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CCPC Minutes 12/20/2001 RDecember 20, 2001 TRANSCRIPT OF THE MEETING OF THE COLLIER COUNTY PLANNING COMMISSION Naples, Florida, December 20, 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 8:34 a.m. In REGULAR SESSION in Building "F" of the Government Complex, East Naples, Florida, with the following members present: CHAIRMAN: Joyceanna J. Rautio Russell A. Budd Kenneth L. Abemathy Paul Midney Lindy Adelstein Lora Jean Young David J. Wolfley Dwight Richardson Mark P. Strain ALSO PRESENT: Marjorie M. Student, Asst. County Attorney Susan Murray, Chief Planner, Planning Services Page 1 AGENDA COLLIER COUNTY PLANN~G COMIvIISSION WILL MEET AT 8:30 A.M., THURSDAY, DECEMBER 20, 2001, IN THE BOARD OF coUNTY COMMISSIONERS MEETING ROOM, ADIVmqISTRATION 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 ALLO'i-r~D 10 MINUTES TO SPEAK ON AN ITEM IF SO RECOGNIZED BY THE CHAIRMAN. PERSONS WISHING TO HAVE WRITI'EN OR GRAPHIC MATERIALS INCLUDED IN THE CCPC AGENDA PACKETS MUST SUBMIT SAID MATERIAL A MINIMUM OF 10 DAYS PRIOR TO TH~ RESPECTIVE PUBLIC HEARING. IN ANY CASE, WRITr~N MATERIALS INTENDED TO BE CONSIDERED BY THE CCPC SHALL BE SUBlvffrleD 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 'lite PROCEEDINGS PERTAINING THERETO, AND THEREFORE MAY NEED TO ENSURE THAT A VERBATIM RECORD OF THE PROCEEDINGS IS MADE, WHICH RECORD INCLUDES TI-IE TESTIMONY AND EVIDENCE UPON WHICH THE APPEAL IS TO BE BASED. 1. PLEDGE OF ALLEGIANCE 2. ROLL CALL BY CLERK 3. ADDENDA TO THE AGENDA 4. APPROVAL OF NovEMBER 15, 2001 MINUr£S 5. PLANNING COMMISSION ABSENCES- None 6. BCC REPORT- RECAPS OF NOVEMBER 27, 2001 7. CHAIRMAN'S REPORT ADVERTISED PUBLIC HEARINGS A. BD-2001-AR-1551, Christian Spilker, of Turrell & Associates, Inc., representing Ralph and Mary Jo Anzivino, requesting a 34-foot boat dock extension to allow for a dock with two boat-lif~s protruding a total of 54 feet into the waterway for property located at 210 San Marco Drive, further described as Southport on the Bay Unit One, Lot 26, in Section 6, Township 48 South, Range 25 East, Collier County, Florida. (Coordinator: Ross Gochenaur) B. CU-2001-AR-1255. Donald J. Murray, AICP, of Communication Development Services, Inc., representing Collier County Emergency Management Services, requesting Conditional Use 13 of "E" Estates for an Essential Service Communication Tower, as specified in Section 2.6.35.6.3 of the LDC, for prope~ located at 95 13th Street SW at the intersection of Golden Gate Blvd. and 13th Street SW, Golden Gate Estates, Unit 9, in Section 8, Township 49 South, Range 27 East, Collier County, Florida. (Coordinator: Chahrara Badamtchian) C. CU-2001-AR-1411, Anita L. Jenkins, AIC.P, of WilsonM!ller reques_ting ,co~ndiI!onal us~ ..for. a ofirne station, per Section 2.6.9.2 Essential Serwces of the Colher County Lano taev~topment uooe, property located on the east side of the Livingston Road right-of-way and approximately 1.75 miles north of Immokalee Road and .25 miles south of future L~vmgston RoadlE/W n. ght-of-way in Section 13, Township 48 South, Range 25 East. (Coordinator: Chahram Badamtchian) D. CU-2001-AR-1420, William L. Hoover, AICP, Hoover Planning and Development, Incorporated, representing Pastor Colin Rampton, of the Seventh Day Adventist Church, requesting conditional ..... ~ '" 1" of the "A-MHO" Rural Agricultural Zoning District/Mobile Home Zoning uses / anu · Overlay, for a church and child care center on property located at the northwest comer of Lilac Lane and Immokalee Road in Section 23, Township 47 South, Range 27 East. (Coordinator: Chahram Badamtchian) E. CU-2001-AR-1620, James Weeks, requesting Conditional Use "7" of the "E" Estates zoning district for an earthmining per Section 2.2.3.3.7. of the Land Development Code for property located on Desoto Blvd. North, between 29~ Ave., NE and 31"t Ave., NE on eastside of Desoto, further described as Tract 143, Golden Gate Estates, Unit 67, in Section 21, Township 48 South, Range 28 East, Collier County, Florida, consisting of 6.62--t: acres. (Coordinator: Chahram Badamtchian) F. CU-2000-22,William L. Hoover, AICP, of Hoover Planning & Development, Inc., representing Bill Rousseau, Richard Yahl, Jean Yahi, and Teresa YaM-Fillmore, requesting Conditional Use "2" of the "A" zoning district for a mulching and recycling facility per Section 2.2.2.3 for property located on the eastern and southern sides of Washburn Avenue S.W., approximately 2 miles east of Collier Boulevard (C.R. 951), in Section 31, Township 49 South, Range 27 East, Collier County, Florida, consisting of 28.3:t: acres. (Chahram Badamtchian) G. PDI-2001-AR-1276, Brad C. Hedrich, of Hedrich Engineering, Inc., representing Meridian Land Company, requesting an Insubstantial Change Determination to the Madeira PUD Master Plan to move the location of the community's recreation center area fi'om the northwest comer of the project to the southwest comer of the project; to create additional preserve and lake areas; to reconfignre the internal site circulation; to reconfigure internal lakes; and to designate the location of a neighborhood park for property located in Sections 13 and 24, Township 48 South, Range 25 East, Collier County, Florida. (coordinator: Susan Murray) H. PDI-2001-AR-1356, Kent Carlyle, of McAnly Engineering and Design, Inc., representing Lucky Strike l.I.P, requesting an amendment to the Green Heron PUD Master Plan for the purpose of adding a project entrance onto Radio Road approximately 1,900 feet east of the existing entrance for property located at 8005 Radio Road, in Section 33, Township 49 South, Range 26 East, Collier County, Florida. (Coordinator: Ray Bellows) 9. OLD BUSINESS 10. NEW BUSINESS A. County Attorney Workshop - Con't. 2 11. 12. 15. PUBLIC cOMMENT ITEM DISCUSSION OF ADDENDA ADJOURN 12/20/01/CCPC AGENDA/SM/lo 3 December 20, 2001 (The meeting commenced with Commissioner Midney not present.) CHAIRMAN RAUTIO: Good morning, ladies and gentlemen. I'd like to call to order the regular meeting of the Collier County Planning Commission for Thursday, December 20th, 2001. Please stand and join me in pledging allegiance to our flag. (The pledge of allegiance was recited in unison.) CHAIRMAN RAUTIO: Second item on the agenda is roll call. Mr. Midney, absent. Mr. Adelstein. COMMISSIONER ADELSTEIN: Here. CHAIRMAN RAUTIO: Mr. Budd. COMMISSIONER BUDD: Here. CHAIRMAN RAUTIO: Mr. Abernathy. COMMISSIONER ABERNATHY: Here. CHAIRMAN RAUTIO: Ms. Rautio, present. Mrs. Young. COMMISSIONER YOUNG: Here. CHAIRMAN RAUTIO: Mr. Richardson. COMMISSIONER RICHARDSON: Yes. CHAIRMAN RAUTIO: Mr. Wolfley. COMMISSIONER WOLFLEY: Present. CHAIRMAN RAUTIO: Mr. Strain. COMMISSIONER STRAIN: Here. CHAIRMAN RAUTIO: We're all here minus one, and we have a quorum. Thank you. Do we have addenda to the agenda today? MS. MURRAY: Good morning, Commissioners. Susan Murray, current planning manager. Item F on your agenda, that's CU-2000-22, that would be the Yahl Mulching facility -- and I'm Page 2 December 20, 2001 saying this loudly for those in the audience so you don't sit here all morning. If you're here to hear Item F, it has been continued indefinitely. That's Yahl Mulching. We also have questions or issues with Items G and H. I think we are just going to go ahead and bring them forward and discuss those with you openly but unsure about whether or not they're going to be heard today. You may have to make a decision as to -- with input from the county attorney as to how to handle that, but we'll deal with that when we get to them. CHAIRMAN RAUTIO: Okay. And that's G and H. MS. MURRAY: G and H, right. That's -- the Madeira PUD master plan change is Item G, PDI-2001-AR-1276. And H is PDI- 2001-AR-1356, Green Heron PUD. We will discuss them today. I'm not sure if there'll be a full-blown public hearing. CHAIRMAN RAUTIO: Thank you. Any questions? Okay. Approval of the minutes for November 14th, 2001. Do I have a motion? COMMISSIONER YOUNG: I so move. COMMISSIONER RICHARDSON: Second. CHAIRMAN RAUTIO: Well, let's see. 15th on the transcript and 15th on the agenda. Okay. We have a motion by Mrs. Young, a second by Mr. Richardson for approval of the minutes. Any -- excuse me. I'll call the question. All those in favor say aye. (Unanimous response.) CHAIRMAN RAUTIO: Those opposed, same sign. (No response.) CHAIRMAN RAUTIO: Motion carries. Minutes are approved. The Board of County Commissioners report, the recap for November 27th, do we have some questions? COMMISSIONER RICHARDSON: Absences first. CHAIRMAN RAUTIO: Oops. I skipped right past that, didn't Page 3 December 20, 2001 I? Are there any Planning Commission absences in the next month of January? COMMISSIONER BUDD: I will not be here for the January 3rd meeting. CHAIRMAN RAUTIO: Thankyou. COMMISSIONER ABERNATHY: I'll have to leave no later than noon today, but that's not a future absence. Well, it's in the future -- CHAIRMAN RAUTIO: Well, it's in the future for a couple hours. COMMISSIONER ABERNATHY: Immediate future. CHAIRMAN RAUTIO: Okay. The Board of County Commissioners recap for November 27th, are there any questions, comments? Any highlights, Ms. Murray? MS. MURRAY: Not unless you have questions. CHAIRMAN RAUTIO: Hearing no questions, we'll move along to the chairman's report, which I don't have a specific report today. But, please, I want to remind everyone to fill out a speaker slip, come forward and give it to -- gee, she's got a name change here -- Susan Murray. Thank you. And when you speak, please approach the podium, speak clearly, and state your name and spell it for the court reporter if it's even slightly unusual. Okay. The first public hearing we have today is BD-2001-AR- 1551, a 34-foot boat dock extension. 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: And that's on this item. I'm sorry. I should state that each time. We do this individually on the items. Okay. Everyone who wants to speak on this boat dock has sworn in. Thank you. Mr. Gochenaur. Page 4 December 20, 2001 MR. GOCHENAUR: Good morning, Commissioners. For the record, Ross Gochenaur, planning services. As you know by now, through a staff error, the petitioner's application was not in the package that you received. I've spoken to the chairman, and hopefully you'll agree to hear this petition without having been able to review the application in advance. I can tell you that the petitioner's done a professional and conscientious job on the application, and I do appreciate it that you're willing to hear this and not penalize him for a staff error. (Commissioner Midney entered the boardroom.) MR. GOCHENAUR: The petitioner is requesting a 34-foot extension to create a docking facility protruding a total of 54 foot into a waterway which is about 1,000 feet wide. The property is located at 210 San Mateo Drive in Lely Barefoot Beach and contains about a thousand feet of water frontage. CHAIRMAN RAUTIO: Excuse me, Mr. Gochenaur. Let the record reflect that Commissioner Midney has arrived. Thank you. MR. GOCHENAUR: The project consists of the construction of a dock and two boat slips with lifts situated perpendicular to the shoreline. As you can see here, the deck area is minimal. The petitioner did reduce it somewhat at the request of our environmental staff, eliminating two areas here which they thought might cause problems. So he's already brought that into compliance completely with our environmentalists. There have been numerous similar extensions approved in the immediate area due to the shallow water and natural mangrove shoreline, including one to 48 feet on adjacent Lot 27 to the north and one to 50 feet on Lot 25 to the south. The petitioner's obtained all necessary state and federal permits. No objections to this petition have been received. The staff recommends approval. CHAIRMAN RAUTIO: Do we have questions of staff?. Mr. Page 5 December 20, 2001 Strain. COMMISSIONER STRAIN: Thank you for the details, since I looked at them quickly this morning. On previous applications we had talked that 3 feet was needed for depths for docks to get to, and was that the reason why a lot of dock extensions were approved, 3 feet of water depth. This one goes out to over 6 feet of water depth. What that does is they hit 3 feet at 25 feet. At 50 feet they get to 6 feet. Is there a reason why on this one 6 feet is needed more than 3 feet? MR. GOCHENAUR: The Land Development Code does not specify a depth criterion. There is no criterion for 3 feet water depth. The only criterion that we've addressed has been the DEP criterion that limits dock extensions in aquatic preserves to minus 4 feet mean low water. So the petitioner here has shown us that he needs this depth for the type of boats that he wants to put on this facility, that it's not going to interfere with the use of neighboring docks, and that he has more than enough waterway at a thousand feet to extend to what he's requesting. We did not look at the depth specifically. The petitioner may be able to go into some detail as to the boats and why they needed that much water. COMMISSIONER STRAIN: Okay. Thank you. CHAIRMAN RAUTIO: Commissioner Richardson. COMMISSIONER RICHARDSON: This seems to raise a larger question, although we keep boiling or roiling around in, and that has to do with the depth of the water at the end of the -- of these docks. And it seems that that's a practical reason to want to extend the dock, is to get to deeper water. And the 4 feet, the DEP 4 foot, seems to be kind of a reasonable place to draw the line on extensions. And it's just not clear to me that our ordinances address this issue sufficiently to give you the -- the direction to do your job or give us Page 6 December 20, 2001 the guidance to review these things. So I'm concerned about that. MR. GOCHENAUR: The intent of that section of the code was never to be extremely restrictive in terms of what people were allowed to have for docks and the size of their boat. Normally what we ask in those -- in the criteria that we have, and maybe in the criteria that we're proposing during the current amendment cycle, is this a reasonable request. There -- there is no requirement that the water depth be too shallow to have a particular kind of dock. A lot depends on the size of the petitioner's vessel. The -- the depth criterion, I've talked to people from the DEP about this, and they have some misgivings about it. They're not entirely comfortable with that themselves because it's my understanding that when people couldn't meet these and still needed a dock, they were required to dredge. Now, dredging's always an option, but it's my understanding that dredging is more damaging to the ecology than a boat dock and pilings. So what we're trying to do here is avoid something that would require the petitioner to dredge in order to get what he wanted so that he wouldn't have to ask for an extension. COMMISSIONER RICHARDSON: Perhaps we'll hear from the applicant and find out what size boat this is that's going to require 6 foot of draft. MR. SPILKER: Good morning. Christian Spilker with Turrell & Associates. That's S-p-i-l-k-e-r. If you look at the cross section I believe you have in front of you, you'll notice that there's a rapid change in the bottom, and what we've got is the call for 30-foot vessels with the lift clearance underneath. There were some concerns by the state as well as county staff that the shallow water in shore is suitable for some submerged resources, so we wanted to make sure that that bow was set back far enough with the planned vessels at the facility to ensure safe mooring without any risk. Page 7 December 20, 2001 COMMISSIONER RICHARDSON: So your 30-foot boat that you're going to put in here has how much, 5-foot draft or -- MR. SPILKER: No. If you look at our water depths there -- one of the things that might be a little confusing is that's referenced to mean low water, not NGVD, so it's a little deceptive. But the clearance of the lift and the draft and given the tidal flux, we're ensured -- I don't believe that we're going any further than is necessary to -- to safely get him in and out. COMMISSIONER RICHARDSON: See, this would argue, Ross, that we should have 6 foot of water everywhere then, and I just don't understand why we have such a wide variation in these applications that come in front of us. MR. GOCHENAUR: If depends on the nature of the water bottom and the shoreline at the site, the type of vessel that the property owner wants, and the width of the water frontage. In some cases the petitioner can put his boat parallel to the shoreline, which requires a lesser extension; and in others he needs to go perpendicular to the shoreline. They're pretty much tailored to the individual site. And we've found that these criteria tend to be pretty fair in terms of what we're trying to do with regard to the main requirements of safe navigation; noninterference with neighboring docks; and also, to a certain extent, aesthetics, the views of the neighbors. CHAIRMAN RAUTIO: Mother Nature and field conditions quite often dictate what they can and can't do. That's one of the reasons we have so many of the variances that come in, because it is a field situation that has to be resolved. COMMISSIONER RICHARDSON: This profile, though, is not untypical of the bottom that we have in a lot of these lagoons. I mean, and when we cut it off at 3 or 4 feet on other applications and extend this one to 6 feet for this application, I'm just -- this may be entirely reasonable and entirely appropriate, but I -- I'm just troubled Page 8 December 20, 2001 that we -- that our standards seem to be so flexible. I'm wondering why we even review them. MR. SPILKF, R: I might have one other comment to add to that, and that is, as you touched on, DEP and aquatic preserve has the minus 4 feet mean low water rule. They are actually trying to change that rule because that can sometimes limit -- if you hit minus 4 feet, 5 feet from shore, we cannot permit a dock past that. So water depths as a ruling factor can be a little misleading because the field factors are so variable. CHAIRMAN RAUTIO: And are you suggesting then, Commissioner Richardson, that it's -- we're not going to give an extension any further than to get to something as specific as 4 feet? I'm not sure I'm following your objection. COMMISSIONER RICHARDSON: Well, it seems that we have done that in review of previous boat dock extensions. Anything over 20 feet we take a look at; right? CHAIRMAN RAUTIO: Right. COMMISSIONER RICHARDSON: And then we take a look at -- typically the applicant says, I've got to have a certain water depth in order to handle my boat here, and usually it's something over 4 feet. So when we get to the end of the dock and it's 4 feet, we usually say, well, that's a reasonable length for the dock extension. But here we go out to 6 feet, and it seems unusual to me to -- COMMISSIONER ABERNATHY: Isn't that in most cases because the width of the waterway is the limiting factor, and we're holding them to the very least they will intrude? And here you've got -- you couldn't possibly affect navigation at this point. COMMISSIONER RICHARDSON: You're right. So perhaps that's another criteria that should be feathered into our rules then. COMMISSIONER BUDD: It is. CHAIRMAN RAUTIO: But it is. Page 9 December 20, 2001 COMMISSIONER BUDD: There's another factor here in that we're looking at a boat lift and cradle, which adds to the required depth for the boat. And we've heard through previous petitions that it is more environmentally appropriate to pull the boat out of the water than to leave it in the water. And we're able to approve docks that -- and in more shallow water, but the owner is prevented from using a cradle. So in this case on this dock, we could probably squeeze it in, shorten the dock, remove the cradle, achieve some mathematical desire, and have a less desirable environmental impact. COMMISSIONER RICHARDSON: Okay. CHAIRMAN RAUTIO: Does that explain it? Would you care to make a few other comments? MR. SPILKER: No, thank you. Just answer any -- CHAIRMAN RAUTIO: Do we have any questions, additional, of the petitioner? Do we have any registered speakers? MS. MURRAY: No registered speakers. CHAIRMAN RAUTIO: Having no registered speakers, I'm going to close the public hearing. What is the pleasure of the board? COMMISSIONER ABERNATHY: I make a motion to approve Petition CU-2001-AR- 1255. COMMISSIONER WOLFLEY: I'll second that. CHAIRMAN RAUTIO: I have a -- MR. GOCHENAUR: Madam Chairman. CHAIRMAN RAUTIO: -- motion by -- MR. GOCHENAUR: That's the wrong -- COMMISSIONER ABERNATHY: Excuse me. It didn't sound like -- CHAIRMAN RAUTIO: We'll try that one again here. COMMISSIONER ABERNATHY: It didn't sound like a boat Page 10 December 20, 2001 dock. BD-2001-AR-1551 I'll move approval of. CHAIRMAN RAUTIO: We have a motion by Mr. Abemathy and a second by Mr. Wolfley. Do we have any discussion? COMMISSIONER YOUNG: Subject to the stipulations listed. CHAIRMAN RAUTIO: Yes. That is part of the recommendation from staff. Is that correct? COMMISSIONER ABERNATHY: That's fine. CHAIRMAN RAUTIO: Okay. Mr. Wolfley, you agree as a second? COMMISSIONER WOLFLEY: Yes. CHAIRMAN RAUTIO: Thank you. Do we have any discussion? All those in favor say aye. (Unanimous response.) CHAIRMAN RAUTIO: Those opposed, same sign. (No response.) CHAIRMAN RAUTIO: Motion carries. Thank you. Next item for public hearing is CU-2001-AR-1255, Conditional Use 13 in the "E" estates zoning for an essential service communication tower. All those wishing to give testimony today on this particular item, please stand, raise your right hand, and be sworn in by the court reporter. (The speakers were sworn.) COMMISSIONER WOLFLEY: Nice tie. MR. BELLOWS: Thank you. Good way to start the day. Good morning, Commissioners. For the record, I'm Ray Bellows with the current planning staff presenting the petition for an essential service for property located -- as you can see on the location map on your visualizer, it's located on the south side of Golden Gate Boulevard, and it's on the west side of 13th Street. It's basically at the existing county fire station location site. They're proposing an Page 11 December 20, 2001 essential service for Section 2.6.35.6.3 of the Land Development Code. It's basically Conditional Use 13 of the estates zoning district allowing for communication towers. The subject site is located in the estates designated area on the future land use map. Essential services are allowed as part of community facilities within this land use designation. The master plan of the site shows the existing -- a fire station structure. The proposed flagpole communication tower will be located in back. We have a -- basically a little elevation schematic showing the flag. The proposed tower will be 145 feet tall. We'll have our county emergency management system as the primary carrier, but they will have the ability to lease out space to private things such as Nextel. We have Don Murray here, who's more of an expert on the communication aspects of it, and I'll be happy to answer any questions that you might have. CHAIRMAN RAUTIO: Okay. Before I ask questions of staff, do we have any disclosures on this item? No disclosures? Questions of Mr. Bellows. COMMISSIONER STRAIN: ! have a question I asked Marjorie about yesterday, and I notice she's brought Tom with her. MS. STUDENT: And I spoke to Mr. Palmer, and he is here because he's worked extensively with the tower ordinance. So Mr. Palmer's here. COMMISSIONER STRAIN: The specific question I asked was that -- Section 2.6.35.61 refers to exceptions to put towers in estates zoning for conditional use applications by a government for a governmental use. And my only question was since this tower's being put in for private cellular phone leases and use, does it then apply, or does it not become an essential use any longer? MR. PALMER: Well, the controlling provision is 2.6.35.6.3, essential services, which allows essential service towers to any Page 12 December 20, 2001 heighth except in the excluded districts, which does not include the estates. And the tower, in order to meet this criteria, must be either owned by a governmental entity or leased to a governmental entity whereby the control of a use of the tower is always by a government, in this case Collier County or one of its departments. The other criteria is that the tower -- the limitations on the tower -- all towers have a limited number of antenna, either because of wind loading or coaxial cable limitations, but something limits the number of antennas that can go on a tower. Fifty-one percent of that antenna capacity on that tower must be for governmental use, whether or not used by the government, but it must be reserved for governmental use. The governmental entity can allow 95 percent of that to be for governmental use or -- and no private use. But the governmental entity, at its election, can allow 49 percent of one of these towers to be rented out for nongovernmental antenna if they want to, but they're not compelled to. Nor is there any other -- that government that owns or leases the tower is not compelled to allow another governmental entity on that tower unless it wants to. Tower- sharing requirements, which run throughout this ordinance, do not kick in to a government or a private tower until the tower being applied for exceeds a height of 185 feet, in which case there are mandatory tower-sharing requirements. As this tower does not reach 185 feet, those provisions do not apply. Therefore, in this instance 51 percent of this tower -- at least 51 percent of this tower must be used by governments: The county, EMS, the sheriff, the school system, DOT, state agencies, what have you, federal government. Ninety-nine percent of it could be used for that. But the county can elect, if it wants to, to lease space on that tower, up to 49 percent of its capacity, to private enterprise, if it wants to, but it is not compelled tO. COMMISSIONER ABERNATHY: Is the county going to be Page 13 December 20, 2001 the owner of the tower? MR. BELLOWS: Correct. COMMISSIONER ABERNATHY: Why isn't the county the applicant? COMMISSIONER ADELSTEIN: Yeah. That's my question. MR. BELLOWS: The county will own it, but the builder of the tower will be Nextel. COMMISSIONER WOLFLEY: So you're saying the county is paying Nextel to build a tower for Nextel to use? MR. BELLOWS: I'm not sure of the exact arrangement. Mr. Murray can -- MR. MURRAY: For the record, Don Murray with Communication Development Services. The tower is being built by Nextel at Nextel's expense. There is an agreement -- Nextel does want to lease space back from the county on the tower, so a mutual agreement is being drawn up -- actually, it's drawn up and should be approved before the board shortly. But EMS is the primary user and the primary owner. Nextel would just lease space, and Nextel's building it. COMMISSIONER WOLFLEY: So Nextel's building it, and they'll have their facilities on it on a lease basis, and Collier County is going to pay for the tower construction. MR. MURRAY: Actually -- well, yeah. In a roundabout way, Nextel is paying lease the money up front, in advance, and other additional monies to help build it. COMMISSIONER WOLFLEY: Sweet deal. CHAIRMAN RAUTIO: I'm not sure that answered the question why they are the applicant. MR. MURRAY: I'm son~'? CHAIRMAN RAUTIO: I'm not clear that that answered the question why Nextel or Communications Development Services Page 14 December 20, 2001 actually is the applicant. That's somewhat different. MR. MURRAY: My company represents different tower companies, and because Nextel is one of our clients, I'm representing Nextel and EMS. And I've stated that on the application, I believe. So it's -- I'm the planner in charge, the project manager. CHAIRMAN RAUTIO: Commissioner Adelstein. COMMISSIONER ADELSTEIN: Now, the other three stations that go on this line, the income from them will go to whom? MR. MURRAY: The income -- we -- Nextel will lease space from EMS, and that income will go back to the county. COMMISSIONER ADELSTEIN: But the statement says that there are possibly three other communication companies that will lease space on this. MR. MURRAY: That's just additional space. They can lease it to other governmental agencies. COMMISSIONER ADELSTEIN: The question is, who would get the revenue from that, outside leases? Is that the county? MR. MURRAY: I believe the county gets the revenue from all the outside leases. COMMISSIONER ADELSTEIN: Does anybody know for certain? MR. PALMER: Yes. I've looked at that lease. That's the -- that is the condition. It's going to be distributed by two agencies over at these facilities, and there's been some -- a lot of negotiations about that. But all rental income on the tower by whomever is leasing it, either another governmental entity or a private enterprise, pays rents to the county. COMMISSIONER ADELSTEIN: Okay. CHAIRMAN RAUTIO: Does that answer your questions, Commissioner Adelstein? COMMISSIONER ADELSTEIN: Yes. Page 15 December 20, 2001 CHAIRMAN RAUTIO: Commissioner Strain. COMMISSIONER STRAIN: You've mentioned the cost. The county's building it, but Nextel's paying some advanced fees. Is there any out-of-pocket cost to Collier County for this tower? MR. MURRAY: No, there's no out-of-pocket cost to Collier County. Nextel will build it. Nextel will give it to EMS, and EMS will lease it. And all Nextel is asking for is lease -- lease space. COMMISSIONER STRAIN: Okay. Your company does a lot of these. Is there any problems with proximity to other towers? And if there is another tower a few hundred feet away, is there a reason why you couldn't use that tower when there's space available on it? MR. MURRAY: Yeah. In more rural areas, height becomes more of an issue. And EMS needed a high -- actually, this is the borderline. They really would like to go a little higher, but 145 feet would allow adequate line of sight between other EMS stations. And other companies wanting to colocate -- of course your service gets less in quality. So there is a benefit for Nextel to provide this tower to the EMS. EMS is the primary user, but then Nextel also gains additional height advantage. COMMISSIONER STRAIN: And then my other question, though, was if there is another tower close by and the government needs -- and EMS needs the location -- I'm not too concerned about Nextel; that's their problem. But why wouldn't we utilize the tower right across the street? MR. MURRAY: To -- to gain the height advantage, a little bit of a height advantage for EMS. They need to be at the top part of the tower. And whether EMS builds it or Nextel builds it and they lease it to Nextel or any other company is just secondary. But I also wanted to answer the other question you had about interference. The interference -- the engineers will guarantee -- the Page 16 December 20, 2001 FCC also requires that there's no interference to the other towers and the other users. COMMISSIONER STRAIN: My concern over the use of the other tower for a governmental purpose is that ifNextel was building this tower, it wouldn't be an essential use stuck in the middle of a residential area. That's the difference. They'd be in an industrial park. And the only reason it's getting into a residential area is because it's being classified as an essential use, and it's being then leased privately. And while that happens and I understand it, I would think you'd want to maximize the use of existing towers to minimize the impacts due to essential services. And that's where my comments are coming from. MR. MURRAY: Okay. I'm not the engineer, but from what I understand, that tower -- the top three or four parts of the tower were filled, so this gives an advantage to EMS and to Nextel by giving them additional height. And I can show you how the coverage is up there right now or with the map that's in your packet. COMMISSIONER STRAIN: Well, I think the owner of the other tower is here, so at least we can find out what availability there is on that tower right from him when he speaks. I know he's registered. CHAIRMAN RAUTIO: Commissioner Wolfley, do you have a question? COMMISSIONER WOLFLEY: Well, I possibly will wait for the owner of the other tower because my questions are about the other one. CHAIRMAN RAUTIO: Any other questions? Okay. So you're the applicant. Do we have any registered public speakers? MS. MURRAY: Just Don Murray, but he obviously already spoke, so no others. Page 17 December 20, 2001 COMMISSIONER STRAIN: Chief Peterson put an application in. CHAIRMAN RAUTIO: I'm sorry. We need to move along here. Who is it that may wish to speak, or who would you like to ask a question of, Commissioner Strain? COMMISSIONER STRAIN: Well, Chief Peterson had put an application in and left it on the desk, so I assumed he was going to be speaking. Is that still -- CHAIRMAN RAUTIO: Why don't you come forward here and -- MS. MURRAY: I don't have one, but if he wishes to speak, he can certainly come forward. CHAIRMAN RAUTIO: And we'll ask you some questions. CHIEF PETERSON: Good morning. For the record, my name is Don Peterson. I'm fire chief for Golden Gate Fire Control and Rescue District. I did lay a slip on somebody's books over there, but that's okay. The reason I was here this morning was to share with the board -- I did send a letter on this earlier in the week, and our particular issue or the concern that brings me here -- and I'll just read one of the paragraphs here -- is due to the proposed location of this communications tower being in the area of 450 feet plus or minus from our existing tower, I would like to request on behalf of the fire district the following: If any of the carriers proposed in the future on the proposed county tower causes any interference to our existing tower or the users located on it, current and future, Collier County and the users of the proposed new tower shall be responsible for all costs associated with mitigating the interference caused to our tower and its -- and its users. And that's -- that's why I was here this morning. I know there's some FCC issues and regulations out there. But historically dealing Page 18 December 20, 2001 with -- for the last two years with some of the cell carriers, it's easier if we can get the things in writing up front than it is when they're actually out in the field to get them to mitigate some of these things. So that was a concern of the fire district, was interference issues. CHAIRMAN RAUTIO: Chief Peterson, are you saying that there is a likelihood that there will be interference, and that's why you want to make sure this is inserted into the documents? CHIEF PETERSON: There's always that possibility, and that's why I was asking for it up front. Nextel historically, from across the country, has caused interference with emergency services, and that's what I bring -- why I bring that forward. MR. MURRAY: The -- Nextel has a wide range of channels they use. And engineering's not perfect. Nextel's not the only one that's caused interference. But we -- Nextel will shut down and correct the situation if there is one, but typically they do the radio frequency engineering up front to help ensure that there's no interference. And they're very responsible, and they will do that, and they've worked on a number of sites in other counties. CHAIRMAN RAUTIO: So you're willing to accept -- MR. MURRAY: Yes, ma'am. CHAIRMAN RAUTIO: -- the restriction that he's placing here. MR. MURRAY: Yes. Nextel/EMS has no objections to that restriction. CHAIRMAN RAUTIO: Okay. And, I believe, Commissioner Wolfley. COMMISSIONER WOLFLEY: I'm pretty familiar with that interference issue, since in another county a cable company that I work with had a problem with a pager concern putting up a tower. And, of course, they promised it would interfere with nothing. Well, we ended up having to take channels off the midband range because they were unwatchable, and they refused to do anything about it, and Page 19 December 20, 2001 these restrictions were put on them. Now, Nextel's a much larger company than this pager company, and that is a big concern of mine, I mean, because it affected me, and still nothing was done years later. MR. MURRAY: Don Murray here again, for the record. The FCC regulations require that we don't interfere with -- with those communications. And I'm not sure if-- what that situation was there, but I do know that -- COMMISSIONER WOLFLEY: Similar. MR. MURRAY: -- in a few cases where Nextel, in particular, had caused interference, it was because of some problem with the equipment, which happens. And they shut down immediately and went back and corrected the situation, and everybody was happy. CHAIRMAN RAUTIO: Commissioner Abernathy. COMMISSIONER ABERNATHY: Don, how many feet are you talking about that EMS gains on the tower you're advocating as opposed to the one that's already there? MR. MURRAY: I -- I'll defer to -- COMMISSIONER ABERNATHY: I see Diane Flagg is here. MR. MURRAY: -- Diane Flagg from EMS. COMMISSIONER ABERNATHY: She can tell us. MS. FLAGG: Good morning, Commissioners. Diane Flagg with EMS, for the record. EMS has worked on putting together a hard-copy dispatch program. What that means is that when 911 calls come in to the stations presently, the call comes in to the sheriff's office. And then via radio, they dispatch the call to the unit, and there's a time delay there. Plus because it's vocalized, there's mistakes made, potentially, with writing the address down. What this program does is it puts us at 145 feet, which is where we need to be to hop to the stations countywide so that when a 911 call comes in, the call will immediately print out on a high-speed printer at each of the stations throughout Collier County. The reason Page 20 December 20, 2001 that we've gone to a wireless system as opposed to -- or we seek to go to a wireless system as opposed to using T-1 lines is that T-1 lines would cost $20,000 a month or $240,000 a year. This wireless system, using this tower -- and this tower is an important component of the countywide wireless system -- is that once it's up, there is no additional monthly cost for providing that hard-copy dispatch. In addition, in talking to some of the fire districts, they've had trouble with using the T-1 lines and the hard-copy dispatch. It's not reliable. Whereas this wireless system, we've run multiple tests with the sherift~s office using a site out in Marco, and it's been extremely effective. So where those stations are that we're colocated with the fire districts, we will also be able to save them the cost of the thousand dollars a month per station, and they will also have access to using this wireless system. COMMISSIONER ABERNATHY: If you answered my question, I missed it somewhere. COMMISSIONER ADELSTEIN: Yeah. I did too. COMMISSIONER ABERNATHY: The question was, how many feet on the tower, altitude, are you gaining by not using the existing tower? You're going to 1457 MS. FLAGG: Hundred and forty-five feet. COMMISSIONER ABERNATHY: What could you achieve on the other? MS. FLAGG: If the other ~- my understanding when they checked it out -~ I don't know the heighth, but it was discussed that 120 was the only space available. Maybe Don knows that. COMMISSIONER ABERNATHY: Well, how many miles of range do you gain between 120 feet and 1457 Is it significant? MS. FLAGG: Yeah. CHAIRMAN RAUTIO: It has to be on the record, so you'll have to stand up and answer her. Chief, can you answer Page 21 December 20, 2001 Commissioner Abernathy's concern? CHIEF PETERSON: I believe -- Don Peterson. The -- I believe it's going to be in the area of 110 to 115. The tower itself is 165 feet, and we have three carriers below that. And I'm not -- without having an engineer look at it of what kind of antennas and things they use, they're probably in that area of 120, 115. COMMISSIONER ABERNATHY: No. That's how high it would be. All right. What's the difference between your transmission -- your range of your transmission? How many miles out does it go -- those 25 feet, how much do you gain in range? CHIEF PETERSON: Not being an engineer, it's my understanding that the -- the type of system that they're installing is -- is similar to a microwave. It's point to point, that you're using some type of dish or directive. They can share that with you. But if it's point to point, it's not -- omni -- omni becomes a heighth issue. Point to point, it depends on what's in the middle of your path. If somebody builds in that path, that's where it's critical. COMMISSIONER ABERNATHY: Well, Diane, when you perceived the need for this tower, did you go looking for Nextel, or did they just happen to appear on the scene? MS. FLAGG: Our option was to have the county expend the funds to put up a tower or to see if we could have someone else fund the tower and put it up for us. COMMISSIONER ABERNATHY: So you approached Nextel? MS. FLAGG: Yes. We approached various people and asked if they would be interested in building a tower for the county. CHAIRMAN RAUTIO: Commissioner Strain. COMMISSIONER STRAIN: I've got a question of Don. Could you provide room for EMS's needs -- not Nextel's, EMS's needs -- on your tower? CHIEF PETERSON: That I would need an engineer to say yes Page 22 December 20, 2001 or no to. I don't know what all the antenna issues are that they have. Plus we would have -- somehow we would need to -- the buildings are separated by approximately 300 feet. We're on opposite sides of the street. So somehow you'd have to connect it from the -- it's approximately 435 feet from our tower to the northeast comer of their existing building, so somehow if you did that, you'd have to have something to send that over to them. COMMISSIONER STRAIN: Well, I mean, you know I'm familiar with that site, and I can tell you that a sleeve under the road would be easily attained there. My concern is that -- you know, and there's a sheriff station someday going to possibly be in that area. And if every agency decides that they want a tower, we're going to have a field of towers in that residential area of Golden Gate Estates. It would sure be nice if the agencies could combine efforts and use one tower and not deal so much with the private communications agencies or companies. They need to be providing just a minimal amount of towers in residential services. So that's the point. If you have a way of possibly fitting EMS on there, I would hope that it would be accommodated. CHIEF PETERSON: Like I say, I was only here on the interference issue, so to get more detailed than that, we'd need some engineers to share what -- how that could be physically done. CHAIRMAN RAUTIO: Just for me to clarify, did you-all from the fire district have discussions with EMS about using the tower? CHIEF PETERSON: No. CHAIRMAN RAUTIO: needed? MS. FLAGG: Correct. It became an additional tower that you When the engineers looked at the heighth that we needed to do the wireless project, they looked at the Golden Gate tower and said that this heighth that we needed was not available. So that's why we looked at another alternative. And to Page 23 December 20, 2001 answer Commissioner Strain's question, the S -- the current location of the EMS station is future planned for an SO addition. So there would not be -- SO would be using that same tower. Wherever agencies -- emergency services agencies are colocated, these tower -- these towers will provide them the opportunity to use. CHAIRMAN RAUTIO: Commissioner Young, did you have a question? COMMISSIONER YOUNG: I guess I was going to follow through. And to our award-winning Diane Flagg, did you really investigate the possibility of raising the existing tower? MS. FLAGG: The existing tower -- when the engineers looked at it, we knew what heighth we needed, which was 145 feet. And the engineers said that this space was not available on that tower. I didn't ask them to see if they could move people around on that tower because I -- I assume that they all have leases with Golden Gate Fire District. CHAIRMAN RAUTIO: I just wanted to clarify, is this other tower really 165 feet? I wrote that down when I heard someone make that comment. So we're looking at 145 tower feet -- tower -- 145-feet tower today, maximum height. And the one that you're discussing is 165, but the -- it's already leased out in the area that they -- EMS needs? CHIEF PETERSON: At 145 feet, that's correct. We've got a -- we've got a lease at that space. CHAIRMAN RAUTIO: Okay. I think Commissioner Wolfley. COMMISSIONER WOLFLEY: Well, if you could answer Commissioner Young's, can the existing 165-foot tower be increased in height -- anyone investigate that -- at much lower cost? That was my first question. CHIEF PETERSON: Nobody's asked that question up to this point. Page 24 December 20, 2001 CHAIRMAN RAUTIO: And it would -- it would stop the proliferation of towers that Mr. Strain has talked about. MS. FLAGG: That -- I don't know if permitting -- maybe the county attorney could help us with that. I don't know if you can go higher than 165 feet. COMMISSIONER WOLFLEY: One eighty-five is what he said. MS. FLAGG: Okay. MR. PALMER: No, there is no legal prohibition of raising the height of that tower above 165 feet. That's essentially an engineering question, whether or not -- sometimes when you make those kinds of adjustments to an existing tower, it would cost as much as to -- as to build a new tower, even on the same site because wind loading and -- most of the things are sort of maxed out. If you're going to raise the height of the tower, then all kinds of engineering ramifications flow from that. But legally there is no cap at 165 feet for these types of towers at these types of locations. CHAIRMAN RAUTIO: It's very cost -- go ahead. COMMISSIONER WOLFLEY: And then my second question was, 20 feet is going to make the difference of, quote, life and death on this deal? In other words, they can find a place at 120, and you're -- I don't think you can go up to the very top of the 145-foot tower, so you're at, like, 140 let's say. Twenty feet is going to make the difference on a point -- point-to-point situation? MS. FLAGG: Yes, sir. And actually, we are at the very top of the 145 feet in the way that -- we are at the very top of this tower. CHAIRMAN RAUTIO: Commissioner Strain. Then I do have another question. COMMISSIONER STRAIN: There is -- Don, you said that the 145 was taken. Is there an increment between 145 and 165 that could Page 25 December 20, 2001 be used that isn't taken? Do you know? Has anybody asked? CHIEF PETERSON: Nobody's asked. But primarily 10 -- approximately 150 feet is where the first -- first cell tower starts, and there's three of them that fall below that. And the antennas are approximately 10 feet long. So we'd have -- we'd have to go out and do some measuring there, but we'd definitely be under 145 feet. CHAIRMAN RAUTIO: Commissioner Strain. COMMISSIONER STRAIN: I'm just wondering if maybe this could come back to us and you could spend more time looking at joint use of the existing tower to save more towers in a residential area. And maybe the applicant would be willing to consider that if that's an option. I don't know what your time tables are or how pressing this is to have immediately. But maybe our next meeting, if you could just explore this further and then put it to bed so that the neighborhood's not getting more towers. I'm just wondering -- I'm throwing it out on the table as a possibility. CHAIRMAN RAUTIO: I thank you for doing that because I have two observations. The first is this type of discussion makes it extremely difficult for someone like myself who doesn't understand this. I should have something in my packet that I could review or at least know that these discussions were held. That makes me somewhat uncomfortable. The second question there, then, was to our attorney. And we have a conditional use petition -- which, by the way, members, is tucked in your packet, and you'll have to tear it out if you sign it today -- which one of the criterion, A, B, C, or D, are going to create a problem for those of us that are wondering about the interference issues. And I'm not sure I can understand what I have to say no to. MR. PALMER: Let me address the question of interference. Any Johnny-come-lately tower that comes in with geographical or electric proximity to an already existing tower must accommodate to Page 26 December 20, 2001 the already existing tower. The later tower can never electrically interfere with a preexisting tower. That's a matter of the ordinance and a matter of FCC regulations. Therefore, we always require that the new tower applicant agree that if there's any interference from this new tower with any other tower around there, they must solve the problem. CHAIRMAN RAUTIO: Then why did Chief Peterson have to stand up here and read that to us? I'm missing something here. MR. PALMER: Well, I'm not sure if Chief Peterson was -- was cognizant of that already existing, generally applicable legal requirement. That is a matter of law. The other thing is with this 165-foot tower, there is a possible cap based on separation distances from the nearest residential properties. That, in and of itself, may limit the height of which this 165-foot tower could possibly be raised. I don't know whether that's maxed out or whether there's some latitude there. But the top -- those distance separations limit the height of any tower in any of these districts. CHAIRMAN RAUTIO: Okay. So perhaps the pleasure of the board here -- do we have any registered speakers other than those who have come up? MS. MURRAY: No. But I think Ray Bellows needs to -- CHAIRMAN RAUTIO: Okay. We'll let Ray talk, and then I want to hear what your thoughts are here on Commissioner Strain's suggestion to continue this. MR. BELLOWS: For the record, Ray Bellows. On a different issue -- on a different tower, the issue of extending the height of an existing tower was raised, and my discussions previously with staff engineers is that it's almost impossible because the towers are designed for a specific height. So to try to reengineer them is almost impossible, so you really can't extend the height of an existing tower without basically tearing it down and starting over again. Page 27 December 20, 2001 Now, there are some distance requirements, too, as our county attorney had mentioned, that may or may not be a problem. Considering the fact it couldn't be raised, we really didn't study that aspect of increasing the height of the other tower. CHAIRMAN RAUTIO: Okay. Mr. Wolfley. COMMISSIONER WOLFLEY: If this thing is continued -- which I wholeheartedly agree with -- we do need information. I want to -- it sounds great on paper that they'll fix it if it interferes. But why even go there? Why don't we make it -- let's see a frequency diagram, where all these communications entities are going to have their frequency range. Then we can decide on black and white before we make a decision that, in fact, it's not going to interfere because it's too far away frequency-wise. I mean, you know, when you have a television or a radio station, that is certainly in the cards, and you've got to do that. And why don't we do that here? COMMISSIONER RICHARDSON: And it seems, to staff, we have another question which I just wanted to rearticulate, and that is it doesn't seem that there's been sufficient exploration of whether there is actually space on the 165-foot tower. I mean, we've talked about the possibility of extending it, and I respect your comments. But we haven't heard definitively whether anybody's even looked at whether there's space available there. MR. BELLOWS: Yeah. I'd just like to also point out, I've taken over this project at the last minute, and the previous planner may have addressed those issues. I just could not find any correspondence to corroborate any other position. COMMISSIONER RICHARDSON: Close the public hearing? CHAIRMAN RAUTIO: Close the public hearing. What is the pleasure of the board? COMMISSIONER STRAIN: I -- pending no action from the applicant to postpone this, I make a motion that we deny this Page 28 December 20, 2001 application for Conditional Use CU-2001-AR- 1255. MS. STUDENT: And what -- of the four criteria that you have -- CHAIRMAN RAUTIO: That was my original question. COMMISSIONER RICHARDSON: Compatibility with the adjacent properties. It's clear. COMMISSIONER STRAIN: Well, that -- D would be one automatically. I would have to agree with that. COMMISSIONER BUDD: Second. CHAIRMAN RAUTIO: We have a motion by Commissioner Strain, a second by Commissioner Budd to deny this conditional use petition. Do we have any further discussion? COMMISSIONER ABERNATHY: I think the remedy's draconian, but since nobody seems to want to budge, I'm prepared to support it. CHAIRMAN RAUTIO: Did you care to -- I'll recognize you. MS. FLAGG: I don't -- I think we're unclear here. We never said that we wouldn't be willing to go back and take a look at another tower. The information that we've received indicated that there was no space on the tower at the heighth we needed, but we're happy to go back and do that again. CHAIRMAN RAUTIO: Right. And you're representing EMS. MS. FLAGG: Yes. CHAIRMAN RAUTIO: And would your applicant want to continue this? I mean, we've already got a motion and a second on the floor, and we're in discussion. MR. MURRAY: Well, of course, we'd rather go on, but we would accept a postponement to come back with additional information. CHAIRMAN RAUTIO: Well, then we'd have to have our -- MS. STUDENT: I think that motion has to be -- if you're going Page 29 December 20, 2001 to continue it, you're going to have to withdraw -- COMMISSIONER STRAIN: I was just going to suggest, I'll withdraw my motion on the condition that this will be continued. COMMISSIONER ADELSTEIN: Withdraw your second. CHAIRMAN RAUTIO: And the second has agreed to withdraw the motion. COMMISSIONER RICHARDSON: Somebody blinked. CHAIRMAN RAUTIO: Somebody blinked. Now we need a motion to continue; is that not correct, Ms. Student? MS. STUDENT: That's correct. COMMISSIONER STRAIN: I'll so move. COMMISSIONER BUDD: Second. CHAIRMAN RAUTIO: We have a motion by Commissioner Strain, a second by Mr. Budd to continue this to -- COMMISSIONER ABERNATHY: Do we need a time certain? I don't know if anything's going to get done in the next two weeks over Christmas. Why don't we -- COMMISSIONER STRAIN: Let's say by our February meeting? Would that be -- COMMISSIONER ABERNATHY: Unless they want to come forward earlier. CHAIRMAN RAUTIO: Is there an issue of notice to the public for continuation? MS. STUDENT: Well, if it goes beyond the five weeks, it has to be readvertised. But I'm not -- let's see. COMMISSIONER ABERNATHY: Today's the 20th. How about the second meeting in January? That should be -- that's five weeks. MS. STUDENT: That should be okay. COMMISSIONER STRAIN: That would be fine. CHAIRMAN RAUTIO: Okay. So we are discussing Page 30 December 20, 2001 continuing Conditional Use Petition CU-2001-AR- 1255 to the 17th of January. Any further discussion? All those in favor of the motion say aye. (Unanimous response.) CHAIRMAN RAUTIO: Those opposed, same sign. (No response.) CHAIRMAN RAUTIO: Motion carries. We'll see you all back here on the 17th of January. MS. MURRAY: Commissioner Rautio? CHAIRMAN RAUTIO: Yes. MS. MURRAY: I have a couple of handouts, and I'm sorry I didn't hand them out earlier. But your findings of fact for your petitions, we've separated them out for you. I apologize. They were inadvertently not separated in your handout. So on the remaining petitions, here they are. Let me hand them out to you so you don't have to tear them out of your page. CHAIRMAN RAUTIO: Thank you. That would be very helpful. (A discussion was held off the record.) CHAIRMAN RAUTIO: Just for clarification for the board, you do not need to sign your conditional use petition sheet on the last item. Okay. Moving right along to Public Hearing CU-2000-AR- 1411 (sic), the essential services for a conditional use of a fire station. All those wishing to give testimony today on this particular item, please stand, raise your right hand, and be sworn in by the court reporter. (The speakers were sworn.) CHAIRMAN RAUTIO: We -- this would be an appropriate time to have disclosures by the board. COMMISSIONER STRAIN: I spoke to the applicant, Kenny Page 31 December 20, 2001 Rodgers, concerning my concern over the size of their parcel. Marjorie Student has researched that and has responded to me, and I guess later, as the meeting goes on, I'll let you know what that was about. CHAIRMAN RAUTIO: Any others? Coming up to myself, I'd like to disclose that I had a conversation with Chief James Tobin of the North Naples Fire District with reference to the history of the purchase of the property and the unique aspects of this particular location. I had a couple of discussions with Assistant Chief Ken Rodgers with reference to the time frames, the access points in the median opening, and the ST designation on this particular property. I had a lengthy discussion with Jeff Perry of-- transportation planning manager of WilsonMiller with reference to the time frames, the access and median openings, the ST designation, and the aspect of odor that the station might have created, which is in our executive packet. Any further disclosures? Okay. Mr. Bellows. MR. BELLOWS: For the record, Ray Bellows. The subject site is located on the west side of the future Livingston Road Extension. It's about a mile and a -- almost 2 miles -- a mile .75 north of Immokalee Road. The surrounding developments include the Mediterra development to the north, Madeira to the south, and the project is basically surrounded by vacant agricultural zoned land. The petitioner is requesting a conditional use for an essential service to allow for a fire station. I have a master plan here that basically shows the design. As you can see, much of the site is buffered with preserve areas and ST lands. The ST is in the dark color, more ST in the dark color. ST represents special treatment. Special treatment overlay requires specific environmental review and permitting if developed. The petitioner is buffering those and keeping out of the ST areas and leaving those as preserves. The Page 32 December 20, 2001 actual site location is in the -- in the northern end of the site. Basically this is a north/south arrangement. CHAIRMAN RAUTIO: Mr. Bellows, while you're pausing there, I need to also disclose that I received a fax from Mr. Perry at WilsonMiller with reference to the median opening that looks so much different and much more detailed than the one that you have on the visualizer. Do you have this particular map? MR. BELLOWS: I do not. CHAIRMAN RAUTIO: This might be helpful to you when we get into the discussions. I don't know if they've brought them today or not for all the board members, but we can probably use it on the visualizer. Thank you. MR. BELLOWS: For a conditional use, a conceptual master plan is typically provided, and this is the master conceptual plan for the conditional use. The entry access point is on the north end of the site. There will be a median opening that the transportation department has directed to be for emergency access only and with a directional light, signalization process for emergency services vehicles. The project has been deemed compatible with adjacent land uses. Basically we're dealing with vacant agricultural lands surrounding this, but it is projected to be future residential area and development, and fire services are needed in this area for those future dwelling units when they come on-line. The subject site is located within the urban residential area on the future land use map, basically up in this area here. Urban residential allows for these types of emergency services as community facilities. So, therefore, it is -- this application is consistent with the future land use element. The project will not generate traffic that exceeds any significance test and will not have an adverse impact on Livingston Road. The site has been designed to Page 33 December 20, 2001 accommodate emergency vehicles entering and exiting. Parking has been provided, is sufficient, and meets code requirements. Staff has not received any letters for or against this petition. H1 be happy to answer any questions that you might have. CHAIRMAN RAUTIO: Commissioner Abernathy. COMMISSIONER ABERNATHY: Ray, I'm curious as to just how much traffic this facility will generate. On the previous petition, it was stated that an inert communications tower was going to generate five to ten trips per day. Now, here you've got a crew of fire personnel, and there's a change every 24 hours, so that's coming and going. Somebody's going to go out and bring in Chinese for lunch, and another guy's going to go out and bring in ribs for dinner. Somebody's got to get dog food for the Dalmation and so on and on and on. How many trips is all that going to amount to? Doesn't the trip generation manual give you any guidance on that? MR. BELLOWS: Yes. There are some trip generation information. And we have our transportation expert here, and H1 gladly let her answer that. COMMISSIONER ABERNATHY: My question, really, is when is a -- only generate a few trips per day, what is few? COMMISSIONER RICHARDSON: I suppose they're going to answer a fire once in a while too. COMMISSIONER ABERNATHY: Or false alarm, I think, is what most of them are, but be that -- yeah, they answer them. Dawn. MS. WOLFE: Good morning. Dawn Wolfe, transportation planning director for the record. We have reviewed the potential site traffic impacts which would generate between approximately 40 to 60 total trips per day. As this section of Livingston Road is programmed to be six laned, that is a very diminimous (phonetic) amount of traffic that would be added in there. And under the Page 34 December 20, 2001 guidelines of a restrictive access in and out of there for the purposes of emergency services, it did not meet the significance test in regards to compliance with the growth management element because of the low number in comparison to the capacity of the road. COMMISSIONER ABERNATHY: Well, that's fine. That's a conclusion that you've drawn after doing that analysis. It's more helpful to us if you give us the facts upon which -- or that Mr. Bellows gives us the facts upon which that analysis was based, and we can make our own decision as to whether that's few or not. So I would prefer it be spelled out for us. MR. BELLOWS: I'll be glad to make that -- sure that it -- future staff reports that we have the exact traffic count in there. I think in this case a traffic impact statement was waived because during the preapplication meeting, their traffic engineers basically indicated the number of trips, and it did not trigger a traffic impact statement requirement at that time. COMMISSIONER ABERNATHY: I'm relatively comfortable with that, but I was absolutely shocked that this transporta -- this radio tower was going to generate ten trips a day. I don't know what in the world for, but that's what caught my eye. CHAIRMAN RAUTIO: Thank you. Commissioner Strain. COMMISSIONER STRAIN: I just want to -- for the record, I had talked to Marjorie Student earlier about a concern I had seen with this application in the fact that a conditional use in an ag requires 5 acres. This was shown at 3.4. It tums out that originally it was a 5- acre tract, and through county acquisition it was reduced to 3.4. And, therefore, it does qualify for the conditional use as a nonconforming lot; is that correct, Marjorie? MS. STUDENT: Yes. That's based on facts that I was given and had worked on this quite -- probably at the end of the summer, beginning of fall. But there's a section in our code, 2.1.13 -- and I Page 35 December 20, 2001 discussed this with Mr. Strain -- no lot, even though it may consist of one or more adjacent lots of record, or yard existing at the effective date of this zoning code shall thereafter be reduced in size, dimension, or area below the minimum requirements set forth herein, except by reason of a portion being acquired for public use in any manner, including dedication, condemnation, purchase, and the like. And it's my understanding that that was -- that acreage was required as part of the Livingston Road project, so it would fit these criteria. COMMISSIONER STRAIN: Thank you. CHAIRMAN RAUTIO: And just as an added comment, to remind staff that in the future it would be nice to at least address this up front. And I recognize, Mr. Bellows, that you did not write this executive report -- summary and that you're just following up for a staff member who's no longer with us. MR. BELLOWS: For the record, this issue was discussed at the preapplication meeting, and an RLS was sent out at that time, and it was deemed it may be a nonissue. But I'll be glad to make sure that it is incorporated for future reference. CHAIRMAN RAUTIO: Okay. Any other questions? COMMISSIONER RICHARDSON: I'd like to hear from the applicant. CHAIRMAN RAUTIO: Yes. Let's hear from the applicant. MS. JENKINS: Good morning. I'm Anita Jenkins with WilsonMiller, the project planner on this petition, proudly representing the North Naples Fire District, our local heroes. With me today I'd like to introduce Chief Rodgers. Also with me from WilsonMiller, Jeff Perry, transportation planner; Adolfo Gonzalez, the engineer on the project; and also Bruce Lehman (phonetic), our environmental specialist. The project attorney is also here, Mr. John Cardillo. As Ray had mentioned, the subject property is within the urban Page 36 December 20, 2001 area, and we are seeking a conditional use on an agriculture zoned property. That is allowed -- these essential services are allowed per the LDC in any zoning district provided within the Land Development Code. Access to this property will be provided off Livingston Road. Our staff met with the Collier County transportation staff, coordinated the access to the property to meet the access management requirements for the multilane condition of Livingston Road. The environmental requirements are being met as required by the Land Development Code, preserving the ST areas, as you'll note in the lighter green shade on the master plan. A listed sur -- a listed species survey was also conducted on this project, and no species -- listed species were observed on the project. Water and sewer will be provided to the project from existing lines along Livingston Road. We'll be happy the team -- on behalf of the team, we'll be happy to answer any additional questions that you may have regarding this petition. COMMISSIONER ABERNATHY: I have one. CHAIRMAN RAUTIO: Commissioner Abernathy. COMMISSIONER ABERNATHY: Several places in here it's stated that the North Naples Fire District has a contract for purchase of the land. MS. JENKINS: Correct. COMMISSIONER ABERNATHY: Well, on the preceding page where it asked for who the owner of the land is, it's marked not applicable. Who's the owner? MS. JENKINS: Currently they have closed on the property. At the time of-- we were applying, they were under contract, and they have since then closed on the property. The North Naples Fire District is currently the owner of the property. CHAIRMAN RAUTIO: Do you have that date? Page 37 December 20, 2001 MS. JENKINS: I'll defer to the project attorney. CHAIRMAN RAUTIO: While he looks it up, do we have other questions? COMMISSIONER RICHARDSON: I have a question I'd like to -- to do with this compatibility question and, perhaps, a broader context. And that is just what function this station's going to perform. Perhaps Chief Rodgers can help us with this. MS. JENKINS: I can answer that. And if it doesn't answer it to the best of your ability (sic), we'll ask Chief Rodgers to elaborate. The closest fire station at this point is located on Immokalee Road east of 1-75. This station was carefully located -- or the subject property was carefully located within this North Naples area to serve the properties that are located north of Immokalee, south of Bonita Beach Road, west of 1-75, and east of Old 41. This is important for the fire district to maintain their four-minute response time for this rapidly growing area. And this is to serve the safety and needs of the residents that are locating in that area. COMMISSIONER RICHARDSON: I'm very familiar with this area. I used to live in Imperial Golf Estates, and one of the concerns we had at that time was the potentially slow response time for Imperial Golf Estates, which is essentially a long cul-de-sac only accessible off Highway 41. I do not see, however -- and this will link to another application we have today. I do not see that placing this station will assist in reducing the response time to the develop -- to the area you have described, which is east of 41, but yet west of this site, and particularly as it relates to Imperial Golf Estates. MS. JENKINS: It will be -- it will be an advantage when Livingston east/west is open. And that is -- is part of the programming for this station and the location of this station, is the advantage of Livingston east/west, to gain another east/west corridor and access to those properties. Page 38 December 20, 2001 COMMISSIONER RICHARDSON: Let me go directly to my problem, and that is there's no interconnection provided between Mediterra and Imperial Golf Estates. There will be no connection from east/west into Imperial Golf Estates. And I -- I just think this is very poor planning on -- collectively on all our parts not to proceed with the connections that are necessary, let's say for emergency purposes, to allow these response times -- potential response times to be more -- more responsive. MS. JENKINS: I understand your issue, and -- and those connections are -- are a matter of the transportation -- Collier County transportation section requirements for connections. COMMISSIONER RICHARDSON: Well, Imperial Golf Estates has a snubbed off connection going right into Mediterra, and Mediterra has no plans to make that connection, which ties your hands in terms of being able to use that as a cut through to get to -- you know, you could have an accident on -- at the front of the cul-de- sac going into Imperial Golf Estates, and you'd have, you know, a thousand people that wouldn't have access to emergency services. I just think we're not doing the right planning job here. And perhaps Ms. Wolfe would help us here with transportation because I -- you know, I'd like to support this, but I'd like to support it in the context of it performing the function that you've described that it will perform. CHAIRMAN RAUTIO: Right. But I also want to point out, too, that there have been actions taken by previous boards to limit the access in Imperial, and I'm familiar with some, which some of you may not be familiar. As you know, Airport Road stops where it stops, and a lot of that had to do with the developer of Imperial, which has created a headache for transportation. And I would like you to -- Dawn, to respond to this comment, but it may not be totally germane to the conditional use we're working with today. But I Page 39 December 20, 2001 certainly understand your concern, and I understand the issue of always making sure that these planned unit developments and various developments have access from other areas for emergency vehicles. MS. JENKINS: May I just address that in one more way prior to Ms. Wolfe's addressing it? Is that this petition cannot put conditions upon previously approved planned unit developments. So we could not make any changes to the Mediterra PUD or others in that area through our -- our petition. CHAIRMAN RAUTIO: Thank you. COMMISSIONER RICHARDSON: I would just observe, though, on that narrow point, that Phase 5 Imperial Golf Estates had a condition with that PUD that it would connect going eastward out of that to get over to Livingston Road, and that's the reason the road layout was specified the way it was and the way -- the reason why the emergency discussions were had with the stations at that point. And if we have a PUD commitment that's not being followed, that's another issue that I think planning services has to address and perhaps transportation could help us with. CHAIRMAN RAUTIO: Ms. Wolfe. MS. WOLFE: Dawn Wolfe for the record. That issue of the back entrance for Imperial Golf Estates I think was discussed at length during the Mediterra PUD hearings. There is a requirement -- and it's still contained within the document as it's even shown today as an item on this agenda -- for a 60-foot right-of-way for a secondary means of access both for Mediterra as well as for the continuation to ultimately connect and provide that back door to Imperial Golf Estates. Part of the problem with going forward and getting that connection now was there was no way to get it from Livingston over to Imperial Golf Estates because there were missing segments to the road. However, by placing those conditions on the Mediterra PUD, we are filling in some of those missing gaps. Page 40 December 20, 2001 COMMISSIONER RICHARDSON: Then I can go to bed easy -- rest easy tonight that this is going to be taken care of. MS. WOLFE: It depends on how you consider it being taken care of by -- COMMISSIONER RICHARDSON: Providing emergency services access between these two developments, from the conditional use that we're being asked to respond to today. MS. WOLFE: Ultimately there's a plan in place to allow that to occur coming off of Livingston versus having to go out and around to U.S. 41. How and when that physically occurs, we do not have a time line on that. CHAIRMAN RAUTIO: And I've lived here for 21 years and wondered when this issue was going to come to full force because of the fact that it just wasn't planned for, and there were certain trade- offs that were made years ago with reference to what you're speaking about in Imperial. So with reference to our conditional use here today, does that answer some of your questions, Commissioner Richardson? COMMISSIONER RICHARDSON: Yes. Thank you for your help. CHAIRMAN RAUTIO: Okay. We may have some -- do you have additional presentation? MS. JENKINS: I have an answer to your question. CHAIRMAN RAUTIO: MS. JENKINS: Closing. 2001. The other question. Closing. Closing occurred on September 28th, COMMISSIONER ABERNATHY: On August 30th your document said that ownership was not applicable. I mean, are we trying to shield some seller for some reason? MS. JENKINS: No, sir. COMMISSIONER ABERNATHY: Who was it? Page 41 December 20, 2001 CHAIRMAN RAUTIO: Perhaps the attorney can answer that question or enlighten us. Come to the microphone, please, identify yourself and -- MR. CARDILLO: Good morning, Commissioners. I'm John Cardillo, the attorney for North Naples Fire Commission. The closing took place September 28th. It took place over a period of about seven weeks because the owners, none of whom lived here, were all over the country. Now, why that application says ownership not applicable is not within my knowledge. I didn't prepare that. But I can tell you that one of their owners was in the Bahamas, and one was in the Midwest, and one was elsewhere. And it took several weeks to get the documents together to close the transaction. But it was not a nefarious hiding of who the owners were. I could probably find out who those people were. COMMISSIONER ABERNATHY: None of them are indicted coconspirators in Collier County? MR. CARDILLO: Not that I'm aware of. COMMISSIONER ABERNATHY: Okay. MR. CARDILLO: Thankyou. MS. JENKINS: Let me just clarify that as well. There's several different options that you have on these applications. What it says it not applicable, the name of the homeowner association or master association. There's the -- Section 2 of the application provides for the disclosure of interest information. And you have the opportunity in that section, Section 2.E, to identify the contract for purchase. And in the application the contract for purchaser has to sign an affidavit saying that they are the contract purchaser, which is provided. So there's several different opportunities that you have to disclose the -- the condition of the applicant, who they are. COMMISSIONER ABERNATHY: Yeah. But I'm looking at 2A, which calls for you to disclose who the owner is. Do you think Page 42 December 20, 2001 that only applies if the owner is the applicant? MS. JENKINS: Yeah. The -- we are representing -- who we are representing is the North Naples Fire District and not -- not owner of the property. The applicant is the contract for purchaser. CHAIRMAN RAUTIO: Is that clarified? Any other comments that you'd like to make before we have public speakers? May we have the first registered public speaker. MS. MURRAY: I just have one, and I'm never going to be able to say this last name, but it's LeRoy Huenefeld. CHAIRMAN RAUTIO: Is that person in the room? Oh, here he comes. I see. I thought you were heading for the door to go out. MR. HUENEFELD: You did very well with my name. It's LeRoy Huenefeld, H-u-e-n-e-f-e-l-d. I'm the property owner of the property directly north of where they're going to place the fire station, probably the person that's impacted the most. I just want to go on record as saying that after having driven around Naples and seeing fire stations and whatnot around, it is very difficult to have residential property abutting a fire station because of the problems with quiet enjoyment of the property. And I would only ask that if you're going to put this fire station in, you would allow my property to become commercial so that I could develop it. It is going into an intersection anyways because of the east/west road that goes from 1-75 all the way down. I mean, I'm not in the intersection, but I'm only 660 feet there. The property behind me is special treatment or it -- it has a lot of cypress on it, so I'm really the only piece of property in there that is affected. And it is going to be very difficult in the future for me -- and I've owned this property for a number of years -- to use it as anything now because of the fire station. I mean, I don't -- I would only ask any of you, if you had a house, would you like to build it next to a fire station? So I would please hope that you would at least consider Page 43 December 20, 2001 some sort of zoning in that area. I understand that there's other things going on. CHAIRMAN RAUTIO: Mr. Bellows, do you want to clarify that that's not part of what we're doing here today or -- we're having some technical difficulties, if you can hear us in the back. MR. BELLOWS: For the record, Ray Bellows. The subject site is located in approximately this area of the future land use map. This future land use map indicates where future rezoning can take place, and you have to be compatible with the uses allowed in that district. This is an urban residential district and would not allow for commercial uses. Commercial uses are to be located within activity centers, such as indicated in the red squares. So surrounding this property would not be eligible to receive any kind of-- COMMISSIONER RICHARDSON: Mr. Bellows, show me where the east/west roadway is on this, though. That's not shown. MR. BELLOWS: That's on this other map. COMMISSIONER RICHARDSON: Doesn't that change the dynamics? MR. BELLOWS: East/west roadway -- right now there's no activity center at that intersection. COMMISSIONER RICHARDSON: There's no road. MR. BELLOWS: That's true. But if I'm understanding the question, the east/west road, when constructed, that -- are you saying that there's a possibility for an activity center? COMMISSIONER RICHARDSON: Well, it seems that it changes the dynamics of the -- MS. STUDENT: That would -- that would have to be evaluated by staff in a comprehensive plan amendment, and then the -- any property owners there could come in and ask for a rezone to an appropriate zone consistent with the comp plan amendment, if one were to be processed. Page 44 December 20, 2001 MS. MURRAY: At this point in time, it would not be eligible for commercial uses. MS. STUDENT: No. All that's beyond this petition. CHAIRMAN RAUTIO: Right. And-- MR. HUENEFELD: As I say, I just want to go on record as saying -- because it is devaluing my property somewhat to put a fire station next to it, and I just want to go on record as saying -- and I'm not against a fire station. Anybody that would be would -- I mean, we all want to have service. I just, as I say, want to go on record for the future because of the fact -- I realize that it doesn't meet the criterias of a commercial-zoned area in the future, and I only am asking that you -- it be noted in the record that -- because I realize you weren't going to change it today. CHAIRMAN RAUTIO: Right. MR. HUENEFELD: So that, you know, in the future I have some basis to talk to people on. I don't know. CHAIRMAN RAUTIO: And we would encourage you to explore that so it fits the criteria. MR. HUENEFELD: Sure. CHAIRMAN RAUTIO: But I certainly do understand what you're asking and pointing out to us today. MR. HUENEFELD: Sure. Thank you. MR. BELLOWS: And ifI may, if he calls me sometime in the future when it's convenient for him, I can direct him to the appropriate staff people for comprehensive plan amendments, and maybe his property would qualify for some kind of change in the future. CHAIRMAN RAUTIO: Thank you. So you have that offer. MR. HUENEFELD: Okay. CHAIRMAN RAUTIO: Any questions? COMMISSIONER STRAIN: I was just going to ask the Page 45 December 20, 2001 gentleman if he lives on that property next to the station at this time. MR. HUENEFELD: No, I don't because there's really nothing in that area. I don't know if any of you have been out there, but it's all trees right now. I bought the property back in the early '70s. I've owned it for a long time. And when I bought it, there weren't even any roads out there. I couldn't even see it. But, no, there's nothing -- Mediterra is over on one side, and they're building over there. A Catholic church owns the other side. But you're probably already familiar with all that stuff. COMMISSIONER STRAIN: Thank you. MR. BELLOWS: One other point of clarification. I'm sorry this didn't make it into the packet, but it's the sales contract. It shows the property owner as Smith, Sheref (phonetic), and Donnelly and the contract purchaser as North Naples Fire Control District. It should have been in your packet. I'm sorry. CHAIRMAN RAUTIO: Mr. Eagle Eye Abernathy, once again. Do we have any further questions? I just want to make sure that -- having seen the new map that we're using on the visualizer, all my questions that I had about the access and the median opening were answered. And as long as those all are acceptable to transportation, I feel that they've come up with a workable solution here at that particular location. And I see Dawn Wolfe shaking her head yes, so we will move on. No further registered speakers? MS. MURRAY: No, ma'am. CHAIRMAN RAUTIO: Okay. We close the public hearing. What is the pleasure of the board on this conditional use? COMMISSIONER BUDD: Madam Chairman, I'd like to make a motion that we forward Petition CU-01-AR-1411 to the Board of Zoning Appeals with a recommendation of approval. COMMISSIONER ADELSTEIN: I second the motion. Page 46 December 20, 2001 CHAIRMAN RAUTIO: I have a motion by Mr. Budd, a second by Mr. Adelstein for approval of this conditional use. Do we have discussion? COMMISSIONER RICHARDSON: Just a quick discussion. I'd like to encourage the applicant, Chief Rodgers in particular, to hold the county's feet to the fire in terms of this land use. I certainly support the conditional use, but to see if we can't get better response time by providing emergency connections between these gated communities. I mean, the opportunity is there, but somebody has to push it. And, you know, you guys are the ones that represent our public welfare interest there, and so I would really strongly encourage you to pursue that if you would. CHAIRMAN RAUTIO: Would you come to the microphone, please. We have to get you on the record, and I'll give you a chance to smile for the cameras. ASSISTANT CHIEF RODGERS: Ken Rodgers, assistant chief, North Naples Fire Department. Yes, we'll definitely work on that. We do that when SDPs and so forth come through, but we do have a problem. They do not want to give up that precious land to make that extra entrance in there. So we'll work on that as hard as we can. COMMISSIONER RICHARDSON: Good. CHAIRMAN RAUTIO: Mrs. Young. COMMISSIONER YOUNG: This recommendation should be subject to traffic and environmental stipulations. They're listed. CHAIRMAN RAUTIO: They're listed. First, does the second and -- COMMISSIONER BUDD: Yes. CHAIRMAN RAUTIO: Okay. That is added to the record for clarification. Is there any further discussion? All those in favor say aye. (Unanimous response.) Page 47 December 20, 2001 CHAIRMAN RAUTIO: Those opposed, same sign. (No response.) CHAIRMAN RAUTIO: Motion carries. I would like to remind the board to fill out their finding of facts and pass them down to the secretary, Mrs. Young. Moving right along to the next item on the agenda, it would be Petition CU-2001-AR- 1420, the conditional use in an agricultural/mobile home zoning area overlay. All those wishing to give testimony today on this particular public hearing, please stand, raise your right hand, and be sworn in by the court reporter. (The speakers were sworn.) CHAIRMAN RAUTIO: Mr. Bellows. MR. BELLOWS: For the record, Ray Bellows. CHAIRMAN RAUTIO: I'm sorry. Disclosures. COMMISSIONER STRAIN: Yeah. I had a question to Marjorie concerning the recreational use of this property, which we'll probably get into later in the meeting. CHAIRMAN RAUTIO: And I had a conversation with Mr. Bellows with reference to something that was in there that was odd. COMMISSIONER RICHARDSON: Technically, those are not disclosures; is that correct? We can talk to staff. That's not a disclosure. MS. STUDENT: I'm going to have to -- it historically has not been, and Mr. Weigel and I have chatted about that. So I think in the interim if you have talked to staff, go ahead and disclose it, because he and I have chatted about it, and we need to have a final resolution of it. But historically it wasn't done. CHAIRMAN RAUTIO: Right. And if you send e-mails back and forth, it would be good just to acknowledge it under the approach that the county attorney is using at the moment. And just to clarify, it was a point on the native vegetation, which Mr. Bellows will clarify, Page 48 December 20, 2001 that I talked about. Okay. Mr. Bellows. MR. BELLOWS: Yes. As you can see on the visualizer, the subject site is located on the north side of Immokalee Road. It's out in the rural agricultural fringe area. The petitioner is requesting Conditional Use 7 of the -- and 11 of the agricultural zoning district for a church and associated day-care facility. The applicant is proposing to build this facility in three different phases. Phase 1 will consist of 16,800 square feet for a church. Phase 2 will add a duplicate 16,800-square-feet addition, and Phase 3 will consist of the child-care center, approximately 2,400 square feet. I have a copy of the conceptual master plan. Access to the site is off of Immokalee Road. We'll have -- through Lilac Lane, which is a private road. The project has three access points off Lilac Road (sic); Phase 1, Phase 2, and the associated day care. There will be a water retention area and playing fields for the school -- church and school children, day-care children. The subject site is consistent with the Future Land Use Element and the Comprehensive Plan. However, it should be noted that the -- since this is in the rural area, there was concern that maybe this would be subject to the final order issued by the governor and the administration commission. However, the final order does not prohibit conditional uses for churches and the affiliated child-care facilities. So this petition is consistent with that. It is also consistent with the Comprehensive Plan. The transportation element indicates that the project trips will generate 674 trips on a weekday with 984 a.m. Peak hour trips on Saturdays. The traffic impact study did not indicate that there would be any level of service problems under the proposed improvement to Immokalee Road. As noted in the staff report, if the road is not built and constructed, then the buildout condition of this project will adversely impact Immokalee Road which will be operating at Level Page 49 December 20, 2001 of Service F. However, if the road is improved, then Phase 2 can be developed without any significant impact on the roadway. As a result, staff has recommended as a stipulation of approval that the project be phased so that Phase 2 would not commence until the improvement to Immokalee Road is completed. Staff's analysis concerning compatibility indicates that the site is in an area where there's not a lot of development. There's -- a church typically is associated with neighborhoods. This would serve the community in that area. So there's no unusual noise from this facility that typically is associated with any church use. There are no unusual light or odor as a result of a church petition. So, therefore, staff is recommending that the Planning Commission forward this petition to the Board of County Commissioners with a recommendation of approval, and I'd be happy to answer any questions. CHAIRMAN RAUTIO: And did you want to put on the record the correction of Exhibit D? MR. BELLOWS: Yes. Thank you. The -- if you turn to the conditions of approval, the fifth one dealing with 15 percent of the existing native vegetation on site shall be retained as required in Section 3.9.5.5.3 of the Land Development Code, that should be 3.9.5.5.4 of the Land Development Code, which basically deals with mixed -- with nonmixed use, nonresidential developments. So the 15 percent is correct for retaining native vegetation. Otherwise, we'd be asking for 25. CHAIRMAN RAUTIO: Thank you. And I see Mr. Strain probably is agreeing with that, because he has his code book right there. COMMISSIONER STRAIN: That, and I had another issue that I'd brought up to Marjorie. And basically, the applicant is applying for a conditional use under Item 7, which is churches, and 11, which is child care. But they also very clearly indicate they're going to have Page 50 December 20, 2001 a rather large contingent of recreation areas: Football field, soccer field, playgrounds, basketball court, I think they said. And I was concerned that -- I know that we're looking at it as an accessory use to a church or a child care. But under the permitted uses in agricultural, recreation is separately listed as allowed with residential subdivisions, residential uses. And under conditional uses -- I mean, under -- yeah, conditional uses of ag, there's a number 23, which addresses recreational facilities. And I'm wondering, first of all, if it's appropriate that this go forward with just 7, 11 -- 7 and 11 being referenced, or should reference -- 23 be referenced as well? And Marjorie -- MS. STUDENT: I have talked a little bit with staff. I had meetings again all yesterday afternoon and last night until 10:30. But I did talk with staff a little bit. I'm going to defer to them because those issues about the uses and so forth and their interpretation, unless there's a larger issue, that's a planning issue. MR. BELLOWS: I think typically staff is -- at least my professional opinion, that these facilities can be deemed an accessory use to a church facility. However, if they choose to go beyond the typical church activities, where they lease out space to other private organizations to operate recreational camps, then that would require the additional conditional use. Now, if they operate it in conjunction with legitimate church activities and recreational activities, church activities, then they would not need that additional conditional use for recreational facilities. COMMISSIONER STRAIN: Were there any objections to this petition? MR. BELLOWS: I have not seen any. I looked at the file. We had another planner working on this. And I wasn't able to determine if there were calls that came in to him, but I have seen no -- nothing in the record to indicate objections. Page 51 December 20, 2001 COMMISSIONER STRAIN: Thank you. CHAIRMAN RAUTIO: Mrs. Young. COMMISSIONER YOUNG: I'm concerned about the transportation element. MR. BELLOWS: Yes. COMMISSIONER YOUNG: You do say that it will generate 674 trips on a weekday and 984 trips at peak period on Immokalee Road, which is not now or in the near future planned to expand. What is your analysis of what this will mean? MR. BELLOWS: Yeah. And basically the -- and that's the reason for Stipulation No. 3 in your agenda packet on the conditions of approval. Construction of Phase 2 and Phase 3 shall not commence until that time that Immokalee Road is four laned to Everglades Boulevard. Phase 1 includes a 16,000-square-foot church and outdoor recreational amenities. Phase 2 includes a 16,800- square-feet expansion. So what we're limiting them is basically cutting their project in half or even a third, letting them develop only a third of their project, until such time as the road is improved. The traffic impact statement indicates that that's -- Phase 1 only would not be a significant impact to Immokalee Road, even if it's not improved. COMMISSIONER RICHARDSON: Just to follow up on Mrs. Young's excellent point, though, the full three phases will kick from Level C to Level F. I'm not sure that I understand that Phase 1 wouldn't kick it to Level F as well. CHAIRMAN RAUTIO: Ms. Wolfe, you may have to be needed for this one. COMMISSIONER RICHARDSON: I mean, why are we putting any more traffic on this road while it's in such a deplorable state? MS. WOLFE: The section of road that's directly impacted by this is not the currently deficient segment. And by definition of what Page 52 December 20, 2001 we have to look at and looking at the phasing of the development, the initial phases of it would not be significant to this. We are working with the applicant in regards to required access improvements and also looking at the future needs of expanding that roadway and looking at preserving or possibly obtaining right-of-way from that property in advance so that as we move through, it will make it easier. And as well, this is a property -- it's a smaller church. We are looking at access requirements but are looking at a compensating of, perhaps, them dedicating the right-of-way up front. And as needed, intersection modifications would be put in place by the county to offset for the dedication of that right-of-way. They will be providing, at the times of their actual operations, sheriff for accessing the property for their periods of worship to ensure safe access to and from the property. I believe that was the discussion that I had with the applicant's representative, Mr. Hoover. CHAIRMAN RAUTIO: Does that help, Mr. Richardson? COMMISSIONER RICHARDSON: It helps, but let -- may I ask just specifically, which portion of those trips are going to be associated with Phase 1, and how -- what does your traffic impact analysis say relative to this being diminimous as far as level of service is concerned? It seems just inconsistent to me. MS. WOLFE: I believe the initial phase of this is primarily for the church. If I could go ahead and defer to Mr. Hoover, as he is probably more up to speed just on -- it being his project and I look at multiple ones, let him speak to that. MR. HOOVER: Good morning. William Hoover, for the record, representing Seventh Day Adventist Church. We broke this petition out into two phases; and then actually, after meeting with staff, went to a third phase. But Phase 1 does not have a radius of development impact, so it would only generate during the week 164 Page 53 December 20, 2001 trips, which would be about the equivalent of-- a single-family house generates ten, for instance. But since it does not have a radius of development impact, that means it's -- to be significant on Immokalee Road, it would have to generate 5 percent. So to have a radius of development impact, it has to generate 1 percent. So based on that, we're at least 80 percent less out, at minimum, than having any kind of significant impact on Immokalee Road there. So the church is actually -- when it opens we'll probably only have 30 people there, and so this -- this is a small church. It's a Seventh Day Adventist. They meet on Saturdays. And they've agreed to -- even when Phase 1 is at a peak, that's going to be quite a ways down the road. Only at that time would it even generate the 164 trips a day. Immokalee Road out there probably generates something, like, let's say, 10,000 trips a day. So you can see the 164 is pretty small in comparison to that. So it would be less than 1 percent of the traffic out there. COMMISSIONER RICHARDSON: Mr. Hoover, I guess the thing that's confusing me, though, if you go from 164 to 984, this report says -- analysis says that it would kick it from Level C to Level F, and that doesn't seem consistent with your assessment that 164 is a diminimous portion of 10,000. The 900 is a diminimous portion of 10,000, too, if you look -- MR. HOOVER: Okay. I think what they're saying is the reason they put the stipulation on there that we can't go into Phase 2 or Phase 3 until the road's four laned, because if-- otherwise, Immokalee Road will be at Level of Service F out there with the project's traffic. If we keep it at Phase 1 by working it -- this compromise, then we keep our traffic to a minimum. Child-care centers are really the one that generates the traffic during the week. So there won't be a child-care center out there. The church won't be expanded until Immokalee Road's four laned. If that takes ten years, Page 54 December 20, 2001 then so be it. We will -- we will have to honor that petition. CHAIRMAN RAUTIO: I just want to commend staff and the petitioner for taking the time to really work this out and actually let us see a stipulation that the roads will have to be built first. And I want to commend you for doing that. MR. HOOVER: Yeah. And then when you make a motion, we will need to read in there that we've amended this -- we amended the one Ray had mentioned about the 15 percent native vegetation, but also No. 4 was amended based on our meeting regarding the improvements. CHAIRMAN RAUTIO: And this is Exhibit D we're talking about for the conditional approval? MR. HOOVER: Yes. CHAIRMAN RAUTIO: D as in delta. MR. HOOVER: I'm not quite sure why they're asking us to maintain existing native vegetation, because -- we submitted pictures of it -- it's basically tomato fields with Brazilian peppers on it. But I guess that's -- it's not going to qualify as native vegetation anyway. So we're going to -- basically, if you have 0 there, 15 percent of 0 is 0 anyway. CHAIRMAN RAUTIO: At least under my math it is. I'm not sure about other people's. And you're going to clarify -- just let me write on mine so we know this for the motion. Number 4, you said? MR. HOOVER: Correct. COMMISSIONER ABERNATHY: What did you change? CHAIRMAN RAUTIO: What did you change? MR. HOOVER: Okay. The church shall be required, for weekend services, to have a sheriff deputy at the intersection of Immokalee and Lilac Lane until turn lanes are provided. And they will also dedicate the land the county needs for the widening of Immokalee Road clear to six lanes, if it ever gets that wide, at the Page 55 December 20, 2001 request of the county and prior to the issuance of the first certificate of occupancy. And there would be no charge to the -- the county would not have to purchase that land. CHAIRMAN RAUTIO: Do you have that written in plain English so we know we've got it? MR. HOOVER: I wrote this stuff down a little bit. Let's see here. Property owner -- do you want me just to give it to you? CHAIRMAN RAUTIO: That would probably be handy, but just clarify, as you did, the sheriffs deputy would have to be there on Saturdays. And you said something about turn lanes, and I was writing too slowly. MR. HOOVER: Property owner shall dedicate free to the county right-of-way needed for the widening of Immokalee Road in lieu of constructing turn lanes. The county shall construct the turn lanes when needed. The petitioner shall have a sheriffs deputy direct traffic at the intersection of Immokalee and Lilac Lane just prior to and after all weekend church services. CHAIRMAN RAUTIO: Okay. And that has been agreed to by planning and transportation. MR. BELLOWS: Correct. COMMISSIONER ABERNATHY: The turn lane's going in immediately or once ifs four laned? You're not going to put them in now and then tear them up when you four lane it, are you, or are you? MS. WOLFE: Dawn Wolfe for the record. With the -- we're not talking about them putting them in immediately. COMMISSIONER ABERNATHY: You putting them in now. MS. WOLFE: The county would put them in as we find that it is warranted to do so. In lieu of them putting them in now, they were going to provide traffic control with the sheriffs deputy. COMMISSIONER ABERNATHY: I understand that. I'm just talking about the timing of the turn lanes. Page 56 December 20, 2001 MS. WOLFE: The timing of the turn lanes, we wouldn't make it so that within two years of putting them in that we would -- COMMISSIONER ABERNATHY: Four lane. MS. WOLFE: -- four lane over it unless we were seeing a critical operational safety situation. We don't want to do it twice, but we see the trade-off of the right-of-way for the turn lanes with the provision of safe access as being a win-win for all parties. COMMISSIONER ABERNATHY: It's up to you to do it and you to determine when to do it; right? CHAIRMAN RAUTIO: Mr. Midney has a question. COMMISSIONER MIDNEY: Yeah. I'm just curious. The church -- they're building a 16,000-foot church way out in the country for just 30 people. It seems strange to me. MR. HOOVER: It -- it's probably not going to be that large, but it may be ~~ in other words, we have a cap of the 16,800-square-foot church. That's the largest that we can put in there. So they -- what they plan on doing is putting up a fellowship hall, and so it may -- let's say it's 6,000 square feet. So they have the latitude of adding on some in Phase 1 prior to hitting the cap where we have the traffic restrictions. CHAIRMAN RAUTIO: They have hopes, Commissioner Midney, to grow this church. MR. HOOVER: And one -- one other thing that we discussed was on Exhibit D, Item 2. Lilac Lane would be paved back from Immokalee Road to the end of the northernmost access driveway that we construct. In other words, if we construct two accesses off of Lilac Lane, then we need to build -- we need to pave Lilac Lane up to that point. CHAIRMAN RAUTIO: Okay. That, I think's, fairly clear here, but thank you for pointing that out. Commissioner Richardson. COMMISSIONER RICHARDSON: I just wanted to reinforce Page 57 December 20, 2001 with Ms. Wolfe that hopefully you're going to hear more and more of these kinds of questions about cumulative effect of traffic on all our roadways. And I know you're keenly interested in it. But I'd like to have that highlighted for us in -- in all of these developments as they come along so we can see not only what it does by itself, but what is happening to the total roadway system so -- as part of our deliberation. MS. WOLFE: Yes, sir. CHAIRMAN RAUTIO: Any other questions? Do we have any registered public speakers? MS. MURRAY: I have one registered speaker, Jeff Davenport. CHAIRMAN RAUTIO: Mr. Davenport. MR. DAVENPORT: Yes. Jeff Davenport. I own the property directly across the street from Lilac, and I have an operational nursery there as we speak. And my concern is if the day care -- and as them worshiping on Saturdays, I do have employees working. We do spray herbicides and pesticide stuff. How much problem am I going to have in the future in running my business without being affected by calls? We have -- right now we have a nursery right down the street, and we have birds growing. We're real careful on what we do, and they don't -- we work together. I just don't want to have a problem with kids running around having -- they're going to be shutting my operation down. CHAIRMAN RAUTIO: Mr. Bellows, do you want to respond? MR. BELLOWS: For the record, Ray Bellows. The church property will be -- church services will not be such that the children are going to be running across the street. However, if there's a day- care activity, day care are required to be supervised in a fenced-in area. The other issue is if this area was developed as single family, the same issues would arise, of his business contaminating adjacent property owners. And I would hope that he would run a business that Page 58 December 20, 2001 would not be contaminating other adjacent residential dwellings. CHAIRMAN RAUTIO: And you must be taking precautions to make sure that you don't contaminate the area. MR. DAVENPORT: Oh, exactly. We have it fenced in right now. My property's totally fenced in, 6-foot fence all around. I was just worried about the road, if they're going to pave it. I really don't have any problem with them being there. We just didn't want a problem, because we have a work -- stuff we have to abide with and all. And I usually do my spraying on a Saturday where there's no employees there. I do the spraying myself. And I just -- you know, we're real careful how we do it. With just a lot of kids, it's kind of -- you know, I don't want parents complaining at me in the future and then trying to shut my business down. Hearsay, people don't know how careful I am, and they don't understand and they don't know the ordinance we're under from the state and the laws. And the problem I see is uneducated people telling me how to run my business. CHAIRMAN RAUTIO: And I'd like to encourage you to open a dialogue with the petitioner and with the church so that you can forestall any of these problems or totally eliminate them if humanly possible. Commissioner Wolfley. COMMISSIONER WOLFLEY: I'm empathetic with that. I ran the same business in another state. And I know that certainly if the wind is blowing from west to east towards the thing at a pretty good clip, you would suspend your spraying? MR. DAVENPORT: Yes. Correct. COMMISSIONERWOLFLEY: Okay. Good. CHAIRMAN RAUTIO: Thank you. And do open a dialogue. We can -- because we can't really effect that right today, but you've got it on the record and can feel a level of comfort that they will Page 59 December 20, 2001 cooperate with you. MR. HOOVER: For the record again, William Hoover. Let me get his name and address. And for instance, the child-care center, the northern part of the building is probably 400 feet from our northern boundary. For instance, we would like your permission -- let's say maybe we shift that. It's in the southeast comer of the northern 10 acres. So one way of helping both of us out is maybe the child-care center slides to the west several hundred feet, and maybe we even plant some -- a hedge or something in there which, you know, once you get that grown up to 8 or 10 feet, that would maybe alleviate most of that blowing through there. So I think by site planning and doing some landscaping improvements and working together, we can minimize our impacts on his operation and his impacts on us. CHAIRMAN RAUTIO: Great. And if you two would, exchange business cards so you can talk to each other on a regular basis. Thank you. No further public speakers? Any other -- MS. MURRAY: No. CHAIRMAN RAUTIO: Okay. I close the public hearing. What is the pleasure of the board? COMMISSIONER YOUNG: I move that we send CU-2001- AR-1420 to the Board of Zoning -- Zoning Appeals with a recommendation for approval subject to all staff stipulations listed. And I would ask the members when they do their approval sheet, to -- under C to write down "effect mitigated by." CHAIRMAN RAUTIO: And that motion would need to clarify Item 4 as read into the record and presented to Mr. Bellows, and Item No. 5 on Exhibit D where it says 3.9.5.5.4. MR. BELLOWS: Plus the additional landscaping and relocation of the child care. CHAIRMAN RAUTIO: Additional landscaping. That's part of Page 60 December 20, 2001 the motion. COMMISSIONER YOUNG: Yes. COMMISSIONER RICHARDSON: I will second it. CHAIRMAN RAUTIO: We have a motion by Commissioner Young, a second by Commissioner Richardson for approval of this conditional use with the stipulations outlined and the changes. Do we have any discussion? Hearing no discussion, I call the question. All those in favor say aye. (Unanimous response.) CHAIRMAN RAUTIO: Those opposed, same sign. (No response.) CHAIRMAN RAUTIO: Motion carries. Thank you. And we'll need a seven- to ten-minute break for the court reporter before our next item. (A break was held.) CHAIRMAN RAUTIO: We are back in session. Okay. We are on Item E, CU-2001-AR-162 (sic), Conditional Use 7 for estates zoning for earth mining. 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: Okay. Mr. Bellows, you're up. MR. BELLOWS: For the record, Ray Bellows. The applicant is requesting a conditional use to allow for an earth mining operation on a land zoned estates. The subject property is located on the east side of Desoto Boulevard between 31 st Avenue and 29th Avenue Northeast and is further described as Tract 143 in Golden Gate Estates, Unit 67. I have a copy of the proposed plan. CHAIRMAN RAUTIO: And while he's putting that up, do we have any disclosures on this item? Page 61 December 20, 2001 No disclosures from the planning commissioners. MR. BELLOWS: This is a request to construct a 2.8-acre lake to a depth of 12 feet. The access to the site will be provided by Desoto Boulevard. The truck haul route requires vehicles to drive north on Desoto Boulevard -- or Desoto for approximately 1,700 feet to Oil Well Road. There are no residences within close proximity to this site. The staff has added a stipulation requiring approval of a scrivener's error that eliminates a minimum of 20-acre size. That was discussed last night, I believe, at your LDC amendments for earth mining. That would be, I guess, a maximum of 20 acres, not a minimum. The transportation review indicates that the site will generate 25 to 30 trips on a weekday for one year. This conditional use is limited to one year. There will be approximately 12 to 14 truck loads of haul fill off site per day. In addition, the site-generated trips will not lower the level of service below its adopted level of service standards within the project's area. The ingress/egress to this site will be provided through Desoto Boulevard. The neighboring properties are only partially developed in this area. The mining activities should have minimal impact. However, if you look at the conditions of approval, we've made some conditions that are pretty stringent that would help protect adjacent property owners, and I can go over those with you now after I get to that page. The first one is that the -- actually, it's Condition No. 5, blasting shall not be allowed on this -- for this site. The conditional use will expire in 12 months after the date of issuance of the clearing permit. This excavation shall comply with the requirements of the excavation ordinance. The excavation -- off-site removal of excavated material shall be subject to the standard conditions imposed by the transportation services department in the attached Page 62 December 20, 2001 document dated May 24th, 1988. Those are the key ones. There's also a requirement for exotic vegetation removal, monitoring, and maintenance for the -- plan be developed for the site and shall be submitted to the planning services section staff for review and approval prior to excavation work. Therefore -- staff has not received any letters or calls in opposition to this request, and the staff is recommending that you forward it to the Board of Zoning Appeals with a recommendation of approval. CHAIRMAN RAUTIO: I'm not totally clear on the scrivener's error that occurred. And last night it was the Board of County Commissioners that -- MR. BELLOWS: Excuse me. CHAIRMAN RAUTIO: -- got into discussing it, not this group. MR. BELLOWS: I just -- CHAIRMAN RAUTIO: So that went forward, Susan? MS. MURRAY: I can describe it for you. In, I believe it was, the last cycle of LDC amendments -- but ! could be off one -- the estates section of the zoning district, the conditional use section specifically, was amended; but it was amended erroneously in that there was a caveat placed on the excavation in the estates zoning district for a conditional use, that being a minimum acreage size of 20 acres, and that was wrong. It should have been a maximum. So it was adopted in error, and it is going back through the process to correct the scrivener's error through the LDC process. And we brought that back in front of the board last night, and then we'll also be bringing that back in front of you on January 3rd and then a final hearing on the 9th. It's the county attorney's opinion that that procedure is acceptable to correct the error, and that's -- you'll see that on the 3rd. CHAIRMAN RAUTIO: Thank you. I did want that clarified. Minimum, maximum was the major issue. Page 63 December 20, 2001 MS. MURRAY: That's correct. CHAIRMAN RAUTIO: And it now has been at least reviewed by the Board of County Commissioners, and we'll have an opportunity to rule on it also. MS. MURRAY: That's correct. CHAIRMAN RAUTIO: Thank you. Any questions? I'd like to hear from the petitioner. MR. WEEKS: Jim Weeks. Thank you for hearing this issue. The subject area is along Desoto Boulevard. If you were to stand on Desoto Boulevard and look to the north or south of what the eye -- the naked eye can see, there's nothing, no homes, nothing. It's totally desolate. The area is old farm field. It was farmed back in the early '70s, and it has become a environmental nightmare as far as exotic infestation. The Brazilian peppers have just taken over the area. And the -- the development of the property will be a real benefit in that it -- it literally destroys and takes out the invaders that have come environmentally to the area, and it removes the potential -- because of the farming operations that took place in the past, there's ditches, you know, that are not -- they have no natural flow. They hold water in one area. They dry it up too much in another area. And the edge effect that you would see along a typical roadway for -- the exotics tend to take over. Well, these fields have the edge effect throughout them simply because they've been disturbed. So I'll leave it at that. If there's any questions -- CHAIRMAN RAUTIO: Do we have any questions? Mr. Wolfley. COMMISSIONER WOLFLEY: Do you currently have a pond or lake on the property now? MR. WEEKS: No. COMMISSIONER WOLFLEY: What is that thing that's filled with water? I'm just curious. Page 64 December 20, 2001 MR. WEEKS: The thing that's filled with -- COMMISSIONER WOLFLEY: Yeah. There's a pond or something on your -- on the subject property. MR. WEEKS: Right now? COMMISSIONER WOLFLEY: Yeah. Isn't there? MR. WEEKS: Oh, the ditches. Those are old agricultural ditches. COMMISSIONER WOLFLEY: Oh, were they, like, to drain the -- MR. WEEKS: They're old -- COMMISSIONER WOLFLEY: From the tomato fields there? MR. WEEKS: They -- they used the flooding principle. They would take and put perimeter ditches around their fields and flood them with bisecting ditches that would generally flood the whole property. COMMISSIONER WOLFLEY: Okay. I was just wondering what that was. MR. WEEKS: In the rainy season, those ditches are holding water. CHAIRMAN RAUTIO: Any further questions? Do we have any registered public speakers? MS. MURRAY: No registered speakers. CHAIRMAN RAUTIO: We'll close the public hearing. What is the pleasure of the board? COMMISSIONER STRAIN: I make a motion we approve CU- 2001-AR-1620 subject to the stipulations proposed by staff. COMMISSIONER BUDD: Second. COMMISSIONER WOLFLEY: Second. CHAIRMAN RAUTIO: We have a motion by Mr. Strain, a second by -- COMMISSIONER WOLFLEY: Somebody. Page 65 December 20, 2001 CHAIRMAN RAUTIO: -- Mr. Budd to approve this petition with stipulations as outlined. Any discussion? I'll call the question. All those in favor say aye. (Unanimous response.) CHAIRMAN RAUTIO: Those opposed, same sign. (No response.) CHAIRMAN RAUTIO: Thank you very much. Item F has been continued indefinitely, so we are now at Item G, PDI-2001-AR- 1276, an insubstantial change for the Madeira PUD Master Plan. MS. MURRAY: Commissioner Rautio, I have some comments I need to put on the record before -- CHAIRMAN RAUTIO: Please. MS. MURRAY: Staff has some concern over this amendment. Specifically, the applicant is proposing to amend language that appears not only on the PUD master plan, but also appears in the PUD document. Unfortunately, that wasn't discovered until the last minute. Section 2.7.3.5.5 of the Land Development Code requires that language changes to a previously approved PUD document shall require the same procedural hearing as amending the Zoning Atlas, which means it has to go before the Board of County Commissioners. The application in its present form is a PDI or an insubstantial change to a PUD master plan, and you take the final action on that type of application. I'm going to suggest to you that this application should come back in the form of a PUD amendment in front of the Board of County Commissioners. I believe there also might be some opinion -- county attorney's office can jump right in -- as to whether or not change in language on a PUD master plan itself also necessitates a PUD amendment. It is part of the PUD document, and it is my opinion that that's the way the code reads and would possibly Page 66 December 20, 2001 necessitate a PUD amendment and full hearing in front of the Board of County Commissioners. MS. STUDENT: Yeah. It's -- the code -- and I'm going to quote it verbatim. Language changes to a previously approved PUD document -- that's the entire document -- shall -- that's mandatory in our code -- require the same procedure as for amending the official Zoning Atlas. And what that means, when we do a PUD amendment, we amend the official Zoning Atlas map that shows the zoning districts in that area to reflect that it's a change from whatever it was to PUD. And we have always opined that textual changes require a regular PUD amendment. And this issue's going to come up again, and then it's going to -- well, if we put a comma or -- or an S here, that is a language change. And in my opinion, if you start to make exceptions -- there have been lawsuits over where commas are placed, by the way. And I'm going to hold the line on this one, and I believe language changes to the PUD document require the same process as -- require a PUD amendment. CHAIRMAN RAUTIO: Questions? COMMISSIONER STRAIN: Disclosures first. I spoke to Marjorie about the -- this issue specifically when I called her yesterday, whether or not this should be considered a substantial change in lieu of an insubstantial change. CHAIRMAN RAUTIO: Any other disclosures? Would you care to comment? MR. PICKWORTH: Yes, Madam Chairman, I -- I would like to address this. I'm Don Pickworth representing Centex Home, who's the contract purchaser of this property and will develop the property if-- you know, if the various changes are granted, and we -- we complete the process. We reviewed the staff report, and frankly, the first report of the -- the first paragraph of Ms. Murray's staff report, I Page 67 December 20, 2001 think, is absolutely 100 percent correct. This is, in fact, an insubstantial change under your Land Development Code. She reflects the fact that there are no text changes. And I would like to -- to bring to your attention what is being called a textual change that is going to require -- and let me explain the implications of this. CHAIRMAN RAUTIO: Please do. MR. PICKWORTH: We are going to spend several months, many thousands of dollars. In addition to that, we have worked with neighboring properties who have some concerns, and we're here today to reflect what we think is an agreement with them to address these concerns and put this matter to bed. And the -- I heard about this this morning when I walked in here. Okay? MS. STUDENT: I heard about it yesterday morning so ... MR. PICKWORTH: Well, you know, the staff report was written quite a while ago. But let me just say this: I think your package contains a copy of the PUD; is that correct? I'm assuming what I have here is an exact copy of what you have. And if you will look in the PUD section of your staff report, on page -- bear with me one minute, please. MS. MURRAY: Page 11. MR. PICKWORTH: Page 11. That's correct -- page 11, you'll see what looks like a little table up there. It's not labeled "Table," it's not labeled "Exhibit," it's not labeled anything. And if you look at the paragraph preceding that in the PUD and the paragraph following that in the PUD -- and, in fact, you can look through the whole PUD, and that table isn't referred to anywhere. It's nowhere in the PUD. And, in fact, that table is a reflection -- and I was not involved in drafting this. I don't know how it got in here. It's not normal to put something like that in there because that same table in your -- in your PUD you'll see a copy of the Exhibit A that's referred to in that PUD. That's the master development plan. And I'm sure in your package Page 68 December 20, 2001 you have a copy of the existing master development plan and the proposed change to the master development plan. And in the existing master development plan that's in your PUD, you'll see exactly those same lines, which is where that type of a table is normally placed, in a master development plan. And when a master development plan is changed -- and I have here simply the big one of the one you have shot down in your package. It has the new acreages right here. This is the document that's being changed. This is the document that the Land Development Code authorizes can be changed by a PDI process. Every -- if you look at the sections on what constitutes an insubstantial change in the Land Development Code, we meet all of those. In fact, those are set forth in the first paragraph of Ms. Murray's report. So but for these lines in here, which to any -- looking at this can't possibly be deemed to be text or have any textual reference in that PUD, we're saying that that will -- that that's going to cause this to -- what is clearly a PDI under every definition in your ordinance, it's going to all of a sudden become a PUD amendment. I think it's, A, hypertechnical, and I think, B, it's putting form over substance. If the PDI is granted, it's clear from the PD -- from the PUD that Exhibit A, the master development plan, depicts -- and I'll refer you to the previous page to where that table is in your PUD. If you'll look at 2.3A, "The project master plan, including layout of streets and use of land for the various tracts, is illustrated graphically by Exhibit A." If you grant the PD! today, Exhibit A will change from being the Exhibit A that's in the PUD you got there, which has got the same acreage lines that you see on the next page there, to the new master development plan, which will have the acreages shown in what's in your agenda package. For instance, the residential area goes down by 1 O-and-some-fraction area -- acres, and you can see the other Page 69 December 20, 2001 changes. MS. STUDENT: I'd like to address that. There's another part in this PUD. I understand the residential tracts go from nine residential tracts to seven. 2.3A states "There be shall be nine residential land use tracts plus necessary water management lakes." That is language in the PUD. And I would also submit that if you put a table in there, our code doesn't make a distinction and says except a table -- you know, other language changes except a table. And legally I'm not prepared to go there without, you know, some sort of code amendment that says that tables are exempted. But that's not notwithstanding the -- and I'm sure there are other places in this PUD. I believe Ms. Murray believes that there may be other areas where the map change will then make the map inconsistent with the language in the PUD, and I'm not prepared to -- to go there. The code says "language changes shall." I didn't write it. The Board of County Commissioners adopted it long before I ever came here, and I have to follow the law. CHAIRMAN RAUTIO: And with all due respect, Mr. Pickworth, this particular table is the same aspect under 2.3 in your PUD that we went through Silver Lakes, and there were changes to the acreage in the documents itself. There were other issues there, but we actually considered that a text document, and I think we went hours' worth of discussion because the -- the residents and owners of the area were not totally happy with the way it was changing. So with what I see on my approved PUD master plan here and the numbers, this is text, and I can see why the county attorney's office is asking us not to make this insubstantial change. MS. STUDENT: I want to point out, the word in the code is not "text"; it's "language." CHAIRMAN RAUTIO: Language. MS. STUDENT: Because some people, as Mr. Pickworth, I Page 70 December 20, 2001 think, is going to say, is a table is not text. It says language. And we have those other provisions that I alluded to, and there may be more. COMMISSIONER RICHARDSON: Madam Chair. CHAIRMAN RAUTIO: Yes. MR. PICKWORTH: Well, I -- COMMISSIONER RICHARDSON: Mr. Pickworth, if you'll just direct your attention to my comments. I -- this is a practical reaction to this whole thing. You know, none of us like to get hung up on words and hypertechnical and that. But looking at the core of this, if you look at the paragraph that we've given of requested action, the kinds of things that you're going to do with changing from where you are now to where you want to be certainly sounds substantial. I'm talking about the practical language. Wish to relocate the community recreation tract from the northwest sector of the project to the front of the project; reconfigure the lakes, the dry retention; increase the preserve area; decrease the acreage of the residential tract; increase the acreage of common recreation; increase acreage of -- on and on and on. You know, if you have that substantial of a change in mind, I think clearly we need to look at it in the context of-- of a revised plan so we can see what it is. You know, and this gets back to the tie-in to the connection to Phase 5. I would really like to see that pointed out on the master plan on the internal circulation, that you have brought some emergency access over to Imperial Golf Estates. Those are the kinds of things that I think we should be looking at when we take a look at a new PUD. MR. PICKWORTH: Well, my only response to that, Mr. Richards (sic) -- I mean, we can argue all day over this word "language" versus "text" and whether it's a table, and I think that's an honest argument. I'm sorry I can't agree with you. Your own staff has analyzed these changes as being insubstantial, and I agree, and I Page 71 December 20, 2001 think they do fit the terms of the ordinance. So I appreciate what you're saying, but I think that if-- if you're going to say that these kind of things are really substantial changes, then again, borrowing from Ms. Student's language, maybe we need to amend the Land Development Code, because I think they are insubstantial. COMMISSIONER RICHARDSON: Well, perhaps we do, because I really view this -- just, again, as a layman up here trying to do a job, representing the community, these are substantial changes, and we ought to have a chance to look at them. CHAIRMAN RAUTIO: Right. And you are looking at nine actions in this paragraph. I went through each one, and I put a number by the verbs and wanted to think through how this works, because I have had difficulty, you know, as an individual who is somewhat of a layman myself, trying to understand what is substantial and insubstantial. And a person who looks at this and then looks at the site would think, geez, some of these things are pretty substantial. What is really an insubstantial item? And, of course, you are referring to our code, and there's an argument in both directions. But when you talk about in the language of some of these items, to me that's a really substantial change on a PUD map. MS. STUDENT: I want to -- MR. PICKWORTH: Keep in mind that if we're here again at the end of the amendment process, the only thing we're going to do different is that those lines there on page 11 are going to have an X through them. Other than that, everything else is on the table today and can be decided, and I'll defer to Ms. -- MS. STUDENT: I don't know that that's the case, because there may be other things in the PUD. And I want to put this on the record. Just because we have the insubstantial/substantial change process -- and if a map change is going to trigger a text change, it doesn't mean Page 72 December 20, 2001 that just because -- it's insubstantial in there because it's on the list. The map change can do more. And if it triggers a language change, then you're out of the insubstantial change. It's only if it doesn't trigger a language change. You have to take -- read those things in combination. And it would be absolutely ridiculous to say, "Well, you guys get to approve a map; and then the board can look at the language, and they don't get the map because you do that." And that would be a ridiculous interpretation of that provision. You've got to read them together. So it if doesn't trigger a text change, you're here, and you have the final authority on it. If a map change -- even though it's on that list -- triggers a text change -- or I should say "language" because the code says "language" -- a language change in the PUD document, then you're in the whole full-blown process. CHAIRMAN RAUTIO: And I think you could argue that the acreage language that's there, changing those numbers definitely is a language change. Commissioner Strain. COMMISSIONER STRAIN: Yeah. Besides, there are text changes on page 13 and page 21. And also, one of the things that you're doing is taking a publicly accessible park, moving it from where it is alongside a public road, inside a project substantially behind a gated community. We'll wind up with another Lely Barefoot Beach, and I don't think that's appropriate either. I think that's substantial. MR. PICKWORTH: Well, you know, I'm going to -- I can do nothing other than to defer to Ms. Murray's analysis on whether it was substantial or insubstantial. I assume she went through each one of these. And the only thing that's new here that's any different than the analysis that has been sitting out there officially since December 5th when she signed the staff report was the question that Ms. Page 73 December 20, 2001 Student raises. COMMISSIONER RICHARDSON: I guess staff's entitled to change their mind. CHAIRMAN RAUTIO: So the action that we need to take here, Ms. Student, if we feel that this is substantial, do we continue? Do we deny? What do we do with this particular item? Withdraw? MS. STUDENT: Well, I think only the petitioner can withdraw it, so I think it's up to you to -- if they don't withdraw and come back, it's up to you to approve or deny based on the advice you're been given and the testimony you've heard here today. And you may want to -- I don't know if there's registered speakers. You may wish to hear from them. I don't know. MS. MURRAY: You didn't even really open a public hearing, I don't think. There was no swearing in or anything so ... CHAIRMAN RAUTIO: Right. Do we open the public hearing? COMMISSIONER BUDD: We need to address this issue so we don't waste hours of time. If it's going to fail on this point, the story's over. If it passes on this point -- if nothing else, I think we can take a straw vote and determine if this is the salient point that's going to make or break the issue. If it's still going to roll, then we owe it to the public to open the proceedings. MS. STUDENT: I will just say this to you: Legally I do not believe you have the authority to approve this. CHAIRMAN RAUTIO: Okay. So we shouldn't even open the public hearing? Excuse me, Marjorie. So we shouldn't even open the public hearing if we agree with your statement? COMMISSIONER BUDD: Let's find out if we agree. CHAIRMAN RAUTIO: Okay. I think we need to -- COMMISSIONER RICHARDSON: Straw vote. I agree. COMMISSIONER BUDD: I agree. COMMISSIONER WOLFLEY: I agree. Page 74 December 20, 2001 COMMISSIONER YOUNG: I agree. COMMISSIONER MIDNEY: I agree. CHAIRMAN RAUTIO: I think we've got everybody up here. Mr. Abernathy, Mrs. Young. We all -- our straw vote would appear to have each person -- are you still with us? Each planning commission -- planning commissioner agrees on a straw vote that this should not be opened as a public hearing and should go back for a substantial PUD amendment. MS. STUDENT: The only -- there's another option, too, and -- and so we could sit down with the petitioner and perhaps more fully explain it, you could continue it until your next meeting. I don't know -- I think that might be problematic for the next meeting because there's holiday time, and I know some key people are going to be gone. COMMISSIONER ABERNATHY: Why don't we load up the 17th of January meeting? We've already done that to one. MS. MURRAY: I don't see the point in continuing -- COMMISSIONER ABERNATHY: Continue it till then. MS. MURRAY: -- it. It's -- I think it's our opinion and your opinion that this is not the correct process. CHAIRMAN RAUTIO: So by taking the straw vote that it is not the correct process, we would not want to continue. Does everyone understand that? COMMISSIONER RICHARDSON: So technically we're not supporting the staff recommendation as it's currently in front of us and directing staff to go back and reconsider their position. COMMISSIONER STRAIN: Well, staff has already -- CHAIRMAN RAUTIO: Our attorney has told us that she doesn't think we can legally act upon this particular -- MS. STUDENT: Right. You can direct staff-- COMMISSIONER ABERNATHY: You can't approve it. Page 75 December 20, 2001 MS. STUDENT: -- to go -- you can direct staffto go back and look at it, and we can give you a more detailed report and talk to the petitioner as to why and create a record. And that may be a wise thing to do, so we have the specific points that the staff and staff's opinion and mine would necessitate the language change, and then we have a more complete record. That will also give us time to explain it more fully to the petitioner and see, you know, where we can go from here. COMMISSIONER ABERNATHY: I move that we continue this till January 17th. COMMISSIONER BUDD: Second. CHAIRMAN RAUTIO: We have a motion by Mr. Abernathy, a second by Mr. Budd to continue this item until the 17th of January. COMMISSIONER WOLFLEY: Madam Chair. CHAIRMAN RAUTIO: I will indulge you to be able to comment. Do we have any discussion here? COMMISSIONER WOLFLEY: Continue, I thought that we -- they -- staff had to redo the whole process. If we continue this as it is written, then we're just going to have to change it again. CHAIRMAN RAUTIO: Excuse me, Marjorie and Susan. Mr. Wolfley made a very valid point here. COMMISSIONER WOLFLEY: The -- who was it? Mr. Budd wanted to continue it. Well, I don't -- continuance is not where we're going. We're going to be talking about the same thing again. We're talking about staff redoing the whole process. MS. STUDENT: What I want to do in case -- you know, there's a disagreement between the petitioner and us on this point. I need to create a record, and to do that I need to have some time to show -- I need to have staff time. I've -- we've pointed out a couple places in the PUD. To have a full, what shall we say, explanation to the Planning Commission of where the -- would necessitate language Page 76 December 20, 2001 changes in the PUD. And then we have a record of that, so if there's any kind of subsequent lawsuit over this, we can go into the court and explain what our code says and explain where we have before you on the record a complete record of where the problems are. That'll also give us time to go over it with the petitioner, and then they may see -- understand more fully what our position is and it may not even necessitate -- and they may consider other options. But the continuance gives us the time and the ability to create -- COMMISSIONER WOLFLEY: Okay. I understand. MS. STUDENT: -- a record and to talk to the petitioner. CHAIRMAN RAUTIO: So we have a motion and a second on the floor for a continuance. And we're in discussion, and I would like to recognize Mr. Pickworth. MR. PICKWORTH: Just a point of clarification. You know, we're certainly happy to meet with them, and if -- and if it turns out that we're just never going to agree or we end up agreeing with them, I just wanted to make sure that if we decided to file a PUD amendment, we can file it before this comes back to you because, you know, obviously we want to get moving on this. I mean, we hope they'll meet with us soon, and we hope we can resolve it long before the 17th. And if we decide to file, that we just don't get told, "Well, since you're in on this PDI, you know, we can't look at your amendment." I assume that you -- that we can file that and start it going; is that correct? MS. MURRAY: Yeah. filing a PUD amendment. There's nothing to preclude you from MR. PICKWORTH: Okay. Fine. I just, you know, want to have that on the record also. CHAIRMAN RAUTIO: Thank you. COMMISSIONER ABERNATHY: Move the question. CHAIRMAN RAUTIO: Okay. I call the question. All those in Page 77 December 20, 2001 favor say aye. (Unanimous response.) CHAIRMAN RAUTIO: (No response.) CHAIRMAN RAUTIO: to January 17th, 2002. Those opposed, same sign. Motion carries. This item is continued Okay. Our next item this morning, and our last one for public hearing, would be PDI-2001-AR- 1356, an amendment to the Green Heron PUD Master Plan for the purpose of a project entrance on Radio Road. All those wishing to give testimony -- COMMISSIONER STRAIN: Disclosures. CHAIRMAN RAUTIO: All those wishing to give testimony, please stand, raise your right hand, and be sworn in by the court reporter. MR. BELLOWS: Madam Chairman, I think we have the same issues with this item as with the previous PDI that we may want to discuss the same way. CHAIRMAN RAUTIO: Well, folks, you can put your hands down for just a moment. We're not going to open the public hearing at this moment. We'd like to give staff an opportunity to present their considerations, and we will give the attorney's petitioner (sic) an opportunity to discuss like we just did a few minutes ago. MR. CUYLER: Madam Chairman, could -- would it be possible for us to get another ten minutes of your time? We are seriously trying to work out something on this. I can't promise you that that's going to happen. Mr. Pritt, I believe, is here on behalf of those people that are concerned about this, and I don't think he has an objection to it. CHAIRMAN RAUTIO: Let's see. MR. PRITT: I have no objection. CHAIRMAN RAUTIO: You have no objection? Okay. We Page 78 December 20, 2001 have, I think, a portion of the county attorney's workshop. There was going to be one attorney presenting, or has that been changed? MS. MURRAY: I believe that's been changed. When I spoke with David Weigel last night, unfortunately Ramiro Manalich, I guess, went out of town, and David was not aware of-- MS. STUDENT: Yes. He had a -- went on vacation for Christmas holiday. CHAIRMAN RAUTIO: Right. And Mr. Pettit was the other half of the presentation that we were going to do, so he's not here either. MS. STUDENT: I'm going to double-check with Mr. Weigel, but it was -- I believe it was my understanding -- and, Susan, I'll call upstairs and find out. But I thought he was going to just move the whole thing rather than do it piecemeal, but I will double-check. CHAIRMAN RAUTIO: Okay. Now, Counselors, ifI give you -- COMMISSIONER RICHARDSON: Madam Chair, just a point of order on that. They may not have to do anything if we can't hear it at all. I mean, they're trying to solve the problem of this coming to a public hearing, which I applaud, and I think they should do -- should have done before, but should do any time. But if we have a logistic issue here or administrative issue as to whether or not this can heard as an insubstantial change, then we should perhaps deal with that issue first. COMMISSIONER BUDD: I completely agree. MR. CUYLER: May I address that, Madam Chairman? CHAIRMAN RAUTIO: Yes. But they do have to stand in here and carry on the conversation with us. So let's go -- MR. CUYLER: The only reason I would address that is that we were going to talk to Ms. Student as part of that, as part of our discussions. And if there are no objections, then we can talk to Page 79 December 20, 2001 Marjorie and make sure it's okay with her. And, again, I can't promise you anything's going to happen in ten minutes, but we're going to give it our best shot. CHAIRMAN RAUTIO: So we're -- you're saying that whatever it is that you're discussing away from us at this moment and still in negotiations could allow us to go forward, in your opinion, with the insubstantial change for this particular issue. MR. CUYLER: Hopefully. COMMISSIONER STRAIN: You might want to include Ms. Wolfe in your conversation. MS. STUDENT: Be a part of that, because I had originally asked, again, for a continuance on this item for the same reason. MR. CUYLER: Well, if that's it, you know then -- if she's not willing to talk about it, then, you know, let's go forward. CHAIRMAN RAUTIO: Okay. I think what we will do is we'll take a 15-minute recess. COMMISSIONER ADELSTEIN: Why don't we just go into -- go on to our agenda to the old business? CHAIRMAN RAUTIO: There's nothing to go on to. We could -- possibly if there's public comment here, maybe -- yes, Commissioner Young. COMMISSIONER YOUNG: A long time ago I asked if we could have a -- sort of a get-acquainted session with our members so that all of us who are not allowed to speak with one another because of the Sunshine Laws -- I, for one, would at least like to know some of the background and the motivations of the fellow commissioners. This might be a good time to do that. CHAIRMAN RAUTIO: With this group, I bet it would take more than 10 or 15 minutes. What's the pleasure of the board? COMMISSIONER RICHARDSON: We could start the process. COMMISSIONER YOUNG: Everybody gets two minutes. Page 80 December 20, 2001 CHAIRMAN RAUTIO: And you're out of time. What does that feel like to you-all? Do you want a recess, or would you like to start at one end and explain who we are so that we have a little more information on the public record? COMMISSIONER STRAIN: We're focusing on -- on the business at hand right now. I'd rather just finish that up so my train of thought doesn't get mixed up. At my age, that happens quite often. COMMISSIONER ADELSTEIN: I have one -- MS. STUDENT: For the record, it's my understanding that because of Mr. Manalich's scheduling, that we were going to defer this to another meeting. CHAIRMAN RAUTIO: Okay. So we have definitely deferred the county attorney's workshop, which would be under -- Item A under 10, new business, because it was a continuation. Marjorie is out of the room, so recess. Oh, Mr. Adelstein. COMMISSIONER ADELSTEIN: I was going to say, why can't we go into old business and wait -- CHAIRMAN RAUTIO: Okay. We're going to -- we're going to reserve -- do we need a motion to keep the public hearing section open? We're just deferring that to later in the agenda. MS. MURRAY: I would suggest you just put it on the record that you're deferring it to later in the agenda. CHAIRMAN RAUTIO: Do we need a motion for that? COMMISSIONER YOUNG: I so move. COMMISSIONER ADELSTEIN: I would think so. CHAIRMAN RAUTIO: I have a motion by Mrs. Young, a second by Commissioner Adelstein to defer Item H till further in our agenda. All those in favor say aye. (Unanimous response.) CHAIRMAN RAUTIO: Those opposed, same sign. (No response.) Page 81 December 20, 2001 CHAIRMAN RAUTIO: Now, let us go on, then, with old business. We have some information that can be presented at that time. That's No. 9. Commissioner Adelstein, I recognize you. COMMISSIONER ADELSTEIN: Thank you. Ms. Murray has done what she can, but now I have a problem. I try to do the best job of preparing for this as I possibly can, and it's been three months. There is no way I am getting ahead of this if I don't get a copy of the code, and I understand I'm not the only one that doesn't have it. It seems that maybe the weight of this board is necessary in order for us to get what we need, the tools that we need to get the job done properly. And I don't know how to do it. CHAIRMAN RAUTIO: This is the Land Development Code that comes out of Tallahassee? COMMISSIONER ADELSTE1N: Yes. CHAIRMAN RAUTIO: What's the status of the orders for those? MS. MURRAY: I was told that it takes at least two months to get copies of the LDC. I check weekly with my secretary to see if they've come in yet, and they haven't. I'm not sure what else I can do. I'm open to suggestions. I'm a little frustrated of constantly being reminded. I know you need your books. I want you to have your books. I'm not sure what I can do for Municipal Code Corporation. I can give you a little bit of history. We've historically just had a bad time getting things from them in a timely manner, including updates to the LDC once they're codified. We've been working to improve that, and I think over the last time we have, but I'm not sure about, you know, why it takes so long to get a book. CHAIRMAN RAUTIO: Okay. Why don't we do what we did when we had such umbrage with the meeting minutes being -- taking forever to get to us? Why don't we -- why don't I appoint a committee of one, Commissioner Adelstein, to research with staff Page 82 December 20, 2001 and that you perhaps call the -- the vendor in Tallahassee yourself to try to understand this a little bit better, talk to whomever it is that has that contract with the county, and that you could report back soon, because perhaps they would listen more specifically to a somewhat irate, frustrated planning commissioner. COMMISSIONER ADELSTEIN: I just want to make it clear that I realize Ms. Murray's done everything she can. It's not her fault at all. But the point is, that doesn't get it done for us. So I'd be very happy to take that on. CHAIRMAN RAUTIO: A committee of one, that would be good because you're representing the taxpayers besides. You'd like to do your job correctly, and we do pay this organization quite a bit of money. MS. MURRAY: Yes. Mr. Adelstein, the secretary's name is Jody Pannullo, P-a-n-n-u-l-l-o. COMMISSIONER ADELSTE1N: Try it one more time. P -- MS. MURRAY: P-a-n-n-u-l-l-o. Jody is her first name. And let me give you Municipal Code Corporation's 1-800 number. 1-800- 262-2633. COMMISSIONER ADELSTEIN: 2633? MS. MURRAY: And I know it's hard -- yes, that's correct. I know it's hard to look sometimes on-line. It could be a little tedious if you don't have a fast connection, but they -- the codes is available on-line, so it's another -- another resource for you. Unfortunately, I just don't have any extra copies. I can copy sections of the code for you. If you have a special interest in something, that's no problem if you just give me a little bit of time to do that. COMMISSIONER ADELSTEIN: I'm definitely not trying to put a burden on you. I mean, I realize the job responsibility you have and how busy it is. But, now, Jody would be the person at this 1-800 number? Page 83 December 20, 2001 MS. MURRAY: No. Jody is the secretary in our department who has placed the order and is in contact with Municipal Code. COMMISSIONER ADELSTEIN: And that number -- her phone number? MS. MURRAY: 403-2400. COMMISSIONER ADELSTEIN: Thank you. CHAIRMAN RAUTIO: And if you could research this and possibly find out a little bit more about the contract we have and if there are any -- time frame for distribution listed in that contract so the next time we renew this, we might be able to have some input. MS. MURRAY: And there's -- the county attorney that has also dealt with them is Patrick White. You may want to contact him, and I don't have -- well -- COMMISSIONER ADELSTEIN: I'll find it. CHAIRMAN RAUTIO: 774-8400. COMMISSIONER ADELSTEIN: 774-8400? CHAIRMAN RAUTIO: Commissioner Wolfley. COMMISSIONER WOLFLEY: Are we over the book thing? CHAIRMAN RAUTIO: Got that worked out? We have other old business. MS. STUDENT: I told Mr. Cuyler -- maybe I shouldn't say anything until he comes in. I told him I just feel like we need to have a continuance to go through all the ramifications. I do not like trying to interpret things on the fly, especially when we're in the final hearing on it. And I feel that we need that to go over everything. There are some objecting property owners as well. And to go over all that, you know, so I just feel that we need to have the continuance. CHAIRMAN RAUTIO: Thank you for that comment. And we are in the old business. I believe, David, you have an observation. COMMISSIONER WOLFLEY: Yes. A continuing frustration of mine -- and it's one that got continued indefinitely -- was the Page 84 December 20, 2001 mulching. This has just brought up an issue. And it's not this; it's other ones that we have talked about changing either zoning or -- from one thing to another. And I go visit these sites, and the darn operations are already in existence. And it's not just this one; it's several others that we have talked about here. And I am just up to here with that stuff. MS. MURRAY: On the Yahl Mulching, that's actually come in for a conditional use, I think, three times previously. The application that was supposed to be before you today was for an expansion of that use. So any time they change what was originally approved under the conditional use, they have to come back and have a new conditional use. So, yes, if you went out there, you would see them in operation and hopefully legally. I assume they're not operating on the property that I know they -- COMMISSIONER WOLFLEY: Okay. So in other words, they've expanded to the five other sites in near areas that I noticed the piling of mulch; is that right? MS. MURRAY: I haven't been out to the site in a while, but I know the application today before you was too add land area, so I would assume that they're still operating under the last conditional use they got, which was for a distinct area. COMMISSIONER WOLFLEY: Someone ought to take a drive around all those roads out there and find all the properties that are loaded up with mulch up 10, 20, 30 feet. It happens to be an interest of mine since -- well, we won't go there. CHAIRMAN RAUTIO: Would that not be something to contact code enforcement about? MS. MURRAY: Yes. If they're -- again, I worked on the three previous conditional uses and at the time had no problems, no complaints from the petitioners. I went out to the site. Every time they were operating within the confines. Now, I didn't handle this Page 85 December 20, 2001 petition, and I understand that the manager that was there at the time I did the three conditional uses is no longer there, so there could be some change in business procedures. CHAIRMAN RAUTIO: Mr. Bellows. MR. BELLOWS: Yeah. I just wanted to point out that the operation had been operating within parameters, as Susan said, for many years, however, that there have been recent complaints about the operation, and they have been forwarded over to code enforcement. I don't -- I'm not sure if actual action has been taken at this time. However, this conditional use was to alleviate that burden of what was occurring out there. COMMISSIONER WOLFLEY: They ought to follow the trucks and see where they're taking the mulch. MR. BELLOWS: Yes. CHAIRMAN RAUTIO: old business? Definitely. Are there any other comments under COMMISSIONER RICHARDSON: I'd just like to readdress this issue to Marjorie. I guess she's not here, is she? CHAIRMAN RAUTIO: I think she's still discussing. They have a couple of more minutes. COMMISSIONER RICHARDSON: Okay. I -- perhaps to get the sense of the commissioners, then, on this disclosures issue, when Mr. Weigel was here some time ago and we talked in general about the ex parte communications, among the questions that were, I thought, clarified was that we, as commissioners, could have unfettered access to staff people to get clarification of anything we needed relative to our -- in the conduct of our business. And perhaps I didn't interpret that correctly, but I did not view that as an ex parte communication. And if that's -- if that's now being viewed as an ex parte communication, I think that's a -- puts a damper on my enthusiasm to -- to get the job done. Page 86 December 20, 2001 CHAIRMAN RAUTIO: Commissioner Strain. COMMISSIONER STRAIN: I have just the opposite opinion. I think that any communication we have on every issue ought to be revealed in front of the public regardless if it's with staff, the county attorney, or the applicant. I think that makes the public realize the in- depth research we go through to come to our conclusions so that it never looks like we have all the answers, we're just sitting up here, and things are just running by us. So I -- whether the county attorney rules that we don't have to do that or not, I still would prefer to disclose all conversations about each project that I am involved in, whether it's with staff or with the applicant. CHAIRMAN RAUTIO: And without Marjorie Student's comments, as the county assistant attorney, I want to say, too, that I feel that the more we put on the record briefly, the better off we are so that the public does realize that we're here to serve them and that the discussions we have, even with staff, to clarify items should be put on the record. So I would continue to do it myself until there's a very specific ruling. And I don't think you would be hindered from not saying that. COMMISSIONER ABERNATHY: Well, the petitioner should be entitled to know it as well. After all, the county takes on sometimes a position adversarial to the petitioner and would be interested in knowing that we've communicated with staff. CHAIRMAN RAUTIO: Any other comments under old business? COMMISSIONER RICHARDSON: Does staff have an opinion on this? MS. MURRAY: I can't speak from a legal perspective. I thought that -- what I understood David Weigel to say was that it was perfectly acceptable for you to contact us with questions about projects prior to them being heard and that if we wanted to forward Page 87 December 20, 2001 information to you as well, we could do that, and that was perfectly legal. And I'm talking via e-mail specifically here, but I know that you do telephone as well. I think -- in an abundance of caution, I think what Mr. Strain does is perfectly appropriate, is just to make it publicly known that you have contacted staff and had specific questions about the project prior to you coming to the hearing. And I don't think there's anything wrong with that, but that's -- I'm not an attorney. That's just my personal opinion, and what I heard David Weigel say. COMMISSIONER RICHARDSON: So that would argue, then, that we should keep a log and then reflect as -- in the spirit of what I'm hearing, we should reflect the content of each of these conversations then. CHAIRMAN RAUTIO: Right. Just in general -- very general aspects of them. Okay. We have finished Item No. 10, which is old business. We have continued -- excuse me. Item No. 9 was old business. Item No. 10 was the comm -- excuse me -- county attorney's workshop, and that has been continued until the 3rd of January. COMMISSIONER RICHARDSON: Any other new business? CHAIRMAN RAUTIO: Could there be any other new business? COMMISSIONER YOUNG: Personal disclosures. COMMISSIONER ABERNATHY: We have to go back and -- CHAIRMAN RAUTIO: Right. We're still hesitating. My watch says they've had their 15 minutes, so let's take a two-minute break and see if we can get the petitioner and the group back in here so we can consider delayed Item H under the public hearings item. (A break was held.) CHAIRMAN RAUTIO: We are back in session. At this moment we are going to have a discussion about Item H, whether or Page 88 December 20, 2001 not this is an insubstantial PUD change before we open the public hearing. COMMISSIONER BUDD: We really need our assistant county attorney. COMMISSIONER ABERNATHY: I thought you weren't going to open the public hearing. CHAIRMAN RAUTIO: I'm not opening it. Before we open the public hearing, we're going to have a discussion about the issue about insubstantial versus substantial change. And I do believe we need our county attorney in here and the rest of the crew. Oh, now she's talking to -- maybe we could sing Christmas carols. It sounds like a fun thing we could do, something different for the Planning Commission. COMMISSIONER RICHARDSON: Madam Chair, in connection with Ms. Young's request for more information about the fellow commissioners, I've come up with an idea that I'll volunteer as a committee of one to pursue. As I recall, at least in my case and, I suspect, in every commissioner's case, some form of biography had to be submitted in terms of the application process to the commissioners prior to their appointment. That, I would suspect, is a definition of a public record. And I will attempt to get a copy of each of those into a packet to be made available to each member. CHAIRMAN RAUTIO: Super. So I'll appoint you as a committee of one to do the biographical research, and then maybe we'll just have a minute or two at some point in the future to give the highlights that we'd like to give. Excellent. Thank you. When would you like to -- feel like you have to have that done? COMMISSIONER RICHARDSON: I'll have that done ASAP. CHAIRMAN RAUTIO: Second meeting in January. (A discussion was held off the record.) CHAIRMAN RAUTIO: Okay. Are we ready to at least have a Page 89 December 20, 2001 discussion about the substantial and insubstantial before I open the public hearing? MS. STUDENT: I am waiting for Mr. Weigel. He was on the phone. And I thought that we were going to be able to continue this for at least one meeting, but I'm told that the applicant does not want to continue it at all. So Mr. Weigel will be here momentarily. I will have a sidebar with him out in the hall, and I'll be back in. I apologize for the delay. CHAIRMAN RAUTIO: Let's see. Mr. Cuyler, would you like to sing Silent Night to us? MR. CUYLER: Prior to that let me apologize, first of all, for not having a coat and tie. What I might suggest is you may want Mr. Bellows to go ahead and start. And if you find it absolutely necessary to cut the hearing off at some point, then we'll understand that, but we won't waste your time. I understand that Mr. Weigel is going to talk to Ms. Student about a letter that they're talking about adding to a word in the -- in the document. So at the -- CHAIRMAN RAUTIO: Okay. And my dilemma is, do I open the public hearing, or don't I? MR. CUYLER: Marjorie, I suggested -- and the chairman, I guess, is going to want your opinion on this. I suggested maybe Mr. Bellows go ahead and start just to save time. MS. STUDENT: Yeah. Go ahead and start to save time. MR. CUYLER: And if you need to stop some time -- CHAIRMAN RAUTIO: Marjorie, are we going to actually open the public hearing, or do we just have a discussion about substantial and -- MS. STUDENT: Go ahead and open the public hearing because it doesn't, you know, hurt anything to do that, and then we'll come back in. Thank you. CHAIRMAN RAUTIO: Okay. Which means some people in Page 90 December 20, 2001 the hall -- all those wishing to give testimony today, please stand, raise your right hand, and be sworn in by the court reporter. And please dash in. (The speakers were sworn.) CHAIRMAN RAUTIO: Thank you. This is Item No. PDI- 2000-AR-1356 (sic), the Green Heron PUD Master Plan. COMMISSIONER STRAIN: Disclosures. CHAIRMAN RAUTIO: Mr. Bellows, you have the floor. COMMISSIONER STRAIN: Disclosures. CHAIRMAN RAUTIO: Oh, I'm sorry. I have it right here in front of me too. Disclosures. COMMISSIONER STRAIN: I just want to make sure it gets on the record. I spoke with Ray Bellows and requested a copy of the PUD. I spoke with Dawn Wolfe and expressed concern over the sigularity of the access points to Radio Road, and I spoke with Marjorie Student about a substantial versus insubstantial deviation to this PUD. CHAIRMAN RAUTIO: Any other disclosures along this line? And I've spoken to Mr. Bellows in general about the project and what it would mean for the changes. Okay. Mr. Bellows. MR. BELLOWS: Good morning. The subject site is located on the north side of Radio Road, south side of 1-75, approximately one mile west of Collier Boulevard. The petitioner is requesting an insubstantial change amendment to the PUD master plan to allow for -- I'll show you on the master plan. First and primarily, they're asking for a secondary access point onto Radio Road. The currently approved master plan has this access point, which is constructed at this time, leading up to the existing development in this area. However, there are plans to sell off the remaining undeveloped portion, and that would be developed as a Page 91 December 20, 2001 separate community. Therefore, they would wish to have a separate access point serving that community instead of having all the project trips use one access point in and out of the project. From a traffic circulation standpoint, it makes sense to have a second access point onto Radio Road to service these new units coming on-line which will be serviced by a separate home owners association, a completely different project name. The other changes include slightly shifting of the residential tracts. The natural area up on top is now placed -- where it used to be along the side here, and now there's a lake where that natural preserve area is. The number of dwelling units doesn't change. It doesn't affect the textual context of the PUD document in any -- in any form other than this issue that came up similar to the other one: Does a change to the access point affect any of the language in the PUD document? I went through the PUD document and made a determination that there wasn't a substantial reason to create a PUD amendment process to change a word to say "the" access point to "each" access point. Unfortunately, that may be an error. And we need to resolve that issue of whether that, in fact, the change to the master plan as noted, affects the PUD document in a way significantly or insignificantly enough or legally binding that requires -- that kicks it into a PUD amendment mode. And that's where we are now. I have not received any letters of opposition to this other than one of the residents or some of the residents in the existing Sapphire Lakes development had some concerns about how this project would be separated; not necessarily dealing with this issue about amending the master plan, but in relation to the entire splitting and selling off of the un -- vacant lands of this development. CHAIRMAN RAUTIO: So we don't have a PUD document to review because there were going to be no changes. Page 92 December 20, 2001 MR. BELLOWS: That's correct. CHAIRMAN RAUTIO: And you said "the" as opposed to "each," and just quote for me where in the document I -- MR. BELLOWS: Yes. I'll show you. I have a copy of the PUD document here. Stipulation 1, the developer shall provide left- and right-mm lanes on Radio Road at the project entrance. Now we'll have two projects, so there will be two project entrances. And that's -- even though I feel the intent will be served no matter what, they are required. There's no way around it. With this done -- with this language as is written -- they'll still have to provide that language, but to be legally correct, I think it should probably say "at each project entrance." CHAIRMAN RAUTIO: And that's Stipulation No. 1 in where? MR. BELLOWS: That's No. 1. And it may also be in there in other areas where it refers to the project entrance instead of each project entrance. CHAIRMAN RAUTIO: And have you had much objection to anything? What's the issue? MR. BELLOWS: Other than -- not with this issue, but just the overall issue of where, maybe, a wall separating the two projects will be located, not an issue here because the wall's not part of this amendment. Nothing else has been -- concerning this amendment and the relocation of the tracts or natural areas have been disputed. Everyone agrees. They want this second access point because they don't want the traffic going through Sapphire Lakes, the existing development. They really want this access point. It's just how's the best way and the legal way to get there. This was deemed to be an appropriate method since -- as has been done on other projects where a PDI added an access point, but I'm not sure how in detail we got into wordsmithing, how it affected the transportation section or any other section of the PUD document. Page 93 December 20, 2001 CHAIRMAN RAUTIO: Okay. Commissioner Abernathy. COMMISSIONER ABERNATHY: Ray, the last amendment cycle to the LDC, we approved an amendment that -- that Ms. Wolfe was advocating saying that future PUDs that had access, ingress and egress points, those -- the developer could no longer claim that he could rely on those forever. MR. BELLOWS: That's correct. COMMISSIONER ABERNATHY: All right. Does that mean that every time Dawn wants one of them changed, it's going to be a PUD amendment? That seems to be what we're saying here. MR. BELLOWS: It -- it could boil down to that. It just depends on the language in the PUD document and how -- COMMISSIONER ABERNATHY: Well, the language is going to be that language that she insists on. MR. BELLOWS: That's correct. It -- under existing PUDs -- COMMISSIONER ABERNATHY: Well, it looks like if everybody -- if both sides, the county and the petitioner, looking at it in advance, said we recognize that our curb cuts, whatever, are not sacrosanct, then when you get around to changing them, based on Ms. Wolfe's traffic considerations, that wouldn't seem to me to be substantial in the overall scope of things. MR. BELLOWS: Yeah. And in this particular case, I don't think transportation has an objection to this access point. I think the concern is that we do everything legally correct in handling this. And if it was a PUD amendment, it may give them, transportation department and other county departments, a little more leverage in recommending changes to the PUD document, forcing an opening of the PUD document, so to speak. So it goes under rereview for all agencies so everyone would have a chance to make changes that -- which may not be in the interest of the developer at a certain point of timing and -- and their contracts with the banks and mortgage Page 94 December 20, 2001 institutions to go through a more lengthy process. The intent of a PDI is to, you know, be much less of a review time, and that is why the Planning Commission is charged with the review and approval of insubstantial changes. The language -- COMMISSIONER ABERNATHY: It's like I may have lifted a rock. MR. BELLOWS: And I'd also like to point out the language in the staff report basically references the criteria in the code for what is an insubstantial change. And it is my professional opinion that the -- and if you read through the criteria, that this is an insubstantial change from the specific criteria listed in the codes. But there is -- and I agree with the county attorney's office. If the master plan change -- even if it does meet the criteria listed of what's an insubstantial change, if it does, in fact, result in a requirement of text changes or a conflict in the code or a perceived conflict in the code -- in this case the PUD document -- then it probably should be kicked out as a PUD amendment. Now, does this meet that case? That's not -- I think that's for the attorneys to make that call. COMMISSIONER STRAIN: Madam Chair. CHAIRMAN RAUTIO: Go ahead, Commissioner Strain. COMMISSIONER STRAIN: Clarification, if I can. What Dawn was alluding to in the alignment or the location of entry -- entrances to projects was singular. This project isn't doing that. They're not realigning their one entry. They're adding a second one, and that's the difference here. That's why I think it might be more than just a realignment of entry. And I do have -- after Mr. Wolfley gets done and Mr. Richardson gets done, I have a couple other questions. COMMISSIONER RICHARDSON: Just quickly, looking at the overhead, the map, there appears to be two entrances, at least in the -- to the site already. Is that a construction entrance, or what is Page 95 December 20, 2001 that? MR. BELLOWS: Yes. On the existing PUD map, there is a construction entrance. COMMISSIONER RICHARDSON: Well, I'm looking at the -- what's on the ground, actually there. It appears that there's -- MR. BELLOWS: Yes. COMMISSIONER RICHARDSON: And that's the approximate location they're asking for the new entrance to the to-be-divided area? MR. BELLOWS: That's correct. COMMISSIONER RICHARDSON: This is a gated community, the one -- the one that's there? MR. BELLOWS: I can't recall offhand if it's gated. It's not. COMMISSIONER RICHARDSON: Do you know whether the new one is -- this is just by way of information to me -- whether the new one is planned to -- MR. BELLOWS: No plans have been submitted as to it being gated or not at this time. CHAIRMAN RAUTIO: And that's -- what they're trying to sell off is already part of a whole PUD. MR. BELLOWS: Yes. CHAIRMAN RAUTIO: Wouldn't that involve text change, if you're going to have something gated? MR. BELLOWS: No. The -- unless there's specific language stating where gates are going to be, then it wouldn't -- in this case the PUD document doesn't say anything about how the gate -- the project should be gated or not or walled or not. So that issue is not part of this PUD amendment or insubstantial change amendment. It doesn't affect any of that. COMMISSIONER RICHARDSON: The proposed master plan, Exhibit B, shows a box in the center of the roadway, and typically that would be a structure that would look like it would be something Page 96 December 20, 2001 to control traffic going in and out. Perhaps that's just a blot on my map that's not supposed to be there. MR. BELLOWS: Well, there's an arrow showing the project entrance. And let me zoom in here. COMMISSIONER RICHARDSON: I'm looking at the existing entrance, though. MR. BELLOWS: Oh, the existing. CHAIRMAN RAUTIO: Commissioner Wolfley. MR. BELLOWS: It's a gate house feature, but I guess it's not a controlled access. COMMISSIONER WOLFLEY: From the approved master plan to the proposed master plan, are we only to look at the entrances, not the realignment of all of the units within? MR. BELLOWS: Yes. You look at everything. The amendment is -- as stated in the application, they're looking at shifting of some of the residential tracts, the internal road is slightly changed, and then the natural area. None of that exceeds any levels of-- dealing with significance. One of the criteria is, is there going to be a reduction of natural areas or preserve areas of this project as a result of this amendment? And my stated response was it doesn't reduce it, but it actually increases the amount of preserve area. COMMISSIONER WOLFLEY: Okay. Thank you. Except the lake area. CHAIRMAN RAUTIO: Commissioner Strain. COMMISSIONER STRAIN: Yes. I have just two questions. On the aerial that you provided, Ray, and on the proposed master plan, the proposed master plan adds .62 acres of preserve area. And I know that if they were to decrease preserve area, they wouldn't be qualifying themselves -- it would have to be a substantial deviation. MR. BELLOWS: That's correct. COMMISSIONER STRAIN: If you look at the aerial, the very Page 97 December 20, 2001 most northern point that's disturbed on the aerial, and it's disturbed pursuant to the already approved master plan. So that means there's an SDP out there or something allowing them to have cleared that area. That area now on this new master plan is shown as preserve, and it totals just under 43,000 square feet, which is almost an acre, at least by scale. And I'm wondering if it's disturbed and it was already approved to be cleared, how it's going to be natural and preserve again and be, therefore, included in a natural preserve calculation. I can show you on this scale if you want to see it. MS. MURRAY: The word "preserve" doesn't necessarily mean it has to be -- I mean, you can preserve land area that's been disturbed and replant it and replant it with native vegetation. I don't know if that was the plan, but there's nothing in the code that says a preserve area has to be a -- an existing vegetated area. MR. BELLOWS: And it also includes open space, such as front yards of residences, in that calculation. So that is the defining difference between a -- a preserve area and a natural open area. And that's -- basically what this PUD calls it out as is natural open space areas. That includes front yards right in front of the house. COMMISSIONER STRAIN: Under their environmental considerations there were approved in their amendment in '95, it says all pine trees, both mature and immature, shall be committed to preservation to the extent possible in the natural areas indicated on the approved plan. And obviously if they've been taken down, they won't be preserved. That was my first comment on that. And that does affect the amount of preservation land, and that's what I was concerned about. And the other item is one pertaining to Dawn. In the amendments to the PUD in '95, the following language is stated: An easement associated with the improvements to Radio Road, whose width would vary from 30 to 35 feet, shall be granted to Collier Page 98 December 20, 2001 County for drainage purposes along the entire east boundary when requested by Collier County. Well, the east boundary now on this is going to be made into a lake. Does that have any impact on what you would want to use that 30- to 35-foot easement that was required to be supplied? MS. WOLFE: Yes. And part -- the fuller answer to that is that additional lake area is part of ongoing coordination with the property developers in regards to providing stormwater attenuation for the entire four laning of Radio Road. As you may or may not be aware of, we have -- are commencing with the realignment with Radio Road with Davis Boulevard and are in need of providing that stormwater attenuation ahead of the full four laning. And by the prior PUD documents that are on record, as well as developer contribution agreements, a conveyance of the stormwater for Radio Road is required within that area. Because of changing permitting requirements, we will probably have to attenuate it rather than just let it flow through that area. That 8-acre lake is in response to additional permitting requirements. We continue to -- we are working with the engineers who are permitting that for the development, but it is intended to handle the stormwater requirements for the entire Radio Road four laning. So it does have an effect. We will, in all likelihood, be seeing part of that easement used for lake rather than just a straight swale conveyance, based on the information we've seen, but we're continuing to work towards them. We have requested documentation from them that they have dedicated that easement to us because they've been given credits for it. COMMISSIONER STRAIN: Okay. But if you're now going to be using the entire lake for attenuation, you're going to need more than the 35 to 30 feet that was in an easement that was on dry land. Do you believe that would change the PUD document language to Page 99 December 20, 2001 make sure that the county receives that commitment, or would that be a way to do it? MS. WOLFE: We -- I don't believe we need to. We're working with the county attorney's office in regards to ensuring that there's adequate language within all of our agreements, including the contribution agreement, to ensure that our needs for the Radio Road improvements are taken care of through the stormwater system and the provisions in those documents. COMMISSIONER STRAIN: As long you're covered, that's fine. Thank you. MS. WOLFE: We're making sure we are. Thank you. MR. BELLOWS: Again, for the record I'd like to point out, too, that master plans are -- though this one has more information than most master plans, it's a conceptual plan. And the location of lakes are allowed to be shifted through the development review process without triggering a PUD amendment. So when they come in for their site development plan and right-of-way requirements that are already in existence in the PUD document, wants the lake shifted a little bit, it wouldn't trigger a PUD amendment in that case. CHAIRMAN RAUTIO: I think we've about asked every question we can of you. I think we need the petitioner in here and the assistant county attorney. MR. PRITT: Could I ask Ray Bellows one question? CHAIRMAN RAUTIO: Yes. Step forward and -- MR. PRITT: For the record, I'm Bob Pritt, representative of the President's Council of the Sapphire Lakes Homeowners Group. We could explain what that is later on. But I just wanted to ask a question, Mr. Bellows. On the yellow part, that boundary that you're showing there, that -- what does that represent? I said one question. I guess I'll probably ask two. CHAIRMAN RAUTIO: I figured so. Page 100 December 20, 2001 MR. PRITT: You knew it. MR. BELLOWS: Well, I just tried to highlight the new road line, but I may have included this, which may not be part of this change. It wasn't clearly defined. What's new -- MR. PRITT: Might I ask, in the staff report -- MR. BELLOWS: Go ahead. MR. PRITT: I'm sorry. Go ahead. MR. BELLOWS: No. I'm fine. MR. PRITT: In the staff report, you refer to "and revise the boundaries of the residential, natural open space and lake areas within this partially developed project." Is that what that represents? MR. BELLOWS: No. That's -- I just tried to highlight the road location within the project. MR. PRITT: Well, the part of your -- okay. I guess I said it the wrong way. The part of your staff report that refers to the boundaries for the residential, natural open space and lake areas -- MR. BELLOWS: Which item is that? MR. PRITT: How is -- how is that actually effectuated? Is that done through a hearing before the Planning Commission or the county commission, or is that done before the -- as a matter before the staff?. MR. BELLOWS: Which item are you looking at? I just want to be-- CHAIRMAN RAUTIO: Which item are you looking at, sir? MR. PRITT: I'm looking at your staff report. CHAIRMAN RAUTIO: Page? MR. PRITT: December 4, on the requested action. I'll just read it. It says, "The petitioner seeks approval of an insubstantial amendment to the Green Heron PUD to amend the master plan to add a second entrance point off of Radio Road and revise the boundaries of the residential, natural open space and lake areas within this Page 101 December 20, 2001 partially developed project." MR. BELLOWS: Yes. MR. PRITT: All right. Now, the part that they're -- so far we've talked about today is the entrance. Where does -- the part concerning the revising the boundaries of the residential, natural open space and areas within the partially developed project, where is that? MR. BELLOWS: Addressed in the staff report? MR. PRITT: Well -- MR. BELLOWS: I explained earlier the currently approved master plan shows a natural open area along the eastern property line. The residential tracts are right abutting the northern property line. Under the proposed master plan, the natural area is moved up along the northern area, and the lake area is moved along here. The residential tract is shifted down. That was -- is the meaning of that language. MR. PRITT: And the place that that is found is in the master plan -- MR. BELLOWS: That's correct. MR. PRITT: ~- map. COMMISSIONER ABERNATHY: Excuse me, Mr. Pritt. MR. PRITT: Thank you. COMMISSIONER ABERNATHY: It looks like the people we've been waiting for are here, and if we're going to deal with this -- MR. PRITT: I'm finished. COMMISSIONER ABERNATHY: Good. CHAIRMAN RAUTIO: Thank you. COMMISSIONER ABERNATHY: Timing is everything. CHAIRMAN RAUTIO: We are at a sidebar. COMMISSIONER RICHARDSON: What do they call three attorneys that are all talking together? CHAIRMAN RAUTIO: Actually, there are four attorneys there. Page 102 December 20, 2001 Now there's five, six. COMMISSIONER RICHARDSON: It's not getting better. CHAIRMAN RAUTIO: We need some testimony here. MR. FALK: Good morning, Madam Chairman and members of the commission. I'll make my comments as brief as possible, and thanks for extending the time out. CHAIRMAN RAUTIO: And you are? MR. FALK: My name is Steven Falk with Roetzel & Andress. And I represent the residents of Sapphire Lakes, and the entity that I have been retained by is called the President's Council. These are ladies and gentlemen who are the presidents of the condominium associations within Sapphire Lakes. COMMISSIONER ABERNATHY: They don't know anything about whether this is a substantial or insubstantial change, do they? MR. FALK: We are -- my clients are willing to go forward with this project based upon the existing application. COMMISSIONER ABERNATHY: Fine. MR. FALK: These are elected representatives of the condo associations on this President's Council. There's been a lot of negotiations between all parties concerned -- COMMISSIONER ABERNATHY: Wait a minute. Somehow nobody seems to understand. We're here to hear this question of whether it's substantial or insubstantial before we get into all of this other stuff. So let's have Marjorie and the county attorney and Mr. Cuyler, whoever's going to argue this, and get on with it. We've been a half hour. I'm beginning to feel like a juror. COMMISSIONER RICHARDSON: Without free lunch. MR. WEIGEL: Late good morning. David Weigel, county attorney. I've been pulled in and reviewed the matter a little bit here. And -- CHAIRMAN RAUTIO: Would you pull the mike more directly Page 103 December 20, 2001 to you, please. Thank you. MR. WEIGEL: It's interesting, not a unique question. This does come up from time to time in regard to the close call. And what I can tell you is it is a close call, and it ultimately tums into a judgment call. And in looking at the language talking about the project, the project entrance, we note that a type of interpretation could be any project entrance, and we note also that in the document -- MS. STUDENT: This is the PUD amendment. It's Ordinance 95 -- well, it looks like 95-30, but it's an amendment amending Ordinance No. 84-21, the Green Heron Planned Unit Development Ordinance. MR. WEIGEL: And, Marjorie, does the Planning Commission have that document before them in their review at the present time? MS. STUDENT: No, they do not. MR. WEIGEL: Okay. Well, what I can tell you in looking at that document myself, which does have the language concerning the project entrance and the question is -- and we're talking here about two entrances or more than one entrance being potentially -- the -- the question of more than one entrance coming into play in this development at this point. The -- I've been -- I have read and been assured that -- in fact, transportation notes that they will have the ability to obtain their assurance, as to whether there's one or more entrances, of what is needed for transportation and the appropriate linkups to the access ways and corridors outside. All that being said, I think that we can advise you from the legal standpoint, it being a close call, that this could go forward as an insubstantial change in using the definitive application that the project entrance, which is the language that's currently there, means any project entrance. And they will come back, potentially, with project entrances on the plat, which will come back before the Board Page 104 December 20, 2001 of County Commissioners. It will come under scrutiny of the -- of our transportation department as far as the one entrance or more entrances in regard to location and coordination with the county's road plan. I'm also assured by the battery of counsel on behalf of the petitioner that they will indemnify the county if there should be litigation concerning this interpretation and the viability of the decision that you may make today. So the answer is yes, it may go forward as an insubstantial change, upon what I've just told you. CHAIRMAN RAUTIO: Any questions of Mr. Weigel? MR. CUYLER: Madam Chairman, could I just clarify that commit -- CHAIRMAN RAUTIO: Oh, certainly. MR. CUYLER: No, no. I mean just the last part of it. We indicated that we're comfortable with that interpretation. We would be willing to defend that interpretation at the developer's expense should anybody challenge it, and we don't think there's any chance they could prevail. CHAIRMAN RAUTIO: Okay. COMMISSIONER RICHARDSON: Hopefully that was the same thing he said. MR. CUYLER: Well, it was. There's a slight difference between indemnify and us actually defending it. But we would defend that decision, yes. CHAIRMAN RAUTIO: Okay. So we are down to where -- do we have a sense of the board up here that this is insubstantial, that we can go forward? COMMISSIONER ADELSTEIN: Yes. COMMISSIONER RICHARDSON: Let's finish the public hearing. CHAIRMAN RAUTIO: We feel comfortable to go forward? Page 105 December 20, 2001 Okay. We shall continue. You've made your lengthy presentation. I guess we need to hear from the petitioner, who we silenced. MR. FALK: I'm not the petitioner. CHAIRMAN RAUTIO: Oh, you're not the petitioner. The petitioner, representative? Who's on first? Who's on second? MR. McANLY: For the record, my name is Bill McAnly, and I'm engineer for the project. Basically you have all the information, and we just want to get the extra entrance into the project. We're here mostly to answer questions or anything you might have pertaining to anything that we're asking for in the -- in the petition, but we -- we are just asking for the second entrance into the property. CHAIRMAN RAUTIO: probably -- MR. McANLY: I'm not CHAIRMAN RAUTIO: public speakers because a lot have nothing you really want reserve some time -- MR. McANLY: Well, a CHAIRMAN RAUTIO: That's all you're asking for. So we -- pardon me? We probably have some registered of people held their hands up. So you to say at this moment. You'd like to couple things. Excuse me, sir. Let me finish. You would like to reserve a little bit of time at the end to respond, as the petitioner, to comments made by the public, since you have nothing to really tell us at the moment? MR. McANLY: Well, ! can add a couple things to what I said in the presentation. CHAIRMAN RAUTIO: Go for it. MR. McANLY: In regard to something that Mr. Strain said about the clearing of the natural area, there -- there is no natural area that we cleared. I don't know whether the map is the -- it's the scale or that -- that would -- would make it look like that it was cleared, but it -- there has been no natural area cleared. Page 106 December 20, 2001 A couple of other things. One thing that was brought up was the lake on the east side of the property. That lake was to be -- where that lake is was going to be natural area, and that was one of the things that was said, was it had been removed for the lake. Actually, that lake is required in order to benefit the county in their retention and attenuation for their water management on Radio Road. The lake itself is a nice aesthetic for our project, but it's not necessary for our project. And that's the reason we're using that natural area, is the county is required to have some water retention for their water management, and that lake was added to -- for that benefit. The other thing as far as the access, the second access road which, like I said earlier, is the main thing that we're after, when -- this is a DRI, and when it was being approved the South Florida Regional Planning Council was almost insisting on a second entrance. The petitioner at that time was -- wanted a gated community and only wanted the one entrance, but the owner now, of course, would like to have two entrances. But the -- the South Florida Regional Planning Council has always wanted this second entrance. And in talking with them before we filed this petition, they said they would be glad to write a letter stating that this would be a benefit to the development and the traffic pattern. If there's anything -- I'll be glad to answer any questions. CHAIRMAN RAUTIO: Mr. Strain, do you have a question now or later? COMMISSIONER STRAIN: Just one question, Mr. McAnly, and it's probably a simple resolution but -- is there some way I can show him what I have in front of me so he can know what I'm talking about? Is that technically okay? MR. McANLY: I can step over there. COMMISSIONER STRAIN: It's okay with me, but I'm not -- I'm kind of new anyway. Page 107 December 20, 2001 CHAIRMAN RAUTIO: Somebody give him one. Paul, do you have yours? Okay. Do it on the visualizer. COMMISSIONER STRAIN: How does a finger show up on this thing? CHAIRMAN RAUTIO: Huge. COMMISSIONER STRAIN: I'm glad I washed. This is the areas that I'm talking about; this one in particular. If you look at your original approved plan, that area goes all the way to the property line. And because it's built here, this parcel looks like it might have gone through SDP process because it's -- looks like it's built further than what your proposed master plan indicates you're going to go with. And all I'm trying to get at is if that area is end up -- is cleared and disturbed, as this looks, we might want some criteria that you're just going to go in and replant that and put it back to its natural state as far as the preserve area. And that's the only point I was getting at. MR. McANLY: Maybe it's easier for me to step over here too. COMMISSIONER STRAIN: That's fine. MR. McANLY: On this -- CHAIRMAN RAUTIO: You're going to have to speak into the microphone, and talk as if you're talking to us up here, please. MR. McANLY: Okay. See, on the original -- oh, you're -- you're talking about this section up here? COMMISSIONER STRAIN: Yes. CHAIRMAN RAUTIO: Can we point on the visualizer with a pen or something so we all have some opportunity to see? COMMISSIONER STRAIN: How's my big finger for a pen? Will that work? CHAIRMAN RAUTIO: Okay. MR. McANLY: What he -- what he's talking about is right on the north end of the cleared area that's there. And the thing that -- I don't know if we can put this other one -- can we go back to the other Page 108 December 20, 2001 one? COMMISSIONER STRAIN: This area right here is preserve on this plan. MR. McANLY: If-- it's kind of hard to see because on this aerial photo, the right-of-way for 75 is not shown. But if you look -- this is going to be kind of a -- if you line the top of this with the top of this road and then you look at it over here, you see that this clearing didn't really happen up above that. In other words, you can't see it because the aerial doesn't go quite far enough. But compare it with the road -- compare it with the road, and you can see that it just -- this was -- this road was never -- the road at the north end just was not put in. COMMISSIONER STRAIN: Thank you. MR. McANLY: If you have any questions, I'll be glad to -- any other questions, I'll be glad to try to answer them. COMMISSIONER RICHARDSON: MS. MURRAY: We lost our chair. COMMISSIONER RICHARDSON: Public speakers? Mr. Abernathy. MS. MURRAY: Mr. Abernathy, what would you like to do now? I have a list of public speakers, some of which had started speaking and sat down, and others got up. And I've got Bob Pritt on the top of the list. I don't know if you want to -- COMMISSIONER ABERNATHY: Well, this gentleman seems to be representing some party with some sort of interest in this. MS. MURRAY: This is Mr. Falk again? MR. FALK: Yes, it is. Steven Falk, again, for the residents. And I will tell you that the only people who will be speaking on behalf of the residents are myself and Mr. Floyd Chapin. And after we conclude I believe Ms. Jane Cheffy will speak on behalf of the petitioner, and we'll get this done as quickly as we can. Thank you. The residents of Sapphire Lakes have been negotiating with the Page 109 December 20, 2001 existing developer and the petitioner for quite some time on issues that relate to this petition, but is not -- but are not in the petition. And the parties have reached agreement on this. And if I may, I'd like to enter into the record an agreement that has been signed by the parties, and we would like all of these conditions -- there are various conditions in there that we want attached to the conditions of approval. These are -- these are issues -- CHAIRMAN RAUTIO: Where's our county attorney? Are you in the hall, Marjorie? You're talking about items that are not before us this morning that you're asking us to enter into the record and accept an agreement that has not been advertised; am I understanding you correctly? MS. STUDENT: It's just for informational purposes. The Planning Commission is not a party to this agreement. CHAIRMAN RAUTIO: They're asking it to be -- MR. FALK: We would like this agreement that's been signed by all the parties to be attached to the approval, and all the parties are in agreement that this will happen. MS. STUDENT: It -- I don't think it needs to be attached to the approval because then you're getting to textual things. If you want to put it in the record and have it be part of the record, I don't have a problem with that. But I do have a problem -- once it becomes attached to the record, that means I have to do a legal review of it, and I haven't been given it, and I don't think it belongs on the resolution. But I have no problem with entering it into the record and having it a part of the record. CHAIRMAN RAUTIO: That's my concern exactly. COMMISSIONER RICHARDSON: It's nice to have some indication the parties have some form of an agreement, though. MS. STUDENT: Yes. It can be in the record but -- and I have no problem with that. But when it becomes part of the thing you're Page 110 December 20, 2001 adopting, well, you got a lot of language there, for one thing, lots of language. And-- CHAIRMAN RAUTIO: And -- MS. STUDENT: -- also I haven't had a chance to review it. And the -- COMMISSIONER ABERNATHY: I think they agree with you, Marjorie. CHAIRMAN RAUTIO: And neither do I. I haven't had a chance to agree with -- review it either, so I can't attach it to approval, as a planning commissioner. MR. FALK: Madam Chairman, we are in agreement that it will be entered into the record, but not attached. And Ms. Cheffy will represent on behalf of the petitioner that they're in agreement with this arrangement. CHAIRMAN RAUTIO: Thank you. COMMISSIONER RICHARDSON: Just on a technical issue, is this, then, not enforceable by the county? This is a private contract, then? Is that what that amounts to? COMMISSIONER ABERNATHY: Whatever it is. COMMISSIONER RICHARDSON: If it affects some material arrangement that they're going to have within this PUD, it's outside of what staff could -- MR. BELLOWS: That would be my interpretation. MS. MURRAY: That's correct. MS. STUDENT: And apparently -- well, it's a seven-page document, and I think to have a legal review of it at this time in five minutes is -- MR. CUYLER: Madam Chairman, if I could just quickly explain, one side wants the document in the record. It's nothing that the county is going to be enforcing. We're not asking that it be part of the resolution. I think Marjorie would probably agree we can Page 111 December 20, 2001 submit anything that we would -- MS. STUDENT: Yeah. I said that. MR. CUYLER: So she's okay with it going into the record. The -- Ms. Cheffy will stand up and make some rep -- representations about the document so that they'll be comfortable it's in and that we have a record and the court reporter has it down, and that gives them the comfort level they need. CHAIRMAN RAUTIO: And you can assure me that it has real relevance to what we're attempting to do here today. MR. CUYLER: It is the basis for everybody agreeing and standing up here and saying they're happy. CHAIRMAN RAUTIO: Because I think I can speak on behalf of this board. We are somewhat in the dark as to why it's taken so long to even be able to discuss this issue and what's going on here. And we have a staff report that tells us certain things. And -~ MR. CUYLER: Right. CHAIRMAN RAUTIO: time at this. And none of those things -- -- we are taking entirely too long a MR. CUYLER: Sorry for interrupting you. And we do want to thank you for your patience, sincerely. I know that we've taken too long. But the relevance is this is not a new vacant project. This -- there's people here, and there are certain concerns they have. We've agreed to those concerns -- to resolving those concerns. And I think really what we're trying to do -- I'm sure it doesn't look like it, but we're trying to expedite your approval. It doesn't appear like that, but we're doing our best to try to get rid of all these issues so that you can look at the staff report and say, fine. We're okay from the county's point of view. CHAIRMAN RAUTIO: And, Mr. Cuyler, let me remind you that perception and image are everything. MR. CUYLER: I understand that, Madam Chair. Page 112 December 20, 2001 MS. STUDENT: The county's not a party to this contract so -- and it isn't intended to be, so I -- there would be no way that the county would be involved in trying to enforce its rights under the contract because it's not a party; and therefore, it has no rights under the contract. CHAIRMAN RAUTIO: And you did look to make sure, with all these signature lines on here, the county's not there. Thank you. COMMISSIONER RICHARDSON: And arguably, if there was something in here that conflicted with the PUD document, why then that would be -- MS. STUDENT: The PUD document controls. CHAIRMAN RAUTIO: Thank you for that being on the record. MR. FALK: To continue on, Steven Falk again. The sole purpose of having this on the record is to evidence that the parties have agreed to this. And we have distributed this seven-page agreement. I would like to -- simply for the record, to read out or I can re -- incorporate by reference. I will refer to certain numbered items and represent to you that the parties have agreed to those. CHAIRMAN RAUTIO: And that has some relevance to our -- MR. FALK: That have relevance to the fact that the community is being split off into two separate communities. That's everything that we're talking about. CHAIRMAN RAUTIO: Right. And, sir, I just want to make sure you understand that I'm losing my patience, and I don't like being interrupted. So move forward. MR. FALK: I apologize. The items that the parties are in agreement with are Items 2-c, 2-d, 2-g, 2-h, and 2-i. The parties recognize that Item 2-c will be operative to the extent it is not prohibited by law. And when I say "law," I do not refer to the Land Development Code. With respect to Items 2 -- Item 2-g, I would also like to enter into the record a letter from the Golden Gate Fire Page 113 December 20, 2001 Control & Rescue District dated December 9th, 2001, to Mr. Floyd Chapin. And that relates to the fact that a second entrance -- I should not say second entrance. There will be no emergency connecting road or gate between the two communities, meaning Sapphire Lakes and the new Green Heron. And I would like to forward that to Marjorie Student so it can be entered into the record and -- entered into the record and circulated to the commissioners. I can represent to the commission that the parties are in agreement, but I'd like now to have Jane Cheffy confirm that with respect to the petitioner and with respect to the adjoin -- to the landowner of the adjacent parcel. Thank you. And I'll reserve some time in case I need to say some more. Thank you. CHAIRMAN RAUTIO: Thank you. And I was out in the back, and I didn't know how many registered public speakers we have. MS. MURRAY: Well, I don't have Ms. Cheffy, but I -- other than that I have one, two, three, four, five, six. CHAIRMAN RAUTIO: Okay. And if you would be so kind just, Ms. Cheffy, to give your card to the court reporter, we'll go forward with that as a use of the form you might have filled out. MS. CHEFFY: Would you like me to do that prior to speaking? CHAIRMAN RAUTIO: After. Go for it. MS. CHEFFY: I'm Jane Cheffy. I'm here on behalf of the petitioner. I'm here also to represent to the Planning Commission and to put of record that I have spoken to the attorney for the landowner. The attorney for the landowner is aware of this agreement. The attorney for -- and he's also one of the partners and owners of the property. And I also spoke with another one of the partners, and the two of them have agreed to bind the partnership which owns this land to the paragraphs 2-c, d, g, h, and i with the caveat, as Mr. Falk explained, to the extent not prohibited by law. And also, with respect to the letter that we received from the fire department, they're in Page 114 December 20, 2001 agreement with that as well. CHAIRMAN RAUTIO: I just want to point out on the fire department letter from the fire marshal, it actually says, "Per your request I am writing you this letter to confirm the fact that a second entrance to this project is not required." I didn't quite understand that, when the gentleman presented, what he said. So just for the record, it's saying that the fire department's saying it's not required. It's not some strange thing about limiting access to the area. It's -- the Golden Gate Fire District has said, okay. Fine. This will work out. And I didn't feel comfortable with that when he mentioned this before he passed it out. So we're in good shape. It's just not a requirement, because we want as much access for emergency vehicles as we can have to save life and the public. MS. CHEFFY: Absolutely. Any other questions? CHAIRMAN RAUTIO: Commissioner Strain. COMMISSIONER STRAIN: Hi, Jane. MS. CHEFFY: Hi, Mark. How are you? COMMISSIONER STRAIN: It's good seeing you again. MS. CHEFFY: Good to see you. COMMISSIONER STRAIN: Item g -- and I'm not sure you're the right person to address this to -- it says, "There shall be no connecting roads between Green Heron and Sapphire Lakes." The proposed master plan we're asked to approve today shows a connecting road. Is that -- or am I reading it wrong? MS. CHEFFY: Well, I think that that was the issue with the fire department, was it not? The -- on behalf of the developer of the new project, we would prefer not to have to put a connecting road in as well. We're certainly not opposed to eliminating that connecting road. Our only concern is that if we must have it to go forward with the development, we would like to be able to do that. But if-- if, indeed, the fire department isn't requiring it, then unless the county is, Page 115 December 20, 2001 we don't want it either. COMMISSIONER STRAIN: What I'm trying to avoid is having you-all have to come back for another plan change. And I'm not sure it would require one, but ! thought I'd bring it up now that I notice it's on the plan we're supposed to be approving. If it isn't going to be there, Ray, is that going to be an issue? MS. CHEFFY: Ken, I think, can address that if that's okay. COMMISSIONER STRAIN: Sure. MR. CUYLER: I think our position is that whatever the county requirements are, we will live with. With regard to our neighbors, there has been an agreement reached with regard to -- to that connection. But with -- we indicated to them if the county requires it, then we're bound by it. If the county doesn't require it, then that's fine. But we'll live with the county's requirements. MS. STUDENT: I think -- I had a chance to look over the document very quickly, but I think in that paragraph there is a qualifier that if it's required by the county -- you know, that there won't be unless it is required by the county. COMMISSIONER STRAIN: Well, there is -- MS. CHEFFY: That is correct. COMMISSIONER STRAIN: And I was just trying to clear up the master plan, though. We've got a new master plan in front of us. This is only for a graphic approval of the master plan. Is that graphic approval now correct or incorrect? That's all I'm trying to find out. CHAIRMAN RAUTIO: Right. In reference to the graphic approval, would you point a pen to where we're looking right at? Thank you. COMMISSIONER STRAIN: Right there. CHAIRMAN RAUTIO: So are you on the same page as we think we are, Ms. Wolfe, from transportation? MS. WOLFE: Dawn Wolfe for the record, transportation Page 116 December 20, 2001 planning department director. The language, as I read on that page 3 of 7 from the agreement, no connecting roads with the exception being for any connecting roads that may be required for health, safety, and welfare. I would be concerned with any enforcement of that as our -- this is not what was represented to county staff in regards to the secondary accesses, the connectivity, and the distribution of traffic. I believe it's contrary to what was represented to staff. We would maintain that there needs to be free-flow interconnectivity maintained and constructed and be required to be put in place as this moves forward, with the second means of access. CHAIRMAN RAUTIO: And since this is a document that we're talking about, this agreement, that the county can't enforce, there is a question. COMMISSIONER RICHARDSON: The PUD would rule. CHAIRMAN RAUTIO: The PUD would rule. COMMISSIONER STRAIN: That's what I was -- MS. STUDENT: But the county enforces through laws. Private parties can make whatever agreements they want to make but -- and that doesn't bind the county in any way. We -- and they're bound by our law. You can make an agreement that's contrary to the law, and if one party wants to get out of it, you know, well, they're left to their own devices. But the law is what governs. MS. CHEFFY: And if I may point out, this subparagraph g does provide that the only exception being for any connecting roads that may be required by any governmental agencies. So that addresses, I believe, Ms. Wolfe's concern. CHAIRMAN RAUTIO: And Commissioner Strain's. I mean, it's on this map at the moment, so it's going to stay that way if we approve this. COMMISSIONER STRAIN: Exactly what I was getting at. CHAIRMAN RAUTIO: I just want to make sure that's clear on Page 117 December 20, 2001 the record for all these people that have been here for so long. COMMISSIONER RICHARDSON: Just hypothetically, while these two areas may not wish to be connected for whatever traffic control reasons they have, from a public safety and welfare standpoint, you've got to consider that -- that we need to be able to get fire and emergency equipment in as quickly as possible. And, you know, God forbid, but if we have an accident that blocks off one of those entrances, you really need a way, at least on an emergency basis, to get between the two. And I would strongly encourage us to hold the line on interconnectivity, even if it's a barrier with a cut through that the fire people could use. You know, I mean, I'm -- we need to go at least the distance to allow us to have more than one way to service these people. MS. WOLFE: If I may, Madam Chairman. CHAIRMAN RAUTIO: Yes. MS. WOLFE: The intent is not solely for the purposes of moving emergency vehicles into and between the developments. It would be somewhat presumptuous to assume that both access points would retain full and open access to both directions on Radio Road at such time as it may be multilaned, which we do have in our program in the capital improvements elements to occur in the upcoming years. Based on the evaluation that had been submitted to me, it was identified that there would be free flow from both areas to utilize either entranceway and that any type of gating that could be presumed in the future to limit that would be contrary to what was represented to the department in making its determination as to whether or not there would be a substantial change in regards to a secondary access point. COMMISSIONER RICHARDSON: That satisfies me. CHAIRMAN RAUTIO: Thank you. Our next public speaker. Page 118 December 20, 2001 MS. MURRAY: Just for the record, Mr. Falk came up and had represented to you that he was going to speak for the others, and he came and took out four of the speakers out of my list. So I have two left, and they are -- the next one would be Floyd Chapin. CHAIRMAN RAUTIO: Okay. And then he will speak for the four that you removed; is that the concept? MS. MURRAY: I understand Mr. Falk was speaking for the four that he removed. CHAIRMAN RAUTIO: Thank you. I'm sorry, Ms. Cheffy. Are you through? MS. CHEFFY: I'm finished unless you had any other questions. CHAIRMAN RAUTIO: Any questions of Attorney Cheffy? Thank you very much. It's nice to see you again. MS. CHEFFY: Nice to see you, J.A. COMMISSIONER RICHARDSON: I don't even know you, and it's nice to see you. MR. CHAPIN: Good morning -- or good afternoon. My name is Floyd Chapin. I reside at 228 Belina Drive, Naples, Florida, commonly known as Sapphire Lakes. I appreciate your indulgence and your patience. We've been here a long time too. I just want to say I'm happy to be the president of one of the associations in Sapphire Lakes. And there are seven or eight or nine of us here that wanted to speak, but we all agreed, because time is of the essence, we decided to give you a break, and I would be the only speaker. And I'll be very brief. We, in principle, agree with the discussions that were held here today. And we think it is, at this point, an insubstantial issue, and we would concur that you proceed accordingly. As was stated by the attorneys, there are some agreements that are in the process, and we expect the developers to honor them with the owners of Sapphire Lakes. So with that, if you have any questions. Page 119 December 20, 2001 CHAIRMAN RAUTIO: Any questions of this gentleman? MR. CHAPIN: Oh, just one comment on the fire department letter that you have. I negotiated that with the Golden Gate fire chief and the fire marshal. They were talking about the secondary road that you referred to, and that's what that letter refers to. They are not requiring a secondary road into Sapphire Lakes. We do not want a second road to go -- a secondary road to go through Sapphire Lakes. First of all, the fire tracks could never get through there. If you look at the configuration of how it would happen, it would take them longer to go through there than it would to go to -- around 1-75. I just want to make that part of the record. CHAIRMAN RAUTIO: And I'm glad you did make that part clear because that's part of my concern. Having ridden on fire trucks, this would be a fascinating place to drive around in a hurry. MR. CHAPIN: When I originally talked to the fire chief about it and the fire marshal, they indicated that would be necessary. And when they looked at it a second time, we would make five left-hand tums and four right-hand tums, and they could never get their equipment through this facility. COMMISSIONER RICHARDSON: However -- if you would agree, however, that if the other road was unfortunately blocked for some natural or unnatural cause, it would be certainly useful to have a way to get in to -- to serve your entire area. MR. CHAPIN: Well, if that's the case, sir, then we'd have to have a connecting road between our property and The Shores, which is another piece of private property. We're talking about separating our community from that of Green Heron, and we don't want to have access from another development in ours to use our facilities and so on and so forth. COMMISSIONER RICHARDSON: I've heard your point. But the map roles, so that's where we stand. Page 120 December 20, 2001 MR. CHAPIN: Okay. Thank you very much. CHAIRMAN RAUTIO: Thank you very much. COMMISSIONER ABERNATHY: MR. CHAPIN: Oh, I'm sorry. COMMISSIONER ABERNATHY: Wait a minute, Mr. Chapin. I understood the transportation people to say that there is going to be that connection between there and that people from the new development can go through Sapphire Lakes any time they want. MR. CHAPIN: Well, Mr. Abernathy, the only thing I can say is I have the letter from the fire department. That was a stipulation that I was told, that the fire department required it. There's no -- as I understand it, there's no county -- COMMISSIONER ABERNATHY: We're beyond fire department now. We're talking about just a garden-variety resident in the new area can come through Sapphire Lakes any time he wants. That's what the transportation people just got through saying. MR. CHAPIN: We don't agree with that. COMMISSIONER ABERNATHY: Well, I thought that's why several of the people in the audience were here, because they don't agree with it. So -- MR. CHAPIN: Because we have an agreement with the developer that the road will not be -- COMMISSIONER ABERNATHY: All right. Well, Marjorie just said that if it's contrary to the county's regulations, laws, and whatnot -- MR. CHAPIN: If it's applicable -- MS. STUDENT: You can't privately -- you can't privately take the ability away from the local government to regulate. MR. CHAPIN: If it's applicable by county ordinance, I guess we have to live with it. But our point is that from the investigations we've conducted, it's not applicable. Page 121 December 20, 2001 COMMISSIONER ABERNATHY: It's fairly significant that you're going to have several hundred, whatever it is, units over there. And they -- if the traffic light ends up in front of your place instead of theirs, they'll all come through yours, is what I gather is the bottom line. CHAIRMAN RAUTIO: And the distinction here is that this is the Golden Gate Fire Control & Rescue District, which really doesn't control transportation. They do discuss with each other, but transportation has made this decision, has represented -- well, it moved -- on the visualizer that was circled. MR. CHAPIN: I would hope that the parties involved, us and the developer, would work with the county to see whether or not there is another avenue that we might pursue somewhere down the line. MS. STUDENT: I think that Ms. Wolfe -- and she can correct me if I'm wrong -- just put on the record that if this interconnection becomes a problem, then perhaps the predicate for the insubstantial change is gone. CHAIRMAN RAUTIO: Mr. Chapin, are you through? MR. CHAPIN: I'm fine. Thank you. CHAIRMAN RAUTIO: Thank you very much. And thank you for waiting so long. MR. CUYLER: Again, we understand what the county's requirement is and that Ms. Wolfe's review of our project was on the basis that that would be an open connection. We understand that. We understand that if this is approved, we are subject to that. We have agreed with -- with our neighbors that -- frankly, we would prefer not to have it, but we understand it is a requirement. If we can come in later and change that, we've agreed with them that we, as owners and developers, do not object to that. We would just as soon not have a connection, but we understand that the county's insisting Page 122 December 20, 2001 on it. We don't want our petition denied. So we understand that. If they need to object to that or if other people need to speak about the interconnection -- I understand that's a county requirement and something your transportation department would tell you that you need. So from our private capacity, we're agreeing that if there's an opportunity to put a block there, we'll put a block there. But in terms of the county requirements, we understand it's now a requirement. CHAIRMAN RAUTIO: And just to clarify in my mind, again, because we've been changing players here, you represent -- MR. CUYLER: It's Ken Cuyler. I'm also representing the petitioner with Ms. Cheffy. Mr. Pritt and Mr. Falk are on the same side representing the neighbors. CHAIRMAN RAUTIO: Thank you. I just wanted to make that clear in my mind. Thank you. COMMISSIONER RICHARDSON: If you wore a tie, it might help us to -- CHAIRMAN RAUTIO: I wasn't going to make that remark. MR. CUYLER: Yeah. And I apologize for that. The first time I've ever appeared in front of a board without a tie. CHAIRMAN RAUTIO: I think so. This is a red-letter day or a tieless day. Our next speaker. MS. MURRAY: Robert Pritt is your last speaker. COMMISSIONER WOLFLEY: He's -- MS. MURRAY: Then you -- no more speakers. COMMISSIONER RICHARDSON: Close the public hearing? CHAIRMAN RAUTIO: Close the public hearing. What is the pleasure of the board? COMMISSIONER RICHARDSON: I'm satisfied with the representations that have been made and -- and the information we have in front of us. So whatever the proper -- this is -- I'd move for Page 123 December 20, 2001 approval. COMMISSIONER ADELSTEIN: I'll second that motion. CHAIRMAN RAUTIO: We have a motion by Mr. Richardson, a second by Mr. Adelstein for approval of this petition. COMMISSIONER RICHARDSON: What's the number? CHAIRMAN RAUTIO: Do we have any discussion? COMMISSIONER RICHARDSON: PDI-01-AR- 1356, Green Heron PUD. CHAIRMAN RAUTIO: Any discussion? Hearing no discussion, I call the question. All those in favor say aye. (Unanimous response.) CHAIRMAN RAUTIO: Those opposed, same sign. (No response.) CHAIRMAN RAUTIO: Motion carries. Thank you very much. That's the -- will be the end of the public hearings on our Agenda. We have covered Item No. 9, No. 10, which brings us to Item No. 11, public comment. MR. CUYLER: Thanks again for your time, Commissioners. CHAIRMAN RAUTIO: You're welcome. Oh, excuse me. Let me make sure that you-all understand that anything that was made a part of the public record, if it didn't come up here, the court reporter needs a copy. I think we may have adequate here, but double-check with her, with Barbara. Okay. We are on Item No. 11, public comment. Do we have any public comment? Discussion of the addenda? No discussion of the addenda unless Mr. Strain would like to say something. COMMISSIONER STRAIN: Yeah. One issue: Merry Christmas. COMMISSIONER YOUNG: Merry Christmas. Page 124 December 20, 2001 CHAIRMAN RAUTIO: Merry Christmas to everyone. COMMISSIONER RICHARDSON: Happy Holidays. CHAIRMAN RAUTIO: And Happy Holidays and Happy New Year. Item No. 13, adjoum. We are adjoumed. Thank you very much, ladies and gentlemen. There being no further business for the good of the County, the meeting was adjourned by order of the Chair at 12:35 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 125 COLLIER COUNTY GOVERNMENT COMMUNITY DEVELOPMENT AND ENVIRONMENTAL SERVICES DIVISION December 28, 2001 PLANNING SERVICES DEPARTMENT 2800 NORTH HORSESHOE DRIVE NAPLES, FL 34104 TURRELL & ASSOCIATES, INC. CHRISTIAN SPILKER 3584 EXCHANGE AVE, SUH15 B NAPLES, FL 34104 REFERENCE: BD-2001-AR-1551, ANZIVINO, RALPH Dear Ms. Spilker: On Thursday, December 20, 2001, the Collier Count3' Planning Commission heard and approved Petition No. BD-2001-AR-1551. A copy of Resolution No. 01-31 is enclosed approving this use. If you have any questions, please contact me at 403-2400. Ross Gochenaur Planner RGdo Enclosure , CC: RALPH & MARY JO ANZIVINO Land Dept. Property Appraiser / Minutes & Records (BD, PSP & PDI) Customer Service Addressing (Peggy Jarrell) M. Ochelt~ee, Graphics File PHONE (941) 403-2400 FAX (941) 643-6968 www. co.collienfl.us CCPC RESOLUTION NO. 01- 31 RELATING TO PETITION NUMBER BD-2001-AR-1551 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 heating after notice as in said regulations made and provided, and has considered the advisability of a 34 -foot extension of a boat dock from the permitted 20 feet to allow for a 54-foot boat dock facility in a PUD 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 Christian Spilker, of Turrell & Associates, Inc., representing Ralph and Mary Jo Anzivino, with respect to the property hereinafter described as: Southport on the Bay Unit One, Lot 26, as described in Plat Book 15, Pages 51-53, of the Public Records of Collier County, Florida. be and the same is hereby approved for a 34-foot extension of a boat dock from the permitted 20 feet to allow for a 54-foot boat docking facility in the PUD 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 Department 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. 5. The location of the dock shall be field-adjusted to avoid removal of mangroves. BE IT FURTHER RESOLVED that this Resolution relating to Petition Number BD-2001-AR-1551 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. Donethis 20t:h day of December ,2001. COLLIER COUNTY PLANNING COMMISSION COLLIER COUNTY, FLORIDA ATTEST: JO~r CE~}q~I~' J."'RAU~IO, CHAIRMAN Approved as to Form and Legal Sufficiency: Assistant County Attorney COLLIER COUNTY GOVERNMENT COMMUNITY DEVELOPMENT AND ENVIRONMENTAL SERVICES DIVISION January 14, 2002 PLANNING SERVICES DEPARTMENT 2800 NORTH HORSESHOE DRIVE NAPLES, FL 34104 MCANLY ENGINEERING & DESIGN, INC. KENT CARLYLE 5435 PARK CENTRAL COURT NAPLES, FL 34109 REFERENCE: PDI-2001-AR-1356, GREEN HERON/DRI-83-1 Dear Mr. Carlyle: On Thm"sday, December 20, 2001, the Collier County approved Petition No. PDI-2001-AR-1356. A copy of Resolution No. 01-30 is enclosed approving this use. If you have any questions, please contact me at 403-2400. Sincerely, Ray l~llows Chief Planner RB/Io Enclosure CC: LUCKY STRIKE LLP 1100 Pine Ridge Rd., Naples, FL 34109 Land Dept. Property Appraiser Minutes & Records (BD, PSP & PDI) v/ Customer Service Addressing (Peggy Jarrell) M. Ocheltree, Graphics File Plarmmg Commission heard and PHONE, 94 li 403-2400 FAX (941) 643-6968 www. co.collienfl.us PDI RESOLUTION NO. 01-__3_0.___ RELATING TO PETITION NUMBER PDI- 2001-AR-1356 FOR INSUBSTANTIAL CHANGES TO THE GREEN HERON PUD FOR THE PURPOSE OF REVISING THE MASTER PLAN TO ADD A PROJECT ENTRANCE ONTO RADIO ROAD AND TO MODIFY THE BOUNDARIES OF OF THE RESIDENTIAL, NATURAL OPEN SPACE AND LAKE AREAS 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 No. 91-102) which establishes regulations for the zoning of particular geographic divisions of the County, and WHEREAS, the Collier County Planning Commission is authorized by the Board of County Commissioners to grant insubstantial changes to PUDs in accordance with Subsection 2.7.3.5 of the Land Development Code of Collier County, and WHEREAS, the Collier County Planning Commission, being the duly elected constituted Planning Commission for the area hereby affected, has held public hearing after notice as in said regulations made and provided, and has considered the advisability of PDI-2001-AR-1356, insubstantial changes as shown on the revised Green Heron PUD Master Plan (Exhibit "A") for the purpose of adding a project entrance on the Radio Road and revising the boundaries of the residential, natural open space and lake areas (Exhibit "A"), Ordinance Number 84-21, 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 Subsection 2.7.3.5 of the Collier County Land Development Code, and WHEREAS, all interested parties have been given opportunity to be heard by this Commission in public meeting assembled and the Commission having considered all matters presented, NOW, THEREFORE, BE IT RESOLVED Commission of Collier County, Florida, that: BY the Collier County Planning The petition filed by Kent Carlyle, of McAnly Engineering & Design, Inc. representing Lucky Strike LLP, be and the same hereby is approved for making the noted minor design changes to the Green Heron PUD having the effect of revising the Master Plan (Exhibit "A") for the purpose of adding a project entrance onto Radio Road and revising the boundaries of the residential natural open space and lake areas. BE IT FURTHER RESOLVED that this Resolution relating to Petition Number PDI-2001-AR-1356 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 20~-h day of n~-o~,hor ,2001. COLLIER COUNTY PLANNING COMMISSION COLLIER COUNTY, FLORIDA JO'~C~NNA A.'RAUTIC[, Chairman ATTEST: John M. Dunnuck, III Interim Community Development and Environmental Services Administrator Approved as to Form and Legal Sufficiency: Maxjori&)M. Student Assistant County Attorney [-). U.D. MAS'I'I!]R f LAN NATUKAI- AREA AC. TRACT F'UTUR~ CO~.I~I. AL TRACT §.0 AC. EXISTING ENTRANCE LAJqD USE LEGEND REMIDEA'TIAL DEYELOP~4ENT AREA LAKE AREA CO~ER/CAL AREA NEIGHBOORHOOD RECREATION AREA NATURAL OPEN SPACE TOTAL PRO~'~T AREA LUCKY STRIKE LLP. RADIO ROAD (8,56) 137.4 AC. 36.93 AC. 6 AC. 7.05 AC. 34.62 AC. 221 AC. PROPOSED~ ENTRANCE 1188 UNITS 5.4 DU/AC o~sc~,PnC~: GREEN HERON P.U.D. MASTER PLAN ~ 10. T 4g ~. R ['~ r. cOLLIER COUNTY. FLORIDA MAXlYS/ DWELLING UN]TS )4AXD~U)~ GROSS DENSFr'Y McANLY ENGINEERING AND DESIGN, INC. N,~ptf'~ ,LOt~DA ~4tO~ ---Illi ~ 0 I00 2O0 3OO NORTH