MR. WHITE: And then the maximum penalty can be -- I believe the statute allows it up to 50,000. MR. COE: Okay. Thank you. Any other discussions? Any public comments? I'm going to limit to five minutes. One representative from whichever group is going to speak. Yes, sir. MR. STAROS: I'd like to make -- I'm Ed Staros, the managing director of the Ritz-Carlton Naples Hotel. My comments will be less than five minutes but will be generic in nature. Ladies and gentlemen of the Environmental Advisory Council, in 1992 when President Bush handed me the Malcomb Baldridge Award in Washington D.C., he thanked me and our company for being a model corporation; for being a model corporation in process management as well as our being a good community citizen that was environmentally sensitive. That's a requirement to win the Baldridge award. In 1999 I had the pleasure of meeting President Clinton when he handed me the 1999 Malcomb Baldridge Award. And in that 1999 Baldridge Award a larger section of the award was because -- was on the topic of being a model community citizen which is environmentally sensitive. In the year 2000, Jeb Bush handed me the Sterling Award for the State of Florida for being a model corporation who is environmentally sensitive. We didn't get to be the largest employer in Collier County-- or largest private employer in Collier County with a $22 million payroll by accident. We did through excellence in service, product, and being a model citizen who is environmentally sensitive. Page 45 June 6, 200t I ask but one thing of you: When you make your recommendations to the Board of County Commissioners, I'd like common sense to prevail. MS. BURGESON: If I could interrupt. We have some background sound, Alfred. The background sound is coming from your conference call. MR. GAL: I apologize for that. The meeting I'm in just let out so there are a bunch of people milling around. MS. BURGESON: Okay. If you can try to help to block that to some degree, that's a little distracting. Thank you. CHAIRMAN SANSBURY: Sounds like a ball game to me, Alfred. I'm worried about that. MR. COE: Probably is. Any other input or comments? MR. GRABINSKI: Yes. For the record, Matthew Grabinski here on behalf of the Ritz-Carlton. COURT REPORTER: Could you spell your last name for me, sir? MR. GRABINSKI: Yes, G-r-a-b-i-n-s-k-i. Just for clarification, are we only addressing the vehicles- on-the-beach amendment issues now, or are we going to discuss the beach-events permit and the CCSL variance as well? MS. BURGESON: Just the vehicle-on-the-beach. MR. GRABINSKI: Okay. I have some handouts for each of you that pertain to all of the amendments, since we're going to start with the vehicles, as well as some photographs of the Ritz- Carlton service boardwalk with and without an ATV on it and a photograph of one of their push carts that they have used on their beach. Hello, again. I'm going to make this short and brief. With respect to the vehicles-on-the-beach amendments, there are a few changes that we would like to request. All of our changes are consistent with what the hotel was allowed to do last year Page 46 June 6, 2001 and in the prior years of its operations. First of all, with respect to the penalties, we would like all references to the suspension or revocation of the beach-events permit, not the vehicle permit or the raking or cleaning permit, but the beach-events permit removed from the code. In all prior years, the hotels have been able to operate knowing that they had a vested right to use their beach in a responsible manner. They operated with this -- under this lack of regulation last year and in prior years. If they cannot guarantee to their guests that they will be able to accommodate their beach events and their beach-party needs, they will lose business, and the lost business will inordinately burden their property. With respect to beach cleaning, we would like the code revised to allow for beach cleaning above the mean high-water line during sea turtle nesting season after a daily sea turtle monitoring program has been in place. We would also like the code revised to clarify that the hotels, during sea turtle nesting season and after the monitors have come, may use beach carts and dollies throughout the day above the mean high-water line. In the packet that I have given you, I have also furnished you with a copy of both the cleaning permit that they were issued last year that allowed them to clean their beach, as well as the permit that they were issued last year that allowed them to use dollies and push carts above the mean high-water line. With respect to the state issue that's still being talked about and discussed, in that packet I have furnished you with two letters that we have obtained from the -- Patrick Krachowski in the office of general counsel of the DEP opining that these amendments do not offend Florida Statute 161.58. I do not know what else you could require us to do with respect to that issue. So now let's talk briefly about the use of the ATV. Staff says that it's inconsistent with the Comprehensive Plan. We don't Page 47 June 6, 2001 think that it is. The plan prohibits vehicle traffic or traffic on the beach. Do you think that allowing that ATV to drive off the boardwalk, unload equipment, turn around and drive back up rises to the level of vehicle traffic? Is that really what the drafters of the Comprehensive Plan intended to prohibit? Yes, it's a vehicle, but is it vehicle traffic? If they intended to prohibit the use of all vehicles, then why didn't they just say "no vehicles"? They didn't. They said "vehicle traffic.". CHAIRMAN SANSBURY: Mr. Gal? MR. GAL: Yes. You know, I'm going to hang up the phone, I think, because I can't hear what's going on there, and I -- I really sincerely apologize to Mr. Grabinski for interrupting. Thank you. MR. COE: All right. Thank you. MR. GAL: All right. Thank you. MR. COE: I'm sorry, Matt. Go ahead. MR. GRABINSKI: As I was saying, look at it. Look at it with some reason. Does that constitute vehicle traffic? How long does it take to turn an ATV around off of a boardwalk? We've been trying to do it for fourteen months. You're in your ninth hour of this issue. We've been working on it for over a year. Should it really be so hard to find reasonableness in our laws and regulations? I'd like to point out one other matter. In the Comprehensive Plan the policy at issue says, "Vehicle traffic or traffic on the beach." it's under the section that applies to developed shorelines. There's another objective that applies to undeveloped shorelines, and in the corresponding policy it prohibits vehicles, "Prohibits motorized vehicles-on-the-beach and dunes except for.". But for developed shorelines they want to prohibit vehicle traffic. There's a difference in the language. There must be a difference in what was -- what activity was intended to be Page 48 June 6, 2001 prohibited. Do you really think allowing that ATV to drive out on a portion of the beach owned by the hotel, turn around and drive back up the boardwalk was intended to be prohibited by our Comprehensive Plan? MR. COE: Thank you, Matt. Any other public comments? Any further discussion by the board? Yes. MR. ALBEIT: I'm Ron Albeit from the Registry Resort. I'm the manager of the Registry. Thank you for your time. COURT REPORTER: I'm sorry. Could you spell your last name? MR. ALBEIT: A-I-b-e-i-t. We have been before you a number of times, and I agree with you, Mr. Coe, very much that we have gone and spent a lot of money to resolve this issue and a lot of time on our behalf to try and work with the county and staff to come to a resolution. If there is an issue here of whether this fits into the comp plan, we have worked very hard -- as you can see, the entire amendment has been crossed off as recommended now based on some concern of inconsistency with a Comprehensive Growth Plan. We met before the Planning Commission last Wednesday, and they determined that we were consistent with the comp plan. This is law, like 161.58, that is up for interpretation. And as Mr. Staros and Mr. Grabinski stated, do we really believe that operating a business on the beach such as we do at the Registry Resort which enti -- it requires us to take a canoe from the pavilion approximately six-tenths of a mile to the pass for safety issues not allowing a guest or county resident who we serve -- about 70 percent of our guests at Clam Pass are county residents -- to launch them in the ocean where they actually could tip a canoe and a safety issue of concern, to be able to take them down to the pass, which we've been doing for 16 years. It's difficult today to sit -- to be before you to find that based Page 49 June 6, 2001 on a last-minute concern about a Comprehensive Plan, which we all want to be in conjunction -- it's what we're all here about, to work with the code and amend it to fit where we are today. All law needs to change as time changes. And maybe as we've been operating for 16 years and somehow have not been in compliance with regulations, we are now finally -- I thought this was a great step to make regulations, to be environmentally sensitive, and to allow the businesses to operate on the beach within the confinements of the law. And we've spent a lot of time to this point to accomplish this, and I think before you, with a couple of minor changes that we would recommend, such as the penalties of suspending our ability to operate our business, I think, is the key issue here. Monetary funds are significant, and I think they will -- they will do what they need to do. We don't plan on having violations. But we do ask that we be allowed to operate our businesses as we have had and have done since the buildings were built, since the hotels came on board. The Registry opened up in December of 1986 and from that point on operated a concession on the beach for the county to be able to allow us to utilize the pass for kayaks and canoes through the estuary. We have asked -- last year when this did -- matter did come before the county commissioners and they voted to make some changes to the Land Development Code, we left out turtle nesting season specifically so we can work on some final language and meet with the environmental groups to make sure that we would be environmentally sound in our strategy. Last year we were given the ability to operate our concession by once in the day or twice in the day, being able in the morning after inspection, bring our canoes down to the pass and at the end of the day bring the canoes back so that they can be secured. That's all we're asking to do, some reasonableness to allow Page 50 June 6, 2001 us to operate our businesses. And I don't believe, as Mr. Grabinski spoke and Mr. Staros, that this is really against -- this is what -- I think the comp plan -- did it really intend a vehicle of traffic -- was it really intending to be moving equipment on a beach to operate a business? So I appreciate your consideration to approve the code as it was originally before the -- the lines were crossed off on this, and in all of the ATV usage with the exception -- I agree with Mr. Grabinski as far as raking above mean high water. That was actually a recommendation that we read in the Conservancy's letter to Tom Olliff suggesting that actually that would be a better thing to do for turtle nesting because above the mean high water's where the debris -- you'd want to clear for the turtles the straws and the plastic actually leaving below mean high water would be beneficial to -- for feeding purposes of the food particles that would be left on the beach. So that's one of the changes as well as, as I said before, losing our ability to operate our business after some violations. I think that's taking the violations a little too far. Monetary we can understand, but removing our ability to operate is -- would be detrimental to our financial position. Thank you. MS. BARNETT: Good morning. I'm Ilene Barnett, environmental consultant on behalf of the Registry. COURT REPORTER: Would you spell your last name for me. MS. BARNETT: B-a-r-n-e-t-t. This is the first time that we've seen these changes. We've come before you several times. I know that you're sick of this topic. The hotel group working with the county staff have been meeting on this subject for almost a year and a half. At first we were talking about Land Development Code changes brought up the fact that we could work something out Page 51 June 6, 2001 for using ATVs on the beach without harming sea turtles. We were interested in working on language for that. We were told by county staff to hold off till the next cycle, this cycle, so that the environmental advocacy groups could be brought in and share their comments and concerns. We've been working diligently with them. It's a real surprise to be handed this product with everything crossed off during this hearing. I really -- I guess shock is a mild term for that. The language that's proposed in here for the limited ATV use does not harm sea turtles. It will not harm sea turtles. I'm just asking for you to consider using common sense looking at this language, considering what the language is in the Comprehensive Plan, which -- I don't know why, after a year and a half of working on it, the Comprehensive Plan issue never up till very recently and resulted in the crossing out of all this language we've been working on for all this time at the last minute. Please consider these items. Just for a note of comparison, Lee County to our north has a sea turtle protection program in place. There's active sea turtle nesting beaches. Lee County is not out to harm sea turtles or their nests or their habitats. They've kept their ordinance very simple. Only authorized permittees of the DEP, in other words, anybody that would fulfill the requirements of the DEP as well as law or code enforcement officers conducting bona fide research or investigative patrols may operate a motor vehicle-on-the-beach. In other words, the county, the municipalities, they were deferring to the DEP because they recognized that ATV use in a limited fashion that would meet DEP requirements would not hurt sea turtles. Mechanical beach cleaning was also addressed in the Lee County ordinance. During the nesting season, mechanical beach cleaning requires a valid DEP beach -cleaning permit and must not occur before 10 a.m. Or disturb any sea turtle nests. That's Page 52 June 6, 2001 how the county to the north approached it. I believe that their sea turtle protection program is going very well, and the activities on the beach are not hurting sea turtles or their habitat or their nests there. Please consider these comments. Thank you. MS. RYAN: Good morning. For the record, Nicole Ryan here on behalf of the Conservancy of Southwest Florida. For the past several months the Conservancy has been working with county staff and the hoteliers, specifically the Ritz- Carlton, in order to get some language in place that would not only protect nesting sea turtles, but also allow businesses to conduct their business on the beach in an appropriate manner. Last fall when the hotels wanted to get language in place for ATV use outside of sea turtle nesting season, we didn't become involved because it did not affect sea turtles. However, when we learned that the ATV use was going to be discussed for -- during the sea turtle nesting season, we wanted to be involved. And we did come up with some recommendations. However, nobody checked to see if this language was in compliance with the Comprehensive Land Use Plan. And now that that has been brought out, we believe the county really has no choice but to follow the Comprehensive Land Use Plan. This plan is an award-winning plan. When it was created, it won numerous awards; it was held up as a model for other counties. However, if we do things to weaken the plan, and if we amend the plan to allow ATVs on the beach, we believe that will weaken the intent of the plan. We believe that, really, the county has no choice but to discount any of the language in the proposed language today that deals with vehicles-on-the-beach. And we do believe ATVs are vehicles, and we don't believe that the uses for the hotels are maintenance as far as setting up for events or for taking towels or beach chairs down to the beach. Page 53 June 6, 2001 In our other concern with the language in front of you today and -- like I said, we do support staff's decision on our following the comp plan. Our other concern is with the fines and penalty section. We believe that the monetary fines are not high enough. We believe that the suspension of the permits are appropriate for the second and third violations, and we support what's in the language for all three of the amendments, but we believe that the monetary fines aren't high enough to deter violations from becoming a cost of doing business. We believe that the $500 fine for the first violation is acceptable. There's always room for human error. But when it becomes more than one violation, then there's a problem in the process and the way that the business is being run. We would suggest that the second fine be a fine of $10,000 and the third fine be a fine of $50,000. We believe that this would be a significant deterrent from violations. Thank you. MS. KOELSCH: Hi there, good morning. I'm Jessica Koelsch, K-o-e-I-s-c-h, with the Center for Marine Conservation. And I won't take up much of your time because I just sent out a letter at the beginning of the week that hopefully you-all received. If not, I do have a copy of it. I just want to thank you for not considering the proposals that are in opposition of the County Comprehensive Plan. I think that was a wise choice. I understand that there might be some -- some debate about -- about whether or not it really does -- whether the proposed vehicle-on-the-beach amendments really do violate the Comprehensive Plan, but if there's still debate among your committee, then, you know, I don't know if it would be appropriate to take it up with the state DCA. But I think it's best to defer to your own staff. I want to echo a lot of the sentiments of Nicole. I believe that the land -- or that the County Comprehensive Plan does Page 54 June 6, 2001 clearly say vehicular traffic. I think in being asked to use common sense and reason, to me it seems debating about driving all-terrain vehicles-on-the-beach, you know, again, to me it seems to defy common sense and reason. In addition, the vehicle-on-the-beach regulations which are being debated, they're not talking about just turning an ATV around at the end of a boardwalk. It's obviously much more extensive than that. To clarify just a couple of other points which were made earlier regarding 161.58, yes, I concur previous letters fromDPE did indicate that they didn't feel that the proposals would violate -- well, let me get the exact language -- didn't feel that -- felt that the proposed amendments appeared satisfactory as it related to DEP regulations and statutes, specifically 161.58. However, all these rules are subject to interpretation, and sometimes interpretations are incorrect, and that's why DEP is meeting today to discuss if their initial interpretation was, in fact, correct. Also, I commend the committee for increasing the monetary fines associated with penalties, as well as continuing the suspension for beach-event permits or suspension of any permits for violations related to those permits. For instance, my understanding is that the beach-events permit may only be suspended for repeated violations of that beach-events permit. To me that seems to underscore common sense and reason. So, again, I just want to thank the committee for taking the actions they're taking today. Thank you. MR. FINLEY: Good morning. My name is Doug Finley, I come to you as a private citizen and, my heavens, I've spent so much time on this thing that I'm going to be glad to leave it behind as well, hopefully. Florida Statute 161.58 was enacted to regulate and limit vehicular traffic on our state's public beaches. I believe Mr. Grabinski and the resorts would like for you to believe that using Page 55 June 6, 2001 ATVs or vehicles to deposit tables, lounges, kayaks, and towels on our beaches meet the uses provided for in 161.58. To the CPC -- CCPC, Mr. Grabinski referred to letters written by the DEP that supported the LDC amendment. If those letters are in your possession -- and I assume they are -- I ask you to look at the date on the most recent DEP correspondence. My latest DEP letter is dated March 13. I would suggest that in the interim a lot of water has passed under the bridge. I first spoke to DEP counsel, Patrick Krachowski, on May 10th. I relayed to him many concerns I had about the LDC amendment, including, but not limited to, the poor way the amendment defines the ATV corridor, liability our state or county could incur under federal law if a sea turtle nest were taken, and the expansion of beach traffic via a use not permitted by the state. In addition, I emphasized to Mr. Krachowski that this expansion of traffic was going to take place during sea turtle nesting season. I know Mr. Krachowski has received a number of phone calls on this issue, many from Collier County. As a result the DEP's previous opinions are being reexamined even as we meet. My most recent conversation with Mr. Krachowski was just last week. It was then I informed him about a more serious concern; that is, the LDC amendment is in direct conflict with Collier County Growth Management Plan. At this juncture the comp plan is probably not something the DEP would normally get involved with, but Mr. Krachowski assured me that our county's comp plan would be brought up at today's DEP meeting. Unfortunately, any decision from the DEP probably will not be known until after this meeting has adjourned. We can guess at several ways the DEP may go. They could approve the most recent draft, which I guess they do not have at this point. They could reject it or, and, I'm going out on a limb on this one, they could just back away and throw everything back at Collier Page 56 June 6, 2001 County. So when Mr. Grabinski or anyone states that the DEP has passed on the LDC amendment, I'm here to say look at the date. That news may be old news because this amendment hasn't become very controversial. Why? Because anyone with objective sense can realize that delivering stacks of beach towels is not maintenance or clean up or anything else that Mr. Grabinski or Mr. Albeit would like for you to believe. And the same goes for tables, kayaks, sound systems, and any number of items that might be hauled down to the beach to support a party that numbers in the hundreds and deposits what I think Mr. Albeit said is a lot of cups and a lot of straws. But the overriding issue here is not people or sound systems or even beach towels. The issue is ATVs and what the law says about their use. Not just state law but now our county law as well. A year ago this county held the line on this type of activity to protect sea turtles during their sensitive nesting season. Why should it change now? No one else, no citizen, no condo, no organization in this county can do what they're asking. And there's good reason. It's not just 161.58 or even the DEP that matters anymore. What really matters is our county's Growth Management Plan. This comp plan, an award-winning plan as we have heard, was not written in Tallahassee; it was written here in this and other Collier County buildings by county staff and by people like you. And to the credit of those people, the comp plan is spelled out in easy-to-read sentences. Specifically, I'll refer to Policies 10.4.10 and 10.5.5. The comp plan is supposed to be somewhat, at least I believe, a sacred cow. Yes, its policies are not etched in stone; they can be changed with good cause, but not this way. This change was fast tracked around the DCA. It has the appearance to me of an end run, apparently, because a very Page 57 June 6, 2001 powerful special interest group was involved. This council needs to vote for the protection of sea turtles; this council needs to defend our county's comp plan and vote with the law. MR. COE: Is there going to be any other public input? MS. BURGESON: I'd like to respond to some of the comments that you just heard. One, staff would like to apologize for not having the Growth Management Plan inconsistent issue until late. It was not something that staff even found on its own. We just had a number of people working on this amendment. We looked through several different sections of the code and even of the Growth Management Plan, but did, I apologize, miss those two policies and objectives. We also want to state that it's not that we may not support and find some of these proposed changes reasonable. It's that the Growth Management Plan needs to be amended prior. And I'd also like to go on record as stating that what I handed out to you just now, please do not consider that as a draft. That is not even an unofficial draft. Those areas that are struck though and highlighted are only done so that I -- it was easy for me to identify clearly just those areas that we wanted to recommend. So as opposed to being a draft of deleting, I just wanted to bring it to your attention that this is a draft just of those areas that we wanted to recommend be included. It doesn't recommend striking out language that was included in the last year's amendment. It's only brought to your attention to state that these are the areas that we would like to include in this amendment. Also, in response to-- MR. COE.' Barbara, stop right there for a second. The things that you have clouded out or whatever you want to call it, does that mean they're -- that's staying there? MS. BURGESON: Just because a lot of this happened very Page 58 June 6, 2001 recently, I only did what was the quickest for me to be able to present to you what's consistent. Some of that -- MR. COE.' Well, the area that's grayed out is the area that regards ATVs on the beach; is that correct? MS. BURGESON: Well -- yes. Some of that is proposed language, and some of that is the language that was adopted. I'm not recommending that you strike or delete adopted language that we approved last time. I'm -- as I said, I'm just recommending that you take a look at those areas that we're proposing to include. MR. COE: Well, I'm somewhat confused, and I think that I probably speak for everybody here. If you take that grayed-out area and that -- and that is directly related to ATVs on the beach, is it going to be taken out, or do we need to vote to take it out? MR. WHITE: I believe staff's position, Mr. Chairman, is that the only thing that's available for your consideration are the proposed amendments to text that are not grayed out, their position being that the text that is grayed out would relate in -- fuller in part to the inconsistency issue with the Comprehensive Plan, and hence would not be appropriate for your consideration. MR. COE: Okay. Is that correct? MS. BURGESON: I'd have to agree with Patrick that they're - - that what is -- MR. COE: I mean, you don't have to agree with Patrick. MS. BURGESON: What's highlighted in this amendment is inconsistent with the Growth Management Plan. And we are simply asking that you approve as amendments into the code those items that are consistent. If there's any portions of the Land Development Code that we adopted last cycle that are inconsistent, that will probably be something that we will need to address. I don't know how we'll do that. MR. COE.' Okay. Any other discussion? Page 59 June 6, 2001 MS. BURGESON: We've made a few modifications to the overhead and Power Point presentation that you heard last month. The package that I handed out to you included that in a hard copy, and I just wanted to bring to your attention we have a page that we added that was not a part of last month's presentation, and that is on the beach-raking issue, and that's been brought up before you. I just want to bring it to your attention that prior to the very first Land Development -- MR. COE: I can't see it. MS. BURGESON: It's in your package, and it's on the visualizer. MS. LYNNE: It's not on the visualizer. MR. COE: It's not showing. MS. BURGESON: It's in your package; it would be the second-to-last page in your package that looks like this, which is the beach hazards. On the second-to-last page it states that prior to the first Land Development Code amendment, which was back in 1991 or '92, no beach raking was permitted during sea turtle nesting season on beaches in Collier County at all. During that first amendment cycle, we added language to allow beach raking only below mean high water or the previous high tide line, which is the easier way to identify that. Currently our Land Development Code only permits, and our vehicle-on-the-beach permits that are issued, only allow for beach raking during sea turtle nesting season below mean high water. We have not issued any permits inconsistent with them. We are proposing that no beach raking be allowed during sea turtle nesting season above mean high water for the reasons that are listed there. That's not all of the reasons; those are the major points, the first one being that missed nests due to weather, illegal beach raking or vehicular use above mean high water -- and we've Page 60 June 6, 200t added technical reports -- can cause harm or damage to both the nesting and the hatching of the nests. The second reason is studies of compaction by illegal pressure or increased vehicular traffic is harmful. And the third, that we are responsible as a county to minimize avoidable impacts to endangered species. I just wanted to go on record that's something that will be presented to the board this evening. MR. COE: Any discussion on the board? We have two things that were discussed. One was by Ali where the ma]or infractions, the fines would increase from 500 to 1,000; the second infraction from 1,000 to 2,000; the third infraction would stay at 5,000. My proposal was 1,000, 5,000 and 10,000. MS. BURGESON: I'm sorry. There -- excuse me. There's one other thing I'd like to clarify. On each of those violations where we ask that the annual beach-events activity be suspended, I'm not sure if we need to add clarifying language, but I'd like you to understand that it means in areas where those ma]or infractions occurred. For instance, if the Ritz has a thousand feet of beach, they've only illegally raked this five hundred feet on the south part of their property; that's the area they will not be allowed to have events set up. And that's to protect any nests that may have been missed. So it's specifically those areas that have had ma]or infractions. MR. COE: Any comments by the board? MR. HILL: At the beginning of the discussion, did I hear somebody say that CCPC had ruled that they thought these were consistent? MR. WHITE: I believe you did, Councilmember. I have to state, though, for the record, that that was over the recommendation by our office and staff that they would be if adopted -- the LDC provisions if adopted would be -- would not be consistent with the Comprehensive Plan. Page 61 June 6, 2001 The Planning Commission is the local planning agency under statute and is charged with the duty to make a finding of consistency of the proposed LDC amendments with the existing Comprehensive Plan. I believe, perhaps, to some degree, the reverse of that is what occurred at their meeting in the sense that they interpreted the Policy 10.4.10 in a way that allowed them to conclude that the proposed LDC provisions would then be consistent with the Comprehensive Plan. I have the enviable task of having, if this issue comes up, as I suspect it will in front of the Board this evening, to advise them, basically, of the same, you're not charged with making that consistency determination, but certainly, as staff has suggested, if you agree with their proposal that indeed the nongray-barred text is only that which is -- or would be consistent with the Comprehensive Plan policies, then that's what's for your consideration today. So I hope that addresses your comment. MR. COE: Any other board comments? Do I have a motion? MS. SANTORO: Now, we're just talking about the vehicle one, right? MR. COE: Yes, that's correct. We're only talking about the vehicle one at this particular time. MS. LYNNE: I move that we accept staff's recommendations and include the higher fines proposed by Mr. Coe. MR. COE: Do I have a second? MS. SANTORO: I'll second it. MR. COE: I have a second. All in favor? MS. LYNNE: Aye. MR. COE: Aye. MR. CARLSON: Aye. MR. STONE: Aye. MR. HILL: Aye. MS. SANTORO: Aye. Page 62 June 6, 2001 MR. COE: Carries unanimously. MR. WHITE: And I'd just like to state for the record -- MR. COE: That's 1,000, 5,000, and 10,000 fine for the ma]or. Everything else is approved as written by the staff. MR. WHITE: And as proposed for the minor changes as to the area for the penalties and as to the section site of 3.14.5. MR. COE: That's correct. MR. WHITE: And lastly that Councilmember Sansbury abstained. MR. COE: That's correct. MR. WHITE: And that Mr. Gal was no longer telephonically present and did not vote. MS. BURGESON: So we have six in favor of the motion and one abstaining. MR. COE: I'm sorry. I couldn't hear you. MS. BURGESON: That we have six in favor of the motion and one abstaining. MR. COE: Yes, that's correct. Okay. The next one we're going to consider is the annual beach-events permit, 2.6.34. MS. BURGESON: Has everyone got that package in front of them? These amendments start with, again, a disclaimer regarding the county not having intent to violate the Endangered Species Act on the first page. Flip to the second page. We have just some minor modifications to the proposed language which allow for -- or require that events -- documents for events that are being held on the beach be provided to the Natural Resources Department as well as to the Planning Services Department. We're asking that in consistency with the Section 3.13.7.3, and this goes to the bottom of that page, and 3.14.6, that no structures, beach raking or mechanical beach cleaning activity shall commence until after monitoring. And that just clarifies that language. 2.6.34.5.3 identifies a 30-foot radius that would Page 63 June 6, 2001 be required to be placed around identified nests that have been marked by our Natural Resources Department or authorized personnel on the beach prior to any scheduled beach events. The rest of the modifications or recommended changes to this section of the Land Development Code are fairly insubstantial excepting the penalty section at the bottom of that page, 2.6.34.6. We're suggesting that violations outside of sea turtle nesting season are subject to up to a $500 fine per violation, and we're suggesting that violations during sea turtle nesting season are subject to the increased fine schedule as proposed. And on the second violation, a seven-day suspension, and on the third violation, a 30-day suspension of the beach events. MR. COE: Barbara, would this fall under the major infractions like the last one that we just voted on? If so, those fines would have to be increased, correct? MS. BURGESON: I think they probably should be considered separately, but the proposal for the larger fines was because staff felt that they were major infractions. MR. COE: So these are major infractions? MS. BURGESON: We haven't identified them that way. We've identified them simply as violations during sea turtle nesting season. MR. WHITE: Mr. Chairman, if I could point you to the prior set of regulations in 3.14 that you'd considered just a bit ago. The second-to-last page therein under the penalties section -- MR. COE: Uh-huh. MR. WHITE: -- in 3.14.8.2 where the distinction for minor and major are made basically breaks that down along the lines of whether the infraction was an activity that would cause immediate harm or not to sea turtles or their nesting activity. And I point you to the provision that you're now discussing Page 64 June 6, 2001 that has roughly parallel language, so I think, perhaps, if you desire to conclude that they were analogous to ma]or and minor that that would be reasonable. MR. COE: Any other comments, Barb? MS. BURGESON: No. Just that we've added language -- I'm sorry, the very last paragraph B, that those items that would be similar to the minor infractions would be subject to up to a $500 fine per violation. We also have speakers on this. MS. SANTORO: I understood why you took out the time, but I'm wondering if an hour after sunset isn't too dark? I know in New York you can't water ski after a half an hour after sunset. Is that not too late -- is that not too dark and does that -- is that going to harm the sea turtles that are starting to nest? MS. BURGESON: The reason that staff put that language in the proposed amendments is that it is consistent with the way the state DEP issues their permits. MS. SANTORO: Is that consistent during the sea turtle nesting season? MS. BURGESON: Yes, their written language in their conditions requires that everything be removed from the beach by sunset. However, their handwritten special conditions to those permits often allow that those items can be removed from the beach within one hour after sunset. So we were taking the state's lead on that in being consistent with what they've allowed in their written permits. Ms. SANTORO: And then right in that same paragraph you're allowing staging of materials until 10 p.m. I would think that that should be reworded to also state one hour after sunset then, so it's consistent. Or just take it out where all structures are to be removed. It was under No. 2. MS. BURGESON: I'm sorry. Did we not remove that language? Page 65 June 6, 2001 MR. COE: That's removed. This is removed. MS. SANTORO: Okay. MR. COE'. Yeah. That is already removed, Barb. You already have that removed. Any other questions of Barb? Any public comments? MR. HILL: One quick one. MR. COE: Yes. MR. HILL: Barb, what -- is foot traffic allowed in the area roped off around identified nests? MS. BURGESON-' No. That is to protect the nest from any -- MR. HILL: That conceivably, in some of the areas of the beach, literally blocks off all traffic. MS. BURGESON: It is a large area. I understand that. MR. COE: Public comments? I'd like to remind you of a five- minute limit, please. MR. GRABINSKI: It won't take five minutes. We only have a few comments -- Matthew Grabinski for the Ritz-Carlton. First of all, as with the vehicle-on-the-beach penalties, we, again, object to any penalty that would result in the revocation or suspension -- MR. COE: Matthew, at this particular point, we've already voted on it, so it's not a subject to discuss, and let's not waste our time on that. Let's talk about what's specifically before us at this time. MR. GRABINSKI: Okay. Then let's talk about the curfew issue because as staff has suggested, the one-hour-after-sunset deadline was based upon a state standard. It's a state benchmark that the DEP starts with in all of their field permits. They are given the authority through their field office to deviate or waive that exception on a case-by-case basis. In the packet that I handed out to you, you have several copies of field permits that the Ritz has been issued in the past Page 66 June 6, 2001 during sea turtle nesting season that allowed them to have materials on the beach for the beach event until 9:30. We are requesting that the language be revised to provide that all materials on the beach be cleared from the beach or basically placed in an on-site staging area, which would mean removing them from the beach to the extent that they are at the foot of the service boardwalk by 9:30 in accordance with their practices that they operated under last year. And then anything still left out at the end of the boardwalk be removed by 10 o'clock. With respect to Section 2.6.34.5.3, it calls for a 30-foot radius around the nest. Again, it's a state standard that they are allowed to deviate from and grant exceptions to on a case -by- case basis. They have indicated orally that they would go -- that the DEP would reduce that down to a 30 -- a 15-foot radius or a 30-foot diameter. So what we are asking the county to do is adopt the lesser standard and include language that would require a greater -- a greater distance if an applicable state or federal permit applied to the beach activity. Again, what we're talking about here is requiring guests of the hotels during beach parties to stay 15 feet away from a marked nest. As a member of the public, I can go to the beach tomorrow and set my chair down two feet from a marked nest, stay there all day long, and it's not a violation. We feel that the 30-foot diameter is adequate unless a state agency would require a greater distance. Thank you. MR. CARLSON: I've got a question, Matt. MR. COE: Yes. We've got a question. MR. CARLSON: Question, Matt. What's the maximum number of marked sea turtle nests you've had on the Ritz-Carlton beach since this program has been going? MR. STAROS: We have one right now. We had one, to my knowledge, in 1998. Barbara, you probably know better than I. Page 67 June 6, 2001 I'm Ed Staros, S-t-a-r-o-s, managing director of the Ritz-Carlton, Naples. MS. KRAUS: Maura Kraus, Collier County Natural Resources Department. K-r-a-u-s, M-a-u-r-a. In the year 1999 and the year 2000, it's been three each year. MR. STAROS: Three each year? MS. KRAUS: Three nests, no -- yeah, each year. MR. STAROS: Once again, Ed Staros. The part of this that really is bothersome to me, is the suspension of beach-party permits. I signed contracts -- I signed one yesterday for 2005. I signed a contract with a corporation Fortune 100 company for 2005 guaranteeing that corporation the meeting in my hotel as specified by their RFP. Their RFP required a beach party in order for me to get that piece of business. So although the beach party of this particular piece of business that I signed yesterday is valued at about $15,000. The contract for them the come to the hotel is valued at one million, $1 million. So it's not the attribute of the $15,000 worth of cocktails that are being served at the beach; it is that if I don't have the power of the pen to be able to book business multiple years in advance guaranteeing that that particular client can have a cocktail party on the beach, I lose not the $15,000; I lose the million. And what would happen here, hypothetically, in a situation where I have a million dollar contract coming into the hotel tomorrow, and, hypothetically, I lose my beach permit for seven days today, I will be sued for the million dollar breach of contract. I think -- I'll leave it in your good hands as far as whatever you think is appropriate with reference to monetary fines, et cetera. Whatever you think, fine. Recommend it to the Board of County Commissioners. However, to leave the portion in there Page 68 June 6, 2001 where you suspend fines at a moment's notice when you've already contracted things that are two, three, four, and five years in advance leaves an explosive litigation opportunity for the situation. And I would like-- I would ask you to review whatever you wish to recommend. I'd ask you to strike the revocation of the beach-party permits, the 7- and 30-day permits. That's the only thing that I personally think is inappropriate. Thank you very much. MS. BARNETT: For the record, Ilene Barnett on behalf of the Registry Resort. As I had mentioned earlier, we had been working on this with the county staff for about a year and a half. It was a surprise to get all the strike-outs on the last ordinance this morning. I also am interested in having us get a copy of the information packet that county staff shared with you this morning. We were under the impression that we were all sharing information, but I don't believe any of us had received that information. So maybe we could get that packet that you distributed. It's disconcerting, to say the least. We had worked on the Ordinance 3.14 with county staff and other interested parties for quite some time. The annual beach- events permit had been brought into it so that both ordinance and 3.13 would be looked at as a group. And what we're ending up with now, it looks like, is that all of the items that we had been working for in the reasonable environmentally protective fashion had been stricken, but the violations for items that were already in the code have been increased. To me, it looks like the message is don't work with county staff and I find -- I find it very sad to say that. But we had been working very hard in a cooperative manner, and it seems that everything that we had Page 69 June 6, 2001 worked for had been stricken and all the negatives for the hotel industry had been raised. I don't really know where we can go from here, but it hasn't been a very good result as far as we're concerned to come before you this morning and see all these changes. Thank you. MR. FINLEY: Doug Finley again. When I started making phone calls to try to get educated on this issue, one of the people that I talked to was a Sandy McPherson at U.S. Fish and Wildlife in Jacksonville, Florida. And I reviewed parts of what we're talking about here today in this amendment. And one thing that surprised me in that she said is she said, "Now, if your county moves wrong on this, they could be subject to criminal liability," and she stressed the word "criminal." and I said, "Well, how is that?" and she said, well -- and she's specifically relating to the taking of a sea turtle nest. And we're talking about, you know, 15-foot diameter, 30-feet diameter area around a sea turtle nest where you may have a Ritz party of people in the hundreds. You know, we're not talking about one or two people; we're talking a large group of people down there. And she said if a nest gets destroyed during that party and your county has been complacent in its LDC amendment and contributed to this by, quote, relaxing the standards, you know, at the request of the hotel industry, there is an issue of criminal liability on the county's part as well as a substantial fine. Now, the fine that she told me that the county could be liable for would be $100,000. Frankly, I thought it was even more than that. But I think Mr. Coe was on track in what he did in our last discussion. Suspensions and revocations should remain. It's the only real big stick this county does have to make sure and protect its liability on this issue. And if these resorts are good citizens, they don't have to worry about it at all. So just when it comes to a relaxing of standards over what had been proposed, I would say Page 70 June 6, 2001 this county would be going the wrong way. I don't think it's the way the U.S. Fish and Wildlife Service wants us to go. I think they're taking the protection of the sea turtles maybe a little bit more seriously than some people are down here. But if anything else, this amendment needs to stay the way it is. If not, as Mr. Coe did in the last discussion that we had, an increase in the fines. And so that's all I have to say. MS. KOELSCH: Hi there, Jessica KOELSCH from the Center for Marine Conservation. And I wasn't going to speak because I think you-all are on track. But I just wanted to offer for the record for you-all, if it would be helpful, it's a letter from the U.S. Fish and Wildlife Service that was sent to Volusia County when they were discussing their own vehicle-on-the-beach rules and beach driving. And -- MR. COE: Ma'am, we've already passed on vehicle-on-the- beach. MS. KOELSCH: Oh, I'm sorry. Not vehicle, just beach driving in general. Well, the one point -- MR. COE: This is already-- it's a moot point. MR. KOELSCH: Well, the point I -- they did make some recommendations about allowing use on the beach with relation to sunset. And that's why I thought it might pertain with the -- if you don't think it would be helpful -- MR. COE: We're not having any vehicles-on-the-beach, so we don't have a problem. MR. KOELSCH: No. I was just talking about activities on the beach with respect to time of sunset and also with regard to the penalties that Mr. Finley was just talking about. I was just going to offer it if you thought it would be helpful. If you don't, that's fine. Thanks. MR. COE: Thank you. Any other public comments? MS. RYAN: Again, Nicole Ryan on behalf of the Conservancy Page 71 June 6, 2001 of Southwest Florida. Very quickly, I just wanted to say that the Conservancy supports the 30-foot -- 30-foot radius buffer zone around the turtle nest, and we also support the sunset curfew with the possible extension to one hour past sunset. These are the state standards and we believe that these are the minimum that -- that should be enforced. And we also believe that these suspensions should stay in there and the fines should be increased. Thank you. MR. COE: Any other public comments, please? Okay. MS. BURGESON: I'd like to just provide to the public -- this information is in the package that is being presented this afternoon -- or this evening to the Board of County Commissioners and is in the package that was handed out to the Council this morning. This is a graph identifying sea turtle nesting times. By this graph I wanted to state that by 9 p.m. Three percent of the nightly emergences of the nest s -- the hatchlings occur. By 9:30, 6.9 percent -- these are numbers that our Natural Resources Department has worked up. And by 10 percent, 12. -- I'm sorry, by 10 p.m., 12.7 percent of the nightly emergences. This graph identifies the first block at 8 p.m., which is roughly sunset. In Collier County the latest sunset during sea turtle nesting season would be at 8:24. And we would allow, then, if we're saying one hour past sunset, to remove items from the beach as late as 9:24. MR. COE: Any discussion by the board? MR. HILL: I have a question. When nests are identified and marked by the yellow tape, what dimensions do they use when they mark that off? MS. BURGESON: Maura? And, again, the additional marking of a 30-foot radius is only for beach events. If there are no Page 72 June 6, 2001 scheduled beach events on a particular area of the beach, that's not required, that additional area. MS. KRAUS: Maura Kraus, Collier County Natural Resources. We usually leave about three feet around the whole nest. And in some areas where there's high traffic, we double mark it with double tape. But it's usually the size of the pit that's been left by the turtle. And if we don't have to identify eggs in it, it could be bigger than that. MR. HILL: You feel that's consistent to protect the nest in a crowded in-season beach? MS. KRAUS: Well, the only time we really have problems on the beach with large crowds is 4th of July, City of Naples Beach. In areas where there are lots of people, I think that a larger area does need to be identified, especially if there's an event. People are still walking through our nests and use them to hang their hats on and stuff like that. So I think a larger area during a large beach event is appropriate. MR. COE: How about during 4th of July, do you put the 30 feet out there for then? MS. KRAUS: No, we don't go 30 feet on the City of Naples. We do go out an additional -- several feet on each side and we double tape it. MR. COE: Then why are we doing 30 feet for a beach event? I think 4th of July can't get much bigger than a beach event. MS. KRAUS: Well, during 4th of July, there's not typically chairs and tables and bars and all the other things that go along with a beach event on the beach. MR. COE: You haven't been to the 4th of July in Naples lately. MS. KRAUS: I go every year. MR. COE: Maybe you're going to the same spot -- Page 73 June 6, 2001 MS. KRAUS: And the ma]or area on the City of Naples for 4th of July where tables and things are set up are around the pier area, and we really don't have much nesting around that area. We're still having a lot of problems with beach lighting. That's a lower density nesting beach. MR. WHITE: Isn't it also true, Maura, that that might be one the conditions of the permit, the 30 feet, one of the standard permit conditions? MS. KRAUS: Yes. Yes, it is. MR. WHITE: I think that's the main reason why. MR. HILL: Well, the reason I asked the question, it seems it would be a little bit inconsistent to go with the -- and when I lived over there, it was two or three feet. And now we're making a 30- foot radius. It seems to be a little inconsistent from the standpoint of protection of the nest. And I've seen, when I lived over there, a very crowded beach, and your tape was only three or four feet in diameter. It just doesn't seem consistent. MR. COE: Any other comments? MS. LYNNE: The only comment I would have is that my understanding is that these beach parties serve alcohol, and I don't believe alcohol is usually on the beach, public beaches. And that there's a difference between an evening crowd drinking and daytime beach-going in terms of the people's ability to avoid an obstacle. MR. COE: Any other comments? MS. SANTORO: I have one. MR. COE: Yes. MS. SANTORO: On the page under B, I'd like to see under activities that would not cause immediate harm to sea turtles, I'd just like to have it -- the No. 3 stricken as any possible example. Just take out 3, having beach event materials or related structure set, placed, or stored within 10 feet of any beach dune. Page 74 June 6, 2001 I don't really like having that in an area indicating that it might not harm sea turtles, and I'd rather see that deleted. Just leave the other two as examples saying -- MR. CARLSON: Where are you? MS. SANTORO: Last page of the one that she gave us under "B." it's below the fines. It indicates any activity that would not cause immediate harm to sea turtles or their nesting activities would include but not limited to -- and goes on to say, then, the fine would be $500 for minor. I'd like that No. 3, having beach materials or related structures sat, placed, stored on or within 10 feet of any beach dune taken out. I don't like the proximity saying that it might be an activity that's not harmful. And the intent there is minor infractions that won't harm the sea turtles. MR. COE: Well, that means they can put it within 10 feet of the dune. If you take that out, it means they can put it within 10 feet, correct? MS. SANTORO: No. MR. WHITE: That's why I was going to ask the question whether you are -- MS. SANTORO: It looks like it's a minor violation. MR. WHITE: Whether you're proposing, Councilmember, to delete all of the text pertaining to 3 or just the distance requirement of 10 feet ? MS. SANTORO: As I understand this, it's saying any activity that would not cause immediate harm to sea turtles or their nesting activities, which include but not limited to -- and these are minor infractions we're talking about. (1) Failing to notify the county of a beach event, (2) Failing to provide the county with copies of Florida Department of Protection permits prior to each bench (sic) event, or (3) Having beach event material or related structures set, placed, stored on Page 75 June 6, 2001 or within 10 feet of any beach dune. The other two are obviously procedural minor infractions. That No. :3 I don't like in the proximity. I would just take it out. MS. BURGESON: It would still remain in the amendment in other locations as being a violation, but it would just not be identified as a minor violation. MS. SANTORO: Correct. Because that situation, you're putting it in the same sentence as any activity that would not cause immediate harm. We don't know that that won't cause immediate harm. I don't like the wording there. MR. WHITE: Are you suggesting it would be something greater than a minor infraction? MS. SANTORO: Well, you're stating that this isn't going to harm the sea turtles. We don't know that. If it's put there and left overnight, it then becomes instead of minor, major. MR. WHITE: No. I think in your package you had a photograph of a sea turtle in, if you would, a beach chair. MS. SANTORO: Right. MR. WHITE: So the notion that it's not an immediate harm, but a potential harm that may occur if it's left within the specified -- if it's left at the specified location -- is what we're contemplating; one, an infraction and one that's, quote, unquote, minor. In the sense that it's not immediate. It's not like you're putting it on top of the nest that would cause immediate harm, but rather it's in a place where events may occur. The sea turtle may come across it. MS. SANTORO: That's not harm? MR. WHITE: It is harm, and that's why it's in here. MS. SANTORO: No. You're listing it concurrently with minor infractions that are procedural. MS. BURGESON: I'd like to clarify that. I'm sorry that -- the way that we had written that language, that was to protect the Page 76 June 6, 2001 dune. We go, in other sections of this proposed language, further in protecting the sea turtle, but this -- this is just that we don't want beach-event materials, at any time, or related structures placed, stored on, or within 10 feet of the beach dune to protect the dune vegetation. We do go further in other sections. We're saying that if-- MR. COE: If you take it out, then they can do it. MS. SANTORO: Yeah. I don't see why you just don't delete that verbiage there so there's no confusion. You're talking about minor violations not limited to. MR. COE: But -- maybe I'm wrong here. If you take it out, then they can, in fact, place the furniture within 10 feet of the dune. MS. BURGESON: No. That's-- MS. SANTORO: No, your -- all I'm doing is changing the wording. You're just saying which would include but not limited to and you give two examples. Take out the third one as an example. You've not changed the intent at all. MS. BURGESON: That's right. MS. SANTORO: You're simply not listing every single minor infraction. MS. BURGESON: That would stay -- MR. COE: Then it's not a minor infraction; it's not an infraction at all. MS. BURGESON: It is an infraction that is listed elsewhere in the code. It's prohibited; it's prohibited previously. MR. WHITE: The idea here is that in con]unction with the annual beach events there's the recognition that the tables, chairs, whatever that may be part of such an event are moved on and off the beach. And that is typically done by getting them to a, quote, staging area that is near the base of the dune because Page 77 June 6, 2001 that is the point where the boardwalks typically terminate. And so the idea was to put those folks who would be performing those activities on notice that when they're doing those things, they need to stay out of that area. And that's why it's particularly set forth, even though it's not necessarily a, quote, procedural infraction or type of violation. It is one, though, that may not cause immediate harm but certainly could. So I understand your point, I'm-- MR. COE: Do you want to make a motion on that, and we could just vote on it? MS. SANTORO: Yes. MR. COE: Okay. MS. SANTORO: I move that we simply omit the word -- the verbiage, No. 3, the words "having beach event materials or related structures set, placed, stored on, or within 10 feet of any beach dune.". MR. COE'. Do I have a second on that motion? MS. LYNNE: I second it. MR. CARLSON: Discussion on it. MR. COE: Discussions? MR. CARLSON: Discussion. So that motion is to accept the staff's language for this whole thing? MR. COE: No, the motion was to take that No. 3 out of that. Any other discussion? All for? MR. HILL: Aye. MR. STONE: Aye. MR. CARLSON: Aye. MS. SANTORO: Aye. MS. LYNNE: Aye. MR. COE: I have three ayes. Raise your hand for an aye. Five. (No response.) All opposed? No, four ayes. All opposed? Page 78 June 6, 2001 MR. COE: It carries. MR. HILL: I'd like to recommend we reduce that 30-foot radius. Pick a reasonable figure. I'll p,ck 15-foot diameter -- 30- foot diameter. MR. COE: Do I have a second on the motion? I have no second. Any other motions? I'd like to make a motion that we accept as written with the modification that has already passed except for the violations. And the violation would increase from 1,000 to 5,000 to $10,000 respectively to be consistent with the last one we passed. Do I have a second? MS. LYNNE: I second it. MR. COE: I do have a second. MR. STONE: Aye. MR. CARLSON: Aye. MR. COE: Aye. MS. LYNNE: Aye. MS. SANTORO: Aye. MR. COE: All opposed? MR. HILL: Aye. All for?. MR. COE: One opposed. Five, four. It carries. Okay. Next and final. This is the coastal construction setback line variance. Barb, what's your input? MS. BURGESON: This should be fairly simple. The only thing that I'd like to do on this is to clarify maybe some intent or some procedural issues that may not be clear in the language. But as a simple explanation of what we're proposing, we're more clearly identifying when the exemption occurs and -- in terms of items have to be off of beach within one hour of sunset and that they are not to be moved on until an authorized person conduct the sea turtle monitoring each morning. Page 79 June 6, 2001 Also exempts the county from intended violations of the Endangered Species Act. The penalties for this would be on the first violation up to a $500 fine. I understand from speaking with other staff members that that can be a warning; it doesn't have to be a financial amount. The second violation would be a $1,000 fine and a five-day suspension. The third violation would be a $5,000 fine and a 10-day suspension. MR. COE: Would you consider this major infraction or a minor? MS. BURGESON: Again, by the numbers that we've put in here, leaving beach furniture on the beach overnight would be harmful or considered, I guess, a ma]or violation in response to the way the others are written. However, I'd like to go a little bit further on explaining this in that we may need Michelle Arnold from the code enforcement department to discuss it as well. But in discussions with staff, this language is not intended to say that -- and our code enforcement staff does not go out when someone is sitting on a beach chair on the beach at these times; it's not intended to tell them that they have got to get up and leave the beach at that time. They do not enforce that type of activity or -- I'm not sure if "enforce" is the right word. But they do not fine that at this time. It is intended to be directed at leaving beach furniture on the beach after that time. If a sea turtle comes up to nest when some one person is sitting on their beach chair, it's acceptable and understood that they would pick that up and move out of the way so as not to impact nesting. The concern is that we identify that time in there so that nothing is left on the beach after that time and nothing is unattended on the beach after that time. If the board wishes that we go back and work on some language to that effect, we can do that. But that is the intent of the ordinance. Page 80 June 6, 2001 MR. COE: Any public comments? MR. GRABINSKI: Matt Grabinski for the Ritz-Carlton. I appreciate Barbara's comments regarding the intent of this amendment, but that's not what the language says. I think as it is written it does apply county-wide, and it would be difficult, if not impossible to enforce. And while the intent and what it's trying to prevent is good, the actual language, if enforced, as well as the penalties, is extremely unreasonable, and I'd recommend that these amendments be denied in their entirety or at least extensively reworded and clarified. If this regulation is intended to keep furniture from being left on the beach, then I think the furniture that everyone's concerned about is the furniture from beach events and beach parties. The requirement to clear the beach at the end of the party is already in the code. The hotels make it a routine practice to clear their other chairs from the beach and stack them at their on-site beach storage areas at the end of every day. But let's be realistic; the hotels have guests coming in from all over the country and all over the world year round. Occasionally, guests are going to arrive at two o'clock or three o'clock in the morning and be wide awake. The hotels cannot police their guests 24 hours a day, 7 days a week. Occasionally a guest is going to grab a chair from the pool area and go down and sit on the beach at 2 a.m. If that chair gets missed, do you really want to start fining the hotels 500, 1,000, $5,000? Do you want to start fining private-property owners who accidentally leave a chair out on their beach $5,000 if that happens for the third time over a six-month period? And then consider the possibility of trying to enforce the suspension of the exemption. For three more violations, a 10-day suspension of the exemption. That would mean that if any hotel over the span of six months, the third time one of their guests Page 81 June 6, 2001 drags a chair out on the beach at night and the hotel misses it or it happens at 3 a.m., and turtle monitor comes at 7:00 a.m. And sees it, and the hotel gets fined, a 10-day suspension of the exemption would basically mean telling the hotel that it has to prevent its guests from using beach chairs on its beach. That's unreasonable. MR. COE: Matt, one quick question. You-all have security on the beach; is that correct? You have security that actually goes out and walks the property to include the beach? MR. STAROS: Yes, we have security that roams the property. We have 26 acres, and they roam the property on just designated times of the day and night. MR. COE.' How often do they make a tour of the beach? Do you have any idea? MR. STAROS: After sunset and after we've shut down our -- our operation in Gumbo Limbo's, which would be about 9:30 at night, there wouldn't be a lot of -- after we've shut down business, in other words, there wouldn't be a lot of tours of that area. I don't know-- MR. COE: Once an hour? MR. STAROS: I wouldn't say that, no. I would say that we've -- we roam the perimeter of the hotel as the -- as the hotel shuts down, as the pools shut down and the restaurants shut down and so forth, you lock up and then you secure the hotel. I'd like to just make one quick comment. I'm Ed Staros, I think everybody knows that by now. I want to remind you that we're -- our property line -- our 26 acres also is contiguous to the Vanderbilt Beach public parking lot. And there's not a day of the year, in-season, off-season, turtle season I'm speaking of, that hundreds if not thousands of people use the beach in front of our hotel. It seemed odd to me that with the Vanderbilt Beach parking Page 82 June 6, 2001 lot which is presently 125 spaces and I hear -- although I haven't seen it in print -- I hear that that is now going to be a parking garage with 400 spaces soon to be. It seems odd that anybody that can come to the beach, even though it's my -- our land, I shouldn't say my -- our land, can set up shop. They can set up their own beach chairs; they can set up their own coolers; they can do whatever they wish. Yet the fines that you are considering on this amendment would impact the hotel, even if the hotel had nothing to do with the infraction. I know for the Registry they have a public parking lot next to them as well, the Clam Pass parking lot. I think it's a little unreasonable that here we are good citizens that we clean the beach, and we clean the beach every day by hand. We pick up a 55-gallon bag of garbage, garbage that was not from the hotel because we can tell by the beer bottles and the Coke cans and so forth of which we do not sell, that it's obvious that there is an enormous amount of people using the beach. Yet the fine would come to the hotel. I just think it's bad -- I think it's a bad document and a bad law. And I -- I'll end my comment by saying I hope common sense prevails. Thank you. Mr. Chairman? MR. CARLSON: MR. COE: Yes. MR. CARLSON: Mr. White, I just recalled that Mr. Staros -- I must make a disclosure. Mr. Staros called me about this several weeks ago, this very situation of a party next to his hotel that he had no control over. Michelle, can you comment on how these amendments would affect public use of the beach as Mr. Staros has commented on? MS. ARNOLD: Michelle Arnold, Code Enforcement Director, for the record. I think that this would apply to the general public Page 83 June 6, 2001 equally as it would apply to the hotels. I would have to agree with the comments that Mr. Grabinski made with respect to the monitoring of the suspensions. It's difficult to say who some of these furnitures do belong to because it does apply to the county equally. So it would be very difficult for my staff to monitor -- if we did find the owner of it -- an individual chair that was left out on the beach overnight and told them that they would not be permitted to use their chair for another seven days or whatever -- 15 days, then -- that they wouldn't purchase another chair and then bring it on the beach. So it is -- it's going to be an enforcement nightmare for my staff with respect to the suspension. So I -- my recommendation would be to remove that part of the penalty. MR. COE: Remove what part of the penalty? MS. ARNOLD: The suspensions. MS. BURGESON: Staff has just discussed that -- Planning Services, Enforcement, and Natural Resources Department discussed that briefly just now and support removal of the suspensions of the five day and ten day. MR. COE: Okay. MS. BARNETT: Ilene Barnett, for the record. The -- with that, that might have solved the problem. But the vehicle-on-the- beach ordinance that we were working on, I had mentioned earlier that part and parcel of that, the beach-events ordinance came into play and also this one, 3.13, which happened kind of late, I think the end of April possibly was when 3.13 was proposed by county staff to be changed. In the letter that we sent to Patrick White on May 15th, I'd just like to read this paragraph really quickly. (As read): "section 3.13.7.3 appears to include beach chairs and umbrellas and similar structures. The existing code requires these structures to be off the beach daily by an unspecified time. Page 84 June 6, 2001 That's the existing one. The proposed language states that such structures must be 9 p.m. And not returned to the beach prior to sea turtle monitoring. We recognize that the storage of such furniture on the beach overnight may present a danger to sea turtles. However, in practice the language makes it unlawful for someone to set up a beach chair in the morning on any beach in the county prior to sea turtle monitoring. "although, the Registry may be able to comply with this condition, probability is high that private persons will, from time to time, set up their own structures on the stretch of beach used by the Registry with county enforcement action against the Registry ensuing. "in fact, the one violation of this code the Registry had in the last two years was such a case. A beach chair not belonging to the resort was left there overnight by an unknown party. "we recommend that clarifying language be added such that no overnight storage, quote, unquote, of structures be allowed with the definition of overnight storage provided to exclude such minor and unenforceable activities as mentioned above.". We sent this letter to Patrick White on May 15th and to county staff, faxed them a copy on May 17th. We haven't seen that clarifying language. I don't know if there's a reason why that wouldn't work. But basically the Registry is saying we have the ability to lock up our beach chairs, to give this -- complying with this ordinance our best shot, but we're -- we have other concerns about public usage. I just wanted to bring that to your attention. Thank you. MR. ALBEIT: Again, Ron Albeit, Registry Resort. Ilene hit it right on the head, really. You know, as I said before, 70 percent of the people that come to Clam Pass Park are county residents. A significant number of our county residents carry their own chairs. We provide the transportation down to Page 85 June 6, 2001 the beach. The beach opens up at sunrise. Turtle monitoring takes places some time in the morning usually before 9 o'clock, but some time in the morning which is beyond the time that the park actually opens. And therefore, there could be a significant number of county residents setting up chairs on the beach prior to sea turtle monitoring. And I think that if you look at the regulation, the intention is good. We saw pictures of turtles being caught in chairs. But I'd like to know how this is going to be enforced fairly, county-wide throughout not just the Registry and Clam Pass or the Ritz, but throughout entire -- the beaches, how this is going to be consistent. Thank you. MR. COE: Any other comments? Any discussion by the board? Does anybody have a motion? MR. HILL: Well, one comment. I'm very sympathetic to the unmanageability of this -- enforcing this with respect to the hotels and other county residents. I think it's very unmanageable. MR. COE: I concur with that. If I had any recommendation at all, I would send this back to staff to take a look at and work on it some more because I think it is -- I agree with several of the comments that it appears to be unmanageable and potentially singles out the hotels. I'm particularly familiar with the Registry and the Clam Pass situation and that, you know, you go down there at daybreak when the park opens, and you set up your chair, and then you go down to the beach to take a run or something, then they get stuck with the bill. And in this case a big bill. You can buy a lot of lawn chairs for a thousand bucks. So perhaps we can work with the Code Enforcement people and figure out how we can police this because this doesn't affect just the hotels; it affects you and me and everybody else that Page 86 June 6, 2001 puts a beach chair down there. Any comments? MS. BURGESON: May I add something? I accept your comments, and I understand exactly where you're coming from. In order to maybe get the language in the Land Development Code, rather than saying that we could go back and rework all of the language, if we keep what's in there and strike the second and third violations, then the violations would have up to a $500 fine, at least for this amendment cycle. MR. COE: I can live with that. What's the pleasure of the board? MR. CARLSON: How often is this happening? MS. BURGESON: I have a list that was given to me by the Natural Resources Department. These are violations this year in May. I'll just read a few of these. This is reported by their staff as they go out and do their monitoring in the morning. Three chairs not stacked. That simply means that they were left out on the beach. Seven chairs, nine chairs, two chairs. A lot of individual chairs were identified. Seventeen chairs, two tables, and a drink stand at one time. MR. COE: Again, it's tough to police. I mean, you know, I've stayed at hotels and go down there for that midnight skinny dip and a couple of cold beers, and I use their chairs. MR. CARLSON: But practically, Michelle, when you go to the beach, I mean, doesn't the Ritz and the Registry have a certain type of chair which you can identify -- MS. ARNOLD: Right. MR. CARLSON: -- and if somebody's got something with webbing from Wal-Mart, that obviously doesn't -- MS. ARNOLD: Right. MR. CARLSON: -- I mean, you still push that or-- MS. ARNOLD: No. I was going to mention that. For the record, again, Michelle Arnold. It's quite obvious to determine Page 87 June 6, 2001 most of the time whether the chair is a standard Ritz-Carlton, Registry chair as opposed to some other type of furniture that's picked up in the local department store or something like that. And we do get almost daily reports from the Natural Resources Department where chairs -- scattered chairs are left. And they do tell us whether it was a Ritz-Carlton chair or a Registry chair or a regular chair. It happens quite frequently. So the fine amount could be substantial if left in the way it's being proposed today, to the Ritz-Carlton because there are instance where citizens do come and pull off a chair from the Ritz or the Registry or whatever. Mr. Albeit had indicated today that they actually lock up their chairs, so possibly it's not happening with your furniture. But I know that I've been out at the Ritz, and people are able to pull the chairs off that are sitting on the beach there -- have been identified as areas where they can stack their chairs. So it's going to be a common violation. MR. COE: Well, isn't there any reason why you can't take a chain lock or something like that? MR. STAROS: I do that. I do that. However, I don't do it to the 305 chairs around the two swimming pools that are up -- and I don't do it around the 26 tables with four chairs around each table around the pool-side cafe. So you could -- you could grab one of those, walk down the boardwalk with it. It's impossible to lock down every single piece of outdoor furniture. We also have another 75 chairs that are on the outside of the Terrace restaurant. So if you think about it there's about 500 chairs on property that are not associated with the beach. There are 600-ish chairs on the beach that we put a cable through and a lock. So, you know, in good faith we're attempting to do what's right by locking up the beach chairs. However, the ones by the Page 88 June 6, 2001 pool and the ones by the pool-side cafe and the ones by the Terrace restaurant are not locked down at night because they're left in the environment of sun worshipping. Thank you. MR. ALBEIT: Just another comment. It's clear that it would be discriminating to have a code that if you could identify it was Registry chair or a Ritz chair then you would fine the resorts. But if, in fact, it turned out to be a K-Mart chair, and you didn't know who to fine, then, in fact, that person who left that chair would not be fined. So the law is bad law. It's hard to manage and it's not equally distributed, so I would really -- I would recommend that you -- that we remove the code -- the entire language and not whether it's up to because it appears that if it's identified as one of our chairs, that'll be the up to. And if it's a public chair that can't be identified, then how would you enforce the fine? So thank you for your consideration. MR. HILL: I repeat my concern, Mr. Chairman, and move that we reject this in the form as presented. MR. COE: Is that a motion ? MR. HILL: Yes. MR. COE: Do I have a second to the motion? Motion is to reject. MR. WHITE: If I may, Mr. Chairman, with your permission. I believe there's certain portions of this that don't discuss or pertain to the objections that have been raised. For example, in particular, the provisions in 3.13.7.3. I believe we're only talking about the penalties. And certainly if you want to strike those or whatever, that's fine. But I think there is some useful text, in particular, the exemption language at the end of 3.13.7.3, that's worth retaining, and I ask you to consider that. Thank you. MR. GRABINSKI: Can I make a point of clarification? We do Page 89 June 6, 2001 object to some of language in 3.13.7.3. It adds the specific 9 p.m. Deadline, and although it has been expressed that the intent is to not make people remove chairs and the intent is to not come along and fine the hotels or the property owners when a guest inadvertently leaves a chair on the beach, that's not what the language says. It's a bad law; it's unclear; it's either going to be enforced unfairly against the hotels or unreasonably against all of Collier County. And we're asking you to deny the entire amendment. The language already states -- the language will still be in there to say, "Objects must be removed at the end of the day," but there won't be a specific time frame. And under the code a violation can result in a monetary fine, that express -- the express fine provision, take it out and the code still allows for any violations of the Land Development Code. It provides for fines. So that would be in there regardless. MR. COE: Do we have second to the motion? MR. STONE: Could you repeat the motion, please? MR. COE: The motion is to deny approval of this entire document. MR. STONE: I'll second. MR. COE: I have a second. All for? And this is all for denial. MR. HILL: Aye. MR. STONE: Aye. MR. COE: I have two ayes. All against, nay. MS. LYNNE: Nay. MS. SANTORO: Nay. MR. CARLSON: Nay. MR. COE.' Nay. Four against, motion does not pass. We have one abstention, by the way, and one absentee -- two absentees. Yes. Do you have a comment? MR. CARLSON: I'm thinking. Page 90 June 6, 200t MR. COE: That's scary. MS. ARNOLD: Can I make comment? Michelle Arnold, for the record. I think that the time frame is needed. If the language says at the end of the day, that could be 12 o'clock, and it's not clear. We need clarification with respect to what we're trying to accomplish when we are talking about removing the furniture. Mr. Grabinski is correct that if you do remove these penalties, my staff-- if it -- is still able to enforce a fine with repeated violations of the same thing. MS. LYNNE: Can I ask a question? MR. COE: Yes. MS. LYNNE: So, Michelle, what you're saying -- I just want to make sure I understand this. You're saying that without the penalty section, it's still important to have these guidelines in terms of time as with the sunset time being important to the nesting sea turtles? MS. ARNOLD: Correct. MS. LYNNE: Okay. MS. BURGESON: Pat -- I'm sorry. MS. LYNNE: Go ahead. MS. BURGESON: Patrick just brought something to my attention. When I highlighted this ordinance amendment, you'll notice on the second page where I've highlighted "within one hour of sunset." that's an addition. That's not struck through, so that should not be highlighted. It should say "remove all structures from the beach within one hour of sunset.". And on the previous page where that's been highlighted, that language is an addition that should not be struck through. What we're proposing is to keep that language in "within one hour of sunset.". MR. WHITE: Rather than 9 p.m. Page 91 June 6, 2001 MR. COE: I'd like to make a motion. I'd like to make a motion that we pass this document to include the changes that are indicated in 3.13.7.3, which says within one hour of sunset. That should clarify the time. And also 3.13.9.3.1 subparagraph 1, where it says "within one hour of sunset." and as far as violations, it would just have one violation, and it would be titled "Violations," and it would say up to a $500 fine. All the other violations, the second and third, would be deleted. Do I have a second to the motion? MS. SANTORO: I second it. MR. COE: I have a second to the motion. All for? MR. COE: Aye. MS. SANTORO: Aye. MR. LYNNE: Aye. MR. STONE: Aye. MR. CARLSON: Aye. MR. COE: All opposed? MR. HILL: Aye. MR. COE: One opposed, five for. The motion passes. CHAIRMAN SANSBURY: One abstention. MR. COE: One abstention. CHAIRMAN SANSBURY: Okay. We can move very quickly because two of us have to get out of here if we could, and let's go into -- COURT REPORTER: Excuse me. I absolutely could not hear what you just said. So if you could start that over again. CHAIRMAN SANSBURY: Okay. I will start over again. Let's move forward with the agenda in the new business Item A, which is the appointment of one EAC member to a select committee for the new Community Development Administrator. I would say it's a select committee to select. Page 92 June 6, 2001 MR. COE: It's a committee of one from us. CHAIRMAN SANSBURY: Okay. MR. COE: I have a question about that, and I don't know if, Barb, if you're prepared to answer this or not. But it appears from looking at what this document says that the criteria for the ]ob title, what have you, is an administrator. However, it looks like the advertising is going into specific periodicals, such as planning periodicals, that sort of thing looking for a technician instead of just an administrator, and there's a difference between the two. Is this true or not? MS. BURGESON: I can't address where human resources has decided to advertise this position. I can only state that the intent of the current acting administrator by this executive summary is to solicit a representative from the EAC to participate in the process of reviewing the candidates for the position. CHAIRMAN SANSBURY: Okay. Let's go ahead and say -- you know, let's see who -- who would like to be this representative? Do I hear any volunteers? Do I have anyone who would like to volunteer someone else? MR. COE: I'll volunteer you. CHAIRMAN SANSBURY: I'll do it if you want me to do it, okay. MR. COE: I will say this: I would be more than happy to do it and honored to do it, however, I will not do it if the criteria is so selective as to have nothing but an environmental engineer or a planning engineer or someone that is specific like that. If the position is opened up to a CEO type, to a real true administer-- or administrator, then I would be honored to serve on it. But if it's specific, I see no reason to do so. (Ms. Lynne left the room.) Page 93 June 6, 2001 SANSBURY: I don't know that we can clarify that today, unfortunately. What's the pleasure? MR. HILL: I recommend Mr. Sansbury-- CHAIRMAN SANSBURY'. Appreciate that, Mr. Hill. Really do. MR. HILL: -- as that representative. CHAIRMAN SANSBURY: Another high-paying position. MR. COE: Another high-paying position. MR. HILL: You got a quarter of your plate still empty? CHAIRMAN SANSBURY: Okay. All right. Anybody opposed to that recommendation? MR. COE: None. CHAIRMAN SANSBURY: Good, thank you. Okay. MR. COE: Nice guy. CHAIRMAN SANSBURY: Okay. We do have reports from Ms. Santoro on the Growth Management Committee. MS. SANTORO: We may have other things to add to it, but I have handed out a document just like Barbara. Distribution of small parcels, I thought that map might be useful to you for future identification as they talk about different planning arrangements in those areas. And also the second page are some terms that they are discussing which is in anticipation of directing activities away from conservation lands -- activities that are unwanted away from conservation lands. And those are some techniques that are being discussed on ways of doing this. So I thought you might be interested in the terminology and the discussion. CHAIRMAN SANSBURY: Yes, sir. MR. LORENZ: Yes, for the record, Bill Lorenz, Natural Resources Director. MR. COE.' Bill, I apologize, but I'm going to have to leave. MR. LORENZ: What I'm -- what Barbara is passing out to you Page 94 June 6, 2001 -- and I know you're -- everybody is starting -- having to leave -- is the -- the first item that was passed out to you is the -- is the conceptual plan that the staff and the Rural Friends Advisory Committee has been working on for the past year and a half and will go to the Board of County Commissioners next Wednesday at a special meeting starting at nine o'clock. The purpose of that meeting will be for staff to outline the land-use strategies that are contained in that conceptual plan. There are some strategies that we have a consensus between staff and the advisory committee. There are some other strategies that there are some issues as well, and you can see that in the report. The other purpose is to provide the opportunity for public to review and to provide additional input and participation into the process. And what staff is asking the board to do is to take certain direction from the county commission to then launch off into the drafting of very detailed Growth Management Plan amendments that would implement that conceptual plan. We also recognize that within that conceptual plan for certain preservation standards and incentive -- density incentive programs that we've outlined, is that we need to have an economist that's going to actually evaluate the -- whether, indeed, the proposals that we have made would be an incentive, would be marketable, and to the degree that the preservation standards are working together, if you will -- that's the regulatory stick working together with the incentives, which would be the carrot, is if that's an appropriate mix. We want to get an economist to provide us some information such that we can then feel comfortable that we can recommend the appropriate mix of regulations and incentives to preserve the appropriate amount of vegetation and habitat in the fringe. So that will be a very specific request that staff will have for the Board next Wednesday. Page 95 June 6, 2001 The process, then, would be staff would be working through the summer to draft the -- what we call the transmittal amendments. Transmittal amendments would be brought to the board in a public hearing fashion, both to the Planning Commission and to the county commission in the October -- we're shooting for October. There are a couple of plan issues that I think the EAC needs to be aware of. Just let me highlight -- although every time I do this it's always being somewhat selective on my part. But the north Belle Meade is an issue area. Staff is recommending in the current draft that it be viewed as a natural resource protection area. Quite frankly, we've had some discussion lately whether or not we have to call it a natural resource protection area. My position is I really don't care whether we call it a natural resource protection area, as long as the protection mechanisms within that area are sufficiently high enough to protect the environmental features of the area. It may well be that we can drop it a notch below an NRPA, but we need to have sufficient protection mechanism in that area. It raises very close to the level of the other NRPAs that are in the county. But that's an issue that we will receive some more direction on. The other issue is the committee has not -- the Rural Friends Advisory Committee has not made a particular recommendation for what the preservation standards for allowable land uses are within natural resource protection areas. Staff is recommending a 90 percent preservation requirement in the natural resource protection areas. Committee has not yet made a recommendation on that. And the other major difference is the starting point in terms of preservation standards and density incentives that the staff has recommended and the committee has recommended. However, as I said earlier, we really need to get additional Page 96 June 6, 2001 information from this economist to tell us what an appropriate mix will be because it may well be that the committee's recommendation, although lower on the regulatory side and higher on the incentive side, if the economist says, "Yeah, those incentives will really work," the developers will really utilize those incentives, and you're really going to get a lot more vegetation protection, habitat protection through those incentives. And if the economist is able to say that, then from a staff perspective we're saying, "Great, that's perfect. We don't want to have to regulate if we don't have to regulate.". So that's the major issues with that plan that we just gave you. Unfortunately, it is a black and white copy. I think the -- if you want a color copy, you can either get on our website and view it or let me know, and I'll try to get you the additional set of -- the colorized copy. That's the Item No. 1. The second item I gave to you, which is entitled "Possible Alternatives for Wetland Classification." as you recall when we went through the county-wide minimum standards that we had looked at wetlands, listed species, native vegetation, and wildlife standards, there was concern from the EAC and we've heard from the public, and we share to some degree that concern that our wetland classification scheme needs to be improved. We need to take a look at it differently. Staff has kind of brainstormed some ideas that I've listed here on this front page. I've given you a little bit of backup in this material as well just to show what we have proposed already as your frame of reference; that's Exhibit A. Exhibit B is making sure that we still understand that as we propose regulations for wetland protection for the Growth Management Plan, here is what the state requirements that I've listed here for you so you have that as a reference. And Exhibit C is a graphical display of Alternative No. 2 that staff has put Page 97 June 6, 2001 together. The numbers that we have there I'll be able to go through with you at some other point. My recommendation is that through the Growth Management subcommittee or another subcommittee, that you work closely with staff and work out some of the details that you can then bring back to the full EAC. But I still -- I wanted to get this into your hands because summer is upon us. I'm not sure what Barbara had in mind for your July meeting, but, obviously, July 4th is the first Wednesday, and so we -- as we go through the summer, we need to have some time to -- with the EAC to work with you on the wetland classification scheme because I see that as being a substantive problem that I'm certainly not happy with our current classification scheme, although, as you've worked through it, I'm not sure -- that certainly is not a perfect scheme, and each scheme has its flaws. But I'd like to work with you-all closely to help develop that classification scheme. And perhaps through that subcommittee may be a good way of doing it, and I can go through a more detailed explanation with you at that point. MR. CARLSON: Is this Exhibit A identical to the first one? MR. LORENZ: I think it should -- it should be, it should be. I know that there was one place where there is, like, a mistake or something, but I didn't want to change it. MR. CARLSON: Okay. MR. LORENZ: That's for a frame of reference. For the subcommittee, what I'd like to be able to do is -- because we've had difficulty getting it on-line and -- maybe calendar it now, the subcommittee -- I mean, the Rural Friends Advisory Committee will be meeting on June 13th. And if you would all like to meet there after that subcommittee that's -- I can arrange that to be the case. That would be next Wednesday. MS. SANTORO: That's fine with me. Ed, are you available? Bill? Page 98 June 6, 2001 MR. HILL: MR. CARLSON: about here? MS. SANTORO: CHAIRMAN SANSBURY: 6/13. MS. SANTORO: The 13th. For next Wednesday? Which day? What day? What are we talking Next Wednesday. MR. CARLSON: Yeah. I am available. Send me a reminder. MR. LORENZ: That would be at six o'clock, June the 13th. That would be the growth management subcommittee. MR. HILL: I want to reiterate what I said last month, an apology to Ali and Bill and Ed because of family reasons I have not been able to carry my portion of the load on that subcommittee, and I recommended that you appoint somebody to take my place. It didn't happen last week -- last month, so I guess I'm still on the committee. MR. CARLSON: Didn't Chet volunteer? MS. SANTORO: Yes. And will send -- can you attend, Bill? MR. LORENZ: But he is out. Chester, I believe, is not going to be back in town until August or so. MR. HILL: Okay. Next Wednesday at six o'clock in E. MR. LORENZ: Development Services Conference Room E; that's correct. MS. SANTORO: And I'll be glad to send you-all e-mail reminders. MR. LORENZ: So it would be Ali, Ed, and Bill. CHAIRMAN SANSBURY: Comments from the public? Meeting adjourned. There being no further business for the good of the County, Page 99 June 6, 2001 the meeting was adjourned by order of the Chair at 12:25 p.m. ENVIRONMENTAL ADVISORY COMMITTEE THOMAS SANSBURY, CHAIRMAN TRANSCRIPT PREPARED ON BEHALF OF DONOVAN COURT REPORTING, INC., BY PAMELA HOLDEN, COURT REPORTER Page100