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CCPC Minutes 12/06/2001 RDecember 6, 2001 TRANSCRIPT OF THE MEETING OF THE COLLIER COUNTY PLANNING COMMISSION Naples, Florida, December 6, 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 8:33 a.m. In REGULAR SESSION in Building "F" of the Government Complex, East Naples, Florida, with the following members present: CHAIRMAN: Joyceanna J. Rautio Dwight Richardson Kenneth L. Abemathy Paul Midney Lindy Adelstein Lora Jean Young David J. Wolfley Mark P. Strain NOT PRESENT: Russell A. Budd ALSO PRESENT: Marjorie M. Student, Asst. County Attorney Ray Bellows, Chief Planner, Planning Services Page 1 AGENDA 2. 3. 4. 5. 6. 7. 8. A. COLLIER COUNTY PLANNING COMMISSION WILL MEET AT 8:30 A.M., THURSDAY, DECEMBER 6, 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 RESPECTIVE 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 ENSUR~ THAT A VERBATIM RECORD OF THE PROCEEDINGS IS MADE, WHICH RECORD INCLUDES THE TESTIMONY AND EVIDENCE UPON WHICH THE APPEAL IS TO BE BASED. PLEDGE OF ALLEGIANCE ROLL CALL BY CLERK ADDENDATOTHEAGENDA APPROVAL OF NOVEMBER 1, 2001 MINUTES PLANNING COMMISSION ABSENCES- Russell Budd will be out December 6, 2001. BCC REPORT- Recaps of November 15, 2001. CHAIRMAN'S REPORT ADVERTISED PUBLIC HEARINGS BD-2001-AR-961, Jerry Neal, representing Mark V'. Casper, requesting a 45-foot boat dock extension to allow for a boat dock protruding 65 feet into the waterway for property located at 115 Bayshore Way, further described as Goodland, Parcel 7, in Section 18, Township 52 South, Range 27 East, Collier County, Florida. Coordinator: (Ross Gochenaur) VA-2001-AR-1207, Doug Schroeder, representing Cocohatchee Nature Center, requesting a 30-foot variance from the required rear yard setback of 30-feet to 0 feet and a 5-foot variance in the width of the Landscape Buffer adjacent to Tamiami Trail North from the required 15-feet to 10-feet further described as Section 21, Township 48 South, Range 25 East, Collier County, Florida. Coordinator: (Fred Reischl) Co Do Eo 11. 12. 13. VA-2001-AR-1380, Christopher $. Thornton, Esquire, of Treiser, Lieberfarb, Collins & Vernon, Chtd., representing Raymond F. Erickson, requesting an after-the-fact variance of 1.3 feet from the required 10 feet to 8.7 feet for property located at 231 Pebble Beach Circle, in Section 20, Township 50 South, Range 26 East, Collier County, Florida. Coordinator: (Fred Reischl) PUDA-2001-AR-1404, Dwight Nadeau, of RWA, Inc., representing Conquest Development U.S.A., L.C., requesting an amendment to the Silver Lakes PUD for the purpose of reducing the Park/Travel Trailer area from 26 to 24 acres, the buffer area from 5 to 3 acres, the commons/recreation area from 97 to 78 acres and increasing the conservation area from 3 to 26 acres, for property located at (Chahram Badamtchian) PUDA-2001-AR-1573, George L. Vamadoe, Esq., of Young, van Assenderp, Vamadoe & Anderson, P.A., representing Antaramian Capital Panners, LLC, requesting an amendment to the Sandpiper Village PUD for the purpose of reducing the number of dwelling units from 180 units to 170 units increasing the co~muercial floor area from 45,000 square feet to 52,500 square feet and revising the Master Plan to reflect the Bayshore/Gateway Triangle Redevelopment Overlay for property located on Tamiami Trail East, in Section 11, Township 50 South, Range 25 East, Collier County, Florida. Coordinator: (Ray Bellows) RZ-2001-AR-1165, Michael and Tammy McEndree, requesting a rezone from "A" Rural Agricultural to RSF-3 to allow for two residential lots located on 6025 Everett S~eet on the corner of Polly Avenue and Everett Street (off of Rattlesnake-Hammock Road), in Section 16, Township 50 South, Range 26 East, Collier County, Florida, consisting of 4.55± acres. Coordinator: (Ray Bellows) OLD BUSINESS NEW BUSINESS a. COUNTY ATTORNEY WORKSHOP PUBLIC COMMENT ITEM DISCUSSION OF ADDENDA ADJOURN 12/06/01/CCPC AGENDA/SM/sp 2 December 6, 2001 CHAIRMAN RAUTIO: Ladies and gentlemen, I would like to call to order today a regular meeting of the Collier County Planning Commission for December 6th, 2001. Please stand and join me in pledging allegiance to our flag. (The pledge of allegiance was recited in unison.) CHAIRMAN RAUTIO: Okay. We'll have the roll call. Mr. Midney. COMMISSIONER MIDNEY: Present. CHAIRMAN RAUTIO: Mr. Adelstein. COMMISSIONER ADELSTEIN: Present. CHAIRMAN RAUTIO: Mr. Budd, absent, but excused. Mr. Abernathy. COMMISSIONER ABERNATHY: Here. CHAIRMAN RAUTIO: Miss Rautio, here. 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: We do have a quorum. Thank you. Would there be any addenda to the agenda? COMMISSIONER YOUNG: Yes. In the interest of the commission members, perhaps, getting to know one another a little better, I suggest at an appropriate time that we have a very short let's- get-acquainted session in which each one of us tells who we are, where we came from, and our interest in serving on the board. CHAIRMAN RAUTIO: And that would be in a regular meeting, because we really -- Page 2 December 6, 2001 COMMISSIONER YOUNG: In this meeting, if possible. CHAIRMAN RAUTIO: Because we can't talk to each other away from the public and the microphones. COMMISSIONER RICHARDSON: Why don't we put that down at new business, at the end. CHAIRMAN RAUTIO: At the end of new business? COMMISSIONER RICHARDSON: Or beginning of new business. CHAIRMAN RAUTIO: Well, actually, we'd like the attorney county workshop, to ensure that that's given. COMMISSIONER RICHARDSON: Right. CHAIRMAN RAUTIO: We'll have that take precedence, since we've waited so long for it, over introducing ourselves. Does that feel comfortable? COMMISSIONER ADELSTEIN: That's fine. CHAIRMAN RAUTIO: Okay. It would be No. 10-B, a get- acquainted session. COMMISSIONER YOUNG: Thank you. CHAIRMAN RAUTIO: Thank you, Commissioner Young. Now, do you have some addenda to the agenda? MR. BELLOWS: No. We have no changes. CHAIRMAN RAUTIO: Thank you. Okay. Item No. 4, approval of the very long, tedious minutes of November 1st, 2001. Do we have any corrections to those minutes? COMMISSIONER STRAIN: Yes, ma'am. Page 160 where my comments reference a acronym SNP, it should be SMP, like in site master plan. And that occurs in about three or four different spots on that page, the best I can tell. That's all I have. CHAIRMAN RAUTIO: Any other corrections or revisions to the minutes? Do I have a motion for approval? Page 3 December 6, 2001 COMMISSIONER ADELSTEIN: I so move. COMMISSIONER RICHARDSON: Second. CHAIRMAN RAUTIO: I have a motion by Commissioner Adelstein, a second by Commissioner Richardson for approval of the November 1st minutes. All those in favor say aye. (Unanimous response.) CHAIRMAN RAUTIO: (No response.) CHAIRMAN RAUTIO: Opposed, same sign. Motion carries. Thank you. COMMISSIONER RICHARDSON: Madam Chair, just on the subject of our minutes, in a previous administration, which apparently had poorer eyesight than some of us, we -- he wanted to have this double sided and large spaced. It's getting to be bigger and bigger and fatter and fatter. I wonder if you would consider having it go back to a normal-sized type; because it's a lot to carry around, and we can read it just as well without it being oversized. COMMISSIONER WOLFLEY: Save a couple trees. COMMISSIONER RICHARDSON: Yeah, save a tree here. CHAIRMAN RAUTIO: Or two or three, in this case, with 252 pages of minutes for a nine-hour-and-a-half meeting. MR. BELLOWS: Madam Chairman. CHAIRMAN RAUTIO: It was an unusual meeting. It went long. MR. BELLOWS: Madam Chairman, I'd just like to point out that it was formatted this way to fit on the Web, so maybe the type came out that way because of those purposes. CHAIRMAN RAUTIO: Okay. Could you investigate that to see if there's a change necessary? MR. BELLOWS: Sure. I'll be happy to. CHAIRMAN RAUTIO: And I think that you're right. The font size probably was changed to allow it to immediately go to the Web. Page 4 December 6, 2001 COMMISSIONER STRAIN: As someone who does read all those pages, every word, I like it larger, if it's not objectionable. In fact, if you could make all these things larger, it would make my job easier. CHAIRMAN RAUTIO: Okay. So, Ray, you can report back on that. And I'll add my comment that I kind of like them a little larger myself too, but I hate to kill trees. Okay. Number 5, Planning Commission absences. Do we have any anticipated absences? I believe our next meeting is the 20th of December. Okay. We'll all be here. Thank you. The Board of County Commissioners report for the recaps of November 15th, do we have any -- actually, mine says the 13th. Comments. MR. BELLOWS: Yes. I have a note here that the Board of County Commissioners has directed that Little Palm Island will go back to the EAC, the Planning Commission, and the Board of County Commissioners again, that item. And Mr. Reischl's here to provide additional information on that project, but it will be reheard again and go through the process again. CHAIRMAN RAUTIO: Would you like to give us a short summary of the motivation for the return? MR. REISCHL: Sure. Fred Reischl, planning services. The board directed that the final plat and the ST development permit come back at the same time. The petitioner, through a public petition, asked the board to separate those two petitions because a final plat has construction plans associated with it and if there were any changes made, it would be very expensive to make changes. The board listened to the petitioner and neighborhood residents, and they decided that yes, they can separate the two petitions. However, when the ST comes back, it will be -- not approved, but it'll be looked at with the preliminary plat. So it won't just be the ST permit in Page 5 December 6, 2001 isolation, which is what a lot of the neighbors had an objection to. It'll be the ST, and they'll be able to look at it in the totality of the preliminary plat. So that will come to the EAC, to you, and then back to the board. And then the final plat will go back to the board again. CHAIRMAN RAUTIO: And Little Palm Island was one of the candidates for some state money that did not fall in the high enough ranking; is that not correct? MR. REISCHL: I haven't heard the final rankings yet, but as I understand it, they're, like, in the middle of the pack. CHAIRMAN RAUTIO: Okay. Thank you. MR. REISCHL: And this -- also, just to explain to the members who haven't heard it, it was continued at the board by the petitioner. They looked at the board and saw that denial was coming, and they requested a continuance. And then the board directed them to come back bundled. They since requested the unbundled. COMMISSIONER ABERNATHY: They took a couple of shots at getting through here, didn't they? MR. REISCHL: Yes. A couple different incarnations. CHAIRMAN RAUTIO: Thank you, Mr. Bellows. Do you have any other comments? MR. BELLOWS: That's it. CHAIRMAN RAUTIO: Mr. Richardson. COMMISSIONER RICHARDSON: I have one question. I was reading through this, and I see an item that was approved to appropriate $50,000 from the general fund reserves for professional lobbyist services. Why in the world would the Board of County Commissioners need a professional lobbyist? MR. BELLOWS: I need to check into that. I don't know the reason for that. COMMISSIONER RICHARDSON: Thank you. Page 6 December 6, 2001 CHAIRMAN RAUTIO: Any other comments about the recap? Okay. It's No. 7, chairman's report. I'm going to do something a little unusual today. We have, what, six items on our agenda, and I would like to just have you raise your hands in the audience. I want to get a feel for how many people are here on each individual petition. The first one is the boat dock petition, a 45-foot extension on Bayshore. Thank you. The next one is a variance for Doug Schroeder representing Cocohatchee Nature Center. Nobody here? Okay. And the variance for -- let's see, Christopher Thornton representing Raymond Erickson. Okay. With the RWA, Conquest Development, Silver Lakes PUD. I can't count that fast, but that answers my question. Thank you. And then we have the Sandpiper PUD amendments. Thank you. And then the last one would be the McEndree rezone. Thank you. Okay. I do want to remind the audience that if you wish to speak today, please fill out a speaker's form and bring them to Mr. Bellows over here with whatever item you want to speak on. And we will swear you in individually as each public hearing is opened. And remember, too, to be polite, and do not try to anticipate an answer to a question before the question is asked, whether it's the board or a staff member. Thank you. Okay. Moving right along to Item No. 8, which is our Advertised public hearings. All those wishing to speak today on BD-2001-AR-961, boat dock extension, please stand, raise your right hand, and be sworn in by the court reporter. (The speakers were sworn.) CHAIRMAN RAUTIO: Good morning, Mr. Gochenaur. MR. GOCHENAUR: Good morning. MS. STUDENT: Madam Chair, if there are any ex parte disclosures -- Page 7 December 6, 2001 CHAIRMAN RAUTIO: That's right. We must do any individual disclosures. Do we have any from the board on this particular item? Okay. Now it's your turn. MR. GOCHENAUR: Thank you. For the record, Ross Gochenaur, planning services. The petitioner's requesting a 45-foot extension to create a docking facility protruding a total of 65 feet into a waterway which is about 300 feet wide. The property is located at 115 Bayshore Way in Goodland and contains about 103 feet of water frontage including about 56 feet to the north and 47 feet to the south side of the lot. This is a very unusual lot. As you'll notice from the drawing, the street actually goes through the south half of the lot, but for the property appraiser's purposes, it's treated as a contiguous lot. There is a single finger pier on that south area of the lot here which contains two slips and two boat lifts. The proposed slip is going to be on the north of the lot here in Goodland Bay. There's a single-family home on the subject property. The project consists of the addition of a finger pier and boat lift which would accommodate one 32-foot vessel. The proposed facility would bring the number of slips for this property to three, which could be considered inappropriate for a single-family lot; however, this excess is somewhat mitigated by the unusual lot configuration where it actually has two water frontages. The proposed vessel is relatively large for the small amount of water frontage, and the dock is actually offset to the west, as you can see in the petitioner's drawing. So there would be some impact on the view of the neighboring property owner to the west. That property is currently unimproved. Typically view is such a subjective criterion that I don't weigh that too heavily. But in this case it is a very small, narrow lot, and the waterfront view is basically Page 8 December 6, 2001 a true waterfront view, Goodland Bay. It's not 80 feet of brown canal water. So I do think that this has to be taken into consideration. The petitioner's agent has stated that the proposed dock would not interfere with the construction and use of a conventional dock on that lot to the west. We've received no objections to this petition, but I did receive one telephone call from a gentleman whose name I couldn't understand. I also couldn't understand whether he was objecting to the petition or not. I returned the call and didn't get any call back. I notice that we do have two public speakers. I've talked to Mr. Neal, the petitioner's agent, about this project, and I think he would like to talk to you about the possibility of centering the facility on the lot. I did raise this question with him. I think he'd like to present that to you. Although the project falls afoul of two of our criteria, these are basically subjective criteria, and we don't feel that, in the absence of any evidence to the contrary, that would warrant a recommendation for denial. Therefore, unless something else is brought forward at this hearing to change it, we would recommend approval of this petition. CHAIRMAN RAUTIO: Any questions of staff?. COMMISSIONER RICHARDSON: I have a question, Madam Chair. I notice in the applicant's petition that he says the dock and vessel's going to be 21 feet, and in your report you indicate there's going to be a 32-foot vessel. Can you explain that difference? MR. GOCHENAUR: On page 2 under site information, where it says number and length of vessels to use facility -- COMMISSIONER RICHARDSON: Right. MR. GOCHENAUR: -- that's where I got the 32 feet. COMMISSIONER RICHARDSON: I was looking at Item 8. COMMISSIONER ABERNATHY: Maybe they're talking about different boats. You've got three slips. Page 9 December 6, 2001 MR. GOCHENAUR: I think this is in terms of percentages that the facility would occupy itself in relation to the amount of water frontage. I believe what Mr. Neal did was take the perpendicular facility and measure the width of that to come up with the percentages. There are a few inconsistencies in the application. I've tried to work these out in the staff report, but basically we're talking a 32-foot boat. COMMISSIONER RICHARDSON: Okay. Thank you. MR. GOCHENAUR: You're welcome. CHAIRMAN RAUTIO: Any other questions? Mr. Neal, would you care to present? MR. NEAL: Jerry Neal representing the owner. To answer your inquiry about the 21 versus the 32, the boat itself is 32. The 21 is if you take the shoreline sea wall and the perpendicular projections of the boat coming in and the dock occupies 21 feet of that shoreline length. So when it was talking in -- in reference to the boat to the shoreline length, then I converted it to the projection of-- because the boat's coming in perpendicular to the shoreline length. It's the way it's worded. It's a little ambiguous in that some other agencies I go through, it is the perpendicular projection, so that's what I used in this, was the projection. Staff presented some photos from the site in your package, and if you would look at the view, the site looking northwest, which is on the second page of the photos, you can see that there are some structures sticking out into the waterway. The other exhibit I would like for you to look at is the one that shows the bottom elevations on the application. The waterway is very shallow next to the sea wall. So instead of going to the normal parallel docking for this, we needed to go to the perpendicular. Also, we tried to achieve -- the county objective is to have the prop in about 3 feet of water, and as you can see, the end of the proposed facility is right at the 3 feet elevation. Page 10 December 6, 2001 I did talk to Ross yesterday or the day before yesterday concerning the position of the facility. The facility is proposed because that's where the electric is and the access walkway at this time. I spoke to the property owner, and he said he would not have any objection, if need be, to center the combination of the boat and the dock to the lot, which would, in effect, mean moving the dock and the boat to the east another 5 feet, and then it would be centered. We have the permit from the Army Corps of Engineers, and we have the permit from the Department of Environmental Protection already. If there's any questions or if the neighbor has any comments, I would like to have the opportunity to come back and address those comments. CHAIRMAN RAUTIO: Do we have any questions from the board? COMMISSIONER STRAIN: I just have a question. It might be more related to staff or Marjorie than to you, Jerry, and that's can -- there's going to be three docks there, in essence, if this is approved. Are they allowed to lease these docks out? Does anybody know? MS. STUDENT: Well, I think that you get into the issue of it being a marina. I don't know at what number of docks -- maybe staff can assist with that, as to whether it would be considered a marina or not. MR. GOCHENAUR: Marina or not, that would be considered a commercial use of a residential property, and that's prohibited by the Land Development Code. He could not legally rent or lease any slip. COMMISSIONER STRAIN: That's the assurance I wanted to hear. Thank you. CHAIRMAN RAUTIO: Any other questions? Okay. Do we have registered public speakers? MR. BELLOWS: Yes, we have two public speakers. The first Page 11 December 6, 2001 one is Diana Noble. CHAIRMAN RAUTIO: live. Please state your name and where you MS. NOBLE: My name's Diana Noble, and I'm a resident of Collier County in the Golden Gate Estates area. My interest in this particular adventure is that we spend a lot of time in the Goodland area. I don't know if any of you have ever been there. But when you first drive into Goodland, there's a big sign, and it says historic fisherman's village. My concern, aside from the fact that I care about the other people that live there, is that this'll open the door for an already very narrow, difficult channel at low tide. When they bring this dock out, it's going to come into the waterway that is currently being used. I -- I'm not an expert, but I sit there -- put the other picture up, if you would, please, the one that shows the property lots on the -- the other little thing that shows the lots. MR. BELLOWS: The site plan? COMMISSIONER ADELSTEIN: The lots. MS. NOBLE: Your other picture. You only had two up. Not -- CHAIRMAN RAUTIO: It's not a photograph. MS. NOBLE: The map. That one. Okay. When you come around there -- see the number "7"? If you come around that and go towards that where they're going to put that at, the channel there's already very narrow. And when the boats -- on a Sunday afternoon or Saturday afternoon at low tide, it's very, very difficult to maneuver through there. And if you've got a 65-foot dock sticking out, it's going to make it even more difficult. Now, as far as I can see, only greed would allow that because they already have boat slips in a protected cove behind that property. If you allow a 65-foot boat dock there, it's going to -- what they're not showing you is that there's a channel marker right directly out from where that's going to be, and you're going to narrow that area. I Page 12 December 6, 2001 didn't measure it, but I have been out there with my boat. It's a very narrow area. If you allow a 65-foot boat dock there, you're going to open the door to everybody along there requesting that, and you're going to have a very changed atmosphere. Goodland is a quiet, small community. It's not Marco Island. It's not Port Royal. You start slapping 32-foot boats, you're going to get 45-foot boats and everything else along there. And you're going to lose the quality that allows people like myself and my family to afford to go there, play there, enjoy. I mean, when you go there, you can go there and say, "This would be a nice place if we got rid of the mosquitoes, if we got rid of the flooding." Well, there are a lot of us that go there because of the birds and the wildlife and the fishing. And I just think you're opening the door to a nightmare, and I wanted to voice that before you approve it. And I really think before it gets approved, somebody, all of you, should go visit that site and see how close it's going to put that dock to the channel marker because feet and measurement don't make a difference until you look at it. That's all I wanted to say. CHAIRMAN RAUTIO: I have a question. Could you point on that map where you believe you're saying that it's so shortened? MS. NOBLE: I can't believe -- I work in a law office that works with real estate. And I'm not an expert on this stuff, but I do -- can you put this back up? I -- I'm a little bit amazed that they were able to get the permitting and things, but I see a whole lot of stuff, and I work in a law office where I see lots of things get approved. And I work with big developers, and I can see where this will go. CHAIRMAN RAUTIO: My question is, on-- where is the channel marker? MS. NOBLE: Right directly across. Right about there. CHAIRMAN RAUTIO: And how -- how many feet do you think that is? Page 13 December 6, 2001 MS. NOBLE: You might be able to see it on one of these pictures. CHAIRMAN RAUTIO: Because the -- the area there is 300 feet wide, according to our maps. MS. NOBLE: That's 300 feet wide, but I'm telling you the water's about knee deep many, many of those feet. There's a channel of the river, and the next speaker maybe can expound.a little bit more because he's been in that area -- he's been in that area for, you know, more than 50 years. But you run your boat aground if you get out of that channel, especially a 32-foot boat. Where you're showing at the end of that pier -- I believe that you said 10 foot at the end of that pier is going to be the water clearance at the end of that pier. That's about as deep as this chan-- I don't know how deep that channel gets through there. It's not very much more than 10 feet in my experience from my bottom finder. You may be able to say differently. But at dead low tide, we need that part of the channel because you've got -- sometimes when we're sitting there on Sunday afternoons -- and we work out of Goodland -- you may have 10, 15, 20 boats go through there in a span of 20 minutes. And when they're passing one another and whatnot, it's going to be a bad situation. This is not Marco Island. This is not Port Royal. He already has a protected cove, slip for his belongings, and I just think it's unreasonable at this point in time. Now, when they go in there and smash everything down and build condominiums and dredge and do the other things that may be in the future, fine. But right now I think it's the wrong thing to do. CHAIRMAN RAUTIO: Do we have any other questions from -- Commissioner Wolfley. COMMISSIONER WOLFLEY: You stated it's shallow. It is, indeed, shallow. I've been through there. The -- and that's also the concern for the petitioner, is that they have to get out that far so that Page 14 December 6, 2001 their -- our precious propellers don't get ruined when he's docking. MS. NOBLE: Again, you come back to a point where that's a very small lot. It's a very narrow lot. I don't think -- I mean, the house that's constructed there goes to the very limits of what's allowed. I think that this boat slip -- I mean, it may have had to get a variance to build the house that's there. It's already going over and above the bounds of that community, what's customary there and what's comfortable there and why people go to Goodland. It's -- it's a place to go to get away. We don't need great big, huge -- I mean, I don't know. If you buy a 32-foot boat and you want to put it in a river where it's not deep enough, that's your problem. You know, what's going to be next? They want to put a 45-foot boat and -- and dredge and change everything more? I don't understand. I just think it's greed. I mean, there is already a channel that goes back behind. I took my boat last week, and I went around there to see, you know, exactly what. I took an 18-foot boat back there. I haven't tried to take the 23-foot or the 40-foot boat. I don't know if it'll go back there. I think it's something that -- that warrants more investigation before you permit it. CHAIRMAN RAUTIO: Thank you. COMMISSIONER RICHARDSON: CHAIRMAN RAUTIO: Excuse me. Strain has a question for the speaker. Any other questions? I have a question for staff. I think Commissioner COMMISSIONER STRAIN: Just one. The applicant had referred this as to the west is a marina with a 50-foot protrusion. Are you aware of that? MS. NOBLE: Which way is west? I get confused. COMMISSIONER STRAIN: I don't know. I mean, I just -- since you're familiar with it, is there a marina nearby that has a 50- foot protrusion? And if there is, does that affect the navigation? MS. NOBLE: On this waterway I can't think of any 50 foot. I Page 15 December 6, 2001 don't think that the one -- there's a restaurant property a few lots over, and it has numerous boat slips in a land lease from the state, and those do go out farther. And on your picture in your packet that I'm looking at, 65 feet the way that we were measuring it would bring it out -- you can't see. And if I -- there are two rows of pilings in that colored picture that are out. 65 feet, if I'm not mistaken, would bring them about out to the first row of pilings there in front of that restaurant. But that sea wall in front of that restaurant where you see those protruding, that sea wall is out farther. The land comes out farther, so it's not longer that way. And I'm not sure if it is 50 feet. It could be out to 50 feet. COMMISSIONER STRAIN: I need to maybe rephrase my question to the applicant. MS. NOBLE: There's no marina on this waterway that I'm aware of. CHAIRMAN RAUTIO: Okay. So we'll ask the applicant then. Any other questions of the speaker? Thank you. We have another registered speaker. MR. BELLOWS: Yes. Clyde Cameron. MR. CAMERON: I don't know how to work these machines. CHAIRMAN RAUTIO: Please state your name, sir. MR. CAMERON: I-- I own-- CHAIRMAN RAUTIO: Sir, you have to state your name for the record and into the mike. MR. CAMERON: He remembers me. I'm-- CHAIRMAN RAUTIO: Sir, up here. MR. CAMERON: Okay. CHAIRMAN RAUTIO: Thank you. MR. CAMERON: Glad to talk to you-all. Good morning. I own the -- the lot -- in fact, the lot this man has built on was mine. Through a divorce, he got it. I'm going to build my home on the one Page 16 December 6, 2001 next to him. And, like she said, that restaurant, the sea wall does come out. See, I own four lots, or five, along here. But the thing is I put in for nothing over two stories in that community. I put riffraff (sic) sea walls in there. And, believe me, I should be kissing this guy. All he's doing is making my property value up, I mean. But I don't like it. And he has -- and they're only going to redredge. He has a protected bay channeling where he has his new boat docks and two Jet Skis already in the protected cove behind it that he built this very large house. I can't see down the road no more, but it's okay. I don't own it. I want to keep Goodland Goodland. The man has plenty of facilities. And if he wants to, just like me -- I have a 40-foot boat tied up there sideways because -- she's talking about all this depth and everything. I've fished there all my life. Some mornings I can't even get out. But where he's talking about, that is the Marco River. It is the navigable marked waterway through -- going, you know, out to the Keys. So if he extends that out there that far, it will definitely cut down the channel. And, like, right now he's saying he's got his permits and everything, I got $1800 submerged land lease I got to pay this week. I know about it. But he has a protected dock. He has a brand-new boat, two Jet Skis already behind the house. But if he wants a dock out in front of his house, no problem. Just make it like it should be. It doesn't need to go extra bunch out there in the main channel because there ain't room. And, like she says, you know, with the save everything, you know, we can't save it all. I've lived here all my life. There was not one thing on Marco Island when I was a child but one building on the beach. I know how people feel, believe me. Take your nets and move to the third TP on the right, if you understand what I mean. I just -- I don't think the man needs to extend his dock out into the channel that far. Now, whether you-all want to let him or not, that's up to you-all. Page 17 December 6, 2001 COMMISSIONER RICHARDSON: Could I ask you a question? The material we've been provided says that it's going out that far in order to get to the 3 foot water depth. MR. CAMERON: Yes. It's just like he was saying. You know, and in jest -- I don't know how to work these things, but in jest those pilings he's making reference to, that piece of property was listed as Marco Island Marina about 40 years ago. It was the first marina on Marco. Before anything was on Marco, that was called Marco Island Marina. It hasn't been a marina for many, many, many years. I had the little restaurant there which isn't open due to the divorce thing too. But I would like to see Goodland stay small, and I know everybody wants to change it. But the main point being that that's the navigable waterway, the main river. That's Marco River. And if it protrudes out, in the low spring tides, like wintertime, like right now how low it gets, I guarantee you he better have it lighted continually, every second. And I think it would actually obstruct the waterway. COMMISSIONER RICHARDSON: My question is, you suggested that it should be shorter. MR. CAMERON: I think-- what is your standard, 45? That would hold a 30-something-foot boat, won't it? COMMISSIONER RICHARDSON: It's not the question -- what comes before us is something that's longer than 20 feet. But the conditions that we typically look at are getting to deep enough water at the end of the dock, and I'm just trying to get your opinion as to what the -- what water depth you think would be appropriate for him on -- on the north side here. MR. CAMERON: Depends whether it's spring tides or -- COMMISSIONER RICHARDSON: You pick your tide. MR. CAMERON: Because my -- okay. Take any tide. In behind the restaurant where he said those pilings are out -- which the Page 18 December 6, 2001 sea wall does come out, well, the length of that building further than the other sea wall that protrudes out, and that whole area is totally dead and useless. On low spring tides, I cannot pull any boats behind my restaurant. I know what he's up against. But my point being made is if he extends further out into the channel, it is going to cut it down to where it will be problems on navigation. COMMISSIONER RICHARDSON: Okay. Thank you. MR. CAMERON: Thank you. CHAIRMAN RAUTIO: Thank you. Do we have any other registered public speakers? MR. BELLOWS: No, Commission-- Madam Commissioner. CHAIRMAN RAUTIO: Mr. Neal, would you care to answer a few of these questions? I think we want to know a little bit more about that 50-foot marina which this gentleman has alluded to and said it's not there; the concerns of cutting down the channel, the navigation; and just how far the extension would need to be to get to water that a boat 32 feet could sit in; and anything else you thought of. MR. NEAL: Okay. Again, Jerry Neal. The facility that we had discussed before in the photograph showing the pilings out to the northwest, it was back in the mid-'80s, late '80s that that was also used by a friend of mine who had sailboats for rent, and he was tying up all his sailboats there. So it has been used as a marina closer than 40 years ago. He was utilizing it ten years ago. The -- the question of the narrow channel, if you would, there are two exhibits I would like for you to look at. If you would look at the -- the one that is the first photograph taken by staff, you can see the channel marker on that photo out there. If you would look at the last photograph taken by staff, you can see the channel marker, and you can see a boat on the other side of it. Now, if you would, Ross, go to the other -- the other photo, the Page 19 December 6, 2001 last one -- the last one of your series. And you see the boat on that one on the other side of the marker. The exhibit that was submitted with the application, which is the profile that's in your package, you can see the bottom begins to fall off at the end of the proposed dock, which is -- we're proposing right now is only 3 feet deep at mean low water, which is the criteria for measurement for Collier County. We are not in the navigational channel. We are just to a point of where the slope begins to fall down to the channel and where it's deep enough to be able to have a boat without having it sit on the bottom. There were some mentions of having a facility at the rear of his lot. This area that they're referring to does have an entrance. If you would, Ross, your exhibit that showed all the lots, your very first exhibit. You can see on the extreme right there is a point lot, and right there is a waterway coming in. That narrow waterway, I've been working on it off and on for 20 years. It does fill in. It does create a problem getting boats in and out because of the configuration of it. And a storm does close it off, not totally to water, but fills it in such that it's not navigable. As Speaker No. 2 was talking about, that his boat is in the back, in that bay area, the shelter area, which he said that he cannot get out with his boat either. This particular lot owner I'm representing would like to be able to utilize his boat and not depend on the fact that half the time when the tide's low, he cannot use his boat. There was one other statement made. I think it's been clarified. I believe she said that the water depth was 10 feet at the end of the dock. It may be 10 feet out in the channel, but as we have demonstrated, it's only 3 feet deep where we're terminating the dock. I can't remember any other issues they had. CHAIRMAN RAUTIO: They were talking specifically about the width of the channel itself and protruding 65 feet out. MR. NEAL: Okay. As you could see from the two photographs Page 20 December 6, 2001 that staff had given you which we had on the board a minute ago, one showing where the marker is, the other one showing where the boat is traveling on the outside of it, we are considerably landward, with the end of our proposed facility, of that channel marker. We may-- may not even be halfway out to it. CHAIRMAN RAUTIO: Thank you. COMMISSIONER RICHARDSON: Specifically on that channel marker, how -- how far is the channel marker from the sea wall? What's that distance? MR. NEAL: I did not measure it when we were in the field. COMMISSIONER RICHARDSON: But you're suggesting that the dock, which would be 65 feet, is only halfway out to where the channel marker would be, so that's -- it's over a hundred feet? MR. NEAL: Yes. We went a hundred feet out on our bottom elevations from the sea wall, and we were not to the marker yet. COMMISSIONER RICHARDSON: And does boat traffic -- just educate me -- does it go on the outside of that channel marker or the inside, inside meaning land side? I remember red right returning, but I don't know what this is. MR. NEAL: As you can see on the photograph that we showed, the last one of the series from the staff, the boat is on the opposite side of the channel marker. COMMISSIONER RICHARDSON: But I don't know what the water was then. You know, it might have been high tide. They don't necessarily stay in the channel if they've got enough water. How does this channel marker function, is my question. There's got to be some boat people in the crowd. MR. NEAL: Well, I've been on Marco for 20 years, and I've been through there for 20 years, but I can't remember exactly the channel width right at that point. COMMISSIONER RICHARDSON: But of interest to us is that Page 21 December 6, 2001 you're saying that it's at least a hundred feet away from the -- from the sea wall, and the impediment we're looking at here, which is the dock, is something not quite half-- or maybe a little more than half of that. MR. NEAL: Right. When we were taking our tape and measuring a hundred feet and getting our bottom depths, we were still a considerable distance from the channel marker at a hundred feet. COMMISSIONER WOLFLEY: As a follow-up to Commissioner Richardson's thoughts, then boats going out would be on the land side of that marker; is that true? MR. NEAL: They'll be on the opposite side. COMMISSIONER ABERNATHY: North of it. COMMISSIONER WOLFLEY: No, coming back in. CHAIRMAN RAUTIO: Sir, you can't speak from the audience. MR. WOLFLEY: That's my point. So they are going to be between the marker and the dock, the boats. MR. NEAL: If that's a red marker. Red right return, yes. CHAIRMAN RAUTIO: I think Mr. Abernathy and then Commissioner Strain. COMMISSIONER ABERNATHY: If it's red right returning, that means you hold the marker on your right, so that would put you north of the marker. COMMISSIONER RICHARDSON: It depends which direction you're coming from. COMMISSIONER ABERNATHY: It depends on where you're returning to, I guess. CHAIRMAN RAUTIO: Okay. We may ask-- COMMISSIONER ABERNATHY: It makes a big difference. What was the depth at a hundred feet out? MR. NEAL: 4.8. COMMISSIONER ABERNATHY: And you don't know what Page 22 December 6, 2001 it is at the marker? MR. NEAL: No. Like I said, we went out a hundred feet and stopped short of the marker. This is based off of mean low water, which is a minus one-half foot from sea level. So that is the -- again, the criteria of that mean low water. These depths are referenced to that. CHAIRMAN RAUTIO: Commissioner Strain. COMMISSIONER STRAIN: Yes. Jerry, I need to go back to my original question. This 50-foot dock, does it exist, or does it not exist? You said it was a 40-year-old marina? MR. NEAL: One of the speakers referred to it as such. COMMISSIONER STRAIN: What are you -- what was the applicant referring to in regards -- in location -- what was this 50-foot dock the applicant was referring to? That's what I've been trying to get to. MR. NEAL: We're referring to this right here in your photo, this area. Also, that happens to be the very first photograph of the staff in your package, is shooting to the northwest looking at that facility. COMMISSIONER STRAIN: Okay. So those docks right there are 50 feet in length; is that what you're saying? MR. NEAL: As I scaled them off this aerial, yes. The aerial was 1 inch equals 200 feet. COMMISSIONER STRAIN: Okay. Thank you. CHAIRMAN RAUTIO: Any other questions? Do we have any questions of staff?. COMMISSIONER RICHARDSON: Two questions for staff, if I may. CHAIRMAN RAUTIO: Go ahead. COMMISSIONER RICHARDSON: There are other -- looking at the aerial and hearing the testimony, there are other docks on this Page 23 December 6, 2001 north shore; is that correct? MR. GOCHENAUR: Yes, sir. You can see -- COMMISSIONER RICHARDSON: I was a little confused by some of the public comment that suggested that maybe they just didn't want any more docks there, but there are docks on that frontage. MR. GOCHENAUR: That's correct. There's a dock on the adjacent lot that the petitioner says is about 26 feet long, and from the aerial you can see at least two similar perpendicular docks off to the east. COMMISSIONER RICHARDSON: One last question then. Is there an ST overlay on this district that would in some way impact the historical nature of this, that would not permit docks to go in? MR. GOCHENAUR: No, sir. CHAIRMAN RAUTIO: Mr. Neal, do you have any other comment? MR. NEAL: No, thank you. CHAIRMAN RAUTIO: Okay. No more registered public speakers? MR. BELLOWS: No more. CHAIRMAN RAUTIO: I think I'll -- you have two minutes. I'll let you speak. State your name again and respond quickly, and then we'll give Mr. Neal an opportunity to clarify if necessary. Thank yOU. MS. NOBLE: Okay. I just wanted to clarify -- CHAIRMAN RAUTIO: State your name. MS. NOBLE: I'm Diana Noble. CHAIRMAN RAUTIO: Thank you. MS. NOBLE: And I have navigated a 40-foot boat through that channel, not my own. And the boats -- when you leave to go out into the Gulf-- okay. The channel marker is here; the dock they want to Page 24 December 6, 2001 do is here. I -- I'm guessing -- he said they stopped short of a hundred foot with their measurement, and they were just short of the marker. It may be a 120 feet exaggerated. If you come out 65 feet -- and they've already demonstrated to you how low and shallow the water is. Mr. Cameron's boat is a 40-foot boat. Ifs parallel to the shore. He would not oppose, I would not oppose, I can't think of anybody who would. You're in shallow water. When he referred to the second speaker saying that he put his boat back there and couldn't get it out at low tide, we're talking about on the north side. On the north side at low tide, often you have to wait to get your boat out because it is too shallow. It's something that we all deal with. Sometimes your boat sits in the mud. Okay. So that's -- you know, he does not take it in the back. That was a mistaken quote. The space between that channel marker and the end of that dock is going to be, judging -- and you know what they say about women and tape measures -- narrower than the length of this room. And I really urge you, before you approve this, to go look and see where the 65 foot end will be. We do not oppose a boat dock altogether. We oppose a boat dock that long. We think it should be in keeping with the others that are in the area, and it should not come out into an already shallowing channel. CHAIRMAN RAUTIO: Thank you. Mr. Neal, any other comment.'? I'm going to close the public hearing. MR. NEAL: No. Thank you. CHAIRMAN RAUTIO: Okay. the public hearing. What's the pleasure of the board? discussion here too. COMMISSIONER ADELSTEIN: No further speakers? I close I think we have some Yes. There were two items Page 25 December 6, 2001 that the staff stated that kind of affected me when I read it at first, that the way it's structured, the view of the neighbors -- that may not even be there yet but would buy the property -- would be affected, and that kind of bothered me. But more importantly the statement that staff made about it being inappropriate in relationship to the size of the lot also gives me a feeling that -- that and the other issues coming up, I find it very difficult to find a way to approve this, in my own personal feelings. CHAIRMAN RAUTIO: Commissioner Strain. COMMISSIONER STRAIN: Commissioner, I voice a similar concern. I think that a dock there is a right of the property owner, but to go 300 percent or more than what the current restrictions afford is a little concerning. I think if we were to restrict it to the docks that are like that in the neighborhood, meaning 50 feet, I would be comfortable with that. But I can't see setting a precedent by going beyond what's already there. CHAIRMAN RAUTIO: Any other comments? Mrs. Young? COMMISSIONER YOUNG: I agree. CHAIRMAN RAUTIO: Do we have a motion so we can-- COMMISSIONER STRAIN: I'll make a -- CHAIRMAN RAUTIO: -- move forward? COMMISSIONER STRAIN: Madam Chairman, I'll make a motion that we approve a boat extension -- a dock extension to BD- 2001-AR-961 no greater than 50 feet. COMMISSIONER YOUNG: Second. COMMISSIONER ABERNATHY: Fifty? COMMISSIONER STRAIN: Fifty. CHAIRMAN RAUTIO: Okay. I have a motion by Commissioner Strain, a second by Commissioner Young. And there's a comment from the county -- assistant county attorney's office. Page 26 December 6, 2001 MS. STUDENT: Point of clarification. Is that 50 feet inclusive of the 20, which would amount to a 30-foot extension? Because he's asking -- COMMISSIONER STRAIN: Yes, ma'am. That's how I -- that's how I intended it. MS. STUDENT: I just wanted to clarify that. COMMISSIONER STRAIN: Fifty total feet. MS. STUDENT: Thank you. CHAIRMAN RAUTIO: Okay. We have a motion and a second. Do we have some further discussion? COMMISSIONER RICHARDSON: Just -- I need some clarification, then, as to how deep it's going to be at the end of the dock. If it's only a foot and a half, I don't know if we've really -- I don't think we're really following our own ordinances. Can someone scale that and tell me where 50 feet would be? COMMISSIONER WOLFLEY: 2 1/2 feet. CHAIRMAN RAUTIO: It's about 2 1/2 feet, the way I read it in here. COMMISSIONER RICHARDSON: Okay. So we're saying that -- that we believe that this boat can function at 2 1/2 foot depth of water. CHAIRMAN RAUTIO: Actually, we're talking about the dock, and they are telling us that a 32-foot boat would go there. COMMISSIONER STRAIN: I've got a boat that'll function in 5 inches of water. COMMISSIONER RICHARDSON: You know, we've had these come up before a lot, and I'm not sure that the -- they have to get permits from a lot of people that's looked at the depth of the water at the end of the dock. And I thought our criteria went more towards the direction of 4 feet at the end of a dock. MR. GOCHENAUR: Sir, there's no criterion in the Land Page 27 December 6, 2001 Development Code that addresses water depth specifically. There are DEP criteria that address water depth, but our LDC doesn't have any such -- COMMISSIONER RICHARDSON: Well, since he's up could I just ask, how does the DEP, then, relate to this application? MR. GOCHENAUR: My understanding -- and Mr. Neal can correct me if I'm wrong -- is that it's minus 4 feet mean low water. MR. NEAL: That is the recommended depth, yes, is 4 feet. COMMISSIONER RICHARDSON: So he would be in violation of DEP, then, with a dock that doesn't go to -- MR. GOCHENAUR: No, sir. That's the greatest distance a dock can protrude. Once you've reached minus 4 feet mean low water, the DEP will not allow you to go further than that. COMMISSIONER RICHARDSON: So it puts an outside limit then. MR. GOCHENAUR: Yes, sir. CHAIRMAN RAUTIO: Mr. Gochenaur, would you also clarify if there's anything in the Land Development Code that says it guarantees the size of a boat and that we have to have the size of the boat when we're talking about the dock extension? MR. GOCHENAUR: No, ma'am. We have never made an attempt to limit the size of a boat a property owner can have. The only criterion that addresses that is whether or not it's appropriate in relation to the water frontage, and what you have here is small water frontage and a big boat. It's a subjective criterion. But if you don't approve the petition as requested, he probably won't be able to float the boat that he has. So in denying the complete extension, you'd basically be saying, "You have small water frontage, you knew that when you bought it, you should have a smaller boat." CHAIRMAN RAUTIO: Right. But that's really not in the land code, and-- and it's only an implication; it's not something we're Page 28 December 6, 2001 absolutely doing. MR. GOCHENAUR: That's correct. CHAIRMAN RAUTIO: Is there any legal comment that you would like to make on that, Marjorie? MS. STUDENT: No. CHAIRMAN RAUTIO: Thank you. COMMISSIONER RICHARDSON: It does seem to me, however, that by limiting it to 2 1/2 feet, that we're now setting a precedent for all future boat docks, that they cannot go out more than a 2 1/2 foot depth if it falls within our Land Development Code. CHAIRMAN RAUTIO: I don't look at it that way. COMMISSIONER ADELSTEIN: I don't either. COMMISSIONER STRAIN: I don't either. COMMISSIONER ADELSTEIN: Each case is its own case. COMMISSIONER RICHARDSON: If-- it's not precedent- setting then, is what I would ask our attorney. MS. STUDENT: I don't view it that way because in real estate law every property is looked at as being unique. COMMISSIONER ADELSTEIN: That's right. CHAIRMAN RAUTIO: Okay. If there's no further discussion, I call the question. All those in favor say aye. (Unanimous response.) CHAIRMAN RAUTIO: Those opposed, same sign. (No response.) CHAIRMAN RAUTIO: Apparently it has passed unanimously for a 50-foot boat dock. Next stop, board of-- MR. NEAL: Thank you. CHAIRMAN RAUTIO: Thank you. Next public hearing would be VA-2001-AR-1207, Cocohatchee Nature Center. All those wishing to present testimony today, please stand, raise your right hand, and be sworn in by the court reporter. Page 29 December 6, 2001 (The speakers were sworn.) CHAIRMAN RAUTIO: a petitioner. Does anyone see MR. REISCHL: He just CHAIRMAN RAUTIO: MR. REISCHL: He was CHAIRMAN RAUTIO: I don't recognize anywhere out there is anybody? walked in. He just walked in? out in the hallway. Okay. He's going to have to stand and be sworn in. The court reporter's right here, so please raise your right hand and be sworn in. (The petitioner was sworn.) CHAIRMAN RAUTIO: Thank you. Now I guess we can proceed. Mr. Reischl. MS. STUDENT: Madam Chair, any disclosures? CHAIRMAN RAUTIO: I'm going to catch those disclosures again. Do we have any disclosures on this particular item? Hearing none, we can -- COMMISSIONER ABERNATHY: Yes. I spoke to an employee of The Conservancy about this item. CHAIRMAN RAUTIO: I spoke to staff to correct a couple of items. COMMISSIONER STRAIN: I, too, spoke to an employee of The Conservancy about this item, I just recalled. CHAIRMAN RAUTIO: Okay. MR. REISCHL: Good morning, Commissioners. This is a request for two variances on a parcel that was previously approved for a conditional use and a special treatment development permit. As you can see on the visualizer, the parcel is off Tamiami Trail North on the west side of an island that probably is most famous for the Pewter Mug Restaurant being on the eastern side. And that'll get you a better idea of what the island actually looks like. And just for the record, technically it's not even an island anymore because of the Page 30 December 6, 2001 northern passage has basically silted in, and it's -- you know, there's not a passage through that way. So it -- COMMISSIONER ABERNATHY: Pewter Mug is on the same -- same island? MR. REISCHL: This is the Pewter Mug over here. Right. COMMISSIONER ABERNATHY: There's no division under the road. It's a continuous island. MR. REISCHL: Yes. Continuous piece of land. COMMISSIONER ABERNATHY: Under the highway. MR. REISCHL: Right. There's a request for a rear yard variance from 30 feet to 0 feet. And on the site plan here you can see 41 out here, and you can see the wetlands coming up this way, which even though the applicant owns the parcel, the wetlands are where the setback's going to be measured from, so he's getting up to a 0 setback on a portion of the structure. And, again, to clarify things -- and I already said this in the staff report, but this is not at ground level. This entire structure is an elevated slab approximately 6 feet up, so he entire thing is a structure. It's not just the building. The entire platform, I guess you can call it, is considered a structure. And the second request is for a landscape variance for the buffer along 41 from 15 feet -- the required 15 feet to 10 feet. There -- there is a land-related hardship. This is a little-over-2-acre island in the ag district. The minimum size is 5 acres. This was not created, obviously. It's an island. There are physical limitations on it. And in speaking with the applicant, there are alternate landscaping schemes, I guess, that are going to be -- that he agreed to plant in other areas except right along 41. Our landscape architect, Nancy Siemion, is here if you have any specific landscape-related questions. And we received no objections to this. Chairman Rautio gave me a phone call, and I passed out a corrected resolution. While I was typing out the staff report, Mr. Page 31 December 6, 2001 Schroeder amended the site plan a little bit, so he removed two variances. Originally there were four variances associated with this. Two of them were removed. I corrected it in the staff report. I did not correct it in the resolution. And the chairman asked me to bring a new resolution, which I gave to you this morning. CHAIRMAN RAUTIO: And I'm having trouble locating it in all the pieces of paper. I'm sorry. anyone else up here see that? COMMISSIONER STRAIN: COMMISSIONER YOUNG: CHAIRMAN RAUTIO: Okay. MR. REISCHL: Everything's the same. I was looking desperately. Does Yes. I've got my copy. Here it is. It-- basically it removed the two variances that he no longer needed. CHAIRMAN RAUTIO: Everyone satisfied with that? Do we have any questions? COMMISSIONER STRAIN: My questions will be to Marjorie. CHAIRMAN RAUTIO: Commissioner Abernathy, yes. COMMISSIONER ABERNATHY: Do I understand that this platform that elevates this entire project is already in place? MR. REISCHL: No. COMMISSIONER ABERNATHY: I thought that's what you said. It's all an elevated platform. MR. REISCHL: It will be. COMMISSIONER ABERNATHY: It will be. MR. REISCHL: Yes. I'm sorry. COMMISSIONER ABERNATHY: Well, I have serious reservations about this entire project. There is a land-related hardship, and that stems from the fact that somebody bought a piece of property and is trying to do something on it that won't fit on it. There's an old expression about putting 10 pounds in a 9-pound sack, and this looks more akin to putting 25 pounds in a 9-pound sack. I Page 32 December 6, 2001 just -- it just strikes me as ill-advised, and the only thing right about it, perhaps, was the price of the piece of land because it's probably not usable for anything else. So I take a dim view. If there ever was a case of being stringent about variances, this would seem to me to be the one. COMMISSIONER STRAIN: Madam Chair. CHAIRMAN RAUTIO: Commissioner Strain, I think. COMMISSIONER STRAIN: I basically have a -- Marjorie and I talked earlier this week about my concern that this is an ST overlay, and I thought that it would really fall under the EAC's review because of section 2224.10. And, Marjorie, you were going to research that for me. MS. STUDENT: I did. And I checked with staff, and they already received their ST permit when they applied for and received the conditional use, and it would have been taken care of at that time. COMMISSIONER STRAIN: But, see, the -- MS. STUDENT: That's what I'm told. Mr. Lenberger's here. He may be able to address it, but I spoke with Mr. Lenberger. COMMISSIONER STRAIN: I did too and-- but the -- I went back and reread the section of the LDC. It says any modification of a site alteration plan or site development plan as approved by the county, which would alter the intent and purpose of these ST regulations, requires procedure and approval as if for a new petition. And going from 30 feet setback to 0 seems to be an alteration. MS. STUDENT: I would defer to Mr. Lenberger. He's our expert on the ST, and it talks about the intent -- alteration of the intent and purpose of the petition for the ST. It would seem to me that that might have something more in the nature of a change in land use, but I'm going to defer to Mr. Lenberger because he works with those. And it's very rare -- they're very rare that they come through at the board level through the county. Page 33 December 6, 2001 MR. REISCHL: I can even answer most of the question, I believe. The 30-foot setback doesn't really relate -- setback variance doesn't really relate to the ST permit. The ST permit showed basically the same development area. And where the -- the platform is in relation to the rear property line, which is basically past the mangroves or, in this case, the water line, it was still the same square footage that was approved for the ST. And on the ST resolution that the board approved, one of the conditions was the planning services director may approve minor changes to the site plan. We usually put that in. If something comes up where it can't fit on there, they can move it around so they're not locked into a conceptual site plan on an ST or a conditional use or something. COMMISSIONER STRAIN: Reducing a setback from 30 to 0 is considered minor? MR. REISCHL: No. But that's why -- CHAIRMAN RAUTIO: That's why he's here. MR. REISCHL: -- he's in front of you for this petition. COMMISSIONER STRAIN: Okay. But then why wouldn't it go back before the EAC -- EAB? That's where my concern is. MR. BELLOWS: For the record, Ray Bellows, if I may, chief planner with the current planning staff. The conditional use application provides for a development area that includes the building envelope and more than is being shown here. The actual shifting of the building, thus, has no effect to the conditional use. The conditional use allows for the shifting of the buildings. Where it runs afoul is the actual setback standards, and I believe this is zoned -- MR. REISCHL: Agriculture. MR. BELLOWS: -- agriculture, which is a very stringent setback requirement. If they rezoned the property to PUD, they could have set their own setback requirements. This does not trigger an EAC rereview because the conditional use anticipated this building Page 34 December 6, 2001 envelope being developed at some point. Therefore, rightly so, it does not need to go back to the EAC. COMMISSIONER STRAIN: That's kind of where I was trying to -- that's the -- MS. STUDENT: I just would offer this further, that if there was something about this that would encroach into an ST area or something like that that was beyond the limits, as Mr. Bellows said, then it may well have to go back. But I don't see this happening in this case. CHAIRMAN RAUTIO: Commissioner Strain, are you-- MR. REISCHL: That's a good way to put it, is that it doesn't encroach any further into the ST than what was approved by the board. And I did research the chain. The EAC unanimously approved it. This board unanimously approved it. And it went to the board where-- CHAIRMAN RAUTIO: Okay. COMMISSIONER STRAIN: That answers that question. I did have one other, and that's concerning there's no turn lanes going into this off of U.S. 41. And when you get in that area, it's six laned and quite fast. I'm just wondering, has this site plan -- without any turn lanes, just a direct exit on and off 41, has that been acceptable to transportation or do you know if that's what they intend to do? MR. REISCHL: We discussed that with the petitioner. As far as I know, he was -- he either has or was about to receive his FDOT right-of-way permit. The -- if you were -- if you drove by the site, you saw that the entrance was already constructed in the right-of- way, so it's already there. FDOT has approved this without a turn lane. COMMISSIONER STRAIN: Okay. CHAIRMAN RAUTIO: Commissioner Abernathy. COMMISSIONER ABERNATHY: One other question. Page 35 December 6, 2001 There's language in here to the effect that if thus it so happens, the petitioner would have to destroy additional wetlands for fill. But if he raises the platform, he wouldn't. What mangroves have already been destroyed? MR. REISCHL: Those that fall within the -- oh, that have already? COMMISSIONER ABERNATHY: Yes. MR. REISCHL: None, as far as I know. There was exotic removal. But he is permitted to remove any mangroves that are within that ST area. COMMISSIONER ABERNATHY: Okay. CHAIRMAN RAUTIO: Any other questions of Mr. Reischl? COMMISSIONER RICHARDSON: approved that? MR. REISCHL: Yes. Unanimously. And, in fact, the EAC I think they were looking at the educational factor of the ecotourism use and that it's going to open up ecotourism boats and canoe self-guided tours through the Cocohatchee system. COMMISSIONER ABERNATHY: It seems like if you're trying to do Hamilton Harbor, you're held to a standard that one -- destruction construction of one mangrove is excessive. If you mesmerize people with some stuff about nature and ecotourism, then you can destroy whatever you need. That somehow doesn't seem right. MR. REISCHL: Well, that's also city regulations versus county regulations. COMMISSIONER RICHARDSON: set of-- COMMISSIONER ABERNATHY: the case. COMMISSIONER RICHARDSON: Well, I think it's the same Viva La City, then, if that's Mangroves are mangroves Page 36 December 6, 2001 whether they're in the city or the county. I have a lot of problems with this, supporting many of the comments that have already been made. Transportation doesn't have anything to say about this because of FDOT? Is that the issue here? MR. REISCHL: That's my understanding. They approved the variance request. COMMISSIONER RICHARDSON: So on county transportation input to this, having no decel lanes and creating a dangerous situation on this highway is not a county concern? MR. REISCHL: It's a concern, but they don't have the authority, is my understanding. MR. BELLOWS: And, ifI may, the turn-lane requirement is based on the number of trips anticipated to enter and exit this particular site. The traffic impact study was submitted with the conditional use application, and the number of trips were not deemed to warrant a decel lane at this point. And FDOT does their own permitting. The county has no jurisdiction to override the permitting on a state road. MS. STUDENT: I guess I just need to say for the record that the conditional use has already been granted, and the adequacy of ingress and egress is a criterion that is looked at at the conditional use. A variance has a different set of criteria, and there's case law that instructs us that we are guided by the criteria for the particular petition under review. And I just need to put that on the record. CHAIRMAN RAUTIO: Commissioner Abernathy. COMMISSIONER ABERNATHY: Getting back to the mangroves for just a minute, it wasn't a city regulation. That was a quotation from David Guggenheim and Michael Simonik, who said that destruction of one mangrove was excessive. The city council, the first time through, approved Hamilton Harbor, and then it got caught into the politics of growth versus no growth, and it was Page 37 December 6, 2001 subsequently disapproved. But I'm sure The Conservancy's policies are, at least ought to be, the same in the city and the county, for whatever it's worth. CHAIRMAN RAUTIO: Any other comments? COMMISSIONER RICHARDSON: Madam Chair, just one other question. I notice that the applicant is coming in as a nonprofit agency. Does that suggest this is a noncommercial enterprise then? MR. REISCHL: No. It's -- for your consideration, it's a commercial conditional use on agricultural land. COMMISSIONER RICHARDSON: I guess I need to understand what the term "Florida nonprofit Cocohatchee Nature Center, Inc.," means then relative to -- MR. BELLOWS: Maybe the applicant can explain that. COMMISSIONER ABERNATHY: It's a business, but it's just not in the business of making a profit. MR. REISCHL: Right. It's-- COMMISSIONER STRAIN: You take your excess money out in payroll. COMMISSIONER RICHARDSON: Say that again. CHAIRMAN RAUTIO: One at a time. COMMISSIONER STRAIN: Take any excess out in payroll. That keeps you nonprofit. CHAIRMAN RAUTIO: Okay. Any further questions before we hear from the petitioner? Okay. Doug Schroeder. MR. SCHROEDER: Good morning. I'm Doug Schroeder with the Cocohatchee Nature Center. CHAIRMAN RAUTIO: Please speak right into the microphone so it does pick up your low tone voice. Go ahead. MR. SCHROEDER: What we're, as Fred had explained, requesting is two variances which, in the planning of this project, Page 38 December 6, 2001 were deemed unavoidable in order to develop the nature center. One is in the front, the landscape buffer is reduced from the required 15 feet down to 10 feet and in the back a 30-feet setback requirement in a portion of the rear down to 0. And basically what -- what this boils down to is that we had, from the very beginning in doing this project, approached this to have the minimal amount of impact and still have a viable project. Addressing the comments about the property, having bought it and then trying to figure out how to develop it, this is a public- interest project. It's close to the schools for school field trips. With lower transportation costs, we can reach more children. It is a nonprofit organization, developing the property. The reason over the last two years that we have got approvals is we sought out county input as well as the private input, and it -- it does a lot of things for the community. With respect to the variance, I think we -- we should look at the issue. It's true that the rear setback is reduced from 30 feet to 0, but over the majority of the rear of the property -- if I can put back up the -- what gives rise to the need for the variance is this line is the mean high water line in the back. The actual deeded property is 2.19 acres. It's about 500 feet deep. But the way that it works is, which you probably know, everything below the mean high water line is sovereign state land. So while it's deeded to the owner in a technical sense, it's owned by the State of Florida. And so your rear property line is not actually your -- your property line. It's the mean high water line. And so in this case we kept this project as small as we could and still have enough space for the classrooms and some parking, but there -- there's really -- when you get past the upland portion, which is about half of this project, there's a very small wetland impact. Yes, there are some mangroves, but it's a fifth of an acre, very small Page 39 December 6, 2001 impact. And there's no way to achieve a viable facility, no matter how small, and meet that 30-foot setback because, as you see where it dips in, if you were to take that 30 feet away, you wouldn't have any depth. So it really renders the property, in effect, unusable. When we bought it -- of course, going through this whole process, you don't always know all of that. We knew up front we could -- we were dedicated to the cause because we knew we could do a viable project. But in the back it's worth noting that over the majority of the property, the 30-foot setback is actually achieved. It's just a small area where the mean high water line comes in where it is not meeting the code. The other thing is that the property -- and you granting this variance is not adverse to the public interest because the -- behind the property is a half a mile of open state land, and it doesn't have an adverse impact on other property, nor does it set a precedent for other things that may come before you, which I think, really, is the critical issue here. And respecting, you know, your function, is that if you grant the variance and then, you know, other people come in, and you have set that precedent. But this property does have unique characteristics, and I think the variance for that is appropriate here for those reasons. The front setback could be met. It would just simply be a matter of moving the structure 5 feet west. And all that -- what that means is then we'd have a 5-foot-by-146-foot additional impact to the wetlands. So we would have more of an impact in order to achieve that. And the reason we made that decision to reduce that is that from the back of the sidewalk on 41 to the property line is a 15-foot portion of the right-of-way. And with the 1 O-foot setback, in effect, what we'll have there is a 25-foot grass landscape buffer. And DOT has been kind enough to allow us to have a right-of-way landscape permit where we can run the hedge along there and the Page 40 December 6, 2001 plantings in a portion of their right-of-way. And so in the case of the front and the back variance, we didn't want to put anything before you that's not reasonable. That's the way we've been working this project. And in this case I believe that both of these, they don't negatively impact the public interest, nor, given the unique characteristics of the site, would they be precedent-setting. The other thing, addressing the transportation issue, is when they six lane 41, DOT, in support of the project, put the driveway in as you see it. That's actually installed. We have talked about -- there's a small portion to the north of the driveway where -- the mangroves are right along 41, but there is a small wedge of upland property there where we are able to put in a turn lane. We think we could achieve a taper of about 30 feet and a turn lane of about 30 feet, which would help to -- when you look at the turn-lane issue, you know, you've got businesses up and down 41 where -- the visibility here is good; there aren't other driveways coming in nearby. And they're a lot bigger than this 22 parking spaces, and they don't have a turn lane. So it's not really crucial, but we've always erred on the side of safety. And so we feel that if there's room, you know, we'd be glad to put that in, just to enhance the quality of the project. CHAIRMAN RAUTIO: However, that's not the jurisdiction of this board nor the -- our transportation. MR. SCHROEDER: I-- CHAIRMAN RAUTIO: That's totally -- that would be totally up to FDOT, and you'd have to go back and, apparently, get a variance or some change to your permit -- MR. SCHROEDER: Well, it's -- as of the -- CHAIRMAN RAUTIO: -- you've already got. MR. SCHROEDER: -- status on that, I wasn't clear. The reason I brought it up, I wasn't clear about what you said about the -- the DOT. But that's already permitted. The whole project is permitted as Page 41 December 6, 2001 of this point, and the driveway as it exists would stay. But we could go back and get a permit to add that mm lane, which is likely. We'll probably do that. CHAIRMAN RAUTIO: Right. But that's not something we can tell you to do, the way I understand it. MR. SCHROEDER: Yeah. That's correct. CHAIRMAN RAUTIO: So we don't have to really focus on that. Commissioner Strain. COMMISSIONER STRAIN: Just a quick question. Our plans aren't color keyed. That red spot, what does that represent in comparison to what we were given to review on our blueprints? MR. SCHROEDER: That's the building, the visitor center. COMMISSIONER STRAIN: Because on ours the building is in the southwest comer. So now the building's not in the southwest comer? MR. REISCHL: Right. There were a couple of changes. As I said, Mr. Schroeder made some changes to the plan. COMMISSIONER STRAIN: Okay. So the plan we have isn't the right one to be reviewing. MR. REISCHL: Yeah. MR. SCHROEDER: This is a color -- color artist depiction of the center at completion which gives you an idea of where it's situated on the property. COMMISSIONER STRAIN: So you moved the docks on the opposite side as well; is that right? MR. SCHROEDER: Yes, that's correct. COMMISSIONER STRAIN: That's quite a different plan. CHAIRMAN RAUTIO: Thanks for providing the information. MR. SCHROEDER: Well, initially that -- that was driven by our interactions with the water management district and the Corps of Engineers. And initially the dock was going to be on the north side. Page 42 December 6, 2001 But because of having closed off that side when they built 41, it doesn't flush as well as the south side, because on the south side there is a watershed. And the water flows through there better, and everyone felt that would be a better place to put the dock. COMMISSIONER STRAIN: Okay. Thank you. CHAIRMAN RAUTIO: I just want to make sure I understood. You said you'd have more impact on the wetlands if you did not get the 5-foot variance for the landscape buffer; is that correct? MR. SCHROEDER: Yes. CHAIRMAN RAUTIO: Did I hear you right? MR. SCHROEDER: Because really what -- what will happen is if the structure as you see there is pushed 5 feet further to the west, then it's a small impact. It's not a big area, but it just -- what it boils down to is our feeling was that in light of the fact that there's already a 15-foot grass area in addition to whatever landscape buffer we add, that we felt 25 feet was adequate to have an attractive landscape buffer in the front. And that was the thinking there. CHAIRMAN RAUTIO: Okay. And one last question. If I heard you correctly, you said that if this variance was not prepared (sic) today, this is not a viable project, and you would do what? MR. SCHROEDER: We -- well, we -- to give you an idea, we have 2 1/2 years invested in this and a lot of-- 600 families, the money, the time. And we -- you can't -- it's a hardship in that with a 30-foot rear setback, if you deduct that from the depth that's available to use there, it isn't -- we can't develop the property without the variance. CHAIRMAN RAUTIO: So you're saying -- to answer my question, what would you do? You'd have to just abandon the property, the project? MR. SCHROEDER: Yes. A lot of people -- right. CHAIRMAN RAUTIO: Okay. That's the answer. Page 43 December 6, 2001 MR. SCHROEDER: Yes. CHAIRMAN RAUTIO: Okay. Commissioner Strain. COMMISSIONER STRAIN: Back to this 5 foot you need in front, you said you would have to take out additional wetlands if you didn't get that. But the plan we have shows the -- and I know it's the wrong plan, but I think it's close in some regards. It shows the structure taking up right back to the 00 at the property line. So if you took out 5 more feet in the front for landscaping, you couldn't go past 00. You'd have to take the 5 feet out of the structure then; right? MR. SCHROEDER: Yes. That's correct. COMMISSIONER STRAIN: So you wouldn't be destroying any more wetlands than you're destroying with the variance that we'd be giving you. MR. SCHROEDER: Well, this project having been reduced to the size that you see there, what you have is, for instance, the parking lot is 60 feet deep, which accomplishes the 18-foot parking spaces plus a 24-foot drive. So that's bare minimum. It's all been driven by safety. We had to meet code on the parking lot. Initially it was proposed by our engineers to try to bend that, and we said no. You know, we have to stick to the minimums on that. And so you can't make the parking lot shallower than 60 feet. And then when you get to the back of the structure, that's only 35 feet, what you see there. And that's a pretty small area, I mean, for classrooms and building something viable there. It's really crimping it down. And so your consideration would be to say, is a -- a 1 O-foot rather than a 15-foot front setback for the landscape reasonable considering the circumstances? CHAIRMAN RAUTIO: I believe Commissioner Abernathy has a couple questions and then Commissioner Young. COMMISSIONER ABERNATHY: Mr. Schroeder, you're listed on the petition as the agent for Cocohatchee Nature Center. Page 44 December 6, 2001 Are you an officer of that organization? MR. SCHROEDER: Yes, I am. I'm the president. COMMISSIONER ABERNATHY: You're the president. So that's a nonsalaried position? MR. SCHROEDER: Yes, it is. COMMISSIONER ABERNATHY: How many other officers are there? MR. SCHROEDER: Two. COMMISSIONER ABERNATHY: What are -- MR. SCHROEDER: And we're all non -- nonsalaried. I mean, this project to this date has 10,000 man-hours into it, and no one has drawn a penny from the organization. All the money has gone into developing the plan for the center. We're now providing programs at Barefoot Beach, and we're anxious to open on 41 because we'll have greater capabilities. But we think we can reach 3 to 5,000 children annually with the school field trips. COMMISSIONER ABERNATHY: Who among you has some background as a naturalist or environmentalist or a related discipline? MR. SCHROEDER: Well, we've got our volunteer base, and also one of our officers is a naturalist. COMMISSIONER ABERNATHY: And were you the originator of this whole idea? MR. SCHROEDER: The way that it got started three years ago is my family and others -- other families in the community got together and decided to pursue the project. So it's a private -- totally privately funded. Six hundred families give to it annually to support the project. COMMISSIONER ABERNATHY: And boating -- as I recall in earlier publicity, there was a boat element to it. How many boats are you going to have? MR. SCHROEDER: We're permitted to have two pontoon Page 45 December 6, 2001 boats, tour boats. COMMISSIONER ABERNATHY: There's no way there to get them out of the water, so you'd have to take them somewhere else to be serviced; is that right? MR. SCHROEDER: I don't fully understand your question. COMMISSIONER ABERNATHY: You can't pull them out of the water based on what we see here. If they needed work, somebody would have to come and work on them there or-- MR. SCHROEDER: No. They would go over to the Wiggins Pass Marina for maintenance. COMMISSIONER ABERNATHY: Okay. You can get down to Wiggins Pass on this. MR. SCHROEDER: Right. CHAIRMAN RAUTIO: Commissioner Young. COMMISSIONER ABERNATHY: I believe that's all I had. COMMISSIONER YOUNG: Are you connected in some manner with The Conservancy, the Naples Conservancy? MR. SCHROEDER: Only in the sense that when the center opens, they will be able to bring their kids up for tours at the center. So -- but not in a direct sense, no. COMMISSIONER YOUNG: And will you charge for those classroom excursions? MR. SCHROEDER: No. The way that the project was conceived is that it's a win-win for the community because, as you know, boat tours and canoe rentals are popular in Collier County with tourists. And someone comes to the center, they rent a canoe or they take a boat tour, and that revenue that comes in is then used to support the educational programs. And so that's why everybody's excited about it, because it really -- it has great reach, and the model for the center is -- is exciting. And we can do a lot there. CHAIRMAN RAUTIO: Any other questions of Mr. Schroeder? Page 46 December 6, 2001 Okay. Are there any registered public speakers? MR. BELLOWS: No public speakers. CHAIRMAN RAUTIO: Mr. Reischl. MR. REISCHL: If I can add a little bit of information on the rear setback, as I pointed out before, what we are measuring the setback from is the wetland line. And you read in the staff report that the side lot lines -- we let them go to 0 because the Land Development Code says for waterfront lots the setback can be right at the sea wall or bulk headline. We allowed that on the two sides because it's open water. We decided to be more conservative on the rear because it's wooded. Even though it's wetland lines -- and this is the water line right along there -- we decided since it's wooded and it's not open water, that we would request that a variance -- that Mr. Schroeder request a variance. You could even look at it that since that's waterfront, that he can go to 0 under the code, but we decided to take a more conservative approach and say, yes, it's water, but it's wooded a lot of the time. So he's requesting a variance on the rear. CHAIRMAN RAUTIO: Fascinating concept, wooded water. MR. REISCHL: Yeah. Well, we talked back and forth about it. (Several speakers at once.) CHAIRMAN RAUTIO: Any further clarifications or comments? Commissioner Strain. COMMISSIONER STRAIN: Just one question. This is now -- now that I understand it a little better, it's going to be an elevated structure. Does that mean the vegetation underneath it, although it will be shaded, is not going to be bulldozed or filled or -- MR. REISCHL: We went under the assumption that there won't be any viable vegetation under it, which is why we required the additional planting on the north and south side to buffer the structure -- the -- the supports from the boaters going by. Page 47 December 6, 2001 COMMISSIONER STRAIN: Have you had any opposition from anybody in regards to -- there's a lot of people down the waterway from this, and I'm wondering if they've objected to the increased traffic this would produce as far as boat traffic. MR. REISCHL: No. No phone calls or walk-ins or anything. CHAIRMAN RAUTIO: Since there are no public speakers, I close the public hearing. What's the pleasure of the board? COMMISSIONER RICHARDSON: Madam Chair, I would offer a motion to approve Petition VA-2001-AR-1207, to forward it to the -- to the Board of Zoning Adjustments (sic) with a recommendation for approval. COMMISSIONER ADELSTEIN: I accept -- I second the motion. CHAIRMAN RAUTIO: We have a motion by Commissioner Richardson, a second by Commissioner Adelstein for approval of this motion. Do we have any discussion? I would just like to say that I think this is a fascinating project. It's using land that probably wouldn't be used by much of anything else. And it brings to mind when I was in Hawaii visiting my sister where she lived in a 12-story apartment building that literally was sandwiched between freeways. There was nothing there but a tiny little place to put an apartment building, and that land was utilized on the island of Oahu. At least this will be used for conservation and educational items and cotourism. So even though I'm not a big fan of variances, I'm going to have to support this approval. Any other comments? Call the question. All those in favor say aye. COMMISSIONER MIDNEY: Aye. COMMISSIONER ADELSTEIN: Aye. CHAIRMAN RAUTIO: Aye. Page 48 December 6, 2001 COMMISSIONER YOUNG: Aye. COMMISSIONER RICHARDSON: Aye. COMMISSIONER WOLFLEY: Aye. COMMISSIONER STRAIN: Aye. CHAIRMAN RAUTIO: Those opposed -- COMMISSIONER ABERNATHY: Aye. CHAIRMAN RAUTIO: -- same sign. One against. Mr. Abemathy. Thank you. Okay. We are at Item C in the public hearings, VA-2001-AR- 1380. This is the Erickson after-the-fact variance. All those wishing to provide testimony today, please stand, raise your right hand, and be sworn in by the court reporter. (The speakers were sworn.) CHAIRMAN RAUTIO: I would like to ask the court reporter if she would like a break at the next item. THE COURT REPORTER: Before the next item. CHAIRMAN RAUTIO: Before the next item. Thank you. MS. STUDENT: Any ex parte? CHAIRMAN RAUTIO: Do we have any disclosures? No disclosures on this item? MR. REISCHL: Fred Reischl again, planning services. This is a request for an after-the-fact variance for a single-family home located within Lely. You can see the location of the lot in blue right there. The Land Development Code requires accessory structures be 10 feet from the rear property line. The subject pool cage was constructed in 1993 before spot surveys were required for accessory structures. And here you can see the survey with the location of the home and the pool enclosure. The pool enclosure encroaches into the 1 O-foot rear yard setback by 1.3 feet. There is no land-related hardship associated with this; however, the Land Development Code does allow ameliorating factors that Page 49 December 6, 2001 play a part in approval of a variance. We talked this through and decided that there are ameliorating factors. The encroachment has existed as it is today since 1993. It was caused by a previous homeowner, not by the current owner. There is landscaping which softens the edge. I have a photo of that also. And we also have received letters of no objection from the surrounding property owners. CHAIRMAN RAUTIO: Any questions of staff?. COMMISSIONER RICHARDSON: Madam Chair. CHAIRMAN RAUTIO: Yes. COMMISSIONER RICHARDSON: Fred, how did this come to the attention of the -- your department? MR. REISCHL: I believe it was through the sale of the property to Mr. Erickson. COMMISSIONER RICHARDSON: So it was not a code enforcement issue? MR. REISCHL: Not to my knowledge, but Mr. Thornton can answer that. COMMISSIONER RICHARDSON: So as the result of the sale, they had to have a survey, and in that process they found out it was out of-- MR. REISCHL: It didn't have to have a survey. As you saw from my staff report, there were previous sales where apparently no surveys were done because this wasn't brought to light at the time. So a survey is a good idea but not a requirement. CHAIRMAN RAUTIO: Right. I just wanted to observe that the information tells us that this house was sold twice beforehand, and nobody caught it in the sale -- in the documents of that property. And I did check the permits also, and it was not a contractor or subcontractor that did this back in '93; it was the owner/builder, Mr. Tracy, who made the error and would have been responsible Page 50 December 6, 2001 under the permits. So it was not a contractor. Any other comments? Mr. Thornton. MR. THORNTON: Good morning. I don't have that many comments. I just wanted to point out, just so you know, that the sale just prior to Mr. Erickson's sale was a cash only, and that's why -- there was no mortgage, so that's why there was no survey done for that prior sale. When Mr. Erickson bought, he did have a mortgage, and that's why the survey was done. There was really no way to avoid it. Code enforcement didn't catch it. He just didn't want the problem hanging out there, so he asked that we apply for the variance. And Mr. Erickson apologizes for not being here today. He's away doing training in Orlando with the sheriff's department this morning. And we did -- we're also at the same time seeking a vacation of this. It's in a utility easement also. It's not under consideration today. But in getting the vacation application together, we did get letters of no objection from the four abutting property owners as well as FP&L, Sprint, Comcast. We got letters of no objection from everybody that would have a concern about it. COMMISSIONER ABERNATHY: Of no objection? MR. THORNTON: Letters of no objection regarding the vacation and the variance. CHAIRMAN RAUTIO: And they were included in our packet, and I wanted to say that I was impressed at how thorough you were to get permission from everybody that could possibly be involved with this easement. I appreciate that. Any questions of Mr. Thornton, or do we have any registered public speakers? MR. BELLOWS: No registered public speakers on this item. CHAIRMAN RAUTIO: With no registered public speakers, I close the public hearing. Page 51 December 6, 2001 What is the pleasure of the board? COMMISSIONER ABERNATHY: Madam Chairman, I'll make a motion to forward Petition VA-2001-AR-1380 to the BZA with a recommendation of approval. COMMISSIONER YOUNG: Second. CHAIRMAN RAUTIO: We have a motion by Mr. Abernathy, a second by Mrs. Young for approval of this particular variance. All those in favor say aye. (Unanimous response.) CHAIRMAN RAUTIO: Those opposed, same sign. (No response.) CHAIRMAN RAUTIO: Okay. Motion carries. Thank you. Okay. We're going to take a ten-minute, max, break. (A break was held.) CHAIRMAN RAUTIO: We are back in session again. We are now at public hearing PUDA-2001-AR- 1404, the Conquest Development and Silver Lakes PUD amendments. All those wishing to present testimony today, please stand, raise your right hand, and be sworn in by the court reporter. (The speakers were sworn.) CHAIRMAN RAUTIO: Thank you. It is time for us to have disclosures. I'll start with Commissioner Strain. COMMISSIONER STRAIN: I spoke -- well, actually, I've gotten e-mails and mail, snail mail, from Mr. Pires representing, I think, the landowners. And I talked to a representative of the developer during the break beginning early this morning. COMMISSIONER WOLFLEY: Other than the package I got from Mr. Pires, nothing else. COMMISSIONER RICHARDSON: And the material we received this morning from Mr. Nadeau. CHAIRMAN RAUTIO: Is that all? You've not had a Page 52 December 6, 2001 conversation with anyone? COMMISSIONER RICHARDSON: No. CHAIRMAN RAUTIO: Mrs. Young. COMMISSIONER YOUNG: Yes. I received the material from Mr. Nadeau. CHAIRMAN RAUTIO: This could take a while. I've spoken, at least three different times, to Mr. Nadeau. We discussed the concepts of where the storage is, the idea of the conservation tract being enlarged. We spoke about the moving of the lots specifically. We spoke about the water management permit. He did fax me information, which has now been provided to each of the members here today, so that I can review it. And I've also spoken to Tony Pires specifically with the issue of the storage and how that affects the entire plan itself and whether we need a text amendment change for whatever is decided here today. I think that's all the disclosures I have. COMMISSIONER ABERNATHY: I received a transcript of a EAC meeting from Tony Pires. I received an e-mail file from Mr. Nadeau, and I spoke to Mr. Nadeau and Mr. Cuyler briefly during the intermission -- during the recess, excuse me. COMMISSIONER ADELSTEIN: I can make exactly the same statement you made because that's what I received also. COMMISSIONER MIDNEY: Same here. CHAIRMAN RAUTIO: And I just wanted to clarify, I, too, did receive the packet from EAC, which prompted my first call, which was to staff to clarify our report which, I do believe, Dr. Badamtchian will clarify us -- for us when he makes his first remarks. I do believe you're up, Chahram. DR. BADAMTCHIAN: Good morning. Chahram Badamtchian from planning services staff. You heard this petition about a month ago. Page 53 December 6, 2001 CHAIRMAN RAUTIO: Before you go any further, is it possible to have that mike turned up just a little bit? Because it's not picking up. Other commissioners have commented. I know you'd have to get right in front of it, but maybe the technical people in the back could do that while you present. DR. BADAMTCHIAN: I'm sure Ray can handle that. CHAIRMAN RAUTIO: Or you can shout at us. DR. BADAMTCHIAN: You heard this petition about a month ago and continued to give time to the applicant and the lot owners in the park to come into some kind of agreement. And in the meantime, we took this one back to the EAC, Environmental Advisory Council, for a rereview. And this time they recommended approval of everything with the exception of the applicant was asking to have a recreational tract on the west side of the property along Collier Boulevard. They recommended that the recreational tract be moved to the east side of the property and the size of it be limited to 3 acres, which my staff report erroneously says 1 acre. It should be corrected to say 3 acres. And this vote -- this motion was approved by the EAC by a vote of 8 to 1. Since that time I believe the applicant's representative with the homeowner's representative, they met, and they discussed -- I don't know what kind of agreement they came up with. I don't believe there is an agreement. Last time when we discussed homeowners, they showed us pictures of areas that were disturbed. This time I have received pictures from the applicant dated 1995 and 1993 showing that the area that -- that's not picking up -- the area that was shown on homeowners' picture as area disturbed did not have much vegetation. It was void of vegetation. This is to say that they did not clear the area to have concrete or other things stored. The area did not have -- was not vegetated or did not have that many trees. And basically that's about it. And I'm -- I was hoping that they come Page 54 December 6, 2001 -- come back to us with some kind of agreement, and I believe they have not. COMMISSIONER ABERNATHY: I have a question. CHAIRMAN RAUTIO: Do we have questions? Mr. Abernathy. COMMISSIONER ABERNATHY: Chahram, does the staff believe that this location of the recreation or whatever area we're going to call it, conservation, is that an environmental question or a planning question? I have difficulty sorting that out. DR. BADAMTCHIAN: It is both. The area is outside of the Deltona Settlement; therefore, Army Corps can claim jurisdiction over it. And also, the original PUD had shown the entire tract as recreation area. Now they are limiting their recreation area only to 8 acres, I believe. And basically the question is not whether or not they can have recreation area there. They already have it without amending the PUD. They have it -- I believe 37.3 acres of recreation area, which is the entire tract, entire northern tract. However, the question is, once they put this conservation over it, which portion of the remaining -- which portion of the lot should remain as recreation area? Applicants, they want to keep the western portion claiming that mitigation costs for the eastern portion is big; and the homeowners, they want recreation on the eastern side. And, as you may recall, the issue with this recreation area was about the storage. Since recreation area allows storage, the question is where the storage is going to be. If they keep the western portion as recreation, then the storage will be on the eastern -- on the western side. If they do the eastern side, it will be on the eastern side. COMMISSIONER ABERNATHY: I guess my question is if the developer made a commitment to these people that they would have a storage area, can they insist that it be at one end or the other? DR. BADAMTCHIAN: As far as planning is concerned, there Page 55 December 6, 2001 isn't much difference between western side or eastern side for storage. And also keeping the conservation area, it's better to have it further away from the road than have it right at the road. It's better to develop tracts closer to the major road and keep the portions that are further away from the road as conservation. And there's also a mitigation factor, that how much money they want to spend to mitigate the impact they are going to have to that tract. According to the applicant, it's much cheaper to mit -- do the mitigation for the western portion than it is for the eastern portion. CHAIRMAN RAUTIO: Commissioner Richardson. COMMISSIONER RICHARDSON: So, Chahram, you're saying that -- even though now you've t~ken it to the EAC and they've voted nearly unanimously to recommend that it be on the east side because of environmental reports that they've considered, that even in view of that, you would say that -- you suggest that we should go with the plan for the western side? DR. BADAMTCHIAN: Well, staff hasn't changed its recommendation, if that's the question you are asking. We are still going with our original recommendation. COMMISSIONER RICHARDSON: That recommendation, of course, was without the benefit of the EAC. So now that you've had that, I wondered if that had any impact on your decision. DR. BADAMTCHIAN: It did not because if you have the minutes from the EAC, they -- they were supposed to talk about the environmental impact. And what they talked about mostly was what this storage is going to be used to (sic) and who's going to have the ownership, if it's going to be outside of the gate, inside of the gate, things that are more planning related than environmental related. I didn't see anything in that discussion that would help me, you know, change my mind about the recommendation we made. COMMISSIONER RICHARDSON: I was -- Page 56 December 6, 2001 DR. BADAMTCHIAN: They just -- COMMISSIONER RICHARDSON: Excuse me. I was struck my Mr. Beardsley's comments that, I thought, were very definitive in this regard. And he was the environmentalist that was brought on by the folks in Silver Lakes. DR. BADAMTCHIAN: Yes. But, you know, when you have hired environmentalists, it depends which side hires it. COMMISSIONER RICHARDSON: And, in fact -- and, in fact, then, the applicant had hired his environmentalist and made the opposite conclusion. So -- so you're suggesting that we should not put very much weight on either testimony then? DR. BADAMTCHIAN: I'm not saying that you should not; I did not. I've seen the -- MR. BELLOWS: current planning staff. Again, for the record, Ray Bellows with We have our own staff environmentalists who are not paid by either party, and they made a recommendation that's been incorporated into Chahram's recommendation for approval. CHAIRMAN RAUTIO: And that would be Mr. Steve Lenberger. And in case we need to ask him a question, he's staff available today. Chahram, do you have some more to present to us? DR. BADAMTCHIAN: No. That concludes my presentation. CHAIRMAN RAUTIO: I have one question. Would you clarify the map for the master plan itsel~ Where else would the commons/recreation area be that a storage area could be placed if, for some reason, it's not placed in the eastern or back section of the property? DR. BADAMTCHIAN: This is the proposed master plan, and if they do not build the rec -- storage here or here, they can build anywhere on the recreational tract. Basically recreational tract is Tract CR, which we have it here. It's here, here, here. There are large recreational tracts that they can develop with the storage Page 57 December 6, 2001 facility. CHAIRMAN RAUTIO: And this map here does show what is actually on the ground now? DR. BADAMTCHIAN: This map shows not everything that's on the ground. These lots are not built yet. CHAIRMAN RAUTIO: Okay. And that tract is not rezoned. DR. BADAMTCHIAN: And this tract-- the entire tract is zoned recreation, commons/recreation. CHAIRMAN RAUTIO: Okay. Commissioner Strain. COMMISSIONER STRAIN: Not at this time. CHAIRMAN RAUTIO: All right. I believe we have -- the petitioner would like to make some observations, and we do have registered public speakers. MR. NADEAU: Madam Chair, members of the commission, for the record, my name is Dwight Nadeau, RWA, representing the applicant, Conquest Development. We came before you about five weeks ago or almost five weeks ago proposing to change the master plan to increase the conservation tract from 3 acres to 26 acres, to reduce the RV tract down 2 acres from its original. And we would leave approximately 8 acres on the west side of the property as commons/recreation, creating 26 acres of the balance of the property, notwithstanding the proposed lots -- 39 lots that are proposed, partially above the Deltona Settlement Agreement line. And there was some issues that were brought up by the park residents. You directed us to go back and try and work something out. Now, I will tell you that with the existing plan that is before you, that there were alternatives that were proposed to the water management district as a result of our permitting efforts. And for this reason, why I gave you each a copy of this document. And I explained it to you, but for the public record, this document on the second page is a response to my telephone request where I inquired Page 58 December 6, 2001 whether or not the storage could be located on the easterly portion of the property. And Megan Farmer, who was an ecologist for Butler Environmental -- she's having a baby right now -- identified, through a request for additional information submitted to Butler Environmental for our district permit -- stating on No. 1 ! in that -- the body of the document, which is approximately four pages to the back -- and I will read it verbatim for the record. Pursuant to Section 4.21 of basis of review, please provide the following information regarding design alternatives considered to reduce or eliminate wetland impacts. CHAIRMAN RAUTIO: Go slowly for the court reporter. MR. NADEAU: As discussed in the preapplication meeting, it appears wetland impacts could be reduced by relocation of the storage area to the existing disturbed area within Silver Lakes Phase I, relocation of the proposed block 1 lots to the western portion of the site, and relocation of the storage area to the west. As proposed the project includes impacts to the majority of on-site wetlands with no mitigation proposed. Please revise the proposed site design to minimize wetland impacts and consolidate the impact to the western portion of the site with the preserve areas on the eastern portion. The plan that was in their hands during that review period was the plan that is the third page in of this informational packet. It is a westerly view showing ministorage, and there is an easterly view showing a small building with open storage on the east. As a result of that request for additional information, the response was prepared. The plan was modified such that the 26-acre conservation easement was identified on the easterly portion of the property, the lots remain in the same location and the mitigation for those lots. And to retain the 8 acres for commons/rec on the west is a little over $128,000, the panther mitigation bank, as well as the 26 acres north of the Deltona Page 59 December 6, 2001 Settlement Agreement line, exotic removals, five-year monitoring plan. So we made an effort to have the storage in the east. We were unsuccessful with the agencies. We are scheduled to go in front of the district board on December 13, next Wednesday. We have a staff report -- CHAIRMAN RAUTIO: I think that's a Thursday, but that's okay. MR. NADEAU: We have a staff report from the water management district with a recommendation of approval supporting the plan that is before you today. We have an executed contract with the Panther Island Mitigation Bank to support the district permit staff report for the plan proposed to you today. We went and prepared an alternative plan, and that alternative plan -- if I may. CHAIRMAN RAUTIO: You can just -- we'll pass them down and you keep talking. MR. NADEAU: Now, that alternative plan, which is here to my right, would designate all lands north of the Deltona Settlement Agreement line, notwithstanding the proposed lots, to be conservation area. We forego the storage. The storage was an issue to the residents. We gave it up. There are alternatives in this plan for storage. And to clarify a little bit of what Mr. -- Dr. Badamtchian stated, there is acreage near the clubhouse, and there are 7 to 8 acres of commons/rec land that would be appropriate for storage subject to necessary approvals with Florida Power & Light as well as Collier County through a site development plan process. So there could be as many as 7 to 8 acres of additional lands within the park that could be utilized for storage. CHAIRMAN RAUTIO: Question on that, Dwight. That would be -- I lost my pieces of paper. 7 to 8 additional acres would be where that FPL easement is, and that's why you'd need permission Page 60 December 6, 2001 from them to do something there? MR. NADEAU: Right in here. CHAIRMAN RAUTIO: Thank you. MR. NADEAU: You can see that the acreage of the conservation area is certainly going to jump up to 34 acres from the original 26. Commons/rec area is going to drop down from 78 to 70 because we're adding proposed -- we propose to add an additional 8 acres of conservation area. It is my understanding that the attorneys have -- the attorneys for the transition association -- transition committee as well as the association have informed our land use attorney, Mr. Cuyler, that that is not acceptable. And at this time I -- I -- at this time I guess that proposal's off the table. So we stand before you with our efforts to come to an agreement, and we don't have an agreement from the residents. We feel we made a good-faith effort. We would like direction from this commission as to how to proceed. CHAIRMAN RAUTIO: Do we have any questions of Mr. Nadeau at the moment? COMMISSIONER STRAIN: I have just one. CHAIRMAN RAUTIO: Go ahead. COMMISSIONER STRAIN: At the time -- and this goes back to your plan that we spoke about last time. You referenced the stuff from South Florida that recommended using the west side of the site. MR. NADEAU: Yes, sir. COMMISSIONER STRAIN: Did they know and did they see the photographs that showed the east side of the site being used as a dumping area for concrete and other debris? MR. NADEAU: To my knowledge -- I'm sorry. I do not know. COMMISSIONER STRAIN: Okay. MR. NADEAU: I'll ask Mr. Ian Butler of Butler Environmental to step forward. Page 61 December 6, 2001 MR. BUTLER: Ian Butler with Butler Environmental. To my knowledge, they have not seen the photographs. Mr. Pires may have shown them to them. I am not privy to that. However, they were aware of the fact that there has been some activity going on in that area. And in the conversations that I've had with both agencies, I've told them that we were certainly willing to add or revise the staff report to indicate that those areas will be revegetated, planted, whatever is required. COMMISSIONER STRAIN: That isn't my question. Back in June when you got this letter from the South Florida Water Management District that recommended using the west side of the site because the wetlands on the east side of the site were supposedly better than those on the west side, did they at the time they wrote that letter know the conditions on the east side involving the dumping of material that had gone on there? Because you hadn't known that, according to the testimony that you provided to the EAB. MR. BUTLER: That's correct. In June, no. COMMISSIONER STRAIN: Okay. So their -- basically their report was written without full knowledge of the extent of the damages to the wetlands on the east side of the site. MR. BUTLER: That's true. But they had been made aware of that area recently, subsequently to that information, and they have not revised their findings to move it back to the east. And the staff report reflects that. COMMISSIONER STRAIN: Thank you. CHAIRMAN RAUTIO: Okay. Mr. Lenberger. MR. LENBERGER: If I may, regarding the quality of the wetlands on site, let me go to the visualizer and show the -- the eastern portion of the project. The disturbed area is pretty much along the southern boundary on the very east side of the project where the additional lots are going to be located. Beyond those Page 62 December 6, 2001 additional lots, there's very little disturbance where the area's actually cleared. I just wanted to clarify that. COMMISSIONER RICHARDSON: Madam Chair. CHAIRMAN RAUTIO: Yes. COMMISSIONER RICHARDSON: Mr. Nadeau, I'm not sure I completely followed your alternative proposal. I just wanted to pursue it a little bit. MR. NADEAU: Yes, sir. COMMISSIONER RICHARDSON: Do I understand that that proposal would abandon putting any storage area north of the settlement line? MR. NADEAU: That is correct, sir. It would be no commons/recreation north of the Deltona Settlement line. COMMISSIONER RICHARDSON': Now, that was initially -- on the previous master plan, that was shown as a recreation area. MR. NADEAU: That entire 37 acres was identified as commons/recreation. COMMISSIONER RICHARDSON: What -- you know, functionally what is the difference between a recreation area and a conservation area from a -- from the applicant's standpoint? MR. NADEAU: Well, the commons/recreation area provides for land uses such as storage facilities, various accessory uses to the park in those areas; whereas a conservation tract has specific prohibitions on what can be done. There can be some passive recreation. There can be some boardwalks, subject to the required permitting. Now, it was also brought up to me -- and this is apart from your question -- that it needs to be identified that if there was a proposal to -- from this commission to put storage on the easterly portion of the site, this permit that has been worked on for over a year will go away, and an entire resubmittal and application fee would have to be done. And it's very probable that there will be additional Page 63 December 6, 2001 mitigation costs beyond the $130,000, thereabouts -- 129, 128,000 -- that is agreed to as a part of that staff report. COMMISSIONER RICHARDSON: Mr. Nadeau, I'll let you get that on the record. But to my points, we heard a lot of testimony last time about people that were using that as passive recreation and a -- walking trails and that sort of thing, this whole northern area. And it would seem to me -- and I compliment you for the efforts that you've made -- that to take the offending, what seemed to be the big issue last time of the storage area out of the mix and, in effect, returning it to how it's been used and with a conservation designation that limits the number of uses that could come in the future, to my mind that solves the problem. MR. NADEAU: It may solve the problem, but as of this time, that option is not available right now. COMMISSIONER RICHARDSON: Well, it's not available because you couldn't get an attorney-to-attorney agreement. MR. NADEAU: That's correct. COMMISSIONER RICHARDSON: In terms of what's -- this commission can consider, I would take this as a good-faith effort to resolve the problems that we sent you away to resolve. And I would -- at least from what I've heard so far, would be inclined to go along with this alternative proposal as a solution. CHAIRMAN RAUTIO: I would like you to clarify what the reasons are that you're actually applying for a South Florida Water Management permit. Would you put that on the record so that everyone understands that, why we are going through this process? MR. NADEAU: Absolutely. The original plan had a tier of RV lots that ran along the south boundary here. And the original plan had the same Tract AR, residential units, in this location, but it was south of the Deltona Settlement Agreement line. Subsequent to the permitting of Phase I and Phase II-B, Phase II-C of the development, Page 64 December 6, 2001 the developer approached the county and said we want to put those 39 lots -- 30 of the RV lots and the remaining 9 residential lots -- partially north of the Deltona Settlement Agreement line. That was a part of the construction plans for Phase II-E. And as a part of those construction plans, there is a portion of those residential and RV tracts that lie south of; therefore, there are services in place to turn those lots on. And it is for that reason why McAnly Engineering and Butler Environmental were pursuing that district permit that we're at the end of the process now. CHAIRMAN RAUTIO: And that's part of what we would be reviewing here today, to make the PUD match what's on the ground. That's a key element in it. And that was no argument of the homeowners association and the transition committee, in your understanding. MR. NADEAU: From my understanding at the last Planning Commission and through our discussions, there was no issues other than storage. CHAIRMAN RAUTIO: Okay. I think our other speakers may clarify that. Do we have any more questions of Mr. Nadeau at this moment? And we do give you the right or your attorney the right to respond to a few of the items that might come up in discussion. Oh, Mrs. Young has a comment. COMMISSIONER YOUNG: I -- I went out and drove through the entire development and found the seriously disturbed area with all the cement piles in it. Could you clarify, what are you going to do with that particular area, which is a mess? MR. NADEAU: Well, that area is the area where the 39 lots are. There is -- there are small areas of construction debris that are scattered along those 39 lots, sporadically scattered. And it's going to be disturbed further to build the lot pads for those 39 lots, so the areas of-- the areas of the disturbance are in the areas where development Page 65 December 6, 2001 will be. COMMISSIONER YOUNG: I see. Thank you. CHAIRMAN RAUTIO: Further questions? COMMISSIONER ABERNATHY: I have a question for Marjorie. In terms of acreage, the differences between the current petition and the alternative proposal are not great; but in terms of their impact, they're fairly substantial. Do we have any notice or advertising problems if we were to adopt the alternative? MS. STUDENT: It was advertised with -- I believe it's Division 2.3 of the PUD and the table, which you've been given a revised copy of. COMMISSIONER ABERNATHY: Yeah. MS. STUDENT: It was advertised as an amendment to 2.3, so as long as we stay within the confines of 2.3 -- COMMISSIONER ABERNATHY: Okay. MS. STUDENT: And if memory serves me correctly, there are paragraphs -- subparagraphs A, B, C, and D, I believe, of that. I think we're fine. COMMISSIONER ABERNATHY: Okay. Thank you. MR. NADEAU: I had to speak with the environmental consultant, and he requested I state that there is some disturbance outside the area of the lots and that they -- that area will be restored and replanted as a part of the mitigation efforts for the conservation area. CHAIRMAN RAUTIO: Thank you. Okay. Registered public speakers? MR. BELLOWS: Yes. We have four speakers. The first one is Anthony Pires, Jr. MR. PIRES: May I have a moment, Mr. Chair-- Madam Chairman and members of the -- CHAIRMAN RAUTIO: Yeah. You might have a moment if Page 66 December 6, 2001 you're not careful. MR. PIRES: Your Honor. CHAIRMAN RAUTIO: That's all you'll get is a moment. MR. PIRES: Madam Chairman, members of the Planning Commission, my name is Anthony Pires with Woodward, Pires & Lombardo law firm representing the transition group with regard to the residents and property owners within Silver Lakes. I put up on the board behind me something that hopefully we will not forget in this whole process, that is the existing Exhibit A master plan for this PUD -- and Chahram has been so kind as to have a smaller version put on the visualizer-- because on that particular Exhibit A master plan, in the upper right-hand comer, is an area designated as storage area. That area -- recognizing that this entire tract on the original master plan Exhibit B is designated CR or commons/recreation, that is the only delineation in this whole area where the word "storage area" occurs. That's what the property owners and residents bought with, that particular master plan and site plan. That's where they wish to have the storage exist. What I also found interesting is that Mr. Nadeau has provided to you a copy of e-mail and an attachment that was going back and forth earlier this year with regards to Megan Farmer's correspondence. What was never provided to me until today -- and Chahram kindly provided me a copy of his -- is this original submittal to South Florida Water Management District. The manner in which this item is packaged is an e-mail from me to Dwight saying thanks and some correspondence back and forth with Megan Farmer, then the illustration, then Megan Farmer's letter. I hope there's no implication that I ever received this concept plan. I never have seen it until this morning. If that was the inference, that is an incorrect inference to be drawn. CHAIRMAN RAUTIO: I just want to put on the record, I Page 67 December 6, 2001 noticed that the head of Mr. Nadeau was shaking a no. MR. PIRES: Okay. I just wanted to make sure. And with regards to this, once again, I think what's illustrative is that the original submittal did have a portion in the back and a portion in the front that was a massive storage and recreation area. And, quite frankly, I'm not surprised the agency said take it down from 19 to 10 acres or 8 acres. I mean, that's huge. Whatever was being proposed, whether it was the concept of being a straw man and then readily giving up the area in the east, I don't know. But I tell you from the perspective of the community, that this is the area that -- they've always believed the storage would occur in this area, and that is the area that's now being taken off the table. The proposal as articulated and outlined over there and Mr. Nadeau presented -- we had a meeting with Mr. Cuyler this week. We had an initial meeting about two weeks ago. It got scheduled -- it got canceled due to conflicts in schedules. We were not able to meet until this week. What I find interesting is there is not a proposal to have, in the northern area, the storage area of 3 acres on the eastern side as originally proposed. Now, I know there's -- what we would propose is that this Planning Commission follow the recommendation of your Environmental Advisory Council, which did a 180, complete 180 between the August meeting -- we were not present because we were not notified. As I mentioned in the EAC meeting, I didn't know about the EAC meeting on this issue until one of the residents called up and said, "Hey, do you know what's on TV?" Well, then we did show up on November 7th. And fortunately the planning commissioners (sic), as articulated by the chairman, said there's been a change. We need to, you know, vote on this, and they made a change in the recommendation, 8-0 unanimously to recommend the request as requested by the property owners. Page 68 December 6, 2001 If I could hand this out to the planning commissioners, it's a packet of what we would propose follows the concept that is outlined and recommended by your Environmental Advisory Council. We would propose that-- in this particular context, that on the master plan, that the PUD master plan Exhibit A reflects this is conservation, this is conservation, and Tract CR in the far right-hand side of approximately 3 acres in dimension. That would then adjust the land use summary table to a commons/recreation of 74 acres total and a conservation area of 30 acres in total. And then the second page is Exhibit B to the PUD that, again, reflects that recommendation by your Environmental Advisory Council to have a conservation tract with a CR, commons/recreation, tract for the storage in the area as originally depicted. What that would also do as far as the -- we prepared a draft of the proposed revisions to the ordinance, the text, that would revise it to reflect the recommendation of the EAC, that Tract CR be modified from 97 -- not to 78, but 97 to 74; that Tract CO be revised not from 3 to 26, but from 3 to 30; so that it's a request that would, in fact, increase the conservation area over that that exists at the present time but would not result in what I'll call, quite frankly, a spite easement that's proposed on the far right-hand side wherein the developer is saying, "We're going for 7 acres on the west side for commons/recreation for storage or none at all. Take your pick." And they're saying that they cannot go back to the agencies, because they'll have to resubmit a whole new application if they go back to the agency, to have a application that allows storage on the right-hand side. Apparently, they don't have to go back to the agencies with a whole new submittal if they eliminate it. Now, I guess what's also interesting from that perspective is the mitigation cost. They mentioned the huge mitigation dollars that are involved. I did a quick analysis based upon their calculations Page 69 December 6, 2001 contained within their documentation of how they calculated the mitigation credits that were required, and that's in the report that was prepared by Mr. Butler that went to -- a response to the agencies -- or Megan Butler-- Megan Farmer. Excuse me. My analysis indicates the mitigation credits would be reduced from 3.66 to 1.092 credits, based upon using the same formula that's reflected in the materials submitted as part of this application and submitted by the consultants for the developers. So 1.092 mitigation credits sounds like it would be a lot less expensive than 3.66. As to the areas being impacted, I think Mr. Nadeau tried to clarify the fact that the areas to the north, that we all had the photographs taken of before and shown to you, is not just the lots to be proposed. It includes some of the wetland area that were proposed -- indicated as being storage. Mr. Belanger, who lives in the community, who took the photographs, will be up here to tell you that the area where this debris exists, the area where the vegetation was removed, is not solely an area where the lots are going to go. And I think Dwight tried to clarify that. We have some additional photographs I'd like to make part of the record taken on November 20th where now some fill is being placed in this area too. This is November 20th. It's, again, taken in the same area by that dumpster that we had the last time, and you can see the dumpster. You can see -- that's the northeast area. We, again, have some additional gravel material that apparently wasn't there before. CHAIRMAN RAUTIO: I just want to make sure I understand. You're saying that the additional dirt has been dumped since our last meeting, and you have, obviously, gravel that's being used, in that picture. MR. PIRES: That appears to be since the last meeting. That's correct. Now, the thousand gallon -- the diesel tank has been Page 70 December 6, 2001 removed from this area. But I'd like to make these additional photographs as part of the record in this particular proceeding. And Mr. Belanger can -- he took the photographs, and he can testify as to that particular date and the fact, again, that this activity is not occurring solely in the area proposed to be developed for lots. What we would request is a combination planning and environmental issue. The property owners and residents within this community bought with that master plan that showed the storage area on the easternmost portion. There are property owners along this area here that never envisioned a storage area existing in this area where the developer is now proposing it. And, once again, I -- the proposal that was made with regards to "take the 7 acres on the west or none at all" is not acceptable to the community. The community wishes to have a storage area in that northern area. A conservation easement would preclude that from ever occurring under the proposal brought here today as far as an alternative and would not give them what they originally had under the PUD master plan. We would submit that the recommendation that came from your EAC would maintain, intact, the concept plan as originally envisioned; would, in fact, give the residents a storage area in the northeast area; and would still result in another 4 acres increased in conservation acreage. This is the master plan we would propose you recommend to the Board of County Commissioners as long-- in addition to the text changes that are articulated in the attachments provided today. One other request we would like to make -- and it's not been discussed since the last meeting, but in the PUD there's a -- Section 8.1 lB and C talk about future roadway interconnections to the north. And the language says, 8.11 B, the petitioner may agree to provide a roadway interconnection to adjacent property to the north. 8.11C says the future roadway interconnection may provide for public use. Page 71 December 6, 2001 And we would request that in addition to any other recommendation you make to the Board of County Commissioners, that you recommend that Section 8.11 (b) be deleted and 8.11C be deleted, along with recommending the petition as modified, substituting this revised master plan and this revised table of land uses. And we thank you very much for your kind consideration. You have a number of the residents and property owners here today. You can tell that they've been very patient in listening to all of this. CHAIRMAN RAUTIO: Before I turn this over to Mr. Abernathy -- you went awfully fast, and I want to hear and circle on my pages what you just asked to be deleted. MR. PIRES: The last page of the documents provided today is a copy of page 8-10 from the PUD. CHAIRMAN RAUTIO: Okay. MR. PIRES: And at the bottom portion it's -- Section 8.1 lB and C are struck through. We would propose that that also be recommended to the Board of County Commissioners in addition to the other requests that are in the package with regards to revising 2.3A as to the acreage and revising Exhibits A and B to reflect that in the northern area that there be approximately a 3.0 acre CR tract in the far eastern portion. CHAIRMAN RAUTIO: Okay. Ms. Student. MS. STUDENT: I was just going to point out that this was not advertised. All that was advertised were changes to 2.3 and map replacement. CHAIRMAN RAUTIO: So we really can't consider that, or what does that do? MS. STUDENT: Well, it presents a unique issue. This type of thing doesn't usually come up, and because it's -- well, usually we do PUDs to PUDs, so that kind of takes care of it. And I do have a concern because it wasn't advertised about removing it and -- I do. I Page 72 December 6, 2001 just -- you know, that's all I can say. MR. PIRES: Madam Chairman, I'm wondering if it's possible to ask the petitioner if they'd be amenable to deleting that language. CHAIRMAN RAUTIO: We might as well ask that question for the moment. MR. CUYLER: My understanding was that was a staff requirement. And it hasn't been advertised, so it's not something, I think, we can do anyway, even if we agreed to it, because proper notice hasn't been given. CHAIRMAN RAUTIO: Right. And that relates back to the concept of using the table we're talking about in 2.3, whether or not we need some specific text to clarify what this board does, whether we decide to say to you we want you to identify, as a footnote or another paragraph in that particular section, whether it's 3 acres, 5 acres, 10 acres. If we said something along that line, my concern was that we needed some text to clarify that since this has been such a contentious issue, where normally we'd just simply look and say, "That's an accessory use of the CR," and we'd all go forward because everybody would understand what we were doing. And I believe that Ms. Student agrees with that concept. MS. STUDENT: Yes. I think another paragraph addition to the advertised section or subsection would be preferable to a footnote. MR. PIRES: Madam Chairman, just a couple more comments if I may. With regards to the apparent hesitation of the petitioner to agree to the idea of deleting 8.1 lB and C, I find that curious. If they are proposing that the entire 37 acres in the north be under conservation easement, they seem to be relatively inconsistent or incredibly inconsistent with each other. Additionally, the petitioner has been indicating that what's been driving this is South Florida and that South Florida's ready to issue a permit. South Florida, at our request, asked the consultant's Page 73 December 6, 2001 petitioner (sic) and the petitioner if they were willing to waive the South Florida requirement that South Florida has to take action within 90 days of the application being deemed complete. The consultant came back to the agency and said that the consultant and the petitioner have refused to waive that requirement. So they have forced the issue before the South Florida Water Management District. Next Thursday -- and I'll make a copy of the e-mail from South Florida that, in effect, is part of the record. It's from Karen Johnson. She's the personnel handling it. On November 27th she had advised me, I heard from the applicant's consultant yesterday. At this time they're unwilling to grant a waiver. They prefer to wait until the Planning Commission meets on December 6th. We are proceeding for the December board hearing, which will be on the 13th in West Palm Beach. You will receive a copy of the finalized signed staff report. So what that tells me is that they were not willing to negotiate with us and talk about this issue and hold off on forcing South Florida to take action and that they're trying to use that as the wedge and the hammer to drive this Planning Commission in an area that I think is inappropriate from the standpoint of planning principles and environmental issues. CHAIRMAN RAUTIO: Okay. Mr. Cuyler, you came forward, and I think we should probably hear some other speakers. MR. CUYLER: I was just going to say, why don't we go through the rest of the speakers, and we'll address those. CHAIRMAN RAUTIO: Right. And we'll address that and address the idea of eliminating 8.11 also. So save those thoughts for -- and Commissioner Abernathy and, I believe, Mr. Commissioner Strain have questions of Attorney Pires. COMMISSIONER ABERNATHY: Tony, let me get this straight. How old is the Silver Lakes development? It goes back to Page 74 December 6, 2001 the '70s, does it? MR. PIRES: COMMISSIONER ABERNATHY: MR. PIRES: Yeah. COMMISSIONER ABERNATHY: '91, I believe, is the PUD we're operating -- '91. And it's your position that people who bought back in '91, that one of the principal -- or an important motivator for them was not only there would be a storage area, but that it would be in the eastern end of that tract? MR. PIRES: I think you'll hear that from -- that's correct. And I think you'll hear that from some of the residents and the property owners. COMMISSIONER ABERNATHY: Well, we've gone ten years now. Has it ever been used as a storage area? MR. PIRES: Other than whatever is out there based upon those photographs we had last time, I'm not aware of there ever being any other storage activity in that northeastern area. COMMISSIONER ABERNATHY: Not any other storage by the owners as opposed to the developer? MR. PIRES: Not in this particular area, that I'm aware of. There are other storage areas on site that have been utilized. COMMISSIONER ABERNATHY: Well, if this storage area to the east was so important to the buyers, why has it gone ten years without anybody raising this and now all of a sudden it's almost become the pivotal issue? MR. PIRES: Well, I think an aspect of it is reliance, number one, that when we -- that they had a storage area, that's where it would be located or in the other commons/recreation tract. There was storage that was -- currently exists and is taking place in this area, generally, and up around the clubhouse area in this area. COMMISSIONER ABERNATHY: I understand there are people that are, just on an ad hoc basis, storing things behind Page 75 December 6, 2001 residences there in the AR area. MR. PIRES: I'm not aware of that. I'm aware in the CR area that the developer has fenced that area off and is using that also for their maintenance activities. COMMISSIONER ABERNATHY: Well, the point is that people have managed to get by without this area for ten years and without any complaint about it. MR. PIRES: Because -- the reason why it's not -- once again, there have been storage areas on other portions of the project designated CR: In this location down by the golf course, in this area, and up in this location. But I think the key aspect is, which -- is that the storage area, from the standpoint of where it would be in the northern area, would not be on the western side. That was designated as a lake. But it would be on the eastern area where it is designated as a storage area. COMMISSIONER ABERNATHY: Well, how could it be that important if nobody's raised it in ten years? MR. PIRES: Once again, they have these temporary storage areas that are being utilized in these areas here and up in here. COMMISSIONER ABERNATHY: But, heck, ten years, people have come and gone in-- MR. PIRES: I don't know if they've lived there ten years. I think the first resident I was aware of was 1993, I believe. We'll have some property owners that will testify, once again, as to what they bought. In fact, one individual, in fact, specifically had it in his contract that the storage area would not be in this area. COMMISSIONER ABERNATHY: He may be in a preferred position. CHAIRMAN RAUTIO: Before I recognize Commissioner Strain, I would like to make sure that Steven Lenberger has a copy of what was passed out so he can look at the proposals that came from Page 76 December 6, 2001 Mr. Pires, because I have a couple questions from an environmental standpoint. So if you wouldn't mind reviewing that map while we talk a little bit more, I'd appreciate it. Commissioner Strain. COMMISSIONER STRAIN: Tony, the -- to elaborate a little bit on what Ken was trying to get to, the issue doesn't seem to be so much that the storage area wasn't built and may be over -- that there's no obligation to build that storage area in the PUD. It's an alternative use that could be put there. Whether the developer builds it, I think, is probably up to him and how he handles it with his sales people. I think the issue came about because they were trying to build something in a location that was different than what was shown to them at the time they purchased. MR. PIRES: That's correct. COMMISSIONER STRAIN: Okay. I noticed, too, that there were a lot of people here from Silver Lakes, and I think I heard someone say there's only four speakers, you being one of the four. And I see another attorney, so there's two. That means two residents may be left. You brought up a point last time, and I want to find out if it's still in effect, and that is a restriction on their freedom-of- speech rights to speak at this group today because of a letter written by Mr. Cuyler basically telling them there's all kind of monetary -- extremely significant monetary damages should they speak or maybe speak. MR. PIRES: We've had no follow-up correspondence from Mr. Cuyler, but we've tried to limit the number of speakers -- COMMISSIONER STRAIN: Okay. Are you -- MR. PIRES: -- out of an effort to try to avoid redundancy, reiteration. But I can tell you how many people, if they could all stand, who are in support of the position as articulated today by me with regards to having the storage on the northeastern portion. If you could all stand. Page 77 December 6, 2001 COMMISSIONER STRAIN: Is there anybody else not here that lives on that property? MR. PIRES: Thank you all very much. MR. CUYLER: Mr. Strain, if you want to hear the same thing 83 times, we will allow anybody to speak that wants to speak. I think they've limited their speakers as a result of trying to expedite the proceedings. COMMISSIONER STRAIN: That's -- I kind of wanted to hear that. Then your letter is not effective; that's what you're saying. MR. CUYLER: There was no restriction on their constitutional rights for reasons I told last time, so I won't get into that discussion. But if they want to talk, let them talk. MR. PIRES: But what Ken is not saying is that he would -- he's not withdrawing the threat and claim that's in that letter. COMMISSIONER STRAIN: That's exactly what I was interpreting. COMMISSIONER RICHARDSON: Mr. Pires, I'm a little puzzled about there not being any public notice of the Environmental Advisory Committee meeting. You indicated that it came as a surprise to you that there was such a meeting. MR. PIRES: There was no notice to the community. I believe the staff will indicate that they followed the ordinance notice requirements, the technical requirements, but there was no notice of the August-- COMMISSIONER RICHARDSON: Nothing published in the paper at all? DR. BADAMTCHIAN: Yes. It was published in the paper. COMMISSIONER RICHARDSON: And you don't read the legal notices, Mr. Pires? I'm -- I'm shocked. MR. PIRES: Yes, sir, I do read them. But what I'm saying is that I think this conflict has been -- if you have a developer that truly Page 78 December 6, 2001 wishes to meet with the community, since we've been meeting since April -- we even had meetings with staff in June or July. No one told the community, no one told me that there was an EAC meeting in August. Did they comply with the technical requirements? Perhaps. I'm not quibbling with that. I'm just saying from a standpoint of trying to work something out in a good-faith manner and trying to let the community be apprised, that didn't happen as to the August EAC meeting. We were aware of the November. We showed up. And the EAC, based upon the new information and changed circumstances, made the unanimous recommendation. CHAIRMAN RAUTIO: Mr. Bellows, do you have any comment? MR. BELLOWS: I'd just like to point out the recently adopted LDC change would require public information meetings so these types of problems would not occur in the future, that property owners would be required to hold them prior to submitting their application. CHAIRMAN RAUTIO: Right. Mr. Abemathy, do you have any further questions of Mr. Pires before we let him go? COMMISSIONER ABERNATHY: No, I do not. CHAIRMAN RAUTIO: Okay. MR. PIRES: Just for the record, I think in response to when did things occur and when did people buy, Phase II-E, which is the interconnecting road going to the east, wasn't platted until 1999. I'd like to make that part of the record. This is Phase II-B -- Phase II-E up in this area. CHAIRMAN RAUTIO: Are you saying elephant or bravo? MR. PIRES: Elephant. CHAIRMAN RAUTIO: Thank you. MR. PIRES: And so that the roadway connect -- connecting -- going to that back area in the northeast comer with a storage as Page 79 December 6, 2001 indicated, like, up in here, that did not get platted until 1999, so it's a recent phenomena. Thank you. CHAIRMAN RAUTIO: Next public speaker. MR. BELLOWS: Joe Belanger. CHAIRMAN RAUTIO: And who follows Mr. Belanger? MR. BELLOWS: Robert Murrell. CHAIRMAN RAUTIO: Be prepared to come forward. MR. BELANGER: Am I up or is Robert? CHAIRMAN RAUTIO: You are up. MR. BELANGER: Okay. Good morning. My name is Joseph Belanger. I live at Silver Lakes RV Golf and Resort, and my address is 1105 Silver Lakes Boulevard. I've resided in the park since 1993. To answer Mr. Abernathy's question about why the residents have not complained about the storage area not being built, it's since they started building the park-- if I can go to this map. CHAIRMAN RAUTIO: Pick up the mike right there. MR. BELANGER: We have had-- we have had several -- is it on? COMMISSIONER ABERNATHY: Yes. MR. BELANGER: Okay. We have had several -- this was the original park in here, and then they -- we had a large storage area down in here for quite a while, which accommodated the use -- the needs of the residents in the park. They then started developing this tract of land. They then put a temporary storage area here near the -- the clubhouse, which still accommodated some of our use. They had one here, right in this block right here. It's a temporary storage area. This one is still here. This one is still here. And it accommodates the use -- the needs of the owners in the park. We have not complained because we've had storage available to us, figuring that somewhere down the line, he would come through with his promise originally of Page 80 December 6, 2001 putting the storage area down here. So if that clears that up for you. CHAIRMAN RAUTIO: Mr. Belanger, as you come back to the microphone, I just want to make sure I understand that the uses (sic) for storage of the residents, in your opinion, has been met by this migrating storage area throughout the park. MR. BELANGER: Up to now, yes. CHAIRMAN RAUTIO: Up to now. Okay. MR. BELANGER: Now. If you -- if you go back, they testified that -- to the point that we have approximately 7 acres -- 7 -- 8 acres that we could use for storage if they put that into conservation, the whole 40 acres in conservation. You have to realize that 95 percent of that 7 or 8 acres is being used at the present time by the golf course. CHAIRMAN RAUTIO: Pick up the mike. MR. BELANGER: You have a No. 2 hole here. You have a No. 7 and 8 hole here, so that can't be used. You have a lake there; you can't use that. You have 3, 4, 5, and 6 in this area, CR area; can't use that. That's a golf course. Down here they plan on putting in a pool, the third pool; you can't use that area. So if you take and eliminate all of this stuff, where are we going to put a storage area within the park? You don't have that -- that room anymore. Yeah, we could go to Florida Power & Light and probably say we'd like to put some storage in between their easement, okay, under the power lines. But, then again, you're asking people that bought in -- into this area here to agree to putting in a storage area when they bought in with the agreement that the storage area would be here. So it wouldn't -- you know, it would lead right back into a battle again so -- and it isn't appropriate because we have a lot of water lines in there and sprinkler systems running through there with broken lines as it is. Right now we've got broken lines just from a lawn mower going through it, so I don't think it would be appropriate. Page 81 December 6, 2001 CHAIRMAN RAUTIO: Thank you for clarifying that. MR. BELANGER: The only thing that -- and that wasn't brought up to us as part of the -- trying to settle this thing recently, yesterday, as far as utilizing some of this other area for storage. It was just brought up to us that we're -- we're proposing to agree to finishing everything off, the third pool, the 28 lots, leaving the golf course alone; but we're going to have to put the 40 acres as -- as conservation land which restricts us as to the use of that 40 acres down the road. So we said no. They didn't -- they've never come back and said, well, you can use this or you can use that. All that was told to us, if you want the agreement, the agreement is this; if not, we'll pull our application, and we'll get up. That's the way it was put to us. Okay. The people just want what they were promised right along and what we've presented to you the last time, what we presented to the environmental people at their meeting, and what I'm prepared to present to the Southwest Florida in West Palm Beach next week. I was just given some pictures. Since we've brought up the impact of the area, the area that's impacted is not part of the 28 lots. It is south of the 28 lots or -- the 28 lots start right about here and go this way. The impact area is right in here, in the comer. There is no lots there. There's a lot here that comes down this way. There's lots that start right about here and come up this way. So the impacted area that we brought forward is not part of the lots that will be developed. Since we brought up the pictures, they removed the -- the -- I don't know whether it's a diesel tank that they -- or diesel fuel, whatever. I don't know if that diesel leaked into the ground, whether it contaminated the ground. I don't know. I know they moved it up to the temporary storage area up in the front, so it's still on our grounds. But they have brought in fill. They have brought in gravel. Page 82 December 6, 2001 And I thought I got a picture of the gravel, but I -- yeah. You can see a picture of the gravel where they intended to put in and fill in and then backfill over that, I guess. I don't know. But they -- and they had it surveyed yesterday again. I don't know why, but they had it surveyed. The only thing we're asking this commission to do is allow the people to get what they were promised originally. That's all we're asking for. CHAIRMAN RAUTIO: Mrs. Young. MR. BELANGER: Yes, ma'am. COMMISSIONER YOUNG: So if you -- you attended the Environmental Advisory Commission meeting. Did their recommendations fully meet your requests? MR. BELANGER: Yes, ma'am. We would-- we would be very satisfied with that recommendation. Any other questions? Mr. Strain? COMMISSIONER STRAIN: Not yet. I'm making notes, though. Thank you. MR. BELANGER: Thank you. MR. CUYLER: Madam Chairman, I have a couple questions for the gentlemen. Since this is a quasi-judicial proceeding, just a couple to clarify -- CHAIRMAN RAUTIO: All right. MR. CUYLER: -- at your-- whatever. CHAIRMAN RAUTIO: Would you like to do it now? So, Mr. Belanger, you stay there; and, Mr. Cuyler, you take the other mike. MR. CUYLER: You indicated there was no discussion of the storage area being in the low -- lower part of the development if the entire 40 acres were put into conservation. Where did you expect the storage to be if the entire 40 acres were to be put into conservation? MR. BELANGER: I didn't know where we were going to put a Page 83 December 6, 2001 storage area in there. If you were going to turn the whole 40 acres into storage (sic), we wouldn't have any room to put any -- any storage area, so that's why we denied it. MR. CUYLER: But you -- my question was, you knew it wouldn't be in the 40 acres, the storage area. MR. BELANGER: The way it was put to us, yes. MR. CUYLER: So it would have to be in your development. MR. BELANGER: Either that or we'd go without. MR. CUYLER: Thank you. You also indicated that you relied -- originally, apparently, the reliance was a big factor, and you've noted the -- or your attorney's noted the PUD master plan. Were you aware that storage could occur anywhere in the recreational open area under the provisions of the PUD and that there's a provision in the PUD that says that those types of things can be done administratively by staff?. Were you aware of that when you bought your property as well? MR. BELANGER: When I bought my property, I was aware of the fact -- and I looked at the PUD map, and I went according to the PUD map. I had not studied all of my documents as maybe a lot of people do when they buy property. I don't know. But I am not a lawyer. I do not know how to interpret a lot of that language. I'm sorry I'm not a lawyer. But as far as I was concerned, I was told there was going to be the golf course, three pools, and a storage area indicated on that map. MR. CUYLER: Okay. So you looked at the PUD map, but you didn't look at the PUD document that it was attached to? MR. BELANGER: No, sir. MR. CUYLER: Thank you. CHAIRMAN RAUTIO: I believe Mr. Strain has a question. COMMISSIONER STRAIN: I was just curious, is this -- MR. BELANGER: I knew I wouldn't get away without -- Page 84 December 6, 2001 COMMISSIONER STRAIN: No. It's not a -- it's really directed towards Marjorie. This ongoing dialogue seems more like a deposition than it does a presentation for this board. MS. STUDENT: These matters are quasi-judicial in nature, and we do allow, if a party requests, that they ask some clarifying questions of a person that's testifying. COMMISSIONER STRAIN: Because previously I thought we had directed that not to occur, but if it -- it's okay as long as I know -- MS. STUDENT: It's a due process matter, and we always say, "Give all the process that's due." COMMISSIONER STRAIN: That's fine. Thank you. CHAIRMAN RAUTIO: And then some. Are we through with Mr. Belanger at this point? MR. BELANGER: I -- I've been advised to clarify something. I did not look -- the map that I seen was the sales brochure that they gave me, okay, in the package when I bought in. And it -- it wasn't the PUD map that we have now. CHAIRMAN RAUTIO: Thank you. Next registered speaker. MR. BELLOWS: Robert Murrell. MR. MURRELL: Just briefly, my name's Robert Murrell, Samouce, Murrell & Francoeur. We represent Mr. Belanger as well as representing the transition committee. I think everything's been clearly stated, and I don't want to reiterate those things. I would like to bring just a couple of points to the commission's attention. One of those is in regards to the current storage that's in the middle of the project, in this area, that some of that storage will be taken when the new lots are built and finalized, so some of that storage is going to be eaten away. I'm not sure exactly how much, but a portion of that will be gone. So that is one -- one issue. And the other issue that we would just confirm in our representation of the transition group and the unit owners there is in Page 85 December 6, 2001 regards to the EAC proposal. We stand strongly behind that proposal. At least it's leaving the eastern 3-acre portion in CR. And then the remainder to be CO would be fine with the group as a whole. Thank you. CHAIRMAN RAUTIO: Thank you. Next registered speaker. MR. BELLOWS: Jerome Strauss. MR. STRAUSS: Good morning. I'm Jerome Strauss. I'm a member of the board of the property owners association. I'm also a member of the transition committee. I'm an owner, and I purchased my property somewhere in the area of 1993 -- I think maybe around '93 or so, and I've lived there ever since. I live -- moved to Naples in 1995. I've lived there year-round. That's my year-round residence. And I happen to be one of the property owners who abut the 40-acre parcel on the west side. And I'm also a property owner who was shown a map, a sales map, because that's really what Mr. Belanger was talking about. It was a sales map. It wasn't the PUD. It was a sales map that said "Share our dream with us." And that dream was to have this area with a lake, a storage area in the east, and walking paths and so on in the rest of the park. And there isn't any question about the fact that the storage area moved around a number of times because the park wasn't built. It was only done in phases. So it wasn't until within the last couple of years that we began to think that they were going to build that storage area in the back because they built -- and if you'll look at the map -- I don't have it; I can't present it up here to you -- you'll see that -- at least the one that I have here that was distributed by Mr. Pires to you -- the road goes right in, and it's a paved road right up to where the storage area should be, where that concrete -- ma'am, Commissioner Young, where you went in, you noticed that there was concrete taking you up to that area. And it was built as though there were going to be a Page 86 December 6, 2001 storage area there, which is what we anticipated, which is one of the reasons, of course, that nobody objected loudly because the others were always said to be, quote, temporary, end quote. And temporary meant they'd be moved. And, in fact, one of the odd things about this proposal, it's -- to me it's a hollow proposal that was made. To make everything conservation on the north 40 without any comment about where would the storage area be at all, because everyone in the park wanted to have and were promised a storage area -- without any comment on that or even a footnote on where it was going to be, it seems to me that issue needed to be addressed. And actually the property that's now being used, the temporary area that's being used for storage, if I'm correct-- and one of you can correct me, one of you lawyers that know this -- I believe that the area on 951 that's now when you drive down, deeded to the property a storage area facing 951, which you see there is still owned by Conquest and has not been owners association. So that without some kind of agreement that they would allow it to be used as a storage area -- I'm talking about the existing storage area, the one that's being used -- it's not available. And also, two of the lots, at least, that they're talking about with you about developing over here in this 28-1ot area are in the storage area that's being used right now. So once they're given permission to develop those lots, there's been no agreement by them to continue allowing us to use that storage area. So the park is left virtually without a storage area. All of the areas that are suggested are mostly golf course, except for -- except for a small portion of the property under the power and light line. And by the way, someone mentioned something, and I think it really was a telling point. One of you commissioners asked one of the gentlemen -- and I think it was Mr. Butler -- at the time that you Page 87 December 6, 2001 went to the water management, were the water -- was the water management aware of the fact that this had been a disturbed area over on the east side of the property? And Mr. Butler said, I believe, that they were not aware. But they have now become aware of that, and that's one of the reasons that, as I understand it, the water management people wanted to have an extension of time so they could consider the position of the Silver Lakes owners as to what had been going on and reconsider, perhaps, their-- their decision, their earlier decision. And that offer to extend that they asked -- as I understand it from them and from our attorneys, they asked for that extension-- was not granted by Conquest. If in good faith they had been wanting to grant us the opportunity to try and compromise this and work something out, it seems to me they would have said to the water management, well, if you want to take another look at it and if you want to listen to the owners and see if they can put it over in the east or not given the current situation, sure, we don't object to giving you enough time to consider it. But that's not where we are. They've now put their feet to the fire. We hope that you will accept the position of the Silver Lake property owners and their transition committee that Mr. Pires has presented and approve everything that's been asked for by Conquest except requesting that the storage area be on the east side of the property. Thank you. Are there any questions? CHAIRMAN RAUTIO: Any questions? COMMISSIONER RICHARDSON: Just a question. I recall that your property backed up to the western tract that was initially being -- MR. STRAUSS: It does. COMMISSIONER RICHARDSON: And so at least as it relates Page 88 December 6, 2001 to the -- what the applicant has now said he would do, that is to make that a -- continue to be a conservation area, that's happy news for you. MR. STRAUSS: Well, not completely because I lived in another community, a gated community, that was of this sort which is around the comer on Highway 41. And there they had a developer who promised a storage area, and he owned the property. And at the time -- it's Imperial Wilderness if you want the name of it. At the time that he moved out, he refused to turn over the storage area and told the owners that they could buy it for $50,000, and there was an enormous legal battle that resulted from that. Storage is very important to people in a park where they bring cars down on dollies, they bring motor homes down, and they need that kind of facility. COMMISSIONER RICHARDSON: Yeah. I've gotten that point. I just wanted to focus narrowly on the issue that you had brought before us last time, and that is not the fact of storage or location of storage, but the fact that now with this current proposal, that would be conservation behind you. And that would seem to fit your use of that property better than a storage area. MR. STRAUSS: Well, it isn't-- COMMISSIONER RICHARDSON: You didn't want the storage area behind you, as I remember. MR. STRAUSS: I didn't want it behind me, but I didn't want it in the east part of the property. COMMISSIONER RICHARDSON: Okay. Thank you. MR. STRAUSS: And, in fact, I -- I really wrote into my contract an agreement with Conquest that they would build a storage area. It is in my contract. COMMISSIONER RICHARDSON: That's an issue that's not before us. MR. STRAUSS: I understand. That was -- I just want to evidence my concern that we not get into another legal battle as we Page 89 December 6, 2001 did at Imperial Wilderness. CHAIRMAN RAUTIO: Any other questions? Thank you very much. Next registered speaker. MR. BELLOWS: There are no more public speakers. CHAIRMAN RAUTIO: No more public speakers. I know I have a few questions. I'm sure that Mr. Nadeau would like to respond to a few items. MR. NADEAU: I would, indeed. Mr. Pires, as the other speakers, spoke of reliance on a PUD master plan; reliance on a PUD master plan, reliance on the PUD and some commitments, verbal or written, from the owners. I'd like to direct your attention to that PUD master plan over there. And, Dr. Badamtchian, if you don't mind going over there, I'd like to read the note that runs across the top of that. I'll go ahead and read. You just confirm whether what I'm reading is correct. Note: Land uses depicted north of the Deltona Settlement Agreement line will be constructed subject to acquiring all the applicable federal, state, and local permits. Is that what that says, Mr. Badamtchian? DR. BADAMTCHIAN: Yes. MR. NADEAU: Thank you. Commissioner Strain had a poignant question at our last Planning Commission meeting. He asked me, what is the commons/recreation tract? What is the purpose of it? And, again, for claritive purposes, I will read it into the record. The purpose -- and this is the commons/recreation area, page 5.1 -- Section 5.1 of the PUD document. The purpose of this section is to set forth a development plan and development standards for the areas designated as Tract CR, commons/recreation area, on Exhibit B. The primary function and purpose of this tract will be to provide access, aesthetically pleasing Page 90 December 6, 2001 open spaces, passive/active recreational, and recreational residential uses -- pardon me. I have to back up -- passive/active recreational areas, hurricane evacuation, shelter facilities for recreational residential uses, and for areas intended to satisfy the residents' basic needs for a quality recreational opportunity. Any recreational, social, administrative, or maintenance facilities which may be indicated on the PUD master plan, Exhibit A, shall be considered conceptual. And the placement of such facilities as may be indicated on the PUD master plan shall be considered nonbinding, except in areas to be used for water impoundment and principal or accessory use areas. All natural trees and other vegetation as practicable shall be protected and preserved. This is a public document. This is a document that regulates the development in Silver Lakes. This is a part of the Land Development Code. It seems pretty easy to understand the written word. I authored the document. I think it's fairly clear. Second of all, Mr. Belanger, I believe, stated that there was golf course in the FP&L easement and that there wasn't opportunities for storage. In fact, there is no golf course in the FPL easement. Now, there was a question brought up as to, well, the storage facility on the east was intended to be there, which it was, and we got a road stubbed out on the eastern end of the project. But the agencies, as I've demonstrated to you, said no, you can't -- you can't play in that area. That roadway stub now provides a means of access for the sanitary sewer pump station that services the project. Now, just as easy to get our permit with the district, we are required to plat a 50-foot conservation easement, 50 foot in width that runs the entire length of the Tract CR along the westerly portion of the property. We were required to have an additional 50 feet on there. It can still stay conservation -- it still can stay commons/rec. And I can plat a conservation easement over the top of commons/rec Page 91 December 6, 2001 just as easy as I can over the top of conservation tract. That proposal to put a 3-acre storage facility on the east part of the property, we are mandated to place a conservation easement over the top of that land. So from our perspective, we would be happy to put 3 acres of conservation on the east side of the property, but we're going to plat an easement over the top of it to maintain our permit. That's all I have to say. COMMISSIONER STRAIN: I have a question. CHAIRMAN RAUTIO: Yes, Commissioner Strain. COMMISSIONER STRAIN: You were the author of the original PUD, I think you said. MR. NADEAU: Yes, sir. COMMISSIONER STRAIN: And then you had stated it's pretty clear. MR. NADEAU: To a planner; hopefully to a layman. COMMISSIONER STRAIN: Could staff verify that those preserve areas are intact that are on the mid to south part of the project? The preserve areas right there -- that one, yeah -- are they in place? DR. BADAMTCHIAN: No, sir. Portions of it is being used for golf course. COMMISSIONER STRAIN: That doesn't seem too clear to me. MR. NADEAU: Well, I explained that during our last meeting, that those conservation areas were merely token for the staff at the time of approval, that they have no jurisdictional right over lands within the boundaries of the Deltona Settlement Agreement. And as a result of the permitting through the project and the reluctance to deny use of lands that Collier County, the South Florida Water Management District, and the Army Corps of Engineers had no jurisdictional authority over, the county -- the county acknowledged and allowed a golf course to be built through those conservation Page 92 December 6, 2001 areas. COMMISSIONER STRAIN: I think the county stated that the planners weren't reviewing the golf courses at the time because they didn't require plan review for construction approval. So I don't think the county allowed it; it was missed. And I can tell you when you submit a PUD, a graphic representation regards to a Deltona Settlement Agreement is going to stick. I'm working within that agreement right now, and anything in that PUD master plan stays the way it is, regardless of the Deltona Settlement Agreement, because that's how the county approved it. MR. NADEAU: That's absolutely correct; however, that isn't the way it was permitted by the county, apparently. COMMISSIONER STRAIN: Apparently. You said you can't play in the conservation areas, to use your word. Well, you weren't supposed to be playing in the preserve areas, either, that you authored. And you worked for the engineering firm, if I'm not mistaken, that developed this project originally. MR. NADEAU: That is correct. I was planning director for McAnly Engineering for a period of time. However, I was not involved with the engineering aspects of the permitting of this project. CHAIRMAN RAUTIO: Commissioner Wolfley. COMMISSIONER WOLFLEY: Dwight, you had said that that eastern portion that we're talking about-- MR. NADEAU: Yes, sir. COMMISSIONER WOLFLEY: -- of the 40 acres was not allowed by the environmentalists? MR. NADEAU: (Nodded head.) COMMISSIONER WOLFLEY: Okay. You're aware, of course, of the minutes of-- the transcript of the meeting of the EAC and their -- how they voted. Page 93 December 6, 2001 MR. NADEAU: Yes. COMMISSIONER WOLFLEY: Were they in conflict with the environmental authorities in saying that they want that storage area larger and on the east comer? MR. NADEAU: I'm actually going to defer to the environmental consultant. I do not -- I'm not an expert in this, and I was out of the country at the time of the EAC meeting. And so if I may bring Mr. Butler up to respond to your question, Commissioner. COMMISSIONER WOLFLEY: Thank you. MR. BUTLER: Again, Mr. Butler, representative for the applicant. As a short answer, were they in conflict with the recommendation of EAC, as far as I can tell, yes. County staff has recommended approval for storage area in the west versus the east side. The South Florida Water Management District's branch office, field office, in Fort Myers has also recommended approval for storage in the west versus the east. COMMISSIONER WOLFLEY: Are you talking the far northwest comer? MR. BUTLER: Yes. The western portion of-- COMMISSIONER WOLFLEY: Which is orange up there on the diagram? MR. BUTLER: Yes. I mean, again, I think that's a point that was -- it's been -- it missed. I mean, there's been some discussion, some casual observations made by residents and the legal counsel for both sides as to the environmental issues and what's really required in the process and that type of thing. But, again, we initially, for the preapplication meeting, proposed storage in the east. That was -- come back to us with comments, no -- it's even stated in some of the correspondence from the agencies -- you need to put it in the west. There's a higher quality wetland area in the east. Page 94 December 6, 2001 And, again, yes, we're not -- after it came out, we are not denying that there are not some impacts that currently exist in the eastern area. We are doing our best to work with the agencies to remedy that, to revegetate it. When the agencies look at a permitting -- permitted project, they look at the whole picture, a regional aspect of it. Yes -- is there a physical impact in the eastern area? Yes. However, the size of that in relationship to the entire 40-acre parcel, undeveloped areas to the north, they saw as a better regional benefit to put the proposed storage in the west and restore the smaller area to the east. CHAIRMAN RAUTIO: Okay. While we're on this environmental aspect, Mr. Lenberger, the map, the revised map, would appear to represent what the Environmental Advisory Council voted on; is that correct? MR. LENBERGER: For the record, Stephen Lenberger, planning services. Yes, that's what their recommendation was. CHAIRMAN RAUTIO: Okay. And can you give us any enlightenment of what you think the quality of the wetlands might be there on that east versus the quality of the wetlands on the west portion? What is your opinion, and what have you been involved in? MR. LENBERGER: Sure. The entire 37.3-acre tract on the north outside the Deltona Settlement has been cleared historically and used for agricultural purposes. I visited the site a couple times and walked out. The eastern portion is pine flat woods. It has a disturbed understory. One of the reasons it was disturbed is because there was a lot of melaleuca in there, and it was removed by the applicant at the county's request. The eastern portion-- I mean the western portion of the -- of the tract is pretty much a mix of herbaceous species, cabbage palm, laurel oaks, basically things of this nature. It's also got -- it's also somewhat disturbed. They're both not pristine by any means. Generally staff doesn't recommend the placement, for example Page 95 December 6, 2001 this project, of where the storage facility should go if the quality of wetlands is not that great on -- in either area. If this was a pristine cypress head, for example, staff would encourage the applicant to move the facilities away from that area. In this case this -- these wetlands are highly disturbed. You can argue, maybe, the pine flat woods is better quality, and I guess the district has made that determination. Also, the fact of the roadway on the east -- on the western portion of the property, obviously you want to have the preserve area further away from that for less impacts. CHAIRMAN RAUTIO: And in-- in your expertise, then, if we approve the map that's -- we're talking about in front of you now with -- as EAC has mentioned, what impact will that have, Steve, on the South Florida Water Management permit, in your experience? MR. LENBERGER: Well, the permit would have to be revised. There may be additional mitigation. I don't know how they're going to look at it. But the area of impact is less, so maybe the mitigation will not be as much. I don't know. CHAIRMAN RAUTIO: Okay. So those would be revised and maybe additional mitigation versus outright denial? MR. LENBERGER: I'm not sure how the district's going to approach that. If-- if the county places the zoning on the property with the -- with the storage shown in a certain area, then the district may be more apt to permit it, I would think. CHAIRMAN RAUTIO: Okay. I just wanted to have a feel for that because you were at the EAC meeting and gave testimony there also. MR. LENBERGER: Yes, I did. CHAIRMAN RAUTIO: Do we have any other questions? COMMISSIONER RICHARDSON: Yeah, Madam Chair. It strikes me that we've got kind of an interesting situation here. The EAC was given a choice of either west side or east side. They were Page 96 December 6, 2001 not given a choice of not having it up there at all. And it would strike me that if-- if they were given that choice, the environmental community would say let's keep it all conservation. Would you agree with that comment? MR. LENBERGER: I would say they probably would, yes. COMMISSIONER RICHARDSON: Thank you. MR. CUYLER: Madam Chairman, while Steve's up at the podium -- Steve, I swear I don't remember this for sure, but I thought your testimony at the EAC was that the western end was -- as between the east and the west, the western end was the better of the two from the environmental point of view. Did you not say that? MR. LENBERGER: Not to my knowledge, no. MR. CUYLER: If you-- if you were to choose between the east end and the west end from the environmental point of view, do you have a position on that? I heard your explanation that normally you wouldn't care one way or the other. But is the west, from the environmental point of view, in your opinion, better than the east? MR. LENBERGER: The eastern portion of the project is more wooded. So you can, I guess, argue that that might be a little better quality. But they are both disturbed. There's torpedo grass, which is an exotic, along the edges of both sides, and that's likely to creep any time. MR. CUYLER: It's at least reasonable, though, that an environmental consultant would come up with the west side as being the better of the two. I mean, that's at least a reasonable opinion. MR. LENBERGER: The west side? MR. CUYLER: The west end is at least a reasonable choice as between -- I mean, like you said-- MR. LENBERGER: Yes, that's a reasonable choice. MR. CUYLER: Madam Chairman, just a couple things in closing. I see Mr. Pires scribbling notes and heading for the podium, Page 97 December 6, 2001 so I trust we're not going to go back and forth on this. This is our opportunity to rebut. But very quickly, you have heard no environmental testimony. The EAC is a layman body. They are not environmentalists, to my knowledge. You've heard-- this is a quasi-judicial proceeding. You are required to base your decision on the evidence that's placed in front of you, not innuendos, not attorneys' argument. Mr. Pires is an attorney. He didn't present any evidence to you. You had two citizens that basically stood up and discussed things with you and two attorneys. You've had our environmentalist that indicates the west side is the appropriate side, that the east side was pursued, that the district has suggested the west side -- and you've seen documentation to that effect -- as well as the hardship it's going to present on the developer going back through the proceedings again. With regard to the storage being on the site, under our proposal that we made to the residents that the entire 40 acres be conservation, I did convey that to Mr. Pires and to Mr. Murrell. So if that didn't get to Mr. Strauss, that may be the case. But I'm sure they will confirm that I told them that that was the proposal. Mr. Strauss last time came up -- and it's amazing how all the issues shift as there's things taken care of. Mr. Strauss last time didn't want to be across the street from the storage. We offered to buffer it. That wasn't good enough. He didn't want it there. He talked about his contract, which is not within your jurisdiction. The people have talked about representations in sales contracts, which is not within your jurisdiction. Today Mr. Strauss stood up in front of you and said, well, that wasn't a real proposal about the 40 acres being conservation. Well, that was a real proposal because I made it, and I know it. And now all of a sudden Mr. Strauss is concerned more about storage being on the property up at the other end than he is about the storage being Page 98 December 6, 2001 across from him because that was taken away as an issue, by us. In terms of the storage area, maybe this is a legal issue, but I thought we all operated under legal rules and regulations and that is the PUD master plan is a changeable document. All of you that have dealt in development know that it is changeable, and there's wording usually in most PUDs that says it can be altered, often administratively. This one can be altered administratively. The PUD allowed storage in any of the open space recreational areas. There was a place on the PUD master plan that Mr. Pires keeps pointing to, but that was not in stone. And in terms of representations to the purchasers, that's not within your purview. If there are lawsuits after this, if the residents want to claim certain things, they have the right to do that. But from a planning point of view, I don't see the issue as being -- east side, west side being a serious planning issue. Now, Chahram disagreed with that, but it doesn't seem to me that that's really a significant planning issue. What this is about and what you have now found out is that you have inadvertently involved yourself in a neighborhood situation where there is a controversy about what people want. The developer that built the project and is building the project, he wants to put the storage in the west. It's become manifestly clear that what it's about for the residents is they want storage in the east. And those were the allegations -- those were the representations and allegations last time. You told us -- and you have the right to do this. Some people would say that, you know, you don't. But as far as I'm concerned, if you say, look, there's a controversy here, you guys go work it out, come back to us, I think you have a right to do that. I think a lot of times it promotes a good result. We went to the other side, and we said, fine. If-- if some of the concerns are it's across the street, you know, if you think the Page 99 December 6, 2001 developer is going to do -- you heard some testimony last time, well, we think the developer is going to do this or do that or have it open to the public or whatever. Fine. We'll get rid of all those issues. We'll have it all in conservation. And the position of the residents was, no. We want what we wanted last time. So we offered to compromise. what you sent us out to do. We want it in the east. They didn't accept it, which is So with that, we would conclude. I would suggest to you that from a legal perspective, we have met all criteria. You've seen no competent substantial evidence to the contrary. And we would hope that's the end of the proceeding, and we would very much appreciate your approval of this. CHAIRMAN RAUTIO: Before you leave the podium, I just have one question that might be somewhat tangential. Could you clarify for me what the additional fill dirt and gravel is being used for? Are we doing something major out there? MR. CUYLER: One second. CHAIRMAN RAUTIO: Because we have a situation where things had been done that weren't supposed to be done. MR. CUYLER: There's nothing in that area that's going on. Apparently, the gravel and, I think, pebble for French drains and for work on the residents' lots, is what I'm told. CHAIRMAN RAUTIO: I just wanted that on -- on the record to make sure we weren't still in a "don't ask permission, ask forgiveness" issue. MR. CUYLER: And just in advance, I object to Mr. Pires continuing. I say that because, you know, it's -- a normal proceeding is we present, they present what they want, and we rebut. I mean, if I get to rebut Mr. Pires, great. COMMISSIONER RICHARDSON: Mr. Nadeau -- could I have a comment from Mr. Nadeau -- I don't want to hear from Mr. Page 100 December 6, 2001 Pires -- to complete their side? CHAIRMAN RAUTIO: Yes. Finish your side. MR. NADEAU: Yes, sir, Commissioner. COMMISSIONER RICHARDSON: I did hear a commitment that you would restore any of the impacted area in what will be the conservation area in the north. MR. NADEAU: That is correct, sir. COMMISSIONER RICHARDSON: Okay. One of the issues that the residents bring up, and I wonder if you're in a position to comment on, is the adequacy of storage area. Now, your attorney has suggested that under the PUD those storage areas can be set up in a number of places based on need. Since there are a lot of people there already and since there are needs that have already been identified, is there something the applicant can say about establishing areas and maybe notes on the PUD -- I'm not quite sure what the vehicle is -- that would give them some assurance that they're not going to be locked out of having any storage on this site? MR. NADEAU: I believe that I can make a commitment from the petitioner's point of view that they will make every effort to find storage in the commons/recreation lands -- can I make that commitment? That we'll -- that the developer, the petitioner, will work with the residents to try and find storage on the property. COMMISSIONER RICHARDSON: So in summary then, we satisfy the problem of the Hobson's choice on the north end by having that entirely conservation and that you straighten out the impacted areas that are currently disturbed, and we have a commitment from the developer to provide for adequate storage areas within the site that's remaining. MR. NADEAU: We'll make every effort to provide for storage. COMMISSIONER RICHARDSON: Thank you very much. CHAIRMAN RAUTIO: Any other questions of Mr. Nadeau? Page 101 December 6, 2001 MR. PIRES: Madam Chairman, ifI may, with the chairman's indulgence, just for probably two minutes. CHAIRMAN RAUTIO: Pull the mike down just a little bit, please. Thanks. MR. PIRES: Thank you. I think I need to correct a couple of issues with regards to -- Mr. Cuyler indicated that Mr. -- someone indicated that Mr. Belanger said -- countered the fact about the golf course being in the FP&L easement. Mr. Belanger has advised me -- and he's willing to come back up here again to state that -- for the eight years he's lived there -- he lives right behind that easement, lives right behind the golf course. The golf course is in the FP&L easement. That's what he's unequivocally told me. As far as what you-all can consider from the EAC, you have their unanimous recommendation. I'd like to make a part of the record the materials provided to each and every planning commissioner that I believe each and every one of you advised you received a packet from my office with the EAC minutes. I'd like to make that part of this record. Mr. Cuyler's comment notwithstanding, there is the full discussion. There is the full text. There is the full testimony of our biologist, which is substantial competent evidence with regards to his recommendation that the storage area be in the less quality wetlands on the eastern portion of the property of a size of approximately 2.6 to 3 acres. I'd like to give that to the court reporter to make that part of the record, as well as the photographs. Additionally, I think it might be -- you may wish to inquire of your staff as to whether they had earlier seen this monster. I call this "this monster." This is the application -- MR. CUYLER: Madam Chairman, again, just for the record, I'm objecting. This is new evidence that's being put on in a rebuttal rebuttal. MR. PIRES: This is the evidence that they submitted to the Page 102 December 6, 2001 Planning Commission today showing the 19 acres of impact that they are proposing to South Florida. I added up the square footage. It's 85,000 square feet of storage, approximately, and about 78 parking spaces, and it looks like a commercial area and facility to me. I question the submittal that that was made in the nature of to South Florida to show such an extensive impact. And of course South Florida is going to say, you know, get rid of this little piddly old 2 1/2-acre impact here and then scale this one back over here. And now it's a 5,000-square-feet building from approximately 85,000 square feet. And I'm -- I think you -- you may wish to inquire of Mr. Badamtchian whether he had even seen that plan up until today and whether the county staff would approve it as a necessary accessory use to this project. COMMISSIONER RICHARDSON: Madam Chair, I would request we close the public hearing because of redundancy. MS. STUDENT: I just -- CHAIRMAN RAUTIO: I want to ask the county attorney for some advice here. I don't want to cut people off. I really don't. MS. STUDENT: We have a resolution -- I'll give you the number in just a moment -- 98-167 that sets up procedures for quasi- judicial hearings, and they're also made applicable to the Planning Commission, and an applicant can present rebuttal. But there's another provision called limit on presentations. And that states no person who has made a presentation for or against an item at a given meeting shall be allowed to make additional comments unless requested to do so by the board. So that would be at your request, not theirs. MR. CUYLER: Madam Chairman, I didn't want to irritate, in any way, the Planning Commission. It's just I know what the rules are. I know what's fair, and that's why I made the objection. Page 103 December 6, 2001 CHAIRMAN RAUTIO: And I apologize that I didn't really grasp the fact that we were going to have another presentation. But given my discretion, I would rather hear it on record than not have it on the record. So I think I haven't really made an error here at this point in time. If I need to say I requested Mr. -- MS. STUDENT: It's the board's request. CHAIRMAN RAUTIO: If I need to say that I requested Mr. Pires to rebut, then I did. MR. PIRES: Thank you, Madam Chairman. CHAIRMAN RAUTIO: Yes. I think we have a question from Mr. Strain. COMMISSIONER STRAIN: I'm going to wait for discussion; otherwise it's just going to prolong things. CHAIRMAN RAUTIO: We're ready to close the public hearing and go to discussion, or do you have a question? COMMISSIONER MIDNEY: I have a question. CHAIRMAN RAUTIO: Before that. Okay. I'll allow that. COMMISSIONER MIDNEY: I'm sorry. Maybe just because I'm new to this Planning Commission, but it seems to me like on the one hand we have the residents or the owners, and on the other hand we have the developer. Can't the developer develop the property as he chooses, and why is this coming before us? DR. BADAMTCHIAN: May I respond to that? Because the developers, they came here with their PUD document and the master plan, and it was reviewed and approved. And any time they want to change anything from the master plan or the PUD document, they have to come back here for review because you have to basically approve -- you and the Board of County Commissioners have to approve what is going to be built and where. That's basically the nature of a PUD. CHAIRMAN RAUTIO: And also, just to clarify, too, Page 104 December 6, 2001 Commissioner Midney, there are several things that were done by this developer that were not matching what the PUD is on the ground. We walked through those before. And my understanding from the last meeting was that all of those items, except the issue of identifying storage, had been agreed to by the property owners and the transition committee so that, once again, we're in a contentious situation about identifying more specifically where storage would be and how much it would be and whether or not it goes into 2.3, the section that we're discussing, by changing the acreages. So they have to be here because of this, and it's kind of like a secondary issue, because it's an accessory issue, of the zoning that we're trying to work out here to match what's on the ground. Commissioner Strain. COMMISSIONER STRAIN: Several points that were discussed today, and there seems to be a heavy reliance on the South Florida Water Management District's -- CHAIRMAN RAUTIO: Excuse me, before you go any further, wouldn't you consider this discussion, so maybe we should close the public hearing? COMMISSIONER STRAIN: I thought we already had. CHAIRMAN RAUTIO: No, because I hadn't actually officially closed it just to recognize Commissioner Midney. So close the public hearing. Discussion. Well, do we have a motion first, or we'd like to -- COMMISSIONER STRAIN: I'll move we close the public hearing. CHAIRMAN RAUTIO: No. I mean, do you have a motion on the petition? COMMISSIONER YOUNG: I'll make a motion. I move that we send PUDA-2001-AR-1404 to the Board of County Commissioners with a recommendation for approval subject to the Page 105 December 6, 2001 recommendations of the Environmental Advisory Commission. COMMISSIONER STRAIN: I'll second that. CHAIRMAN RAUTIO: We have a motion by Commissioner Young, a second by Commissioner Strain to approve this petition subject to Environmental Advisory Commission decision -- recommendation. Discussion. COMMISSIONER STRAIN: Yes. I've got a couple points I'd like to just put on the table. One is that there's been a lot of reliance on the South Florida Water Management District's decision on the west end of this project. As admitted by the applicant's environmental consultant, that decision was made without the benefit of South Florida knowing the extent of the intrusion into those wetlands on the east side of the site. That was confirmed, again, at the EAC meeting. Also, the applicant's agent, Mr. Cuyler, recommended that we should be looking at this from a good planning viewpoint. I can't see -- and I don't know of any planning criteria that would ever dictate storage area to be in front of the entry of a project. Usually it's put as far behind everything as you can possibly put it. So if you want to rely on good planning, what you're proposing, putting that 8 acres in the front, is not good planning. And the last thing is, there was some preserve areas dedicated on the PUD master plan originally. While it's part of the Deltona Settlement Agreement, the fact that they were regiven up during the PUD review doesn't mean they can just be forgotten about. If that dedication was there, there should be some mitigation for that. I believe that by changing the CR in the north end to CO in line with what -- the motion was made would be subsequent mitigation for losing that preserve area. And that's all I need to say on that. COMMISSIONER RICHARDSON: Madam Chair, just -- the EAC -- just to make sure the person that offers the motion Page 106 December 6, 2001 recognizes, the EAC reduced the area from 8 acres to 3 acres; is that correct? DR. BADAMTCHIAN: Correct. COMMISSIONER RICHARDSON: Is that included in your motion? COMMISSIONER YOUNG: Yes. CHAIRMAN RAUTIO: Yes. That's the way I understood her motion. It would be the 3 acres. COMMISSIONER RICHARDSON: I just wanted to make sure the motioner understood that it was different than what the applicant is asking for. COMMISSIONER YOUNG: of it. I don't feel adamant on that aspect CHAIRMAN RAUTIO: Point of clarification. Did they not say they wanted 3 acres, not 8 acres? That was the motion; correct? Chahram. DR. BADAMTCHIAN: Three acres on the east side of that northern tract. CHAIRMAN RAUTIO: That's what they voted on; therefore, it's 3 acres in the motion that Commissioner Young has given us. COMMISSIONER STRAIN: That's how I understood it too. CHAIRMAN RAUTIO: Understand that very clear. COMMISSIONER RICHARDSON: CHAIRMAN RAUTIO: Okay. COMMISSIONER RICHARDSON: Just one question. Thank you, Madam Chair. CHAIRMAN RAUTIO: That's quite all right. I think we might have a comment or two from down here. COMMISSIONER RICHARDSON: I should probably let that happen. I'm still attracted to the idea of having that entire area up there as conservation. And it would -- and as the environmental consultant for the -- environmental person for the county has said, if Page 107 December 6, 2001 the environmental commission had been given that choice, which they weren't, they would have accepted that as an entirely conservation easement or conservation tract. It would seem to me if we -- we went that direction, which the applicant has said he's willing to do, that resolves all the problems with the additional good-faith effort to permit storage in the other areas where it's already permitted. That's the direction I would like to see it go. MR. CUYLER: If you want us to discuss that, we will. CHAIRMAN RAUTIO: I was going to say, because I didn't think that was really on the table but -- COMMISSIONER RICHARDSON: It was on the table as the alternative proposal. They went through it line by line. And I -- I cm -- I complimented them on taking that effort to try to resolve this issue in the recess that we'd given them. CHAIRMAN RAUTIO: Okay. Well, do have a motion and a second on the floor right now that does not include that. So we can finish our discussion, and we can vote on that. If you can convince everybody to vote in your direction before we take the vote, you'll get an opportunity to make a new motion. COMMISSIONER RICHARDSON: Well, if I say no, that's the reason. CHAIRMAN RAUTIO: Okay. You made that clear. Commissioner Adelstein. COMMISSIONER ADELSTEIN: Yeah. I went through that EAC document completely. And the thoroughness and the way they explained it, I kind of felt the same way. It's a very good idea that we do give purchasers the opportunity to get what they thought they were purchasing. CHAIRMAN RAUTIO: Commissioner Abernathy. COMMISSIONER ABERNATHY: Well, I'm still back to my planning versus environmental dilemma or dichotomy. Whether or Page 108 December 6, 2001 not it is the best of the alternatives as far as good planning is concerned, it seems to me the developer promised to provide a storage area, and it's within his discretion, as -- as the PUD document indicates, where to locate it. 'm going to take the developer at his word that -- on the other hand, as far as the environmental aspect is concerned, I'm going to take the developer at his word, although I am -- have some reservations about that, that he really wouldn't mind putting the storage area in the east, but he's relying on the South Florida Water Management District to prohibit that -- who have prohibited that. I'd like to see us go on record as approving the placement of the storage area on the east and -- and sort of call the South Water Management District's (sic) bluff and see if they really will insist -- if it's going to destroy this project. CHAIRMAN RAUTIO: Mr. Midney, do you want to speak while we're on this side? Mrs. Young. COMMISSIONER YOUNG: I confess to being very much influenced by my visit to this site. I don't think I've ever seen a development of that kind so picture perfect, so well maintained, and -- and it makes me listen very carefully to the voice of the homeowners, yet the developer did a very nice job of laying out this plan originally. My concern and the reason I presented the proposition the way I did was I observed a certain amount of pussyfooting in the commitment of the developer's representative to work out a program with these homeowners to provide adequate storage that they seem to need. CHAIRMAN RAUTIO: Okay. I just want to make my statement before I call the question. I, too, think that we might be able to call the bluff of the South Florida Water Management District. The testimony I heard today about this migrating or traveling storage area certainly would tend to give me concern, if I lived there, that it Page 109 December 6, 2001 kept getting moved. And by the time we were going to finish up, where is the permanent storage? And I think it was stated before that the developer may not be the -- exuding the milk of human kindness to all their residents. I think he's made an effort to solve problems, but I think that I can actually, hearing what I've heard today, go ahead and agree that we need to be specific and ask for an area that's specific, as well as the motion states that we will support the EAC test -- excuse me -- the EAC recommendation. So if there's no other further comments, I call the question. All those in favor say aye. (Unanimous response.) CHAIRMAN RAUTIO: Those opposed, same sign. (No response.) CHAIRMAN RAUTIO: It's unanimous. COMMISSIONER RICHARDSON: Just a clarification. My aye did not necessarily agree with west or east, but I sensed no support for having that entirely as a conservation area, which I really think would be a better idea. CHAIRMAN RAUTIO: Thank you. MR. NADEAU: Thank you, Commissioners. (Applause) CHAIRMAN RAUTIO: Next stop is the Board of County Commissioners. COMMISSIONER RICHARDSON: Let me ask Marjorie. This means that it'll go on the consent agenda then, or does this have a -- MS. STUDENT: Not a chance. CHAIRMAN RAUTIO: Not a chance. MS. STUDENT: A summary agenda. (A discussion was held off the record.) CHAIRMAN RAUTIO: We are now at the point -- please be Page 110 December 6, 2001 quiet as you leave the room. We need to -- excuse me, Commissioners. Mr. Midney, Mr. -- we're still in session. COMMISSIONER ADELSTEIN: I'm sorry. CHAIRMAN RAUTIO: We have an issue here -- excuse me. Would you please -- quiet departure. I need to ask the Planning Commission. We have two more items to go here, and it's 20 after. We do have a workshop, but we're going to probably have to take lunch. But my question is, do you need a break for even five minutes for your fingers? We've got two more issues to go. (A discussion was held off the record.) COMMISSIONER STRAIN: I've got a few questions. CHAIRMAN RAUTIO: He's got a few questions. THE COURT REPORTER: Okay. Let's take a break. CHAIRMAN RAUTIO: Let's take a five-minute break, and then come back to the next hearing. Thank you. (A break was held.) CHAIRMAN RAUTIO: We're back in session. All right. We are now at Item D in the public hearings, PUDA-2001-AR-1573, the Sandpiper Village PUD amendments. All those wishing to give testimony today, please stand, raise your right hand, and be sworn in by the court reporter. (The speakers were sworn.) CHAIRMAN RAUTIO: You're up. MR. BELLOWS: For the record, Ray Bellows with current planning staff. The petitioner is requesting to amend the Sandpiper Village PUD document for property located on the south side of U.S. 41, and it's west of Frederick Street and east of Sandpiper. The proposed change is basically to reduce the number of dwelling units that are currently permitted from 180 dwelling units to 170 dwelling units. It also proposes in increase the commercial floor area from Page 111 December 6, 2001 45,000 square feet to 52,500 square feet for this mixed-use project that has a combination of commercial on the first floor and residential on the second and then some separate residential tracts. I have the currently approved master plan, and it's included in your packet. MS. STUDENT: Excuse me. Did we -- CHAIRMAN RAUTIO: No. I was going to let him talk a little. We can make disclosures. MR. BELLOWS: Oh, well, if you'd like to do that now. CHAIRMAN RAUTIO: Okay. Since we interrupted, do we have any disclosures of the board? COMMISSIONER STRAIN: Just during a break and a few moments before the beginning the meeting, I had a discussion with an agent for the -- with the agent for the applicant. CHAIRMAN RAUTIO: And that would be? COMMISSIONER STRAIN: Mr. Varnadoe. CHAIRMAN RAUTIO: Okay. Any others? I had a telephone conversation yesterday with Mr. Varnadoe with reference specifically to the traffic issues and our policies that we're attempting to impart here. COMMISSIONER STRAIN: I need to add that to mine. That's what my conversation was about, too, today. COMMISSIONER ABERNATHY: I had a conversation -- brief conversation with Mr. Varnadoe at a social event the night before last, I think it was, on this subject but not much of any substance, by the nature of the event. COMMISSIONER ADELSTEIN: We'll pass on that one. CHAIRMAN RAUTIO: Yes. Let's not elaborate on the nature of the social event. Okay. Go ahead, Mr. Bellows. MR. BELLOWS: As you can see, in the reddish pink color are the mixed-use areas, and the blue are the total residential areas fronting on 41. The intent of this petition is to revise the master plan. Page 112 December 6, 2001 This will create the mixed-use tracts fronting along 41 in its entirety. This will be more consistent with the Bayshore/Gateway Triangle redevelopment plan that calls for these mixed-use buildings to be closer to the roadway. The residential tracts -- the solely residential have been moved to the back. We've added two more roundabouts and improved the traffic circulation. Mr. Varnadoe has a pretty detailed presentation, so I won't go into the entire process of compatibility with the adjacent uses. This is an approved PUD, and basically we're just shifting some of the tracts around as noted. This petition has been reviewed by all of our reviewing agencies, and we do have some additional transportation stipulations that I tried to e-mail and fax all of you yesterday. If you need a copy, I can provide you another copy. Basically under Section 5.7 of the transportation section of the PUD document, Stipulations A and B will remain the same. There's only a minor change to Stipulation C with some wording put in the design and cost factors of the traffic signals. No changes to Stipulation D. Stipulation E would be deleted in its entirety with a new stipulation that sidewalk and bike paths shall be provided in accordance with the current LDC requirements. And Stipulation F would also be deleted with a new stipulation that all access points in number, location, and type are subject to final approval in site development plan phase. Nothing provided in this PUD document shall vest any of these locations or type of access as shown on the conceptual master plan. The project was not required to go to the EAC because the change wasn't substantial, and it was just recently approved by the EAC when this project was rezoned back in -- a year or so ago. The -- there are no other individuals -- I've been contacted several times from property owners in the area, but they weren't objecting. They were mostly concerned about what was going on on the site and what Page 113 December 6, 2001 the changes were, and they didn't express any opinion one way or the other, whether they were for or against the proposed change, as you can see here today. Staff is recommending approval of the proposed amendment, and I'll be happy to answer any questions. CHAIRMAN RAUTIO: I do have one quick question. On the 5.7 transportation changes, the last language under F, is that not the language that we, at the late hour, approved for the LDC change amendments that are going through the process? MR. BELLOWS: I believe they are but-- MS. WOLFE: Dawn Wolfe, transportation planning department director. Yes, that is consistent with the language we are proposing under the LDC. And as we have been endeavoring to move forward on those which are coming forward, we're trying to include consistency. And as the PUD comes forward, it does open up the opportunity to encourage consistency with where we're trying to go with the Land Development Code in regards to access points and ensuring that we have the right type of information at the time we make our decisions regarding how those access points will affect the primary system. CHAIRMAN RAUTIO: Okay. And I just wanted to clarify, then, Dawn, in the PUD document that we received -- I believe it's F in the document that was approved in March -- I don't see that this language is really necessary given what's in here. And this was one of those newer old ones, and I thought we weren't really going to look at retroactive, recognizing that the LDC amendment has not gone all the way through yet. But you must have some feeling between the language we have been handed out and the language that's in F in the document on page 5-3, if you're looking up here. What's the real difference, and why do you have a better comfort level with the new language? MS. WOLFE: There are some components in the current PUD Page 114 December 6, 2001 document which are explicit, and at the -- with the level of information we have right now, I would not, from an evaluation standpoint, say that we could make those types of judgment calls. And the -- we have it shall be right in, right out, where there -- this will be where a signal is at. We don't feel that that's appropriate to have in at this point in time in a conceptual until we know exactly what the land use is. Yes. There's been an increase in the retail, in the commercial aspect of it. But we don't know explicitly what that is until they come in with an SDP, and that's the time at which we can make the statements and conditions as to exactly what can be where and how many. It may be we may make recommendations that will alter more than is conceived by the current condition; and therefore, we feel more comfortable with the language that we have proposed to you, and it was submitted and sent out to you. I realize that Mr. Varnadoe will come up and make statements, as he has made to me, that they have a feeling that they have a vesture based on the March document. CHAIRMAN RAUTIO: Okay. And I just wanted to make sure that the public that's listening -- the word -- or the sentence that I was looking at is, the location of these access points is subject to change and will be finalized at the time of permitting. That's the document language, just as a point of reference. Now, has anything really changed in the field where this is -- with the work that you've done with transportation and moving forward, what's changed as of today versus what existed in March in the field? MS. WOLFE: In the field, nothing specifically. The information that has been provided to us both in March -- for that March determination as well as what has been provided as supporting documentation today is not -- is not sufficient in detail to absolutely substantiate those locations and the types of access points that are listed and identified in there. We would feel better if there was the Page 115 December 6, 2001 language contained as we have provided you rather than as they have shown. There is sufficient wiggle room in how they have it written in the current document that could prevent us from applying the specific criteria in the access management policy or requirements under the construction standards for works within the right-of-way. CHAIRMAN RAUTIO: Okay. So then, really, there's not much that's changed that's in the document and what you're looking at for the access management plan policy itself. MS. WOLFE: Correct. It's -- it's the interpretation for purposes of application that we want to make it very clear. CHAIRMAN RAUTIO: I believe Commissioner Strain has a question. COMMISSIONER STRAIN: Dawn, last week when we discussed this amendment to the ULDC, I had expressed a concern over the fact that when you do planning, the entry to your project is one of the things that really dictates the whole project's planning in a lot of ways. And not to be able to know that that entry is going to be in a certain location, at least within a reasonable parameter, is really difficult when you come and seek approval for a project and then go out and try to build it, and you have no basis on which to rely on. I didn't have an example last week, and we ended up, I think, approving the changes to any new PUDs coming up, but this is a prime example of what I was concerned about in that that one that they're proposing today, that whole land plan is based around certain points of entry. And how would you address that with your policy? I mean, how -- they would have quite substantial changes in building layouts and everything if you moved, substantially, those entry points, any one of them at this point. MS. WOLFE: As an example of concern is their initial location for the roundabout directly off of U.S. 41. From an evaluation Page 116 December 6, 2001 standpoint, once we know exactly what's in there from a specific land use application, such as under an SDP, that may or may not be, for example, sufficient in distance from U.S. 41 or to either the proximity of the intersection of Davis Boulevard with U.S. 41 and Sandpiper. Those are the types of things -- like I said, we need to have more information. We need to have the design criteria under evaluation of that proposal to be able to be that specific. That information has not been provided, and we don't anticipate that level of information and evaluation to be provided until the site development plan stage. This is recommendations coming from our transportation division. It is up to you, as the Planning Commission, to make the final recommendation on it. But this is the position that we're recommending. COMMISSIONER STRAIN: Is your concern the external exit and entry points or the internal as well or both? MS. WOLFE: Both. COMMISSIONER STRAIN: So you wouldn't be satisfied with one or the other. And the external points are what I see as a planning concern. Internally, if the depth has to be adjusted and all that based on impact, yes; but the external points are critical. And I'm just wondering -- I'm real concerned about how that's going to evolve over the next year as more PUDs come in, and nothing can be relied on once the graphic's approved. That's just -- that's going to be difficult. CHAIRMAN RAUTIO: Mr. Abernathy. COMMISSIONER ABERNATHY: Mark, do you recall when we discussed this language in the LDC amendments? MS. STUDENT: Yes, I do, and I have no problem with the transportation concept whatsoever because I have personal experience with almost being in some automobile accidents because of the way things have been designed with turning lanes and so forth. Page 117 December 6, 2001 My only concern was the process, and I've talked with Jackie Robinson of our office, who's our transportation attorney, about crafting some language for the continuation of the LDC hearings. So if there's specific language in a PUD document and there's no divestiture language in the PUD document, there's a process issue because our code says -- and I'm bound by law to tell you what our code says -- that if there's a text change, that -- that it has to come back through a process. And I think what staff is suggesting is a way, you know, to take care of a lot of-- to take care of future PUDs certainly and PUDs with divestiture provisions. And also, there may be only a handful that have that specific language, and that's where -- I had discussed this with Jackie Robinson so we could, you know, come up with something for the LDC issue. COMMISSIONER ABERNATHY: What I started to say was that I voted against your amended -- the language as it ended up with your amendment, say, but not retroactively because I would have stricken the provision altogether. I don't think it -- COMMISSIONER STRAIN: I wish you had made that motion. COMMISSIONER ABERNATHY: I don't think it's good on its face, as far as I'm concerned. MS. STUDENT: I think it's a policy decision for this board today. CHAIRMAN RAUTIO: And it's a policy decision with reference to this particular PUD that's before us today. And, of course, we're discussing the bigger policy discussion of access management which, during those same hearings, I did not articulate specifically something like this. Here we are. It's already approved. It's got fairly decent language, from my ability to read English, but not planned transportation, and I feel comfortable with it. Whereas, I wasn't completely comfortable with the concept that we were going to do without the retroactive removal, and this is an old PUD. So I Page 118 December 6, 2001 just wanted to make sure that that's clear as mud, at this point. COMMISSIONER ABERNATHY: I wanted to ask Mr. Bellows a question, but he didn't get a chance to answer it. MR. BELLOWS: No problem. COMMISSIONER ABERNATHY: I don't know that it makes any difference. But there's talk about adding additional roundabouts. I mean, are there -- are they of any legal significance? I wouldn't call that thing up there in the northwest comer a roundabout. It's just the end of a cul-de-sac. You can't exit anyplace but one, as far as I can see. So if that makes or doesn't make any difference -- MR. BELLOWS: Well, it's a circular-- it's not a cul-de-sac in the traditional sense because it has a center garden area or green area. COMMISSIONER ABERNATHY: It's not a roundabout in any sense because you can't exit it except where you came in. MR. BELLOWS: That's true. CHAIRMAN RAUTIO: Well, there are green areas in Pelican Bay that are cul-de-sacs, but you might call them a roundabout. So I'm not sure we're on the same page for definition. COMMISSIONER ABERNATHY: I'm not sure that makes any difference. That was my first question, but it was pointed out that they've been added. I can see one that's been added. CHAIRMAN RAUTIO: Okay. Commissioner Young, do you have a question? COMMISSIONER YOUNG: Yes. I'm-- I am concerned that this applicant is coming back for a substantial change only eight months after it was approved, and I really would like an explanation for this change. You say -- it states in here that when completed this project would not aggravate the C level of transportation in that very, very busy area. Would you state that for the record? MS. WOLFE: Under the generalized tables which are contained in the Growth Management Plan and a comparison of the traffic Page 119 December 6, 2001 impacts as provided by the applicant, they have identified that this would not force this facility to fall below that adopted level of service. COMMISSIONER YOUNG: Which is C? MS. WOLFE: The adopted level of service on this section is D. COMMISSIONER YOUNG: Oh, well, that clarifies that. CHAIRMAN RAUTIO: Any other questions of-- COMMISSIONER RICHARDSON: Well, the adopted level of service everywhere is D, is it not? MS. WOLFE: No, it's not. There are exception areas. We have certain roadway segments that are at E, some of them primarily either due to constraints or the fact we have not yet had the opportunity to expand those facilities. Certain facilities, such as I- 75, are dictated by the State of Florida, which is a higher level of service. And some areas are also at C because of their rural designation. CHAIRMAN RAUTIO: Mrs. Young and then Mr. Wolfley. COMMISSIONER YOUNG: Just to follow up, on page 3 -- I picked that up specially -- this segment of U.S. 41 is operating at LOS C, and I -- that's why I wanted to specifically find out, is that what it is, and is that the way it will stay after this project goes in in its augmented style? MS. WOLFE: That's kind of a Catch-22 question. As we've been discussing and discussing, both here and, myself, in front of the Board of County Commissioners, the current level-of-service tables, which I am dictated to make recommendations based on, shows this facility to have that level of service, that is operating above its adopted level-of-service standard based on those capacity tables. We are in the process of updating those, and it may not, as a result of those modifications, show, at the time that this comes forward for development approval, to be in that same situation. However, there are other issues in regards to that, whereas they Page 120 December 6, 2001 are subject to an adequate public facilities finding that there is sufficient capacity. And under the current ordinance, as long as they're -- it is not an identified area of significant influence roadway, adequate public facilities certificates are issued, if I can make that clear as mud. COMMISSIONER YOUNG: What did you say? MS. WOLFE: The way that the Land Development Code is currently written, under the adequate public facilities ordinance, as long as a roadway facility and a development do not fall within an ordinance-adopted area of significant influence, which means that we are a deficient facility and do not have a planned improvement within a three-year time period to bring that up to the adopted standard, that we are required under our Land Development Code to issue an adequate public facilities certificate for roadways. Currently we do not have any such areas of significant influence identified within Collier County. Therefore, adequate public facilities certificates are issued on all projects. CHAIRMAN RAUTIO: Okay. Mr. Varnadoe. MR. VARNADOE: Thank you. Good afternoon, and happy holidays, because I probably won't see you again this year. For the record, George Varnadoe with the law firm of Young, van Assenderp, Vamadoe & Anderson for the applicant and owner, Antaramian Capital Partners, LLC. Also here today to answer questions are Charles Thomas, director of planning for the applicant; Peter Stromberg of Garcia, Brenner & Stromberg, the architects and planners for the project; and Mark Gillis of Plummer & Associates, the transportation consultants on the project. New procedure for me, I've got photos showing the massive signs we put on the project in response to the new LDC provisions. Marjorie, are you the keeper of these, or what do I do with these? They show the date that they were there on the requisite date before Page 121 December 6, 2001 the hearing. Whatever you want to do with those is fine with me. As-- CHAIRMAN RAUTIO' That was clever, Mr. Vamadoe, to pass those out today. COMMISSIONER RICHARDSON: Whatever you want to do with those. MR. VARNADOE: I -- it doesn't say what you do with them. You know, it says you have to take them. You have to have them, and I have them. So after that I wasn't sure what we did. The -- not to get off the point, but just a little bit, but I get a -- we were in the middle of this process, and-- and these LDC requirements became finalized. And I get a call from Ray, who says -- Ray Bellows, who says, "You need to put signs up. In order to make this date, we got to have these signs up by next Tuesday." This is, like, Wednesday afternoon. And I'm saying, "Why have I got to do it? I'm in the middle of this process." He said, "Because you've got this far, but you haven't had to advertise, so get the signs up." So we went and moved -- I won't say heaven and earth, but it took quite a bit of effort to get them up, so I wanted to make sure that we have a record of them because we did that. CHAIRMAN RAUTIO: Thank you. MR. VARNADOE: As Ray explained and is on the localizer, this property is on the southeast comer of-- of Sandpiper Drive and U.S. 41. Sandpiper Drive is the entry road into the Royal Harbor subdivision. U.S. 41, as an example, is along here; Sandpiper comes along here. The property is approximately 15 acres in size. Only 13 acres are within Collier County. The western 2 acres are in the City of Naples, and that line basically extended like that, that would be the dividing line. Everything to the west is in the city; everything to the east in the county. Page 122 December 6, 2001 The property within the city is -- is zoned RS3-12, allows up to 12 units an acre. We are going to be consistent with that zoning. We won't need to go to the city for any changes. We have residential only in that area. The property, for those who have been around for a while, is the old Chlumsky Shopping Center, which I think was called the Naples Shopping Plaza, which was here when I moved here in '74, part of it was. And he kept adding a little bit on and on. And earlier this year -- well, last year the client acquired the property, and earlier this year we got a PUD to take it from C-4, which would allow, you know, a shopping center up to 150,000 square feet on that property, to this mixed-use concept, which is much less impactive on all of the facilities of the county including the transportation section. I guess the question that I would have if I was a planning commissioner is the one that Mrs. Young broached. And, you know, you got this thing rezoned in March of this year. You know, why are you back here now wanting to make changes to it? And that's a good question. Aside from the fact that it's good for the architects and attorneys involved, since we're going to -- since it's always good to have business, the real answer is that as detailed planning progressed for this project, we actually thought and came up with a better way, a better plan, and we thought it was significantly better that we should bring it back through the process. Interestingly, the revised aspects of the project increased compliance with the Bayshore Triangle Gateway (sic) Overlay District, which is the district that we are trying to have this in. It encourages commercial use and mixed use and wants to do it in a urban way as opposed to suburban way. You know, I was -- somebody asked me, "Well, how would you describe that?" And I said, "Well, it's easy. As a lawyer, before we were meeting the letter of the law, and now I think we better meet the intent of the law, if Page 123 December 6, 2001 you would, or the overlay district." Before I describe the changes -- and I've got a before-and-after picture here -- what I'd like to address is what we're not changing because some of these were -- have been worked out with other neighbors over a period of more than two years, and I want to go through what we are not changing. First, we're not changing our relationship to Sandpiper Drive. Sandpiper's over here. In working with the Royal Harbor and Oyster Bay associations in particular, we had coordinated through a series of meetings that they wanted residential along Sandpiper. And they wanted a -- what they and I refer to as a linear park for a landscape buffer along Sandpiper there trying to beautify their entrance. I know -- if you-all have been out there, they've gotten the city to do a little landscaped park on the other side of Sandpiper on U.S. 41. So we are keeping that feature. It's a minimum of about 40 feet in width. It's going to have some low berms, some landscaping and, of course, a pedestrian way making its way through there. And their nearest neighbors are going to be residential, which are limited to two stories in height. Second, our traffic relationship and access to points on public streets have been maintained, and we're keeping them. They are exactly the same points, the same locations, and the same type of access that was reviewed by the county, county staff, and then by the -- by this Planning Commission and the board, ending up in approval in March of this year. We obviously relied on those points in coming up with a new plan, so keep them the same. We're proposing a slightly different land use mix, which is reducing the number of units slightly, only by 10. We're increasing the commercial slightly by 7500 square feet. Not a big change. That's as a result of market research. And in looking at small retailers of the type you'd want to find in here, the neighborhood commercial uses, what we are hearing is in order to get that -- that Page 124 December 6, 2001 mass -- that -- the synergism between uses so that if you go in there to get a loaf of bread, that attracts you to the ice cream store which you might not have gone in earlier or to the coffee shop or go to the cleaners. The coffee shop wants you to go in and get coffee after you do that. They're looking for a minimum of fifty thousand square feet, and they'd prefer sixty. But we looked at sixty, and we thought the transportation impacts from that were a little much, so we -- we reduced it to fifty-two five. So that's why the change in the land use mix. However, that's -- those, really, are -- are really irrelevant changes as far as the developer's concerned. What's really changing is the land use plan, and I'd like to spend some time going through these two conceptual site plans and walk you through the changes very briefly, because I know we're late in the day, but I do want to point them out so you understand what we're doing. The first change is the one that Ray mentioned. We're having more massing along U.S. 41, whereas before we had a recreational building here, some parking, part of a mixed-use building, a -- a retail-only building, and then a parking facility here. And let me go back to the code. These kind of peachy-color buildings, if you would, are mixed-use buildings which would allow commercial on the first and second floor, residential second floor and above. The yellow are residential only, and the rust color, for want of a better word -- my colors may not be the same as anybody else's, but this building here is commercial only. The only exception to this is the -- is our rec building, which we have designated as a nonresidential use. That is strictly a recreational building for the residential -- residents in that -- in that area. That massing along U.S. 41 is what the overlay district called for. Give it an urban look, put your buildings up close to the street, Page 125 December 6, 2001 put your parking behind, as opposed to the suburban look where you -- when you drive up to a retail facility, you have you a big parking lot and then the building set behind. It's thought that encourages pedestrian activity. Actually makes it more like, if you would, the downtown area, if you would. I think from the -- also, looking at the two site plans, what we've tried to do is make -- is to externalize the project and make it more visually inviting. Before it was very internalized. You didn't have any real view corridors into the project. It was a -- it worked, it worked well, but it wasn't very inviting from the outside. Now with this feature in the comer, which is -- as Mr. Abemathy noted, the only traffic on that's going to be somebody turning around to go back out this way. There'll be a water feature, landscaping, and you'll have, actually, a view corridor through this pedestrian way right into the center of the project. We've tried to repeat that at our main commercial entrance where, when you look in, you're going to have a roundabout with a water feature, again, looking into the center of the town center, the project. I've got a couple of visualizations. If you'll just give me one second, I'm going to throw these up. CHAIRMAN RAUTIO: One second's up. MR. VARNADOE: Marjorie, why don't you hold these for me. We've got to make the attorney earn her keep here. This is a visualization. If you're sitting at the comer of U.S. 41 and Sandpiper looking down into that project, this is kind of a visual of what you're going to see. You're going to see that paver brick roundabout, the water feature or some sort of fountain, and you're looking right down into the middle of the project. And down the middle of the project, we're going to have some tower features here, and you can actually see part of that in the background. You're obviously looking at residential over here, some mixed-use buildings on the periphery. Page 126 December 6, 2001 Marjorie, one more time. Again, this is looking at the main commercial entrance on U.S. 41. Looking in you see the roundabout, and then, again, you see the -- you're looking in here, and you see the tower in the background with the -- the mixed-use buildings on either side. We really tried to make it more inviting from a streetscape hoping that we'll induce people to come in and make the project actually more part of our Naples area and what we like. The -- I don't want to spend too much time here. The town center, as I mentioned, is going to have a tower feature, roundabout. We repeat that commercial -- that entry feature both here and here. Obviously the Frederick Street comer has changed substantially in that we've gotten rid of the parking structure and gone with a commercial building. We have now sufficient parking on the ground to meet all our needs. We have reserved the right to put a parking structure under the building here if one is needed. That would only occur if-- if parking was inadequate as provided by the code, but all code parking is provided on the site. Just very quickly, as you can note -- and the brown areas are pedestrian ways. So we've got a pedestrian way completely around the project. These in here are not streets. Those -- that's a pedestrian way only. This is a pedestrian way only here. We have pedestrian ways completely around these roundabouts and pedestrian in here, and we're hopeful that this will be kind of a sitting area. Maybe that would work with an outdoor restaurant or something of that nature in this area here. Again, pedestrian ways, you know, throughout the project obviously trying -- one of the goals when you do these urban- look projects with streetscape is to make it very pedestrian-friendly, and that's what the overlay district encourages, what we're trying to accomplish here. The other change that I think is significant from a planning perspective is we used to have our residential recreational building Page 127 December 6, 2001 and pool and that kind of thing up here in the comer of U.S. 41. Obviously the U.S. 41/Sandpiper comer is very difficult to plan around. It doesn't work for residential. It's hard to get to for commercial unless you want to try to force a right in, right out, you know, somewhere in this location. And then Ms. Wolfe would be all over us, and rightly so. So what we've done is gone with a feature up there and then moved this facility down in the back, and we've taken our open space and massed it down here. We have residential behind the canal over here, so we're actually, I think, making the open space more usable. We're also making our project more compatible with our -- with our neighbors to the south, in my opinion. I mentioned the Frederick Street -- the project attempts to provide a mix of uses in a pedestrian-friendly, very integrated project. Where before we had a mixture of uses, they were mainly in -- in different buildings. We had all this residential, and then we had commercial and mixed use. Here you note we have more of the mixed use in here with a little of the residential around the outside. So we've tried to combine those, integrate those, which is what the overlay district requests. Kind of hard sometimes for me to visualize -- I mean to verbalize what we're looking at, but I think what we're really trying to do is continue what is occurring west of the bridge in this area, and we're only a quarter mile from the bridge. I think we're really trying to bring that urban scape to the area, and I think this project will really act as a catalyst for redevelopment in this area. And, of course, this is a redevelopment project. There's no two ways about it. I know that you've already gotten into the staff stipulations some, and I do need to address those. But before I do that, maybe we can segregate this and answer any questions you have on the plan or other than transportation questions. COMMISSIONER ABERNATHY: I had -- well, maybe this is Page 128 December 6, 2001 -- I have a transportation. You're going to get to that later? MR. VARNADOE: Yes, sir. COMMISSIONER ABERNATHY: On 41 those buildings, commercial -- mixed-use buildings appear to back on to 41 because you have the parking on the interior side. Didn't the county go through that with Foot -- Foot Locker or whatever, Foot Authority and Toys "R" Us. MR. VARNADOE: Toys "R" Us is the example you're thinking of. COMMISSIONER ABERNATHY: Sports Authority is the other building. MR. VARNADOE: Sports Authority has -- COMMISSIONER ABERNATHY: That's a big box. MR. VARNADOE: -- has its entrance -- that's a big box. No, sir. Here, these will actually face 41, but it's that -- it's that urban concept like you see along Fifth Avenue where although the buildings face 41, most of the parking, other than the street parking, is behind them, and that's what we're having here towards 41, and that's what people want to see. So you'll have entrances on both sides, which is a design criteria. COMMISSIONER ABERNATHY: Entrance on both sides? MR. VARNADOE: Yes, sir. And often you'll have a very minor entrance on 41. It will look like the front. If you're trying to attract people, you're not going to put a Starbuck's there and have the service entrance. You're going to have the sign, you know, the usual, but you'll also have, really, the pedestrian access entry on the other side. We may have some sketches of that that I could show you. COMMISSIONER ABERNATHY: That's it for me. MR. BELLOWS: For the record, Mr. -- Commissioner Abernathy, I'd just like to point out those two buildings resulted in the county adopting the architectural ordinance. Page 129 December 6, 2001 COMMISSIONER ABERNATHY: I know that. MR. BELLOWS: It wasn't really dealing with the location to the -- or relationship to the street frontage. It's the articulation of the building itself, windows and doors facing the roadway, which this -- these buildings would be subject to those architectural requirements. COMMISSIONER RICHARDSON: Mr. Varnadoe, I notice that on changing the entryways -- the entryways are the same, but you do have them dualized now on the new plan, at least on 41 and on Sandpiper. How about on Frederick Street? Are those -- are those two streets coming in there, or is that just -- MR. VARNADOE: No, sir. That's -- that's one. This is a parking area here. The access is right there. COMMISSIONER RICHARDSON: Is it your considered judgment that the traffic will be low enough there that that does not need to be dualized? MR. VARNADOE: Based on the traffic studies that we've done, sir, that's going to have a very low traffic use. And the reason we've done the -- COMMISSIONER ABERNATHY: I thought we weren't going to talk about traffic. MR. VARNADOE: You're right. I won't go any further with that. But I will -- COMMISSIONER RICHARDSON: It's part of the concept plan that he's got in front of him. MR. VARNADOE: What we've done is -- is even though it's just a one -- a two-lane road, we just provided a median in the middle just for aesthetic purposes. COMMISSIONER RICHARDSON: Well, it's more than aesthetics. It's very much for safety purposes. MR. VARNADOE: Well, it does work that way. And here we have the same thing a little different way up here. It's more elongated Page 130 December 6, 2001 up here. CHAIRMAN RAUTIO: Commissioner Strain. COMMISSIONER STRAIN: Guaranteed nontransportation. This time from staff I received a packet that had three copies of the PUD in it, and I figure you wanted me to read it three times. And the one I've made my notes on is the one with the largest print. COMMISSIONER ABERNATHY: Just the news, please. COMMISSIONER STRAIN: And I have, George, some specific, maybe, housekeeping items I want to understand clarification on in this document. The first would be on page 2-2, and it is on the one that carries your company's name on the front of it. MR. VARNADOE: They both better. COMMISSIONER STRAIN: Well, there is differences between the copies. That's another question I'm -- MR. VARNADOE: Go ahead. I'm sorry. COMMISSIONER STRAIN: -- going to have. On 2-2, Section 2.4, lake setback and excavation, you referred to that rule of fill from Sandpiper Village PUD shall be limited to an amount of up to 10 percent per lake, then paren, to a maximum of 20,000 cubic yards, end paren, of the total volume excavated. Are you intending the 20,000 cubic yards to be projectwide or per lake? MR. VARNADOE: I think that was taken directly out of the LDC. And-- and, frankly, Mr. Strain, we're not-- we are not proposing lakes as such on here. COMMISSIONER STRAIN: I know. That's why I was surprised it was in here. accurate is all. MR. VARNADOE: clarify that in the final document. it's a valid point. But if it was in here, I just wanted it to be Let me talk to the engineers, and we'll And I understand the question, and Page 131 December 6, 2001 COMMISSIONER STRAIN: On the next page, 2.6, model homes, sales centers. MR. VARNADOE: Right. COMMISSIONER STRAIN: You changed this to reference Division 2.6, Section 2.6.33.5. I can't find in my copy of the ULDC a .5..4 references-- MR. VARNADOE: Let me -- if I can respond to that, we've -- have received communications from the planning staff. There's -- what the intent here is -- because before you had provisions for temporary use sales facilities in commercial areas and temporary use facilities in residential areas. There really wasn't one that addressed where you had a mixed-use project where you were doing what we're doing here. We have worked with staff. We haven't finalized the language, but the intent is to come up with the ability to do a sales center as a stand-alone thing for a period not to exceed two years or not past some reasonable time to transfer those facilities into the first mixed-use building. That provision is going to be changed, and we'll make sure our references are correct. COMMISSIONER STRAIN: Okay. To the .5, then, you're going to change to -- MR. VARNADOE: Whatever it should be. COMMISSIONER STRAIN: Okay. MR. VARNADOE: I'm going to start getting you to read these before I submit them. That way I won't -- I'll get these things -- COMMISSIONER STRAIN: If I got them earlier, I would. It's just by the time I get done reading it, it's one o'clock in the morning. On page 3-3, Table I or Table 1, and staff provided us with a strikethrough section. And if you look at little asterisk three towards the bottom -- and, George, on yours you simply say in the last line of that asterisk, the 10 feet yard and maximum of 5 feet. On the staff's version that was sent and the one that's proposed in the amendment Page 132 December 6, 2001 language, I think, is after -- it says 10 feet yard and then you -- in this one it says and may attach to the adjoining dwelling provided an easement is granted from the adjoining dwelling unit owner. Which one is it you're going with? MR. VARNADOE: The one you just read was the original PUD. Staff asked us to revise that. And the first one you read is what we've agreed to with the -- we're going to encroach into that 10- yard setback a maximum of 5 feet. MR. BELLOWS: And if I may, just for another point of clarification, the strikethrough and underline copy was provided by the applicant. We require the PUD amendments to be strikethrough and underline so we can see the changes. However, we have taken over control of the PUD document. And whenever we have a proposed change, staff makes the change to our copy of the proposed document, and we give a copy of the changes to the applicant and say this is what we're going to request as a stipulation at the board -- or Planning Commission in this case. So that's why you have two PUD documents. I'm not sure why you got the third one. COMMISSIONER STRAIN: So you're going to go and -- on the staff's copy, the one you're using, you're going to make this correction I just asked about, the strikethrough? MR. BELLOWS: Yes. COMMISSIONER STRAIN: On page 4-1, Item 4.2, general description, in the middle of the paragraph, George, it says the approximate acreage of the MU district is indicated on the conceptual master plan. On the original PUD, the conceptual master plan contained that information. On the copy of the conceptual master plan I have with these three copies, there is no acreage calculations on the plan that was given to me with the packet. Has that been corrected, or is that going to get added? MR. BELLOWS: That will have to be added. Page 133 December 6, 2001 COMMISSIONER STRAIN: Then on page 4-5, Ray, Item L, it also says -- and I don't mean this to be a transportation issue -- the conventional standards for the roadways and parking spaces will also be on that conceptual master plan, so you may want to get those added. MR. VARNADOE: Absolutely. What we're doing there, Mr. Strain, is because they are urban streets, we're -- we're providing parking on both sides of the street. At one time we thought about making some of the streets, particularly in the residential areas, very narrow. Now with the change in the plan, that's not as necessary as it was. It was to try to -- it was a traffic calming provision. We will take care of that. COMMISSIONER STRAIN: I'm just -- I want to make sure when this gets through it's got all the -- MR. VARNADOE: I appreciate it. These are helpful, frankly. COMMISSIONER STRAIN: On page 5-3, the Item 5.6(b), it again references a conceptual master plan and information that I couldn't find on that plan. So, Ray, you may want to get that added. MR. BELLOWS: That's -- the last one was on page 5-3. COMMISSIONER STRAIN: 5.6, Item B. So it would be page 5.3. MR. BELLOWS: Okay. COMMISSIONER STRAIN: And then the last comment I have is on the new conceptual master plan -- it's not the nice colored version, but the black and white that we have -- there's an arrow that indicates the MU, mixed-use district, and there's also a solid, black dotted (sic) line that says land use boundary line defining where the residential is and where the mixed use is. The arrow extends across that line, and graphically we may want to correct that to keep it within the boundaries as the line indicates it should be. MR. BELLOWS: I'll look into that. The petitioner submitted Page 134 December 6, 2001 that. I don't know if that's for pedestrian access into the parking area there or not. CHAIRMAN RAUTIO: Commissioner Strain, would you just clarify for me, were you marking up the PUD documents that said at the bottom date approved by BCB 3/27/01, Ordinance No. 2001-15, or were you looking at the one that says -- yeah, fooled you, because this one here was revised by Collier County on 11/14/01, and then this bottom document was the one that was -- is the final one we're looking at-- COMMISSIONER STRAIN: Right. CHAIRMAN RAUTIO: -- which I think is where we really need to make the changes, and I think you hit most everything. COMMISSIONER STRAIN: Yeah. I did compare the final document to this one, and the final document has the same concerns in it. So I just ended up writing on this one because the print was larger. MR. VARNADOE: I think the point, Ms. Rautio, here is our mixed-use district, we've got it going across the -- COMMISSIONER STRAIN: That's correct. MR. VARNADOE: -- line into the residential district, which obviously needs to be corrected. CHAIRMAN RAUTIO: And that is definitely on the one that says it was approved, the very bottom PUD document that we waded through. So that's a good point to fix. MR. VARNADOE: That's excellent. CHAIRMAN RAUTIO: And I think on yours we were talking about the model homes on 2.6. I think they reference Section .4 rather than -- COMMISSIONER STRAIN: reference 2.4. CHAIRMAN RAUTIO: Yeah. It references -- it should Yeah. And it does on the second one. Page 135 December 6, 2001 That's why I was confused when you first started. But that was an excellent editing job. You get the editing award for the week. COMMISSIONER STRAIN: Well, they gave me too many copies to read. CHAIRMAN RAUTIO: And you might want to send the bill to Mr. Vamadoe. COMMISSIONER STRAIN: He couldn't afford it. MR. VARNADOE: That's for sure. COMMISSIONER ABERNATHY: When are we going to talk about transportation? CHAIRMAN RAUTIO: Now we get to talk about transportation. MR. VARNADOE: If we don't have any other questions on that, let me talk about some of the transportation stipulations. The -- first, let me make one comment with regard to Ms. Young's comment about reducing the level of service. Our study shows that -- as you indicated, that U.S. 41, under the way we measure it today, is currently operating at Level of Service C. This project will not have an impact on that. It will operate at Level of Service C after this project is built, given the traffic. But let's go to the transportation stips, and you got -- you probably got them after I did. I got them Tuesday. And I want to talk about the last two, E and F. We'll leave it to Marjorie to deal with whether 5.7C is legal as far as a rational portionality test is concerned. In this project it really doesn't make any difference because the only signal we may ever have is going to be on Sandpiper Drive, and that's within the city and not within the county anyway. Sidewalks and bike paths, and the suggestion from staff is whatever the LDC says, that's what you got to do. I believe that the provision on this site plan far exceeds the LDC requirements for Page 136 December 6, 2001 pedestrian ways and bike paths on the project. We've got -- we rim the entire perimeter of the project. We have access ways that go through this way, this way, this way -- I mean, all these uses. What I'm concerned with is there's no recognition or provision in the LDC that I can find -- and I'm not an expert on sidewalks -- that lets you do this as opposed to bringing that sidewalk around that side on that street back there. And obviously this is much more functional for someone who's parking here and wants to go to some use in here or here or down here than coming around this way and entering from this perspective. And that's -- and as far as providing access to all the facilities through sidewalks, that is certainly the intent. That's what we tried to reflect here. I think also that we have to understand that this is not a subdivision. This isn't a residential subdivision. It's not a straight commercial-type property. What this is is a mixed-use property under the guise of the Gateway Overlay District where they have some standards on urban look and being allowed to put sidewalks closer to the building. For example, in some of these areas, we're actually going to have the sidewalks -- and don't hold me to where I'm pointing because it may be over here -- actually have the sidewalks up against the building under the second floor, so you actually have a covered walkway that we've seen everywhere -- I can't think of an example right now -- that we've seen everywhere that you actually can be outside walking from shop to shop but be under cover. And I want to make sure that we're not precluded from doing those kind of activities because this is kind of a special project from the pedestrian access perspective. We obviously tried to integrate the -- the pedestrian access ways into the design, and I would appreciate some recognition of the special nature of this. I've discussed this with Mr. Bellows, and I think we're in general agreement on that Page 137 December 6, 2001 subject. Let's talk about -- CHAIRMAN RAUTIO: Before you leave that-- MR. VARNADOE: Yes, ma'am. CHAIRMAN RAUTIO: -- that was one concern I had also, that this PUD document was created with a variety of-- of, maybe, changes to our LDC code. So if we -- we're looking at the document that was approved in March and we change over here and insist that the current LDC requirements all be done specifically, then we've negated some of the impacts that were in the document originally, because you can, while you're doing the PUD, change some of these requirements. And in this case, obviously on the new master plan, they have to be different. MR. VARNADOE: They're different, but they're the same concept. Before we had -- we had a pedestrian way here that actually went through buildings and the arcade. We had the same kind of concepts, same idea, and that is to put some of the -- the sidewalks -- or if you would, pedestrian ways I want to call them because they're not all sidewalks -- under the buildings, if you would. So we -- the concepts are exactly the same. Obviously the location changes with the -- with the site plan. CHAIRMAN RAUTIO: Right. But my follow-up to that, then, is if you have to do it under the current LDC requirements, that's not going to allow you to, say, put them underneath the buildings and that type of thing, the way I understand it. MR. VARNADOE: That's the way I understand it also. CHAIRMAN RAUTIO: So that is somewhat of a major concern to me when you're trying to do something so creative and a little different. MR. VARNADOE: And the LDC -- and we've got to be kind of careful with our LDC, and I'm getting off the subject of this -- of this Page 138 December 6, 2001 petition. It's very easy to adopt rules that are cast in concrete. And what we do then, we get cookie-cutter projects so they all look alike, but we also discourage, you know, some innovative planning such as this which, you know, everybody that I've talked to just absolutely thinks it's going to be the greatest thing since sliced bread. We don't want to do that. So we've got to have some ways to adjust these kinds of-- address these issues and adjust these kinds of LDC provisions. CHAIRMAN RAUTIO: Right. So we're trying to balance the generic-type LDC requirements with something that's much more innovative and functional for the type of project you're designing, which is allowed in the PUD document. MS. WOLFE: Dawn Wolfe for the record. If we can switch to the visualizer, please, what I'd like to remind the board here is although the graphics being shown by Mr. Varnadoe are very detailed in nature, what you are approving in your document is very bubble in nature. It does not go into the specificity of the pathways, which he is indicating, of the pedestrian ways. It is not explicit in detail as what he is showing up on the board. That which you are seeing up there in their concept plan is not what would be approved under this document. If that was the degree to which you were approving it, there may be other recommendations that we would be making. But since that's not what you're approving on the board over there but what you see up on the visualizer, there's a big difference between the two. COMMISSIONER ABERNATHY: Dawn, wait a minute. Mr. Varnadoe was making a presentation, and he was through 5.7E. He hasn't even discussed F, and we have questions about transportation. It seems to me your turn comes after all of that has happened. MS. WOLFE: I apologize, sir, but I was trying to make a clarification in regards to the difference between what's being -- Page 139 December 6, 2001 COMMISSIONER ABERNATHY: Well, it sounded to me like -- more like a rebuttal. CHAIRMAN RAUTIO: Okay. I was trying to focus on sidewalks and-- and bike paths. The way it is in the current LDC is not going to be what's here on the document we're looking at, and it's not going to really fit to what you have over there. So you would have to change this piece of paper and give something more the next time you go through the Board of County Commissioners, and they can see all that. MR. VARNADOE: We can -- obviously what I don't want to get tied -- we can do that. What we don't want to do is say this building is going to be shaped like that as opposed to a rectangle. Who knows? But the concept as far as the layouts of the sidewalk paths, we can provide more detail on the PUD master plan. That's not a problem at all. CHAIRMAN RAUTIO: So your recommendation for E would be how to reword that? MR. VARNADOE: I wouldn't reword it. I would just say that we need to show -- I would have you direct us and staff to show the type of pedestrian ways that we have reflected on the conceptual site plan on the PUD master plan. I think the wording, as it exists in the PUD document, is still sufficient. CHAIRMAN RAUTIO: Okay. So you don't want the new wording. MR. VARNADOE: No. CHAIRMAN RAUTIO: You want the old wording. MR. VARNADOE: Yeah. CHAIRMAN RAUTIO: Thank you. MR. VARNADOE: Let me talk about the -- I guess the -- the issue that is very vexum -- vexious (sic) to the owner and to me, having done this here longer than I care to admit. I'll have been Page 140 December 6, 2001 practicing 30 years come February of next year, 25 of that in Collier County. What we had done in the PUD, as Ms. Rautio had pointed out, was say here are three access points. Here's how we think they ought to function: The access point on Sandpiper being a full access point for reasons I'll discuss with you, the access point on Frederick being a full access point, and obviously the access point on Tamiami Trail being right out, right out -- right in, right out only. What the staff is saying is no. If we approve this PUD and this master plan, you don't have any access points at all. When you get ready to come to the SDP, we'll address that at that point in time. Now, let me tell you that we have a really big problem with that, and let me try -- as Mrs. Wolf tried to put words in my mouth about what my problem was, I'll put words in her mouth. You get -- and I've been here long enough to see this. You get older PUDs that were approved X years ago, and they were approved with access points that were reviewed by staff at that time, and they may have made sense at that time. Times change. Our traffic transportation network changes. Our problems with our transportation network really change. And some of the access points and curb cuts and particularly median cuts on these roads that may have made sense when the project was approved no longer make sense. And areas that are under development with transportation networks are where we don't have much of a transportation network now. I understand exactly her point. Here we don't have that situation. Here we have U.S. 41. They've just finished six lanes. I mean, they finished the bridge when? Maybe the bridge is finished. I guess the bridge is finished now. It's just been finished. We've got Sandpiper Drive. That's a state road. And when they-- when they did U.S. 41 FDOT very nicely built us two curb cuts on our over a thousand feet of frontage on U.S. 41. We're saying we're going to reduce that to one. We're Page 141 December 6, 2001 putting that approximately halfway between the two. It's actually a little closer to Frederick Street and a little further away from the Sandpiper intersection, which is where it should be. That's going to be right in, right out only. The details of that -- of that need to be left to SDP. She's absolutely right. Decel lanes, you know, acceleration lanes, how long they need to be, I would never try to put that in a PUD. That's for the experts to decide at the time we go to SDP. Whether that first roundabout on that intersection is too close to the road, we don't think it is, but certainly -- that's not an external access point. That's something that it is subject to SDP. Sandpiper Drive, it's a county -- it's a city street. We don't see it on here, but we actually line up with Osprey Drive across the road. Did that deliberately. Obviously you don't want, you know, Osprey Drive here and us up here. We -- we aligned our access so we would line up with them. If that ever needs signalization in the future, that's the logical place to put it. It's, I think, over 600 feet from U.S. 41, so it's not going to interfere with the intersection. Frederick, we have an intersection with Frederick Street. Frederick Street allows right turn in, right turn out. And if you're coming northwest on U.S. 41, you're allowed to turn left coming in, but you can't turn left going out. That's not something we're -- that's nothing we have anything to do with. That's the way it exists today. So what we've done here, though -- let's understand this. What we've done is we've provided the interconnectivity that I keep hearing and reading about and you guys are encouraging, and I think county staff is encouraging. We have taken what we think and made a residential entry for our residential here. We've used this as our primary commercial access. That tries to keep commercial traffic out of this residential neighborhood as a whole down here. We've met with our neighbors on this. They are -- they understand. They accept Page 142 December 6, 2001 this plan. I can tell you right now, we come back to them and say we're not going to have any access point on U.S. 41 so we have more traffic on Sandpiper, you aren't going to be the only people that are going to be hearing about that. But let me go back. First, as you can tell from this site plan, this project is designed around the access points. If we don't have these access points, we don't have a project. You delete that access point or this access point, we've got to start over again. I mean, we just -- you know, because it's designed for this -- the commercial faces 41. And you come in and you go over here to park or over here to park and access that. You come in here to go to the residential. You have a way to get through the project. It's just not going to work without these access points. Second, this project went through county review earlier this year. This is a rendition of the approved PUD plan. Those points have not moved, and we don't ask for them to move. The fourth -- and I've kind of got them out of order, but I think I'm hitting the points I want to hit -- we designed these access points to respond to the Gateway Overlay District which states that the mixed-use projects and commercial projects are to provide access from the surrounding residential projects without those projects having to go out onto major roadways. It doesn't say arterials, major roadways. Here we've done that. Royal Harbor, Oyster Bay can come in here, go in here -- excuse me. New plan, same thing. Go in here, visit the retail or office component, come back out, and go back down. Those who live off Frederick and next to Palm and go down that area, can come into this part of the project, get their loaf of bread or whatever they want, and go back out and go home without ever getting out on U.S. 41. If my recollection is right and you live in Royal Harbor and you want a loaf of bread, you're out on U.S. 41. I Page 143 December 6, 2001 don't think we want to do that. Also, by providing the three access points, obviously we separate the traffic and reduce the amount of traffic at each location. The -- we meet the requirements of separation for the curb cut on U.S. 41 between the intersections. Obviously, if we hadn't, FDOT wouldn't have built the curb cut there. I know that I was not present at the Planning Commission consideration of the LDC amendments on this subject, for which I've been duly chastised by Ms. Rautio when I called to ask about that. But my understanding is that you weren't going to apply those retroactively. Now, I'm sure that, you know, they're saying we're opening the PUD up, so anything's fair game, yada, yada. But from a practical point of view, you know, we are not moving those access points. We're relying on what was approved before for our access in the redesign. Didn't attempt to move those. Didn't attempt to add new access points. It merely used those same ones. We really need to fix the -- the location in a general manner, as the PUD seems the best to do, those access points. But it provides, and Ms. Rautio said, they can be moved. I mean, not eliminated and not deleted, but moved to accommodate design features. I don't know why you'd want to move, you know, this one or this one. This one may shift, you know, 15, 20, 50 feet to -- to meet design criteria. We can accommodate that during the SDP process. But having to -- having understand -- understood what Mrs. Wolf said and what the -- what the backup she gave you when you were looking through the LDC provisions, it looks like to me what we're looking at is -- is where we have changed conditions, which we don't have here. And what I would offer as kind of a compromise on this project and this project alone, is that -- first, understanding that it's not going to -- the road network in this area is just not going to change in the near future -- give us a period of time within which to get our Page 144 December 6, 2001 preliminary SDP. If we don't get it within that period of time, then the access points are fair game. But until that time, let's at least have an understanding that these are going to be the access points for the project as long as there aren't public health, safety, welfare considerations, because the county always has the right to change them if we have do have those kind of issues. And I'd like the chance to rebut if there's any further comments on that issue, but that would be my suggestion. My suggestion is because of the economy, we'd like to have three years, but we could live with a shorter time period than that. CHAIRMAN RAUTIO: While you're still standing up here, in the interest of time, when we're looking at the information that was passed out for 5.7, transportation, were there any changes you're suggesting in C? MR. VARNADOE: I'm going to leave that completely up to Marjorie, because anything we have in that is not in the county, but I would suggest to you that -- that state and federal law requires there be some rational nexus between the impacts of the project and the mitigation for that project. And usually when you have a signal required, it's serving more than one -- one project. But in this case Marjorie's satisfied it passes legal review. We don't care because the only way that's going to affect us is in the city, which the county has no control anyway. MS. STUDENT: And I think that in those regards we need to hear -- and I believe Ms. Wolfe is going to come up, but we need to hear from her. It's not necessarily, you know, a conclusion that I make, but it's one that you make in passing on this and listening to the testimony by staff as well as what the applicant has to say. And then if things are going far afield, you know, I can advise you. CHAIRMAN RAUTIO: And just to finish up, then, on D there's no changes, but on E -- Page 145 December 6, 2001 MR. VARNADOE: D, I'd want to delete what the proposed change is -- E, I'm sorry. CHAIRMAN RAUTIO: E, as in elephant. Right. You want to delete that whole change. MR. VARNADOE: I can't read without (sic) these glasses, and I can't see without them. CHAIRMAN RAUTIO: Okay. And then what is -- I think I understand what you're saying about F, but I just want to make sure. When we get to the motion, if we're going to argue through these, we want to know what your position is. And then obviously we know what Dawn's is, but she might change a little when we talk to her because this is policy. So F is keep the language the way we've looked at it in the old PUD? MR. VARNADOE: Both PUDs have exactly the same language as they're -- as you got them. And what I would suggest as a compromise to address the concerns, I think, that the county has, that there be some period of time for us to pull the SDP. If not, that -- then Item F would disappear or be of no effect, however you want to say that. CHAIRMAN RAUTIO: Okay. Do you think one year, two years? MR. VARNADOE: If the economy was great, I'd say one year, but I'd appreciate two. CHAIRMAN RAUTIO: Two? Okay. We'll-- MR. VARNADOE: We're putting a sales center out there in January, so we're -- we're going forward. We're very confident. But I -- I don't know and I don't think any of us knows what's going to happen here in the next year. CHAIRMAN RAUTIO: Okay. Any questions? COMMISSIONER STRAIN: I've got a couple. George, in the first PUD there was this large, gray building or spot on the right side. Page 146 December 6, 2001 Is that a building or just open parking? MR. VARNADOE: That was a parking structure. COMMISSIONER STRAIN: How did that get -- how did that parking get absorbed into the new plan? I can't tell from here. Is there another parking structure proposed or-- MR. VARNADOE: No, sir. It's the same thing we have now. We still have retained the right -- I've lost my marker-- to put parking -- you see that X there? COMMISSIONER STRAIN: Yes. MR. VARNADOE: If we needed additional parking, that would -- there would be a parking structure there under the building. In both instances we could meet the parking requirements of the code at grade. Both instances we want it -- we have great hopes that this is going to be a very successful project and think we may need additional parking and just to kind of retain that right so we could accommodate -- if we are successful, Fifth Avenue being a great example. COMMISSIONER STRAIN: I have two more questions. CHAIRMAN RAUTIO: Go ahead. COMMISSIONER STRAIN: You moved the recreation area from the one comer down to the south, and I know that's closer to the residential areas to the south of that. That recreational area, is it kind of like a gym or something like that, or is it noisy recreation like a amphitheater? MR. VARNADOE: No. It's typical of what you'd find with condominium projects, Mr. Strain. It's going to be an area with some meeting rooms inside, card rooms, rec rooms, and then the outside pool area, but it's not -- COMMISSIONER STRAIN: It's quiet. MR. VARNADOE: It's not to be -- we're not going to have football fields and tennis courts and things of that nature. Page 147 December 6, 2001 COMMISSIONER STRAIN: Okay. My last question is -- and it kind of revolves around Dawn's comment. The runabout in the original plan did have more stacking room from U.S. 41, and the one in the new plan is shorter. And I know Mark Gillis is here from Plummer & Associates, and maybe he's addressed it. Has anybody looked to see if there's enough stacking with the runabout that close to 417 MR. VARNADOE: We have looked at that. But, again, I agree with Mrs. Wolf. That is -- that is something that needs to be addressed at SDP where staff can look at it, and we can -- we can try to justify it. And if it needs to be pulled back, then it can be pulled back. And I'm not -- as I said, I'm not trying to dictate the final issue on any of these access points. All I'm trying to do is make sure that we've got them. COMMISSIONER ABERNATHY: George, people coming there from the east need to make a left turn into Frederick? Is that their preferred way of getting there? MR. VARNADOE: Mr. Abernathy, that's a subject of which we have no control. Right now coming from the east to get into this project, you either make a left turn on Frederick, or you go to the Sandpiper Street light and make a left and then come in off of Sandpiper. COMMISSIONER ABERNATHY: I don't think you can make a left at Sandpiper off-- MR. VARNADOE: You can off of 41. You cannot off of Davis. COMMISSIONER ABERNATHY: Okay. MR. VARNADOE: And that's something that our neighbors are actively working on. COMMISSIONER ABERNATHY: And Frederick is not signalized but Palm is? Page 148 December 6, 2001 MR. VARNADOE: Yes, sir. That's my understanding. CHAIRMAN RAUTIO: Okay. Any other questions down here? Do we have registered public speakers? MR. BELLOWS: Yes, we have two registered speakers, Barbara Moscardelli and William Hammermond -- Hammond. Excuse me. CHAIRMAN RAUTIO: Please come -- you were the first name. Please come identify yourself, spell your name if it's not obvious, and say where you live. MS. MOSCARDELLI: Yes. My name is Barbara Moscardelli. I've lived in Royal Harbor for 11 years. I own eight units in Oyster Bay, and I own 12 units in Noma (phonetic). And Noma actually -- if you go down Frederick, it flows right into Monroe Avenue. And through the years we have spent a lot of money improving both pieces of property, and I'm very, very well-versed with the whole area. And I also could not be more pleased that this developer bought this property, because I don't think there's a better developer in Collier County. My concern is where my property is on Monroe, with the access coming out from Frederick, I don't really know about the increased traffic. And Monroe and Frederick are really a very quiet little quaint area, and I'm concerned if there's going to be a lot of traffic flow. I have 12 people that pay rent, that pay taxes, that live in Collier County on one side, and there are several neighbors that live on Frederick Street, and I have been told that I could mention that six of them were very much in favor of this project. I'm sure that everyone around there would be in favor of it. My concernment is the traffic coming from either-- from Palm -- we have 300 feet -- almost the entire street of Monroe is our building, and then you turn to go down Frederick. And they have Page 149 December 6, 2001 made Frederick onto 41 only one way, and when people come out of this project, I'm just wondering how many people are going to come back down Frederick and then turn to Monroe to go to Palm. I'm also concerned with the amount of trash and things that get thrown out along the front of the building, because for years we had Checkers, and we had all of their trash. And we try to keep our apartments very nice. And so my concernment is the traffic flow, and I know we've heard it mentioned here that it seems to be at a minimal (sic). That is why I'm here. I am in favor of the project, and I'm sure that everybody in my whole area is in favor of this. That -- that parcel has been nothing but a blight in this area. I bought in '87. There was an old gas station there. That got ripped down. I mean, it's been nothing but trash. And now we're going to have an absolutely magnificent development there, but there's people. There's three accesses. And how much of it is going to come out and which way it's going to go is my concernment, and I'd like to have that addressed. And I'd like it if there was some way that either it came out and it had to head out to 41 or it had to come out and take an immediate right. There's two little streets in there, Carlton and Curtis. I just don't want to see a whole lot of traffic going in front of my building. Thank you. CHAIRMAN RAUTIO: And I just wanted to ask one question. You were thinking that they might be coming down Palm -- off of 41, down Palm, and then cut over? MS. MOSCARDELLI: No. If you came from-- if you came from the back of Royal Harbor, for instance, or there are streets all in through there. Cut -- Monroe has been traditionally -- the first time I ever saw it, I used it as a cutthrough when I was going to Royal Harbor. And they came down -- you came down Monroe, and you can go down Frederick, and you can weave in and around over to Page 150 December 6, 2001 Sandpiper. Now, from this project you could come out to Frederick Street, from that project onto Frederick. Now, if you take a right, you're going to either have to take an immediate right, or you're going to drive back down in front of my 12-unit building, and I am concerned, because you could sit there in the evening, and it is as quiet as can be. Now we're putting a project there with 170 living units and all those stores. Okay. So it would stand to reason that somebody is going to be driving down past there. And I'm just concerned about this because it's been a very quiet area. All those stilt homes that are on Frederick, I've heard it said that it's sort of almost like an -- like Old Naples was years and years ago. They have a lot of trees in there. You don't see it. People don't even know that we're there. Quite frankly, I've always liked that, and I'd sort of like to keep it that way, and that is my concernment. I am in favor of this project. I don't know one person that is not in favor of it. I just am concerned about the extra traffic flow and the debris that people will come through and throw out the windows. And I have nice tenants there. I have nice neighbors all around me. And when I first bought that 12-unit building, it looked like -- well, it wasn't something that one would really actually want to say they owned. And we did a lot of work, and we had a lot of neighbors come to us and thank us for investing in it and improving it, and we have tried to maintain that. And now we're looking for the same type of respect too. We know this is a wonderful project. We just are concerned about the traffic flow. That's my concern. Thank you. CHAIRMAN RAUTIO: Thank you. Next registered speaker. MR. BELLOWS: William Hammond. MR. HAMMOND: Yes. My name is Bill Hammond. I live at 1549 Sandpiper, Unit 43. And I'm elated to see this project, I hope, approved by the commission. And I thought it was great when they Page 151 December 6, 2001 presented this, but I'm just elated to see the improvement that is presented before you. I also -- I've lived in my unit for 11 years. I'm not speaking on behalf of any association other than myself, but I do think it's a great project. It's going to be wonderful for Royal Bay Harbor, but even more so for the community as a whole. It's just going to be great, and I hope you give it your positive approval. Thank you very much. CHAIRMAN RAUTIO: Thank you. Any other speakers registered? MR. BELLOWS: That's the end of the public speakers. CHAIRMAN RAUTIO: Mr. Varnadoe, do you have any comments? Okay. I believe, Dawn Wolfe, you may have some observations. MS. WOLFE: To answer the first question in regards to the modification to 5.7C in regards to the removal of the fair-share contribution, one of the issues that has been raised is -- the fact is that generally the signal is only required once the development comes on line; therefore, they're creating the need. If the development wasn't there, you wouldn't need the signal. Traffic signals take away from roadway capacity. They do not add to it. That's part of the reason -- they are -- he is correct. I think their anticipation of any signals will probably lie within the city limits; however, this is a coverage for anything that could occur within the county that may be a direct cause of this development, should it become warranted. Such as on Frederick Street, if there should ever be a cause for it, like I said, it's to cover us in any future need. Otherwise, the fact is that that condition was in there to begin with, and if the only anticipated signal was within the city anyways, we're just clarifying who and what would need to be paying for that traffic signal. Page 152 December 6, 2001 The sidewalks and bike paths, if we were looking at the same concept plan, which is over on the board over there, which is very detailed in nature as to its connectivity and everything, that would be fantastic. We would love to work off of something of that level of detail; however, we're working off of the -- more of the bubble diagram, which just shows sidewalks on both sides of what are the streets, which is the minimum requirements under the Land Development Code. There would be other requirements within the individual parcel areas in regards to pedestrian connections and the like, which are not explicit. And, therefore, that was the suggest -- why -- the reason for the change on that was to ensure that within those residential components, that we -- because it's not shown on the bubble diagram which is contained in the PUD document -- there has been past developments where because it's not shown on the PUD master plan but there is a reference that says that the sidewalks and pathways shall be exactly as they are on the master plan -- if they're not shown then the response is, well, I don't have to put them in at all. This is a coverage that they'll be consistent with the requirements for pedestrian connectivity overall, not just as explicitly shown on those -- that concept plan, which is not to the level of detail which was been displayed on the boards over there. This is a -- this is really a special case. We're trying to include consistent language. The likelihood is that there will be the maximum of the three access points as they have shown. The specific locations exactly will be determined at SDP stage. The type of improvements that are associated with them will be determined -- when we know exactly how much is coming out, anticipated, how many turn -- how long a turn lane needs to be, the deceleration lanes and the like will be determined at that point in time. Yes, this is a -- this is different than a lot of the ones we see. Quite frankly, as -- as a Page 153 December 6, 2001 staff representative, I think it's great to see redevelopment on projects. Rather than sprawl out, we'd like to -- and we recommend that and encourage that. But, like I said, that's -- our basis is not to infer that these access points would not be permitted. We just want to be consistent. And the number is consistent with the access policy guidelines. It's consistent with the Land Development Code. We just want to have consistent language. And, as was indicated, the PUD does open up certain things, and we just wanted this type of language in in regards to the other. But it is at your recommendation to the Board of County Commissioners and their ultimate decision on that. CHAIRMAN RAUTIO: So you are recognizing the value of the infill and that this is a separate project, so perhaps we could consider going back to the previous language which will still allow you to change what you need to change and finalize it all at permitting. MS. WOLFE: Yes. CHAIRMAN RAUTIO: But your policy -- this is the new policy. I just wanted to make sure we're on the same wavelength. And the other-- the question I had then, too, was since the LDC requirements are somewhat generic and they don't, the way I understand it, apply to here, do you have a suggestion of how -- your concern of the very blank piece of paper that we're looking at for the map, how do we take that to that? What do you suggest we do to -- MR. VARNADOE: Ms. Wolfe-- CHAIRMAN RAUTIO: -- assure what you want? MR. VARNADOE: If you wouldn't mind -- MS. WOLFE: I'll let Mr. Varnadoe give a suggestion on that. MR. VARNADOE: Let me -- I'll make a suggestion and see if -- what I was -- we are so close in this plan. I don't have any problem with taking the pedestrian access ways as shown on the concept plan and putting them on the PUD master plan. Page 154 December 6, 2001 CHAIRMAN RAUTIO: And so -- MR. VARNADOE: And then we'll coordinate with staff. If there's some reason that doesn't meet some requirement, we'll work on that between now and the board. All I want to do is make sure we don't get caught up on some LDC requirement where I can't do it the way I want to do it. It's not the amount of sidewalks; it's just how we want to accomplish it. CHAIRMAN RAUTIO: Would that make you feel more comfortable? MS. WOLFE: Yes, ma'am. CHAIRMAN RAUTIO: Good. See, we can work these things out on an individual basis. Okay. Somebody remember we want to say that about the sidewalks and bike paths, that it will be -- the conceptual plan will be placed on to the -- MR. VARNADOE: PUD master plan. CHAIRMAN RAUTIO: -- PUD master plan. Thank you. And we have some other questions, Mr. Richardson. COMMISSIONER RICHARDSON: I just want to make sure, Dawn. You've got a policy, but you are agreeing that in this specific case, that you'll accept the compromise that's been offered because of all the good reasons that have been stated. MS. WOLFE: Yes. And that there's still enough conceptual wiggle room in the language to allow us to work within what would be the real requirements under a specific condition. COMMISSIONER RICHARDSON: I'll take that as a yes. MS. WOLFE: Conditional yes. COMMISSIONER RICHARDSON: Close the public hearing? CHAIRMAN RAUTIO: We have -- MR. BELLOWS: a resolution on F too? I'll take that as a yes. Excuse me, Madam Chairman. Did we make Page 155 December 6, 2001 CHAIRMAN RAUTIO: No, we have not. Mr. Abemathy just pointed that out also. So you can lead the questioning on -- what do you want to do about that? COMMISSIONER ABERNATHY: I'm brain-dead at this point. Some people might have said that was the way I got here this morning but ... CHAIRMAN RAUTIO: I don't think so. COMMISSIONER ABERNATHY: I think we're hung up on when retroactivity sets in or if this thing should -- should be included at all. If the retroactivity clause that was inserted is applicable to this, then we have no -- no problem. It doesn't apply. If it's said to apply, then I would delete it-- MS. STUDENT: I just want to point out -- COMMISSIONER ABERNATHY: -- because LDC would take care of it anyway. MS. STUDENT: -- that this is a PUD amendment. So it's not -- you're talking about opening up a PUD just to do this. This is an amendment to a PUD. And it's always been the county's position that when you amend the PUD, the whole thing's fair game. And I don't know if that helps you, but I just wanted to -- MR. VARNADOE: Mr. Abernathy, let me -- let me respond to that. You have an L -- a proposed LDC amendment which has not been adopted at this point in time. COMMISSIONER ABERNATHY: I don't know whether it has or not. MR. VARNADOE: It has not. It goes to the board for a workshop on the 19th, I believe, the night of the 19th, and then again -- not a workshop, but the first hearing and then again in January. As Marjorie told you, this is a policy decision you can certainly make in this instance. And I think Mrs. Wolf is -- would rather be consistent, but she's not going to fuss about us saying you can have these access Page 156 December 6, 2001 points with the understanding that we're going to have to deal with the design of them and the exact location during the SDP process. And I was willing to say, you give us two years. If we don't get it done within that time frame, then -- then F as it exists in the PUD would disappear. COMMISSIONER ABERNATHY: Well, if it hasn't been adopted, then it's not operative. MR. VARNADOE: I'm sorry if I didn't point that out going through the first time. I should have. CHAIRMAN RAUTIO: Okay. So our choice here is to leave Item F in the PUD document the way it was approved in March or accept the new one that's been given to us today or add if you don't -- well, we would put a time limit on the getting the SDP as to two years, and then it reverts back to what? MR. VARNADOE: Well, then my suggestion would be that F would be null and void, and then whatever's in the LDC, we would live with. CHAIRMAN RAUTIO: The new-- MR. VARNADOE: Whatever would be in the LDC at that -- CHAIRMAN RAUTIO: I'm trying to get to the point of which F are we going to accept here, and how are we going to -- MR. VARNADOE: Looking at the F and -- MS. WOLFE: Can I make a suggestion? MR. VARNADOE: Excuse me. Go ahead, Ms. Wolfe. CHAIRMAN RAUTIO: Ms. Wolfe. MS. WOLFE: My unclear answer was F can remain as it currently stands in the existing PUD based on the fact of where we are at, where -- the number of locations and that there is sufficient language to allow us the modifications without having to come back to the board. COMMISSIONER ABERNATHY: Well, that solves that then. Page 157 December 6, 2001 CHAIRMAN RAUTIO: Thank you. resolution. COMMISSIONER ABERNATHY: good. That-- that was another Better to be lucky than CHAIRMAN RAUTIO: I'd like to close the public hearing. What's the pleasure of the board? And you're going to have to craft a good memo here -- excuse me -- motion. COMMISSIONER STRAIN: Aren't we down to just -- we've resolved most of the issues. I mean, I think I can do that, make a motion that we recommend approval for Petition PUDA-01-AR-1573 subject to the following conditions: 5.7 transportation, we accept the recommendations from staff of A, B, C, and D, but we leave the language in the PUD for Items E and F. And as a caveat to that, I'd like to strongly make a point that the conceptual master plan that does get attached to this PUD provide the sufficient detail needed pursuant to all the references that that plan has within the context of the PUD. CHAIRMAN RAUTIO: Is that fair? COMMISSIONER WOLFLEY: I'll second that. COMMISSIONER ADELSTEIN: I'll second that motion. CHAIRMAN RAUTIO: Okay. We have a motion by Mr. Strain, a second by -- I think Mr. Richardson beat it in there -- oh, Mr. Wolfley, to approve this with these type of changes. Are we all clear on the motion? Do we have any discussion? All those in favor say Hearing no discussion, I call the question. aye. Those opposed, same sign. (Unanimous response.) CHAIRMAN RAUTIO: (No response.) CHAIRMAN RAUTIO: much. Unanimous approval. Thank you very It is now two o'clock, and we have one more item, which is Page 158 December 6, 2001 RZ-2001-AR-1165, a rezone from agriculture to RMF -- RSF-3. All those in -- excuse me. All those wishing to present testimony today, please stand, raise your right hand, and be sworn in by the court reporter. (The speakers were sworn.) MR. BELLOWS: For the record, Ray Bellows. I didn't know if you wanted to do disclosures or not. CHAIRMAN RAUTIO: Do we have any disclosures on this item? No disclosures? Thank you. MR. BELLOWS: Again, for the record, Ray Bellows. The petitioner is proposing to rezone the subject site from agriculture to RSF-3 to allow for basically splitting the lot to allow for two dwelling units. Under the current agricultural zoning district, the minimum lot size would preclude them from building a second lot (sic). And as you may recall, earlier this year there was a similar rezone petition from ag to RSF-3 in the area of Polly Avenue, in this general area. The reason staff is recommending RSF-3 is the base density in this area allows for a base density of four units per acre. The adjacent zoning to the south of this project is RSF-5. There's RSF-3 zoning to the east of this existing agricultural zoned area. The PUD to the west is at 3.3 units per acre, so we felt to -- for -- to prevent spot zoning to occur in the area, to keep all the new zoning in this area consistent at RSF-3. CHAIRMAN RAUTIO: Please take your conversation to the hall. You're interfering with the court reporter. Conversations out in the hall. Thank you. Okay. Go ahead, Mr. Bellows. MR. BELLOWS: Yeah. So if everything is-- further zoning that may take place in the future, to prevent the spot zoning, we'd recommend everything be RSF-3. Staff is recommending to limit the Page 159 December 6, 2001 density to 2.7 -- 2.27 units per acre, which basically allows for the lot split. This reflects the community's desire to keep it at only one or two lots. Also, as -- COMMISSIONER ABERNATHY: Ray, excuse me. You're repeating the same error that you made in your report. You're saying 2.27 units per acre. That means for each of the 4 1/2 acres, you get 2.27 units. MR. BELLOWS: That's correct. It's one -- COMMISSIONER ABERNATHY: And that's not what you're saying at all. MR. BELLOWS: Yeah. I apologize. Thank you. One unit per 2.27 acres. Thank you for pointing that out. CHAIRMAN RAUTIO: So actually that comes out to two units -- MR. BELLOWS: That's right. CHAIRMAN RAUTIO: -- maximum on this particular property. Any questions of Mr. Bellows? COMMISSIONER ABERNATHY: Yes. I was curious as to -- in the first place, I don't see anyplace in the petitioner's application where they say that two units is all they want. And that being so, why would you limit them to two? MR. BELLOWS: Well, the other additional information that should be pointed out is on the -- on the future land use map, the subject site is basically located slightly north of Rattlesnake Hammock Road, right about in this area. Rattlesnake Hammock Road is a traffic congestion zone on the future land use map. The traffic congestion zone in the Growth Management Plan requires that one dwelling unit per acre be subtracted from the base density in order to reduce traffic impacts. This project is not subject to that per se because it's not directly abutting Rattlesnake Hammock Road which serves as the boundary. Page 160 December 6, 2001 However, because of the tight, narrow streets in the area, the proximity to this traffic congestion zone, and the petitioner was willing to -- just for the two lot split. It seemed like a reasonable request to keep it at that. COMMISSIONER ABERNATHY: But if you reduce it by one, it would come down to two units per acre, which would be nine -- MR. BELLOWS: Well, it would be four. The base density is four. So subtract one, and it would be three is the -- COMMISSIONER ABERNATHY: I thought it was RSF-3. MR. BELLOWS: I'm talking about what the future land use -- COMMISSIONER ABERNATHY: Oh, the future land use. All right. MR. BELLOWS: The future land use allows for four units per acre. COMMISSIONER ABERNATHY: But you say it's not within that area. MR. BELLOWS: It's not within the traffic congestion zone, but it's so close that the impacts would hit it anyway. So technically they're not required to, but since they are agreeing to, keeping it to two lots. COMMISSIONER ABERNATHY: That sounds like being a little bit pregnant. You're either in the zone or you're not. I mean, if you start applying rules like that, there's no certainty on anybody's part. It seems to me if they're across the street from the zone, they ain't in it. MR. BELLOWS: I would agree if they were opposed to that condition, but since they are supportive of that ... CHAIRMAN RAUTIO: Any other questions? Can we hear from the petitioner? MS. McENDREE: Hi. My name is Tammy McEndree. My husband and I own the 4.55 acres that we're talking about. It's on the Page 161 December 6, 2001 comer of Polly and Everett. Our initial plan for this property was to keep the entire property, take a little bit off of it and develop a tree farm and a nursery type and then our residential home on the other end. When we got further into the plans and had our -- we've had our home plans built up already. In talking to the builder, we found out that we were unable to afford it this way. So that's when we decided that we would like to just split off part of the land, to sell that land, only so that we can build our residential home. We ditched the plan of developing the nursery or the little tree farm. So that's when I come to you as far as it's agricultural. We wanted to just split part of it off so that we can build a home on one side and then just another home on the other side. We -- our intention is only two residence. But also, when I got the final papers from Mr. Bellows, I really didn't clarify with Mr. Bellows. What we'd like to do, though, staying with conformity of the area, the lots besides us are all an acre and a quarter. Basically that's what we wanted to split off and sell and then keep the rest of it for ourselves, which would be about 3.3. And I apologize because I never really clarified that with Mr. Bellows before, and I didn't realize he was going for the 2.2 until we got the petition paper back. But we still want just the two residence. COMMISSIONER ABERNATHY: So you'd want a one and a quarter and then the balance? MS. McENDREE: Yes. To keep for ourselves. COMMISSIONER ABERNATHY: Does that make any difference, Ray? MR. BELLOWS: MS. McENDREE: You were wanting more than the two units? No. It'll only be two. We would keep the balance, the three, for ourselves. That's where -- and we would-- we had plans to build our home basically, you know, close to the middle or whatever, so it would never be able to be split later to be -- Page 162 December 6, 2001 MR. BELLOWS: I have no problem with that. COMMISSIONER ABERNATHY: That's okay? MR. BELLOWS: Yes. COMMISSIONER STRAIN: Marjorie, in Golden Gate Estates, which has a lot of these 5-acre tracts, prior to, I think it was, '74, the acre and a quarters were allowed to happen. After that they weren't. MS. STUDENT: Yeah, they were not. I wasn't here then. I was up north some place. But they were nonconforming lots of record made that way by a change. COMMISSIONER STRAIN: Right. Now, can we -- MS. STUDENT: This is -- as I understand it, this is zoned ag presently, so you don't have similar-- you know, a similar concern. It's not estates. COMMISSIONER STRAIN: Okay. That's what I was asking. The other question I would have is if-- if this is going to an acre and a quarter for a single home instead of two and a quarter like it's shown on Ray's discussion here, does that have to be readvertised? MS. STUDENT: How was -- how was the title advertised for this commission? The title for this commission is different than the title of the actual ordinance. COMMISSIONER ABERNATHY: It just says two residential lots. acre. COMMISSIONER STRAIN: Well, one unit per 2 1/4 quarter CHAIRMAN RAUTIO: But it doesn't say that -- COMMISSIONER ABERNATHY: It doesn't say that in the -- CHAIRMAN RAUTIO: -- in the advertising. COMMISSIONER STRAIN: Oh, I'm sorry. I'm looking at-- CHAIRMAN RAUTIO: You're looking at the executive summary, but on -- our agenda, which is what was advertised, I believe covers it. Is that correct, Marjorie? Page 163 December 6, 2001 MS. STUDENT: Well, Ray, the-- MR. BELLOWS: Yeah. I have a copy of the advertisement. MS. STUDENT: Is that the same? Because it differs for the board. The board has the title of the ordinance and -- MR. BELLOWS: The newspaper ad for this was to allow for two residential lots located on 6025 Everett Street. MS. STUDENT: MR. BELLOWS: MS. STUDENT: So would it-- It doesn't mention size of the lots. So it's going to -- the size is going to be different; right? There'll still be two residential lots, but one will be bigger than the other one? MR. BELLOWS: zoning. MS. STUDENT: no problem. And it still would conform to the RSF-3 Okay. Well, that -- it sounds as though there's COMMISSIONER STRAIN: Okay. Thank you. CHAIRMAN RAUTIO: Okay. That's been clarified. Do we have any other comments? Do we have any questions? MS. McENDREE: I just have one other issue that I also didn't realize was in until I got the final paper. In Ray's documentation they recommended access only off of Everett. We had plans to do an access off of Everett and one off of Polly, and we also have culvert permits to allow that, and we wanted to be -- are we able to still keep that where we can have an access on Everett and one access on Polly? COMMISSIONER STRAIN: On Polly, did you say? MS. McENDREE: Uh-huh. COMMISSIONER STRAIN: Our plan doesn't even have you contiguous to Polly, or is that just a second street alongside -- MS. McENDREE: Polly and Everett. We're on the comer of Polly and Everett. Page 164 December 6, 2001 COMMISSIONER STRAIN: Oh, okay. You're going to be right next to the extension of Santa Barbara too. They're side by side. CHAIRMAN RAUTIO: What does that -- MR. BELLOWS: The stipulations -- conditions of approval doesn't restrict them from having access onto Polly. It just says a reservation of additional 90 feet of right-of-way shall be provided along the property frontage of Polly Avenue. The property owner may dedicate or be required to dedicate, upon written notice from Collier County, with compensation, consistent with the provisions of the Collier County Land Development Code and Consolidated Impact Fee Ordinance as each may be amended. So we're not restricting -- COMMISSIONER ABERNATHY: Polly's going to be wrapped up in the future Santa Barbara? MR. BELLOWS: Yes. CHAIRMAN RAUTIO: So the answer is yes, they could have -- MR. BELLOWS: They could. There's no prohibition on that. CHAIRMAN RAUTIO: -- access off of Polly. Okay. All right. Any other questions that you might have? MS. McENDREE: No. That's all. CHAIRMAN RAUTIO: You're doing very well today, even if we are tired and hungry. No registered public speakers? MR. BELLOWS: We do have one registered speaker, Bill Goddard. CHAIRMAN RAUTIO: I wondered why we had two people left out here. MR. GODDARD: I've been here since 8:30 like you have, and I'm ready to get out of here. I'll be very brief. My name is Bill Goddard. I own 5 acres at 60 -- 6099 Everett Street. And my concern was previously there was a concern or in -- a program to Page 165 December 6, 2001 establish some large, high density housing in the vicinity of Polly and Everett, and I just wanted to be certain that the rezoning didn't encourage any higher density occupation of that area. I think Ms. McEndree has a good plan, and I would support the proposal. Thank you. CHAIRMAN RAUTIO: Thank you. And you can confirm that it is not a high density rezone. MR. BELLOWS: That's right. CHAIRMAN RAUTIO: Thank you. Okay. Having no further public speakers, I close the public hearing. What's the pleasure of the board? COMMISSIONER STRAIN: I make a motion we approve Petition No. RZ-2001-AR- 1165. COMMISSIONER WOLFLEY: Second. CHAIRMAN RAUTIO: We have a motion by Mr. Strain, a second by Mr. Wolfley to approve this petition. And I just want to clarify that the -- that we don't need it in the motion, but the executive summary will be changed to recommend the 1 1/2 acre and the balance. MR. BELLOWS: Yes. The resolution will be corrected -- or the ordinance. Excuse me. CHAIRMAN RAUTIO: Ordinance corrected. And the Polly Avenue access would be understood or in the ordinance? MR. BELLOWS: Yeah. We'll -- on the executive summary, we'll make it clear. CHAIRMAN RAUTIO: Executive summary. Okay. Any discussion? I call the question. All those in favor say aye. (Unanimous response.) CHAIRMAN RAUTIO: Those opposed, same sign. (No response.) Page 166 December 6, 2001 CHAIRMAN RAUTIO: Okay. We are now at 9, old business, but I think we need to talk about the old business of lunch. Do we want a half-hour lunch, or do we want -- COMMISSIONER YOUNG: I so move. CHAIRMAN RAUTIO: -- a 45-minute lunch? Do you want half-an-hour lunch or 45-minute lunch? COMMISSIONER YOUNG: Half an hour. CHAIRMAN RAUTIO: Okay. So we have to be back here by about quarter to three. Does that sound reasonable? Okay. We are in recess. (A lunch break was held from 2:12 p.m. To 2:45 p.m.) (The meeting reconvened with Commissioner Adelstein not present.) CHAIRMAN RAUTIO: Greetings, ladies and gentlemen. We are back in session. We are now on Item No. 9, old business. I don't believe we have any old business that anyone's going to bring up at the moment, at least they haven't advised me. Okay. Number 10, we have two items here, the county attorney workshop, and we had added a get-acquainted session, B. And what I think we'll do is postpone that part until next meeting, which would be the 20th of December, and then we'll take an opportunity to get acquainted with one another in front of the television cameras. MS. STUDENT: I think you may need a motion on that because I think you added it by motion. CHAIRMAN RAUTIO: Very good point. Do I have a motion to move the get-acquainted session to next time? COMMISSIONER YOUNG: I so move. COMMISSIONER RICHARDSON: Second. CHAIRMAN RAUTIO: We have a motion by Mrs. Young, a second by Mr. Richardson to remove our get-acquainted aspect from this particular new business to next agenda. Page 167 December 6, 2001 MS. STUDENT: Which is the 20th of December, I believe. CHAIRMAN RAUTIO: 20th of December. MS. STUDENT: Is that correct, Mr. Bellows? CHAIRMAN RAUTIO: And I think we might have Mr. Weigel, our county attorney, tell us that a portion of our -- this presentation might have to be scheduled again for the 20th also. Is that possible? MR. WEIGEL: That's certainly possible with us. Thank you. I'm David Weigel, county attorney. And to let you know that we were prepared today to provide a four-part workshop presentation to you, and Ramiro Manalich, the chief assistant of the county attorney office, is out of town today. So he will not be here to formally provide the ethics portion, although I can certainly answer questions and could provide as much as you would care to hear. But, as I mentioned to your chairman, his presentation is rather entertaining and mine is more prosaic, so you may want to wait for him for the detail. Additionally, Mike Pettit, another assistant county attorney in our office and chief litigator, is in court litigating right now. And so he's -- he and I are both sorry that he can't be here. He was going to talk about public records. He, too, has, I think, to some degree, a presentation unique to him, and I think it would be helpful if you could hear it at another time. At the same time, I'll make a few remarks on public records today and -- but today we'll talk about the Sunshine Law and the ex parte communications. If you believe you need to formally continue over this part of this agenda to -- the part that we don't provide today, we're happy to honor your request and look to whatever agenda date that you have. CHAIRMAN RAUTIO: Okay. I think we'll look for the 20th of December on the carryover, if that's humanly possible with your staff. Page 168 December 6, 2001 MR. WEIGEL: I think it is. I know Mr. Manalich is going to Wisconsin for Christmas. I don't know if he's out the 20th or not, but one way or the other, we'll have a scintillating presentation for you on the 20th, and not too long either. CHAIRMAN RAUTIO: A scintillating, short presentation. MR. WEIGEL: That's right. Thank you. With that I'll start, and Marjorie is going to join me to talk about the ex parte communications. And you talk about getting together to -- publicly here. I'm tending to think some of you are almost like family because I'm seeing you almost as much as my family in recent weeks. And I want to say that I'm impressed, not only when I listen to you up in my office, with your comportment here in the meeting room, but it's a pleasure to be before you today. And a few of you, as members of this committee, have participated long lo over the years with other committees and presently. And so I apologize to the extent that what I will tell you is repetitious. Hopefully there are a few changes today, in the positive sense, from what you may have heard even as recently as a week or ten days ago. But in regards to the Sunshine Law and Public Records Law and, in fact, all of the laws that apply to the Planning Commission here, I want to preface my remarks by the fact that this committee probably, one might say -- I'm sure an argument could be made by many -- is one of the most important committees working for the Board of County Commissioners. There are many important committees, but one cannot underscore the importance of this committee or the fact that it is statutorily based in regard to Collier County specifically. And so from that standpoint, your charge is a very important one, and the work that you do is obviously very important, and it facilitates you. It facilitates the county and the Board of County Commissioners that your work is entertained, is prosecuted, is Page 169 December 6, 2001 achieved as efficiently as possible. And part of the efficiencies in reaching your goals as a committee has to do with not falling prey to the foibles and the issues that the state laws impose upon local government. You all work very hard. You donate your time. This is a civic responsibility. And you're recognized only occasionally formally, but recognized nearly weekly in the sense that you're here performing the duty, often into the long hours of the night. The -- the fact is, is that the Sunshine Law and the Public Records Law and the Ex Parte Communications Law and the ethics laws, none of them were adopted by the state legislature to make your job here even easier-- any easier than it is, and it's not easy on the subject matter that you do. These laws were put in place, all of them, so that the public would have the ability to exercise their constitutional and statutory right to see the governmental decision- making process. And, as I state, yours is a very vital part of the process, which probably puts you under more scrutiny than some of the other committees. There are approximately 50 appointed by the Board of County Commissioners here in Collier County. You have probably more scrutiny than most. And from that standpoint you probably, by virtue of the subject matter and the scrutiny that you have, have the potential for more challenge or technical challenge to the work that you do. And so, again, from that standpoint, your adherence to the Sunshine Law and the Public Records Law and the ethics laws not only are very important for the achievement of the goal of the committee as a whole, but for the avoidance of problems and issues and personal liability that comes from-- from a violation or a perceived violation. So, again, in regard to these four disciplines that we'll be talking to you about today and on the 20th, we'll be talking about perception as well as actuality. Page 170 December 6, 2001 Now, let's get to the Sunshine Law specifically. The Sunshine Law is put in place -- it's Chapter 286 of the Florida Statutes. Specifically the statute is 286.011 -- put in place by the legislature to make sure that the public had the ability to see the decision-making process of the board of county commissioners, of city councils, and the advisory committees to those -- to both those local government bodies. You, in fact, as opposed to many advisory committees, are not merely recommendatory, but you have final decision-making capacity in -- in several areas. Again, that underscores the importance of what you do. But whether you had that or whether you didn't -- and if you want to characterize it, even the lowliest advisory committee, of which you are not, has to abide by these laws. Now, the Sunshine Law -- we're up on the screen, and you'll be able to follow in the books that we passed out previously and have more of for you today -- only has three requirements. It seems quite simple at first. There must be reasonable notice of the meeting to be held, the meeting must be held in an adequate public facility that facilitates the public to observe the actions of the committee, and thirdly, that minutes must be taken. But we, as a county, go a little -- a little bit beyond the mere formalities, the bare bones of the statutory requests. You have a court reporter transcribing verbatim the formal meeting that you have here. The notice of the meeting is taken care of through the staff both with Ray and the development services support staff, but also the public information office of the county manager. You, as individuals, should have no obligations personally or even almost collectively in regard to getting out that notice. And yet the failure to achieve any of those legs of the three-legged stool equally could present a problem in regard to compliance with the Sunshine Law. Where do committees normally fall into more problem than not? It's usually not at these formal meetings where they've been properly Page 171 December 6, 2001 noticed and they're held in a fairly large facility, and it's not a question of minutes being taken or a verbatim transcript. The state has also indicated -- and if you'll go to the next slide. The state has also indicated that a meeting is statutorily defined as any two or more of you coming together and talking about matters that come before your committee. So, you see, more often than not, it'll be when you're outside of the boardroom. Or it'll be when the microphones are turned off, and you're on a recess, and you may turn and talk to each other. Don't talk about matters that are before your committee. The idea is, is that everything should be available for the public to see. And it doesn't mean they get to speak at all opportunities, but it means they have to be able to observe the decision-making process. And the decision- making process, both the attorney general and the case laws has indicated, is when two persons or more of a committee talk about matters that come before the committee, even if it's not when the committee is meeting as a whole and you have a quorum and you can take formal action. We provided in those workbooks which we actually gave you quite some time ago -- and I think your membership may have changed a little bit since then, but you may recall these. In these workbooks are the basic materials that you can review, curl up with on a cold winter night. And you'll find that if you're not already sleepy, this may get you there. But behind Tab 1 is the Sunshine Law materials. And specifically there are not only these little slides that appear on your visualizers, but also with the captioned information, but also a synopsis of the Sunshine Law. I provided a 1995 memo that I wrote to all county committees at that time talking about the workaday problems that -- and issues that come to committees and boards about the Sunshine Law. And the third item behind Tab 1, Door No. 1, is a synopsis provided by the Page 172 December 6, 2001 Department of State on both Sunshine Law and Public Records Law. It was printed in 1993, but it's still valid. The substantive law hasn't changed. There are only more examples of case law to illustrate the points there. And I think that you'll find that if you have a question in regard to Sunshine Law and you turn to Tab 1 and ripple through there, that most of your questions, if you haven't asked them today, will be answered. And if they're not answered, as with any of these discussions we're having today on these laws, the county attorney office is just a phone call away to answer your question. Now, back to the Sunshine Law, and bear with me. I'll put on my glasses too. What about advisory -- the general law. What about advisory boards that merely make recommendations to -- or a fact finding.9 Well, there's a distinction there. You are recommendatory. You still have the obligation as a full committee to meet the Sunshine Law, and that is meet those three basic requirements: Notice, adequate public facility, and minutes. If you break into a subgroup here or a subcommittee for fact finding and send two or three persons out to come back with information, like a site visit, you can do that. It may not be always advisable, but you can do that, to send two or three members out together. But the important thing legally is that those members, when outside of the formal meeting place, cannot, should not talk to each other about the matters coming before the -- this committee later. But if you were making a site visit -- which may almost lend itself to an ex parte communication, which Marjorie will talk about. But if you were to do so, you can, in fact, individually ask questions of the guide or whoever's showing you around on the premises or a trip that you're taking. It just shouldn't be a subterfuge for communication between the commissioners. Now, we've had this with the Board of County Commissioners from time to time where they have taken a field trip to Immokalee to Page 173 December 6, 2001 look at the housing situation or gone to Glades County to talk about land fills and-- and solid waste matters. And the county attorney office is always on tenterhooks because we don't want there to be even a perception of potential for the commission, or in this case committee members, to be in a position where you have to defend an action that you've taken, particularly when someone doesn't know that you haven't discussed anything about the meeting. A couple examples: One question we had was two commissioners wanted to fly to Tallahassee in the county airplane, which is a four-seater, on official county business to meet with state representatives and legislators up -- up in Tallahassee. Although technically they could fly together if they flew quiet and didn't say anything to each other about the meetings, who's to know? And the perception was problematical. Well, it cost them an extra four or five hundred dollars -- the Tallahassee trips aren't cheap -- to have someone go separately. But they did so, and we didn't have the situation of the newspaper or anyone raising the question, the specter of, well, how could they not have talked? They were sitting side by side, things of that nature. And it's the same way if you travel or go to lunch or anything else. Although I passed out this one article which was a very nice one written about the county attorney office -- and we always hope for more, but this is the one we've got, and it's pretty good -- the fact is that there are a lot of other articles that I was passing out to the committees earlier on this year. And it had to do with either the school board or the fire departments or actions at The Conservancy with county commissioners where you get the specter of one commissioner's there and another commissioner's in the audience and asks a question of a commissioner. It can get pretty dicey. And although it doesn't always result in a charge or a formality that we have to respond to on behalf of the -- Page 174 December 6, 2001 on behalf of the client, in that case the commissioners, we'd rather not have to respond and win. We'd rather not have to respond at all. And it's the same thing for the individuals because that's where the perception of-- in trying to do your job in a rigorous, ethical manner, very, you know, single-minded manner, you can end up kind of losing a little bit of the baby with the bathwater. You don't want to besmirch yourselves on behalf of, gosh, a doggone project. It's still just a project, that type of thing. I haven't been following the slides very closely here, but in any event, some of the other things to keep in mind are communications between each other by telephone, e-mail, "hey, you" across the hallway, or anything like that. In my '95 memo, I mention and strongly suggest that you don't communicate to each other outside of these meetings. However, you will find yourselves from time to time at civic association meetings, perhaps a social engagement. It's Christmastime, and who knows, your paths may cross. Well, that doesn't mean you go like this and, you know, move out of the room. But if another member of the committee that you're a member of should perchance be involved in a conversation discussing matters that involve this committee and you happen to be there or walk into it or hear it, then you should absent yourself from that or remove yourself from a potential perception position that could be problematical. Never would we suggest that you, you know, informally meet in a restaurant or anything like that. The attorney general's office has opined that if you attempted a meeting in a place that's almost less than public, even though a restaurant is, quote, public, the fact is, is that those kind of circumstances don't allow the interested public to really attend unless they become a paying public of the restaurant or the business where you may find yourself. So you'll always want to -- if you don't locate in commission chambers here or commission Page 175 December 6, 2001 facilities like the elections room, you'll want to pick and choose very carefully. Another area that we've had question with and we talked with the attorney general's office about is when the Board of County Commissioners wants to do a joint meeting with Lee County, and they're meeting at a neutral place, you know, Checkpoint Charlie and that Checkpoint Charlie happens to be a subdivision clubhouse -- it's right on the Bonita line or something like that -- we break our backs to go out of the way to make sure that there's lots of notice, lots of arrows, that everyone knows that that gate at the subdivision is going to be up and not swinging and intimidating. And even then we receive cautionary remarks from the attorney general's Sunshine Law guru, be careful, you know, that type thing. And so we sometimes can't absolutely pick the spot, but if a spot is picked that's less than optimum, we work very hard to make sure that the notice requirements and the public access are as facilitative as we can possibly make them. And so far we haven't had a challenge. And the fact is, I think, that it speaks to the manager staff and county attorney staff working very diligently to truly make the meeting place and the meetings ones where they aren't problematical for the public. In regard to telephone calls and e-mail -- and we see this with commissioners from time to time -- telephone calls between members are not advised. E-mail -- for instance, let's say the chairman or any member of you says I'd like to bring up a discussion item at the next meeting. One-way communications are okay. It's the solicitation where it elicits a response that could be problematic, in which they say, oh, oh, because it's a matter coming before the committee at some time soon -- when you've reached out and touched someone and gotten a response, someone might allege, and possibly properly so, that you now have a communication which the public hasn't been Page 176 December 6, 2001 able to see in the marketplace of the Sunshine Law, open access. So, again, we'd caution you that if you do transmit information or a desire or something to another committee member or all the committee members, that hopefully it's a one-way communication. That way you avoid the problem. And the fewer of those the better, but there will be times when that's necessary. Another thing to keep in mind is you can't do indirectly what you can't do directly. And one member of your committee cannot talk to another member using Ray or Marjorie or some conduit person. That's also a no-no and has been specifically addressed in the attorney general opinions. You need to know -- and, again, it's not to scare you off. But, of course, what is the liability that you have? And the liability is not a collective liability for violation of the Sunshine Law. It's personal liability. And it's, you know, $500 or 60 days in jail, and it's the second degree misdemeanor type of-- type of penalty. But aside from that, the work that you may do which is compromised by Sunshine Law violation is ruled a nullity. And so if you do something for expediency or just error, inadvertent error, and it's successfully challenged, the court will also, in finding of a violation of the Sunshine Law, probably indicate that the action taken by the board was not totally in the sunshine. And so it will be ruled a nullity, and you'll have to start again. And by virtue of the fact that so much of your work is advertised and cumbersome, it's the very last thing that you would want in regard to achieving your goal of-- of successful work agendas and things of that nature. Now, if Mr. Manalich were here, he would tell you about the safety net, and I do think that his presentation -- and by the way, his slides are fun, and mine are just kind of up there. But I do want to tell you about the safety net if you don't know it. And the Board of County Commissioners in 1995 passed a resolution putting a policy in effect that for county employees and advisory committee members, Page 177 December 6, 2001 as well as commissioners themselves, that, in fact, if you should be charged with a violation of activities related to the work that you do, two or three things happen, and most of them are fairly good. And that is if you are charged, then you're obviously going to be in court. In terms of a -- either a public records violation or a problem with the Sunshine Law, the charge wouldn't come from the civil side. It would be from the state attorney and the criminal side. And you'd probably want the assistance of counsel. And here's what you have: You have us up until the time you're charged in the sense that we, the county attorney office, just like to the Board of County Commissioners until a court tells us elsewise, are here to facilitate and respond to questions that you, as individuals as well as collectively, may have in regard to the Sunshine Law or ex parte or Public Records Law and ethics laws. Now, there -- there is an attorney general opinion out there that has raised the specter that the type of advice that we may give or that a school board attorney may give to a superintendent or one person, as opposed to the collective body, is the rendering of personal advice to that person. We don't accept that. It's not been ruled in a court of law yet. And, in fact, working with the Commission on Ethics for several years now, the Commission on Ethics, in fact, exhorts the local attorneys to municipalities and county governments to assist their board members and committee members, to respond and answer ethics questions so that the individuals can properly perform their functions which they're appointed or elected to do. And so we've taken the expansive role, and we're here for you. But if you should get charged, the resolution that the board adopted in 1995 provides that the board has an election, and it's based upon a review of the facts affecting the individual who would be charged that would be potentially liable. The board can provide you counsel from the git-go, or they can stand back and say, well, we'll Page 178 December 6, 2001 see how things mm out in the proceeding. And if you're acquitted, dismissed, case dismissed, things of that nature, the board would reimburse you for your legal expenses, the reasonable legal expenses. Or they may -- ultimately that's really the two positions that they may take. If the person were to be convicted, they will have actually performed an illegal act in the course of their charge or responsibility with the county. And it's seminars just like this so you'll never get in that place -- in that point -- that place and point in the first place. So -- so we don't expect that we'll ever see you on the other side of the coin here, but if you should be, the board has this resolution in place as part of its policy which can assist the person in persevering against the charges that may potentially be levied. And that's a safety net, and it's something that I think is pretty good. That would apply both in regard to an alleged violation concerning ex parte communications as well as a public records-type of problem as well as the Sunshine Law -- the sunshine-type of actions that you may have. I'm going to make two comments about Public Records Law, one or two, and that is the government, the legislature, and the courts have indicated that the Public Records Law is very pervasive, even takes constitutional supremacy over the individual constitutional right of privacy, the Florida constitutional right of privacy. And so the documents that you generate as part of your committee activities here are probably almost always going to be public records. There are some limited exemptions, so the rule of thumb is don't throw stuff out. Save your etchings, your discussion, your notes from these meetings. A lot of the material you receive is material that's in the record or that Ray keeps -- keeps as part of the proceeding. So from that standpoint it may be duplicative. But what Mike Pettit would tell you is it's not a bad idea to keep an expanding file or two or three and just Page 179 December 6, 2001 throw all your records in there that you have and then turn them over to the county to hold for you while you're in office or while you're out of-- after you've left the committee so that they're not destroyed and you're okay. With that, if you have any questions for me, I'd be happy to answer, and then I'll turn it over to Marjorie. COMMISSIONER RICHARDSON: Just on that narrow point, if-- like, the documents we get to support applications that are -- we'll say we have two kinds, the kinds that we don't mark up and the kinds that perhaps we do make notations on. What's your -- if it's a clean copy and it's duplicative, that can be pitched? MR. WEIGEL: I would tend to think so, Mr. Richardson. But the notes that you take which are for your use -- and it's called a permanent impression and memorialization of your thoughts, even if it's just useful for the moment -- does become a permanent record and has potential to -- COMMISSIONER RICHARDSON: That's helpful. MR. WEIGEL: Should be kept. Okay. If you have no questions, I'll turn it over to Marjorie to talk about ex parte communication. MS. STUDENT: Thank you, David. I'm going to do a brief presentation on ex parte communications. And those of you that have been with the commission for a while -- and it came up today -- heard me ask for disclosure and make sure we did that in a quasi-judicial matter. And "ex parte" is a Latin legal term which really means one sided. And if you think about it, when this board acts in a quasi- judicial capacity, you're acting sort of like a judge in a court of law. And if you had a case in a court of law and the other side had the opportunity to go in the back room and tell the judge his side of it and why your side was no good and your position had no merit, I think Page 180 December 6, 2001 most all of us would be unhappy about that. So that's the idea behind having the disclosures, the ex parte disclosure. The background comes from a case out of Dade County, Jennings versus Dade County. And there was a gentleman in that case, a Mr. Shatzman (phonetic), who filed a request for a variance to allow a quick oil change business on property adjacent to the Jennings' property. Over in Dade County, the zoning appeals board acts much like the Planning Commission, and they -- but apparently they had the final order authority. They approved the variance. And they appealed the variance to the county commission, and the county commission upheld the decision of the zoning appeals board. After the county commission decision, Mr. Jennings discovered that a lobbyist for Mr. Shatzman, who, if you recall, was the applicant, had been to see the commissioners on an individual basis urging them to uphold the zoning appeals board decision. And Jennings contended that variances were quasi-judicial in nature and because of this, not only were his federal constitutional due process rights violated, but also the Florida ones had been violated by the ex parte meetings. So he filed suit in the Third District Court of Appeals over in Miami, and they agreed with him, holding that proof of a public official in a quasi-judicial proceeding -- that upon proof that a public official in a quasi-judicial proceeding was the subject of an ex parte contact, there was a presumption -- it didn't mean that it absolutely was prejudicial -- but a presumption arises that the contact was prejudicial to the other party in the case. So the aggrieved party would automatically be entitled to have the local government's decision reversed and to receive a new and complete hearing before the quasi-judicial body unless it could be proven that the communication or contact was not, in effect, prejudicial. And then the case goes on to outline some procedures for Page 181 December 6, 2001 doing that. And the rationale of the case was to assure that the proceedings before the quasi-judicial board are fair and impartial and to provide a forum in which all sides of an issue can be presented and discussed prior to the final decision. So what concerns us, first of all, is what kind of proceeding do we have. And sometimes the questions come up, for example, with a comp plan amendment, oh, do we need to swear people in? Do we need to make ex parte disclosure? And there you do not because a comp plan -- approval of the plan itself or an amendment to the plan is legislative. Quasi-judicial actions are -- I think the board is pretty cognizant of what those are. What we were about today, all of them were quasi-judicial. Site-specific rezones, variances, conditional uses, those are all quasi-judicial. So the Florida legislature responded by passing a law because there was a hue and cry that local officials wouldn't be able to talk to their constituents anymore on issues relating to government and the community. So legislation was passed that would allow ex parte contact as long as disclosures were made. And those are what we, in fact, went through today. The county's response was to pass Ordinance 95-376, and that was adopted on June -- excuse me, resolution. That was adopted June 20th of 1995. So what we have to do to erase that presumption of prejudice is to disclose the substance of any oral ex parte communication, and that was done today. And what you have to do is state the identity of the person or the group or entity with whom the oral communication was had and made a part of the record; any written communication, and that would be e-mail or letter or snail mail, I think, as somebody here today said; and the existence of any investigations, site visits, expert opinions, and the like have to be disclosed and made part of the record. CHAIRMAN RAUTIO' Question. Page 182 December 6, 2001 MS. STUDENT: Now, some of the county commission now bring files into the boardroom that has all the e-mails, letters, so they can be examined, if anybody were so inclined, before the final decision was made. The disclosure has to be made prior to final action on the item, and that is to give an opportunity to find out the nature of the communication, to ask questions about it, to present your side of it, and so on, again, to help influence the decision. The applicability of the rule is to any elected public official who takes quasi-judicial action as a member of a county board or commission or any appointed public official who recommends or takes quasi-judicial action as a member of a county board or commission. And, again, we have applied a resolution much as we did today, with the disclosure of telephone calls, meetings, letters, e-mail, and so forth. And there's some recent case law from Collier County from just a little over a year ago, and it had to do with the issue of how much you have to disclose, and it involved Marco Island City Council. And the Court said that they followed the essential requirements of law in making disclosure of ex parte communication despite the contention that the disclosure was incomplete, since not all contents of the communication was disclosed. And in a related matter in a case I had, which never got fully decided because it settled, but I argued that if the disclosure's made and a person has a problem with the disclosure not being complete or they want to know more about it, they have an obligation and a duty to ask the board about that at the hearing rather than wait and bring it up in a petition for writ of certiorari, and so this sort of goes to that point. So I know we've been through all this before, but this is just a little outline. And for the new members, I hope it's helpful. And if Page 183 December 6, 2001 you have any questions, I'll be glad to answer. COMMISSIONER ABERNATHY: Our new hearing examiner scheme, the -- prohibits ex parte communications -- MS. STUDENT: That's correct. COMMISSIONER ABERNATHY: -- with the hearing examiner. MS. STUDENT: That's correct. COMMISSIONER ABERNATHY: But not with the county commissioners. MS. STUDENT: (Nodded head.) COMMISSIONER ABERNATHY: So you really haven't addressed the evil, it doesn't seem like. The county commissioners are the ones who are subject to political pressures and who take campaign contributions. I mean, none of those things apply to the hearing examiner. It seems like we've insulated the wrong person. MS. STUDENT: Well, I think that what I would offer in that regard is the fact that, if you recall, the reaction to the Jennings rule was that people could not have contact with their elected officials to talk about important things in the community and the growth of the community and development of the community. And to put a Chinese wall around the board like that, I guess, was felt to sort of fly in the face of what an elected official is to do. So that's why the legislature came up with the ex parte disclosure legislation. The hearing officer is not elected. He's appointed by the board, and he's not -- not elected. So those concerns aren't quite the same, that being, you know, the need to have contact with your constituents. I mean, that's -- COMMISSIONER ABERNATHY: I understand the rationale, but it seems to me that the problem is not solved at all. CHAIRMAN RAUTIO: I just want to make sure that I understand, Marjorie, that we should be more elaborate on the issues Page 184 December 6, 2001 that we discuss -- MS. STUDENT: Yes. CHAIRMAN RAUTIO: -- when we've had our telephone calls or the e-mails and that type of thing -- MS. STUDENT: Right. CHAIRMAN RAUTIO: -- when we do our disclosures. Okay. MS. STUDENT: And-- but-- and I would encourage that, and I wouldn't -- just by saying that if the case came up where somebody were to challenge, that I would offer the defense that I alluded to and that I did utilize in one case that was undecided -- I mean, I think that's there, but I don't believe that relieves a board member from the obligation of, you know, making the -- making the full disclosure. CHAIRMAN RAUTIO: Thank you. COMMISSIONER RICHARDSON: I have a question. I'm not exactly sure where it fits. MS. STUDENT: Okay. COMMISSIONER RICHARDSON: I noticed -- and this will help illustrate the point -- in our review from the county commissioner actions, I see that we have one of our members that was appointed to another committee -- that would be Mark Strain -- to the work-force housing advisory committee, and there may be others that are involved in different aspects of the government, and then I'd like to extend that to some community affairs. But can you tell us what possible conflicts that might raise? MR. WEIGEL: Good question. And Mr. Strain is -- knows, I think, exactly what you're asking. Sometimes you find with more than one committee appointment and which, under the board's ordinance for advisory committees generally, a citizen of Collier County can be appointed to two or more boards or committees. They can, in fact, and the individual who is so appointed can find themselves with different committees that have some of the same Page 185 December 6, 2001 business that relates over, could be a master plan for some part of the community or another thing. And in this case, of course, nearly everything land-related comes through you. So from that standpoint it can create a problem if there are two or more members of one committee that are also on the other committee. Now, we've approached that cautiously and conservatively in the sense that we have -- we've gotten the county manager's office to accept, I think, that the -- that they need to go that extra mile in regard to the notices for the protection of the individuals who have been appointed by the commission to serve in more than one committee capacity. We don't want to set you up as individuals to fail or to be at personal liability. So when we have a committee member who's on more than one committee and there may be business that's a little bit cross transactional, a little bit of the same subject matter, two or more committee members of both committees -- on two or more committees, we will, in fact, notice the committee members for both committees that they are members of. It's not necessarily a formal meeting when two or more persons come together, but under the state law, when two or more persons of a committee come together and talk about business that comes before them on one or the other committees they're appointed to, it still requires Sunshine Law, all three requirements, to be met: Take minutes, have adequate reasonable notice ahead of time, and the facility should be a public facility. Now, usually we don't have a facility problem because if it's one committee of the county or another committee of the county, that's being taken care of in a public facility somewhere appropriately anyhow. And we usually don't have a notice problem for one of the committee meetings. But when you've got two members from one committee as being two members from another formal committee, we Page 186 December 6, 2001 have tried to liaison, coordinate very carefully with the county manager staff, specifically development services if they're related, and the public information office so that no committee member is put at a -- in risk by performing even a larger civic function. I hope I've answered your question. CHAIRMAN RAUTIO: Any questions? MR. WEIGEL: Well, thank you so much for having us. And, again, if you'd reach out, we'd be happy to have Ramiro speak to you on ethics. And I know it's been another long day today. I gave you a very brief synopsis on public records, but we'll try to have Mike available also to talk on some public records. You may hatch a few questions in the meantime. And, as I mentioned earlier, we're a phone call away from you individually, and if we can respond, we will. If we find that there is an issue that would cause us to limit our response, I will be the first to tell you that too. And although we can't advise you personally, we can advise you and we take the position that we can advise you in regard to performing your duties on behalf of the county. And, again, I thank you. I appreciate that we could see you today, and I know I'll be seeing you often. Thank you. CHAIRMAN RAUTIO: Okay. So we're going to save ethics and the full public records presentation for the next time or -- is that reasonable? MR. WEIGEL: Thank you. CHAIRMAN RAUTIO: Any other questions? COMMISSIONER STRAIN: Are we under old business or new business? CHAIRMAN RAUTIO: Still under new business. COMMISSIONER STRAIN: I have two comments. CHAIRMAN RAUTIO: Go ahead. COMMISSIONER STRAIN: I was advised by one of the Page 187 December 6, 2001 county officials that if the Planning Commission members feel the need, they could arrange to have an office space for us to meet with people, to have discussion before us. So I was asked to relay that to you-all. And maybe by our next meeting, if you think about it, we could kind of see if it's something we'd want to put forward or not. CHAIRMAN RAUTIO: Okay. So the county would provide a place for us to meet with people? COMMISSIONER STRAIN: On a one to one. CHAIRMAN RAUTIO: That would be excellent in my case at this point. COMMISSIONER STRAIN: That's why it was suggested. COMMISSIONER YOUNG: Very nice. CHAIRMAN RAUTIO: That was -- COMMISSIONER STRAIN: And then the second thing is I noticed you did something different this time, Ms. Chairman, which I liked. You asked who in the audience was here for what reason, and that was a good start. Could we follow it through with somehow rearranging the agenda based on the quantity of people on each item? I mean, we're here to serve the public. If they could come in and get right -- listened to earlier and move on, their days, then, would be more productive. And I'm wondering if we can, at the time we have a meeting, rearrange the agenda based on the amount of public involved. CHAIRMAN RAUTIO: That's my understanding, we can. Today I would not get the award for figuring out how long any item was going to take. I failed miserably, but that was my concept from our previous Bucks Run and Silver Lakes PUD. I didn't realize at the time when the room was packed and overflowing that we had two major petitions that had just as many people on both of them. So that's what I would like to start doing, is have a better idea of what's out there. And if we have a lot of registered speakers, that we, as a Page 188 December 6, 2001 board, would rearrange the agenda to be able to go forward in deference to the public when there's an awful lot of people here, particularly if the room is overflowing. COMMISSIONER STRAIN: I think that would be -- CHAIRMAN RAUTIO: But I kind of wanted to sort of feel my way through that. And I appreciate you mentioning it because I think it could make life a little easier. We don't want to get into a position where we change the agenda so dramatically that other people don't have an opportunity to be here for their time. We have to be sensitive to that, and I want to make sure that -- the county attorney wants to comment? MS. STUDENT: I have some comments too. Go ahead, Dave. MR. WEIGEL: Thank you. Well, there's not a legal question on -- on changing your agenda or moving it around, and that's separate from the notice that you provide under Sunshine Law. I think staff could probably assist you in judging to some degree what they think may be the heavier attended items and so that the arrangement on your agenda in the first place, the printed agenda, might facilitate the goal of the heavier attended items just appearing there so you don't have to do on the floor-- on the dais reformation of the agenda order. But at the same time, I know you'll always keep in mind, as careful as you are, the fact that when there is a printed agenda ahead of time, which there will be, there will be those people who attempt to make their schedule work according to the agenda. And so when you change from what's printed, it could be sometimes an issue with some -- MS. STUDENT: Yeah. That kind of segue -- or a segue into that, because I have a concern if somebody saw they were, like, No. 5 and said oh, gee, you know, 15 minutes a pop, and so if I get there by 9:30, I ought to be okay. And, you know, if we arrange something -- Page 189 December 6, 2001 rearranged -- so I think if you can anticipate it, that would work out better. CHAIRMAN RAUTIO: I would appreciate it if we tried to anticipate a little bit more on the way the agenda is organized given the sensitivity to people coming at a later date -- or a later time and then possibly missing their particular item that they had interest in, whether it was just to listen, rather than even speak. So if you-all could work on that just a little bit. But sometimes you just never know. COMMISSIONER ABERNATHY: I've tried to figure out what the pattern is. COMMISSIONER RICHARDSON: It looks like the agenda -- It looks like it's -- Boat docks first. COMMISSIONER ABERNATHY: -- tried to anticipate the practitioners. The boat docks and minor variances all come first, and this is a concession to the practitioners. Get those people in and get them out, and we're talking about the greater public. When you've got 50 people from a subdivision, that, to me, is more important than -- than a guy with a boat dock. MR. BELLOWS: Yeah. For the record, it's -- I think the way it was historically scheduled or arranged, the agenda, was to allow the petitions such as boat docks or minor variances to go first to get them out of the way. The larger projects, PUDs, rezonings, would go later in the agenda because they normally would take more time. And if somebody has a 15-minute petition, they were going to have to wait around all day for the PUD rezonings to occur. So if we could get the items that only take 10 or 15 minutes out of the way, then the Planning Commission could spend the rest of the time on the larger projects. Unfortunately, the boat docks seem to take more time than the rezoning petitions, and that throws that whole thing out the window. So I can discuss this with Susan, and we can maybe poll staff to Page 190 December 6, 2001 see -- because in some cases staff knows when there are going to be a lot of people turning out, and we could have those scheduled first. But then there's that issue of some of the minor ones have to sit through the long petitions. So that's a -- I guess that's something that you have to decide, if you want the minor petitions to wait and the bigger ones that have a lot of controversy and will take a lot of time to get through to go first and let the others wait. CHAIRMAN RAUTIO: Well, my first focus would be to try to resolve the ones that the most people are going to show up and discuss and give public input. I think that's the sense of what I'm hearing up here. If we could focus on that. And you're right. Staff, Ray, quite often knows how many people have called with the objections and written the letters, and you can get a feel for it. And it might even be something that you'll talk about among yourselves a little more often, when the agenda is actually formatted, how it goes together. Sometimes we have as many as, what, 10, 12, on the agenda. We've been a little light lately. MR. BELLOWS: Yeah. And those things are difficult to control when the things fall together and all the petitioners or applicants are pressing for meeting dates and all of a sudden they all just fall in the line together. And then there's that dry spell where there's problems, and then everyone seems to have things and put off. So it's very difficult to schedule things in an orderly fashion in that regards. CHAIRMAN RAUTIO: Right. But if we are trying to be sensitive to get the ones that look like more public is going to show up and let the smaller, shorter ones go to the end, I think that would be at least a good approach, to try to rearrange. MR. BELLOWS: Yeah. And then the other issue is continuances, when an item is continued. We may try to keep the Page 191 December 6, 2001 agendas within, say, five or six for each meeting. But then the next thing you know, we have several continuances, and the next thing, the Planning Commission might have 12 or 13 items. CHAIRMAN RAUTIO: Right. And along that same line, I would really hope that December 20th is not going to be a heavy agenda, for a number of reasons. If you could only put maybe three or four on it and the rest of the workshop, that's what I'm -- MR. BELLOWS: I think Susan had put a limit on the 20th, but I'll double-check on that. CHAIRMAN RAUTIO: Okay. Thank you. Any other comments? Item No. ! 1 on the agenda is public comment, and I think the public has departed. Number 12, there's no discussion of addenda. Number 13, we are adjourned, if everybody agrees. Thank you. We'll see you on the 20th. There being no further business for the good of the County, the meeting was adjourned by order of the Chair at 3:37 p.m. COLLIER COUNTY PLANNING COMMISSION JOYCEANNA J. RAUTIO, CHAIRMAN TRANSCRIPT PREPARED ON BEHALF OF DONOVAN COURT REPORTING, INC., BY BARBARA DRESCHER, NOTARY PUBLIC Page 192 COLLIER COUNTY GOVERNMENT COMMUNITY DEVELOPMENT AND ENVIRONMENTAL SERVICES DMSION December 12, 2001 PLANNING SERVICES DEPARTMENT 2800 NORTH HORSESHOE DRIVE NAPLES, FL 34104 Mr. Jerry Neal 950 Encore Way Naples, FL 34110 RE: Petition No. BD-2001-AR-961 Dear Mr. Neal: On Thursday, December 6, 2001, the Collier County Planning Commission heard and approved Petition No. BD-2001-AR-961. A copy of CCPC Resolution No. 01-28 is enclosed approving this use. If you have any questions, please contact me at 403-2400. Ross Gochenaur Planner II Enclosure C: Mark V. Casper 3721 Whipple Ave. N.W. Canton, OH 44718 Customer Service Addressing (Peggy Jarrell) Land Dept. Property Appraiser M. Ocheltree, Graphics J Minutes & Records (BD, PSP & PDI) ~J File RG/cw FAX (941) 643-6968 www. co.collier, fi.us PHONE (941) 403-2400 CCPC RESOLUTION NO. 01- 2 8 RELATING TO PETITION NUMBER BD-2001-AR-961 FOR AN EXTENSION OF A BOAT DOCK ON PROPERTY HEREINAFTER DESCRIBED IN COLLIER COUNTY, FLORIDA. WHEREAS, the Legislature of the State of Florida in Chapter 125, Florida Statutes, has conferred on all counties in Florida the power to establish, coordinate and enforce zoning and such business regulations as are necessary for the protection of the public; and WHEREAS, the County pursuant thereto has adopted a Land Development Code (Ordinance 91-102) which establishes regulations for the zoning of particular geographic divisions of the County, among which is the granting of variances; and WHEREAS, the Collier County Planning Commission, being the duly elected and constituted Planning Commission for the area hereby affected, has held a public hearing after notice as in said regulations made and provided, and has considered the advisability of a 30-foot extension of a boat dock from the permitted 20 feet to allow for a 50-foot boat dock facility in an RSF-4-GZO zone for the property hereinafter described, and has found as a matter of fact that satisfactory provision and arrangement have been made concerning all applicable matters required by said regulations and in accordance with Section 2.6.21. of the Collier County Land Development Code; and WHEREAS, all interested parties have been given the opportunity to be heard by this Commission in public meeting assembled, and the Commission having considered all matters presented; NOW THEREFORE, BE IT RESOLVED BY the Collier County Planning Commission of Collier County, Florida, that: The petition filed by Jerry Neal, representing Mark V. Casper, with respect to the property hereinafter described as: Unplatted Parcel 7, located in the unincorporated Village of Goodland, in Section 18, Township 52 South, Range 27 East, Collier County, Florida. be and the same is hereby approved for a 30-foot extension of a boat dock from the permitted 20 feet to allow for a 50-foot boat docking facility in the RSF-4-GZO zoning district wherein said property is located, subject to the following conditions: All docks, or mooring pilings, whichever protrude the greater into the water, regardless of length shall have reflectors and house numbers four (4) inches minimum size installed at the outermost end on both sides. 2. In order to address the protection of manatees, at least one (1) "Manatee Area" sign shall be posted during construction. 3. Permits or letters of exemption from the U.S. Army Corps of Engineers and the Florida Depaxtment of Environmental Protection shall be presented prior to issuance of a building permit. 4. All exotic vegetation as defined in Section 3.9.6.4.1 of the Land Development Code shall be removed from the site and the property shall be maintained exotic-free in perpetuity. BE IT FURTHER RESOLVED that this Resolution relating to Petition Number BD-2001-AR-961 be recorded in the minutes of this Commission and filed with the County Clerk's Office. This Resolution adopted after motion, second and majority vote. Done this 6th day of December ,,, 2001. ATTEST: JOHN M./ Executive~ ~UNNUCK, III Secretary Communit' t Development and Environmental Services Interim Administrator Approved as to Form and Legal Sufficiency: COLLIER COUNTY PLANNING COMMISSION COLLIER COUNTY, FL(~IJ)A JO~]~lqA J. RAUTIC~, CHAIRMAN 1 Marj61'ie M. Student Assistant County Attorney RG/cw