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CCPC Minutes 11/15/2001 RNovember 15,2001 TRANSCRIPT OF THE MEETING OF THE COLLIER COUNTY PLANNING COMMISSION Naples, Florida, November 15,2001 LET IT BE REMEMBERED, that the Collier County Planning Commission, in and for the County of Collier, having conducted business herein, met on this date at 8:31 a.m. In REGULAR SESSION in Building "F" of the Government Complex, East Naples, Florida, with the following members present: CHAIRMAN: Joyceanna J. Rautio Russell A. Budd Kenneth L. Abernathy Paul Midney Lindy Adelstein Lora Jean Young David J. Wolfley Dwight Richardson Mark P. Strain ALSO PRESENT: Marjorie M. Student, Asst. County Attorney Susan Murray, Chief Planner, Planning Services Page 1 AGENDA COLLIER COUNTY PLANNING COMMISSION WILL MEET AT 8:30 A.M., THURSDAY, NOVEMBER 15, 2001, IN THE BOARD OF COUNTY COMMISSIONERS MEETING ROOM, ADMINISTRATION BUILDING, COUNTY GOVERNMENT CENTER, 3301 TAMIAMI TRAIL EAST, NAPLES, FLORIDA: NOTE: INDIVIDUAL SPEAKERS WILL BE LIMITED TO 5 MINUTES ON ANY ITEM. INDIVIDUALS SELECTED TO SPEAK ON BEHALF OF AN ORGANIZATION OR GROUP ARE ENCOURAGED AND MAY BE ALLOTTED 10 MINUTES TO SPEAK ON AN ITEM IF SO RECOGNIZED BY THE CHAIRMAN. PERSONS WISHING TO HAVE WRITTEN OR GRAPHIC MATERIALS INCLUDED IN THE CCPC AGENDA PACKETS MUST SUBMIT SAID MATERIAL A MINIMUM OF 10 DAYS PRIOR TO THE RESPECTWE PUBLIC HEARING. IN ANY CASE, WRITTEN MATERIALS INTENDED TO BE CONSIDERED BY THE CCPC SHALL BE SUBMITTED TO THE APPROPRIATE COUNTY STAFF A MINIMUM OF SEVEN DAYS PRIOR TO THE PUBLIC HEARING. ALL MATERIAL USED IN PRESENTATIONS BEFORE THE CCPC WILL BECOME A PERMANENT PART OF THE RECORD AND WILL BE AVAILABLE FOR PRESENTATION TO THE BOARD OF COUNTY COMMISSIONERS IF APPLICABLE. ANY PERSON WHO DECIDES TO APPEAL A DECISION OF THE CCPC WILL NEED A RECORD OF THE PROCEEDINGS PERTAINING THERETO, AND THEREFORE MAY NEED TO ENSURE THAT A VERBATIM RECORD OF THE PROCEEDINGS IS MADE, WHICH RECORD INCLUDES THE TESTIMONY AND EVIDENCE UPON WHICH THE APPEAL IS TO BE BASED. 1. PLEDGE OF ALLEGIANCE 2. ROLL CALL BY CLERK 3. ADDENDA TO THE AGENDA 4. APPROVAL OF MINUTES - OCTOBER 18, 2001 5. PLANNING COMMISSION ABSENCES - None 6. BCC REPORT - RECAPS OF OCTOBER 22, 2001 7. CHAIRMAN'S REPORT 8. ADVERTISED PUBLIC HEARINGS go VA-2001-AR-1166, Carol E. Nelson, PLS, representing Montelair Fairway Estate Building Corporation, requesting an after-the-fact variance of 2.3 feet from the required 5 feet to 2.7 feet for property located on 797 Provincetown Drive, further described as Lot 29, Montclair Park North, in Section 5, Township 50 South, Range 26 East, Collier County, Florida. (Coordinator: Fred Reischl) o 10. 11. 12. 13. OLD BUSINESS NEW BUSINESS - PLANNING WORKSHOP PUBLIC COMMENT ITEM DISCUSSION OF ADDENDA ADJOURN i 1-01 .-01/CCPC AGENDA/SM/lo November 15,2001 CHAIRMAN RAUTIO: Good morning, ladies and gentlemen. I'd like to call to order this meeting of the Collier County Planning Commission for Thursday, November 15th, 2001. Would you all please stand and join me in pledging allegiance to our flag. (The pledge of allegiance was recited in unison.) CHAIRMAN RAUTIO: Okay. Mr. Midney. COMMISSIONER MIDNEY: Good morning. CHAIRMAN RAUTIO: Good morning. Mr. Adelstein. COMMISSIONER ADELSTEIN: Good morning. CHAIRMAN RAUTIO: Mr. Budd. COMMISSIONER BUDD: Here. CHAIRMAN RAUTIO: Mr. Abernathy. COMMISSIONER ABERNATHY: Here. CHAIRMAN RAUTIO: Ms. Rautio, present. Mrs. Young. COMMISSIONER YOUNG: Here. CHAIRMAN RAUTIO: Mr. Richardson. COMMISSIONER RICHARDSON: Yes. CHAIRMAN RAUTIO: Mr. Wolfley. COMMISSIONER WOLFLEY: Present. CHAIRMAN RAUTIO: Mr. Strain. COMMISSIONER STRAIN: Here. CHAIRMAN RAUTIO: this morning. Welcome back. MS. MURRAY: No. CHAIRMAN RAUTIO: We have a quorum and a full board Is there an addenda to the agenda? No addenda. Approval of the minutes for October 18th, do we have any corrections or revisions? Do we have a motion for approval? COMMISSIONER YOUNG: I move that the minutes be accepted. COMMISSIONER WOLFLEY: Second. Page 2 November 15,2001 COMMISSIONER ADELSTEIN: I second the motion. CHAIRMAN RAUTIO: We have a motion by Mrs. Young, a second by Mr. Wolfley to approve the minutes of October 18th. All those in favor say aye. COMMISSIONER MIDNEY: Aye. COMMISSIONER ADELSTEIN: Aye. COMMISSIONER BUDD: Aye. COMMISSIONER ABERNATHY: Aye. CHAIRMAN RAUTIO: Aye. COMMISSIONER YOUNG: Aye. COMMISSIONER RICHARDSON: Aye. COMMISSIONER WOLFLEY: Aye. CHAIRMAN RAUTIO: Those opposed, same sign. COMMISSIONER STRAIN: Abstain. CHAIRMAN RAUTIO: Motion carries. COMMISSIONER STRAIN: I'll abstain. CHAIRMAN RAUTIO: We had one abstention. I'm sorry. Planning Commission absences, we'll start at my right. Anyone? COMMISSIONER BUDD: I will not be at the November 28th, 5:05 p.m. Meeting. CHAIRMAN RAUTIO: Okay. Anyone else have any conflicts for either a regular meeting or a Land Development Code meeting? COMMISSIONER BUDD: And also I think the first meeting in December, December 6th -- is that our first one? CHAIRMAN RAUTIO: Yes. COMMISSIONER BUDD: I won't be here. CHAIRMAN RAUTIO: All right. Item No. 6 on the agenda is the recap for October 22nd, the Board of County Commissioners. Do we have any highlights or questions? MS. MURRAY: I don't have anything for these recaps. I did just want to give you a little update as a result of last Tuesday's board Page 3 November 15,2001 meeting, which was just a couple days ago. John Dunnuck informed me -- you might be interested in this -- that the board supported funding for a hearing examiner-- for a full-time hearing examiner. And I know we had discussed previously with the board kind of a part-time position and that they would look at minor land development applications such as variances and conditional uses with the goal later on to encompass rezonings and all that. Well, I guess the board was convinced that a full-time hearing examiner would probably be most beneficial at this time, and so they supported funding for that. So the next step would be, obviously, to work out the details of the position description and advertising for the position and amending our Land Development Code to accommodate that. So that'll be coming down the road in the near future, we hope, just to let you know. COMMISSIONER ABERNATHY: Susan, I noticed in the paper that somebody was quoted as saying the hearing examiner should come from outside Collier County to avoid any appearances of ties to the local -- any power blocks and whatever. Is that the position of the commission, or was that just one commissioner's -- MS. MURRAY: I don't think I could answer that, Commissioner, because I wasn't at the meeting. I'm just kind of relaying information that John passed on to me, so I wasn't -- I didn't have the benefit of the perspective of the -- COMMISSIONER ABERNATHY: I think that's an excellent idea, but I just wondered if that was part of the precept. COMMISSIONER BUDD: Susan, would that eliminate Planning Commission, or just put us in the position of looking at Land Development Code changes and the more code review-type process? MS. MURRAY: Right. The overall policy-type of discussions and meetings and your Land Development Code amendments as well. Page 4 November 15,2001 And, of course, that will necessitate some amendments to the Land Development Code in terms of your powers and duties as well. So I would anticipate that coming up within the next, I don't know, six months or so. COMMISSIONER BUDD: Do you have -- I know nothing's set firmly, but do you have any anticipated time frame that this might possibly arrange? A couple months? MS. MURRAY: I don't at this time. COMMISSIONER BUDD: A couple years? MS. MURRAY: I'll check with John. I'll check with John. And, you know, what I'll do is I'll just try to keep you updated as things move along and the progress and the steps that they're making. COMMISSIONER RICHARDSON: One of the comments that I heard at -- you know, from the TV of the meeting was that they had talked about maybe having a citizens group participate in the selection process or at least be consulted. I would like to think that perhaps some of the older, wiser heads from the Planning Commission might be a resource that should be made available to that process, because it is going to impact our job. And certainly I think one of our older, wiser commissioners might want to step up to that plate. CHAIRMAN RAUTIO: How about the oldest, wisest one? That would be Mr. Budd. COMMISSIONER RICHARDSON: I would like to see us represented in that process, however. MS. MURRAY: If I'm aware of any opportunities that come COMMISSIONER ABERNATHY: He's not a citizen -- MS. MURRAY: -- depending on what they decide, I'll let you know. CHAIRMAN RAUTIO: Now, gentlemen, we have to get all our Page 5 November 15,2001 comments on the record, even the humor. Okay. Other questions about the Board of County Commissioners report? All right. There is -- COMMISSIONER RICHARDSON: One last question. Last night you brought up tangentially the fact that the county's being sued. Is that an issue that can be discussed with the -- what are we being sued for? Are we involved in it? MS. STUDENT: No. And when we're in litigation, we generally don't like to really -- you know, it's protected under the Sunshine Law and so forth. So I guess Mike Pettit in our office, our litigation attorney, is handling this. But the developer of the Vanderbilt Villas, the second phase, is suing the county because they allege -- there's some issues about language in the Land Development Code and what it means and how it impacted the site development plan that was submitted. COMMISSIONER RICHARDSON: As I recall, the -- the commission did not take final action on that. MS. STUDENT: No. They withdrew their variance. They withdrew that. Those are things that will be handled and dealt with in the litigation. COMMISSIONER RICHARDSON: So we shouldn't ask. Okay. Thank you. CHAIRMAN RAUTIO: Okay. Moving right along. COMMISSIONER ABERNATHY: Susan, you can go to court even if you haven't exhausted your administrative remedies? MS. STUDENT: As I -- as I stated, all of those issues will be evaluated as part of the county's defense of that case. CHAIRMAN RAUTIO: Now are we ready to go to Item No. 8? Okay. Advertised public hearings, the first item would be VA-2001- AR- 1166, a variance for -- an after-the-fact variance. All those wishing to give testimony today please stand, raise your right hand, Page 6 November 15,2001 and be sworn in by the court reporter. (The speakers were sworn.) MR. REISCHL: Good morning, Commissioners. Fred Reischl, planning services. This is a request for an after-the-fact variance for a home in the Glen Eagle subdivision. The house was constructed and a certificate of occupancy was issued based on a -- based on a survey. This is a spot survey. And, as you see, the survey shows over 5 feet along the eastern property line. Green being the house, blue being the property line. And it shows over 5 feet -- I apologize this is marked up. I got this from the building department. It's not a real clean copy. But you can see the 5-foot distance at that location, and then it continues up that eastern side. Therefore, the house received a CO and was resurveyed. And here you can see that the property line and the house diverge by 2.7 feet; therefore, they're asking for a 2.3- foot after-the-fact variance from the 5 feet that's required. The -- I spoke to the surveyor last night and afternoon, and she said that it was a surveyor's error. Her crew made a mistake. There was no -- nothing more than that that she said. It was a mistake that the crew made, and then they corrected it later with the -- when they resurveyed the property. CHAIRMAN RAUTIO: Any questions of staff?. MR. REISCHL: Well, and you also saw the letter of objection from the neighbor to the east. And this was supplied by the -- Mr. Mudd, the neighbor to the east, and you can see the approximate locations of the houses. I don't know if-- there are no distances between the houses. But you can see that if there were a lot line adjustment done, that both houses would meet the required 5-foot side yard. CHAIRMAN RAUTIO: Okay. Mr. Strain, you have a question? COMMISSIONER STRAIN: Yes. I had asked Fred to bring Page 7 November 15,2001 the original survey with him today so I could compare it to the survey that we've been presented with. And I found that the surveyor, while they claim they've made an error, they didn't make just one error. The original survey has errors in all four directions. I'm wondering how that could possibly have happened. For example, on the left side of the page, there's a note that it says it's 31.4 on the new survey, the one we've got. The original survey said it was 28.9. On the front the setback on the one we have says it's 32.3. On .the survey on file it says it's 31.6. On the left side, where it says 4.7 on ours, it was 5.2 on the original. And on the rear where you normally would show four comers on every survey you submit to the county, it was mysteriously not put on the survey that was submitted to the county. So I'm not inclined to think this is just a -- one surveyor's error. There seems to be multiple errors, and the omission of the questionable, the most extreme error in the back of the original survey concerns me. I'm just wondering if you had any input on that. MR. REISCHL: Not from my conversation with Ms. Nelson. And Mr. Strain also asked me over the phone whether there was a problem with fire review. I spoke to the fire code official, and he said that for single-family houses there's no minimum separation, that they -- if they're closer than 10 feet, they consider it one structure and they plan their fire protection accordingly. So there was no -- no problem with the fire code official. COMMISSIONER STRAIN: I notice you've been asking us to address the rear north setback, the 2.7. That seems to be the focus. But the front at 4.7 is out as well. That, I know, is only a few inches, and generally those can be handled administratively, or is that one here for discussion today too -- MR. REISCHL: Right. We just-- COMMISSIONER STRAIN: -- for the whole-- Page 8 November 15,2001 MR. REISCHL: I'm sorry. COMMISSIONER STRAIN: The whole side of the house is actually -- it's not just cutting off a pool cage if that was one solution. It's the whole side of the house now is over the property -- is into the setback. MR. REISCHL: That's correct. What we mentioned is the closest encroachment. That's why we mentioned the 2.7. CHAIRMAN RAUTIO: Commissioner Young. COMMISSIONER YOUNG: In Section D you say there might be an alternative remedy, a lot line adjustment with the neighbor to the east. Has that been pursued, and what would it entail? MR. REISCHL: I haven't spoken to Mr. Mudd about that, but I spoke to Ms. Nelson. She said that was the first thing that she pursued and didn't get anywhere with -- I'm just quoting her. I don't know how far or how diligently she pursued it, but she said that was the first thing she did. And then when that didn't work, she went for the variance. COMMISSIONER ADELSTEIN: Has anybody checked to see if the surveyor has errors and omissions on their policies? MR. REISCHL: Nothing that -- we don't normally carry records of that, but in the last few years for the Planning Commission's request, we have been keeping errors of-- surveyors' errors. And she did not have any over the last few years, but we don't have her career, basically. COMMISSIONER RICHARDSON: COMMISSIONER ABERNATHY: though. COMMISSIONER ADELSTEIN: but -- CHAIRMAN RAUTIO: One at a time. restate your question, Mr. Adelstein? Fred, I understand from-- That wasn't your question, That wasn't the question Would you like to Page 9 November 15,2001 COMMISSIONER ADELSTEIN: Yeah. The question I asked is does the surveyor have errors and omission insurance? MR. REISCHL: Oh, I'm sorry. No, I didn't ask that. COMMISSIONER RICHARDSON: That would be a cost of doing business, I guess, one way or the other. Just make sure I understand. You're -- this is a request for a variance, but you're recommending denial. MR. REISCHL: Yes. COMMISSIONER RICHARDSON: So absent any other reaction by the Planning Commission except following staff recommendation, they'd have to tear the house down? MR. REISCHL: Or pursue a lot line adjustment. Those would be the two alternative remedies. CHAIRMAN RAUTIO: Any other questions of staff?. Do we -- the petitioner would like to present. You have to come to the microphone and state your name for the record, please. And if it's difficult, please spell it for the court reporter. MR. BARON: Good morning. My name is Avi Baron. We built this house according to the survey that was given to us. And the facts were given to you. I don't know if you have any questions I can answer, but I don't think I can say anything new at this point. CHAIRMAN RAUTIO: Commissioner Young. COMMISSIONER YOUNG: If you do not receive the variance, how major are the adjustments that you would have to make to your house as it presently stands? MR. BARON: Well, if-- according to the layout, really you can't do anything. You'll have to tear the house down, I guess. I mean, it's the whole side of the house, which include bedroom, bathrooms, and other rooms is on the other side of the line, and you can't just trim the house and fit it within the line. It's -- I don't think it's possible, and I don't think it's possible to push the house either. Page 10 November 15,2001 So -- and the question about insurance, I don't think that the survey have insurance. We checked into it, and I don't think that it's even a requirement by the county for survey to have that kind of insurance. So it's kind of scary. CHAIRMAN RAUTIO: I'm not sure that the county's the licensing agent for a surveyor in the State of Florida. Mr. Adelstein? COMMISSIONER ADELSTEIN: It doesn't matter whether it was a responsibility or requirement. Most companies that deal this way carry errors and omissions insurance. For example, I certainly would check into that before I signed a contract with somebody to do a job like this. Now, you're saying you checked, and they do not have insurance? Are you sure? MR. BARON: I checked. And from what I know, it's not a requirement, and she does not have it. COMMISSIONER ADELSTEIN: Okay. COMMISSIONER RICHARDSON: Now, you're -- you're the contractor on this job, then? Is that -- MR. BARON: Yes. COMMISSIONER RICHARDSON: And so this is a -- she came in and performed a service for you, then, to -- as far as the survey is concerned? MR. BARON: Yeah. I've known her for several years, and she's done a very good job and-- COMMISSIONER RICHARDSON: I wasn't really -- MR. BARON: -- now she's made a mistake. We hired her, and she's done a lot of work for us. And unfortunately -- COMMISSIONER RICHARDSON: So you -- you bear the full responsibility, then, in this case because of being the contractor? MR. BARON: I think it's a legal question, but I assume so. I don't know. CHAIRMAN RAUTIO: What type of contractor's license do Page 11 November 15,2001 you have, what level? MR. BARON: General contractor. CHAIRMAN RAUTIO: General. Thank you. Do we have any other questions of Mr. Baron? COMMISSIONER ABERNATHY: Yeah. I'm not sure it's relevant, but what are the status of your negotiations with the neighbor over lot line adjustment? Has that been pursued? MR. BARON: Yes. Carol Nelson had tried to speak with him several time. I think she even met with Mr. Mudd once or twice. And from what I understand, the answer was no. COMMISSIONER ABERNATHY: It wasn't a matter of price; it was just the matter of the concept was no? MR. BARON: I don't think it was price negotiated to that point, just the concept. I could be wrong, though. I wasn't in those meetings, but that's what I received as an answer. COMMISSIONER ABERNATHY: The bottom line was no -- MR. BARON: Right. COMMISSIONER ABERNATHY: -- for one reason or another. MR. BARON: Right. CHAIRMAN RAUTIO: It would appear that Mr. Mudd is here to speak since he did stand and was sworn in. So do we have any further questions of Mr. Baron at the moment? Thank you. Next registered speaker. MS. MURRAY: Jim Mudd. MR. MUDD: Hi. Madam Chair, Commissioners, I'm Jim Mudd, deputy county manager, but in this instance I'm on leave because I signed that form before I came down here. And I will also tell you right now I'm a private citizen. Yes, I'm the neighbor next door. The code violation was noticed when my surveyor came in before I purchased the home, three days before we -- we went to final Page 12 November 15,2001 and we signed for my house. When those stakes were laid out, I noticed that the -- the home next to me was awful close to the -- to the tune -- and I have a picture -- if you -- if you take a look at the stake -- and this is the back of the home in question. You can't go out the lanai door without walking into my property. So -- COMMISSIONER ADELSTEIN' That's close. MR. MUDD: Yeah, that's close. And that's in the back. The -- so being a county official, I talked to Tom Cook, and I said, "Tom, I'm no surveyor, but I know you've got to have some kind of setbacks here." And I will tell you I notice houses are awful close in Glen Eagle, but I don't think they're this close. So Tom came out with his -- with somebody that had some surveying knowledge and took a look and said, "Yep, we got a problem. Not only do you have a problem in the back, you have a problem along the entire line." And if you take a look at that line out to the front, you'll see that the concrete to the air conditioner touches on the property line. What I'll also say is their surveyor did call me for a property line adjustment. Based on my attorney -- attorney's guidance, he basically said, "Do not deal with the surveyor. You don't even know if this -- first of all, the surveyor has -- doesn't own the home next to you nor the property. We don't even know if she represents the owner." And then I had a conversation with the owner, Mr. Baron, and the negotiation went, "I want you to give me the land," and I said, "No." It wasn't a price. It was "I want you to give me the land." And I said no at that particular juncture. COMMISSIONER ADELSTEIN: Would a price be acceptable -- would there be a sale if a price met your demand? MR. MUDD: Yes, sir. And I think I say that in the bottom of my letter based on the objection. COMMISSIONER RICHARDSON: I don't have a copy of that letter. Page 13 November 15,2001 COMMISSIONER ADELSTEIN: I don't have a copy of it either. CHAIRMAN RAUTIO: It's right on the back page of where the survey is -- or actually, no. It's about three from the end. MR. MUDD: I basically say at the bottom line, "Property" -- this was dated on the 14th of October. "Property could be purchased that would alleviate the need for seeking this variance. I have attached a sketch of the setback violation for your use," signed, Jim Mudd. CHAIRMAN RAUTIO: Any other questions of Mr. Mudd? Any further comment? Mr. Wolfley, before I close the public hearing. COMMISSIONER WOLFLEY: Mr. Mudd, how would -- you know, it's a disruptive -- well, the picture's gone. But you see it's close and inconvenient. Would money solve that? MR. MUDD: There's -- there's room between the property in order to do that. I would -- I would rather not have to fight with the neighbor for -- from now until whatever about, "Hey, you're on my property" or "You decided to put a stone path all the way around your back, and oh, by the way, you're on my property at this particular juncture." I'd rather not get into it. There is a distance -- does this mean it goes into evidence? We'll take a look. There's got to be another picture that'll give you a better idea. We can -- the closest to the homes is this area between the ledge of their lanai and the part of the pool, and there's some 10 1/2 foot there, so there's -- there's a way to get the property line in the right direction so that both homes are okay. And then if I ever decide to sell the home in the future, then the person that buys it from me won't have to deal with this issue. CHAIRMAN RAUTIO: Mr. Mudd, clarify for me. Is the lanai yours, or are the pillars yours? Which part is yours? Which house is Page 14 November 15, 2001 yours? MR. MUDD: The pool is mine. CHAIRMAN RAUTIO: The pool is yours. Okay. And you are willing to negotiate for the lot line change? MR. MUDD: Yes, ma'am. CHAIRMAN RAUTIO: That seems reasonable. Any other questions? Commissioner Strain. COMMISSIONER STRAIN: I really have a question that maybe Marjorie could answer for me. Originally in our packet the discussion was on an error in the survey for the setback. But in comparing this new survey to the old, the circumstances and the number of errors on every single comer of the house and the fact that this critical comer -- which I've never seen a surveyor that would miss a rear setback on a comer like that. The certification of the original survey says it was done to, you know, state standards and technical specifications. Is there anybody looking at other-- possible fraud or anything else that may have been involved in the way this was submitted originally? Because this is not even -- the survey we have now is so erroneous compared to the first, I can't imagine a surveyor making that many mistakes. MS. STUDENT: I think -- I don't know that I'm able to answer that question because I think that that may be something that the building department and Ed Perico's shop that -- I don't know what procedures they have in place for that. I do know in another life I worked for a land surveyor, and there's some state standards that they have about, you know, different matters. For example, on lot surveys they have a certain error of closure and things like that. And I think that generally they -- they should have errors and omissions insurance. But I think that other question could possibly best be answered by Mr. Perico's shop. I don't know of any process -- I don't even Page 15 November 15,2001 know that that's something that county officials are looking for. I think that professionals operate under a set of standards. And in so doing, that they have an onus on them to be truthful and act professionally. COMMISSIONER STRAIN: Thank you. CHAIRMAN RAUTIO: And if they don't, their professional licenses can be in jeopardy. COMMISSIONER STRAIN: That's kind of where I was coming from. There's a lot of errors here, and I'm just surprised at how many there are. CHAIRMAN RAUTIO: Do we have any further-- go ahead. MS. STUDENT: One other observation. And in other instances I know that sometimes the Planning Commission has recommended that the matter be taken up with the Contractor's Licensing Board, and they do have hearings and so forth on things of this nature that take place with people licensed in the county. COMMISSIONER STRAIN: Thank you. CHAIRMAN RAUTIO: Mr. Richardson. COMMISSIONER RICHARDSON: I'm struck with the notion that the problem is well identified, and it seems to be a communications issue between the two parties. And I'm wondering how our role can best facilitate a resolution to this. And perhaps what I'm hearing with the two positions that have been at least presented to us is that the only thing we can do is -- to move this thing along would be to follow staff recommendation. But that -- it just seems like the parties should be able to get together absent us dropping that kind of a hammer. I'm just puzzled as to why the parties haven't been able to talk about this. COMMISSIONER ABERNATHY: Well, if the owner wants to sell it, he's going to have to do something. I think that will impel -- COMMISSIONER RICHARDSON: Perhaps the contractor Page 16 November 15,2001 could come back up to the mike and we can hear an opportunity to resolve this. CHAIRMAN RAUTIO: Mr. Baron. MR. BARON: Yes. I would love to meet with Mr. Mudd and discuss it. Like I said before, it's probably just a miscommunication because we wanted to try to solve it. And if there's a price for it, and it's reasonable, we probably can figure it out and be done with it. So I'll give Mr. Mudd a call if you guys don't mind and Mr. Mudd doesn't mind, and we'll see if we can get together and solve this problem. But it wasn't my understanding until now that it's even possible. My question -- my answer was that he would not negotiate. So it's news to me and probably miscommunication, and I'll proceed that -- that way if it's possible and see if we can resolve the problem. COMMISSIONER ABERNATHY: I thought he said that he spoke directly to you. MR. BARON: No. COMMISSIONER ABERNATHY: Just to the surveyor. CHAIRMAN RAUTIO: One at a time. COMMISSIONER RICHARDSON: Madam Chair, in view of that, I would at least like to float the idea of continuing this until the parties have a chance to resolve this, and maybe it won't even come back. CHAIRMAN RAUTIO: Actually, I think that probably what we should do is vote on the staff recommendation to deny, and that will certainly encourage the parties to get together, because I don't really believe that it's just an error and it's just a matter of communication. There is something much bigger here that we don't really focus on at the moment. But, as Commissioner Strain pointed out, there are multiple errors in this issue. And right now we need to solve the problem before us on this particular variance, and I think we should go forward. Page 17 November 15,2001 COMMISSIONER ABERNATHY: Close the public hearing? CHAIRMAN RAUTIO: No further comments, questions? Close the public hearing. What's the pleasure of the board? COMMISSIONER STRAIN: I make a motion -- COMMISSIONER RICHARDSON: I have more faith in the -- in human nature than what you've described to me. COMMISSIONER STRAIN: Are you going to make a motion? COMMISSIONER RICHARDSON: Rather than -- before we get to the motion stage, before -- rather than getting rid of this by -- by denying it -- that means that the next step would be at the Board of County Commissioners -- I think at this level we should do as much as we can to resolve the issue rather than send it forward, but I'll hear a motion. CHAIRMAN RAUTIO: Okay. Ms. Murray has a comment. MS. MURRAY: Don't forget there's a time period between now and the hearing before the Board of County Commissioners where negotiations could take place. Also, the applicant would have the opportunity to request a continuance in front of the Board of County Commissioners if he thought he was making progress and just needed some more time. So you have a couple of options. You could vote to continue it, or you could take action, and it would be forwarded to the board with the applicant's opportunity to continue -- COMMISSIONER BUDD: Excuse me. In fact, wouldn't this be going to the Board of Zoning Appeals and not the Board of County Commissioners? MS. MURRAY: Yeah, I'm sorry, I misspoke. Board of Zoning Appeals. COMMISSIONER RICHARDSON: BCC acting as -- CHAIRMAN RAUTIO: The Board of Zoning Appeals. COMMISSIONER ABERNATHY: Well, this is the second Page 18 November 15,2001 time in two meetings that we have tried to take this position that we're going to be the mediator or arbitrator and people will come back to us and tell us how they've made out on things, and I don't think that's a function of the Planning Commission at all. We've got an issue here, and it just cries for an up or down vote, as far as I'm concerned. So I make a motion to forward this petition recommending denial. COMMISSIONER STRAIN: I'll second. CHAIRMAN RAUTIO: We have a motion by Mr. Abernathy, a second by Commissioner Strain for approval of the staff recommendation for denial of this petition. discussion? COMMISSIONER RICHARDSON: Do we have any further Just -- just a quick comment. I certainly go along with your viewpoint, Mr. Abernathy, in terms of perhaps pushing this to a resolution. I guess philosophically, though, I'm just puzzled by us not wanting to get involved in trying to resolve things and just pushing them upstairs. I'm not sure I quite understand or agree with that concept, but if you have a perception that the BCC -- that our -- Planning Commission should always just act on what's in front of us and not deal with trying to resolve things outside of that, then I understand your position. But is there any room for-- for a crack of-- COMMISSIONER ADELSTEIN: There -- CHAIRMAN RAUTIO: One at a time. COMMISSIONER ADELSTEIN: There was room. The builder had the opportunity. He sent a representative instead of doing it himself. This length of time when he was put in this position, if the surveyor couldn't get the job done, I think a reasonable businessperson would have tried to approach it himself. Under the circumstances, he hasn't done that. He hasn't given us any -- any Page 19 November 15,2001 show that he's actually tried to compromise. I don't think there's any question we ought to vote it. CHAIRMAN RAUTIO: In a situation this significant with as many errors, had it been me as a reasonable person, I would have gone to an attorney immediately if I were Mr. Baron, but I guess he hasn't chosen to do that. COMMISSIONER ABERNATHY: Mr. -- CHAIRMAN RAUTIO: So -- go ahead, Mr. Abernathy. COMMISSIONER ABERNATHY: Let me answer you. My problem with your approach is that what if Mr. Baron offers Mr. Mudd $5,000 and Mr. Mudd says that ain't enough so they come back in here in two weeks? Are we the great -- the Grand Pooh Bahs of this? Are we going to turn down the variance -- or grant the variance because we think Mr. Mudd is being unreasonable in not taking the 5,000? I mean, where does it all end? MS. MURRAY: That's not in your criteria, by the way. COMMISSIONER ABERNATHY: So that's my problem with this trying to be a mediator. We're not -- not -- that's not part of our charter. COMMISSIONER ADELSTEIN: By the way, I am -- CHAIRMAN RAUTIO: Mr. Adelstein, do you have a comment on the record? COMMISSIONER ADELSTEIN: No, thank you. CHAIRMAN RAUTIO: Okay. Is there any further discussion? Call the -- oops, excuse me. Commissioner Midney. COMMISSIONER MIDNEY: I'm sorry. I'm just a little bit uncomfortable, too, because supposing that Mr. Mudd is unreasonable and he, you know, wants an exorbitant amount for the - - then there's not much -- where as if they sort of negotiated between themselves and then come back, then we could turn it down if it seems as though one side or the other is being, you know, in transit. Page 20 November 15,2001 COMMISSIONER ABERNATHY: How do we judge that? COMMISSIONER STRAIN: We're not here for those kind of judgments, though, I don't believe. We're here for code -- addressing this as it applies to the code. And I think making judgment on whether or not someone offers enough money or not enough money is not our jurisdiction, and we should not be looking at it that way. COMMISSIONER ABERNATHY: That's right. CHAIRMAN RAUTIO: I heartily agree with that concept. It's not part of our criteria. COMMISSIONER ABERNATHY: Call the question. CHAIRMAN RAUTIO: I call the question. All those in favor say aye. (Unanimous response.) CHAIRMAN RAUTIO: Those opposed, same sign. (No response.) CHAIRMAN RAUTIO: Apparently it was unanimous, hearing no-- COMMISSIONER RICHARDSON: I was persuaded by the cogency of Mr. Abernathy's arguments. CHAIRMAN RAUTIO: The cogency of the arguments. Thank yOU. Okay. Moving right along, that was the last of our public hearings for today. The next item on the agenda is No. 9, old business. Any old business that commissioners would like to bring up? Hearing no old business, Item No. 10, new business. This is our planning workshop, long awaited. MS. MURRAY: And Fred-- Fred Reischl has prepared the presentation for you. And after Fred's presentation if you have questions, and then if you want to have an open discussion about other issues in terms of staff support and the function of the board in Page 21 November 15, 2001 terms of how we relate to each other and the Board of County Commissioners, we could talk about that. If you wanted to talk about anything else that's legal, I suppose we could talk about that as well. COMMISSIONER ABERNATHY: I thought we were going to have a presentation by the attorney or something. MS. STUDENT: Yes. That-- that presentation will be December the 6th. MR. REISCHL: Fred Reischl, once again. And my presentation, as Mr. Adelstein pointed out this morning, will be brief. It's basically just to touch on certain points. And at the end -- if you want to make notes during the presentation and then go back to certain questions, that's how I thought we would handle this. MS. MURRAY: And I guess let me just preface -- Fred, excuse me for interrupting -- that it was our understanding that this was to be a presentation geared more towards the newer members, although I know Ms. Young has been on the board for quite some time waiting for her presentation, but this was to be geared more towards the newer members to give the newer members an idea of what their role was and the relationship of this board with us and the Board of County Commissioners. COMMISSIONER YOUNG: I thank you. It's been a year since I asked for this. MR. REISCHL: The authority behind the Planning Commission is basically the Collier County Growth Management Plan, which is state mandated and state approved, and the Land Development Code, which you're familiar with, especially after last night. The Growth Management Plan contains goals, objectives, and policies; and the Land Development Code contains specifics that are consistent with those goals, objectives, and policies in the Growth Management Plan, so one is more general, the Growth Management Plan; and the Land Development Code is more specific with more of the bricks and Page 22 November 15,2001 mortar of how the Planning Commission does their job. MS. MURRAY: Let me just interject real quick and just restate what Fred said, that the Land Development Code primarily functions to implement the goals, objectives, and policies of the Growth Management Plan. Your Growth Management Plan is your overall long-term vision of growth and development in the county. Your Land Development Code, implemented by the current planning staff, is your day to day -- the regulations of how you construct the bricks and mortar on the ground based on the goals, objectives, and policies of the Growth Management Plan that says we will have commercial areas here. We will have residential areas here. That's very basic, but I just wanted to interject that. COMMISSIONER RICHARDSON: Susan, perhaps -- I know you didn't want it this way, but since that's come up, the commission here, when do we get a chance to look at issues that come up as a result of the Growth Management Plan? Do they come through us, or is that set somewhere else, and we just implement the Land Development Code? MR. REISCHL: No, you do. COMMISSIONER RICHARDSON: When is that cycle? MR. REISCHL: April, I believe, is when the board looks at it, so you would be earlier in the year. MS. MURRAY: Well, your -- and your -- you just had that last meeting, or wasn't that part of our -- was that part of our nine-hour meeting where the -- I've lost track. CHAIRMAN RAUTIO: The Growth Management Plan. MS. MURRAY: Your comp plan amendments were looked at? That is primarily where you get involved is looking at Comprehensive Plan amendments that are brought, I believe, two cycles a year, Marjorie; is that correct? MS. STUDENT: Yes. There are two cycles. We generally Page 23 November 15,2001 only do one. And I might add under the state law, the Planning Commission is the local planning agency, and they have the authority to make recommendations for staff to look at various aspects of the comp plan; and if things need to be adjusted in the comp plan, have the authority to direct staff to bring back information to them in that regard. CHAIRMAN RAUTIO: Mr. Abernathy. COMMISSIONER ABERNATHY: Somebody ought to state the obvious. The comp plan and the Growth Management Plan are one and the same. MS. STUDENT: Yes. The Comprehensive Plan is the generic term. Collier County has chosen to call our plan the Collier County Growth Management Plan or GMP. And just as a further aside, the plan is implemented by the Land Development Code, as Susan and Fred stated. It's also implemented-- because some of the policies provide for activities that the county is to perform or programs set up, and it's further implemented by programs. And then the Land Development Code and the comp plan both are further implemented by rezonings and other types of development orders that you routinely hear. So it's -- it's implemented in a number of ways. And you can look at the comp plan as sort of a constitution, which is broad and general, and then the laws that implement it is the more specifics of it. I think that maybe helps put it in a framework for you. MR. REISCHL: And, as Marjorie had mentioned, also on December 6th, you'll have a presentation by the county attorney's office, and that will go into more detail on disclosure and topics of the Sunshine Law. COMMISSIONER WOLFLEY: What time will that be? MR. REISCHL: After the regular public hearings, I believe, under new business, I think. The same -- similar to this. CHAIRMAN RAUTIO: And hopefully a very light agenda Page 24 November 15,2001 from staff. MS. MURRAY: Yes. MR. REISCHL: The petitions that you look at basically fall into two categories, one where you are the final deciding body and the other where you make a recommendation. The two where you have the final authority would be boat dock extensions and insubstantial changes to PUDs. The ones where you make a recommendation to the Board of Zoning Appeals or the Board of County Commissioners -- and, again, as Mr. Abernathy said, to state the obvious, they are the same five commissioners. The Board of County Commissioners sits as the Board of Zoning Appeals to hear certain cases, and they sit as the Board of County Commissioners to hear other cases. So they are the same five elected people. And that would be variances, conditional uses, and rezones; rezones including both straight rezones, for example ag to residential or rezones to PUD, which could be both ag to PUD or PUD to PUD by changing the -- the inner workings of that planned unit development. COMMISSIONER RICHARDSON: Fred, this will obviously change, then, with the hearing examiner coming along? MR. REISCHL: Yes. And we decided to give you this presentation -- COMMISSIONER RICHARDSON: That's fine. MR. REISCHL: -- since we don't know when that's going to happen. COMMISSIONER RICHARDSON: I'm just trying to focus on where the changes might occur. MS. STUDENT: I just make an observation. I think maybe that may free the Planning Commission up to do more of the things that are contemplated by the planning acts. You may, perhaps, review different elements of the comp plan and make recommendations and also review different portions of the land code and make Page 25 November 15,2001 recommendations and have an enlarged ability there. MR. REISCHL: And that is the other -- one of the other main functions would be looking at the regulations, the Growth Management Plan and the Land Development Code. For Growth Management Plan amendments, the Planning Commission makes a recommendation to the Board of County Commissioners, and then the Board of County Commissioners forwards that to state. For the Land Development Code, you would make a recommendation to the board, and the board has final decision-making authority on that. So if there is a future hearing examiner taking over the land use petitions, this would be more of the scope of the Planning Commission. It would be looking at the Growth Management Plan and the Land Development Code amendments. COMMISSIONER RICHARDSON: Fred, on that point one of the problems I see coming down the pike with this change is the availability of staff to -- to our group. And our resources being what they are, I'm not -- I haven't been given any assurances that we're going to have the staff to be able to perform that function. That's an aside. MS. MURRAY: And, Fred, you might want to explain a little bit in terms of the Growth Management Plan amendment process because it's really a two-step process, and you'll hear the same petitions twice. You'll hear them at the transmittal stage, and then you'll hear them at the adoption stage. And you'll have the opportunity to make a recommendation to the board at both stages, and you might -- it might be a little confusing as to why you're looking at the same things twice. Could you explain to them kind of the process, Fred, of-- the trail of a Growth Management Plan amendment to its final adoption? MR. REISCHL: Well, the two terms that Susan used are pretty descriptive, "transmittal" and "adoption." Transmittal, you are Page 26 November 15,2001 sending it to the state. The state makes any changes or approves it as it is or denies it. And then it comes back to you and to the Board of County Commissioners for adoption. And not having been involved in this too much, Susan, if you want to make any more comments on that. MS. MURRAY: Sure. And Marjorie might help me out. It's been a while since I've been involved in the Growth Management Plan process. But if it's still the same as it was when I was working on it, primarily you have a public hearing in which -- and it's called a transmittal hearing. And that is basically the hearing you had, I believe, a couple weeks ago whereby the comprehensive planning staff presents the Growth Management Plan amendments as either submitted by staff or submitted by the public. And the public has to write to petition the board to amend the Growth Management Plan. They pay a fee to do that and fill out an application, and a staff analysis is performed, very similar to what you see in a rezoning application, for example. There's an analysis performed and a recommendation made. That is brought before you. The presentations are made before you, and then you take a vote and make a recommendation to the board as to whether or not to transmit them to the state. That action does not -- and let me back up a second. Once you do that, the Board of County Commissioners also basically goes through the same process. They listen to staffs analysis and recommendation. They listen to the petitioner's side, and then they vote as to whether or not to transmit them to the state. That is not the final action taken. Once that vote is taken, there is a very specific time frame in which the long-range planning staff has to send them to the state. I believe they still have the option as to whether or not to request an ORC report. An ORC -- MS. STUDENT: That's correct. Page 27 November 15,2001 MS. MURRAY: -- report is O-R-C, objections, recommendations, and comments. And that is a report-- basically an analysis of the proposed amendments by the state, and it's a consistency analysis. It's also an analysis -- it's an evaluation of staffs analysis for consistency with not only the local Growth Management Plan, but also the regional and state Comprehensive Plan; is that correct, Marjorie? MS. STUDENT: Yes. And it also looks at whether or not the plan complies with state law, that being the Growth Management Act, which sets some general parameters for the different elements of the comp plan and what it must do; and also whether it complies with an administrative code rule commonly referred to as 9J-5, which has more specific regulations as to how to implement the more general statutory requirements. And the state looks at those criteria to evaluate whether the particular amendment complies with that. And in the ORC report, they set forth if the particular part of the amendment does not comply and what rule or statute or part of the state or regional plan it does not comply with and with some very general suggestion on how the local government can fix the amendment. The local governments are wise to ask the state for that review because later on when you finally adopt, if there's a compliance issue, you find yourself right in an administrative hearing process. So it's kind of to give you a heads up before you adopt on where some problem areas might be. And also the state is quite willing to provide technical assistance to local governments to assist them in having amendments and comp plans that comply. COMMISSIONER ABERNATHY: I have a question. CHAIRMAN RAUTIO: Mr. Abernathy. COMMISSIONER ABERNATHY: We deal with the comp plan in a piecemeal sort of way with this endless string of amendments. Isn't there a -- if you're in a more static environment Page 28 November 15,2001 and you weren't doing that amending all the time or even if you were, isn't there a requirement somewhere along the line that you take an overview or look at the whole comp plan? We did it in the city. It's called an EAR, I believe. MS. STUDENT: Yes. COMMISSIONER ABERNATHY: Evaluation and review. MS. STUDENT: That's correct. We did that here in the county. The process really started in '95 into '96 with the adoption of our EAR report, and it was reviewed through a delegation and authority agreement between the DCA and the Regional Planning Commission. It was reviewed by the Planning Commission, the Regional Planning Commission, and found to be sufficient. And then we embarked upon our EAR-based amendments, and we had some problems there and were involved in litigation over those EAR amendments, which culminated in the final order. And we're looking at another EAR. COMMISSIONER ABERNATHY: When is it due again? MS. STUDENT: I believe it's -- they have to do -- start a -- the process for a report sometime next year. I have to talk to Mr. Litsinger on that. He has more of the particulars, but we've generally talked about it. And it's basically -- the EAR is so you can look at your plan and see what has been accomplished from the objectives and goals and policies that have been set up, what needs to be accomplished, and also takes into account any changes in the law, this substantive law, Rule 9J-5, or the Growth Management Law pertaining to what needs to be in a plan. And so that report is sort of a snapshot of, gee, you know, this is where we were, this is where we are now, and what still needs to be done. And then from that report, new goals, objectives, and policies or the EAR-based amendments are to be drafted that show how the local government is going to continue to meet the goals, objectives, and policies that it has established as well as come up with some, Page 29 November 15,2001 perhaps, new ones. And this all has to be based on data and analysis that- the local government isn't charged with going out and necessarily creating new data, but best available data should be utilized and then that serves as a basis for the comp plan goals, objectives, and policies. And there's also a basis in law for that because when you have a regulation -- the plan has a regulatory effect -- you have to have a rational basis as a government, as a matter of constitutional law, for what you do. So the data and analysis also serves that function. COMMISSIONER ABERNATHY: It's enough to keep us busy without variances or conditional uses or anything else. CHAIRMAN RAUTIO: I just wanted to interject something here. If memory serves me correct, Collier County was either the first or second county to actually create a Comprehensive Plan, and I believe that was finished in 1983. And if I recall, it was Nino Spagna, who was the principal author of putting together a Comprehensive Plan, which was rather small at that time. So Collier County -- even though we've been criticized for not trying to control growth, trying to manage growth -- I believe was on the cutting edge of creating the comp plans. And the other part of that then, after we've looked at the comp plan, which became the Growth Management Plan, the -- that's been 18 years since we actually started this process. And then I think the logic for the Land Development Code, which was passed on the 30th of October of 1991, was so that we had one place that all these different ordinances and all the information was put together. And Mr. Mark Morton came here last night and mentioned how that process, I think, started in probably the early part of 1990 to codify everything into the Land Development Code so we could work from a couple of basic documents. One of my comments here that I would like to make is that Page 30 November 15,2001 Collier County has been on the cutting edge of trying to manage growth for over 18 years. And we're overly criticized for not planning for anything, and it's been in the works for a long time. MS. STUDENT: I just wanted to add to that a little bit. Yes, when -- 1988 when I joined the county, we had the 1983 plan and the zoning ordinance, ordinance commonly referred to as 82-2. And when that comp plan was done, there was not the mandatory regulations in the Growth Management Law at that time. And in 1985 the Growth Management Law was changed to make comp planning mandatory by local government with a state mandatory review. Before that the Department of Community Affairs would -- local government could send a plan there, and they'd put it in a file someplace. But after the '85 act, then the review became mandatory. And what we did was we did a totally new plan in -- it was adopted on January 10th of 1989. But significant resources were involved in 1987 before I came. And then all of 1988 was taken up with reviewing data, goals, objectives, and policies, having innumerable public hearings. We had a citizens advisory committee. We had subcommittees of that committee. We had meetings almost every night, and we had Planning Commission workshops and Planning Commission meetings, Board of County Commission workshops and board meetings that culminated in the adoption in January of '89. So I think the plan that you allude to was, like, the foundation for that. And that plan was built on with the new plan in 1988 and '89, and then our implementing land development regulations culminated with the code where everything was put together in 1991. COMMISSIONER RICHARDSON: Would this EAR process include, then, some sort of assessment to say how did we get in such a mess if we had such a good plan? MS. STUDENT: It would include an assessment of how -- where we are in terms of what we set our goals and objectives and if Page 31 November 15,2001 we've met them or not. Then if we haven't, how we plan to meet them in the future, and amendments should address that as well as any changes in the law. MS. MURRAY: Or adjustments to goals and -- MS. STUDENT: Or adjustments, yeah. MS. MURRAY: Sometimes, you know, you plan for certain things, and obviously certain things happen, and it-- you know, so you're constantly -- the purpose is to constantly evaluate the plan, make sure that what you're planning for in the future is still an attainable goal, where do you need to adjust, you know, based on what has happened in terms of your community, in terms of growth, population increase or decrease. And then you make your adjustment to your goals, objectives, and policies based on an analysis of your performance over the -- it's supposed to be every five years. So let me just continue a little bit because I want -- you're going to see these comp plan amendments come back to you, and I want you to understand that where I left -- when I left my discussion -- and thank you, Marjorie, for all that history. It's informative to me. I've only been here five years, and I hear bits and pieces of it, but it always helps to hear it again. Once an ORC report is received -- and let's assume that the county has requested one -- then the next step would be to -- I believe to respond to that ORC report and set up a hearing, your adoption hearings. And that's when, again, you would see the same information come back before you, and I believe staff should analyze and respond to the contents of the ORC report because that information -- let me back up and say that analysis will be contained in the information that is ultimately sent to the state, should the board decide to adopt it. And that would be the criteria and analysis the state would rely on to determine as to whether or not the amendments are in compliance with the Comprehensive Plan and the state statutes, Page 32 November 15,2001 as Marjorie mentioned. So there would be a second public hearing set before you and before the Board of County Commissioners, and that's called the adoption hearing. And that's -- again, your role in that hearing is to make a recommendation as to whether or not the board should adopt the amendments as proposed. And then the final hearing before the board would be an adoption hearing, and that's when the, quote, unquote, final vote would be taken as to whether or not the amendments would be adopted and incorporated into the plan. Then after that I know, Marjorie, there's a time period by which the amendments can be challenged, and I'm not entirely clear on that time frame or process. Maybe you could fill that in. MS. STUDENT: Okay. Well, once the plan is adopted and sent to DCA, then DCA has a time line. I don't have my statute book with me, but in my memory banks it's coming up, like, 45 days that DCA has to issue its finding of compliance or noncompliance which is published in the paper and also sent to the county as well. And if we're found in compliance, then there's a time line in which the plan can be challenged, and that's basically an intervenor. The person who would challenge would be an intervenor. And they have to have standing. So that means they have to submit some objections or comments to the proposed amendments between the transmittal and the adoption of the plan, and that means they could send letters to staff or appear at the hearings and make comments. So if they have the requisite standing as an affected party and have done that, then they can challenge. And they have 21 days from the time that the finding of compliance is published in the paper to do that. If the plan is found in noncompliance, it's a little bit different. And then a person can intervene at any stage of the proceedings. That already means that DCA has found that it's not in compliance, and we're on the track to an administrative hearing. The matter is Page 33 November 15,2001 sent to the Division of Administrative Hearings, or commonly referred to as DOAH in Tallahassee, that has a cadre of hearing officers or administrative law judges, and they conduct the administrative hearing as to whether or not the plan amendment or portions of the plan are in compliance. And I have been through many of those. It seems like -- I don't -- I haven't even kept count. But the hearing is conducted here in the county. It's always been in a hearing room over at the courthouse. And then afterwards the administrative law judge will make a recommended order on whether or not the plan amendment is, in fact, compliant -- in compliance or whether they agree with the county or the DCA or any intervenor. If the proceeding started out as one where the DCA originally found the plan out of compliance, then it ends up going to the administration commission or the governor and cabinet for a final order. If it's one where the DCA originally found it in compliance, then DCA issues the final order as to -- because they can trump the hearing officer, as it were, or administrative law judge. And then that can still go to the administration commission for its blessing. So there are two tracks that you go on in the process, the noncompliance track and the compliance track. And there's also a different standard of proof. If DCA has found the plan originally in compliance, then it's a mere -- like the civil standard, preponderance of the evidence, as to whether or not it's compli -- in compliance. If it started on the noncompliance track, then the local government has the heavier burden, which is a clear and convincing evidence standard, I believe, to show. So that -- so depending on what track you're on affects some aspects of the hearing and some of the processes. MS. MURRAY: I didn't anticipate getting into all that, but I thought I'd take the opportunity, and I thank you, Marjorie. If you Page 34 November 15,2001 are interested in that whole process, I imagine -- and I know we used to get information from the region about-- they had bubble diagrams of the whole process and the different tracks it could take. If you are interested, I could pursue getting some of that information from our long-range planning staff so you have an idea of the track and how long it takes. And it's usually, what, about nine months to a year, Marjorie, before an adoption goes from -- an amendment goes from its original submittal to its final -- MS. STUDENT: I'd say about nine months. MS. MURRAY: Nine months. CHAIRMAN RAUTIO: I'd be interested in the bubble diagram. MS. MURRAY: Okay. MR. REISCHL: And, again, that'll become more important if the hearing examiner is implemented-- excuse me -- when the hearing examiner is implemented and your role changes to primarily looking at Growth Management Plan and LDC amendments. Testimony in front of the Planning Commission would normally be in what is referred to as quasi-judicial hearings, which is what we just had this morning, a variance, a land use petition, a conditional use. The other type of hearings that you preside over would be legislative, which would be the enactment or the recommendation of enactment of laws, the Growth Management Plan and Land Development Code. That's why you don't have sworn testimony, because you're acting as a legislative body for code and Growth Management Plan amendments, but for land use petitions and other quasi-judicial hearings people are sworn in. They're witnesses. That testimony when Mr. Mudd showed the photos, they become evidence. He can't take them back. They will be forwarded to the Board of County Commissioners. There are four general types of testimony that you hear: The staff report, which you get before the hearing; staff presentation; the Page 35 November 15,2001 petitioner presentation; and public input. County staff writes the staff report, county planner, and with input from transportation department, environmental specialists, long-range planners, other engineers, other county staff, depending on the particular petition. And there we analyze how we believe that the petition fits into the criteria that you consider in making your finding. During the presentation staff will highlight some of those facts, and if-- if we get a phone call ahead of time or something, we can put a little more emphasis on something that maybe was unclear in the staff report. And then, of course, we're available to answer any questions that the staff report raises or that we didn't address to your satisfaction. The petitioner presentation, they will obviously put emphasis on the points of the petition that will encourage you to approve the petition, and nothing wrong with that. They are trying to make their case for approval. And Tuesday, you have make the evidence public input, if any of you saw the board meeting on there was a lot of public input at Tuesday's meeting. What to do as members of the Planning Commission is try to often difficult decision of what is competent and substantial and what is the "not in my backyard" attitude. If somebody says, "No, I don't want this" versus somebody that says, "Well, I stood out in my yard, and I saw 12 cars go by in an hour and, you know, if more traffic comes as a result of this," it's your decision. Is that competent and substantial evidence? They're not a trained traffic engineer, but they made the effort to stand out and count cars or whatever other type of evidence they're using. MS. STUDENT: I'd just like to just make a comment here. We had one petition for a conditional use that came to us that was ultimately denied by the Board of Zoning Appeals, and it was challenged in court. And I've defended a number of these for the county, oh, probably 18, 20 cases, if you added them all together. Page 36 November 15,2001 And the case law tells us that a neighboring property owner can testify as to facts that they observe, and that is competent and substantial evidence. And in that case it was the issue of a social club out in the agricultural area, but there were people that lived in that area on large, 5-acre lots, and they testified as to the condition of the road leading into the proposed site and the amount of traffic that was on that road at the time. And there was some interest generated by the public in the proposal, so more traffic was on the road. And they testified how it was a narrow, dirt road, and cars had to drive off on the shoulder, such as the shoulder was on such a road, to get there. And that was all evidence that we were able to use, and we prevailed not only in the case in circuit court, but were able to prevail in the appeal, the Second District Court of Appeals, based on some of that lay testimony and utilizing that case law. So there are times when individuals can testify as to facts that can help the county. And another case involved a conditional use for expansion of a blasting activity, and there was already blasting activity taking place on the site immediately adjacent to where the conditional use was being sought. And property owners testified as to the effect of that blasting on their residences and so forth, and that testimony also aided the county in prevailing in a lawsuit. CHAIRMAN RAUTIO: Commissioner Strain. COMMISSIONER STRAIN: I got a question about the quasi- judicial nature. I sat on the Code Enforcement Board for a number of years, and that also was considered quasi-judicial. At one point there was a lot of discussion about how much contact we could make with parties who are coming before that board. And the board, I believe, was like an arbitrator of the county against -- whatever action the county was taking against another group or individual. And I seem to say -- look at this as sometimes happening that way. The county is Page 37 November 15,2001 taking a position, like in this variance, against the landowner who defends -- he's his own defense. In that kind of a case, is it wise of us to contact staff off record prior to the meeting, get information that-- or should we just rely on what we were given in our packet as assembled by staff and assembled by the applicant and then rely on everything we're presented at the meeting? MS. STUDENT: Staff can be contacted for information. And also under-- and there'll be a presentation on this ex parte communications on December 6th, and that was my area that I prepared for the county attorney workshops. But, in any event, we have a resolution that is supported by state law, because there was a case out of Dade County, the Jennings case, where -- I won't go into all the particulars of the case. But anyway, a decision was struck down because of ex parte contact and so forth. So there was a cry to the legislature about this because the board -- you and also the Board of County Commissioners sit in an unique position in a quasi-judicial matter, and I'll talk more in terms of the Board of County Commissioners. They are elected by the people, and their constituents feel that, "Gee, these guys ought to be accessible to me, and I ought to be able to speak out. I voted for them. They're my representative on these matters." And then on the other hand, you have the situation where the Board of County Commissioners, when it hears rezones and then when it deals with conditional uses and variances as the Board of Zoning Appeals, sits like a panel of judges. So countervailing that is, "Gee, these guys sit in judgment of my project," or on the other side of it, the neighbors say, "These guys sit in judgment whether this is going to go in here and impact my property value or my quality of life." And so then the thought is, "Well, how great should the contact be?" Because these guys are really sitting like a panel of judges. Page 38 November 1 $, 2001 And, gee, if I'm over in circuit court and I sue Joe Blow and Joe Blow goes and talks to the judge and tries to persuade him of the merits of his defense versus, you know, my suing him, you know, I've got a real problem. So -- and that's judicial over there, and this is quasi- judicial, which casts it in a bit of a different light. So that's the -- that's really the dilemma, that you have the situation where you're elected and have some responsibility to your electorate versus sitting in judgment of what an individual can do with his property and how that affects the neighbors and their property rights. So it creates this tension between the two -- I don't want to say extremes -- but the two areas. So what the legislature came up with was a law that would allow the ex parte contact if disclosure was made on the record prior to the testimony and so forth actually being taken, and Collier County implemented that legislation in a resolution in 1995. So that's why we ask -- or the commission states before the hearing commences any ex parte contact that they've had. And what that does is they're supposed to disclose when it occurred, who it occurred with, and generally what the substance of the contact was. And that would go to telephone conversation, e-mails, letters, a site visit, if anybody, you know, talked to you personally in the grocery store or something like that if you ran into them and put that on the record. And then what that does when that's disclosed, it puts both sides on notice, and they can question the commission as to what was discussed and how it might impact their view of the criteria and the petition and so forth and get all that out on the record and make any pertinent objections on the record as well. And this would go not only for the petitioner, but also to the surrounding property owners. And we've had situations where the question has come, well, the disclosure was made, but maybe it wasn't full enough. And -- but by the same token, the person making the objection in court never put Page 39 November 15,2001 that on the record, and there's case law that tells us you have to put the record here for the Court to evaluate the procedure. And if you didn't make your case here, then you can't make it for the first time over there. And there's some local case law out of our circuit court where that happened before the Marco Island City Council and Planning Commission on a boat dock, and the court opined that, yes, there was a burden on the individual making the argument in circuit court to inquire further in the proceeding here. So I think I've kind of just given you the sum and substance of the ex parte presentation on the 6th. COMMISSIONER STRAIN: As a follow-up to my question, though, Marjorie, are you saying, then, that routinely we are supposed to state that we had communication with staff as well as the applicants or the other side prior -- because I -- MS. STUDENT: Staff-- COMMISSIONER STRAIN: -- haven't heard any of us do that -- MS. STUDENT: Staff can -- COMMISSIONER STRAIN: -- and I know we've communicated with staff extensively. MS. STUDENT: Staff can be contact for information. I think if it goes beyond that other than just information, then it needs to be disclosed. COMMISSIONER STRAIN: Okay. Thank you. MR. REISCHL: And from our perspective we really appreciate any contact ahead of time. Your question to me a couple of days ago about the fire code official, I wouldn't have known the answer if you asked me at the public hearing, but I was able to check with the code official and found the answer for you, so we appreciate that. COMMISSIONER RICHARDSON: Just to be very clear-- because we asked Mr. Weigel when he was here before when some Page 40 November 15,2001 of this came up, and he suggested that the ex parte was as you described but that there was, I heard him say, no restrictions on communications with staff. Now, I view communications as being a dialogue, not just necessarily asking questions. And if there's some shade of that that I need to be aware of, I -- you should -- MS. STUDENT: Mr. Weigel and I will discuss that before December 6th, and we'll clarify that for you. CHAIRMAN RAUTIO: Just as a comment while we're on the quasi-judicial nature of our proceedings, on the 22nd of April of 2000 we, as Planning Commission members, were given a rather fascinating brief called "The Practical Aspects of Quasi-Judicial Hearings, Basic Tools, Recent Fine-Tuning," by a Joanie Armstrong Coffee (phonetic), and this was presented at the 23rd Annual Local Government Law in Florida Seminar. And I noticed that only three of us are still on the Planning Commission that were provided this. It's fascinating reading. It's very detailed. It would be something that I would think that Marjorie Student could write. MS. STUDENT: Thank you. I appreciate that. CHAIRMAN RAUTIO: And it truly is interesting. I found it in my collection of items. So if staff doesn't have a copy right readily handy to give to the rest of the commissioners, I'll make my copy available, as long as I get it back. I think it would help clarify a number of things, and it would make us understand just even further what -- MS. STUDENT: We have that, I believe, at our office, and so I'll make a note to provide copies. CHAIRMAN RAUTIO: It's fascinating the things I've found that I've collected over the two years that I've been on this board trying to prepare for today. MS. STUDENT: Another thing that I might mention -- and maybe you have received information about it, but the Florida Page 41 November 15,2001 chamber puts on a growth management short course, it's called, in Orlando every year, and they've done so, I think, every year since 1990 or 1991. And it has a whole array of issues about comp planning and quasi-judicial hearings, and I've been privileged to be asked to lecture in that a number of times and have enjoyed doing so and have relayed to the participants some of our experiences here in Collier County. And so this year it's going to be in January, and I would urge any of the commissioners, particularly maybe the newer ones that might be interested -- and I can get some information about that for you, but it's very beneficial. CHAIRMAN RAUTIO: Please do. And the sooner the better so we could plan our schedule. MR. REISCHL: Now a little bit about us, the county staff. When you get our staff report and our presentation, we're not advocates for a petition or we do not necessarily always oppose a petition. We perform an analysis. If the petition, according to our analysis, meets the criteria, we recommend approval; if it does not, we recommend denial. As an editorial let me just throw in there that we see a lot of preapplication meetings that we basically talk people out of, especially variances. This morning's was an example where I was initially told that, yes, we tried the lot line adjustment, and there was no response, so of course, we go forward with the variance. Now, if I had known what was brought out during this hearing, I may have said, well, go back and talk to the person more. There was definitely not as much communication as there should have been. But that's an example of what -- what we -- for lack of a better term -- filter out before it comes to you, so that's why you see a lot of approvals coming from county staff. And our analysis is multifold, but there's two main pillars: consistency of the petition with the Growth Management Plan and Page 42 November 15,2001 compatibility with surrounding land uses. The consistency analysis is performed by the comprehensive planners under Stan Litsinger's shop. And they perform the consistency analysis, give it to us, we insert that into our staff report to you, and you get basically their analysis of consistency. So it's not just a -- a boilerplate language that you get in there. Every Growth Management Plan analysis you see in a staff report has been done by somebody in comprehensive planning going through the points and the Growth Management Plan and making sure it's consistent. And compatibility is even more subjective than consistency. There are lots of ways you can make two differing land uses compatible. One of them is distance. If you have a huge property and you have a factory on one and a single-family home on the adjacent property but there's two miles of vacant preserve or wetland or so in between, then even though the two land uses don't seem compatible, the distance can make them more compatible. Buffers is another thing, and you deal with that a lot on the Planning Commission. The type of buffer, Collier County has Type A, B, C, D; the height of the buffer; the width; the type of plants; is it a wall; is it a fence or landscape buffer. And gradual transition of land use, that's more done in the rezoning process. For example, if you have a PUD that's adjacent to multifamily development, the practical way to do this would be to put the multifamily component of that PUD next to the adjacent multifamily, and then go to something like a duplex, then to a single family, but a gradual transition of land use that way. So there are lots of ways that compatibility can be looked at and two noncompatible land uses made more compatible by those and other methods. COMMISSIONER ABERNATHY: Fred, do you remember a year, year and a half ago where Rich Yovanovich and I went around and around over an apartment community that he wanted to put in Page 43 November 15,2001 next to a rock quarry out on 951 south of the interstate? My question was, should the county be a party to letting somebody build apartments right practically on top of a quarry? And he thought that compatibility only runs to putting something onerous next to something benign, and it seems to me it should run both ways if you want to put something benign next to something onerous. It's not compatible. MS. MURRAY: Absolutely. Yes. MR. REISCHL: Sure. And that's -- and time is another factor too. If that pit was only going to be run for another certain amount of time and then it becomes a lake, then that changes the compatibility analysis also. Another advisory board to the Board of County Commissioners is the Environmental Advisory Council. They, like you, make recommendations to the board on the environmental aspects of petitions. And you also receive their recommendation in your staff report. So if there are any environmental -- unusual environmental conditions, those will be pointed out in your staff report. And in the resolution or ordinance or PUD document, those changes will be reflected in that. So what you see has already been reviewed by the Environmental Advisory Council and will be reflected in the staff report and ordinance that you see. MS. MURRAY: Much like you, they receive a staff report with a staff analysis and recommendation, analysis relative to the Growth Management Plan policies and the Land Development Code regulations. So what you get in our staff report to you is basically a summary of their recommendations. CHAIRMAN RAUTIO: Mr. Midney. COMMISSIONER MIDNEY: How often does the EAC meet? MS. MURRAY: Once a month. COMMISSIONER MIDNEY: Because in some of the packets, Page 44 November 15,2001 I've noticed that there's no action taken by them. Do they meet every month, or does it depend on what comes up? MS. MURRAY: They usually meet the first Wednesday of the month. I assume if there was nothing on their agenda, they probably wouldn't meet on land use matters. They also may have special meetings that I'm not aware of on other issues. CHAIRMAN RAUTIO: Mr. Abernathy. COMMISSIONER ABERNATHY: I've seen some of their minutes that have been provided to us by one party or another, and there's some unhappiness on the EAC over their perception that we don't pay any attention to what they say. How much attention are we supposed to pay? MR. REISCHL: Well, they are recommending -- making a recommendation to the Board of County Commissioners. You-- because you're hearing is after them, you get to see what their recommendation was also. It's basically an order of events. If the Planning Commission met first and then EAC, your recommendation would go in their staff report. So they're making a recommendation to the board with -- and, again, their primary emphasis is on environmental conditions. If they are looking at a portion of a wetland being destroyed for a certain purpose, they're looking at it from the environmental perspective. You're looking at it from more land use perspective than just environmental. You include environmental, but it's not the prime focus that you're looking at. MS. MURRAY: Right. It's not your focus, but you should take it -- I mean, it is part of the whole regulatory mechanism of the county that's under consideration and that you take under consideration. So you should pay attention to that, and if there are significant issues that you feel strongly about, forward your views, as well, on to the board. COMMISSIONER RICHARDSON: It seems to me we've had Page 45 November 15,2001 part of this discussion before with some of the applications that come before us in terms of their focus versus our focus. Let me just ask the question. Does their focus include issues other than environmental? MS. MURRAY: It shouldn't, but I will tell you that various -- obviously various aspects of the land development regulations outside of the environmental regulations affect the environment. For example, an access point to development which may be located outside of wetlands, but an access point traverses the wetlands. So there's -- there's some crossover there, and sometimes the line gets a little bit gray. But, no, their focus should be primarily on the environmental regulations, and we've tried to mirror them that way to keep their focus. MR. REISCHL: Another example a few months back was the Park Central North PUD. They -- in order to preserve more of the wetland, they made the building footprint smaller and made the building taller. So they're looking at basically a variance because they went from C-1 to -- the PUD was almost entirely C-1 except for the building height, so they were looking at raising the height of the building. They unanimously endorsed that concept. And there were more questions from the Planning Commission regarding the building height, whereas the Environmental Advisory Council thought the building height was a good thing because it saved more of the wetland. So different perspectives. CHAIRMAN RAUTIO: Mr. Midney. COMMISSIONER MIDNEY: Yeah. I have another question. The EAC always reviews it before us, or sometimes do we see it before them? MS. MURRAY: They are supposed to see it before you, and 99 percent of the time we mandate that they see -- by policy that they see it before you. Occasionally you may hear things before them, but we try to avoid that. Page 46 November 15, 2001 COMMISSIONER MIDNEY: But it's usually in our packet what they have said. MS. MURRAY: Yes. COMMISSIONER MIDNEY: Okay. Thank you. CHAIRMAN RAUTIO: It truly was fascinating to watch the Silver Lakes presentation at the Environmental Advisory Council. Had that really been hashed out there before it got to us, we might not have been here quite as long. COMMISSIONER YOUNG: On occasion I thought I had asked for a copy of the EAC minutes, and I didn't get them. What did -- how does one proceed to try to get the EAC minutes so that I can read it before the issue comes before us? MS. MURRAY: You can contact Sharon Phillips of my staff. If you want to e-mail her, she can -- provided they're available. Sometimes they take a while to be available. Sorry, Barbara. We've had problems in the past, but since Barbara's been on board, it hasn't been an issue. Sharon will be happy to track those down for you. COMMISSIONER RICHARDSON: I think what I'm hearing, though, is -- maybe a broader question. Should we be provided that level of detail in our packet? MR. REISCHL: You get the same EAC staff report that they see, so there is probably excess detail on environmental and water management issues. But that's, I guess, easier for us than editing an already written EAC staff report. MS. MURRAY: And the minutes -- I'm sorry -- are also available on-line. I forgot to mention that as well. So once they're -- once they're available and ready, they'll be posted right away on-line, so that might even be easier for you if you want to just check on our Web site. COMMISSIONER YOUNG: What is that? Collier-- MS. MURRAY: Colliergov.net. Go to community Page 47 November 15,2001 development Web page, and there should be a link. COMMISSIONER RICHARDSON: Are the minutes of these meetings on there as well? MS. MURRAY: Yes. COMMISSIONER RICHARDSON: I didn't know that. MS. MURRAY: And the board. MR. REISCHL: We are getting more and more stuff on there -- MS. MURRAY: I think all of the -- MR. REISCHL: -- maybe not every day, but weekly. I mean, we get the little e-mails in our department saying now X or Y or Z is now on-line. So keep checking back at our Web site. There's a lot of information on there. CHAIRMAN RAUTIO: Right. There is. And I learned the hard way from records how you walk through almost two pages of instructions to get to where you want to find a specific ordinance that's been placed. So it might behoove this group to receive the two pages of instructions how to walk through the Web site to get to some of the areas such as an ordinance. When I was looking for the county manager's ordinance and wanted to print it out, it took a while for the people in records and minutes to explain it to me. And then the next day they faxed me. And it makes sense, but you have to understand the procedure to get through the various levels of the Web site. And I think it would be fascinating for everybody to learn that because you could go find things that you didn't realize was right there at your very eyeballs. MS. MURRAY: MR. REISCHL: MS. MURRAY: MR. REISCHL: That's the clerk to the board's site -- Right. We have -- -- and that's a little more tedious. Ours is more user friendly. CHAIRMAN RAUTIO: I think so. MS. MURRAY: It's a good site, but you do have to have the Page 48 November 15,2001 instructions. We'll get those for you. CHAIRMAN RAUTIO: Thank you. MR. REISCHL: And one last thing on the Environmental Advisory Council, you also see things -- well, one petition which primarily is environmental, that's an ST or special treatment permit, also sometimes given the long acronym of ACSCST, area of critical state concern, slash, special treatment -- and once, maybe twice a year you'll see one of those. It is primarily an environmental permit. However, the code requires that it goes to the EAC, to the Planning Commission, and to the board. There are exemptions. Not all of them go. There are single-family exemptions, etc. Some of the people who have been on the Planning Commission longer or have been reading the paper longer, the Little Palm Island, that's why you saw that petition. It was a special treatment permit request. That special treatment area covered a wetland. So there are mostly environmental issues, but you get to take a look at those also. That's another thing where probably the EAC is the lead reviewer on that. And I apologize I only had six copies of the magazine, but I wanted to show you a little bit about American Planning Association, and that's something you may want to look into. There's a planning commissioner membership in the APA. I was fortunate enough to go to this year's conference, and it's very educational. They also have special planning commissioner workshops at the APA. Next year it's in Key West, so you may want to investigate that if that's something that interests you. COMMISSIONER RICHARDSON: Where was it this year, Fred? MR. REISCHL: Orlando in a very hot and cramped hotel. The magazine is part of the membership. There's also a Florida, I guess, magazine or newsletter. It's not as slick as this, but it contains more Page 49 November 15,2001 Florida oriented issues. They have a planners' book store which has a lot of different information that you may be interested in also, but membership in the APA is something that you may want to think about. MS. MURRAY: They have a Web site as well. MR. REISCHL: Yes. Planning.org is the Web page. And with that, if you have any questions -- and, again, to point out-- as I answered Mr. Strain's question -- not only here, but please feel free to contact us at the office by phone, e-mail, or come in. We'll be happy to get information that we may not have focused on in the staff report or a question that came up to you later; or maybe a constituent called you and raised a question and you want more information on it, please feel free to contact us. we can. Thanks. CHAIRMAN RAUTIO: We're happy to get that information if Commissioner Strain. COMMISSIONER STRAIN: I've got two questions, Fred. We do a lot of updating to the ULDC, and we've got books. How often or how soon after the updates are approved and in print will we be getting supplements to put in these books since they're really relative to everything we do here? Do you know how that functions mostly? MR. REISCHL: It was delayed for a while. I don't know the reasons for the delay, but then this year all of a sudden they've been very quick. Within two months, I'd say. MS. MURRAY: Yeah. Historically we've waited six months -- six to nine months and-- but lately it's been two to three months. We can also give you a copy of the ordinance in its final form once it's signed. I -- the way I usually work it is I take the ordinance, and I just make a note in my book to check Ordinance No., you know, 01- 90 if something has changed while I'm waiting for the supplement. COMMISSIONER STRAIN: Well, if the supplement doesn't come out at a time, maybe, when something comes before us that Page 50 November 15,2001 may attribute -- the supplement may be needed to review, would you note in the packets then that, you know, this -- there is a supplement, something like that, at least highlight it to us so we know not to rely on the paper we have now inside this book and that there's supplements we don't have? Because we could be doing research and asking questions based on wrong information, and that might be difficult. MS. MURRAY: We could try to do that. I don't want to -- there's some burden put on you to ensure that you're reviewing the correct information, and we will provide that for you. But we -- we will do that where we can. COMMISSIONER STRAIN: Okay. That would be helpful if you could. And then the other -- one last other question I have is on the packets that we get. There's a lot of information there. And in a lot of the information, they reference other documents, sometimes exhibits; sometimes a former PUD; sometimes, like last night, the Access Management Policy or the ULDC has the Access Management Plan. But all those other documents that are referenced every time we get a packet, if staff notices a consistent document coming up a lot in those packets, it would be helpful, if we hadn't already gotten it, to give us a copy of that, at least the first time; and then we would have it for the rest of the year or until its updated to constantly refer to, because I actually go back and do read all the supplemental documents that are referred to in all the packets. And that's -- what most of my phone calls have been to the staff on the Monday prior to the meeting is after the weekend following up and getting all this new information. MS. MURRAY: Can you give me an example of a supplementary document you would want to see because -- COMMISSIONER STRAIN: Yes. Page 51 November 15,2001 MS. MURRAY: COMMISSIONER STRAIN: MS. MURRAY: -- in what-- COMMISSIONER STRAIN: -- I'm not -- I mean, PUD comes to mind but -- I can give you-- -- three right offhand. MS. MURRAY: -- circumstance -- in what circumstance would you want, like, an old PUD -- COMMISSIONER STRAIN: Well, when -- MS. MURRAY: -- if we're not-- COMMISSIONER STRAIN: -- we were reviewing Bucks Run, it was a comparison to the old PUD, but we weren't given the old PUD. We were only given portions of the new. In Silver Lakes the settlement agreement wasn't included. It was referred to. And, I mean, I have a copy of it from my other work. But at times like that -- the Silver Lakes PUD, I guess staff did provide me one on the Monday that I called, and that was fine. Last night, another example would be the Access Management Policy. I think the chairman even requested that. Those kind of-- that kind of information, from my way of looking at things, becomes invaluable to me. And if you could just start sending me those, if that's not too problematic, or call me and I'll come by and get it, that would be a big help to me in getting this reviewed timely and not bothering you guys so much at the 1 lth hour prior to the meeting. CHAIRMAN RAUTIO: That was one of the other issues I came up with previously, that when we're talking about the -- for instance, the utility standards and operations ordinance -- I think it's 97-17 -- that I feel as a commissioner, I should be able to rely on the staff to always make sure they're citing the most current ordinance of record. And then if I need to go look something up, I will. But if I had some of these documents in my library, I would read them in advance. And I do definitely want to see the Transportation Access Page 52 November 15,2001 Management Policy. That type of information that we'll constantly be looking at or constantly wanting to either reference, would be extremely helpful. We can ask better questions. We can understand a few more things, and perhaps then we could cut down on some of our back-and-forth discussions we have because we actually understand what it is that staff is trying to do or what the Board of County Commissioners' policy is. MS. MURRAY: I think -- well, we'll do our best to anticipate. And obviously where we mention things in the staff report or we've conducted some type of analysis relative to old documents, we certainly try to provide those to you ahead of time. If there's things that maybe in our judgment are referenced but aren't as -- we feel aren't as important but you may, where things are available on-line, I would encourage you to go on-line. We're in the process of scanning, like, for example, all our old PUDs. And eventually the process will allow people from the outside to -- to view the documents in the record of the old files from their computer. So once that gets a little more advanced, we'd inform you of that, and you could use that as a resource too. I don't want to try to second-guess what may be important to you other than the obvious, but we'll attempt to provide that information for you. COMMISSIONER YOUNG: In regard to this, I find myself continually nonplussed by the fact that I get -- I read the material, get here, and then I'm handed a stack of revisions and additions, which I can't possibly read, and then have to proceed directly to the hearing. Why is that, and what can we do about it? MS. MURRAY: Historically that's just the way we operate. I -- I don't have any other answer, other than -- I mean, maybe Marjorie can shed some light. MS. STUDENT: In the 14 years that I've been here, that's -- that's happened. It happened with the comp plan amendments. And I Page 53 November 15,200 ! think it's a function of-- there may be in some instances -- that was the case there -- having short time frames between meetings, having advisory committee meetings, turning out and -- and we had no choice but to do it that way. That's not unusual to Collier County, because in talking with other people that do what I do throughout the state, it's -- it's pretty common. And I think it's just because -- well, with the petition or something, it's a dynamic process, and people are submitting things and have comments and "did you consider that" and so forth before the hearing. And I just think it's because it's a dynamic process. MR. REISCHL: And if I can add a comment too, that may be slowing down. And I don't want to commit to anything, but now under a code change, the county staff will control PUD documents. So what's in the PUD document will be what we are recommending. And if the petitioner wants to suggest changes to that, that will be the petitioner's responsibility. Prior to June, I think, it was the other way around, that for any changes we had to give the changes to the petitioner. They made the changes in the documents. So -- MS. MURRAY: I think Fred's point is we have a little more control now, and we are more aware of the time frames by which we have to submit all this information to -- it has to be submitted to myself, Tom Cook, John Dunnuck before it even gets into print. And we're a little bit more aware of those time frames, whereas the petitioners probably weren't and probably felt it was their petition and their money, and they could submit it -- absent a lack of our own standards that say, you know, here's a cutoff date, they felt that they could submit it at any time. I worked in other circumstances where there has been no new information been able to be provided after a certain date. And it works well in some cases, and then in some cases you just end up continuing things because substantive issues may come up that aren't Page 54 November 15,2001 brought to your attention until the last minute. So it's a choice. I guess we've decided to operate that way, and I know it makes -- it makes it very difficult for us as well. MS. STUDENT: And I have to say for our office, too, because I don't know how many times it's happened to me where I've had an attorney catch me out in the hall just before the meeting starts and says, oh, I'm going to raise an issue about so and so. And, I mean, it's just literally out in the hall before the meeting. And sometimes it's also happened where we've been in the meeting, and an attorney will come and raise some issues that they've never discussed with our office. And it's -- it is difficult. CHAIRMAN RAUTIO: That brings up a very valid point from a procedural, logistical standpoint. Do we as a commission have a right, then, to say that "I can't read this contract. It's 12 pages. This is basically new information" and -- and move for a continuance ourselves? MS. STUDENT: I think-- I think you could. CHAIRMAN RAUTIO: I was never clear on that point, if we had that right, because we could take a consensus of the board, and in some cases I think it would really make the point to some of the petitioners not to wait so long to get the information to us. MS. STUDENT: I think it depends, too, on whether it's germane and dispositive to what you have coming before you or if it's germane to one of the criteria. COMMISSIONER ADELSTEIN: But how do you know that if you haven't had a chance to read it over? That's the problem. I get these packets as I come in. I don't know what is in it; and therefore, I can't evaluate it. But it came, and it's this thick. How do I determine that, and say, "Oh, well, it's germane or it isn't germane"? MS. MURRAY: As staff, you can rely on us because unless something's been handed out to us in the hall -- which I can't say Page 55 November 15,2001 doesn't happen, you know, five minutes before the meeting. If we get something after your packages have been sent and then have no time to get it to you, we try to do an analysis the best that we can and then summarize that for you in the meeting saying, you know, "Here's the changes. Here's what you maybe should consider." So to a certain extent you can rely on us, to the extent that we have the time. CHAIRMAN RAUTIO: Right. And that's important. But, Marjorie, as long as I feel comfortable that -- either myself or, you know, the vice-chair if he's taking over for me, that should we feel that what was just handed to us and was truly germane and it should be reviewed a lot more closely, we can actually move for a continuance then. MS. STUDENT: Yes. I think you can. COMMISSIONER ABERNATHY: You could recess for a few minutes. MS. STUDENT: You can do that. We've done that too. CHAIRMAN RAUTIO: I guess our options would be move for continuance if we were really irritated and it was a large packet. We could recess, or we could move the agenda item to some other place -- MS. STUDENT: Further down on the agenda. CHAIRMAN RAUTIO: -- further down. And then when we take a recess, we could take a longer one to actually review the information. But I -- I truly wanted to know what my options were as a chair in trying to control the meeting and actually give a good work product, because I've -- I've been in this county for 22 years, and I've watched times when things were handed to the Board of County Commissioners specifically late in the game because they were counting on the board not reading them. And, I mean, I worked a staff up north, and there were times when, in my position, I was asked, "Could you put all this together Page 56 November 15,2001 and give it to them at the last minute because they won't pay attention, and then we won't have to have these long, lengthy discussions because they'll assume that it's right." And that was never an approach that I appreciated, particularly when it came to contracts. MS. STUDENT: Well, I can tell you from my own experience, when we were doing the comp plan -- original comp plan in 1988, we had situations where we might have an objective or policy written, and there would be comments from the public, and literally it would be recrafted on the floor. And there are also situations like that with some of the implementing ordinances, where members of the public would bring to the meeting their ideas, and it would be recrafted right on the floor. And I think part of it is human nature. And, for example, sometimes if there's been an issue that I have with a development order, and there's been a tendency to, well, I'm not going to fix that or do that. And then as the hearing looms closer, there's a greater desire on the part of the petitioner to try to, you know, change it in accordance with what staff and our office's needs are. And particularly sometimes in the hour before the Board of County Commissioners meeting, there's a great impetus do that. And unfortunately I just think some of it's a function of human nature. MS. MURRAY: That's a good point, because we do experience that a lot, when we've conducted our analysis and we've set -- you know, okay, here's what we're recommending, or here's what we'd like to see, and in the 11 th hour, the petitioner finally figures that it's probably best to go before you and the board in agreement rather than arguing. And that's really what we try to accomplish anyway. We try not to bring a debate to you. We try to resolve the issues before the parties come to you. That's not always possible. The same with the Board of County Commissioners. COMMISSIONER ABERNATHY: Do you provide your report Page 57 November 15,2001 to the petitioners, or do they have to come looking for it? MS. MURRAY: They're mailed a copy. COMMISSIONER ABERNATHY: Mailed a copy. CHAIRMAN RAUTIO: And also, though, we have to remember the concept that when you're in a public meeting, it is a dynamic, fluid process and that when the public has an opportunity to present something, it should be considered, and you don't want to just ignore it. And there are times when the public just gets around to recrafting something. Therefore, they're given the courtesy of the board, whether it be us or the county commissioners, saying, "Yep, that's a good change, and we can accept it." Quite often I've noticed over my number of years being involved in these types of things, here and other places, that the better the information is for the change and the more specific it is and well written, quite often portions of that do get accepted, particularly if you're making a major point to get an item changed. And I think part of that dynamic feeling is with some of these PUDs that are out there. The petitioner wants to know what's happening, but there may be a group of people that certainly want to get their point across, and the only time they get it across is during that dynamic, open public meeting. We certainly don't want to keep the public from being involved. And quite often the person that's making it might be a paid consultant or an attorney. But I've witnessed things -- some of the comp plan information -- that was regular public or an interest group such as the League of Women Voters that did that. So we have to be able to sit up here and, you know, take our notes and work our way through it, and I think that's part of the whole process. So we have to be ready, but to have a whole packet of information dropped in our lap that's really new is extremely difficult to deal with. And I know you-all are much more sensitive than Page 58 November 15,2001 previously -- MS. MURRAY: We're the ones making the recommendation to you. So, of course, we want to ensure that we're reviewing all of the pertinent information in a timely manner so that we have time to contemplate and make our recommendations -- that our recommendations to you are accurate. In terms of the public, I want you to be aware of one thing that we really try to do so that the public comes before you in an informed state, and that is we -- when the public calls us or writes us a letter, we try to head off a lot of their questions in terms of procedure, because you'll notice most of the public doesn't come up here and ask procedural questions. They are here to give you their testimony and their feelings about the project. We try to make a really conscious effort to inform people of the process and the procedures over the telephone, if they call, or in writing; or we take the initiative to call them if they've written us so that your time and their time is not wasted here by asking procedural questions. And I just wanted you to be aware of that, because we do try to make a real conscious effort to let the public know about the processes and procedures that are often confusing to them. COMMISSIONER RICHARDSON: And the new public participation plan, which is now in effect, should also change the dynamics a lot, I would think. MS. MURRAY: I would hope. It'll be interesting to see how -- the impact of that. We'll be monitoring that. CHAIRMAN RAUTIO: Do you think we could have a copy of I don't know if we got one, the public that in its final form? participation. MR. REISCHL: MS. MURRAY: We got it Tuesday, I think, so it's -- Yeah. I'll have my staff make sure you guys get mailed out a -- we just got the ordinance in its final form. Page 59 November 15,2001 CHAIRMAN RAUTIO: I didn't think it was very old. MS. MURRAY: No. CHAIRMAN RAUTIO: So it would be nice if we could add that to our collection of documents. MR. REISCHL: In fact, I --just to tell you about the first meeting, Chahram had the first meeting. I think it was Tuesday night. Seventy-five people showed up. COMMISSIONER RICHARDSON: What was the -- MR. REISCHL: It was a rezone in Golden Gate City. COMMISSIONER RICHARDSON: And was it recorded, or what's that -- how did that part of it work? MR. REISCHL: I wasn't there. Yeah. It's supposed to be either taped or -- audio or videotaped. Commissioner Henning showed up. COMMISSIONER RICHARDSON: And a record of all the commitments that were made? CHAIRMAN RAUTIO: Mr. Commitment himself. MR. REISCHL: Any other questions? CHAIRMAN RAUTIO: Do we have any other questions? Any other issues we want to touch on at all? COMMISSIONER STRAIN: I found it very productive. I appreciate staff's time. CHAIRMAN RAUTIO: Yes. Thank you. MS. MURRAY: Thank you. Nice job, Fred. COMMISSIONER YOUNG: Thank you. CHAIRMAN RAUTIO: All right. We are on Item No. 11 of the agenda, which is public comment, and I don't see any public. Discussion of the addenda, there were no addenda. We're to adjourn. We are adjourned. Page 60 November 15,2001 There being no further business for the good of the County, the meeting was adjourned by order of the Chair at 10:25 a.m. COLLIER COUNTY PLANNING COMMISSION JOYCEANNA J. RAUTIO, CHAIRMAN TRANSCRIPT PREPARED ON BEHALF OF DONOVAN COURT REPORTING, INC., BY BARBARA DRESCHER, NOTARY PUBLIC Page 61