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EAC Minutes 11/07/2001 RNovember 7, 2001 TRANSCRIPT OF THE MEETING OF THE ENVIRONMENTAL ADVISORY COUNCIL Naples, Florida, November 7, 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 9:05 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 W. Hill Alexandra Santoro Alfred F. Gal Chester Soling Larry Stone NOT PRESENT: Erica Lynne ALSO PRESENT: Patrick White, Assistant County Attorney Stan Chrzanowski, Senior Engineer Barbara Burgeson, Senior Environmental Specialist Stephen Lenberger, Environmental Specialist Page 1 ENVIRONMENTAL ADVISORY COUNCIL AGENDA November 7, 2001 9:00 A.M. (Back half of) Commission Boardroom W. Harmon Turner Building (Building "F") - Third Floor I. Roll Call II. Approval of Agenda III. Approval of October 3, 2001 Meeting Minutes IV. Land Use Petitions A. Planned Unit Development Amendment No. PUDZ-2001-AR-1404 "Silver Lakes PUD" Section 10 & 15, Township 51 South, Range 26 East B. Planned Unit Development No. PUDZ-2001-AR-1464 "Rookery Bay Towers PUD" Section 15, Township 51 South, Range 26 East V. Old Business A. Wetlands Policy discussion VI. New Business LDC AMENDMENTS VII. Growth Management Update VIII. Subcommittee Report A. Growth Management Subcommittee B. Rural Fringe Advisory Committee Liaison IX. Council Member Comments X. Public Comments XI. Adjournment Council Members: Please notify the Current Planning Secretary no later than 5:00 p.m. on October 26, 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. November 7, 2001 CHAIRMAN SANSBURY: Steve, you're going to be in charge over at that desk today? MR. LENBERGER: For a while, yes. CHAIRMAN SANSBURY: Okay. Why don't we call the meeting to order, and why don't we call the roll to make sure everybody is here. MR. LENBERGER: Carlson. MR. CARLSON: Here. MR. LENBERGER: Coe. MR. COE: Here. MR. LENBERGER: Stone. MR. STONE: Here. MR. LENBERGER: Lynne. (No response.) MR. LENBERGER: Gal. MR. GAL: Here. MR. LENBERGER: Soling. MR. SOLING: Here. MR. LENBERGER: Santoro. MS. SANTORO: Here. MR. LENBERGER: Sansbury. CHAIRMAN SANSBURY: Here. MR. LENBERGER: Hill. MR. HILL: Here. CHAIRMAN SANSBURY: Show that we do have a quorum with eight members present; is that correct? All right. On the agenda do we have any deletions, additions? MR. GAL: I move that we discuss the LDC amendments prior to the old business. CHAIRMAN SANSBURY: Excuse me? MR. GAL: Discuss the LDC amendments prior to the old Page 2 November 7, 2001 business. Might as well get all of the contentious issues out of the way first. CHAIRMAN SANSBURY: All right. I don't have a problem with that. MR. LENBERGER: Barbara was going to -- and Susan Murray were going to handle the LDC amendments. Both of them couldn't make it this morning. They'll probably be here about ten o'clock. CHAIRMAN SANSBURY: Okay. All right. We'll just see how it goes, if they get here and so forth. All right? Thanks. Anything else? How about the minutes from October? Any comments on it? Any revisions? MR. CARLSON: Move to approve. CHAIRMAN SANSBURY: Moved-- MR. COE: Second. CHAIRMAN SANSBURY: Okay. Hearing no opposed, approved unanimously. Okay. We have two land-use petitions. Patrick, the best thing to do is swear everybody at this point that is going to be testifying on these petitions? MR. WHITE: Assistant County Attorney Patrick White. I would do that for each case as they would come forward. CHAIRMAN SANSBURY: Okay. Each -- each -- excuse me now? MR. WHITE: I'd do that for each case as it comes forward. CHAIRMAN SANSBURY: Each case, okay. The Silver Lake PUD is the one we're going to take first. So anyone who is going to testify on the Sever-- Silver Lakes PUD, please stand to be sworn. (The oath was administered.) CHAIRMAN SANSBURY: Okay. Are there any members of the council that wish disclosure regarding having discussed this matter with anyone? Page 3 November 7, 2001 (No response.) CHAIRMAN SANSBURY: Hearing none, let's proceed. MR. BADAMTCHIAN: Good morning, Council Members. My name is Chahram Badamtchian from planning services staff. This PUD amendment was heard by this board on August the 1st of this year. And in a minute I will tell you why we are back. The applicant is requesting to change the PUD master plan and some language in the PUD document in order to develop the park according to what -- what's already on the ground and what they are planning to do. The PUD master plan was approved to preserve -- preserve small areas and also a road coming almost through 951 and dead-ending there. But what they have done is basically they built a golf course over here (indicating), and a portion of the golf course is in here (indicating) also. I should add that the Deltona line is right in here (indicating), and anything south of it is within the Deltona settlement. Anything north is not. And right now the major sticking issue is that the northern portion of the property here (indicating) was shown as recreation area with storage area shown on the northeastern comer. What they are doing, they are changing most of that recreation area into conservation, and only a small portion of it will remain as recreation. And they're also adding some lots in here (indicating) These are the lots that they were deleted from this portion (indicating) of the property. And what we -- that's what we told you last time. What we failed to tell you is the PUD document has the same numbers and for the acreages of the different tracts. And these numbers needs to be adjusted to agree with the new master plan. And that's why we are back here one more time, to tell you that the PUD document -- also these numbers need to be adjusted. Page 4 November 7, 2001 And last time you heard this you unanimously recommended approval of this petition. CHAIRMAN SANSBURY: Okay. MR. CARLSON: Approval of this plan that we're looking at right now? MR. BADAMTCHIAN: Yeah. Approval -- yeah, you recommended approval of this plan as you are looking at it right now. Actually, I believe when you looked at it, this recreation tract was slightly larger, and conservation was slightly smaller. They moved the line further to the west and made the conservation slightly larger. I think that was because of the Army Corps requirements and -- CHAIRMAN SANSBURY: Okay. All right. Any questions? Yes, ma'am. MS. SANTORO: Would you describe what's in the recreation area? MR. BADAMTCHIAN: The recreation area -- basically, recreation area allows utility, water management, right-of-way easement, golf courses, and structures associated with the recreation facilities, hurricane evacuation facilities, lakes, and pedestrian and bicycle paths, small dock and pier and shuffle board courts, tennis courts, swimming pools, and similar facilities. MS. SANTORO: Okay. What is going to be in that upper top left-hand comer, the block there, not the conservation land, but the recreation area that's abutting it? MR. BADAMTCHIAN: In the recreation area -- MS. SANTORO: Yeah. MR. BADAMTCHIAN: -- any of these users, include in-- accessory users. These are the permitted uses in their recreation areas. Accessory uses include storage, which basically says accessory -- customary accessory uses or structures incidental to Page 5 November 7, 2001 recreational -- recreational areas and/or facilities including structures constructed for purpose of maintenance, storage, including RV storage, recreation or shelter with appropriate screening and landscaping. MR. HILL: On Exhibit A existing, the portion of the site in the south central portion, what was approved, and what is shown on the existing layout is preserve. On the proposed it's a common and recreational area. Is that -- MR. BADAMTCHIAN: That's correct. MR. HILL: -- part of the change? MR. BADAMTCHIAN: That is part of the change. These are preserve areas that the golf course was built over it. You have to understand; this is within the Deltona settlement area. And state and federal agencies, they don't claim any jurisdictions over it. And one of-- the reason they are increasing this is basically they removed some of the wet -- I don't know the quality of those wetlands, but they were removed, and as you can see, the old area had the 3 acres of conservation. The new master plan has -- has 26 acres of conservation. So they are increasing the conserve -- overall conservation from 3 to 26 acres. MR. HILL: As I recall that tract CR in the south central portion when we reviewed it was a high-quality wetland. But you say a golf course is in there now? MR. BADAMTCHIAN: August? MR. HILL: Yeah. MR. BADAMTCHIAN: long time ago. CHAIRMAN SANSBURY: MR. HILL: No. But that-- MR. BADAMTCHIAN: You mean when you reviewed this in No, sir. The golf courses was built a Yeah, a couple years ago. I'm not an environmentalist. Steve is Page 6 November 7, 2001 here to answer those questions. I don't know the quality of the wetlands. CHAIRMAN SANSBURY: Steve. MR. LENBERGER: Which wetland area were you referring to? The northern-- MR. HILL: South center. MR. LENBERGER: MR. HILL: Yeah. MR. LENBERGER: This piece right there? If I remember correctly -- and it's been a while since I looked at it -- it's kind of a mixture of a wax myrtle, cabbage palm, that type of thing. It was -- it was impacted quite a bit. Just to back up here a minute, what Chahram said, the northern portion, which the residents there call the north 40 acres -- it's actually a little bit over 37 acres -- is above it, the Deltona settlement boundary. The southern portion is identified as an area to be developed within the Deltona settlement. So according to the interpretation we have from planning services director, areas identified for a development within the Deltona settlement area are -- are not required to have any on-site preservation for those areas which are impacted in that area. Basically, the site, the northern 37-plus acres, is a mixture of vegetation. To the east is quite a bit of pine canopy. A large amount of verbenaceous vegetation, mostly monocots, good diversity, fairly healthy, and a lot of pine seedlings in the open areas. I'd say the western two-thirds of the project is more of a mixture of wax myrtle, laurel oak, pepper, melaleuca, and a lot of verbenaceous species also, mostly native. CHAIRMAN SANSBURY: If I could ask a question again, the plan that we saw how long ago? Six months ago? MR. BADAMTCHIAN: No. August. CHAIRMAN SANSBURY: August. Oh, okay. Was it not this Page 7 November 7, 2001 exact same plan with the exception of the -- I'm a little confused. MR. BADAMTCHIAN: I believe it's the exact same plan. Throughout this review we received several different plans, and every time they gave us a new plan, this conservation area was enlarged. And I'm not positive if you saw was this one, the conservation area -- CHAIRMAN SANSBURY: But it was a similar plan to this one. MR. BADAMTCHIAN: Very similar plan to this one. CHAIRMAN SANSBURY: Okay. All right. MR. SOLING: Mr. Chairman. CHAIRMAN SANSBURY: Yes, sir. MR. SOLING: Is that a aerial photograph on the wall there? MR. BADAMTCHIAN: Yes, it is. MR. SOLING: So what I'm trying to understand, we're talking about something that's already under construction and a lot of this exists. And we're talking about after the fact rather than before the fact. MR. BADAMTCHIAN: Most; some of it partially after the fact. CHAIRMAN SANSBURY: Is -- is not-- and I guess the bottom line, the north 40 or whatever you call that piece, is it basically -- it all remains as it's shown with the exception of that portion on the west end of it which is shown as -- as -- and the little portion right there? Okay. Where that road comes around? Okay. All right. Okay. Any other questions for staff?. Anything else, Steve, that you want to address on it? MR. LENBERGER: I have nothing else to add unless you have any questions. CHAIRMAN SANSBURY: Questions? (No response.) Page 8 November 7, 2001 CHAIRMAN SANSBURY: Would the petitioner like to address? MR. CUYLER: Good morning, Mr. Chairman, Council Members. For the record, Ken Cuyler with the law firm of Goodlette, Coleman, and Johnson. I'm only going to have a couple of comments. And we do have Mr. Butler, our environmental consultant, with us today. My understanding is that you have heard this exact petition within the last three months and that there was unanimous approval for it. The reason it's back is not because of an environmental issue or a planning issue. It's because, I believe, of an adver-- advertisement issue, if I'm not mistaken. So the plan you're looking at right now is the same one you unanimously approved. As you can see from the attendance, the petition has become a little more popular since the last time you saw it. The residents and the developer are currently in some disagreement as to a planning issue, not an environmental issue. That planning issue is a storage area that is going to either be located or at least there is a designation for a future storage area if the developer decides to do that. The residents are interested in having that on the eastern side, and the developer primarily based on agency recommendations to him, other agencies other than Collier County, is interested in placing it or designating it on the western side. I would suggest to you that's a planning issue, not an environmental issue, although you may hear some discussion of that today. With that, I can go into more detail. But having your -- your having heard this already once and just heard the presentation again from staff, we do have some color site plan type documents if it will help you understand anything as opposed to the aerial, if-- if you'd like to see those. Page 9 November 7, 2001 What we may have to do is wait and see what comments are made by anyone registered to speak, and then if you'll allow us to reserve some time and address those issues. CHAIRMAN SANSBURY: Yes, sir. MR. CARLSON: It wasn't that long ago, but I'm having a little bit of trouble recalling all this. CHAIRMAN SANSBURY: That's called age. MR. CARLSON: Yes. Is that the Water Management District and the regulatory agencies had already signed off on the plan that came before us in August. MR. CUYLER: Let -- let me tell you what I know about it, and then I'm going to get the -- the expert to talk to you a little bit. This whole petition is because of some things that shouldn't have occurred but did occur, and -- and I don't think the residents are opposing any of those things that occurred. And that is there were some areas that were originally laid out as -- under a land designation of preserve. And there were some golf courses built within those areas. And there's a certain amount of open-space recreation that was formally -- or is currently designated on the plan. The purpose, the real general purpose of this entire amendment process, is to come in and approve or legitimize those areas where the golf course was built to designate some additional lots on a certain area of the site plan and then, in return for that, designate a large part of this as actual conservation as opposed to recreation space. And the conservation area obviously will either be deeded, or it will be retained with an easement and maintenance responsibilities. But you're correct; the agencies have reviewed it. Permits have not been issued, I believe. But there have been substantial discussions, and the agencies have indicated where they want to see the planning aspect, that is, that designation for recreation within which the storage area can be placed. We had a -- a lengthy hearing last Thursday in front Page 10 November 7, 2001 of the planning commission, and all of those issues were discussed. In my opinion, those are purely planning issues. But you're correct. The agencies have seen this, but they haven't actually issued permits yet. CHAIRMAN SANSBURY: Staff or Mr. White, are we -- Mr. Cuyler correct in saying that we're back here because of a problem with -- with adver-- with advertisement? MR. BADAMTCHIAN: It was advertised as a PDI, which means only map change. However, we had to adjust those four numbers, the acreages in the PUD document. CHAIRMAN SANSBURY: Gotcha. Thank you. MR. CUYLER: So there's no difference at all, as far as I know, in terms of what you considered last time and what you're considering today. CHAIRMAN SANSBURY: Council have any other questions for Mr. Cuyler? Would they like to hear from Mr. Cuyler's environmental consultant? (No response.) CHAIRMAN SANSBURY: Okay. Hearing none-- MR. CUYLER: Thank you. CHAIRMAN SANSBURY: -- members of the public who would like to address the issue. Are there members of the public who would like to address the matter? (No response.) CHAIRMAN SANSBURY: Okay. Mr. Pires. MR. WHITE: If I may interrupt, Mr. Chairman. CHAIRMAN SANSBURY: Yes. MR. WHITE: I have two documents here. One of them is from Mr. Pires. The other is from a gentleman by the name of Gary Lee. They were on my desk here. I believe that they more properly may Page 11 November 7, 2001 belong to staff, so I'm going to turn them over to them. CHAIRMAN SANSBURY: Tony, why don't you come over to this side-- MR. PIRES: I apologize. CHAIRMAN SANSBURY: That's okay. MR. PIRES: Mr. Chairman, I'm with you. I usually like-- CHAIRMAN SANSBURY: Okay. That's all right. We're going to confuse you with someone from staff. MR. PIRES: Oh, I don't think you will. A long time ago, maybe 20 years ago. For the record, my name is Tony Pires with the law firm of Woodward, Pires & Lombardo and representing a transition committee comprised of the residents of Silver Lakes RV Park. The association or the community is still controlled by the developer. We have issue with only one aspect of this application. And we're glad we're here today, have the opportunity to be here today. We weren't here in August. We didn't know about it in August, although we had met with the developer and county staff to talk about some of the issues that the community had involving this project. We found out about the EAC meeting in August by one of the residents watching it on television the day of the hearing. So we're glad to be able to be here because we have hired a biologist, Gary Beardsley, who will be providing additional data that I think will be helpful in this council's determination of possibly, hopefully, making a different recommendation than made the first time. This council, like all the other councils and committees that I'm familiar with in Collier County, including the ones I serve on, like to deal with printed relevant facts, so we'll try to stick to those today. And I think some of the facts -- and I think Mr. Carlson referenced one aspect that might be causing confusion -- is the premise, I Page 12 November 7, 2001 believe, of the first review was that there were permits in hand and that permitting agencies had required certain activities to take place and the western side would not allow the activity to occur on the eastern portion of the property. Part of the confusion may come from a couple of documents, one, the PUD application, which was, I think, after your meeting. The planner for the developer stated that the purpose for this amendment is merely to depict the current development pattern as it has been permitted through its seven platted phases as Mr. Cuyler and staff indicated the golf course and some other improvements and to reflect the intended last phase of development as it had been permitted with the U.S. Army Corps of Engineers and the South Florida Water Management District. And I think staff picked up on that in their staff report, and the most recent staff report even contains the statement at page 2 that, quote, these changes will allow the applicant to comply with requirements of the state and federal permitting. As of this date, no permits have been issued. Army Corps has posted as of November 2nd notice of intent to issue a permit. So that 30-day window of opportunity for participation by other agencies, consultation with Fish and Wildlife and EPA, has began as of November 2nd, and we plan on fully participating in that process. And part of the public notice for that permit application, once again, published on their web site as of November 2nd, 2001, from Army Corps states, "Based on information provided by the applicant's consultant, the Corps of Engineers has determined that the project may affect but would not likely adversely affect the wood stork; the Corps is coordinating this determination with Fish and Wildlife Service under the Endangered Species Act, via this public notice." You'll hear, I think, testimony from some of the residents who Page 13 November 7, 2001 have seen wood storks in this area because of the nature of the property on the western side where this development is proposed. As far as South Florida, they -- we have a fax I received last week indicating they may be soon issuing their notice of intent to issue a permit, but they have not yet issued their permit. We have, I think, additional pertinent facts that we believe should show that this development should occur and remain on the eastern side as originally envisioned. The original site plan for this, as outlined in the PUD master plan -- on the master plan itself had -- this area indicated here as storage. That's approximately a 3-acre area. MR. CARLSON: I hate to interrupt, but I've heard the word storage used now a dozen -- I just to want make sure what the -- what does storage mean? MR. PIRES: We anticipate storage will be an accessory use to the park for the residents and property owners for the park to store their motor homes or trailers or other aspects of-- that are necessary because of the nature of that type of community, that type of living. But it would be for the residents of the park. MR. CARLSON: Okay. MR. PIRES: My understanding is that's how the county staff would require it. That's how the PUD requires it, to be accessory to the principal uses. MR. CARLSON: Okay. MR. PIRES: The original master plan also had -- within this area had this as a lake. It had, like, an outline of a lake and also some nature trails. And the property owners -- and also on the original master plan there was a -- I think you were advised last time, these lots were shown as occurring down here, and there were no lots up in this area. This was indicated as preserve. This was indicated as preserve. Page 14 November 7, 2001 What's happened on the ground-- and the community is in favor of every aspect of this application except for one. These lots don't exist. This golf course was made a little bit more further to the south. They're very happy with that aspect. Part of the golf course goes to this preserve area that's existing. They don't have any difficulty with that aspect of the application, and there's -- this has been utilized also other than preserve. Up in here the developer is proposing 28 lots to be developed. Part would be in the jurisdictional wetlands as claimed by Corps and South Florida north of the Deltona settlement line. The community has no difficulty and fully supports that. Basically what the developer is asking for is that these lots that were not built down here (indicating) be located up in here (indicating). The community fully supports that, and there's some variations and adjustments to the lot sizes in this area. The community fully supports that. What the community doesn't support is having the storage facility located on the western side where there are existing property owners and residents residing. They request and they desire to have it located on the east side where it is indicated as storage area on the original master plan. The agencies -- the petitioner will tell you or articulate that the agencies have pushed the project to the west because of the quality of the wetlands. I believe you'll hear from Gary Beardsley that he believes what would be appropriate is to keep the storage area on the east, reduce it from the proposed 8-area site and keep it at 3 acres and have it in this area. As part of that, one of the parts of the master plan that we think is important to the PUD document itself as opposed to typical I'll call it moosh language in PUDs as to what master plans are, as I mentioned before, this is designated as a lake. It may be difficult to Page 15 November 7, 2001 see, but it says lake right there. Section 2.3-A and B of the PUD state that, quote, 2.3-B, areas illustrated as lakes by Exhibit A, which is this document, shall be constructed lakes or upon approval parts thereof may be constructed as shallow intermittent wet and dry depressions for water retention purposes. Such areas, lakes, and intermittent wet and dry areas shall be in the same general configuration and contain the same general acreage as shown by Exhibit A and Exhibit B. The storage area would be approximately here over to here which would take up a significant portion of this area indicated as being lake on the PUD master plan. Additionally, the developer-- one of the issues we always have a concern with involving facts is also credibility issues. The developer in permitting with the Corps in south Florida, particularly the last week of the planning commission, that he does -- isn't sure of the full size that he wants, but he's going for the maximum size possible in permitting this with Army Corps in south Florida, because let's get the most we can out of those agencies. On the western side in this area the developer is proposing -- I can pass this around. This is the proposed storage area. Is that okay, Mr. Chairman? That's what is being proposed. That information has never been submitted to the county, to the best of my knowledge. That was submitted to South Florida after South Florida asked for it. And, interestingly enough, even though that was submitted to South Florida saying this is what we need to have, two days before that submittal an attorney for the developer told a property owner's lawyer, "My client advises us that they have no present plans to build the storage facility. Since there are no plans to build, there is no decision as to where the facility will be located. Again, however, there are no plans to request a building permit." I'd like to make this letter a copy of the record -- the new record. Page 16 November 7, 2001 One other aspect also is because of the nature of the property that's in the eastern area that we believe should be the location for the storage area as originally envisioned as depicted when the property owners purchased are activities that have occurred in there in the last few years that do not appear on this aerial photograph. I'd like to show you some photographs taken October 30th of this area. I'm not very good at using this visualizer. I don't know how to enlarge it. MR. BADAMTCHIAN: I do. MR. PIRES: Thank you, Chahram. Mr. Belanger who took these photographs is present here today and I believe will verify that the photographs depict what they purport to represent. This fence it is my understanding that Mr. Belanger will testify is on the Deltona settlement line. MR. CARLSON: Could you show us on a bigger map where this site is? MR. PIRES: Yes (indicating). MR. CARLSON: Okay. MR. PIRES: I think Mr. Belanger can provide better testimony or Mr. Strauss, but my understanding is that there is a dirt road that's coming from this portion of the development, goes north into this area, is depicted in the photographs. As -- as can be seen from the photographs, in the area north of the fence line, there is substantial construction debris, which my understanding is -- I've been advised was construction material from pads that were torn up by the developer after they were initially installed. I have a number of additional other photographs that are -- depict what is occurring in this area. This, again, is in the general area of the storage area as originally depicted. This is looking north from -- that photograph is looking north into this area. Page 17 November 7, 2001 This is another photograph looking northeast into this area. And this is another photograph looking north into the area, which we believe is in the area that is north of the Deltona settlement line. I have a number of other photographs. At the planning commission the petitioner was asked whether or not they were aware of the fact that this was located north of that line. They said they hadn't surveyed it yet. But I believe that from the testimony of the residents, I think you'll hear that this is the area where the proposed storage has always been indicated, that this area has already been impacted, and they wish to have the storage facility located in that area. As I mentioned before, we support having the storage area in the east with reduced wetland impacts to 3 acres, in the area that's always been proposed. And we have no difficulty with the lots being in that area but not having the storage area to the west. And I'm available, and also Mr. Beardsley will be next, followed by Mr. Belanger, possibly Mr. Strauss for any additional evidence. And we're thankful to have the opportunity to be here today to provide this information to the EAC. CHAIRMAN SANSBURY: Mr. Coe, you have a question. MR. COE: In the southwest portion where that golf course is extended into an area that was previously going to be developed, why did that occur when we had approved that area to be developed for units? MR. PIRES: I think staff can possibly best answer that. There were plats and subdivision approvals that were winding their way through the process in the '90s. And I think Chahram addressed that issue at the planning commission as to how that occurred. I wasn't present at the creation, and I think staff-- may be best addressed by staff. CHAIRMAN SANSBURY: Okay. Page 18 November 7, 2001 MR. BADAMTCHIAN: I -- I researched this, why it happened. It appears that at the time they built the golf course, we did not review site development plan for golf courses. They just applied for construction plan. Therefore, planning staff wasn't involved with the construction of golf courses at the time, and that's how nobody checked the master plans since planning wasn't involved. And since 1996, I believe, we amended the code that the planning staff must review golf courses as the site development plan. That's the best explanation I can give you. It happened many years ago and predates most of us in development services. It's just the way it was -- MR. COE: Well, my question is, is who made the decision to move the golf course into a area that was approved for development? MR. BADAMTCHIAN: Well, the developer. MR. COE: The developer did that. MR. BADAMTCHIAN: Yes. MR. COE: Okay. So my next question obviously would follow, why should we permit the developer to move into a northern area that wasn't previously approved to be developed because he decided he wanted to put a golf course there that was never permitted by anybody in the first place? MR. BADAMTCHIAN: Okay. We don't-- you don't have to recommend approval. However, the land is there, and the PUD was approved for a certain number of units, and he's applying for an amendment to the master plan to enable him to build those lots over there, and it's up to you to make a decision. MR. COE: Okay. CHAIRMAN SANSBURY: Okay. Let me -- if I could clarify a question. I'm maybe looking at Mr. -- Mr. White and Mr. Lenberger. The environmental impact, you might say, is what we're looking at, between the doc -- the document we have in front of us as existing Page 19 November 7, 2001 and the document we have that's proposed. Okay. From the standpoint of wetlands -- do we have an -- is it different? I mean, has -- has the -- and what we're talking about -- here, again, I want to get back to what Mr. Cuyler said. Is this an environmental issue, or is this a planning issue? And I think we need to clarify that. MR. WHITE: I'm not sure entirely who it is you're asking. CHAIRMAN SANSBURY: I'm asking everyone in the room. MR. WHITE: In the rush to have their perspective brought to your attention, I believe that what the LDC tells us is that ultimately it's your decision about whether you believe it is or not. There may be some factual matters out there that pertain, but you're here on -- it's on your agenda for the purpose of obtaining a recommendation. MR. CUYLER: If your question is this exactly the same document you looked at last time, my understanding is yes, and Chahram needs to correct me if that's not correct. MR. BADAMTCHIAN: I believe -- I believe it is. That's the exact same document you looked at last time. CHAIRMAN SANSBURY: So from your environmental consultant was that gentleman who was going to get up? MR. CUYLER: He was going to say the same thing, but I will let him say the same -- CHAIRMAN SANSBURY: Please identify yourself for the record. MR. BUTLER: Ian Butler, Butler Environmental. CHAIRMAN SANSBURY: Again the question. Okay. The plan that came through here last time from wetland areas and things of that sort, is there any difference in the plan that's coming through today? MR. BUTLER: There is no difference. My office prepared the environmental impact statement that you reviewed in August, and it has not been changed since then. So it is the same. Page 20 November 7, 2001 CHAIRMAN SANSBURY: How about the alteration we're seeing at the far eastern portion where the area that is shown -- I can't tell from the existing -- from the plan that we have in front of us that's proposed, it's showing conservation, but that area is obviously used as a dump. MR. BUTLER: Yes. That -- that's correct. And there was a meeting that Mr. Pires was in attendance to with the Water Management District within the past week and a half, and that issue was brought up. Unfortunately, it was something that I was not aware of at the time of the creation of these exhibits. However, discussions with the Water Management District has been presented to restore and revegetate that area as part of a condition of the issuance of the South Florida Water Management District permit. CHAIRMAN SANSBURY: So part of this proposal is to go in that area that has been disturbed -~ MR. BUTLER: To remove everything. CHAIRMAN SANSBURY: Part of-- part of the -- part of this request is that that area will be restored to its original condition and all the junk moved. MR. CUYLER: That will be part of the -- we understand that that will be part of the state permitting process. One thing I might point out-- and obviously I'll leave time for Mr. Pires to counter anything I say, but the -- at the planning commission the discussion was really more oriented towards this is where we, the residents, thought the storage area would be. Some materials have been put in there, although-- and there was a discussion of whether this was really the type of storage that we were talking about. And it's not. We're talking about trailer storage and mobile homes and recreational vehicles and those types of things, not concrete and -- and downed trees. But, again, that is the planning aspect of it. The environmental aspect of it has already been reviewed by the state agency. They Page 21 November 7, 2001 have not changed their mind about what they want to permit and what they've recommended. And at some point we do have that in writing in terms of their recommendation to us. The only other thing I'd mention before I sit down is that one of the planning commissioners asked, has it been mandated and -- that you go to that -- to the western end. And the environmental consultant said, "No, it hasn't been mandated. They can't make us do it, but they don't have to approve our permits if we don't do what they want to us do." And those of you that deal with the agencies on a regular basis know that if they are recommending something to you, then you'd best pay attention to that. MR. PIRES: Mr. Chairman, ifI may briefly clarify -- CHAIRMAN SANSBURY: Yes, sir. MR. PIRES: -- what may be misleading at the meeting with South Florida. The meeting with South Florida, it was a brief, maybe no more than a couple-minute discussion over an hour period of time with regards to the current activities that are depicted in these photographs. South Florida did not see these photographs as of yet. They will. They have not seen them as of yet. Any discussions that Mr. Butler indicates had occurred as to revegetating the area, that was after the meeting. If any of those occurred, I was not party to any of those. I think-- and we'll find out during the administrative process with South Florida and Corps. I believe that based upon the analysis -- and Mr. Beardsley also can testify to it. Based upon the review of the submittal and requests back and forth, sufficiency requests back and forth between South Florida and the applicant's representative was that the biological integrity of this northeastern -- eastern area was part of their determination that -- go west, young man, go to the west and develop. I think the fact that the biological integrity of that eastern area Page 22 November 7, 2001 has been compromised severely, as indicated by this photograph, maybe that will be of some use in their determination. I don't know, but we'll see during that process. Second, I think there is new data and new facts that are being brought to you today with regards to, number one, the condition of that property is not as pristine as indicated; number two, we have the report and testimony of Mr. Beardsley. One additional fact just for clarification. I think the staff report indicates that the -- in the submittal to the South Florida they propose mitigation credits for 4.89 acres. I believe that the biologist for the developer, as of October 5th, said the mitigation will be 3.66 credits as opposed to 4.89. So I think that's a fact that needs to be clarified for the record. Once again, the only aspect that the community has difficulty with is the moving, basically, the proposed storage area as originally depicted to an area depicted as a lake on the master plan and out of an area that we believe -- into an area that we think has, you know, a function that should remain as it exists today. And I'll make these part of the record and pass them out with the chairman's indulgence. CHAIRMAN SANSBURY: Do we have anyone else from the public that would like to address the petition? Yes, sir. Please come up and identify yourself. MR. BEARDSLEY: Good morning, Chairman and-- and Committee. My name is Gary Beardsley, a resident of Collier County, 4661 13th Avenue Southwest. I'm a biologist. I have a company, Tropical Environmental Consultants. I was asked by the homeowners' association to evaluate the information that the environmental consultant and applicant had made so far and also to visit the site to get some kind of evaluation, did I agree with what they said or did I disagree or were there some issues that might be brought up. Page 23 November 7, 2001 On September 10th I visited the site and set up a series of seven transects north to south. I tried to focus only on the western edge and the eastern edge, since that was the big concern, a storage area proposed for the west and the area that had been previously identified for storage on the east. It was a unique situation in that the entire site which has been deemed to be wetlands, jurisdictional wetlands to the Army Corps and the Water Management District, was inundated with water. Why this was interesting for me as a biologist is it allowed me to use the water as a leveler to try to get some idea of what the topographic changes from one side, west side to east side, of the land was. Strange enough, there were not much changes. The water depth in the east and in the west was about 6 to 8 inches above the surface of the water -- of the ground, the natural grade. The other thing that a biologist looks for is some kind of indicators of the seasonal high water during the wet season. These biological indicators that can be used are active-growing cypress knees, lichen lines, algal mats, lacental -- little circular devices that are used to help a plant to breed on the base of a tree or the base of wax myrtle. In looking at the biological indicators in these areas of the transect, it showed that the water level would go up 4 to 6 inches more than the 6 inches to 8 inches that was on the surface of the ground. Why that's interesting and why that's important is back in 1990 a previous consultant that worked for the applicant did some shallow wells and found that the water table did not reach the surface and that the average elevation across this 37-acre parcel was about 3 feet, 3-feet elevation. Water did not break the surface. And in the applicant's submittals to the Water Management District, the Water Management District asked what are the biological indicators of the seasonal high water in this area. And the consultant said, partially Page 24 November 7, 2001 properly, that the storage area had been cleared in old ag operations. Therefore, there were no cypress trees and such that could be used to give an idea of the historic, what it was in the past, in the '60s and '50s. The Water Management District also asked for current seasonal high-water tables, and the consultants did not answer that question. The big concern that I have is the consultant is proposing to improve conveyance along a ditch that runs along the south side of this 37-acre parcel. They want to improve the ability of that to carry off water from the site. If they improve the conveyance ability on this site and they drop the water table from the 10 to 12 inches that's normally in there in the height of the rainy season towards the end of September and October, that's going to change the functionality of this wetlands. That's one concern. The other issue of water quality and wetland quality is which end of this property, the west end or the east end, is biologically more impacted? The Water Management District's information that they received, of course, was from the applicant. And the applicant said in the area of the 8 acres that this was all old ag, and it was disturbed in the past and, therefore, it would be a proper place after the Water Management District said we think it should be on the west for this to be -- this storage area to be placed. I do approximately a thousand inspections a year on properties in Collier County. And a lot of old field areas in Golden Gate Estates, up especially near Orange Tree, it's very obvious. You walk into it; you have perimeter ditches. You have swales, bridge and swale within the farm-field area. So when I went in the western edge and did the transects, I expected to find ditches, ridges, and swales throughout the whole area of this proposed 8 acres. I did not. I found it in the eastern one-third. I did not find it in the western two- thirds. And I looked at the USGS topographic, and I looked at some Page 25 November 7, 2001 old aerials. And, indeed, the majority, two-thirds of the 8-acre proposed storage area, was not under ag. It was only the eastern one- third of it. So we realized that the Water Management District thought that this had all been altered in the past. Some of it is pristine. I think Steve characterized this as dominated by pine in the east and kind of open marsh in the west. He failed to -- to state that the eastern part is heavily invaded with melaleuca seedlings that have been culled, not back. And they're probably 7, 8 feet tall, very dense stand of melaleuca in that area. The -- the melaleuca is also through the center portion of the 37 acres. It also is in the eastern portion of this 8 acres that's proposed for it. But it's not in the westernmost one- third or two-thirds of it. There is a stand of melaleuca up near the highway, but that's in one real thick clump. So basically when you look, it -- it's not an obvious at one end, the western end is more impacted than the eastern end, especially with the storage area that I would estimate is a half to three-quarter acres that's already in wetlands, and there's debris stored in there, equipment stored in there. And the original storage area was 2.6 acres, and if a half to three-quarter acres is already disturbed... In addition, there's a ditch that runs along the easternmost area that's a conveyance ditch (indicating). This conveyance ditch accepts water, carries it down here and then discharges out this way. The improved conveyance that the applicant is proposing is right along this area, and it would tie into that discharge ditch coming out that way. CHAIRMAN SANSBURY: May I ask a question? Would that -- again, would that function of that ditch differ whether the storage area was on the east end or the west end? Would it not have the same effect on the site no matter which area the storage area was on? MR. BEARDSLEY: No, it wouldn't because the conveyance Page 26 November 7, 2001 that they're proposing to improve would run the whole entire length which is almost one mile coming across there. CHAIRMAN SANSBURY: There would be no ditch? MR. BEARDSLEY: There would be a ditch in the very eastern edge, an improved conveyance that would discharge directly into the ditch that's along the east side. It's a much shorter conveyance. CHAIRMAN SANSBURY: Okay. That's what I'm-- if the storage area is in the east, the ditch would only run along the storage area versus the ditch running along the entire area to reach this -- okay. MR. BEARDSLEY: Correct, correct. CHAIRMAN SANSBURY: Okay. MR. BEARDSLEY: The other-- the other issues that are, I think, very important is -- and I think Steve Limberg -- Lenberger said that. And I am a consultant. I do listed species surveys you find by the seat of your pants. You know, it depends on how much of a proposal you turned in, how many times you can go out on a piece of property. And I -- I always try to do -- and if I can is to ask the residents who live around that area, you know, hey, have you seen alligators or have you seen bears or panthers or anything like this? And usually these people live here in the area that you're looking at, and they have a lot of anecdotal information. I mean, if they say they saw a panther, I say, well, you know, it could have been a bobcat type of thing. But at least you ask these people. I think you're going to have testimony that wood storks visit this area frequently, especially in the western end which is more marsh and open that allows the wood storks in there. The other area that I have concern in is the applicant proposes to take out -- take out the swales and take out the ditches and the berms and fill them in. One of the reasons that we lost 90 percent of the wading bird population in south Florida is because of loss of sheet Page 27 November 7, 2001 flow, loss of water table going up, bioproduction rapidly increasing, and then towards the late dry season, that dropping back down and concentrating fish. So all these old ag and old swales and -- and berms and ditches are ideal areas to concentrate prey for wading birds. So to just level this site for some reason to take exotics out I think is the wrong way to go. CHAIRMAN SANSBURY: All right, sir. You know, when I hear that kind of reasoning and I know that the Corps of Engineers is filling all kinds of canals out on these sides to put it back as it was, I have a difficult time with that reasoning. MR. BEARDSLEY: Well, the only reason they're doing that is to straighten out, like, the Kissimmee River and area like that. CHAIRMAN SANSBURY: I mean out in Golden Gate. MR. BEARDSLEY: Well, one thing, I did a lot of work out in Golden Gate Estates and roads out there everybody said were bad things, but we did a lot of banding of hawks, and the hawks feed on those edges. So there's a trade-off. I agree, there's a trade-off. CHAIRMAN SANSBURY: Okay. Let's do this. Let's see if any members of the council have any questions for Mr. Beardsley. Yes, sir. MR. CARLSON: I guess you sort of hit on this a couple of times, but if you would restate, I mean, from -- from the standpoint of the ecological values of the wetlands and habitats along that strip and -- I mean, if-- if you could just give us some indication of some areas have more ecological value for a variety of reasons, good habitat, lower exotics, healthy water levels. This is new information for us. I mean, is there -- is there an environmental reason to move this storage area to the east end? I mean, you sort of hit around it but can you restate that real -- MR. BEARDSLEY: If I was king and had the magic wand, ! would reduce the size from 8 acres down to something like 3 acres, Page 28 November 7, 2001 obviously reducing impact. The second thing is, because the water table is pretty much the same all the way across this, it's not one area is a slough and has a longer hydroperiod than other areas. But the exotics that are in the eastern part -- and there's -- even though it's a pine canopy and a hydric pine flatwood and, you know, wet prairie on the ground, that area has been disturbed. And if you put a 2.6-acres, 3-acres storage area in that end and save the open marsh end, especially the two- thirds of the 8 acres that has never been farmed, that would be my preference, moving it to the east, reducing the size of the storage area. MR. CARLSON: Moving it to the extreme east end of that tract area tract MR. BEARDSLEY: Yes. MR. CARLSON: -- or just moving it east within this proposed here? MR. BEARDSLEY: No. Moving it directly east to the entire up against the side that's -- MR. CARLSON: (Indicating.) MR. BEARDSLEY: Yes. CHAIRMAN SANSBURY: Okay. Other questions for Mr. Beardsley? (No response.) CHAIRMAN SANSBURY' Hearing none, do we have anyone else from the public that would like to speak? Yes, sir. If we're -- if we're going to use -- excuse me, sir. If we're not going to be using the graphics and so forth, could you -- MR. LENBERGER: If I may, I'd just like to clarify a few points. CHAIRMAN SANSBURY: Go right ahead. MR. LENBERGER: Hopefully the visualizer will come up. Page 29 November 7, 2001 Hang on a second. On the visualizer I have an old aerial. This aerial is for the project immediately north of the -- of the subject property. It's currently in now for a PUD for a business park. And the aerial -- and the area outlined in black is the subject property for the business park. The area to the south, this area right here (indicating), is the northern portion of Silver Lakes. And the area -- and the aerial was taken in '75, I believe, and you can see that the property was farmed historically, the entire property, except -- yeah, all the property. You can actually see the ditches running through both properties. The reason there's more pine towards the western portion of the property is because this -- there's -- there's other pine areas nearby, and I imagine the natural recruitment, that's why that portion of the property has more pines. But it was cleared historically, so I just want to clarify that. About the exotic removal, the developer had an obligation to remove exotics from the property. And most of the exotics which have been removed -- and not all of them have -- have been on the eastern portion of the property. That's why the pines are doing better because a lot of the melaleuca was taken out. The exotic mel has not occurred yet on the eastern -- on the western portion of the property. That's why it's more impacted. CHAIRMAN SANSBURY: Okay. Thank you. Yes, sir, please identify yourself for the record. MR. CARLSON: Mr. Chairman, I wonder if I could ask Mr. Lenberger if I could see the map he has there. CHAIRMAN SANSBURY: Absolutely. Yes, sir. MR. BELANGER: Good morning. My name is Joe Belanger. I am on the board of directors for the POA at Silver Lakes. I'm also a co-chair of the ad hoc transition committee. I stand before you today to try and point out a few things of concern for the owners of Silver Page 30 November 7, 2001 Lakes. As it was stated earlier, we have no objections to most of the changes that is proposed here, but I would like to point out that since the presentation that you people received in August, there has been a change, a drastic change in this. At that point in time there was no propose -- no proposal for the eight acres. They kept telling us that they had no plans to develop that eight acres. And up until the 1 lth hour, they came up and finally gave us a plan of a commercial storage area in the 8 acres. Now, they -- now they're coming back, and they're telling us that they're going to clear out that eastern portion of the land, and they're going to fill it back in. They're going to bring it back to its natural stand. It's kind of hard for me to understand how they're going to bring that eastern portion that was designated originally for a storage area to its natural stand when it's been impacted by diesel fuel. You have a big trailer in there that contains diesel fuel that's been leaking on that land for at least four years now. You've got concrete in there. You've got junk that's been piled up in there. You've got steel that's been in there that is -- I'm sure has affected that land to a point of-- of not bringing it back to its original state. All we ask is that this commission please review the concerns of the owners of the park. We feel that the 8 acres in the front and putting in a commercial storage area in the front, which we don't need in the park-- we don't need a commercial storage. We don't need 201 sites. All we need is about 3 acres to store some of our RVs and boats, and that would be adequately put in the eastern portion where it would have a lot easier access for the residents of the park to go into that storage area. The proposed 8 acres in the front is a concern of safety also whereby the entrance to the 8 acres is in the front of the gate where it would be kind of difficult, if not impossible, to turn a 40-foot motor Page 31 November 7, 2001 home or a 40-foot boat into that area from our park. As far as wildlife, our residents will testify -- and I can -- I can testify sightings of wood stork behind the homes that are presently developed on the western portion of the -- of the 37-acre tract. I've seen wood stork in there on August -- around -- right around this time of the year they start coming in. We see quite a few of them in there. We've seen black bear in there. Our -- our people have observed and I have observed deer feeding on the edge and behind our clubhouse in the evening. We have hawks, and we have ospreys, a set of ospreys that nest in there at the present time. So we would rather see the majority of that 37 acres left alone and put a 3-acre storage area where we were told originally to the eastern portion of that 37 acres. And we were also told when we bought into this park that we were buying into the park with a 9-hole executive golf course, and on a 37-acre tract we were told we were going to see a lake there, nature walks, and nature trails. And our people would like to see that there, not a commercial storage area. That's the truth. It's a monetary issue for them at this point in time. Thank you. CHAIRMAN SANSBURY: Thank you, sir. Yes, sir. (Applause.) MR. STRAUSS: I've not been sworn because I walked in a little late. CHAIRMAN SANSBURY: Okay. Could we swear this gentleman? (The oath was administered.) MR. STRAUSS: My name is -- my name is Jerome Strauss. I go by Jerry. And I'm a -- also a member of the board of directors of the property owners' association. Joe and I, the gentleman just spoke, are the only two owner representatives of the board. I'm also a member of the transition committee. I happen to be one of those that lives on the land that abuts the Page 32 November 7, 2001 40 acres, and we actually moved down here to Naples -- and we bought the land in 1993 when this development first started. And -- and with all due respect -- and I wanted to say to the committee, Mr. Chairman and committee, that it's very much appreciated that we have this opportunity to address you. And with all due respect to the chairman who -- who raised the question, I think, at the -- of the previous -- not this speaker but the one before that about moving the storage area from the west, I think you said, to the east, which is what we're talking about, is really not the issue here. It's a matter of if-- if I could with your indulgence simply suggest to you it's keeping the storage area where it was depicted in the original PUD. That is the issue, whether or not -- whether or not there are environmental impacts to not keeping it where it was originally depicted and which would be the best from an environmental standpoint. Now, obviously I'm interested. My wife and I, Sue -- Sue isn't here because she works every day like I do, too, except for these kinds of hearings -- we are concerned about the environmental issues. We bought on that periphery with the representation that it would be a preserve, there would be a lake, there would be walking paths. This is exactly what we wanted. We're from the midwest. We're from farm country down in southern Indiana, and we like the woods. And we're also sensible about it. And in those woods there are wood storks. It's not fiction; it's a fact. And they come out of those woods quite frequently. I happen to have a koi pond. It's 60 feet in length. And they visit my koi pond, to my regret. But I put a big net up across it. There's a big bridge on the koi pond. They sit on the bridge and look at the fish for a while. The great blue heron comes and sits there too. But when they fly back, they fly back into that -- into that area of 40 acres right on the other side of me. And that's where they come from. And just within the last day, you know, I saw them flying over and going back Page 33 November 7, 2001 into that area. So it's an area that, without doubt, is one that the waterfowl used considerably. I, too, have seen the deer. We would like to preserve that sort of thing and put the storage area exactly where it was originally represented on the PUD. And I -- I don't know if you have that map. I'm assuming, Mr. Chairman, that you do have -- have that map and it shows -- and it's written in there -- storage area on the -- on the east portion of the property. And that's exactly -- and, by the way, this is not a gravel road that goes into this present maintenance, if you will, area that's there in the east. It is a paved road. They paved a road that goes right into that area on the northeast. They, for some reason, paved the road there but then decided to ask for permission to move not 3 acres but to acquire 8 acres for the developer at the -- and fronting on 951. Now, I'm not sure exactly all the reasons why they want 9 acres -- or, excuse me, 8 acres fronting on 951. But it's my guess it's a economic question. Thank you. CHAIRMAN SANSBURY: Thank you, sir. (Applause.) CHAIRMAN SANSBURY: Is there anyone else from the public that would like to address this matter? (No response.) CHAIRMAN SANSBURY: Okay. What's the pleasure of the council? MR. CUYLER: Mr. Chairman. CHAIRMAN SANSBURY: Yes, sir. MR. CUYLER: I'm sorry. We asked if we could reserve -- CHAIRMAN SANSBURY: I'm sorry about that, Mr. Cuyler. MR. CUYLER: -- our environmentalist -- CHAIRMAN SANSBURY: Go right ahead. MR. CUYLER: -- who has a difference of opinion from Mr. Page 34 November 7, 2001 Beardsley on a number of items. MR. BUTLER: Again, Ian Butler with Butler Environmental representing the petitioner. There's just a few items I'd like to comment on with respect to Mr. Pires and Mr. Beardley's presentation to you, the big-- the big issue that Mr. Beardsley touched on with respect to season high- water tables and what actually is the current versus historical and how that relates to the proposed storage area. The proposed surface water management system for the storage area discharges into the existing water management system of the existing Silver Lakes RV Park. The storage area is bermed from the proposed preserve area, is not discharging any water into that area. So after the construction of the storage facility, sheet flow will not be any different than it is today with the exception of it's 8 acres, smaller. So, therefore, there will not be any draw-down or draining of the proposed preserve area as a result of this storage area since it -- they're just-- they're two different entities. With respect to the western half of the proposed 8-acre storage facility being a pristine wetlands, in my experience of ten years, it's hard to have a pristine wetland that's adjacent to an existing 4-lane road that was previously clear back in '75. I've been involved personally with this project for five years, done substantial amount of work, spent hundreds of hours out here determining wildlife utilization, its water levels, that type of thing. So on our best information that we had compiled over that five years and now in the better part of a year in permitting with the Water Management District reflects the information that we provided to you and to the Water Management District and the Corps of Engineers. The original application that was submitted that -- the Corps and the Water Management District originally proposed the storage area along the eastern side of this 37-plus-or-minus-acre parcel. That was Page 35 November 7, 2001 where it was originally wanting -- determined to be. Through various requests for additional information, letters from the Water Management District and meetings, they requested, based on the quality of the wetlands, what is there now, to move it to the western portion. And I have a copy of a letter, a request for additional information letter, from the Southwest Florida Water Management District, dated July 11 th, specifically stating -- and if I can quote -- please revise the proposed site design to minimize wetland impacts and consolidate impacts to the western portions of the site with preserve areas on the eastern portion. And that was back in July. As a result of this letter, our next submittal reflected the storage facility being moved to the western side. MR. HILL: Would you read that again, please, the letter you just had? MR. BUTLER: Please revise the proposed site design to minimize wetland impacts and consolidate impacts to the western portion of this site with preserve areas on the eastern portion. MR. CARLSON: And was that recommendation based on a field observation by the district staff? Were they on site making -- making that determination? MR. BUTLER: Yes. The district staff was on site to do the original jurisdictional wetland determination. MR. COE: Is that as a result of a request by you-all to them to move it from the east to the west side? MR. BUTLER: No. No. MR. COE: They just observed it and said, anyway. MR. BUTLER: We bought it-- like, again, our original application reflected wanting to have it in the eastern portion, and their -- forgive me. I don't exactly remember the conversation that we had with them. But just in -- in common sense, it made -- it seemed to make more sense to have a preserve area that was not Page 36 November 7, 2001 adjacent to an existing four-lane road, wildlife utilization and resources, and so forth. MR. COE: So what -- what you're saying, then, is that they saw all the junk and destruction that had been created in that particular area in the eastern area. They were aware that you had paved a road into that eastern area and were dropping construction material, that you had fueling vehicle in there, etc.? Southwest Florida Water Management people saw this and, in spite of that, said, "No. Let's move it to the west"? MR. BUTLER: No. Their-- their knowledge of what the activities you just described were after this letter. MR. COE: That answers my question. Thank you very much. (Applause.) CHAIRMAN SANSBURY: Question? MR. SOLING: My -- my interpretation and what's happening here today is that you're just reacting to the Water Management District and it's not an economic factor or something that the owners really desire. You're just complying with some other agency's ruling; is that correct? MR. BUTLER: MR. SOLING: appealed? MR. BUTLER: That's correct. Now, can that other agency's ruling be There's certainly a comment period. Again, the permit has not been issued, so they certainly take comments or objections from the public. MR. SOLING: Well, from what I hear from the public, everybody is against the moving, and I would assume it makes more sense to leave it in the east since the road is there. MR. BUTLER: There -- again, to -- to bring up the meeting that Mr. Pires had scheduled with the Water Management District to discuss the residents' concerns -- and, again, just to paraphrase and Page 37 November 7, 2001 not quote, but the staff-- Water Management District's staff reviewer who was present at the meeting and is the reviewer for this application stated that their review was based on environmental criteria, unfortunately, not on planning issues. CHAIRMAN SANSBURY: Okay? All right, sir. Mr. Cuyler? MR. CUYLER: Just in -- in summary, real quickly, one gentleman was talking about the moving of the lots and why should we allow them to do that. I just wanted to -- although that's not a major issue, I did want to clarify that. If those lots are not placed in the new area, the developer has a right to place them in the old area. And the developer's position, based on statements from the county previous to the planning commission and at the planning commission, is that there may be a code enforcement action which is instituted, in which case the developer would have to comply. He would have to go back, redo those areas, put his lots back. He wouldn't put them in the new area. But, as you've heard from the rep -- the representative of the residents, they're not in favor of that either. They're happy with the thing as it is, as it's planned, except for this storage area controversy. So that's not an issue that I believe exists with the residents anyway. CHAIRMAN SANSBURY: Okay, sir. MR. CUYLER: With respect to what I said at the at the very beginning, I -- I would suggest to you strongly that this is a planning issue, not an environmental issue. We heard at the planning commission that there was this area that was disturbed, and there's some materials on it. If you approve the petition, as you did three months ago, and make the same approval and the agency changes its mind and doesn't permit the area that's possible future storage on the west side of the property, then they're not going to issue a permit for that. I mean, if they make the determination that the more appropriate area to save is on the west side, then they're going to Page 38 November 7, 2001 deny the permit, and they'll force us to come back, and -- and we'll do what we need to. As a matter of fact, you heard Mr. Pires say that they're going to fully involve themselves in -- in the application petition process. So I would suggest to you that much of what you've heard today was the same thing that we heard on Thursday, except now it's been couched in environmental terms instead of planning terms. There's a controversy between the -- the developer and the residents, and I would suggest to you that nothing has changed since the last time you approved this petition. CHAIRMAN SANSBURY: Okay. Close with Mr. Pires? Some -- get a little summation here; then we'll -- MR. PIRES: Just a brief rebut, ifI may, Mr. Chairman, members of the council. Thank you. For clarification, I know Mr. Butler indicated that there was a meeting with South Florida again. Just -- that meeting was on October 25th. These photographs that were handed out today were taken October 30th, five days after the meeting with South Florida, and I think you actually indicated South Florida had no idea what was in that area at the time they sent the letter in July based upon what -- Mr. Coe's question. Secondly, the developer in August -- excuse me, in March of last year, this past March of 2001, at the at the annual meeting told the residents he wanted to put storage area on the west. I believe Mr. Butler said he's been working with the agencies for a year and wanting it on the east and not until July did the agencies say put it on the west. Yet in March of this year the developer at the annual meeting told the members of the community that he was planning on having the storage area in the west. We submit there is new data based upon Mr. Beardsley's report, based upon the condition of the property on the east, that it's different Page 39 November 7, 2001 than was couched to you at your meeting back in August as to what is the biological integrity and condition of the property in the area originally designated for storage. It's not as indicated in August. The facts -- as many of these photographs show, it's been different for a period of time. And we ask that you make a recommendation to the planning commission that the petition be approved as submitted, except that the storage area be maintained in the eastern area as originally envisioned on the master plan, that the master plan not change in that respect. Thank you very kindly. CHAIRMAN SANSBURY: Thank you. Okay. I'll take the lead discussion, if you'd like me to, and I'll tell you -- one more thing for you. MR. CARLSON: One more thing from Mr. Butler. CHAIRMAN SANSBURY: Mr. Butler. MR. CARLSON: How -- how do you explain the difference in the water levels and the conditions of the wetlands that we have heard about here today as opposed to the description of those wetlands that were originally presented to us, which I did not go back and re-read, but my recollection was that they're just basically nonviable, and they don't have surface water? MR. BUTLER: Our -- our -- and, again, I'm not a engineer, so this is my experience of being on a site for five years. I believe the original information was back from 1990 in which wells were installed, and readings were based upon that. Yes, there's been significant development in that area to the north resulting in more impervious surface resulting in a-- what I call a tub effect. Properties around it build up. Obviously water finds the lowest level. With re -- with regard to whether that information is accurate or not, the existing water management system at Silver Lakes, I believe, is -- is functioning. There is no flooding that has occurred since it's Page 40 November 7, 2001 been approved. The calculations that the engineer -- and the project engineer is here to maybe shed a little bit more light on that than I can. With all the calculations, including the storage area, indicate that there -- there will not result in any -- any flooding conditions. MR. CARLSON: But -- but the water level data that was presented to us on those wetlands, over how long a period of time was that data accumulated? Was it just back in 1990, like, for just that year? MR. BUTLER: No. Prior-- there was additional information that my firm conducted prior to the submittal of the application which required going out, putting nails in trees indicating lichen lines, water marks, that type of thing. And over a three -- I believe it's a three- week period which we observed specific trees based on rainfall events, where to put that. I'm sure that there's several times during the year there were significant rainfall events that you can go out there, and there will be water levels higher than what I have indicated on specific time periods. But based on, again, five years of being out there, that's how those elevations were indicated. CHAIRMAN SANSBURY: Okay? All right. Just -- do you want to just -- do you want to question anybody, or do you want to discuss -- start discussing it? MR. COE: Discuss. CHAIRMAN SANSBURY: Okay. I'll start, if I could, this time. Again, we have to make sure -- we are not the planning commission or the environmental advisory commission. We passed this 7-0 two months ago, and what has changed? If it-- nothing has changed, then I don't think we have a choice but to stay with what we did before. But I have a problem with something, and I have a problem with the fact that something has changed. And what has changed, Page 41 November 7, 2001 somebody has gone in there and taken an area which is shown as a preserve on our drawing and made a dump out of it. I'm sorry. Once they started in there -- if there's a road paved, I look at concrete rubble. I look at fuel storage tanks. I look at all kinds of stuff there in that essentially construction is started. And I have a problem saying, "Okay. Wait a minute. We're going to put that back, and we're going to move it back here." I think environmentally from what we were shown before, it's changed. And I think that alteration of the site has caused a change which causes me a problem in supporting this approval. MR. COE: I concur. (Applause.) CHAIRMAN SANSBURY: Further discussion? MS. SANTORO: Could I just add to that? I feel that people were hogwinked. I think we were hogwinked. I live in that area. I had one of your black bear in a tree in my neighborhood. I looked at the existing plan before that was a lake and some nature trails and recreation use and some storage area. And then the other thing which wasn't mentioned that was -- was changed is the fact that it could be a commercial storage area. Now, I know your neighborhood. Most of the areas that are like that, you have a small storage area for your boat, recreation vehicles, trailers. There's no way -- and I've looked at your area. I've been in your area. I, you know, live in that area, drive by. There's no way that that neighborhood can take a commercial storage area with vehicles. I see lots where the people bought the lots hoping to have -- CHAIRMAN SANSBURY: Wait a minute now. Whoa. Those are not environmental issues. MS. SANTORO: I think that's very much an environmental issue. CHAIRMAN SANSBURY: Planning issues and-- Page 42 November 7, 2001 MS. SANTORO: It is not planning; it is environmental, as well as the wetlands there. CHAIRMAN SANSBURY: No, ma'am. MS. SANTORO: It is. Anyways, I do oppose the current proposal. CHAIRMAN SANSBURY: Okay. Further? MR. COE: I'd like to make a motion to -- CHAIRMAN SANSBURY: Bill, did you have something? MR. HILL: I was going to formally put something on the table. Go ahead and make -- MR. COE: Go ahead, oh eloquent one. CHAIRMAN SANSBURY: Go ahead, Mr. Hill. MR. HILL: They can get their -- conflicting environmental -- first of all, I think it is an environmental issue. Based on the conflicting environmental issues that have been brought before us today, I see no justification for changing the original PUD document with respect to the location of the storage area, and I move that this council recommend disapproval -- MR. COE: Second the motion. MR. HILL: -- of that motion. CHAIRMAN SANSBURY: Second by Mr. Coe. Do I hear any discussion? MR. CARLSON: I just make sure. I -- I heard from Mr. Pires that he recommended approval with one exception, that the storage area be moved to the east and be in the original plan? That was -- Mr. White, is that -- is that more appropriate than recommending denial or-- MR. WHITE: I'm not going to judge that for you, but it may be clearer. It may be clearer that if what the applicant's requesting is something to be approved and you're going the to approve it with a condition, I believe that would be clearer in terms of what this Page 43 November 7, 2001 council's intent is than to merely disapprove, if you will, the proposed project. CHAIRMAN SANSBURY: Mr. Hill? MR. HILL: I'm not sure, Mr. White, I understand that. The -- the approved PUD document has the storage document in the east comer of that 40-acre plot. The request now is to alter that by moving it to the west. CHAIRMAN SANSBURY: And add the lots -- and relocate the lots. Excuse me. MR. WHITE: There -- there are other additional changes to the PUD master plan than merely where this storage area will be located. If all other aspects of the petition are acceptable to this council, in my opinion, I believe it's clearer in terms of a recommendation to the Board of County Commissioners to indicate that you approve the petition subject to a condition such as you may fashion, which I believe has to do with where the appropriate location of the storage area should be. MR. CARLSON: And the size. MR. WHITE: And the size, whatever relevant factors you may consider appropriate. I think that's clearer in terms of what the intent of the council is for the Board of County Commissioners to discern than a mere recommendation of denial. CHAIRMAN SANSBURY: Mr. Hill? MR. HILL: I will re -- with the approval of the seconder, I'll remove that motion from the table. CHAIRMAN SANSBURY: Is that all right with you, Mr. Coe? MR. COE: That's okay with me. CHAIRMAN SANSBURY: All right. Mr. Hill. MR. HILL: Let me fashion -- I move that this council approve the proposed alteration to the PUD document for Silver Lakes with the exception of two conditions relative to the storage area: A, that Page 44 November 7, 2001 the size be increased and, B, that it be moved to the west. CHAIRMAN SANSBURY: And do you want-- MR. HILL: Mr. White, is that -- MR. WHITE: I would believe that you may get a more precise number as to the size, if you have one. And I believe I heard you say to the west or to the east? MR. HILL: To the west. MR. COE: East. MR. HILL: Disapprove the movement to the west. CHAIRMAN SANSBURY: Okay. How about this? MR. WHITE: Okay. CHAIRMAN SANSBURY: We said approve it with the exception that the storage area be relocated from the western end of the prop -- of the north 40 acres to the eastern end of the 40 acres and that the size of the storage area reduced from 9 acres to 3 acres. MR. WHITE: In my opinion, that's very clear. CHAIRMAN SANSBURY: Thank you. MR. BADAMTCHIAN: May I suggest something? The application of the master plan, they are not talking about a storage area, talking about conservation area and recreation area. We may say that the recreation area be moved to the eastern portion and the size of it be reduced -- CHAIRMAN SANSBURY: Okay. MR. BADAMTCHIAN: -- to 3 acres or whatever the number is. CHAIRMAN SANSBURY: The term "storage" be replaced with recreation and the rest of it remain the same. MR. BADAMTCHIAN: The conservation tract would not allow storage for anything else. So if you store -- conservation at the west end of the property and recreation at the east end, then we achieve our goal without using the word "storage." Page 45 November 7, 2001 CHAIRMAN SANSBURY: Okay. Fine. MR. BADAMTCHIAN: That word wasn't used in the document. CHAIRMAN SANSBURY: Is that okay with you, Mr. Hill? MR. HILL: Yeah. MR. WHITE: Perhaps as one more minor change just to reflect what we're talking about, I believe it's Tract CR; is that correct? MR. BADAMTCHIAN: Yes. Conser-- yeah conservation/recreation area. CHAIRMAN SANSBURY: Okay? MR. BADAMTCHIAN: That's fine. CHAIRMAN SANSBURY: Mr. Coe? MR. COE: I'll do a second. CHAIRMAN SANSBURY: We need a second. MR. COE: I got a second on there. CHAIRMAN SANSBURY: Thank you. MR. COE: I'm there. CHAIRMAN SANSBURY: I appreciate that. All in favor of the motion as made -- MS. SANTORO: Could the motion be re-read, please. CHAIRMAN SANSBURY: Can we do it again? MS. SANTORO: I want the motion read. CHAIRMAN SANSBURY: Okay. We recommend the approval of the petition with the exception that the recreation area and the conservation area be revised so that be the recreation area is relocated to the eastern portion of the property and that its size be reduced to 3 acres. MR. HILL: Storage area be reduced-- CHAIRMAN SANSBURY: Okay? MR. COE: You have a second on the table. CHAIRMAN SANSBURY: All in favor? Page 46 November 7, 2001 Opposed, same sign? (No response.) CHAIRMAN SANSBURY: Hearing none, it passes unanimously. (Applause.) MR. HILL: Mr. Chairman-- CHAIRMAN SANSBURY: Yes, sir. MR. HILL: I -- we've gone through several editions of this. Could I ask that that motion be read back by the court reporter as to what-- what gets -- no? CHAIRMAN SANSBURY: Okay. Do you want to take -- how are you doing? Do you need five minutes? Okay. Five minutes. (A short break was held.) (The following proceedings commenced, Barbara Burgeson now being present:) CHAIRMAN SANSBURY: Okay. Are we ready to begin with the hearing of the Rookery Bay Towers? Anyone here that is going to be testifying on this matter, would they please rise and be sworn in. (The oath was administered.) CHAIRMAN SANSBURY: Disclosure by the council. Has anybody talked to anybody on -- about this? The petitioner? MR. CARLSON: I have spoken with numerous people over many years over this project. My employer owned substantial acreage in Rookery Bay Estuarine Research Reserve. We have a management agreement with them. And I am on the management board, advisory board, for Rookery Bay. recuse myself from this vote. CHAIRMAN SANSBURY: Okay. I did have a telephone conversation. And -- so I'm going to re -- Very good. I received a telephone call from one of the principals in the community project and discussed the Page 47 November 7, 2001 project with that gentleman. MR. SOLING: And I must say, I just had a brief conversation with a member-- a representative from The Conservancy, but he was speaking about The Conservancy parcel. CHAIRMAN SANSBURY: All right, sir. MR. BELLOWS: Good morning, for the record. I'm Ray Bellows with the current planning staff. I'll be presenting the planning component and consistency with the Growth Management Plan, and Steve Lenberger is here to do the environmental review for -- for you today. The subject 78-acre site is located on the west side of Collier Boulevard approximately 2 miles south of U.S. 41. As you can see on the master plan, the subject site is -- consists of primarily conservation area. The petition here is to rezone the subject site from agriculture and conservation to PUD. It's a-- petitioner's requesting a multifamily development consisting of 315 dwelling units. The subject site is located in the urban residential mixed-use district which has a base density of 4 units per acre. It's also within a traffic-congested zone which subtracts one dwelling unit per acre, so base density is reduced to 3. However, they're applying for an affordable housing density bonus to get one additional dwelling unit per acre; that brings it back up to 4 units per acre. The subject site is consistent with that 4 units per acre. Staff is recommending that the -- at least from the planning component, that it is consistent with the comprehensive plan, and we're recommending approval of that portion of it. Steve Lenberger is here to go over the details of the environmental review. If you have any planning questions, I'd be happy to answer them. CHAIRMAN SANSBURY: Okay. What is the -- what's the Page 48 November 7, 2001 height limitation in this particular-- MR. BELLOWS: The height limitation? CHAIRMAN SANSBURY: Yeah. MR. BELLOWS: In-- in the PUD -- PUD document? CHAIRMAN SANSBURY: Yeah. MR. BELLOWS: Yeah. They're proposing, I think in the staff report, 10 stories, 100 feet. CHAIRMAN SANSBURY: Okay. And that does fall within the PUD requirements? MR. BELLOWS: Yes. Yeah. There -- there is no height restrictions in the comprehensive plan, but there are compatibility concerns, and the -- they state in the staff report the Marco Shores development allows for 20 stories not too far from there. CHAIRMAN SANSBURY: Okay. Questions? Steve. MR. LENBERGER: For the record, Stephen Lenberger, planning services. The subject property is approximately 78, 79 acres. It's located next to Rookery Bay Estuarine Research Reserve. Vegetation on the site, mostly wetland, quite a bit of freshwater marsh. You can see on the aerial the marsh shows up. There are also extended areas of mangroves. There's buttonwood, some hydric pine flatwoods, and Brazilian pepper, also open-water areas, and they show up as the dark areas on the aerial. There is an existing road, Shell Island Road, which crosses the property and is inside the property. And there's also an existing railroad grade, which would-- is located in this area (indicating). And these two roadways are basically the only uplands on site and are a little under 2 acres in size. The petitioner has 65.6 acres of jurisdictional wetlands and 11.4 acres of submerged lands. The project basically consists of a multistory structure, and you can see on the PUD master plan the area around that will be preserve Page 49 November 7, 2001 areas. The area of impact of the development will -- is approximately 5.1 acres. It's going to depend on -- on the final site plan review and those kind of requirements, but approximately 5.1 acres. As mitigation for impacts to the wetlands, the petitioner will be removing all exotic vegetation and also be removing the old railroad grade, restoring it to its natural condition. Protected species, none were identified on site, and they also did a pretty extensive look for rookeries, bird rookeries, on site. If you have any questions, I'd be glad to answer them. The environmental consultant for the project is also here today. Thank you very much. CHAIRMAN SANSBURY: Questions? (No response.) CHAIRMAN SANSBURY: Okay. Why don't we hear from the petitioner. MR. DUANE: Good morning. For the record, Robert Duane from Hole, Montes & Associates representing the petitioner. I also have with me today Jerry Neal from Hole, Montes & Associates who is the engineer who has been coordinating the ERP permitting effort that we've been into over the past several years. I have Craig Smith from Kevin Erwin & Associates who has also been working on the ERP permit on the ecological studies. I have Ken Cuyler, my client's attorney, from Goodlette, Coleman, and Johnson, who will give you a little historical perspective of-- also on the project today. I'll be very brief in my comments. We agree with the findings and conclusions of the staff report, more specifically that we can be found consistent with the comprehensive plan and the goals and objectives of the coastal zone and conservation element. And I would specifically point you to policies or Objective 6.2 of the staff report, Policy 6.2.10, Policy 6.2.13, Objective 6.3, and Objective 6.4 and Policy 6.46. Page 50 November 7, 2001 And I might note with regard to Policy 6.213, that parcels containing viable naturally functioning fresh water wetlands shall cluster development to maintain the largest contiguous wetland area practicable and shall be designed to disturb the least amount of native vegetation. And I would submit to you that our preserve area which comprises approximately 95 percent of the property is in effort to comply with not only these policies but some of the permitting considerations we've been dealing with in the process. As Mr. Bellows pointed out, this is two high-rise buildings. We have chosen to go horizontally as opposed to vertically. Craig Smith will talk about some of the prior plans that we have submitted to the county in -- in prior years which were not as friendly to the environment as this particular plan, and we will enter those efforts on behalf of our client into the record also today. I would also like to include in the record a -- some correspondence from the Department of Environmental Protection, and this correspondence concludes that we are not sovereign lands and, also, that the subject property is not located in a Florida outstanding water. However, we are meeting the requirements as if we were in a Florida outstanding water just to try to minimize our impacts to the greatest extent possible. And Craig Smith will elaborate on that point also. I'd be happy now to answer any questions that you may have, and I'm going to turn it over now to Mr. Cuyler if you have no questions. And we'll proceed with our presentation. Thank you very much. MR. CUYLER: Good morning. Ken Cuyler, Goodlette, Coleman, and Johnson. I just wanted to tell you for a few minutes about my involvement with this project. Although the developer is the owner of the property and has owned the property for a large number of years, Page 51 November 7, 2001 over -- over ten years, I believe, I've been involved with the project for two or three years. And when I say the project, when I first became involved, it was not for the purposes of development of the property. We had meetings with state officials in an effort to convince them to buy this piece of property, and I was involved and became involved with the piece of property as a result of some of those discussions. We had fairly high-level discussions. We had meetings with the Rookery Bay officials. They supported that. We had meetings with Conservancy officials, specifically Mr. Simonik. They supported that. They met with us, with state officials. And the owner did everything he could, in my opinion, to make a reasonable offer to the state to purchase this piece of property, and those negotiations never came to fruition. And the developer always indicated to me that if the state or some other environmental organization didn't to want purchase the property, that he didn't to want hold it forever, and he was inclined to develop it. The development plan that you see in front of you is a result of several generations of development plans. It's a development plan that minimizes the area of disturbance and goes up instead of out in order to preserve, I believe, 95 percent of the environmental area. But my sole purpose in getting up here was that I wanted to be able to stand primarily in front of you but also in front of the planning commission and the Board of County Commissioners and say this is not a situation where a developer has just come into a piece of property and is trying to develop it. We gave the state every opportunity to buy this property, and there was no inclinication upon the part of the state. Although they did look at it closely, and they did send -- send people down to look at it, the ultimate answer was that the state was not interested in purchasing this. As you know, every owner has certain property rights, and he has a property right to sell his piece of property, or he has a right to Page 52 November 7, 2001 have a reasonable use of his property. We've gotten down to the point where the property owner is simply looking for a reasonable use of his property in light of the fact that the state was not interested in buying it. Thank you, and at this point we'll talk about the environmental -- your comments. project? MR. WHITE: CHAIRMAN SANSBURY: Go ahead. MR. CARLSON: I just have a comment. I'd like to clarify your I -- Mr. White, I am allowed to discuss this Yes. Regardless of the fact that you're going to have a voting conflict that you have declared -- and I'll put on the record that a memorandum has been prepared, Form 8-B -- you're still entitled under the rules to participate in the discussion on all matters that are of concern to this council. MR. CARLSON: Your comments about the state not wanting to buy this property or not interested in buying this property, I think, need clarification, because it was -- it was my recollection this property was appraised multiple times by the state for purchase and that the state is bound by appraisals to buy land through the CARL project and other programs. So isn't it just a matter of the appraisals didn't match the landowner's expectations which prevented the sale? MR. CUYLER: Our position was that there are various ways to appraise property. If they want to appraise it as agricultural property and the developer had a -- certain development rights that he has the ability to pursue and, in my opinion, obtain, we felt that there was not cooperation upon the part of the state that was suggested by The Conservancy and was suggested by Rookery Bay and that they had a lot of flexibility with regard to how they did their appraisals and what basis they did their appraisals. And if-- if there was not a meeting of the minds, you're right; it probably can go down to that issue. Page 53 November 7,2001 But I would certainly say that this was not -- couldn't be classified as a half-hearted attempt upon the part of the developer to -- to make not a good-faith offer to the state. I think that there was a lot of time, a lot of money, a lot of attorney's fees spent trying to get to some area of accommodation. And, you know, I'm -- I'm not going to point fingers. It just -- it didn't come together, but I would suggest to you that it's not the property owner's fault that it didn't come together. MR. CARLSON: Well, I -- for the record, then, I'd like to state that as someone who has been on the Rookery Bay Management Advisory Board for many years, I can tell you there was an intense interest in this property in coming to an agreement with the landowner that did not work out, but there was intense interest. MR. CUYLER: I agree. CHAIRMAN SANSBURY: Okay. Yes, sir. MR. SMITH: Good morning. For the record, my name is Craig Smith, Kevin Erwin Consulting Ecologists. We've been the environmental consultant on this project for the last several years. As was previously indicated, the majority of the subject property is jurisdictional wetlands consisting primarily of a brackish marsh, freshwater marsh in these areas, some mangrove, some buttonwood. The upland habitats consist of the mr-- the two roads, Shell Island Road, and the old Marco Island grade. We've done a fair amount of mapping on the property over the course of a number of years, identified a number of flux codes. There's approximately 9.5 acres of exotics on the site which consists primarily of melaleuca, either in this area or Brazilian peppers along the two fill areas, as well as a number of areas of the -- the buttonwood community. I believe the first site plan that the -- the county saw was back in, I think, 1991 under the name Montego Bay. For that development it was, I believe, four stories residential over parking located in the Page 54 November 7, 2001 central part of the project. All 16.5 acres of that site development would be located within jurisdictional wetlands. The location here was chosen to match an existing median cut that was on the property. They also had lakes as part of the water management system, landscape areas, a number of other features. Based on comments they had received on that and also some preapplication meetings with the Water Management District, a revised site plan was prepared, and this is a -- the culmination of several plans that occurred in the late '90s. What we looked at was not only the physical footprint of the development but also where that development should be located. There is a potential to put it either up in the northern end where there is a median cut, down here, or still in the center. Based on the evaluation, it made more sense to take advantage of the uplands we had, as well as -- as well as the more disturbed wetlands down by this existing road cut or median cut in use, Shell Island, as -- as the access point. And that was shown on this site development plan here. It's dated 1999. The other major change was, instead of going horizontally with the development was to go vertically, so this contained high-rise buildings. We've also dramatically reduced landscaping areas, converted the wet detention areas for the development to dry detention, which basically gives you better treatment over a smaller area so as to minimize impacts. The plan that you have currently before you shown here is a further refinement of the concept we had in 1999 whereby we have tightened down the footprint of the construction to the maximum degree possible. Again, we're using dry detention for our water- quality treatment. And as Bob Duane had mentioned earlier, this project is not within -- this development is neither within nor Page 55 November 7, 2001 immediately adjacent to the OFW. But we are meeting the Water Management District's criteria for a direct discharge directly into an OFW. So the water management system here will meet state water- quality standards as if the OFW started right here at the discharge point. But there is a considerable amount of wetlands that water will go through once it leaves development before it gets to the OFW, but we have built that extra level of protection into the project because we are sensitive to potential environmental impacts. The overall mitigation plan consists of preserving approximately 95 percent of the wetlands and other surface waters that are on site. We'll be removing approximately 8.5 acres of exotics. There are other exotics on the site. Those will be taken care of as well, but the 8.5 are -- are the biggest areas. This road grade will be removed and restored back down to match adjacent grade and revegetated with wetland -- wetland plants. This is a continuation of the same process that has happened off site for other projects as this road continued north and west. By one additional benefit of removing this grade is that it will help reestablish more natural water patterns across the site. If you go out on the site today, you'll notice there is a significant difference in the vegetative character here (indicating) to here (indicating). It's -- there are more shrubs. There are more freshwater species over here. This looks more like what you would expect a high marsh, brackish marsh, to look like. So I do feel once this is removed, there will be benefits to those wetlands over there, even those areas that don't currently have exotics on them. That -- that completes my presentation on this, if there are any questions -- one last thing I would like to state, we have none listed species surveyed on the site, have not found any evidence of any nesting or denning of listed species. We did spend a fair amount of time in the mangroves and especially along these open-water fringes Page 56 November 7, 2001 looking to see if there was any nesting going on and were not able to find any evidence that there was. CHAIRMAN SANSBURY: Okay. Any questions for the petitioner? Yes, sir. MR. CARLSON: Can you show us the extent of the outstanding Florida waters that are adjacent to this property? MR. BUTLER: I'm not sure exactly where the boundary is, but that boundary is determined by mean high water, and it was determined as is shown on that -- that letter that you received. That mean high water does not approach the site. We were out there actually this past year, this past spring when it was really dry. And both these open-water areas and this open-water area here were bone dry. They were actually cracking it was so dry. The mud had started to shrink, which indicates there is no tidal influence anywhere near either of these two open-water areas. And, obviously, this one extends a ways out here. So I'm not sure how far west you have to go before you get to the actual boundary of the OFW. MR. CARLSON: Okay. And I'm going to ask you a couple theoreticals here. Seeing as the only upland on this site is a man- made real old railroad grade, if that old railroad grade wasn't here, do you think we would have a serious proposal for development on this site? MR. SMITH: I think we'd still be for it, yes. MR. COE: Let me -- so what you're saying, if that railroad grade wasn't there and there was just normal wetlands there, that you would still come in with this same petition? MR. SMITH: If there was no road anywhere, then it might not be in the exact same location that it's in, but as was stated before, the applicant does have a right to reasonable use of the property, and this is one of the -- the uses that's available to him. MR. CARLSON: Now, do you see this as possibly setting a Page 57 November 7, 2001 precedent that in an otherwise healthy wetland, even coastal wetlands, that wherever they're confined, a spoil pile dredged up out of a channel or an old ancient mosquito control ditch where somebody piled up some fill, that that would justify enlarging that man-made upland area for larger developments virtually anywhere you could find these features? MR. SMITH: I don't think it's sets any precedents. We still go through the same process for the state and the federal regulatory agencies of wetland impact avoidance, wetland impact minimization, and then wetland mitigation. And that won't change regardless of whether this project is approved or disappears. CHAIRMAN SANSBURY: Question -- and just from nary a standpoint, is there any residential development on the north side of Collier Boulevard, say, between Eagle Creek and the road that goes out to Isle of Capri? Isn't that completely open? Can anybody answer that, that entire area? MR. GAL: Some commercial development. CHAIRMAN SANSBURY: Along the road. But, I mean, there's nothing -- nothing back in there at all. And that's all Rookery Bay back in that area? MR. CARLSON: (Nodded head.) CHAIRMAN SANSBURY: Okay. MR. CARLSON: Yeah. I -- I believe that the Rookery Bay National Estuarine Research Reserve is -- adjoins the entire western boundary of-- the entire western boundary of the property. I'm not sure about the northern and southern boundary. There may be some additional property there. I see somebody from Rookery Bay is here. MR. SMITH: At least the property immediately north of our -- of the Rookery Bay Towers property, I believe, is private ownership. There is a -- a piece there that is private ownership before you get Page 58 November 7, 2001 back up to a piece, I think, that is back in the preserve. CHAIRMAN SANSBURY: Could you identify on that one just what we're looking at other than what -- what is, just so I could get some idea where along the road we are? Is that Silver Lake back up that way that we just talked -- MR. BELLOWS: Yeah. This is Silver Lakes -- CHAIRMAN SANSBURY: Okay. -- MR. BELLOWS: -- right here. CHAIRMAN SANSBURY: All right. MR. BELLOWS: This is Champion Lakes RV Resort. This is Pelican Lake PUD, Championship Drive. This is part of Fiddler's Creek, formerly Marco Shores. Over here is mobile-home zoning, some RSF-3, RSF-3, part of Fiddler's Creek and Fiddler's Creek Parkway. CHAIRMAN SANSBURY: Okay. Where is Briggs -- Briggs center? Is that-- that's on Shell Road, isn't it? MR. GAL: To the west. MR. BELLOWS: Isn't it all the way down? CHAIRMAN SANSBURY: MR. BELLOWS: Yeah. CHAIRMAN SANSBURY: Questions for staff?. Right up in there? Okay. Questions of the petitioner? MR. GAL: I've got a question. Do -- how does Florida law define reasonable use? Do you know? If the property can be used for a park, is that reasonable use? Under Florida law. MR. CUYLER: No. MR. GAL: Okay. So you still retain the -- MR. WHITE: Unfortunately, I have to disagree with Mr. Cuyler. There are cases certainly where -- for example, Graham versus Estuary Properties where the courts have held that a park may have been a reasonable use on that property. I think it depends upon Page 59 November 7, 2001 the specific facts of each particular project, and the standard is one that's nothing more than a balancing test or series of balancing tests. MR. CUYLER: Let me add to that. I thought you were referring to this piece of property. I mean, if you want a general diss -- dissertation, you'll need to look to Mr. White on this piece of property. If the expectation is for the developer to build a park and then that's reasonable use, my answer is clearly and absolutely no. CHAIRMAN SANSBURY: Okay. MR. GAL: I have one more question. CHAIRMAN SANSBURY: Yes, sir. Go ahead. MR. GAL: The land that is going to be -- remain as conservation, how is that going to be set aside? Through easements or-- MR. SMITH: My understanding is it will be at least through a conservation easement. There have also been discussions with the state to deeding that property to the state once the exotics are removed and mitigation -- mitigation is taken care of. CHAIRMAN SANSBURY: Okay. Anything else? Mr. Hill? MR. HILL: None. Thank you. CHAIRMAN SANSBURY: Okay. Are there many -- any members of the public that would like to address this petition? Yes, sir. MR. BARTAREDY: My name's Tad Bartaredy. I work with the Department of Environmental Protection at Rookery Bay Reserve. I've gone through the staff report which has outlined that that does meet the requirements of the Growth Management Plan consistency. And the one recommendation was that it be approved given that the sur -- that the South Florida Water Management District also reached -- issued a permit to meet their requirements. Now, I have been in much discussion with the Water Page 60 November 7, 2001 Management District and provided comments on the application, and it is quite notable that there are quite a number of outstanding technical issues regarding that permit. And some of these have been ongoing for some time. I could enumerate these very briefly. But probably some of that's outlined in the correspondence provided. But these things range from basic things like validation of the elevation in the areas which basically underpins the whole plans to things like designs of the surface water management district's -- the surface water management systems. There are some questions regarding tail-water conditions, water-quality calculations. And with regards to the question made about the mitigation plan, the Water Management District will -- will also require some written confirmation that if you will accept the proposed conservation -- conservation easement, and that hasn't happened. I do know that -- that the Water Management District is still waiting, all this information, they have been for some time. In addition to that, related to the -- the conservation easement, they're also requesting things like documents or at least draft documents indicating who will be responsible for management and maintenance of those conservation easements and the water management systems and providing those types of assurances. So there is a number of issues still related to that permitting, which the whole recommendation from the Collier staff is based on. So I think that's worthy of consideration. Now, as far as Rookery Bay is concerned, we do believe that there is some concern certainly regarding water quality. The -- we are pleased that certainly the higher safeguards are -- are being built into that plan, but we still are not convinced that reasonable assurance has been provided to protect those outstanding Florida waters. And because this whole project is linked through creeks and wetlands to Interesting Creek which is the main tributary of Rookery Bay, it's of Page 61 November 7, 2001 particular significance to us. With regards to some of the comments made about hydrologic restoration, things like that, there -- there's certainly additional need for much more information regarding drainage on and off the site. Surface water sheet flow does flow in this sort of northeast/southeast orientation, and given that the proposed footprint or the point -- the footprint for the proposed plan still sits in that immediate area, things like removing that road bed and even some culverts on Shell Island Road would still probably be negligible in that regard. There still would be hydrological impacts. Some comments are made regarding listed species. I think it's notable that in that document there was a one-day stint on the listed species survey, and it was actually done in wintertime. Certainly wetland habits -- habitats should certainly be surveyed when they're wet in a -- in the summer/wintertime if-- if they're going to be taken seriously. And I think it's also notable that the work that I have done personally only a half mile from this site basically doing very, very intensive sampling over five days, five consecutive days per month, in the last five months, has identified ten new species for the area. And this area has been surveyed for the last 15 years. So it does go to show that with more extensive work, there are things that you are not going to see. And one of those things was a listed species that-- the gopher frog (sic). The other listed species that I have seen in that area recently include things like wood storks, which is related to the Silver Lakes project. This area is adjacent. This area is certainly used by them, perhaps not for nesting but there's certainly feeding areas. Rosette spoonbills I've seen in there several months back. I've also seen bald eagles in there as recently as last weekend. Also a couple months ago I actually have plaster casts of Florida Page 62 November 7, 2001 bears. There is some evidence that bears, bobcats, deer, and other larger wildlife are actually using some of these old road beds as corridors between adjacent wetland and upland areas. So certainly there are listed species that do use the area. We also believe that the proposed development will have some im-- negative impacts on the primary goals of the estuarine reserve system. Rookery Bay is certainly one of the last remaining pristine mangrove estuaries in North America. And an additional development such as Rookery Bay Towers will certainly have some type of impact. The types of cumulative impacts from similar residential developments around the area result in fragmentation of the environment and result in a loss of buffering. There was -- sources of-- of water pollution, and we've heard that there are attempts being made to address those concerns, but there are still a number of technical issues to be addressed there. In my mind, the jury is still out on that. The plans that have been put on the table and the information that has been provided is not convincing at this time. And also, as --just as a final point -- and I don't know how much weight this will carry, but certainly having towers like that will distract away from the aesthetic value of-- of the reserve. CHAIRMAN SANSBURY: MR. SOLING: Yes, I have. CHAIRMAN SANSBURY: Thank you. Is there any questions? Yes, sir. MR. SOLING: Your testimony, as I heard it, is not so much objecting to what's being done but in having the county be more accountable to what is there and main -- and keeping a tight lid or tight restrictions on the development of the property for the environmental concerns. Am -- am I correct or not? MR. BARTAREDY: Well, my testimony is -- is that certainly it's -- it's consistent with the planning requirements that the Page 63 November 7, 2001 development side of-- of the equation. In terms of the -- the recommendation, I -- I can't dispute that. Those -- those are the rules, and it's consistent with those. My point is, is that -- my point I'm trying to make is that the recommendation here by the staff is that, you know, assuming that they do get a permit from the Water Management District, and there are quite a number of technical issues there that need to be addressed, and some of these have needed to be addressed for some time. MR. SOLING: That's what I'm saying. It's a staff problem, a county problem, to ensure that they live up to the rules and regs. MR. BARTAREDY: Correct. MR. SOLING: Thank you. CHAIRMAN SANSBURY: Anything else? (No response.) CHAIRMAN SANSBURY: Thank you, sir. MS. SANTORO: I know that staff mentioned that there are proposals, and up to 20 stories is allowed. But right now Shell Road -- Shell Island Road is kind of open fields, open area, open water and not much commercial around there. You asked about that. Is there going to be quite a bit of screening because this is going to stick out at this particular time being ten stories tall? MR. BARTAREDY: Excuse me? MS. SANTORO: I'm sorry. I guess I'm asking the developers. The buildings themselves, are you going to have quite a bit of screening -- CHAIRMAN SANSBURY: Okay. Let's -- let's do this, then, if we -- if we're finished with the gentleman from Rookery Bay, we're going to get the developer back up? Okay? MS. SANTORO: Okay. CHAIRMAN SANSBURY: Okay. Here we go. MR. CUYLER: If your question is, are they going to be visible, Page 64 November 7, 2001 yes, they're going to be visible. They're ten-story buildings. We will comply with all county codes with regard to landscaping, buffering and such. But if the question is, are they visible, yes, they're visible. MR. GAL' I have another question for Mr. Cuyler. CHAIRMAN SANSBURY: Yes. Yes. MR. GAL' How far apart -- what does the developer develop this property, and what was the state valuing the property at? MR. CUYLER: We -- well, to summarize as best I can, we-- and, frankly, in accordance with The Conservancy -- and, I believe, Rookery Bay probably would -- would have taken the same position, although I will not speak for them; somebody else can -- is that, just as I told you before, the developer has a reasonable use of this property. A reasonable use of his property under these circumstances is going to be residential use. Rookery Bay's position was, we would really like the state to buy this. We don't care whether it's ten stories or two stories. We really would prefer the project not be there. We would prefer that it be in state ownership. So we wanted to make sure that we had ex -- and our position was, we can do that. So when we said to the state, you know, that we obviously are going to obtain certain development rights, I can't tell you what they are until we go through that process, but we're going to obtain some development rights, every property owner has a right to do that. And the state, whether it was their appraisal mechanisms that they can only appraise it based on the zoning category of today or what -- what it was, we tried to convince them that's a very narrow attitude. You know, we don't want to spend a lot of money going through an entire permitting process, entire land development process, and then turn to you, after we've spent all that money, and say, "Okay. Yeah, now we recognize you can do that." so that the quick answer is, we valued our property at what -- on a unit basis on -- on what we thought was a reasonable estimate. And Page 65 November 7, 2001 the state wanted to appraise it on ag, I believe. MR. GAL: So if there was a condemnation proceeding, would that same issue arise, do you think? I've never really dealt with a condemnation -- MR. CUYLER: Same exact issue. MR. GAL: How do you appraise the properties? MR. CUYLER: There would be a determination of the worth of the property, and the government, in terms of private property rights as -- you know, they'd have to pay just compensation to the owner. So our position would be yes, that it would be a similar valuation. CHAIRMAN SANSBURY: All right. Any other questions? Additional from the public? MR. SMITH: If I could, could I respond to some of the comments that -- MR. CUYLER: Do you want to hear from -- some comments, or would you like to go ahead and hear the public? CHAIRMAN SANSBURY: I'd like to hear from the public, and then I'd like to have you guys rebut. Okay? MS. RYAN: Good morning. For the record, Nicole Ryan. I'm here on behalf of The Conservancy of Southwest Florida. The Conservancy has a lot of concerns about this project. The Conservancy began in Rookery Bay back in 1964. A group of citizens stood up against a road that would go through Rookery Bay. It was dubbed as the road to nowhere. So our roots are really in Rookery Bay, and so is our Briggs Nature Center. We're concerned on the one hand of Rookery Bay Towers due to our position as an adjacent land user. Our Briggs Nature Center is a ways from the proposed towers. However, when you deal with very minimal elevation, we are concerned that people walking our nature boardwalk will go out and see towers. We are concerned about the economic impact of that. Will people want to pay to go out on a Page 66 November 7, 2001 boardwalk to view wildlife and see two ten-story buildings? So we're concerned in that regard. Beyond the potential negative economic impacts to our nature center, The Conservancy has additional environmental concerns about the development. Most importantly, this land is adjacent to the Rookery Bay research preserve. Rookery Bay has been trying to acquire this land. And I know it's been mentioned The Conservancy has been involved in some of these negotiations. I haven't personally been involved in that, but I do know that The Conservancy really was dedicated to trying to get this land purchased. So it was very important to us and to the state and to all the parties involved to try to reach an agreement. The bottom line is that towers like this adjacent to Rookery Bay are not appropriate environmentally or aesthetically. Environmentally this is just another example of the loss of wildlife habitat and wetlands. Their concerns about the access road, Shell Island Road, increased traffic, will that cause additional road kills. Indigo snakes and gopher tortoises could be negatively impacted by this. Light pollution is another issue. Have there been evaluations for the potential impacts of security lights or residential lighting to the wildlife? The undeveloped portion of the property is another concern. There's the 74 -- 74.6 acres of conservation land. Will that be given just in a conservation easement to the state, or will it be actually deeded over to the state? We believe that that land should be deeded to the state for their management. Another potential problem, nutrient loading from any turf grass that would be used on the site. Another question, will fill be used, how much, and what will the impacts be? In the staff report there was a survey that was mentioned that Page 67 November 7, 2001 was done on one day back in 1997, and it was determined that no listed species used the property. However, these surveys are just one snapshot in time, and really they don't provide a lot of insight for species such as birds that are highly mobile. So The Conservancy believes that there are still a lot of questions to be answered. We agree with the state. There are still a lot of things that need to be worked out before this should be moved forward. We think it's premature to move it forward. And ultimately we would like to still get this property acquired by the state so it can become part of the Rookery Bay foundry. CHAIRMAN SANSBURY: Thank you. Questions for council? (No response.) CHAIRMAN SANSBURY: Hearing none from the petitioner, would you like to have a few minutes here to rebut what we've heard? MR. SMITH: Thank you. Regarding the status of the Water Management District permitting effort, I have been on the phone as recently as a week and a half ago with the environmental reviewer for the district. And she is happy with the project. There are no environmental issues that are left unresolved as far as impacts, the size of the impacts, the locations of the impacts, the type of mitigation that we're proposing, the maintenance plan, the monitoring plan. Those issues are all pretty well resolved. The only issue I believe that is outstanding -- and it comes, I believe, in a number of questions, and the engineer can address this, as to the surface water management system. In order to get our permit, we're going to have to demonstrate that we meet the higher level of water-quality treatment required for a direct discharge to an OFW. So we're going to have to do that for the permit. And once that higher standard is reviewed and approved by the district, then that constitutes reasonable assurance that there will be no impact to water quality. That would be a direct discharge. And we have, at Page 68 November 7,2001 best, an indirect discharge to the OFW. So once that permit is issued, that resolves that issue. As far as the listed species is concerned, yes, our survey was a one-day event. We've been on site numerous other times. Our focus was looking for fatal flaws which would be nesting or denning of listed species. I don't doubt that wood storks periodically, when the water levels are right, forage on the site. I wouldn't be surprised at a black bear every once in a while goes across a site, just like many other properties in Collier County. As far as the potential to leave the old road grade as a corridor, that's inconsistent with what's happened to the northwest, if that roadway is gone. It's my understanding that was with the full support of Rookery Bay. We will be providing some additional culverting under Shell Island Road. Also the access road that comes off of Shell Island Road to the development will have culverting there. No doubt, it will not restore a pristine pre -- how do I say this politely, white man existence into the south Florida, but it will certainly be better than it is now. Without the project, that road grade will stay, Shell Island will stay without any culverts. There will be no improvements. So we're not bringing it back to pristine conditions, but we certainly are improving it. There will be no increase over the vast majority of Shell Island Road as far as road traffic is concerned. All the people who use this project will be on Shell Island Road and then off within a hundred feet or 200 feet, whatever that exact distance is. They won't be driving the length of Shell Island Road. CHAIRMAN SANSBURY: Yes, sir, Mr. Coe. MR. COE: I count 78.7 acres; is that correct? MR. SMITH: For the total project? MR. COE: Yes. Page 69 November 7, 2001 MR. SMITH: Yes. MR. COE: When I add up wetlands and submerged lands and I subtract that 77 acres, I come out with 1.7 acres that are really developable, and that probably -- 1.7 acres is probably right along that roadway or railroad tract way or whatever it may be. Am I correct there or -- MR. SMITH: Yes and no. MR. COE: I'm just incredulous. MR. SMITH: You're coming up with the upland acres. MR. COE: Well, upland is a road. MR. SMITH: If it's not jurisdictional wetland, yes. MR. LENBERGER: That's correct. It's the upland acreage, and all the uplands are man-made. CHAIRMAN SANSBURY: Okay. MR. CARLSON: Just one minor comment. I -- I would-- I would disagree with you on your proposed impact on traffic on Shell Island Road. There's a little wildlife drive up on Sanibel island, goes through Ding Darling Preserve, and, you know, there's half a million people a year drive through there, and they've done studies. And a lot of that driving is by very close local residents. It's not all tourism. So I can't believe that if this project goes forward and you have, what, several hundred people living in these towers that they won't -- won't be taking drives on Shell Island Road and increasing the traffic hundreds of percent above what it is now. And I know the gopher tortoises are hit on that road. I've seen that myself. So I would just disagree on that point. There's going to be nothing to prevent these people recreationally from coming out of their tower and driving back and forth on Shell Island Road, and I think a lot of people will do that. CHAIRMAN SANSBURY: Okay. Thank you. Anyone else? Okay. Here we go. Page 70 November 7, 2001 MR. NEAL: Jerry Neal, and I'll be speaking for the surface water management issues. The agreement we have right now with the state has been going for maybe a month or two now. We did set gauges in the area, and those gauges are reading that the tail water is within 2/10 of what we assumed it to be. And so, therefore, that issue is no longer an issue. Also, a staff member of the Rookery Bay did the readings to confirm our readings. So that has been resolved. The other item that was in consideration was how do we treat the water for Shell Island Road itself. We had said that we could not raise it up as South Florida requested to 3 feet to drain the water into the site because the fill that would be required, the tow of the slope will impact wetlands. So we're trying to accomplish the improvement without doing any wetland impact. We had proposed to put in a new concept that is called a storm septor which would take the water, take out pollutants, then redischarge the water. After going through about a month of discussion with South Florida, there was an agreement yesterday that we are not going to put the storm septor in, that we're going to shift the road to one side a little bit, and we're going to provide a swell on the south side of the road to do the water management for the Shell Island Road. So now that has been resolved. The other item was about water quality. The rule for where we are now is one inch of storage for pretreatment. And then after that we can discharge directly off site. We looked at and considered the fact that we are within the Rookery Bay area. So we looked at the water management for 1 1/2-inch water treatment which is what you would do if you are in outstanding Florida waters. On top of that, we have increased the perimeter berm, and we are storing the 25-year storm. So the water quality has gone from the 1-inch requirement to an inch and a half, plus on top of that, the 25- Page 71 November 7, 2001 year storm. So we have more than doubled, tripled the water quality that is required for this particular site. And we did that because of the sensitivity of the area we are in. I don't know if there's any other questions, engineering -- CHAIRMAN SANSBURY: Other questions? None. All right. Let's just sum it up, gentlemen, because we need to get rolling here. Any other questions to the council by any of the developer's representatives? Go ahead-- no? Mr. Cuyler, do you want to sum it up? MR. CUYLER: Just in very brief summary, Mr. Chairman. Thank you for the opportunity to do that. All of the evidence that you've heard today, both from the county staff and -- and from the consultants -- but, I mean, rely on your own county staff-- they've indicated to you there's no environmental reason to do anything other than to approve this petition. I indicated a little bit of background and history just to give you a feel for -- for where we've been on this project. But I understand it's not easy for you to make some of these decisions. And this -- this may be a difficult one for you to make. I understand when the Rookery Bay stands up and The Conservancy stands up and says we don't particularly like this, that those are two major environmental groups in our community. But the standard for -- for your review and the standard for your approval is the evidence that's presented to you. It's not whether you like this or don't like it. It's whether we've met the county regulations. We understand we still have some permitting that we have to go through, and we're going to have to abide by all of that. I think in terms of fairness we've done what was fair in trying to get this into the state's hands. That didn't work out. We are where we are. The developer has a right to develop the property, and I suggest to you that approval of this petition is appropriate. Thank you. Page 72 November 7, 2001 CHAIRMAN SANSBURY: Thank you, sir. Pleasure of the council? MR. GAL: I'd like to say something. I think the -- the plan as -- as we've been shown is -- is fine. I don't have a problem with the plan. But I go through this property. I pass it every day. It's a beautiful piece of property. And I don't think the development should be there. It's an environmentally sensitive area. People are living there. There are going to be cumulative impacts. And I think someone needs to step up to the plate, whether it's the county or -- or the state or The Conservancy, or someone needs to get together and buy the property from the developer and -- MR. COE: That's not a problem. They'll buy it. The problem is the developer's got a price that is obviously or evidently above the appraised value. MR. GAL: Well, they need to meet his price, come close to it, or a court needs to decide. CHAIRMAN SANSBURY: Okay. Any other discussion? (No response.) CHAIRMAN SANSBURY: Hearing none, do I hear a motion? MR. GAL: I move to deny the petition. MR. COE: I second it. CHAIRMAN SANSBURY: It's been moved -- moved and seconded to deny the petition. Any further discussion? MR. CUYLER: Mr. Chairman-- CHAIRMAN SANSBURY: Yes, sir. MR. CUYLER: -- I don't want to involve myself. Would it be possible to put the reasons on the record as to why it's being denied? MR. COE: No. CHAIRMAN SANSBURY: That's normally not the -- if anyone -- if any of the members of the council would like to express their reasons for not being done -- I'll express mine and -- I believe there Page 73 November 7, 2001 are some serious environmental questions. I think many of those were brought up by the representative of The Conservancy. We have an area that is essentially not developed at this point. It's very much adjacent to OFWs. It's adjacent to a lot of other things that -- we have unknowns regarding our surface water management system, the lighting situation, the lighting situation, pollution that was brought up, definitely an environmental problem. MR. COE: Height. CHAIRMAN SANSBURY: It bothers me a little bit when I see things that -- an environmental review was gone out -- done out there in the middle of a drought. You're not going to find any animals out there in the middle of a drought. I -- I have a problem with that, putting a document in front of me and saying there's nothing there, but -- and then showing me pictures of a pond that's parched. There's not going to be anything there when there's a drought. I don't think that's a fair way to do that, and that's one of the reasons I will not support it. Anybody else? MR. COE: Yeah. I'd like to make a comment. I've sat on this committee I don't know how many years now, three, four, five, something like that. And of all the projects I've seen come before us, this is absolutely unquestionably the most damaging to environment I've ever seen and is an absolute great example as to why the governor has come down on us to change our development plans. Now, I'm not an owner of that size land. I'm just a poor person, so to speak. But I can just imagine if I did own that land, I wouldn't even think of doing a project like this for the people of this county. I wouldn't think of doing a project like this. CHAIRMAN SANSBURY: Anyone else? Oh, I'm sorry. MR. COE: Anyone with half a brain would realize what this would do to this county. Yes, you can do it. Yes, legally you may be able to get away with it by doing various different things to meet the Page 74 November 7, 2001 requirements of the law. But sometimes it just comes down to what you got to do that's right. And I think you forgot this one, so I'm voting against it. CHAIRMAN SANSBURY: Thank you, Mr. Coe. Anyone else? MR. CUYLER: Mr. Chairman, may I respond to that? CHAIRMAN SANSBURY: No, sir. We're finished with the response. Anyone else? MR. GAL: I think you should allow him to respond. CHAIRMAN SANSBURY: I -- I believe we've called questions, and we've ended discussion. MR. COE: End of discussion. MR. CUYLER: Your Honor-- CHAIRMAN SANSBURY: I do not-- anybody else have any -- we've got a motion on the floor. MR. COE: We've got a second. CHAIRMAN SANSBURY: And we've got a second. Is there any further discussion? (No response.) CHAIRMAN SANSBURY: Hearing none, the motion is to deny the project. All in favor? (Those in favor responded.) CHAIRMAN SANSBURY: Opposed, same sign? MR. WHITE: The record reflects that Mr. Carlson abstained. MR. SOLING: And I'm -- I'm abstaining from voting too. CHAIRMAN SANSBURY: Okay. We have two abstentions. MR. WHITE: Unfortunately, Mr. Chairman, without something put on the record by Councilmember Soling, I believe that he has a duty to vote. MR. SOLING: Then I vote no. CHAIRMAN SANSBURY: Okay. Then the vote is 7 to 0 with Page 75 November 7, 2001 Mr. Carlson abstaining. MR. CUYLER: Mr. Chairman, now that your item is over, may I respond? CHAIRMAN SANSBURY: The item is over, sir. MR. GAL: I think he should be allowed t o -- to -- MR. COE: I don't agree at all. We've discussed this -- CHAIRMAN SANSBURY: Mr. -- Mr. White, we closed the discussions. MR. CUYLER: I don't think it's fair to take shots from -- from the dais and then not allow people to say -- CHAIRMAN SANSBURY: Well, sir-- well, sir-- MR. WHITE: Mr. Chairman, I believe that you're the sergeant at arms at these proceeding and if you believe -- MR. CUYLER: That's fine, Mr. Chairman. CHAIRMAN SANSBURY: Discussion is over. Next. Mickie, don't go get your blood pressure checked right now, okay? MR. COE: Oh, it's low right now. What do we got next? CHAIRMAN SANSBURY: LDC. All right. Or what -- no. LDC. (A short break was held.) CHAIRMAN SANSBURY: Okay. running this one? Barbara? MR. COE: I can't believe-- CHAIRMAN SANSBURY: All right. Here we go. Pay attention, kids. Yes, ma'am. MS. BURGESON: For the record, Barbara Burgeson with planning services. I believe the next item that you wanted to -- to hear was the LDC amendments. We have a couple of things that have changed with the package that was originally mailed out to you last week, so I'm going to go through this maybe a little bit slowly, Let's go. All right. Who is Page 76 November 7, 2001 but it should only take ten minutes to get through the whole process. CHAIRMAN SANSBURY: Okay. MS. BURGESON: First, the two items that have to do with water management or engineering issues, we're going to hear those first. The first item is 3.2.8.3.25. That has to do with the change in the Land Development Code to include provisions for separate potable and reuse waterlines. We contacted the utilities department to see if somebody could be present to answer any questions regarding that, but we have not heard back from them. MR. CARLSON: Some of us are lost. MS. BURGESON: I'm sorry. MR. CARLSON: I'm one of them. I may be the only one. CHAIRMAN SANSBURY: And I'm following. MR. CARLSON: Where -- where -- tell me where we're starting again. MS. BURGESON: The Land Development Code amendments which were mailed out to you last week, you should have received probably about a week ago. MR. CARLSON: I received this (indicating). MS. BURGESON: Right. That's the first -- is that the only one that you received? MR. GAL: It starts with the Ritz-Carlton? MS. BURGESON: Right. The Ritz-Carlton may be the first one on -- in that package. CHAIRMAN SANSBURY: I gotcha. MS. BURGESON: But we're going to take a look at the two water management issues first. MR. CARLSON: I'm with you. MS. BURGESON: If you could flip to the one that shows Susan Murray as the author, she's -- she's actually not the author, and unfortunately we weren't able to determine yesterday -- we Page 77 November 7,2001 understand -- Ron Nino was expected to make the presentation today. However, he's -- he's unable to be here. The person who authored this, we're not -- we're not certain who the person who authored it. So we contacted the utilities department to ask if somebody could be here to answer questions, and we haven't heard back from them. One thing you can do is either consider it, approve it or table it until next month. Our agenda and schedule for this LDC amendment cycle is not so tight that we can't bring these back to you next month. MR. CARLSON: Okay. So why don't you just explain these to US --- MR. COE: I understand. MR. CARLSON: All right. CHAIRMAN SANSBURY: I don't have any problem with it. I don't have any problem with it. MR. COE: Do we have to pass judgment on this thing? MS. BURGESON: You can or you can't. If you would like to make a motion on these individually, that's probably the simplest way to do it. MR. COE: I would like to make a motion that we approve it as written. CHAIRMAN SANSBURY: MS. BURGESON: Right. CHAIRMAN SANSBURY: MS. SANTORO: Second. CHAIRMAN SANSBURY: (Unanimous response.) CHAIRMAN SANSBURY: (No response.) CHAIRMAN SANSBURY: MR. COE: All right. That's 3.2.8.3.25; right? Seconded. In favor? Opposed? It passed unanimously. Page 78 November 7, 2001 CHAIRMAN SANSBURY: Do you-all have any comment? MR. COE: None. MS. BURGESON: Second item is 3.2.8.3.26, and Stan's going make a presentation on that. MR. COE: I'd like to make a motion to approve it as written. MS. SANTORO: I'll second. CHAIRMAN SANSBURY: Why don't we just read it a little first because I don't quite understand. "Under certain conditions of proximity to adjacent property, buildings shall be required to install roof gutters, gable roofs, to direct storm water away from directly adversely carrying water on adjacent property." Okay. Moved, seconded, in favor? (Unanimous response.) CHAIRMAN SANSBURY: Passed unanimously. MS. BURGESON: The next item is a public petition, and it was submitted by Matt Grabinski representing the Ritz-Carlton. However, Matt is not here today. There's only a couple things I'd like to comment on. Staff met to discuss this yesterday. We have some concerns regarding removing the language of-- of calling this a permit and calling it a notice. We haven't had time to find out what the legal ramifications are of that change. However, talking with other agencies, a permit has conditions and can be enforced, can be stipulated and can be revoked. Understanding that the Land Development Code doesn't allow revocation of this permit at this time, we still wanted to keep the language in calling it a permit. When we've had notices with Collier County in the past, that has simply been that the property owner has sent a notification to the county. We have not added stipulations or conditions to notices. It's just a notification process. So staff, without having the benefit of having the petitioner make the presentation, because we have not heard Matt's presentation on this yet, we do not feel that the changes Page 79 November 7, 2001 should be supported by staff. And the remainder of the changes are nonsubstantive. They do not improve the language as it's written and the ability of staff to enforce them. So at this point -- CHAIRMAN SANSBURY: I feel -- and hopefully my colleagues feel the same way -- if someone is going to make a request for something like this, they need to be here. MS. BURGESON: To make the presentation. CHAIRMAN SANSBURY: I don't think we -- MR. COE: Well, I -- I'd like to even go farther than that. If you, as staff members, haven't had the opportunity to read what he wants to do or someone else from the public desires to do and you have not staffed it on your level to a point where you're going to come up with your own recommendations, then it shouldn't even come before us. CHAIRMAN SANSBURY: That's what I was trying to say. MR. COE: I just -- I like to talk so -- MR. SOLING: Can I -- can I add something? CHAIRMAN SANSBURY: Yes. MR. SOLING: This is about beach access and using the beach. This past summer or even into the fall during the turtle season and when the light was -- the sun -- the sun was still up until 7, 7:30, once a week I walked on the beach starting at Vanderbilt Beach, and I must tell this board and the public that I never once walked that beach where there wasn't tire tracks, when there wasn't -- when -- when vehicles were prohibited, yet there were tire tracks up and down the beach. And I take great exception to all the property owners along the beach running vehicles during the turtle season when they weren't supposed to. CHAIRMAN SANSBURY: But, Chester, probably those tire tracks were made by the lady right out there or one of her folks. Okay. Page 80 November 7, 2001 MR. GAL: Mr. Chairman, I have a question. MS. SANTORO: I have one more comment because you mentioned a couple of issues you would be against. One more thing I picked up, changing the definition from the limited hotel resort property to allowing any commercial beachfront property, I would be absolutely against that as well. CHAIRMAN SANSBURY: Well, let's -- let's -- if they want to present it, come and present it, let's consider it. MR. GAL: I just want to make sure we don't spend, like, ten hours going through this ordinance that the commission -- this is, with all his changes, the commission decided that there would be no revocation of this permit. MS. BURGESON: Yes. MR. GAL: The Board of County Commissioners determined that despite the -- MS. BURGESON: What happened, at the Land Development Code amendment cycle last time in June, the very -- the last meeting in June, they added language to say that it could not be revoked. The reason they did that is they -- they talked about seeing how it went the first year without revoking the permits, felt that everyone could do a good job and be in compliance. And if there were any issues, staff could come back, and that language could be removed from the Land Development Code at a later time. MR. COE: So why does Matt want to go through this again? MS. BURGESON: Without having heard his presentation, I would only be guessing, and I don't think that's appropriate for me to be doing that. CHAIRMAN SANSBURY: Let's ask him to come. MS. BURGESON: We can continue this item to your December meeting. MR. COE: Thanks. Page 81 November 7, 2001 roe. CHAIRMAN SANSBURY: MR. HILL: Move to table. CHAIRMAN SANSBURY: MR. HILL: Table. CHAIRMAN SANSBURY: Shall we go on to the next one? Can there be -- table? Strike? Table by Mr. Hill, second by Mr. MR. COE: That's correct. CHAIRMAN SANSBURY: All -- all in favor aye. (Unanimous response.) CHAIRMAN SANSBURY: Passed unanimously. MS. BURGESON: The next several items or actually the remaining items in front of you are authored by the pollution control and prevention department. There are several things to be changed from what was originally mailed to you, so I'll read that into the record. Land Development Code Section -- and you don't need to pay attention to this because these two items are being pulled. 3.16.2.6 is being pulled from this Land Development Code cycle. And 3.16.4.6.1.1.1 through 3.16.4.6.1.1.4 are being pulled. CHAIRMAN SANSBURY: Okay. MS. BURGESON: Now, several items were handed out this morning to you as replacements of what was mailed to you last week. CHAIRMAN SANSBURY: Got them. MS. BURGESON: Okay. The first one is 3.16.4.1.1.1.1. And today that was replaced -- the corrected copy was handed out to you this morning, and it probably will be better if I just read this into the record. What we are proposing to do on all of these amendments to the pollution control and prevention sections are to come into compliance with the final order in Zones W-l, W-2, W-3, and W-4, future solid waste disposal facilities and prohibited -- are prohibited. I'm sorry -- Page 82 November 7, 2001 in Zone GWP, future solid waste disposal facilities are prohibited in the absence of a well field conditional use permit. MR. COE: I'd like to make a motion to approve. CHAIRMAN SANSBURY: Motion by-- Mr. Coe. MS. SANTORO: Can you just mention what GWP is? MS. BURGESON: Groundwater protection. CHAIRMAN SANSBURY: Okay. We have a second. All in favor? (Unanimous response.) CHAIRMAN SANSBURY: Opposed? (No response.) CHAIRMAN SANSBURY: It passed unanimously. MS. BURGESON: The second item, 3.16.4.1.4.1.1 was mailed to you correctly and stands that way. We'd like to recommend approval of that language. CHAIRMAN SANSBURY: Same thing. MR. COE: I'd like to make approval -- motion to approve. CHAIRMAN SANSBURY: MR. CARLSON: Second. CHAIRMAN SANSBURY: (No response.) CHAIRMAN SANSBURY: unanimously. Motion by Mr. Coe. Second, Carlson. In favor? Hearing no opposed, it passed MS. BURGESON: The next item is 3.16.4.1.6.1.2. The language that was mailed to you was replaced this morning, and I'll read that language into the record. In Zones W-l, W-2, W-3, future solid waste storage collection and recycling facilities that will handle hazardous products and hazardous wastes shall be prohibited. MR. SOLING: I move that acceptance. MR. HILL: Is GWP not included for some reason? Page 83 November 7, 2001 MR. SMITH: Ray Smith, pollution control. GWP is not included because it is not part of the governor's final order, and we remain consistent with the governor's final order and the direction through that. CHAIRMAN SANSBURY: Okay. MR. COE: I'd like to make a motion to approve as written. MR. HILL: We can be more restrictive than the order can. MR. SMITH: Well, the focus of these amendments obviously are -- are specific to the governor's final order. I'm going to leave the more restrictive up to -- up to planning staff. Can they be more restrictive at this point if the focus is the governor's final order? MS. BURGESON: That -- that would be something that I think we would probably rely on either Susan Murray to make that interpretation -- MR. SMITH: Or counsel? MR. WHITE: So long as it's supported by facts and reasonable argument. I don't see why it couldn't be more stringent than the order. MR. SMITH: MR. WHITE: Okay. But, then again, I want to reserve final comment on it until after I've reviewed it. But as a matter of general principles of law, typically regulations on the county -- by the county can be more stringent than -- than state, absent some preemption by the state -- MR. SMITH: MR. WHITE: MR. SMITH: Okay. -- precluding us from doing so. So I guess the answer to that is yes. MR. HILL: We just approved a -- a LDC change which included GWP in the case of future solid waste disposal facilities in the absence of a well field conditional use permit. Now we're saying future solid waste storage collection recycling with hazardous Page 84 November 7, 2001 materials. I see no reason why GWP shouldn't be in there. MR. SMITH: Okay. One of the things you need to understand about GWP is you're talking about all of Collier County. The way the zones are broken out in the ordinance are simply they focus in on municipal well field protection areas or municipal well fields. You have -- since Collier County GWP is a recharge area throughout the county, it is identified as groundwater protection area, GWP. As you take a look at W-1, W-2, W-3, W-4, these are concentric zones that move out from the well head. A W-1 would be a -- one- year travel-time zone. W-2 would be a two-year, W-3 a five-year and W-4 a twenty-year. So keep that in mind. CHAIRMAN SANSBURY: Okay. Anything further, Mr. Hill? MR. HILL: Huh-uh. CHAIRMAN SANSBURY: Do I hear-- MR. COE: I'd like to make a motion to approve as written. CHAIRMAN SANSBURY: Okay. Moved by Mr. Coe, seconded by Mr. Carlson. In favor? (Unanimous response.) MR. SOLING: We're approving as -- as submitted. CHAIRMAN SANSBURY: As submitted, yes, sir. MR. SMITH: Thank you. MS. BURGESON: The next item is 3.16.4.3.3.1.1. There are no changes to what was submitted to you in your package. I'm requesting that be -- or requesting that you either approve that language that staff is proposing or-- MR. HILL: Move to approve. CHAIRMAN SANSBURY: Moved by Mr. Hill, seconded by Mr. Soling. In favor? (Unanimous response.) CHAIRMAN SANSBURY: Opposed? Hearing none, passed unanimously. Page 85 November 7, 2001 MS. BURGESON: The next item, 3.16.4.5.1.1.1 through 3.16.4.5.1.1.5. This was replaced today, and a corrected copy was handed out this morning. That's considerably longer. It's a two-page. If you have any questions about changes to that, I think it would be easier for Ray to discuss that rather than for me to read two pages into the records. CHAIRMAN SANSBURY: Questions? MR. COE: No questions. CHAIRMAN SANSBURY: No questions? (No response.) CHAIRMAN SANSBURY: Hearing none -- MR. COE: I'd like to make a motion to approve as written. CHAIRMAN SANSBURY: Moved by Mr. Coe, seconded by Mr. Hill. MR. HILL: No, I didn't second it. CHAIRMAN SANSBURY: You didn't second it? MR. HILL: I haven't caught up with the changes in the document. MR. CARLSON: Seeing as we just got this, could you just quickly explain-- MR. SMITH: Sure. MR. CARLSON: -- what these changes mean? MR. SMITH: Ray Smith, pollution control for the record again. The main changes dealt with the term "nonconforming" that was in the original document and crossed out. That is not part of the governor's final order, so we removed that strike-through. Since that was -- that strike-through was removed, the strike-through's under three sixteen four five one one two, three sixteen four five one one three, three sixteen four five one one four. And there was a slight change in number regarding three sixteen four five one one. Strike- through on the five, underscore on the two, had no need to be Page 86 November 7, 2001 changed. Those initial changes were specific to the nonconforming state. Again, since that was pulled, those strike-throughs were deleted. CHAIRMAN SANSBURY: Okay. Mr. Hill, are you all right? MR. HILL: Uh-huh. CHAIRMAN SANSBURY: Do you want to second it now? MR. HILL: Yup. CHAIRMAN SANSBURY: Okay. Moved by Mr. Coe, seconded by Mr. Hill. In favor? (Unanimous response.) CHAIRMAN SANSBURY: Hearing no opposed, passed unanimously. MS. BURGESON: The last on the amendment cycle is 3.16.4.11.1.1.1 through 6 -- 3.16.4.11.1.1.4. And that, again, as was mailed to you last week with no changes. CHAIRMAN SANSBURY: W-1 -- W-1 and W-2 are one mile, two miles, again? MR. SMITH: W-1 -- CHAIRMAN SANSBURY: Excuse me, one year. One year. One year, I'm sorry. Right. MR. SMITH: One year, two year. CHAIRMAN SANSBURY: Okay. I'm sorry. Mr. Coe? MR. COE: I'd like to make a motion to approve as written. CHAIRMAN SANSBURY: Okay. Mr. Coe. Mr. Carlson, second? MR. CARLSON: Second. CHAIRMAN SANSBURY: Does that sound good? Okay. In favor? (Unanimous response.) CHAIRMAN SANSBURY: Opposed? (No response.) Page 87 November 7, 2001 CHAIRMAN SANSBURY: None. It passed unanimously. Okay. MS. BURGESON: The next item on the agenda, preceding the new business, old business, we had listed as a wetland policy discussion. However, Bill Lorenz -- oh, is here. He just walked in. MS. BURGESON: The wetland-- CHAIRMAN SANSBURY: Okay. Here we go. MS. BURGESON: The wetland policy discussion that was listed as old business was concluded as new business I was just told so that that's not something that we need to discuss at this hearing. It may be something that will be brought back in a couple of months. CHAIRMAN SANSBURY: Okay. Now, you say the wetland policy is not going to be discussed? MS. BURGESON: Right. MR. SOLING: May I make -- CHAIRMAN SANSBURY: Yes, sir. MR. SOLING: I handed out a -- a couple of pages ex -- of-- copied out of the State of Florida rules and regs, reference to the Department of Environmental Protection. And that calls for a lot of references, a lot of bills and things. And so does our papers that were supplied to us. So I would like to ask the staff before we consider this again to supply us with the Florida laws so that we can determine exactly what we're talking about. And I'm talking specifically to the ones I marked in yellow and to the laws in -- starting with numbers 403 under the environmental control rules, 1995. MR. WHITE: If I could be so presumptuous as to say any Florida Statutes cites can be located at Sun Biz. I'm not sure if that's the correct name for the website, but they are available in the interest, perhaps, of not having had staff copy page after page of statutes just in order to provide the reference. If that's a suitable alternative, I'd encourage us to do that. Page 88 November 7, 2001 MR. SOLING: MR. WHITE: then look for something that lists the statutes. there, and they're very easy to locate and -- MR. SOLING: MyFlorida.com? MR. WHITE: I think it's dot com, actually. in MyFlorida in as a search -- MR. COE: You'll find it. What's the website? MyFlorida -- MyFlorida will get you there, and And they're all in But if you just put MR. WHITE: You'll find it. It's very user friendly. And I apologize for interrupting, Mr. Chairman. CHAIRMAN SANSBURY: Okay. Mr. Lorenz. MR. LORENZ: Mr. -- Mr. Chairman, there is a speaker here for one of the wetlands -- on wetlands policies, I think, Ilene Barnett. I would like to give the EAC a presentation. CHAIRMAN SANSBURY: Okay. Is that all right with everyone? We're not going to hear Mr. Durham today? He's just watching us? Ilene? MS. BARNETT: Thank you for hearing me, and good afternoon. CHAIRMAN SANSBURY: I want to tell you the thing I remember the most is the pressure from the ball of your foot is four times more than the pressure from the ATV; is that right? Okay. When you were jogging on the beach; did I get that right? MS. BARNETT: It's not the same as a ATV. CHAIRMAN SANSBURY: Okay. All right. Go ahead. MS. BARNETT: We're not talking about that this afternoon, though. But I appreciate you hearing this. I assume that we would be talking more about this wetland policy today. For the record, Ilene Barnett. I'm an environmental consultant with Vanasse Daylor. I had spoken quite a bit with the national Page 89 November 7, 2001 resources staff and development services. I'd really like to commend them on the record, Mac Hatcher, Bill Lorenz, and Steve Lenberger, for sitting down in a kind of roundtable discussion to talk about the proposed wetland policy. I've had quite a bit of experience with Water Management District and Corps wetland permitting. And I understand that a lot of this wetland policy that's proposed is trying to fill in some of the gaps, what these agencies may not be doing. So I just wanted to spend a couple of minutes sharing some information with you, if I may. The -- one of the main concerns is that you had heard a figure that the district permitted 30 percent of wetland impacts in the year 2000 in Collier County. So what I did was I just looked into that and put a table together for your information and something for you to think about as the draft policy writing goes on. If you go down to this column right here, total wetlands, these are the wetland acres in the project boundaries in Collier County projects in the year 2000. There are 1223 wetland acres in -- in these projects, so that accounts for a hundred percent. That's basically what we're starting from. The first row talks about wetland impacts, and you can see that there were -- 30 percent of the total wetlands were impacted or allowed to be impacted by Water Management District permitting. One thing that I had been working with and may not be fully to your attention right now is that of this 30 percent of wetland impact, there's a substantial amount of that -- the district considers this impact but is constitutionally under Collier County preservation requirements. When I was looking at these permits, I found that anywhere up to 30 percent of the wetland impact on a project was considered preservation area by Collier County, but the district wouldn't consider it as preservation because they were looking at surrounding land use and water tables and the storm water Page 90 November 7, 2001 management system. And they basically said it's a write-off; you need to mitigate for it. So in that 30 percent impact acreage there's somewhere -- I don't have the exact figure. I would have to investigate every single one of these 33 permits that were issued to get an exact percentage of how much was preserved. But it seems somewhere around 15 to 20 percent of that may be Collier County preservation. So it's just some information for you to consider as you look at that figure. Undisturbed and preservation acreage amounted to 70 percent. Most of it was preservation, 68 percent. Of that 68 percent, 5 percent is creation or restoration which is basically making new wetlands or turning areas that are no longer wetlands into wetlands again, restoration. Creation is starting from scratch and making new wetlands. And enhancement is 47 percent. A pretty good percentage of that preservation area required some kind of wetland improvement. In addition to the 70 percent of the wetlands on site that were preserved with various amounts of enhancement, creation, and restoration, mitigation banks added to about 72. And, as you can see, the vast majority was the Panther Island mitigation bank in that year and then additional upland compensation. So basically, this is a brief presentation, and that's just something for you to keep in your package of information as you go through the process of drafting and -- and making edits to the wetland policy. And I'll be happy to answer any questions if you have any. CHAIRMAN SANSBURY: Questions? MR. HILL: I guess it's obvious, but I'm -- I'm not sure I understand the difference between "Within permit boundaries and on site." That 94 acres that sits out there. MS. BARNETT: The -- the off site, that was, I believe, one or two particular projects of the 33. The district determined that that Page 91 November 7, 2001 particular project had impacts to an adjacent area. That was actually outside of the property owner's boundaries. So for the purpose of the column that says on site and within permit boundaries or so, I think those two terms are equivalent. I had taken all of these data from a report the district put out and rearranged it and added some information that they didn't include in it. MR. HILL: Thank you. That's good. MS. BARNETT: Thank you. MR. COE: It looks like a net loss of 25 percent; right? CHAIRMAN SANSBURY: Okay. Bill, Barbara, where do we go? MR. LORENZ: Yes. This is on the point of your agenda is the Growth Management update. Just -- just to provide you with where the -- the various committees are, the advisory committees are, the Rural Fringe Advisory Committee is continuing to review a series of packages that have the proposed policy languages and amendments to the Growth Management Plan together with data analysis. The Growth Management Plan subcommittee is on the mailing list to receive all of the mailouts to that Rural Fringe Advisory Committee. And -- and your subcommittee, the Growth Management Subcommittee, is going through that material, and as we have -- have meetings. So that's -- we're pretty much in that mode now of reviewing actual language. Again, in terms of the schedule, we would be looking at coming to the EAC sometime in January. The Board of County Commissioners will hold their transmittal hearings the end of February. So that's the time -- time line that you are under. And, for the most part, your -- your subcommittee will be presenting information to the full EAC to try to keep you up to speed as much as possible until you get to your point where you're going to have to Page 92 November 7, 2001 conduct your own public hearing on the proposed amendments. With -- with that, I believe Ally has a report that you were going to go or issue a report or information to the EAC, full EAC, or were you not going to do that? CHAIRMAN SANSBURY: Miss Santoro. MS. SANTORO: No. I thought the only points of note for them, unless we want to come back, but I thought that we wanted to see if we could set up a meeting with the subcommittee or the entire EAC. I thought it was with a Mike Doover (phonetic) MR. LORENZ: Yes. I'm prepared for that. I didn't know if you wanted to cover any other material. MS. SANTORO: No. I've given all the members a copy, which I repeat is draft because I am not natural resource director. Bill is, but -- so I've given you a draft copy. And I'm apologizing because ! did not have too much of a chance to go over it again. The other point that I'm going to try -- and Ed's going to give me the telephone number, Daryl -- the names here, Daryl Land or Mark Lott (phonetic) who are experts with the -- on the panther. And the committee felt that before we come up with -- you know, to meet with other groups or to come up with other recommendations, we would like to be very, very specific on the actual travel -- travelings and spottings of the panthers. So there may be recommendations for land acquisition or reuse or tunnels or maybe more tunnels under 1- 75. So before we came up with any specifics, we're going to try to have that individual come to the subcommittee and give a talk. MR. LORENZ: The -- the other -- the other point that I wanted to make just in -- that's in the rural fringe committee, and that's where that's working out. And the other committee, the rural lands committee, has been meeting. They've kind of accelerated their schedule pretty much monthly, maybe even a little bit more frequently than monthly now. They are going through a set of what Page 93 November 7, 2001 they call scenarios of looking at strategies for protection of the natural resources in addition to the ability of the landowners through a voluntary program to utilize their land and trade off, if you will. These are my terms, not theirs, but environmental credits for land -- acre -- acreage credits of-- of the use of the lands. So that's looking to be a fairly innovative approach and -- and is very interesting to -- to see as that -- that develops out. Their schedule is going to be behind the rural fringe committee, and we haven't had -- we haven't even talked about scheduling anything of that information for the EAC yet. But just to keep you abreast of-- of where that -- that -- that committee is. As Allie had mentioned, Mike Doover (phonetic), I talked to Mike Doover to get a series of dates from him. He had a number of dates that he was open, and then I corresponded those dates with when this room would be available. And, of course, that -- that dropped down. So the question for the -- for the EAC is, he's not available for your next regular meeting. So if you wanted to have him within the next -- well, certainly through -- through December, you'd have to schedule a special meeting for the full EAC. I have the dates of when this room is available. That would be the November 21st, December 13th this room is available from 8 to 1. He's looking at maybe a two- hour type of presentation with questions. November of-- excuse me, December 14th this room is open all day, and then December 21st it would be open all day. So if we wanted to have it in this room-- and he does have a Powerpoint presentation -- he could hook it in. The other advantage of this room is that we could then have the ability for it to be publicized on Channel 54. He's -- he's available for one, two, three, four, five, six, about a half a dozen other dates that would not be -- not fit this room schedule either. So if you -- if you want to try to get it in this room, those of you the dates I just Page 94 November 7, 2001 mentioned, if you have enough that you want to go to another room some other dates, then we can arrange that as well. MS. SANTORO: Maybe we should give him-- the reason that we talked about having him come, he's -- correct me, because sometimes I get the offices -- the national Audubon hydrology expert, and when we were looking at some of the recommendations, there are already some regulations as far as draw-down, what amount of draw- down is allowed to wetlands with no respect to uplands. We question -- we question -- we wanted to come up with a really good ruling for Collier County and where he felt that he would -- could give expert testimony and give us some direction. MR. CARLSON: Yes. Mike Doover worked for Audubon for many, many, many years doing pioneering and wetlands research. He now is with the South Florida Water Management District in their Fort Myers service center. And I've seen his presentation. It's excellent, and whenever we do this, I would urge everyone to come. You will understand infinitely more about how wetlands are affected by draw-downs and how important manipulating surface and groundwater is, even very small changes can have in wetlands. It's -- it's an excellent presentation that I think everyone on this board should try to -- try to experience. MR. COE: Is he only available through November the 21st? MR. LORENZ: Well, he's available the 20th, 21st, and 30th, but this room is only available on the 21 st. MR. COE: Do we have to have it in this room? MR. LORENZ: Like I said, the advantage of having it in this room is that we could be publicized on Channel 54. If you don't want to have it in the room and have it publicized, then we can arrange another room someplace. MR. HILL: I suggest we tentatively schedule it the 21st. I think it would be advantageous to have -- Page 95 November 7, 2001 MR. COE: If it's scheduled early enough in the day, I can make it. MR. LORENZ: Okay. MR. COE: Like we schedule it like 8:30 in the morning, something like that, yeah, I don't have any problem with that. I don't know how the other members feel about that. The earlier the better. Anything after 5 a.m. is fine for me. MR. HILL: Nine to eleven would be too late, Mickie? MR. COE: Well, I mean, the earlier the better. MR. CARLSON: Aren't you retired? MR. COE: I'm retired. I did it, for now. You never know, I may do something else. I'm thinking maybe developing Rookery Bay or something, turning it into a parking lot. MR. HILL: I suggest 9 to 11 on the 21st, if that's agreeable time-wise. CHAIRMAN SANSBURY: Sounds good. MR. LORENZ: Okay. Well, I'll get back -- I'll get back with Mike and get back with -- reserve the room right away and let me -- let me sugg -- let me -- can anybody make the December 13th because that's when -- that would be the next available date in case something has happened since then? MR. COE: Yeah. I can make it. CHAIRMAN SANSBURY: That's a Thursday? MR. LORENZ: That's a fall-back. Okay. CHAIRMAN SANSBURY: MR. LORENZ: Very good. CHAIRMAN SANSBURY: Okay. Thank you. That's it? MR. LORENZ: That's all I have. CHAIRMAN SANSBURY: Anything else, Barbara? MS. BURGESON: Nothing else. CHAIRMAN SANSBURY: Anybody else from the public Page 96 November 7, 2001 would like to address council? (No response.) CHAIRMAN SANSBURY: Let's go home. We're adjourned. There being no further business for the good of the County, the meeting was adjourned by order of the Chair at 12:33 p.m. ENVIRONMENTAL ADVISORY COMMITTEE THOMAS W. SANSBURY, CHAIRMAN TRANSCRIPT PREPARED ON BEHALF OF DONOVAN COURT REPORTING, INC., BY BARBARA A. DONOVAN, RMR, CRR Page 97 FORM 8B MEMORANDUM OF VOTING CONFLICT FOR COUNTY: MUNICIPAL, AND OTHER LOCAL PUBLIC OFFICERS LAST NAMEmFIRST NAME--MIDDLE NAME NAME OF BOARD, COUNCIL COMMISSION, AUTHORITY. OR COMM~ i i~- .. - - THE BOARD, COUNCIL COMMISSION, AUTHORITY OR COMMITTEE ON MAILING ADORE~S DATE ON WHICH VOTE OCCURREI~' WHICH I SERVE tS A UNIT OF: o cITY '~oUNTY O OTHER LOCAL AGENCY NAM,,~CF POETICAL SUBDIVISIO.,J~: MY POSITION IS; l-i ELECTIVE ~f~*PPoINTIVE WHO MUST FILE FORM 8B This form is for use by any person serving at the county, city, or other local level of government on an appointed or elected board, council, commission, authority, or committee. It applies equally to members of advisory and non-advisory bodies who are presented with a voting conflict of interest under Section 112.3143, Florida Statutes. Your responsibilities under the law when faced with voting on a measure in which you have a conflict of interest will vary greatly depending on whether you hold an elective or appointive position. For this reason, please pay close attention to the instructions on this form before completing the reverse side and filing the form. INSTRUCTIONS FOR COMPLIANCE WITH SECTION 112.31431 FLORIDA STATUTES A person holding elective or appointive county, municipal, or other local public office MUST ABSTAIN from voting on a measure which inures to his or her special private gain or loss. Each elected or appointed local officer also is prohibited from knowingly voting on a mea- sure which inures to the special gain or loss of a principal (other than a government agency) by whom he or she is retained (including the parent organization or subsidiary of a corporate principal by which he or she is retained); to the special private gain or loss of a relative; or to the special private gain or loss of a business associate. Commissioners of community redevelopment agencies under Sec. 163.356 or 163.357, F.S., and officers of independent special t;~x districts elected on a one-acre, one-vote basis are not prohibited from voting in that capacity. For purposes of this law, a ~relative" includes only the officer's father, mother, son, daughter, husband, wile, br(3ther, sister, father-in-law, mother-in-law, son-in-law, and daughter-in-law. A "business associate" means any person or entity engaged in or carrying on a business enterprise with the officer as a partner, joint venturer, coowner of property, or corporate shareholder (where the shares of the corporation are not listed on any national or regional stock exchange). ELECTED OFFICERS: In addition to abstaining from voting in the situations described above, you must disclose the conflict: PRIOR TO THE VOTE BEING TAKEN by publicly stating to the assembly the nature of your interest in the measure on which you are abstaining from voting; and WITHIN 15 DAYS AFTER THE VOTE OCCURS by completing and filing this form with the person responsible for recording the min- utes of the meeting, who should incorporate the form in the minutes. APPOINTED OFFICERS: Although you must abstain from voting in the situations described above, you otherwise may participate in these matters. However, you must disclose the nature of the conflict before making any attempt to influence the decision, whether orally or in writing and whether made by you or at your direction. IF YOU INTEND TO MAKE ANY A'I-I'EMPT TO INFLUENCE THE DECISION PRIOR TO THE MEETING AT WHICH THE VOTE WILL BE TAKEN: · You must complete and file this form (before making any attempt to influence the decision) with the person responsible for recording the minutes of the meeting, who will incorporate the form in the minutes. (Continued on other side) CE FORM 8B - REV. 1198 PAGE 1 APPOINTED OFFICERS (continued) · A copy of the form must be provided immediately to the other members of the agency. · The form must be read publicly at the next meeting after the form is filed. IF YOU MAKE NO ATTEMPT TO INFLUENCE THE DECISION EXCEPT BY DISCUSSION AT THE MEETING: · You must disclose orally the nature of your conflict in the measure before participating. · You must complete the form and file it within 15 days after the vote occurs with the person responsible for recording the minutes of the meeting, who must incorporate the form in the minutes. A copy of the form must be provided immediately to the other members of the agency, and the form must be read publicty at the next meeting after the form is filed. DISCLOSURE OF LOCAL OFFICER'S INTEREST hereby disctose that on/A J__ ~_p ~ (a) A measure came or will come before my agency which (check one) inured to my special private gain or loss; inured to the special gain or loss of my business associate, inured to the special gain or loss of my relative, inured to the special gain or loss of whom I am retained; or inured to the special gain or loss of is the parent organization or subsidia~ of a principal which has retained me. (b) The measure before my agency and the nature of my conflicting interest in the measure is as follows: by which Date Filed ' ~,~ature NOTICE: UNDER PROVISIONS OF FLORIDA STATUTES §112.317, A FAILURE TO MAKE ANY REQUIRED DISCLOSURE CONSTITUTES GROUNDS FOR AND MAY BE PUNISHED BY ONE OR MORE OF THE FOLLOWING: IMPEACHMENT; REMOVAL OR SUSPENSION FROM OFFICE OR EMPLOYMENT, DEMOTION, REDUCTION IN SALARY, REPRIMAND, OR A CIVIL PENALTY NOT TO EXCEED $10,000. CE FORM 8B - REV. 1/98 PAGE 2