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EAC Agenda 06/06/2001 ENVIRONMENTAL ADVISORY COUNCIL AGENDA June 6,2001 9:00 A.M. Commission Boardroom W. Harmon Turner Building (Building"F')—Third Floor I. Roll Call II. Approval of Agenda III. Approval of April 25, 2001 and May 2,2001 Meeting Minutes IV. Land Use Petitions A. Site Development Plan No. SDP-00-111 "Tamiami Square" Section 9, Township 48 South,Range 25 East B. Planned Unit Development No. PUDZ-2001-AR-620 "Mediterra PUD" Section 11 & 12, township 48 South,Range 25 East V. Old Business A. Continued discussion on Land Development Code Amendments VI. New Business A. Appointment of one EAC member to a Select committee for the new Community Development Administrator VII. Growth Management Update VIII. Subcommittee Report A. Growth Management Subcommittee IX. Council Member Comments X. Public Comments XI. Adjournment Council Members: Please notify the Division Administrator's office no later than 5:00 p.m. on June 1,2001 if you cannot attend this meeting or if you have a conflict and will abstain from voting on a particular petition (659-5741). General Public: Any person who decides to appeal a decision of this Board will need a record of the proceedings pertaining thereto; and therefore may need to ensure that a verbatim record of proceedings is made,which record includes the testimony and evidence upon which the appeal is to be based. April 25, 2001 TRANSCRIPT OF THE MEETING OF THE ENVIRONMENTAL ADVISORY COUNCIL Naples, Florida, April 25, 2001 LET IT BE REMEMBERED, that the Environmental Advisory Council, in and for the County of Collier, having conducted business herein, met on this date at 9:10 a.m. in REGULAR SESSION in Building "F" of the Government Complex, Naples, Florida, with the following members present: ACTING CHAIRMAN: Michael Coe COUNCIL MEMBERS: Larry Stone Chester Soling William Hill Erica Lynne ALSO PRESENT: Patrick White, Assistant County Attorney William Lorenz, Natural Resources Department Barbara Burgeson, Senior Environmental Specialist Page 1 April 25, 2001 CHAIRMAN COE: Have you got the e-mails sent out by Ed Carlson? MS. LYNNE: I have them in front of me. UNIDENTIFIED MALE: We can't hear anything. MR. WHITE: If we're getting comments from the public, I think we ought to go on the record formally so that everybody can hear. CHAIRMAN COE: The meeting will come to order then. Thank you. Everybody has the e-mails from Ed Carlson? MS. LYNNE: Yes. CHAIRMAN COE: Does everyone have the sheet from Allie Santoro? MS. LYNNE: No. MR. SOLING: No. I only have two things from Mr. Carlson. I don't have a second one. MS. BURGESON: That's all we had to hand out were two from Ed. CHAIRMAN COE: Pardon me? MS. BURGESON: All we had to hand out were two from Ed. CHAIRMAN COE: Okay. MS. BURGESON: If you got a third, we didn't get that in the office. CHAIRMAN COE: All right. I've got this thing from the growth management subcommittee from Allie Santoro. Has this been passed out? MS. BURGESON: I haven't seen that. MS. LYNNE: Can we get copies of that made? MS. BURGESON: Sure. CHAIRMAN COE: We ought to make some copies. Here's the ^ other e-mail, also, from Ed Carlson, if you'd make a couple copies Page 2 April 25, 2001 for us. Let me ask the pleasure of the committee here: We have the original memorandum. Does everybody have that, the original memo? MS. LYNNE: You're talking about the original memorandum from Bill Lorenz? CHAIRMAN COE: Bill Lorenz, right. MS. LYNNE: The first draft of this growth management plan? CHAIRMAN COE: Right. MS. LYNNE: Yes. CHAIRMAN COE: We had already gone through this up to -- MR. LORENZ: Policy 1.1.7 is where my notes -- CHAIRMAN COE: Yeah. MR. LORENZ: I mean, through policy 1.6. We have to start at 1.7. CHAIRMAN COE: Well, I have us finishing off at 1.6. In other words, I would like to start on 1.6 again because there was some questions on the one-to-one ratio. Additionally, reading Ed Carlson's notes, he wanted to have a one-to-three ratio. MS. LYNNE: What page are we on? MR. LORENZ: Page 6. CHAIRMAN COE: Page 6. MS. LYNNE: Okay. Got it. CHAIRMAN COE: Does anybody else have any questions as to where we are? Is anybody against starting the discussion there at Policy 1.6? MR. SOLING: Nope. MS. LYNNE: Can I just ask one thing? CHAIRMAN COE: Sure. MS. LYNNE: It may not be -- we may want to talk about this later, but we also got before the last meeting a memo from Mike ^ Bauer, who's the new Audubon person, that had some Page 3 April 25, 2001 recommendations about the county-wide minimum standards for wetlands. Does everybody have a copy of that? CHAIRMAN COE: No. MR. SOLING: No. MS. LYNNE: Okay. And then the other thing is, as we've looked over this and we started going over it, based on the draft that staff gave us -- and we also do have available to us information from many other counties which have been -- especially you guys because you're new on the board. Nancy Lananne, who is a consulting attorney in Tallahassee, prepared this entire volume here (indicating). It's got wetlands policies from other counties which are working, and in none of those do we give A, B, C, D exemptions for how developers can get around them. I would really like to relook at that, and do we really have to sit down and give people -- say, "oh, well, you can destroy wetlands if you need access," or if you have reasonable this or if you have reasonable that. I would really like to look at that issue. CHAIRMAN COE: How did you get a copy of it? MS. LYNNE: I called Nancy Lananne. CHAIRMAN COE: And you've got a copy of it? MR. LORENZ: Yes. CHAIRMAN COE: And we don't have a copy of it? MS. LYNNE: That's correct. MR. LORENZ: What this is is a compilation or selective counties in the state that Nancy Lananne put together back through the summer for them to review what other counties are doing. I mean, if you want to -- CHAIRMAN COE: Does your draft reflect anything from that? MR. LORENZ: There are some -- there are some bits of materials from different places that I have taken throughout the ^ whole summer, a few from here. There are some policies -- some Page 4 April 25, 2001 ^ counties that aren't even listed in here that we were looking at as well. I mean, I guess the question is, if you want this as a resource, we can provide you this as a resource. I mean, if you want all the counties in the state, I mean, you can borrow from a bunch of other counties as well. So whatever kind of information you think that you need to have to help go through the process, we can get you that information. CHAIRMAN COE: Well, is there a particular reason that we need to have these, you know, WRAP-type things? Is there a particular reason that we have to do that? MR. LORENZ: Okay. Let me back up a little bit to set the stage for everybody. The 9J5 criteria, which is the criteria for which -- it's the state comprehensive plan's minimum standards that the counties have to meet. They have a particular section for wetlands policies in the growth management plan. That criteria states that, No. 1, we have to inventory the type, the functions, the values, the location, the size of wetland systems within the county, and then we have to direct incompatible land uses away from those wetlands. The county decides which wetlands to set those policies up for. It also recognizes in the 9J5 criteria that not in all cases can you do that, therefore, mitigation is an appropriate tool to have addressed in your policies. That's all the state standards pretty much require. They also indicate that the comprehensive planning policies are not to be a set of permitting regulations. It recognizes that the county does not -- it does not require the county to adopt a permitting program for wetlands. That's the guidance that we have from the state level. At that point we as a county decide, then, as to how we want to address those requirements. There are a lot of counties around the state that address those requirements in a variety of ^ different ways. The reason they address it in a variety of Page 5 April 25, 2001 different ways is because they have their local discretion as to how they want to do things. We can certainly use those counties as a resource of which myself and my staff have reviewed several of the county's -- Hillsborough County specifically is one that we did pull some information from, that's not in here, as to what those policies look like. Now, the specific question you asked is, do we have to do a WRAP. A WRAP is a wetland rapid assessment procedure. That is a process the South Florida Water Management District has been using for a couple of years now in the context of evaluating wetland functions for purposes of mitigation. At the state level there is a committee -- the state has actually charged -- the legislature has charged the agencies to look at a statewide rapid -- wetland rapid assessment procedure of which there's supposed to be some report in January of 2002, I think is what I understand from one of the consultants, and that procedure does have perhaps some utility for defining wetland functions. And the question that came up at the last meeting that we had on this discussion with the EAC on wetlands was our classification scheme. The classification scheme is developed because of the 9J5 requirement that requires the county to classify the wetlands as to type, location, size, function, value. The classification scheme that staff settled on is what you have in this November 8th draft that we're working from as being the first draft. The discussion was brought up among the council with some council members, and one of the speakers, specifically Tim Durham, was the possibility of looking at a WRAP, that rapid assessment procedure, as having some utility to establish what the wetland functions are. I look at that as an alternative to staff's initial classification scheme. Page 6 April 25, 2001 As a staff member, I'm committed to trying to look at a couple of different wetland classification systems so that you can take a look at it in the context of a second draft. So the alternatives that I would like to look at is to take some feedback on the classification system that we currently have, to fine tune it, and putting out a system that we can use for a WRAP or a modified version of the existing WRAP as a classification scheme for you to consider. There is, perhaps, another way of looking at the wetland classifications that -- and, perhaps, we can develop a third alternative. So for wetland classification systems I would like to be able to have that time to come back to you and propose a couple of different alternatives working with the environmental and development community. So we don't have to do the WRAP. It's going to be our decision, the county's or the local decision, as to how we want to classify wetland systems to meet the 9J5 criteria. MS. LYNNE: Can I ask another question? CHAIRMAN COE: Go for it. MS. LYNNE: As you know, I think doing the WRAP thing is a really good idea, but my specific question was, why do we -- when we establish -- I mean, the purpose of this is to protect our wetlands, and we want to set guidelines for protecting our wetlands. Why do we have to say we will permit impacts when the applicant can demonstrate that they have to have it for this reason, for that reason, for the other reason? Why are we giving developers a way to get around all of this? MR. LORENZ: I think the broad answer to that is there's always a balance in terms of property rights and environmental protection. Somewhere along the line there is certainly a legal balance or a legal requirement for property rights. From that point on, then, there is, if you will, a political recognition as to Page 7 April 25, 2001 what we will allow that goes beyond the legal requirement. In our proposal, staff's proposal, what we have done is we've said that Class I wetlands are so important for the county that there is a very minimal amount of ability to impact those wetlands. Remember, even if you impact the wetlands, you still have to mitigate for the function. Theoretically, as you mitigate -- if you have 100 percent mitigation of function, you are not destroying wetland functions as you impact a particular wetland and mitigate someplace else. Now, there is -- I mean, let's face it, there are problems with mitigation. You know, will mitigation provide for a hundred percent of the functions, and those questions then get involved with how do we specify mitigation or when do we specify mitigation. From a 9J5 perspective, remember that the state from a policy standpoint says we have to come up with a scheme to direct incompatible land uses away from wetlands to protect the wetlands and their functions. Mitigation can be part of that scheme. So as a policy matter, if you say "no encroachment to wetlands at all," then that recommendation also is going to have to have a dollar cost associated with it because you're going to adversely impact property rights to the degree that the county is going to have to pay for taking those property rights. MS. LYNNE: But these other counties do not list all the ways that a developer can go ahead and impact wetlands directly. I'm not saying that property owners don't have property rights, but if we're forming an environmental policy, why are we making it easier for them? If these aren't specified in here, then the developer has a harder case to prove. But if we say right in there, "Oh, all you have to do is show reasonable this, that, or the ^ other things, and then you can do it," it makes these things not a Page 8 April 25, 2001 boundary at all. It just lets developers go in as we saw yesterday. MR. LORENZ: Well, one of the things -- when we're crafting legislation or crafting these kinds of policies, one of the goals that -- there's a double-edge sword in how we're drafting the language. On the one hand we want to provide the applicant, the property owner, with a certain degree of certainty that they know that on their land they're going to be able to do X, Y, and Z, and that degree of certainty is the way it's written into the policies and into the code. (Mr. Hill is now present.) MR. LORENZ: At the same time we want to craft the regulations to the point whereby as a project comes through the process, flexibility can be granted in order to meet a variety of benefits, whether they be environmental benefits in some cases or public health and safety benefits as well. So you're always in a -- a little bit of a walk on that narrow rope, that tightrope, of trying to provide some degree of certainty to explain to the property owner what he or she can do with their property and at the same time provide some flexibility such that when it comes through the process, we can get the best project possible. So when we specify these policies here, we're providing the criteria by which we can evaluate a project. And maybe this is a time for Barbara to weigh in on -- if we simply have a very broad policy -- we're not going to be able to say it. We're just not going to be able to say an absolute strict prohibition. You're just not going to be able to do that. But under that premise, then, if you don't have a specific criteria for which the project reviewers to review, their job becomes more difficult to then provide up the line to the Board of County Commissioners saying this is or is not consistent with the ^ growth management plan. Page 9 April 25, 2001 MS. LYNNE: Okay. I don't know how much interest the rest of the board has in this, but basically what I see is when a specific -- when it is made this specific, it actually takes away freedom from the Board of County Commissioners to make what they think, at least publicly when they're talking, is the appropriate decision, because the developer has managed to meet the letter of the law without meeting the intent of the law. My feeling is that we have examples where these are not necessary. We can certainly try to find out how they're working in other counties, but my feeling is that we should not be giving developers, you know, the specific guidelines on how they can get around preserving wetlands. MR. SOLING: Can I put my two cents in? I want to use a hypothetical situation. I own ten acres along the Mississippi River. As everybody knows, the course of a river like the Mississippi changes its flow. My ten acres is now under the Mississippi River in the center of the river. Do I have the right -- because I own the property, do I have the right to go and move the Mississippi and build on it? What I am saying is that wetlands are historic and that property rights are not destroyed. But it's the fellow who assumes the property -- bought the property with the wetlands, and he knew damn well there were wetlands there -- unless he's Barron Collier and had it for a hundred years, he knew wetlands were there, and he has to live with the situation and not alter it because he wants to build his home in the middle of the Mississippi River. CHAIRMAN COE: Bill. MR. LORENZ: I'll be looking over here for Patrick to bail me out. CHAIRMAN COE: Patrick is coughing down his coffee. �-. MR. LORENZ: The state adopted the Burt Harris Act back in Page 10 April 25, 2001 the early, mid '90s that basically said when local government comes in and from that point on -- it crafts a new regulation that provides an additional burden on the property owner to the point where there's some additional costs that's associated with complying with that regulation, and they are able to be compensated for that. MR. SOLING: Well, my question may be broad because zoning came in how many decades ago, and that was taking property rights. The Supreme Court and all the courts ruled that zoning is an applicable governmental action to protect the environment and to protect the neighborhood. MR. WHITE: Mr. Chairman, would you like me to respond? CHAIRMAN COE: Yes. MR. WHITE: Patrick White, assistant county attorney. In response to Mr. Lorenz's comments about Burt Harris, May 11th of '95 is the date after which local governments in any of their enactments pertaining to land development regulations or other things that may affect property rights -- if they inordinately burden those vested rights or existing rights, it may be subject to challenge under Burt Harris and the different responses and remedies it has, some of which may include compensation. That, I think, is perhaps one of the factors you have to consider in making recommendations with regard to staff-proposed policies. Certainly the degree of understanding with respect to what is a lawful regulation is appropriate for you to ask an opinion on. And with regard to the answer or the suggestion and the hypothetical about zoning, it's only been around since the mid '20s. So the idea that, yes, there is a relationship between government's duty to regulate or promote the general welfare and health and safety of its citizens, there's a corresponding balancing, if you will, of the rights to use your property that think is one of the inalienable aspects of ownership of real Page 11 April 25, 2001 property. What we're attempting to do here is to find that balance point in a reasonable way. My position with regard to drafting policies, ordinances, resolutions, whatever they may be, is to make them as clear as possible so that all persons who read them will know how to apply them and follow them. And if that means that to some degree we have to set forth what the exceptions, if you will, from the regulations are, then so be it. There should not be a shell game. There should be an open and honest representation in the public record of what the regulations are. If you don't like what the regulation says in terms of where it puts that balance point between regulation and private property rights, then move it in whichever so direction, but make sure wherever you end up putting it those regulations are clear. I don't know if that helps to frame these discussions or not. I hope it does. If you have any more specific questions, I would be happy to address them as the discussion moves forward, but think that's the imperative thing to do today, to kind of work through these regulations so that staff has at the end of our meeting today some direction that is going to be specific. Thanks for letting me get my two cents in. CHAIRMAN COE: Well, what she's basically saying is we're telling the developer, "Well, it's Class I, but if you meet this and you've got no other way out, then we'll let you develop on it." What can be more clear than just saying, "In Class I you're not touching it"? Isn't that clear? MR. WHITE: If that's your direction to staff to have them say that, then that's fine. CHAIRMAN COE: I mean, is there -- there's nothing wishy- washy about that, is there? MR. WHITE: I'm not a fan of wishy-washy. All I'm saying is, whatever your direction to staff is that it be done as a Page 12 April 25, 2001 ^ recommendation. CHAIRMAN COE: What kind of position does that put us in, Bill, if we were to do that for the Class I I'm talking about specifically; no mitigation, nothing, you just don't touch it? MR. LORENZ: Well, I think the way staff has crafted certain language I think there's -- we wouldn't be recommending that. CHAIRMAN COE: Why not? MR. LORENZ: Because there just has to be some degree of exceptions. For instance, when we talk about single-family lots where you have a boat dock, there's some riparian rights there. That's to be understood that you can put a boat dock in and impact up to that 5 percent impact. I just think that's reasonable. As the EAC, as your recommendation -- as you're the body to make the recommendation, you may disagree with that position. But I was asked by the County Commission as to what I would consider to be reasonable. I would certainly feel that that particular exception would be reasonable. MS. LYNNE: But what I see happening is, just for example, is it okay -- if you say -- if we put it in the policy that you can have this boat dock, then the next thing you know somebody wants a bigger boat dock or they figure out a different way to figure out the 5 percent impact, or they figure out some way to not qualify part of the wetlands because it really wasn't wetlands 20 years ago or something or another, and you end up, for example, like in Vanderbilt Bay where they have, you know, boat docks way out into the middle of the water. So I see these as openings for not just, you know, your little single-family home out on 25 acres of property out in the estates or something that wants to have a little boat ^ dock. I mean, obviously -- but that's not what happens with Page 13 April 25, 2001 these. MR. LORENZ: I think to kind of go back to what Patrick said -- let's assume that we feel that the example that we're using here for a single-family boat dock is reasonable. You want to make sure -- and your concern is they're going to use this. The developer at some point in the future is going to use this language and make it broader and go beyond this particular exception or assumption here that everybody feels is reasonable. That's where the clarification in the language needs to be crafted such that we say what we mean and mean what we say. So if we all agree that this is an appropriate exception, then the language needs to be written such that "this will be an exception, but this is the only exception." You're not going to be able to deviate any further than what we mean it to be. That's where the crafting of the language becomes important. If on the other hand you're saying, "Bill, as a matter of policy I don't even believe that this should be the case," then obviously it's very simple to say "thou shalt not under any exception impact a Class I wetland as we define a Class wetland." If that's your policy recommendation, then that's the language we need to make sure that we have. But I guess the question I'm trying to engage you with is, do you really want to say, "Thou shalt not under any circumstances whatsoever allow for an impact in a Class I wetland"? CHAIRMAN COE: Any other comments? MR. HILL: Yeah. Bill Hill. I'm out of position here. I just caught the tail end of the commissioners' meeting and discussion yesterday on Mirasol with what we're considering now with respect to Type I, Type II, and Type Ill wetlands. They moved the golf course. As far as I know, it's the only change in the plan from what was submitted to us last month and I suspect Page 14 April 25, 2001 ^ what was submitted at the original opening of the meeting or discussion yesterday. Somewhere in these regulations we've got to head off that kind of situation. It seemed to me, if I was reading particularly Commissioner Mac'Kie's comments right, the flow way was the big item in at least her judgment to approve, and suspect it was in the minds of the rest of the commission. We talked about the importance of the flow-way. In fact, I thought we were lied to here because we had a presentation that showed the flow-way as alleviating a lot of Lee County's flood problems. But then in the discussion and in answer to a direct question, I was told that, no, it will have no impact on Lee County. I don't know whether you remember that in our discussion. CHAIRMAN COE: I remember it. I feel the same way. We were lied to. MR. HILL: I think -- and I want to use a parallel situation to our colleague. It's difficult. If I own 500 acres of wetland in Collier County, and I don't care when I bought them, I think we have to get around the possibility of my coming before the boards in the county and saying, "I've got a right to five per acre or whatever it says regardless of the nature of the property as it exists." And I think that's the question you're asking. I think we have to avoid that. Rather than have an ordinance or ordinances which lists 55,000 different special exceptions, I think we have to be very plain, and I think we have to protect the wetland. Ultimately, whatever we want to call Type I, let's make sure Type I is legitimate in functioning as viable wetlands, and then we say "no impact whatsoever." Maybe where we draw the line is how we define Type I. Rather than saying you can do certain things in Type I and try to define the ^ loophole or whatever, let's define Type I as very tight restrictions Page 15 April 25, 2001 ^ on the wetland. I think we have enough technical information to do that. Then staff's problems are eased. Maybe Type II and Type Ill can be defined to the point where there are several exceptions that can meet, perhaps, the overall density. But think the county is being done an injustice when we come in with -- what was Mirasol? Six hundred acres of wetlands were impacted or five ninety something. MS. BURGESON: Thirteen hundred acres of wetlands, six hundred being preserve and a hundred being created in wetland lakes and five hundred and eighty-four being impacted. MR. HILL: I think this is a total injustice to the county, and I think if we don't find a way to put in ordinances like this or some way to circumvent that, then I think we've got real problems. CHAIRMAN COE: I concur. MR. HILL: Did I misread what the commissioners said? Is that the only thing they did in Mirasol was move the golf course? MS. LYNNE: I -- MS. BURGESON: I was not at the end of the meeting, but what I understood was that they voted to relocate that golf course; not to remove it, but to relocate it -- MR. HILL: To move it from the north to the south. MS. BURGESON: -- which means they probably -- I haven't seen that revised site plan, but that probably means that they're going to adjust the boundaries of that flow-way. MR. HILL: Is there any way in the Burt Harris law, Pat, to somehow -- and in our ordinance say that the density allowed is based not on total property, but on, quote, developable property as defined by total minus nonimpact wetlands? Is there some way to get around it that way? MR. WHITE: The regulations for determinations of density ^ are primarily set forth in the growth management plan and Page 16 April 25, 2001 ^ implemented through the Land Development Code and zoning regulations. Going outside the scope of wetlands and making determinations of how those density calculations will be performed may be a recommendation that you might want to make to the commission. But I believe that the charge you've been given with respect to your involvement in the assessment in the final order and the drafting of the policies to comply with it, I'm not certain that that falls within the gambet of what you've been charged to do. Certainly one of the functions, powers, and duties this council has is to make that kind of a recommendation in a more global context to the board. We probably don't have the staff folks here who may be able to explain it in its finest details of about how density is calculated, but I think in general the manner in which it currently is calculated is consistent with the concept you're alluding to. I may be incorrect about that. I'm kind of still the new kid on the block on some of these things. But there are other ways to do this than the way Collier County currently does it. For example, you can have ranges of density and certain types of land-use categories, not zoning, but land-use categories under a future land-use map. The methodology in Collier is a little different. It uses a system that does consider the type of land-use category you're in, but it also looks to the type of zoning, the type of project, and what's proposed in measuring those impacts and allowing what number of units per acre are finally going to be approved. If I'm incorrect on that statement about whether you have wetlands or not and how it affects how many units you're ultimately able to build, if it's incorrect I'm going to ask staff to respond to that. MS. BURGESON: From my discussions in the past year with ^ staff regarding how density is calculated, I understand that Page 17 April 25, 2001 whether it's wetlands or not, it's calculated the same way. don't know if Patrick was involved in the Cocohatchee Bay PUD, but that property owned a portion of water which was also used to calculate the density. MR. HILL: As we had on Vanderbilt. I was going to ask about that. MS. BURGESON: The acreage that was purely open water was also used to calculate density on that. MR. HILL: Yeah. MR. WHITE: Well, that's not an inaccurate statement, but don't think it goes the full distance to explain the methodology that is used. Although in my initial coming to understand how the system works in Collier, it seemed counterintuitive that you would be able to "draw density" from submerged land. When you actually look to the methodology that's used, there isn't an ^ appropriate and reasonable balancing. You don't arguably get units from the submerged land, but in the whole calculation process that is considered. I would have to walk you through a practical example, I believe, and I prefer to have staff do that. The notion, I think, broadly stated here is that you want to insure that if you have theoretically 100 acres of property and 50 percent of them are wetlands, the number that you're finally able to build reflects the fact that, in essence, 50 percent of them were undevelopable for purposes of residential units, and I think that our density system does do that. I don't think that the number you arrive at is the same in each of the hypotheticals. MR. HILL: If I understand what you're saying, I don't think that's the case, Pat, or am I misreading what you're saying? Are you saying that the density as calculated now takes into account wetlands that are undevelopable? MR. WHITE: The density as a measure of units per acre may Page 18 April 25, 2001 ^ be consistent in the two projects, but because you have "fewer acres" that ultimately you can apply the number to of the ratio, I think the answer is always going to be that you'll have less developable units at the end of the analysis. MR. SOLING: Mr. Chairman. MR. WHITE: If I'm wrong, I apologize. MR. LORENZ: Yeah. I don't do the calculations. My understanding is it's basically a gross-density calculation. Now, the point of it is, as a practical matter, you might not be able to get all of those units in that calculation to be placed on the land that you're going to be allowed to develop after you go through all of the permitting process. Because to get all of those units on that land may require you to stack them up, and that may not be a marketable product. But I don't work in that area as well. guess what I'm going to try to do is -- we can get that information ^ for you and clarify it. The discussion I had with Nancy Lananne, the growth management attorney, when we were formulating these policies, however, envisioned the fact that when we establish these wetland policies that they should be specific to the degree that -- and this is the example she gave me. If a developer or property owner wants to put this big of a box on the land but your policies say, "Thou shalt not impact more than 5 percent of the wetlands," then if they have to put a smaller box in, then they have to put a smaller box in. That was her point. That's what these requirements should do especially for, let's say, the Class I wetlands. So if that means that as you apply these policies, whatever mitigation would ultimately be allowed for or whatever exceptions would be allowed for, you just don't give them carte blanche to say they're going to be able to get everything on it that they want. No. These wetland policies ^ would constrain that. The way we draft them, that would be the Page 19 April 25, 2001 ^ constraint. That was her guidance to me as to how to put the policies together, especially for what we consider a Class wetland. MR. WHITE: I think it's important to note at this point in the discussion there's a difference, in my mind at least, between the density that a certain property may have as the ratio of the number of dwelling units per acre and the idea of whether you can develop within and on certain types of land, i.e. wetlands. I believe the charge you've been given is to help establish some policies that will determine where the line is drawn, if you will, with respect to wetlands, and not so much the global issue of whether or not the units that may otherwise have been gleaned from that wetland are appropriate to be developed on the remaining portion of the site. I certainly think it's within your purview to make a recommendation with regard to that outside the scope of these policy considerations that are being brought to you by staff. But I don't believe that the broader issue is one that's, if you will, part of the discussion. MS. LYNNE: That broader issue is covered in several of these other county's wetlands policies. I'm not saying we have to do it, but it has been done. MR. WHITE: It may be appropriate in those counties that it be stated there because of the manner in which they overall regulate density, if you will, and the implementation of that ratio in a final site plan in the permitting for what's constructed. The bottom line is, when you get to the end of the development cycle, how many units have you put on the gross number of acres? And my understanding is that in the hypothetical of 50 percent wetlands and one that has fully or 100 percent developable land, you're always going to have fewer number of "units" on the ^ parcel that has the wetlands than the parcel that does not. I Page 20 April 25, 2001 ^ think that's an accurate statement. If I'm wrong I certainly hope somebody jumps up and screams. CHAIRMAN COE: The other side of the coin is, let's say you have 100 acres and 50 are wetlands. On 100 acres you can put, say, one dwelling per acre. That's permitted. But you can't develop on 50 percent of them. So now you've got two dwellings per acre in the 50 developable acres. That's what's happening. And the intend of the code, I would assume, was originally that you would only have one unit per acre. MR. LORENZ: What I want to say is -- CHAIRMAN COE: Am I right or wrong? MR. LORENZ: The way I recall when we drafted the 1989 plan and in the spirit of what a PUD is all about is that you basically -- you have an internal shift of those units to the developable portion of your land. Basically it's a clustering. We are -- although we didn't call it -- well, there is actually in the future land-use element -- it does talk about clustering. You're clustering those units that are based upon a gross density on the developable portion of the land. The developable portion will be defined by these policies. If these policies -- for instance, if you take a 100-acre parcel and you have Class I wetlands, these policies would say "You can only put your units on maybe ten acres." Now if that forces you into a, you know, five-story high-rise to get all your units, then that's the developer's choice as to whether or not he wants to put that product in there. That product would not be a marketable product. In that sense then the constraints that we placed through the wetland policies would maybe effectively cut down those units that he's going to build because he has to take into consideration what the market is. Now, I think what you-all are saying, or at least I'm going to put it back to you is that you're saying, "Look, we need to make Page 21 April 25, 2001 ^ sure that we're protecting the wetlands and not giving that developer a marketable product if giving that developer a marketable product means he's going to impact a huge amount of wetlands that we consider very important." So what I think -- as I said, these policies that we craft, perhaps they don't go as far as what you-all are looking for, but they would basically do as Patrick said. It's to say, "This is how we're defining that developable portion. This portion through our policies you have to stay out of. It's clear in our policies that you have to stay out of them, and then you can develop on whatever is left over." That's the analogy, to get back to Nancy Lananne's comment to me, "Well, Bill, if they have to put a smaller box there, then they have to put a smaller box there." MR. HILL: When you use the term "develop on," are you referring to simply the building of housing units or otherwise changing the nature of this? I feel we're held hostage on every one of these that come in and say, "Well, you know, I could have done five per acre, but I'm going to do two, and now I want to ask, however, to have six hundred acres of wetlands impacted, not built on, but impacted for various reasons," a golf course or whatever. That's what I think we have to avoid. MR. LORENZ: I'm saying any disturbed or filled area. In other words, if we say by application of these policies that on that 100-acre site you cannot build on 70 acres, you can't disturb 70 acres of those wetlands, then that's what these policies say. Then you're going to have to put your product, whatever that product is, whether it's a golf course or whether it's a Home Depot or whatever or a single-family lot, on that developable piece. These policies will direct those land uses away from the wetlands. And what we're trying to recognize in terms of the 9J5 ^ criteria framework is that we are identifying the values, types, Page 22 April 25, 2001 and functions of wetlands. We're going through a classification scheme to say that certain wetlands we're going to allow more impact with mitigation than other wetlands. That gets back to the classification scheme for which -- if we say all wetlands are the same in Collier County and you can only impact up to 5 percent as a diminimous impact for providing for the basic constitutional right of reasonable use of property, you know, that could be your policy decision. On the other hand, if you say, you know, "We're looking at our wetlands systems here in Collier County, Bill, and we know that these types of wetlands with these types of characteristics we're going to call Class I wetlands, and these are where we're really going to minimize any degree of impact, and everything else is Class II, and here are the rules for everything else," that's another way of going about it. I can tell you from craft-cutting or making the sausage here or the legislation, recognize that the more regulations and restrictions we place on property, the higher burden it's going to be to justify the benefit and also be under the scrutiny of what potential liability the county would be subject to -- certainly Burt Harris -- and that is a consideration that staff is going to have to give to the final recommendations. At the very least, we have to provide the Board of County Commissioners with what those liabilities are. I guess what I'm saying is, in our deliberations when we know that there's really some very important wetland systems that we define and call Class I, we put higher degrees of restrictions on it, and then that's the way to go. Then everything else we have has some reasonable ability to impact those systems. Then you're into a Class I, Class II type of situation. At the moment what we put on the table is kind of a Class I, Class II, Class III situation that would recognize varying degrees of impact based Page 23 April 25, 2001 ^ upon what we're calling the functionality of the wetland system. MR. HILL: Did 1 sense early on that you did not like the idea of saying all Type l's are absolutely -- that change of land use is absolutely forbidden on Class I? MR. LORENZ: I don't think that I can recommend to the County Commission that we have a strict, 100 percent prohibition of impact on all Class I wetlands, because we may get into a situation where somebody's property -- all of their property is a Class 1 wetland. You've got to provide reasonable use of their property. You've got to provide some degree of exceptions or ability to impact that property for a reasonable use of the property unless you're willing to pull out your checkbook and compensation them. MR. WHITE: I think if you put it in context, there's certainly cases in Florida that say, "If you bought a swamp, you've got a swamp." Even those cases, if you will, recognize that a swamp still has some certain amount of economic potential, even if it's only for the purpose of installing a boardwalk to walk through the swamp. So the notion that there's going to be "some impact" or to use a less favorable term "development of that property," I think that's appropriate, and I think that's what staff is telling you. But to get back to, hopefully, the fork in the road where we kind of started down this discussion -- you'll note that Policy 1.1.7 talks about that. It tells kind of in a way what it is that -- what the balance point, if you will, is. It says that, "All property owners shall have the right to transfer density to the upland area of the site subject to the requirements of other applicable growth managment plan policies." So what it's doing is capturing this whole policy- setting function that we're having a discussion about and saying, ^ "This is the rule. Follow the other rules." Page 24 • i April 25, 2001 What your suggestion appears to be, at least from some of the council members, is maybe we need to think about adjusting those rules. Certainly, if that's your belief, I would encourage you to make that recommendation and to follow up on that. But I don't believe that that's part and parcel of the discussion here today. We're looking at moving forward in a process that's designed to implement what the final order in the administration commission requires or consistent with that anyway and in a larger scale also looking at countywide policies. So although the administration commission process is driving the train in terms of the time line to some degree, I don't believe that it's inappropriate at some point in the future to make that recommendation, have that discussion. And if you have a specific concern about the growth management policies with regard to how density is calculated in Collier County, then come forward with some new ideas. I just don't believe that it's within the framework of what you're being asked to look at today. I understand that in order to apply what you've been given you need to have some conceptual framework to understand how the process works. I don't know that all of the folks here have given you as clear of an expression of it as we could. I certainly wasn't prepared to do so today. Had I known we wanted to have that discussion, we could have had other individuals here. I'm hoping what I'm saying, though, is going to get us back to that fork in the road so we can kind of continue down the path that moves us forward. CHAIRMAN COE: Let me stop right here and bring everybody up to date. We have already gone through the beginning of this document. We are up to Policy 1.6 there on page 6 -- page 4 or whatever -- 6, I guess. That's where I want to get back to. Start the discussion right there. I'm estimating we're going to be Page 25 April 25, 2001 ^ finished by noon. That gives us a little under two hours. So with that said, let's start on 1.6 and go forward. We're talking about mitigation. Now, any recommendations on mitigation, subparagraph 1? Is everybody in agreement with the one-to-one ratio, or do they want to recommend changing that ratio? Ed Carlson had a comment that he wanted three to one so that there's not a net loss. See, one to one is a net loss of wetlands. Does everybody understand why that is? MS. LYNNE: Uh-huh. CHAIRMAN COE: All right. Any recommendations to change that subparagraph 1 from a one-to-one ratio to one to two or one to three or whatever? Pat, if you have any comments on that, too, don't hesitate to raise your hand. MR. WHITE: I'm going to try to confine my comments strictly to those legal issues you bring to my attention. CHAIRMAN COE: Well, I mean, this could come into the legal perusal because, obviously, we're going to require or we could require a developer that if they're going to develop on, say, a wetland Class II or III and mitigate, then we're going to require them to get twice as much land over here. MR. WHITE: I understand in the broadest context that all issues are legal issues because they involve creation, if you will, law. But the notion of where that appropriate balance point is, think, is still in the policy-making stage in the recommendations that staff has given you for your consideration and your responses to them. If I think there's some constitutionally prohibited policy that's being proposed, you can be certain that will opine, but so far from what all I've read, we're still within that range of reasonableness. CHAIRMAN COE: Okay. ^ MR. WHITE: Whether or not in a specific case there would Page 26 April 25, 2001 be an application of this policy that would lead to an inordinate burden under Burt Harris, I don't think we have the facts before us to make those kind of determinations and discuss hypotheticals. CHAIRMAN COE: Any comments on mitigation and what it should be? MR. HILL: Well, the one thing that bothered me, and I'll make this very brief, is the fact that we allow -- we may take out of service X acres of wetlands which are functioning as habitats and which are functioning as stormwater filtering, all the various properties of a good solid viable wetland, and we're allowing mitigation, whatever the ratio is, to be a farmer's field up in Panther Hollow. I don't mean to belittle that bank up there, but we're taking functional wetlands or wetlands of a certain major function, and we're mitigating them with two- or three-to-one acreage which are not providing the same function. That's always bothered me. Now, the other question I have is, if we go to two or three, does the word "minimum" have to stay in there? MS. BURGESON: I would just like to add a couple comments in here. The reason we put "minimum" in there was just to make sure that at an absolute base minimum we would not be losing on a one-to-one level the acreage. Certainly going higher than that is something that's not unreasonable. When I started with the county in '89, the absolute minimum off-site mitigation ratio was three to one, and that was back in '89. There's something else that you can do in there in terms of identifying the type of mitigation. So if you're saying a minimum of one-to-one mitigation of like-function wetland types, maybe that's the type of direction you want to go in, or a minimum of three-to-one mitigation for, again, the functioning types. If you've got a cypress wetland, you mitigate with a cypress wetland. Or if you've got a -- to some degree you might want to Page 27 April 25, 2001 ^ direct what that mitigation is as opposed to just saying that you can choose whatever mitigation you want, and we're just giving you the acreage or the ratio. MR. HILL: Well, I think we ought to somehow build that in if we can, but it seems to me it puts a burden on the staff and a burden on this council and the commissioners to have a judgment of whether or not you can go -- you want them to go above the minimum or stay at the minimum. How did -- somewhere in the ordinance we have to have a yardstick that says the ordinance says minimum, but in this case we're going to ask for two to one, and that doesn't appear anywhere. MS. BURGESON: Well, I think that -- I know that I've seen a presentation of Broward County's wetland mitigation. It may be that you go with something similar to what they have. They identify the type of wetland that's impacted. There's a particular mitigation that's set for the type of wetland that's impacted. So rather than saying a minimum three to one like to like, you might say it's a minimum of one to one for this particular type of wetland impact or a minimum of three to one when you've impacted this particular wetland type. For instance, if you're mitigating for the Class I wetland, it may be a ten-to-one ratio for impacts to Class I. It may be a five-to-one impact ratio to Class II wetlands. You may drop down to a minimum of one to one for a Class Ill. So I think there's a lot of different directions that we can go in, and that might help alleviate some of the concerns of the type of wetlands that are being proposed for mitigation. MR. LORENZ: Let me add to this -- and I want to kind of play a little bit of devil's advocate and explain to you why we selected the policy the way we did. It gets back to the point of, does Collier County want to have a permitting program for wetlands. As you add that degree of complexity that Barbara is speaking ^ about, we're basically doing permitting. We're then determining Page 28 April 25, 2001 '� a whole different set of ratios that the other agencies are providing. The purpose of the policy here initially was to insure that we have, certainly, a base minimum that we're not going to go below in Collier County. Whatever the applicant negotiates with the federal and state agencies, we would then subject those negotiations to our test of the minimum. So once you start talking about different kinds of functions, different kinds of ratios, then we're getting more and more closer and closer to a specific permitting program in Collier County, and that becomes -- I'm just going to tell you that becomes difficult from the development perspective. MS. LYNNE: So that would be a good thing. If wetlands are an extremely valuable resource in South Florida and something that really needs to be protected, then it should be more difficult to obtain -- to develop those areas and insure that negative impacts aren't made by development. CHAIRMAN COE: I just wrote down some quick notes here. This would be my suggestion to subparagraph 1. "Mitigation shall be provided for a minimum of three-to-one ratio for wetland acreage directly impacted. Allowable mitigation includes the purchase of wetlands of the same classification as those impacted in Collier County for the preservation of wetlands either on or off site." I took out "creation." Any comments on that? MR. HILL: Haven't we been in a number of projects -- and go to the last sentence in that paragraph 1. Haven't we been faced with the question, "Well, I'm enhancing 50 acres over here by exotic removal and therefore that's ..."? CHAIRMAN COE: They've already put that in there. They're not getting credit for that. MR. HILL: I thought you were leaving that out. CHAIRMAN COE: No, no, no. I'm not leaving that out. I was just changing those two sentences to provide for a three to one, Page 29 April 25, 2001 also of the same classification of that being impacted, and then making sure that the purchase of wetlands are in Collier County. This prevents them going, you know, to Hendry County and buying land out there and getting credit for it. -You see, eventually they're going to get to a point where there's no more wetlands to mitigate because they can't buy any more wetlands in Collier County. MR. LORENZ: One thing I have to research, and I was just looking at it the other day, is the wetland rules from the state, Chapter 373 on mitigation banks. There's a cite, and I'll probably be able to find it and discuss it with Patrick, that indicates that the counties cannot preclude mitigation to go out of the county. I just -- I mean, I just found that. I need to research that a little bit closer to make sure if what I read is opposite to what even -- staff has recommended five years, that all mitigation shall occur ^ in Collier County. I have to pull that cite out and talk with Patrick a little bit about it. CHAIRMAN COE: Well, in the interim, though, we can put that in -- MR. LORENZ: Yes. CHAIRMAN COE: -- unless it conflicts with law -- MR. LORENZ: Yes. CHAIRMAN COE: -- and obviously if it conflicts with law, then it changes. MR. LORENZ: I'm just letting you know that I just hapeened to see that. MR. WHITE: But I -- CHAIRMAN COE: If it's policy that's stricter than the State of Florida, why can't it stay in? MR. LORENZ: Well, if the State of Florida actually preempts ^ you from doing it, if that's the preemption, if the state says you Page 30 April 25, 2001 ^ can't be stricter in this particular situation, that's what we have to check and verify. CHAIRMAN COE: Okay. MR. SOLING: Excuse me, but you have Item 5, "All mitigation shall occur in Collier County." CHAIRMAN COE: Yeah. Okay. So it doesn't need to go in. You're right. MS. LYNNE: I agree that although in some situations there can be a successful creation of natural areas and wetlands, think that's been over used by developers. It's not okay. A couple of things that have come before the board here have seen developers completely wipe out natural areas and then replant some other areas, and those areas are hard to -- CHAIRMAN COE: That's why I took out "creation." MS. LYNNE: Right. I'm just -- I am supporting that and giving the reason why it's important not to allow that. CHAIRMAN COE: Is there anybody that's against my comments on that? MR. STONE: No. MR. SOLING: No. CHAIRMAN COE: So we're in agreement on all that. Did you get that, Bill? MR. LORENZ: Yeah. CHAIRMAN COE: Do you know what changes we want? MR. LORENZ: I've got -- CHAIRMAN COE: We don't want "the creation" -- THE COURT REPORTER: Wait. CHAIRMAN COE: We don't want that in it, and we want to use a three to one. MS. BURGESON: Just as a matter of record, historically creating wetlands is extremely unsuccessful or difficult to even go out and enforce or -- Page 31 April 25, 2001 CHAIRMAN COE: That's why we're taking that out. MS. BURGESON: -- follow up on that. MR. LORENZ: My only -- just to throw it out, and some folks may have more specific information or experience than I have, but let's say if we take -- the example is given of if you took a nice, natural area, let's say an upland habitat, and you now created a wetland system, and that's shown to not be a good idea. But would in a situation -- if we have a denuded farm field that has hydrologic soils and in the past -- and we're going to take that and now we're going to create that as a wetland, is that a creation deposition or a restoration? MS. BURGESON: I think that would be restoration. MR. LORENZ: Okay. So when we talk about creation, we're talking about scraping an upland down and creating a wetland. MS. BURGESON: But then do we want to put the language in ^ here that allows for purchasing or restoration of wetlands? don't know if you want -- MR. HILL: If that's your intention, then that word ought to be in there, "restoration." MS. BURGESON: Not to create new wetlands, but to restore. CHAIRMAN COE: Yeah, that's fine. Does anybody else have any problem with that? MR. LORENZ: For preservation and restoration. MS. LYNNE: I -- CHAIRMAN COE: Okay. So are we finished with 1.6? MS. LYNNE: No. I'm sorry. I still have a problem with if there's a nice, natural wetlands on the property for them to bulldoze that and even restore a lesser quality one on the same site. MR. WHITE: The thing to keep in mind here is these mitigation regulations or policies apply to direct impacts. ^ Example, Class III, I think, is 50 percent. You can impact up to Page 32 April 25, 2001 ^ that. So it's only with respect to that 50 percent you're talking about. The remaining 50 percent cannot be "bulldozed." It's only the part that's allowed to be directly impacted that you're talking about these mitigation rules for. I don't know if that helps or not. MS. LYNNE: I just know that we saw one when I first came on the board where the developer was going to fill the only wetlands on it and could restore -- next to a pond restore another wetland, and that was considered acceptable mitigation, and that's -- MS. BURGESON: That would only be acceptable by the creation of the language earlier where -- for instance, if you're looking at a Class I wetland and we went back to that section and took out some of the language that I think you're concerned about that allows exceptions -- so if we say there's absolutely no exceptions except for maybe single-family homes on Class wetlands, then you're only allowed to impact 5 percent. And what we're saying, then, is the mitigation for that 5 percent impact could be creation. But we're not saying that you can impact an additional 5 percent of that to create it anywhere else. We want to make sure that the language in the beginning protects exactly what we want to protect and then allows us to mitigate it the way we want to mitigate it. CHAIRMAN COE: But we don't want them to create it; we want them just to restore it. MS.BURGESON: Restore. CHAIRMAN COE: Okay. Any comments? MR. HILL: Very quick, subparagraph 3, is that clear in everybody's mind, the nature of the conservation easement? Okay. CHAIRMAN COE: I don't have any problem with it. Anybody ^ else? Page 33 April 25, 2001 Okay. 1.7, any comments on that? We've already really discussed that. We beat that one to death. All right. 1.8, any comments there? MR. HILL: That's what we've done, isn't it, Mr. Chairman? MS. LYNNE: Haven't we already discussed that there is this Class I, Class II, Class Ill, on this staff, but that we're also going to be looking at the WRAPs? CHAIRMAN COE: Yeah. That's part of the WRAP. MR. LORENZ: Yes. Right. To the degree that that classification scheme is modified, we'll modify it. CHAIRMAN COE: Yeah, because we modified that extensively. Yeah. Okay. 1.9? MR. HILL: Excuse me, Mr. Chairman. Is buffering -- are there questions on buffering? I mean, that comes later in the ordinance. MR. LORENZ: No. We've already said that's page 5. MR. HILL: We've totally resolved the buffering, okay. CHAIRMAN COE: Yep. 1.9, any comments there? 1.10? 1.11? 1.12 and 13? MR. LORENZ: Let me make a comment on 13 before we move on. CHAIRMAN COE: Yep. MR. LORENZ: This whole document we're calling "proposed countywide policies." That's been or caused some folks some problems given the fact that we have the rural fringe committee who is working on the rural fringe lands, and then we have the rural lands committee working on the rural lands. Page 34 April 25, 2001 These policies are definitely going to apply in the urban- designated areas, which on the future land-use map is -- do you remember the future land-use map? It's your yellow area. At the moment the fringe rural fringe committee has not chosen to review these policies yet subject to getting through their conceptual plan. I would -- my recommendation is still that these would apply in the rural fringe lands in absence of anything else that the committee comes up with. These may or may not apply in the rural lands area because they're developing a much more comprehensive land-use strategy working with the consulting firm of WilsonMiller. So I just want to make it clear that these -- we definitely will be applying these in the urban areas. My thought is that these probably will apply in the fringe area. Of course, the fringe committee is going to make a set of recommendations there. But at the moment I'm unwilling to say that these will definitely apply in the rural lands area because I don't know exactly how their planning effort is unfolding. So to the degree that these will be interim as part of the final order requirements, I just want to make those points. MR. SOLING: Can Igo back to 1.11? CHAIRMAN COE: Yes. MR. SOLING: You went so fast. CHAIRMAN COE: Yes. MR. SOLING: Doesn't this sort of allow somebody to cut all the trees down and then say, "Hey, this is a Class III wetland"? CHAIRMAN COE: Bill, do you have any comments on that? MR. LORENZ: That's a good question. I'm thinking about that. CHAIRMAN COE: That's a good comment too. MS. BURGESON: I think we need to take a close look at that. At this point right now in the Land Development Code under Page 35 April 25, 2001 p•-• the agricultural clearing section, timbering is permitted. CHAIRMAN COE: In wetlands? MS. BURGESON: Anywhere. MR. LORENZ: This is an existing policy in the plan. MS. BURGESON: It's been an agricultural exemption that was in the state policy and the county. MR. SOLING: Can't we restrict it? MS. BURGESON: It certainly can be. One of the rules is that they follow the silviculture rules which is that it's not strip mining the land, but it's selective clearing. However, I think what you need to do is state in here that, for instance, no -- CHAIRMAN COE: Just say -- MS. BURGESON: -- agricultural exemptions in Class wetlands, if that's something that you're interested in. MR. SOLING: Well, that's what I would do. MS. BURGESON: Or just crossing it out and putting -- CHAIRMAN COE: Well, why don't we just say -- THE COURT REPORTER: Wait, wait, wait. CHAIRMAN COE: -- except in Class I and Class II? THE COURT REPORTER: I can only take one person at a time. CHAIRMAN COE: What's the matter? You can't pick it up quick enough? THE COURT REPORTER: No, I can't. CHAIRMAN COE: Your two hands aren't quick enough? THE COURT REPORTER: No. CHAIRMAN COE: Why can't we just say no timbering operations in Class I and Class II wetlands? MS. BURGESON: Or you can simply remove that policy, and timbering would have to follow all of the other rules as everything else would. I don't know that we have anything in here specific. Do we have something specific to agricultural Page 36 April 25, 2001 exemptions? MR. LORENZ: Maybe what the -- the concern is, would timbering itself change the classification of the wetlands such that in a future condition -- now that timbering is going to allow you to have a greater degree of impact in the wetland, perhaps what we can do to address that simply would be to add another sentence indicating that timbering or the taking of the vegetation off shall not modify the existing or future classification of the wetland. I would be unwilling to -- this was a concern back in '89, that property owners do have a right to get timber from the wetland system. MS. BURGESON: Even in a Class I? MR. LORENZ: Yes, anywhere. I mean, that's an alternative. CHAIRMAN COE: So these operations shall not modify the wetland classification? MR. SOLING: Well, that's a very weak situation because the fellas or the property owners are going to come in ten years later and say, "Hey, look, I've got melaleuca and everything else here. How can you hold me to something that was done ten years ago?" If anybody can remember -- MR. WHITE: Well, No. 1, as far as I understand it, you're required to keep the exotics out, the melaleuca. But more importantly I think -- MR. SOLING: So he's naughty and he doesn't do it. MR. WHITE: Well, all of our discussions take place in the context that there will be enforcement of those provisions. Generally, I don't find that it's favorable to draft rules in anticipation that folks are going to violate them so you make more rules so that when they do violate them they can violate those as well. I think the better practice is to assume that you're going to .-• have the enforcement authority and they're going to be held Page 37 April 25, 2001 �-. accountable for any violations of the law. But just to give you some context for this discussion, when you talk about reasonable investment-back expectation in the use of your land, mean, it's fundamental to real property ownership that if you have a timbering operation, for example, that the severing of that timber is one of the rights that you have in that bundle of property rights. So long as you're otherwise not "impacting the wetland" with that direct impact, such as filling or grading -- which I believe is the definition or the standard for what is considered direct impact -- arguably this policy wouldn't offend that policy. So I think Mr. Lorenz is correct in attempting to get to a place where unless by removing as part of those rights the timber from the property you somehow cause a direct impact or otherwise change the nature or function type of the wetland, then it's appropriate to do so. MR. SOLING: To cut a tree down, you've got to bring in a truck. You've got to bring in people. You've got to bring in saws. The tree is going to fall down on the ground. And when you get all through, I don't know how you can take a Class I wetland and timber it and say you haven't changed anything. CHAIRMAN COE: That's correct. That's correct. That's why we're putting that in. The timbering operations are allowed, but you're not allowed to impact the wetland or to change the classification. If you're going to change the classification by your impact on that wetland, then you're in trouble. MR. SOLING: All right. I'll take it then. CHAIRMAN COE: Any other comments? MR. LORENZ: Let me also add that, you know, it's not stated exclusively in these policies, and perhaps that's an oversight on my part, but Collier County in the past has not been applying P-. these policies to agricultural operations. Page 38 April 25, 2001 In the growth management plan, these policies that we're developing are to nonagricultural, if you will, development. guess it's the definition that's in 9J5 that talks about development which basically exempts agricultural activities. That's the underlying premise of all these policies, and perhaps I need to put a policy in here that states it explicitly. MR. SOLING: But that's what we're here doing, making policies to control the environment, and we're going to affect agriculture. It has to. CHAIRMAN COE: Okay. MR. LORENZ: I need to give you some information. The County Commission has gone to court, and the DCA has sided with the county going through -- well, certainly the administrative procedure process to insure that our regulations are not going to affect agricultural activities. So to the BAC -- you may want to make the recommendation to the Board of County Commissioners that we ought to apply this to all agricultural activities. I'm just telling you as staff, that's not the direction that we've been under. In fact, we've been working -- we had worked with county attorney's office to bring those arguments through in the case in conjunction with the DCA. CHAIRMAN COE: Okay. The next one, Objective 1.2. Any comments there? How about 2.1? I've got a question of Bill. MR. LORENZ: Uh-huh. CHAIRMAN COE: When it says wet slips are no more than 18 for every 100 feet of shoreline where seagrass impacts are less than 100 square feet, that's only 10 feet by 10 feet; correct? MR. LORENZ: Yes. CHAIRMAN COE: It's very restricted. MR. LORENZ: Very restricted. CHAIRMAN COE: Any other comments? Page 39 April 25, 2001 �-. MR. SOLING: Yes, I have a comment. I have a boat dock, and 1 see that I'm going to in a year or two have more -- have need for more slips. So what stops me from cutting the sea grass and then going back two years later and saying, "Hey, ain't got no sea grass"? CHAIRMAN COE: Nothing, nothing. I mean, it happens. MR. SOLING: Yep. CHAIRMAN COE: Okay. 2.2. 2.3. Okay. The next one, protection of native vegetative communities. MR. LORENZ: Let me just -- if you will, let me just frame this section a little bit. Policy 11.1, you can see it says it's for the county's urban designated area. The way I laid this out was in anticipation of preservation standards coming out of the rural fringe committee. I expect those standards to be brought either in this section or some other section in the growth management plan and to have more specific regulations to provide for a higher -- a much higher degree of protection of vegetative communities than these policies that you see in front of you. These -- policy 11.1 is for the county's urban designated area, the yellow on the future land-use map. So if you could review these in that context, that would be helpful, I think, for you. Secondly, for the most part, these policies reflect what we have in our current code. Maybe as we go through them there may be one or two places where it's maybe a little bit more expansive than what we have in the current code, and we'll try to highlight those for you. CHAIRMAN COE: Well, one recommended change that would make here is that this percentage here that you-all have listed out, that it not include the buffer around the property. Page 40 April 25, 2001 MS. BURGESON: Where are you? CHAIRMAN COE: Quite frankly, I've seen some of these properties come before the board, and it's laughable the buffer that they use. MS. BURGESON: One thing that might be helpful is creating a minimum WIP of the native vegetation that's acceptable. CHAIRMAN COE: Well, Ed Carlson had a -- MS. BURGESON: If it's a 50- or 100-foot buffer that might be NEM CHAIRMAN COE: -- comment along in there. I think it was roughly a hundred feet. I think it was Ed, but maybe it wasn't. MS. BURGESON: We have recently seen projects come through with 20-foot buffers, and it's very difficult to recreate a habitat in 20 feet. But if you do have a number in there for the minimum acceptable for the preservation standards -- CHAIRMAN COE: A hundred feet isn't much. It's 30 yards. That's very, very small. Any comments on what the buffer area should be? MR. SOLING: It's okay with me. MS. LYNNE: Which line are you on? CHAIRMAN COE: I'm not on any line because it really doesn't -- MR. SOLING: He's getting just a general comment. CHAIRMAN COE: Yeah. It really doesn't -- I mean, it may come up later on. MS. LYNNE: The general comment is -- regarding the percentage of native vegetation, you're saying if the buffer -- if you have a 20-foot buffer, that can't be counted as your preserved native vegetation? CHAIRMAN COE: Right. MS. LYNNE: I agree with that. CHAIRMAN COE: So can you put in a -- does anybody else Page 41 April 25, 2001 have any comments along there? So, in other words, we're saying these percentages don't look too bad, but we want to make sure that the buffer is not included in that amount. MS. BURGESON: Okay. Do you want to come up with a minimum distance, or do you want to say that the typical 20-foot CHAIRMAN COE: I recommend that the buffer be no less than a hundred feet. I would even vote for higher than that. MS. BURGESON: Would that also apply internally to the project then, that native vegetation areas that are retained -- are you just talking about a perimeter buffer? CHAIRMAN COE: No, no, it wouldn't; only on the buffer. MS. BURGESON: Okay. CHAIRMAN COE: What they're doing now is they're using the buffer as maintaining native vegetation which is -- we all know that's crap. MS. BURGESON: Okay. CHAIRMAN COE: All they do is they bulldoze it down, and they throw a couple of palms on the thing, and they think that's preserving the property, and it isn't. MS. BURGESON: The perimeter landscape buffer, then, where it's less than 20 feet shall not -- I'm trying to get some -- CHAIRMAN COE: I think it's 25 feet, isn't it? MS. BURGESON: I think it's 20 feet. CHAIRMAN COE: Twenty? So we're making it 100. MS. BURGESON: So where the perimeter landscape buffer is less than 100 feet, it shall not count towards native vegetation? CHAIRMAN COE: No. We're saying the buffer should be 100 or more. MS. BURGESON: Well, again, only in order to count towards the 25 percent native vegetation preservation standards. They may put in a 20-feet buffer for landscapes purposes, but that Page 42 April 25, 2001 would not be allowed to count towards the 25 percent. CHAIRMAN COE: All right. Yeah. I understand. Yeah. I see your point. Yeah. Okay. MR. LORENZ: Let me ask a couple of questions to make sure. What do you see as being the purpose of buffer, the function or functionality of the buffer? CHAIRMAN COE: Well, the functionality at this point right now has been for the developer to be able to count that as maintaining native vegetation which has required a certain percentage on their land; is that correct? MR. LORENZ: Not necessarily. CHAIRMAN COE: Every project we've seen since I've been here, that's what it's been. MS. BURGESON: It's been towards the 25 percent. CHAIRMAN COE: That's correct. MR. LORENZ: It does go to that. CHAIRMAN COE: That's the only reason that they put that buffer around there. MS. BURGESON: Well, that's the only reason that they identify that as a native vegetation buffer, but they are also required by the landscape section of the code to provide a landscape buffer around the perimeter. So if it's too small to be considered viable native vegetation towards this policy, it would still count towards the landscape buffer or minimum landscaping CHAIRMAN COE: I understand. MS. BURGESON: -- which actually can go below 20 feet. MR. LORENZ: I guess one of my points is, if we have -- if the function of the buffer is to provide for, let's say, aesthetic -- buffering for aesthetic reasons for the public from the project to ^ another site or to provide for noise attenuation or lighting Page 43 April 25, 2001 ^ attenuation, something along those lines, that can be handled through the landscape code, and we have a very specific set of code and density of trees, etc., etc. On the other hand, if we're talking about trying to provide what I'm going to call a minimal functional width of preserved native vegetation to provide for habitat functionality -- CHAIRMAN COE: I see your point. MR. LORENZ: -- then what we're really talking about -- when you start looking at some of the data that we've looked at from up in the center part of the state, you're looking at widths of three, four, or five hundred feet at a minimum to provide for some degree of functionality, and that's not going to be able to be accomplished in the urban designated area. For those types of standards, we're considering some detail in the rural fringe area. So I guess that's why I'm asking, what is the functionality of what you're calling the buffer? CHAIRMAN COE: Yeah. I see your point. That is a good point. MR. SOLING: Well, can I ask a question? CHAIRMAN COE: Sure. MR. SOLING: Can a buffer be wetlands, Class I wetlands? MR. LORENZ: Yes. MR. SOLING: I understand. CHAIRMAN COE: Well, they can't impact it anyhow. MR. SOLING: I know, but I'm saying you're -- in essence, what you're trying to do is increase the 25 percent to 30 or 35 percent. CHAIRMAN COE: Uh-huh. MR. SOLING: So I'm saying -- I'm just asking, if they've got wetlands, can they put that in the buffer and consider that buffer and still cover 25 percent of the land? CHAIRMAN COE: Yeah, they could. Page 44 April 25, 2001 MS. BURGESON: Anything that's retained on site qualifies towards the 25 percent unless this board agrees with this language -- unless it's of a certain minimum size around the perimeter. What typically happens is, you look at an aerial or you go out and take a site visit, and you see the project. They're proposing retaining 20 feet around the perimeter, but when they actually get out there to do the work, the pines don't actually fall in the right location out there. What they expected to be able to retain doesn't often end up being the final product, so they'll have to go back in there, and then they restore that 20 feet with the larger plant material size. That's typically what happens, or they have to enhance that area. CHAIRMAN COE: So what do you recommend? Do you recommend keeping it the way it is? MS. BURGESON: No. The 20 feet is very difficult for staff to -- clearly less than 20 feet is not a functional proposal. Twenty feet is still very difficult because, as I said, you typically get out there and find that what's on the site, if they surveyed that 20 feet up front, isn't viable or isn't worth qualifying towards the native vegetation. MR. SOLING: Barbara, where does it say 20 feet? Let's look at that. MS. BURGESON: Well, we're just looking at projects that typically come before this board are required to provide a landscape buffer around the perimeter. And for the most part a lot of those buffers are 20 feet. So sometimes the developer chooses to use that 20 feet towards the native vegetation requirement. MR. SOLING: So can't we raise that to 100 feet? MS. BURGESON: Certainly. I'm not saying that the 20 feet is a good idea to keep it in place. I'm trying to give you reasons ^ why that has been -- Page 45 April 25, 2001 CHAIRMAN COE: Well, all I'm saying is don't allow that 20- foot required landscape buffer to count towards the native vegetation. MS. BURGESON: Right. CHAIRMAN COE: That's all I'm saying. MR. SOLING: That's all I'm trying to say. CHAIRMAN COE: Is anybody in disagreement with that? MR. LORENZ: I guess what we're trying to say is that -- we're trying to specify a width that -- you have to be at least this much width for you to qualify as a vegetation retention requirement. CHAIRMAN COE: Okay. Now I understand what you're saying. Okay. MS. BURGESON: For instance, sometimes we'll get a project in where what they're doing is -- the way they're aligning the condominiums is they're keeping a triangle of native vegetation in between, and they want that to qualify for their native vegetation. Sometimes that's 50-foot wide down to a point, and sometimes it's much narrower than that, so you may want to say that -- CHAIRMAN COE: What would your recommendation be -- MS. BURGESON: -- under no circumstances -- CHAIRMAN COE: -- since you-all know better than us what would be a viable size? Would it be 100 feet or 300 feet? What would it be? MS. BURGESON: Why don't we take a look at some current projects that have been built with those small areas, and take a look and see how well they succeeded. CHAIRMAN COE: Okay. MS. BURGESON: And then maybe at the meeting -- maybe ^ we can even do that this weekend for when we come back next Page 46 April 25, 2001 Wednesday. CHAIRMAN COE: I'll let you-all hammer that out. All right. Any other comments on 11.1? MR. SOLING: Does Ed have anything? CHAIRMAN COE: Any other comments? Okay. 11.1.2? MR. HILL: Yeah. I'm sorry. Back on No. 8 under 1.1 -- CHAIRMAN COE: Yep. MR. HILL: How effective are we in determining the status or the operations carried out prior to 1989? Can we fully implement that statement? MS. BURGESON: Where are we? MR. HILL: Subparagraph 8 on page 9, parcels that were cleared prior to January 1989 are exempt. MS. BURGESON: I think that we have to add to that, ^ "parcels that were cleared and can provide evidence of appropriate permitting or approved permits." MR. HILL: Okay. Somehow we have to have an enforcement. MS. BURGESON: Right. If you say parcels that were cleared of native vegetation prior to January 1989 and can provide -- MR. SOLING: Documentation. MS. BURGESON: -- documentation of approved clearing permits. MR. HILL: I think that has to be in there. CHAIRMAN COE: Yeah. That's a good point. MR. HILL: There's a minor question. Where did January 1989 -- is that somewhere in the ordinance creation history? MR. LORENZ: That's the adoption of the initial growth management plan. CHAIRMAN COE: All right. 1.2, any comments there? ^ 1.3? Page 47 April 25, 2001 MS. LYNNE: Wait. Do you mean 11.1. -- I'm getting lost. CHAIRMAN COE: Policy 11.1.2. That's page 9. MS. LYNNE: Okay. CHAIRMAN COE: The next one below that is 1.3. MR. HILL: Is that in line, Bill, with what you were saying earlier about ag exemptions in 1.3? MR. LORENZ: Yes. CHAIRMAN COE: Okay. Page 10 -- MR. HILL: Wait a minute, Mr. Chairman. That refers specifically to 11.1.1, not to previous. Is there a potential conflict? It states, "Agriculture shall be exempt from the above preservation requirements contained in 11.1.1." Is that the only section of the ordinance that we need to refer to in this? MR. LORENZ: This refers -- this Policy 1.3 refers to the clearing of land in terms of the native vegetation off the land. The point is that when we set up the original growth management plan, we wanted to minimize any conditions that would potentially exist such that a property owner would clear his land -- would say under the guise of agriculture clear his land, take all the native vegetation of it off, and then come right back and say, "Okay, now I want to put a housing development in. I don't want to worry about preserving any native vegetation." So we have the ten-year limitation in there. That's the purpose of this policy. CHAIRMAN COE: Any other comments? Okay. Page 10, 11.2. MS. LYNNE: The only thing I would like to see here is perhaps some expansion on the kinds of vegetation that's appropriate. There's a lot of native vegetation that isn't appropriate for xeriscape, and that really doesn't address that issue. The other thing is, we do see the same, the very same .-. native plants used over and over and over again, and there's a Page 48 April 25, 2001 huge variety, and we could maybe put some language in there that suggests other alternatives. MS. BURGESON: I think under the landscape ordinance right now there is a requirement or a minimum number or minimum variety of species. For instance, in certain circumstances you have to have no less than four particular species of canopy trees or five -- I haven't read through that recently, and I know it's been amended a lot. But maybe we can go back, and staff will take a look at how that's written, and maybe we can incorporate some of that language into this section. CHAIRMAN COE: Any other comments? All right. 2.1 or 2.2, either one of those? MS. LYNNE: Why is the exception made for the site north and east of Route 41? Why is it less there? MR. LORENZ: Quite frankly, that's what we have in the code. MS. LYNNE: Which code -- MR. LORENZ: I mean -- CHAIRMAN COE: Do you feel like we're getting the answer, like -- MR. LORENZ: I reflected -- CHAIRMAN COE: -- "that's the way we always do it"? MR. LORENZ: I reflected the status quo in this policy. I didn't know the rationale for that reason, but I don't have a compensating reason to make it any different. CHAIRMAN COE: We're saving our hard questions for last. MR. SOLING: Doesn't that designation take almost all of Naples in Collier County east and north of 41? I mean, everything that's going on right now is east and north of 41, even North Naples. MR. LORENZ: Well, I think -- MS. BURGESON: Again, this is a landscape policy. This is Page 49 April 25, 2001 not an environmental issue per se as much as Nancy would be the one that would have the final say on that. MR. LORENZ: Well, let me give you -- I can give you a little bit of history on it. North and east of -- there was recognition back in the 1989 plan that everything, let's say, seaward of Route 41 we wanted to maintain as much of the native vegetation as possible. I think that's the reason for the use of 41 as a dividing zone. MR. SOLING: So let's strike that. MR. LORENZ: But in terms of the numbers, I don't recall why the 35 percent requirement. CHAIRMAN COE: Why, do you want to increase it to 50 percent? MR. SOLING: I think I'd delete the whole subject out. MS. LYNNE: Just delete that segment, the last half of the first sentence there. CHAIRMAN COE: Any other comments? MS. LYNNE: From "unless the site"? MS. BURGESON: What's that? MS. BURGESON: From "unless the site"? MR. SOLING: We'll put -- MS. BURGESON: Cross that out. MR. SOLING: After "species," period. "Floridian species," period. MS. BURGESON: Right. CHAIRMAN COE: Yeah, that works. MS. LYNNE: And then on Policy 11.2.2 -- MS. BURGESON: Can I interject something here? MS. LYNNE: Sure. MS. BURGESON: Where it talks about requiring 100 percent native species on coastal barriers and undeveloped coastal -- the exact language is "coastal shorelines and/or undeveloped and Page 50 April 25, 2001 ^ developed coastal barrier islands," it says that "the landscaping p � Y p g requirements shall be comprised of 100 percent." Now, the way that that's interpreted, that says that once you've met the landscaping requirements -- just so they understand this doesn't mean general landscape terms. For instance, if you're required to put in 30 trees and a particular amount of shrubs, once you've met that minimum landscaping requirements with 100 percent then you can place nonnative vegetation plantings above that. I just didn't want you to misunderstand that. You might say that -- well, I don't know whether you want to continue with that and say that the minimum landscape requirements have to be 100 percent or whether you want to say that planting requirements -- so that you're saying that even once you go above and beyond your minimum landscaping, it should still be 100 percent native vegetation. MS. LYNNE: So for -- this is for coastal shorelines -- MS. BURGESON: For instance, if you go into Pelican Bay, you go along the area by the Strand and you've got the condominium high-rises there that are south of the Ritz. They put in their minimum landscaping requirements at 100 percent native. Now, to make that area look pretty so they can sell their units, they go above that minimum with the ornamentals, the nonnatives, the flowering trees that they want to increase the aesthetic look in order to sell. So, just so you understand the intent of this is and has always been that the minimum landscape requirements be that. Now, if you want it to be addressed differently, I just wanted you to have that information. MR. LORENZ: I don't think that we're proposing that all plantings have to be of the southern Floridian species, I mean, because we wouldn't want -- I mean, that would preclude ^ anybody from putting any kind of ornamentals in, you know, or an Page 51 April 25, 2001 ^ accent plant to be at 100 percent. The question I have for Barb is, do you know whether the code requirements for coastal barrier islands is greater in terms of amount and coverage of vegetation? Because that could be the place where you may want to have it more than -- in other words, a higher density of vegetation that's 100 percent native species on a coastal barrier. MS. BURGESON: Right. MS. LYNNE: Exactly. You can see how some homeowner would want to have a mango tree or something like that, and that would be fine, but you don't want them to be able to plant 10 percent of -- MS. BURGESON: A hundred. MS. LYNNE: -- yeah, right, have a grove of mango trees. MS. BURGESON: Maybe what you can put is -- for instance, you assume because of the cost of putting in the required landscaping that people don't go above and beyond the minimum. But in cases where if the minimum landscaping for a particular project is, say, 50 trees, they put in 50 native trees, but then go in and put 250 nonnative trees, they're yet still in compliance with this, but what you may want to add is some language that says, "However, the percentage of native vegetation to nonnative ratio shall never -- should -- MS. LYNNE: Not exceed. MS. BURGESON: Should not exceed -- MS. LYNNE: Yeah. MS. BURGESON: -- say, three-to-one native to nonnative or however you might want to come up with that. I mean, the intent of the code on the minimums, when they're saying 75 percent native on the trees, is 75 percent native on the trees. It's just that through the development of projects around the county and ' ' creating a much lusher and more ornamental look, they've gone Page 52 April 25, 2001 way beyond that. You can control that by putting some ratio in there or some minimum percentage. MS. LYNNE: Okay. MR. SOLING: Excuse me. I read this different than you're interpreting it, and to get it to your interpretation landscaping requirements should specify that it's in another section or put it in quotes or something so that somebody knows that this is not the totality, because I read it as the totality. You're saying the landscaping requirements is only a minimum, not the total. So somehow or other you've got to differentiate that wording. MS. BURGESON: Right. I just wanted to let you know that when you read "landscaped trees" or "landscaping requirements," that word "landscaping" is as defined by our code. MR. SOLING: But you have to get the lay reader or somebody else to -- MS. BURGESON: I understand that. What I'm trying to find is direction from this group as to whether they want that 75 percent and 50 percent to be minimum percentages when you go above and beyond the required landscape plantings. MS. LYNNE: And the answer for me would be yes. I don't know what it should be, and I would look to you for guidance on that. MS. BURGESON: I think maybe we'll talk to Nancy Siemion about that -- she's our landscape architect -- and see if she has some input. CHAIRMAN COE: See what they've got. Any other comments? MS. LYNNE: On Policy 11.2.2, why is the -- why is it only 10 percent of the finished lake banks shall be planted with native aquatic vegetation on a littoral shelf? Why not 50 or 90 or 100? MS. BURGESON: Ten percent is what is currently in the Page 53 April 25, 2001 code as the minimum. About two years ago the county administrator asked staff to research that and come back with a higher percentage. We started to do that. I know that Nancy and Stan Chrzanowski had come up with some proposed language. They were working with them on it as to what number we should actually increase that to, and it became such a large project in terms of getting the research data to support that to present it to the board that it slowed down to a halt. So I think that now may be a good time to go back to that and try to incorporate that research into a larger percentage here. CHAIRMAN COE: Well, surely one of the state universities has that information on the shelf. MS. BURGESON: We do have quite a bit of research on it. MR. LORENZ: I was involved in the project as well, and one thing I want to take a look at is the Florida Land Development ,^ Manual specifies the standard a little bit different way. We want to take a look at how that standard may be a better way of addressing it. CHAIRMAN COE: So when you draft it up, you're going to incorporate that into this? MR. LORENZ: Yeah. We'll do that kind of research and get back to you with the changes. CHAIRMAN COE: Any other comments? MS. BURGESON: One other thing I would like to ask is, at this time exceptions have been given from time to time to allow the 10 percent to not be planted on one lake if it's added to another lake. So you might want to say here that a minimum of 10 percent of the finished -- of each finished lake bank or beach so that you don't mitigate that structure. CHAIRMAN COE: Make sure that's clear. MS. BURGESON: I'm not sure of the purpose of the reason ^ for having requested that, but I know that it has been requested. Page 54 April 25, 2001 CHAIRMAN COE: Yeah. Okay. MR. HILL: We've also had projects where we've taken the net 10 percent and put it all at one end of the lake. MS. BURGESON: Uh-huh. That's typical. MR. LORENZ: Typical. CHAIRMAN COE: We want it all the way around the lake. MR. HILL: Well, that's not what we've allowed in the past but -- CHAIRMAN COE: Why not have it all the way around the lake? MS. BURGESON: Well, it's 10 percent of the finished lake. CHAIRMAN COE: What's the reason for it? I'm going to pull a Bill Lorenz on you. Okay. What's the reason for it? MS. BURGESON: Water quality is one of the reasons. CHAIRMAN COE: Water quality. Animals moving in and out of the grass or whatever it is; right? MS. BURGESON: Right. CHAIRMAN COE: Why would we permit it to just be at one end of the lake? If the reason for it is water quality, then we need to have it all the way around the lake. MR. LORENZ: It's typically or usually clustered at the outfall of the lake. The thinking, I think, would be that you get a little bit of some water quality polishing, you know, at that point. Quite frankly, it's not going to function -- CHAIRMAN COE: The thinking is if you're a developer -- THE COURT REPORTER: Wait. MR. LORENZ: It's not going to function that way. CHAIRMAN COE: The thinking is if you're a developer, you cluster it in an area that is not going to screw up the view of the lake by all the people that live around the lake; correct? MR. LORENZ: Not being a developer, I'm not -- ^ CHAIRMAN COE: If our intent is to preserve -- Page 55 April 25, 2001 Ii MR. LORENZ: I'd rather look at vegetation. CHAIRMAN COE: -- vegetation around the lake to improve the water quality of the lake, why wouldn't we just require it to be around the lake, which is our intent? MR. SOLING: But then it has to be greater than 10 percent. Because if you spread 10 percent around, it's nothing. MS. BURGESON: Right. It would be far too thin. MR. SOLING: It would have to be 40 or 50 percent to be anything meaningful. MS. LYNNE: Agreed. That percentage has to go higher. CHAIRMAN COE: So the percentage has to go higher, and it needs to be around the lake, not clustered, and that's if we're going to do this at all. MR. LORENZ: Like I said, we'll pull in some more information for you. Just put a little bit of a placeholder there. CHAIRMAN COE: Okay. Any other comments on that? MR. HILL: Well, I think we have to be very careful because this includes residential detention ponds. I mean, we seem to be talking about the large lakes and the large developments. CHAIRMAN COE: Well, he's going to have to do the research on it. MR. LORENZ: The biggest problem with doing that, quite frankly, is you have to create an appropriate shelf with an appropriate slope. Because what you have is you have in various places of the county such a great degree of variation and depth, and that variation and depth limits you to some degree of what vegetation you can actually plant that's going to survive. So those are all some of the factors that come into play, but we'll work on some more details when I -- CHAIRMAN COE: This is not something we can discuss because we don't have the research and all that business, so ^ that's why they're going to have to do it and come back to us. Page 56 April 25, 2001 Any other comments? Okay. Objective 111.1 and 1.1. That's page 11. I think we're jumping along here. Any comments on those? Those look like they're all part of the NRPAs and FLUEs and all that stuff. Okay. 1.2 at the bottom of the page. I have one comment there. Rather than 10 acres, I would like to change that to 5. MS. LYNNE: Isn't this something that we have a note on from Mr. Carlson? MS. BURGESON: Ed Carlson had suggested the same. MS. LYNNE: Okay. MR. LORENZ: Now, recognize this does exclude individual single-family residences. If it was a commercial entity of 5 acres or greater, you would see an EIS -- CHAIRMAN COE: Well, yeah, but I'm going to make that change in the next subparagraphs. I mean, why would we not include single-family homes in this? MR. LORENZ: I think that there's a terrific cost burden for single-family residences to do a complete EIS the way the specification is and that we wouldn't want to apply that burden to those entities. The typical lots that you're going to get as single-family lots that are outside of a permitted development that has gone through all the reviews would be basically in north Golden Gate estates. CHAIRMAN COE: Correct. MR. LORENZ: To the degree that those entities need to provide -- or at least have a consultant through federal and state permitting requirements to look at wetlands on their site and then apply for the appropriate permit, I think that that mechanism would take care of the problems that we would see. ^ What we're trying to get at in terms of larger properties is to look Page 57 April 25, 2001 at where the listed species are and where the wetlands are on a particular property. MS. LYNNE: This is -- CHAIRMAN COE: So you're saying that they can build on wetlands out there in Golden Gate? MR. LORENZ: Subject -- CHAIRMAN COE: We already know they're doing it. MR. LORENZ: Yeah. Subject to the permitting requirements, yes, they can. They can impact -- they are allowed to impact wetlands. They have to go through the appropriate mitigation. The problem they're having in north Golden Gate estates is there's not a viable off-site mitigation area for the residents to participate in. So they have to work on trying to create the wetlands, let's say, in the back yard which may not -- I mean, there's two schools of thought. One school of thought is that's a good idea. The other school of thought is that's a bad idea that you're going to have a lot of these smaller areas. In a single-family residence, they're just going to get trashed. It would be better off putting it into more of a larger system. But I guess the point being here is I'm comfortable with having it not apply to a single-family residence because the other mechanism exists, plus, again, I think that's the -- CHAIRMAN COE: So you think it should stay at 10 acres so that these people can skate? MR. LORENZ: Oh, I didn't say that. I said, "Make sure it doesn't apply to a single-family residence." CHAIRMAN COE: Okay. Any other comments? MS. LYNNE: Yeah. I have an idea. In terms of -- I understand the expense for a single-family property owner. But what I'm wondering is if we couldn't enlist volunteers, for ^ example, from a native plant society or from other ecological or Page 58 April 25, 2001 conservation-minded groups that would have volunteers who are knowledgeable who could actually go in there and look for listed species. I would also like to see situations where if an area is going to be described that volunteer organizations like that can go in and remove listed species for transfer to another piece of property. MS. BURGESON: That's something that we would have to work out with the state, with the Florida Fish & Wildlife Conservation Commission in terms of permitting relocation. MS. LYNNE: I'm thinking more of plants. Do you even have to do that for plants? I mean, I'm thinking, you know, if they're going to bulldoze something that's got orchids and bromeliads and ferns in it, you know, why not take them out and put them someplace else? MS. BURGESON: In the past the Native Plant Society had direct contact with large properties that were developed and made arrangements for that. I just haven't seen that happen in about six or seven years. MS. LYNNE: It can -- MS. BURGESON: It doesn't preclude them -- CHAIRMAN COE: I'll be honest with you. MS. BURGESON: -- from doing that. CHAIRMAN COE: I wouldn't touch that one in Golden Gate Estates for anything. MS. LYNNE: Well, it's just an idea. CHAIRMAN COE: Even with a bulletproof vest I wouldn't touch that one. I forget who it was that I talked to. They've got a lady that's -- I guess she's code enforcement or whatever it is. She has the unhappy task of having to go out and check some of those sites out there. MS. LYNNE: That's Alex. CHAIRMAN COE: I wouldn't want that job for anything in the Page 59 April 25, 2001 ^ world. Any other comments? Okay. Any comments on any of the subparagraphs in that same paragraph? How about No. 2, the habitat management plan for listed species? Any comments on that? MS. LYNNE: Okay. We're on page -- CHAIRMAN COE: We're on page 12. MS. LYNNE: Okay. "(b)" on that, "bona fide agricultural uses," we ran into that with the supposed fish farm. I would like to see a definition of bona fide that includes some kind of guidelines to show that these people are actually going to be able to make a viable business out of their project. Not just upon bona fide that's on a list, but bona fide that it actually is a viable business, because the plan that they had was not a viable business plan. MS. BURGESON: So you're looking for some financial calculations or MS. LYNNE: Yeah, something like the IRS would apply, for example. MS. BURGESON: An objective business plan? MR. LORENZ: Yeah. But you would have to provide some criteria by which you would say this is or is not bona fide once you look at all their cost submittals and expected revenues and expenses. CHAIRMAN COE: Why not put down dirt mining is not an agricultural use. Fish farming is not an agricultural use. MS. LYNNE: Because they'll -- CHAIRMAN COE: By the way -- MS. LYNNE: -- think of something else. CHAIRMAN COE: -- the fish farm, that, quote, fish farm passed, by the way. MS. LYNNE: Yes, I know. MR. HILL: I don't think in these ordinances we can attach Page 60 April 25, 2001 ^ the financial viability of anything. I think we have to look at it solely as an agricultural use and not delve into the finances. That would be dangerous territory to do and also to enforce. MS. LYNNE: Well, what else can we use? MR. SOLING: I'm sorry. I'm lost. Which paragraph or line are you on? MS. LYNNE: Page 12 right up at the top there's (a), (b), (c), and we're talking about (b) here. CHAIRMAN COE: (B). MR. SOLING: Oh, (b), bona fide. All right. MS. LYNNE: And "bona fide" when I read it as a layperson, thought that meant a real legitimate business. And it turns what bona fide meant is, is it on a list that's provided by the state or county government or something of permitted uses. In the case we're talking about, somebody was essentially mining fill, and what he said he was doing was fish farming, but if you looked at the practices that he puts into effect for his fish farming, it was clear he was never going to be able to farm fish. There was no predator control for one thing, and out in Golden Gate Estates if you have a pond with no predator control, you're not going to have any fish in there. CHAIRMAN COE: Staff got any recommendations? MR. SOLING: I thought defining the word was the way. CHAIRMAN COE: Is there a better way of defining that paragraph? MS. BURGESON: I don't know how you would get a petitioner to -- CHAIRMAN COE: Well, the only way I can think of doing it is just put down "no dirt mining." MR. SOLING: Or fishing farm. CHAIRMAN COE: I don't think you can say that about fish farming. If it's legitimate there's no reason why the guy can't Page 61 April 25, 2001 ^ fish farm. I mean, this particular -- MS. LYNNE: Right. CHAIRMAN COE: -- the specific case we're talking about that came before us, we know that this guy was lying. There's no question about it. He has no intent of fish farming. MR. LORENZ: Well, "The EIS requirement may be waived subject to the following criteria." It doesn't say "shall" be waived. MS. LYNNE: But you know that every time that goes before the commissioners, if there's a "may" it's translated as "shall." CHAIRMAN COE: Why don't you take a look at it and see if you can come with a little bit better definition, like reference a state ordinance that says what a bona fide agricultural use is. I'm sure there's something. MS. BURGESON: We reference that in our code, but it is -- as Eric was saying, it's a list of items not -- CHAIRMAN COE: Well, maybe we can reference it here or take that list and extract it from wherever it is and put it in here. MS. BURGESON: I think she's not concerned about what's on the list but that those things can actually be accomplished on that parcel. MS. LYNNE: The point is that if you're saying you're making a fish farm that's bona fide, even if the -- CHAIRMAN COE: Yeah, but we have requirements. You know, we did that as board members. And I assume that it got written -- when it finally went for approval to the other people where it was going to be checked, he was going to have to prove that he's fish farming. MS. LYNNE: Okay. CHAIRMAN COE: That's all you can do. Any other comments on that? I've got one comment on (c)3. ^ "The surface and/or natural drainage or recharge capacity of the Page 62 April 25, 2001 ^ site has been altered" and "it will not be further degraded by the proposed activity." I don't know what to do on that, but as far as I'm concerned, if they've altered it, they can put it back the way it was. I'm specific about that North Belle Meade property that has been drained, bulldozed. They threw a couple of cattle on it to say that it's agricultural use so it changes the taxation on the land. And then they come before us and they say, "Oh, that's been degraded for years. Now we want to develop it because it's so degraded." I want to stop that. So can you write that in such a way so that's not going to be a way out, or take it out? MS. BURGESON: If you want to get into the intent of that, I think it was more for farming when they were going in and actually ditching and -- CHAIRMAN COE: That's what they did in North Belle Meade. MS. BURGESON: Uh-huh. CHAIRMAN COE: That's exactly what they did. I assume you've been on that property. MS. BURGESON: I'm not -- I'm not sure. CHAIRMAN COE: I've been on it. That's exactly what they did. They ditched it. They drained it. They bulldozed it. They put cattle on it. MS. BURGESON: Uh-huh. MR. LORENZ: Well, remember, the intent of this section here of this particular policy is that we are looking for a listed species survey -- an EIS -- part of the EIS requirement, and what we're saying is that, "Okay, Mr. Propertyowner or Mr. Applicant, in most cases there's a good chance you're going to have listed species on your property, so we want to know how you're going to handle them where you have the potential for environmental sensitivity." If on the other hand we look at this land or parcel and it says "after inspection by county staff" and we find that Page 63 April 25, 2001 ^ there's just nothing on this property that's of a concern to require the applicant to do a comprehensive listed species survey as part of the EIS requirement, then we're exempting them out of . this..requirement. That's what this policy basically does. Now, if we are saying -- if we're saying that even though this area is trashed or altered or what-have-you, we always want to have you give us options, for instance, of what the restoration of this site -- what potential restoration opportunities exist for this site, and then we would require an EIS with that particular criteria for each and every site that comes to the county. MS. BURGESON: We could remove 3 in it's entirety and rely on 1. CHAIRMAN COE: Okay. MR. HILL: Well, I was going to suggest -- this is in the section on wildlife protection. What Item 3 intends to do is certainly covered elsewhere. CHAIRMAN COE: Yeah, just take it out. MR. HILL: If you're talking North Belle Meade, it's really redundant when it's in the wildlife protection. MS. BURGESON: Right. If you can rely on 1 to say that the proposed use will not further degrade the environmental quality, then you don't need 3. CHAIRMAN COE: That's right. MR. HILL: Three is redundant, I think. CHAIRMAN COE: Any other comments? MR. LORENZ: If this is in the Land Development Code, would that provide any inconsistency? MS. BURGESON: None. CHAIRMAN COE: Okay. MS. LYNNE: I don't understand why we need any of those exemptions. Even if the proposed use of the site isn't going to, ^ say, degrade environmental quality, if they're going to build Page 64 April 25, 2001 something or put a road in, don't you want to know that the building or the road isn't going to sit on top of a listed species? mean, maybe I don't understand what that means. MR. LORENZ: Barb -- I guess I'll point it to Barb. Barb has to deal with the EIS requirements and apply this part of the code for the most part. I believe that we pulled this right out of our existing code. As I understand the intent, the intent is to say that we do want to have applicants provide listed species surveys as part of the EIS requirements. On the other hand, if we know up front with these types of criteria that there's just not as high probability of having listed species present, we're not going to require that owner to go out and do something that's pointless. MS. BURGESON: Reading (c), really it's a combination of all of those items. It's not one or the other. So, for instance, if ^ somebody is looking at that and they're saying that "the use or development of the site will improve and correct existing ecological deficiencies," that's "and" you've looked at the others as well. So all of those have to apply and qualify in order for staff to determine that an EIS can be waived. MS. LYNNE: So you have to have 1 through 5 all qualify? MS. BURGESON: Right. That exhibits the following characteristics. It's not "exhibits one of the following characteristics." MS. LYNNE: Okay. How about "exhibits all of the following characteristics"? MS. BURGESON: That's fine. That's how it's been used. MS. LYNNE: Cool. Fine. CHAIRMAN COE: All right. We've been at it for quite awhile here. I want to call for a five-minute break to give our court reporter a little mental break, if nothing else. Try to make it ^ quick, and we'll get back at it and get this thing finished up as Page 65 April 25, 2001 quick as we can. (A short break was held.) CHAIRMAN COE: Okay. The meeting has come back to order. Any more comments on that top of the page or No. 2 which is right below that? MS. LYNNE: I've got a comment on No. 2. It says, "These plans shall describe how the project design minimizes impacts on listed species." I don't know what we can do about saying "minimizes impacts," but that's what was said in our wetlands policy, that development is to minimize impacts on wetlands, and we have Mirasol with two golf courses. I mean, what's the definition of minimizing impacts? I mean, is two golf courses per development minimal or five? I don't know if that's a question for the county attorney or -- I mean, "minimizes" to me means you make every effort not to impact wetlands. And two golf courses in a development doesn't seem necessary to me, so how you do we -- I'm not sure one is but -- MR. WHITE: I would happy to take a crack at it. I think that if you were to delete that entire second sentence, the notion of what is being intended is more clear in terms of a regulatory standard. With that sentence in, I think you're giving -- you're receiving some kind of -- I wouldn't say editorial comment, but at least some context in which the regulatory standard exists. think it's just helping you to understand what the intent of the policy is. MR. SOLING: But your suggestion is to delete "these plans shall"? MR. WHITE: The whole sentence. MR. SOLING: Yeah. MR. WHITE: I think -- I don't think it changes the meaning if you delete the sentence. CHAIRMAN COE: All right. So let's -- Page 66 April 25, 2001 MR. WHITE: I think that leaving it in only provides some additional context of how this policy achieves its intent. CHAIRMAN COE: Okay. So take it out of there. MR. LORENZ: Let me ask one question of Patrick, and this may be helpful with the final order requirements. The final order requires us to direct incompatible land uses away from listed species and their habitat. I use that phrase for the intent of these management plans. Does that cause us problems, or does it better define the intent? MR. WHITE: Like I said, it helps to put in there the context. In that sense it gives you some greater clarity, in my opinion. If it seems to create an ambiguity, then you may want to delete it, but it's a standard for what you are stating below in more precise detail. MS. LYNNE: I want it to mean something, and as it stands it doesn't mean anything. Yeah, it gives context, and we think it means something, but when it actually gets transcribed into action at the board level, it doesn't mean anything. CHAIRMAN COE: Bill, can you rewrite that in such a way to properly reflect what our intent is? MR. LORENZ: My suggestion is what I said. CHAIRMAN COE: Okay. MR. LORENZ: That the purpose of the plan would be to show evidence of how incompatible land uses are being directed away from listed species and their habitats, and all of the specific criteria that you have in here basically -- CHAIRMAN COE: Okay. Does this support everybody's requirements -- MR. LORENZ: -- are supportive of that statement. CHAIRMAN COE:. -- his statement? Any other questions or comments? MR. HILL: I think it belongs in there. I think it doesn't Page 67 April 25, 2001 answer Erica's question. That has to be answered someplace else. CHAIRMAN COE: What I'm saying is, take this out - • - MR. HILL: I just said, I suggest we leave it in. CHAIRMAN COE: -- and put in what Bill Lorenz is saying. MS. LYNNE: I don't think that's any different because that also applied to Mirasol, and it didn't make any difference. CHAIRMAN COE: All right. What do you propose? MS. LYNNE: I don't have a proposal. I guess what I'm saying is, can we -- if we don't have a suggestion right now from the attorney or staff, I suggest that we ask staff to work on that. And the other comment on that that I would like to make -- and can do this on my own time and get back to Bill but, again, in these other counties instead of -- if you put in the goals of what each of these is supposed to do, that also clarifies it so that you can't just say, "Well, we did this corridor so we've met the regulations" if the corridor doesn't accomplish the goal of protectiing the wildlife or something like that. And I would be happy to work on that and provide a draft to staff which can be set out. CHAIRMAN COE: All right. Any other comments? MR. SOLING: Well, I welcome that in each of them. CHAIRMAN COE: All right. Next page. MR. HILL: Are these compatible with city ordinances, the boat docks and wet slips? MR. LORENZ: I don't know that. MR. HILL: Okay. Shouldn't we be -- MS. BURGESON: I believe this is the language that we've got in our Land Development Code right now that was created when we designed the manatee protection plan. If it changed in '-N the Land Development Code as a result of any litigation over the Page 68 April 25, 2001 years or in the future, then I'm sure that this language here would change to accommodate that. MR. LORENZ: But, Bill, your question was, is it compatible or the same as with the City of Naples? MR. HILL: Right. MR. LORENZ: I don't know that. I don't know. MR. HILL: Should it -- maybe it shouldn't be, but it would -- MS. BURGESON: We can find out. MR. LORENZ: We can find out. i know the City of Naples endorsed our manatee protection plan, and this is the origin of this language. MR. HILL: I would assume it would be, but I think it ought to be checked and established that, in fact, it is. CHAIRMAN COE: Any other comments? I've got one on (e). I would like to have that changed to read something like this: "For parcels containing gopher tortoises" -- it should read something like "for parcels containing tortoises will be preserved and protect the largest, most contiguous gopher tortoise habitat with the greatest number of active burrows and provide a connection to off-site adjacent gopher tortoise preserves." MR. HILL: I'm not sure I understand what you're complaint is other than -- CHAIRMAN COE: Well, the change is not that priority will be given; they will be preserved, period. I'm saying preserve. And go back to that project where that developer wanted to destroy -- literally destroy the entire habitat to put townhouses in there, and he was going to use a ten-foot wide area on the other side of the canal totally away from the property that he was jerking the tortoises from, and that backed up to a golf course. MS. BURGESON: The language that we have in here -- ^ CHAIRMAN COE: Yes. Page 69 April 25, 2001 • MS. BURGESON: -- is used the way you want it to be used. When it says "priority shall be given" what we're saying -- the reason the word "priority" is in there is that, for instance, if you have wetlands on site, the code requires that you retain wetlands. If your wetlands -- if they include or -- by retaining the native vegetation wetlands and you meet the 25 percent policy, then we have not been able to require that the gopher tortoise habitat or uplands be preserved above and beyond that 25 percent. So that's why that language was put in there, for priority, "shall be," so that if you have any ability to retain uplands, then the gopher tortoise habitat shall be your first priority, but maybe that language should be in here a little bit stricter. CHAIRMAN COE: As tough as you can make it worded. It's got to be clear that we don't want to have those gopher tortoise habitats destroyed. MS. BURGESON: So if we say that -- if the 25 percent or if the native vegetation preservation requirement has not been met by wetlands alone and gopher tortoise habitats exist on site, that shall be preserved -- CHAIRMAN COE: Correct. MS. BURGESON: -- to meet or to -- as much of that shall be preserved as would meet that 25 percent. CHAIRMAN COE: Correct. MS. BURGESON: Okay. We'll put something together similar to that. CHAIRMAN COE: Any other comment? MR. SOLING: Then go down to (g). MS. BURGESON: That is the intent of the language. I mean, that is how we're using it right now, but we can reword this. MR. SOLING: Going to (g), bald eagle, I think you have to be Page 70 April 25, 2001 stronger too. "Plan shall establish," how about "plan must establish"? MS. BURGESON: "Shall" is the legal word that's the strongest. We used to -- MR. WHITE: There's some debate among staff and our office about that posture. I certainly prefer "must," but then again there's other attorneys in our office. MS. BURGESON: The only reason that we have the word "shall" in -- we put "shall" in everywhere because over the years as I was involved in creating ordinances, I've always received a response from the county attorney's office that said "must" is not as strong as "shall" in the legal language. Now, if Patrick doesn't MR. WHITE: I certainly have a different opinion about that. CHAIRMAN COE: Does anybody want to weigh in on "will"? MS. LYNNE: Can we put in there somewhere that the words "must," "shall," and "will" are -- MR. WHITE: It is in the code at the beginning in the definitions. MS. LYNNE: That means this is absolutely required? MR. WHITE: Yeah. They're manadatory terms. They're not discretionary. CHAIRMAN COE: Any other comments? MS. LYNNE: On the sea turtles it addresses outdoor lighting but not vehicles on the beach. Is this at all an appropriate place to reinforce that? MS. BURGESON: Where are you looking? MS. LYNNE: Page 13, (d), almost in the middle of the page. MS. BURGESON: Okay. MR. LORENZ: I guess the question is -- we can certainly put it in. What we're recommending now is that there will be an access corridor during the nesting season. Page 71 April 25, 2001 ^ MS. BURGESON: What yougetpresented to you next Wednesday is different than what you had presented to you last month. MR. HILL: Okay. MS. BURGESON: It flip-flopped a number of times in terms of what staff's position will be on that language and what the appropriate minimum use of vehicles on the beach would be. So the language that -- in fact, the reason that your May 2nd packet hasn't been sent out is because that is a major item of discussion on that, and it hasn't -- we're still working on some final language, Patrick and Michelle and I and Maura, to amend that to present it back to you next Wednesday. MR. WHITE: Even as we speak -- MS. BURGESON: Hopefully tomorrow morning we can get that in the mail. If we do we'll probably have to stamp that with "draft" understanding that between now and your meeting we may still have a different copy. MR. LORENZ: Okay. I mean, for purposes of the comprehensive plan, our major problem that we really work hard on is lighting conditions. So, you know, I feel it's appropriate to have this in here. Recognize that as we start adding material into these policies we get so more specific and specific and specific, it starts to turn out to be Land Development Code language and becomes very difficult administering it as a comprehensive plan. In fact, you know, I'm very well understanding of being criticized at the moment for having too much detail in here, and that is another school of thought. So my preference is to not add the details if we don't need to have it to -- that's commensurate with what policy language should indicate. CHAIRMAN COE: Any other comments? MR. HILL: Is the RCW the only woodpecker that's on the Page 72 April 25, 2001 n ? � IISt. MS. BURGESON: In Collier County. MR. HILL: In Collier. I can't tell the difference between some of those species. But the RCW is the only one? MS. BURGESON: Yes. CHAIRMAN COE: Okay. I've got a comment on (j) which is on the next page, page 14. It says, "For projects located in Priority 1 and Priority II panther habitat areas, the management plan shall attempt to avoid" -- I would like to take out "attempt to." MS. LYNNE: I agree. CHAIRMAN COE: I want them to avoid the destruction of undisturbed native habitat. MR. SOLING: I agree. CHAIRMAN COE: Not attempt, but just avoid it. ^ MR. LORENZ: Yes. CHAIRMAN COE: Also, farther down -- did you get that, Bill, by the way? MR. LORENZ: Yes. Uh-huh. CHAIRMAN COE: Okay. Farther down still on (j), "In turn, these areas shall be buffered from the most intense land uses of the project by using low density land uses (parks, passive recreational areas,)" period. Take out "golf courses." Do you see that, Bill? MR. LORENZ: Yes. MS. BURGESON: Uh-huh. CHAIRMAN COE: Any comments? All right. Any other comments for the rest of page 14? MR. SOLING: Yes. CHAIRMAN COE: Okay. MR. SOLING: Objective 111.2 on manatees. Page 73 April 25, 2001 CHAIRMAN COE: Okay. MR. SOLING: I object to that whole paragraph because while we may in Collier County get the deaths down to 3.2 per 10,000 boats, what happens when you have a million boats? You can have -- decimate the whole population. So 3.2 isn't a great number to me because we're always finding people having more and more boats, and so we may lose the manatee population as we get more boaters. So something has to be done differently than that. MR. LORENZ: A little background here. In the '89 plan we had an absolute number. We used the moving average. I believe it was seven deaths per year that we based our objective on. When we came back to the commission in '96 for the EAR report, they wanted to see this language in there, the previous commission. That's why we're using the language we currently have. CHAIRMAN COE: Also, state law has changed somewhat too. MR. SOLING: I know, but it's a hopeless or futile statement because, I mean, boating is becoming more and more popular, and there's more and more people out there speeding around. MS. LYNNE: Why are any deaths -- CHAIRMAN COE: What's the alternative? MS. LYNNE: -- allowable? MR. SOLING: I don't know. CHAIRMAN COE: The only alternative is what they did -- have you ever been up the Banana River up by Cocoa Beach or in that area? MR. SOLING: They were closing off waterways. CHAIRMAN COE: Yeah. They just closed the whole thing, so everybody's going to be idling around. Think about that. I'm ^ talking about a huge body of water. Page 74 April 25, 2001 MR. SOLING: Yeah. CHAIRMAN COE: Larger than anything we have in this county. Any other comments? The next page. Much of this is just boilerplate. How you about page 16? Any comments about that? MR. HILL: I had a comment here early on. "Is this needed? Is it redundant?" Now I don't know why I made that comment. CHAIRMAN COE: "Protection of natural reservations," you mean? MR. HILL: Yeah, that whole section. Is it there for emphasis or -- MR. LORENZ: I'll give you some background for this. "Protection of natural reservations" has very specifically required a set of policies under the 9J5 criteria. "Natural reservations" basically means areas that have been designated for conservation purposes, so that's the 9J5 term that's used. MR. LORENZ: This certainly includes things like the big panther -- the Big Cypress Natural Preserve, Panther Preserve, the CREW lands that were purchased for conservation purposes. This would also include the natural resource protection areas. At least that's our current thinking among staff. Also, what need to say is that this particular policy is very much being reviewed by the rural fringe committee and has already recommended some changes to it. For instance, Policy 1.3, let me talk about 1.3 as to specifics. The rural fringe committee is recommending that land development within 300 feet of natural reservations would be the distance they've selected. Then we have some specific criteria below it that would say that within that area, any ^ projects that are adjacent to the natural reservation would utilize Page 75 April 25, 2001 ' its open space for the buffering requirements. They have looked at this policy and will be making recommendations on it as well. Staff's current thinking -- I'll just tell you what staff's current thinking is. When we started looking at the justification of 1,000 feet and started looking at flushing distances for this enlisted species, other kinds of information that would help us to come up with some number, the number is all across the map. And our current thinking is that we would simply -- it's not to have a number. It's simply to say that any development adjacent to a natural reservation shall utilize all of its open space and require preserve areas as a buffer to the natural reservation. CHAIRMAN COE: Any other questions or comments? MR. HILL: One very brief one, if you would, Mr. Chairman. A year or two ago I asked one of the board members who was a biologist to meet with me out on one of the sites so I could learn more about the exotics and some of the species, etc., that we're referring to in many of these projects. was told that I couldn't do that, that it had to be a public meeting. How many of the council are intimately familiar with melaleuca and Brazilian pepper and RCW and all those that - - I'm not. I would like to see somehow those of us that aren't familiar with it to get out there on site and be given a tour. Maybe we can go out to Ed Carlson's. But I'm told that has to be a public meeting. If we need to go through that procedure, would like to. CHAIRMAN COE: That wouldn't have to be public. MR. WHITE: That's absolutely true. MR. HILL: Okay. Can we -- CHAIRMAN COE: It has to be a public meeting -- MR. HILL: Yeah. Page 76 April 25, 2001 MR. WHITE: That's absolutely true. CHAIRMAN COE: -- for one of us to go out -- MR. WHITE: It has to be advertised as a public meeting that will occur on site at a particular location and at a particular time. CHAIRMAN COE: If I go out to, say, the Conservancy and get a tour from somebody out there that shows me, "Well, this is a red-cockaded woodpecker" and "this is a nanny goat" or whatever it is, that has to be advertised as a public meeting? MR. HILL: No. MR. WHITE: That isn't what Mr. Hill stated. Mr. Hill stated -- MR. HILL: If you and I went out -- MR. WHITE: -- two or more members at the same time. MR. HILL: -- it would have to be a public meeting. And all I'm saying is -- CHAIRMAN COE: Even though it's a class given by a naturalist. MR. SOLING: So can't we advertise and have a class? MR. WHITE: That's precisely the manner in which to handle it. MR. HILL: And that's what I'm asking. CHAIRMAN COE: Would you -- MR. WHITE: I can tell you -- I'm sorry. Go ahead, sir. MR. HILL: Go ahead. MR. WHITE: I can tell you that the same exact thing occurred up north in Lee County with regard to Buck Island and our historic preservation board. We had to have an advertised, quote, unquote, meeting. CHAIRMAN COE: Wow. MR. WHITE: It's not an onerous burden. It's far better to do that than to have anything that occurs as a result of your ^ information gleaned at that time rendered somehow Page 77 April 25, 2001 ^ inappropriate. CHAIRMAN COE: Yeah. But we're not looking at a specific property. We're going out to get educated. MR. WHITE: But you're there, as we discussed somewhat before the meeting in an informal way, to acquire information with regard to a potential matter that may come before you for your consideration. Now, admittedly, it may not be as great a requirement when it's for educational purposes, but the fact that there's two or more of you in close proximity to have a discussion about something, the general rule favors advertising it as a public meeting so that it occurs in the sunshine. If members of the press or the public want to attend, as was the case with Buck Key, they are there to keep an eye on whatever it is they believe may otherwise occur. I think it's a prudent rule but certainly one of the most stringent in all of the states. CHAIRMAN COE: Okay. Thank you. MR. WHITE: Florida's at the forefront. MR. HILL: Okay. This is what I was told, and I've held off doing it. My question today is, am I the only one that needs to be a little better educated? MR. SOLING: No. MR. HILL: And if so, I would like this council maybe to afford us the opportunity by publicizing a public meeting to have us go maybe to Ed's place or maybe a particular site with the staff maybe. But I'm a little at a loss sometimes with respect to some of these species. I go out to look at a site, and I read the EIS and the PUD documents, and I'm not prepared to evaluate the site as well as I should be. I would like to see us do that. MS. LYNNE: If you really want to get wet and go in the swamp, I suggest the Facahatchee with Mike Owens. CHAIRMAN COE: Does the county want to arrange for that Page 78 April 25, 2001 ^ for a couple of people? MS. BURGESON: We'll pursue it. I'll contact Ed and see if it's possible to have something, at least the start of it, in Corkscrew. MR. SOLING: Please make it, if you're going to include me, in August. My next few months are very busy. MS. BURGESON: Right. I'm not sure we want to be in a lot of these places in August. MR. HILL: It's not urgent but -- MS. BURGESON: But maybe May and then maybe October. MR. SOLING: Well, I can't make it in May. MR. HILL: Look into that. CHAIRMAN COE: Anybody in the public want to make any comments on any of the things that we covered here? Yes. MR. CARROTHERS: For the record, my name is Clay Carrothers. I'm an environmental consultant with WilsonMiller; however, any comments I make today are basically my personal opinion and don't reflect necessarily those of my company or any people that we represent. You guys are running out of time, and you're hungry and all of that. There's really too much to discuss about some of the language and proposals contained in what's before you today, especially in the wetlands arena. But I read what's in there, and I think about it in terms of I'm the one who's going to have address this stuff before the EAC and the Board of County Commissioners and stuff like that. In reading it I don't know how to address it. I think there are so many issues there that are completely unclear that it's going to -- every time you end up with a change of staff, county staff, or every time you end up with a change in composition of the EAC, you're going to get a completely different interpretation of what that stuff means. Page 79 • April 25, 2001 I also think that some of the restrictions placed on what you can impact or what you can mitigate are so basically draconian that you're going to tie yourself to prohibiting activities which could actually very well benefit-the environment. In fact, I know of several projects that these rules would make totally impossible which have accomplished great things for the wetlands that were preserved on their properties and on the wetlands that they chose to mitigate with. Using these rules those projects would not be possible at all. But I'll just bring that to your attention. Like I said, there's too many factors to address in the time we have to adequately cover the topics, but I strongly suggest that when there's adequate time during public forum, that enough time be dedicated to ask some of these questions and look at all the what-if situations that the policies could affect, because ,.� that's what I keep running through my mind. What if I have a site like this? What if that? What if it's this? What are the ramifications of what's being established here in all sorts of different possible scenarios? And I think we're just restricting ourselves far too greatly. CHAIRMAN COE: Let me ask you this: Would it be possible for you to put that down on a piece of paper, or is it so much that really it needs to be discussed? MR. CARROTHERS: Certainly if I can -- I could attempt to put some of the questions down on paper and our company -- or I, personally, together with other people could do that and would be happy to do it in the non-spare time that I have. But, yeah, we could do that. CHAIRMAN COE: Or how long would you -- MR. CARROTHERS: But some of them need discussion too. I mean -- CHAIRMAN COE: Yeah. Page 80 April 25, 2001 MR. CARROTHERS: -- there's just some real basic questions here like, What is a flow-way wetland? Define that one for me. MR. LORENZ: We've got the flux codes that we would be listing. MR. CARROTHERS: Even if it's not carrying flow anymore? Okay. I've got a flux flow that says Flux 630 is a flow-way wetland, but today it's not carrying any flow. All of a sudden I'm stuck, but that's a flow-way wetland. You know, why is it that I have to provide the same amount of mitigation if I'm impacting a wetland that has 75 -- 100 percent melaleuca as am if it's having basically 75 percent melaleuca. Why is it that a wetland that's 100 percent exotic invaded by Brazilian pepper doesn't change class? It's just as heavily degraded. There's all sorts of factors that are not addressed in these policies. There's so many "what- ifs" that, again, they're just too numerous to go over. CHAIRMAN COE: He's making some good comments, and this is one of my fears. Obviously we weren't originally planning to have public comment today, but we've got a couple here, and I figured -- if they have the time to come here, they ought to at least be minimally heard. But -- and I see your smile, but I think you understand that, you know, we have some empathy with you also. We need to have the input, but this is so much that maybe we need to have people like him sit down with you-all, because you-all are much more up to the details of these things than we are. MR. LORENZ: We've sat down with Tim Durham, and Tim was going to be providing us some maps or some other alternatives to look at that very specific question of the flow- ways. He just hasn't gotten back with us, and we haven't been able to work with him on it. Secondly, when I mentioned earlier about using the possibility Page 81 April 25, 2001 of a WRAP analysis, we are looking at that as being an alternative. So the classification scheme that we originally put on the table -- we know that that is an alternative. At the very least, it's got to be fine-tuned and tweaked, and possibly it may even drop off the table as a viable alterntive way of defining the classifications. But we had one meeting with Tim, and he was going to come back to us with some maps and some ideas as to how to do the classifications. MR. HILL: What is our schedule on this? MR. CARROTHERS: Bill's absolutely right. I mean, we have had discussions with Bill regarding the topic before, and we'll do our best to keep the dialogue going. MS. BURGESON: We met with Tim about two months ago on this issue. MR. CARROTHERS: We'll do our best to -- CHAIRMAN COE: Well, see, what I want to prevent having happen is when we do come up with, like, the second draft of this and we kind of smooth it out, which will be minimal-type smoothing, that then when it's done it's done. I would rather have the type of comments that you have and Mr. Durham has taken care of before we jump out in this public forum and go on a three-day marathon trying to address comments that should have been integrated within this plan a long time before the public gets up to talk about it. Do you understand what I'm saying? MR. CARROTHERS: Oh, yeah, I understand completely because otherwise you're wasting your time. CHAIRMAN COE: Well, that's it. That's it. And you would be wasting your time, too, because you're just falling on deaf ears. We would rather have this worked out ahead of time. MR. CARROTHERS: I understand. CHAIRMAN COE: So maybe you can put on paper or discuss ^ it with Bill and Barb and some of their staff and even call Page 82 • April 25, 2001 ^ Durham, too, and see if you guys can't semi-coordinate your efforts so you aren't working separately, because this is -- obviously it's our county so we're kind of establishing the policy here, and we want the input from you-all as well as any other person. MR. CARROTHERS: I certainly appreciate that, and I'm sure you'll get similar input probably, you know, from other groups that will help focus that decision. CHAIRMAN COE: I mean, I think you've seen from our discussion today that it's our intent to protect the environment -- MR. CARROTHERS: Yes. CHAIRMAN COE: -- period, no ifs, ands, or buts about it. That's the first priority. After that everything falls in. MR. CARROTHERS: No. I understand that completely. Do keep in mind that people are part of the environment though. We are animals, and we are just as much part of this ecosystem as our furry friends. CHAIRMAN COE: All right. Well, thank you very much. Sorry to be so short with you, but I promised we would be done at noon, and I don't want to lie. Thank you very much. Yeah, Mike. I knew it. I knew you couldn't sit there. MR. SIMONIK: That means I've got four seconds to be done by noon. Michael Simonik representing the Conservancy of Southwest Florida, and my comments do represent my 6,000 family members who are members of the Conservancy as well as our 750 volunteers and 23-member board of directors. First, I want to just thank staff and thank you members on the board for spending the time and providing this thoughtful language and congratulate you for tackling this thorny issue. It's been me coming up here many times over the years and saying "We need to do something with wetlands." We have ^ other environmental groups saying we need to do something with Page 83 April 25, 2001 wetlands. We have county staff saying we need to do something about wetlands in this county. We have folks that say historically 90 percent of the county was wetlands prior to us coming to Collier County -- us, the people. We encourage you to continue on this process. We think it's a good one. We think we're going to come out with a good ordinance -- good comprehensive plans and ordinances, land development codes, whatever needs to be done. We're very supportive of most of the requirements that are in the document. Generally, we believe it's evolving into a very good document. I'm sure there will be a lot of tweaking that needs to be done. Some tweaking was done today. And I think some problems and griefs that you're going to hear from the development community are kinks that can be worked out as we go through this. I agree we all need to get together, sit at the table, and have a round-table discussion about this with all the entities. We've done it before. We're doing it now on ATVs on the beach. I think it's working out well that we'll come finally to an ordinance that someone just isn't able to poo-poo in the very end and say, "Well, this whole thing stinks because it's got way too many problems." Let's all sit down at the table and make it work. I'm grateful for the members of this board who have seen that there exists loopholes in our current plan amendment and our current land development codes and our current ordinances, and they're working out those loopholes so that we really are looking at environmental protection. We think that this is working to be good environmental policy that balances private-property rights and environmental protection. I think it's absolutely necessary to have plan amendments like these in our comprehensive plan and followed by land development codes and ordinances, and we need to give this ^ ordinance and plan amendments a chance to work. Thank you. Page 84 April 25, 2001 CHAIRMAN COE: Thanks. Any other comments? MR. HILL: What is our whole schedule on this timewise? I mean, is there going to be opportunity in the near future again for these people. to come before us? MR. LORENZ: Yes. Let me give you the -- I don't have the exact schedule at the moment because it depends a little bit upon what the rural fringe committee wants to do in terms of reviewing this document as well. But the backing off of a very critical date is in October. We intend to bring to the county commission these set of policies as amendments. That means that through the summer and early fall we will be back to the EAC for review and endorsement. My personal target is by the end of June to have a rewrite of these policies because we will be going to the board June 13th for a special meeting for the conceptual plan of the rural fringe. These policies are going to be referenced to some degree at that point, and we'll then also have to brief the board on some of the initial efforts that have gone through. So I would like to be able to have something by the end of June. That means in July and August the EAC would take another shot at it. Let me also say that it is a lot of effort, a lot of work, and perhaps maybe we need to think about having a special meeting to cover these because it was just too difficult to do it on top of your regular meeting. You may also want to consider perhaps a subcommittee of a few individuals or three individuals that can work out maybe more detailed language as well, and staff would be willing to work with that subcommittee. That might be able to expedite some of the efforts into more details. I just threw that out as a possibility. The third thing is, always as an individual -- any individual can sit down with myself, with Barb, and we can talk in details about your additional comments or your concerns. That's not a Page 85 . April 25, 2001 ^ violation of Sunshine. So I would encourage you to give me a call or give Barb a call. We'll sit down with you and work with you individually as well. That's also an option. MR. HILL: I hear you saying June 13th is the deadline where we should at least come up with a reasonably confident -- MR. LORENZ: The end of June is what I -- oh, okay. MR. HILL: June 13th. MR. LORENZ: Well, the end of June is when I would like to have a second draft that I would come back to you-all with. MR. HILL: Not prior to the board meeting on the 13th? MR. LORENZ: Huh? MR. HILL: You're not looking for us to have that, quote, semi-final draft by the 13th. MR. LORENZ: No, no, not at all, not at all. Like I said, I've ^ got to get some comments from the other advisory committees, and I don't want to produce a second draft until I receive those comments from those advisory committees or they tell me definitely that they're not going to provide comments on it. Then I will be -- my target for the second draft is the end of June. CHAIRMAN COE: When do you suggest we have our public meeting? We're going to have to have a meeting at some point in time. MR. LORENZ: It would be towards the end of August and September. CHAIRMAN COE: Why that late when there may be significant comments that should be incorporated into this document? MR. LORENZ: Simply because I don't think I'll have the ability to get a -- well, it could be as early as July, but I just don't want to commit to that in terms of a deadline, because in the summertime it's difficult to get things through. The second time Page 86 April 25, 2001 around we produce these policies I've got to run it through the county attorney -- not only the county attorney's office, but also our growth management plan attorney. So there's a little bit of a time line there that is out of my control. So I can certainly think that August would be an appropriate time for you-all to review it. And if you have two or three meetings in August and September, that would be the appropriate time frame for us to have the policies and your recommendations to the county commission in October. MR. HILL: That doesn't preclude people in the public getting information to us prior to that. I think we can accept that input prior to the late-summer meeting. MR. LORENZ: I mean, as soon as I develop the second draft, as I said, my target is June. If you want to have a meeting, a special meeting in July on the second draft, we certainly can do it. CHAIRMAN COE: The board is not the problem. We can whip through it fairly quickly now that the basics have been done. That's not a problem for the board. The problem is when you throw it out in the public and you end up with someone like him or, you know, any of them, and they come in here and they're going to talk for two solid hours about all the reasons why it shouldn't be done or where it needs to be defined, that sort of thing I would like to preclude having happen and have that input to you-all early on to modify as you see fit, and what you don't see fit to modify that portion comes before the board. MR. LORENZ: Quite frankly, that's more upfront work of getting to that second draft, and that's where my concern is. Creating that second draft is more critical to taking -- like getting with Clay, getting with Tim Durham, getting with some of the other consultants in town from the development perspective to ,•-• see how we can craft something that, at least from their Page 87 April 25, 2001 perspective, is workable in a classification system. CHAIRMAN COE: Yeah. MR. LORENZ: That's going to take -- that's going to be the biggest hurdle I've got to overcome is to create those alternatives for you then to consider in that second draft. CHAIRMAN COE: All right. Okay. MR. LORENZ: And although I'm shooting for the end of June, you know, that's where the lion's share of the work is going to be. CHAIRMAN COE: Now I understand what you're saying. Okay. I just didn't want to have that big workshop thrown on own shoulders because that would be a nightmare. I would rather leave the nightmare with you. MR. LORENZ: Right. CHAIRMAN COE: Any other comments? MS. LYNNE: Is this draft policy available in electronic format? Can you e-mail that to me? MR. LORENZ: Oh, yes. It's -- just for the public -- well, I'm not sure if we're on 54 or not, but it's on the website, but I can very easily e-mail it to you. MS. LYNNE: I'd appreciate that. Thank you. CHAIRMAN COE: You would be surprised what's on that website. It's got practically everything you can think of. If there are no other comments, we're going to adjourn. I lied. * * * * * There being no further business for the good of the County, the meeting was adjourned by order of the Chair at 12:12 p.m. Page 88 April 25, 2001 ENVIRONMENTAL ADVISORY COUNCIL MICHAEL COE, ACTING CHAIRMAN TRANSCRIPT PREPARED ON BEHALF OF DONOVAN COURT REPORTING, INC., BY MARGARET A. SMITH, RPR Page 89 May 2, 2001 TRANSCRIPT OF THE MEETING OF THE ENVIRONMENTAL ADVISORY COUNCIL Naples, Florida, May 2, 2001 LET IT BE REMEMBERED, that the Environmental Advisory Council, in and for the County of Collier, having conducted business herein, met on this date at 9:05 a.m. In REGULAR SESSION in Building "F" of the Government Complex, Naples, Florida, with the following members present: CHAIRMAN: Thomas Sansbury COUNCIL MEMBERS: Larry Stone Chester Soling Alfred Gal Alexandra Santoro Michael Coe Ed Carlson Erica Lynne William Hill PRESENT: Patrick White, Assistant County Attorney William Lorenz, Natural Resources Director Barbara Burgeson, Senior Environmental Specialist Michelle Arnold, Code Enforcement Director Maura Kraus, Senior Environmental Specialist Page 1 May 2, 2001 Fred Reischl, Planning Services Page 2 ENVIRONMENTAL ADVISORY COUNCIL Maureen Kenyon Minutes&Records AGENDA May 2,2001 9:00 A.M. Commission Boardroom W.Harmon Turner Building(Building"F")—Third Floor I. Roll Call H. Approval of Agenda III. Approval of April 4,2001 Meeting Minutes IV. Land Use Petitions None V. Old Business A. Land Development Code Amendments VI. New Business VII. Growth Management Update VIII. Subcommittee Report A. Growth Management Subcommittee IX. Council Member Comments X. Public Comments XI. Adjournment ********************************************************************************* Council Members:Please notify the Division Administrator's office no later than 5:00 p.m. on April 27,2001 if you cannot attend this meeting or if you have a conflict and will abstain from voting on a particular petition (403-2385). General Public: Any person who decides to appeal a decision of this Board will need a record of the proceedings pertaining thereto; and therefore may need to ensure that a verbatim record of proceedings is made,which record-includes the testimony and evidence upon which the appeal is to be based. May 2, 2001 CHAIRMAN SANSBURY: This is the May 2nd meeting of the Environmental Advisory Council. Shall we call the roll to see if we have a quorum? MS. BURGESON: Sansbury? CHAIRMAN SANSBURY: Here. MS. BURGESON: Carlson? MR. CARLSON: Here. MS. BURGESON: Coe? MR. COE: Here. MS. BURGESON: Hill? MR. HILL: Here. MS. BURGESON: Lynne? MS. LYNNE: Here. MS. BURGESON: Santoro? MS. SANTORO: Here. MS. BURGESON: Gal? MR. GAL: Here. MS. BURGESON: Soling? MR. SOLING: Here. MS. BURGESON: Stone? MR. STONE: Here. CHAIRMAN SANBURY: Okay. Very good. We have the agenda in front of us. Are there any additions, deletions, or revisions to the agenda? Why don't we ask staff first and then individual members of the council. MS. BURGESON: We need to add the annual report discussion in. That can be handled after the LDC amendments under old business. CHAIRMAN SANSBURY: Okay. MS. BURGESON: We're making presentations on three environmental ordinances for the amendments. And then the last amendment is going to be the hearing examiner ordinance, which Page 3 May 2, 2001 is being presented today. We haven't handed copies out to you regarding that, but we'll get those to you for the discussion. CHAIRMAN SANSBURY: Okay. Barbara, where is that going to be? Is that going to be under new business? Old business? MS. BURGESON: It's all under old business -- CHAIRMAN SANSBURY: Okay. MS. BURGESON: -- under the plan development amendments. CHAIRMAN SANSBURY: Any members of council wish to add anything to the agenda? MS. SANTORO: I would. CHAIRMAN SANSBURY: Yes, ma'am. MS. SANTORO: Under new business I would like to get the EAC's approval to go to the Florida Land Trust Conference. CHAIRMAN SANSBURY: Okay. Anything else? MR. HILL: One small item, Mr. Chairman. That's the thank you letter that I was asked to write two months ago. Again, we'll put that under old business. CHAIRMAN SANSBURY: Old business. Okay. Anything else? Okay. The agenda then stands with the addition of several items under old business, the annual report, thank you letters, several items the staff has regarding various things, one item that Ms. Santoro has under new business regarding the land trust meeting. Anything else? Hearing none, the minutes from the April 4 meeting. Do I hear a motion to approve the minutes? Any additions, deletions, or revisions to the minutes? Excuse me. MR. GAL: I have one addition. CHAIRMAN SANSBURY: Yes, sir. MR. GAL: I was present, and this doesn't show me present. CHAIRMAN SANSBURY: Great. I'm very sorry for the oversight. Page 4 r., May 2, 2001 MR. SOLING: Excuse me. That goes for me too. I was present. CHAIRMAN SANSBURY: All right. Let the record show that Mr. Soling -- MR. HILL: You still won't get your check in the mail. CHAIRMAN SANSBURY: -- and Mr. Gal both were present at that meeting. Okay. Do I hear a motion to approve the minutes as -- MR. COE: I'll make a motion -- MR. HILL: So moved. MR. COE: -- as amended. CHAIRMAN SANSBURY: That's by Mr. Coe and seconded by Mr. Hill. All those in favor? (Unanimous response.) CHAIRMAN SANSBURY: Okay. Opposed? (No response.) CHAIRMAN SANSBURY: Hearing none, approved unanimously. Okay. Land-use amendments -- geez, we don't have any today. Okay. Land Development Code amendments. MR. LORENZ: Yes. For the record, Bill Lorenz, natural resources director. I believe at the last BAC meeting the EAC wanted to delay your recommendations and official actions until you had some more information concerning the potential hazards of activities on the beach. Staff agreed to come back to you with some information in a little bit of a presentation format to discuss those items. What I've arranged here is to have Maura Kraus, who is our senior environmental specialist who coordinates our sea turtle monitoring program and has had extensive experience in sea turtle monitoring for Collier County and during her academic career as well, she's going to give you a little bit of a Page 5 May 2, 2001 presentation to try to outline the rationale and the problems that we see with activities on the beach and what we think that we can do to minimize the risk to sea turtles, especially, of course, during their nesting and hatching season. With that let me have Maura give that presentation to you. MS. KRAUS: Good morning. I'm Maura Kraus, senior environmental specialist for the Collier County natural resource department. I would like to go through a couple of slides here and explain what our position is on increased vehicle use on the beach. First, I'd like to say that we are in support of limited increased use in specific corridors and with vehicles running perpendicular to the shoreline -- parallel to the shoreline along the mean high water. Okay. A false crawl is a non-nesting emergence or an aborted ,.� nest attempt. False crawls happen in several different ways. You can have a natural reason such as scarps or erosion, and you can also have non-natural reasons for a false crawl. False crawls cause the turtles to expend a lot of unnecessary energy that they should be using for their nesting. It also may cause them to choose an unsuitable nesting site. The goal of the natural resource department is to -- reducing false crawls is an important objective for the sea turtle protection program, and any way that we can reduce the number of false crawls Is very important. We looked at possible causes of false crawls from our data from 1997 to the year 2000, and a lot of these are preventable false crawls. Beach furniture caused 7 percent of the false crawls during this time period. I have a couple of examples of some false crawls that were caused by beach furniture. It's a little -- can you see that? Yeah. Okay. This is the turtle's tracks where the turtle came up to try to Page 6 May 2, 2001 find a suitable nesting area at night and ran into obstacles on the beach. This is what we see sometimes when we go out monitoring in the morning, and that's furniture being left on the beach. I don't have a slide of it, but turtles do get stuck in these chairs, and it has been known to be a cause of death in adult sea turtles. This one is a little hard to see as well. This Is a false crawl caused by items that were left on the beach overnight. Boats and other recreational vehicles that are left on the beach can also cause a false crawl. In this particular case, a turtle could have gotten stuck underneath this boat and wouldn't have been able to get out until the morning when someone was monitoring the beach. And if a turtle did make a nest under this boat, it could affect the incubation of the nest. If we roped it off and they couldn't move the boat, it could affect the incubation and .-� the survival of the hatchlings. So our proposed strategy is to facilitate the removal of these hazards from the beach on a daily basis and to increase the penalties for noncompliance. MR. LORENZ: Let me interject here. Also, in terms of facilitating the removal of the hazards on the beach, a key component of this strategy is the work that Maura's staff does, which is the monitoring on a daily basis. It's during that monitoring before 9 a.m. When they see those false crawls or they see those crawls that result in a nest. That is then when they can determine that a nest actually exists at a particular location because they rope it off. If that false crawl is wiped away prior to them getting there, we don't know whether a turtle has nested. The hatching period is 60 to 70 days, so then there could be a nest in a location that we haven't marked off because we have now lost that track that we were monitoring for. So a key component of this strategy is to Page 7 May 2, 2001 ensure that we can get out there and monitor where those crawls are, whether they result in a false crawl or whether they result in a nest. MR. COE: Do you have a way of telling whether this crawl has been wiped out prior to your arrival? MS. KRAUS: Yes. When beach raking occurs before we've been out in the morning monitoring, then we would have no way of knowing whether there was a nest there or not. That has happened where beach rakers go out -- either the nest is not in a suitable location for people doing the beach raking or if it's just a mistake, but it does happen. MR. LORENZ: Was your question whether we can tell -- how we can tell there is actually a nest there? MR. COE: I know how you can tell. I've seen them before. MS. KRAUS: If the beach has been raked, then we would not be able to tell. MR. COE: But you're not permitting raking prior to your inspection; is that correct? MS. KRAUS: No, but sometimes it does occurs. MR. COE: Which is a violation -- MS. KRAUS: Yeah. But -- MR. COE: -- for which we have a penalty; is that correct? MS. KRAUS: Yeah. We're proposing a penalty. MR. COE: Okay. MS. KRAUS: We're in support of if a beach-raking violation does occur before monitoring happens that no more beach raking or vehicles on the beach would be allowed for 70 days until that supposed nest hatches. MR. LORENZ: And the reason is that's not so much a punitive slap on the wrist, if you will, to whoever has done it, but the fact is we then no longer know whether a nest has been laid there. And at some particular point when we start looking at Page 8 ,-. May 2, 2001 facilitating these ingress and egress corridors and moving furniture around on the beach, we could then be putting furnture on top of that nest or putting some activity on top of that nest that we haven't been able to find because somebody covered that crawl up. So that's why when we start talking about penalties and we talk about that 70-day issue that was in previous drafts, I don't consider that as a punitive penalty as much as it is an operational necessity for us to know where those nests are. MR. GAL: How often do you monitor? Do you go out every day? MS. KRAUS: Seven days a week, yes. MR. GAL: What time in the morning? MS. KRAUS: Between 6:30 and 7. It depends on -- you know, the first of daylight. ,.� MS. SANTORO: When is it finished usually then? Is 9 a.m. A definite deadline that you would have monitored the entire beach or all the beaches? MS. KRAUS: Well, we might not be done marking our nests, but we can be done by nine by just, you know, flagging off the nests and then coming back and recording our data later. But nine o'clock is our deadline because we need to see if a nest needs to be moved. For some reason, if it's too close to the mean high water, it has to be done by nine. MR. GAL: If you see a violation, do you report that to anybody? MS. KRAUS: Yes, we do. MR. GAL: Is that the code enforcement staff? MS. KRAUS: Yes, it is. MR. GAL: Okay. Then they make the decision as to whether to enforce the issue of violation or -- MS. KRAUS: Unfortunately, they have to be there to see it in Page 9 May 2, 2001 order to -- MS. SANTORO: What's that? MS. KRAUS: They have to actually be there to see the violation. So all we can do right now is to call and report it and keep track of it. But we have no code enforcement on that. CHAIRMAN SANSBURY: Yes, ma'am. MS. LYNNE: Do you have records on the number of violations that you've seen, say, over the past season, last year's sea turtle nesting season? MS. KRAUS: Yes, we do. MS. LYNNE: Do you know right offhand how many those are? MS. KRAUS: I don't know total, but we do have that data. Okay. You can see we've got -- it looks like there's 13 violations. MS. LYNNE: And that's over the entire seven-mile stretch, or are they in one particular area? MS. KRAUS: We have 22 miles of beach to monitor. MS. LYNNE: Twenty-two miles, okay. MS. KRAUS: This does not include -- this would just be for Vanderbilt, Barefoot Beach. MS. LYNNE: This is just for Vanderbilt and Barefoot Beach, the 13 violations? MS. KRAUS: Yes. MS. LYNNE: Okay. MS. KRAUS: And I believe it does include the Clam Pass area, which is the county beaches. MS. SULECKI: Good morning. For the record, I'm Alexandra Sulecki of the code enforcement department. This is just a record of some violations that occurred in the past two years at the Ritz-Carlton only. There are other violations up and down Vanderbilt Beach. Mostly -- there were one or two at the other hotels and several of the condos, but the bulk of the violations Page 10 May 2, 2001 are at the Ritz. CHAIRMAN SANSBURY: Thanks. MS. LYNNE: Thank you, Alex. CHAIRMAN SANSBURY: If I could just for a second -- because we're getting into the discussion that I think I've got to recuse myself from. Mr. White, at the last meeting I recused myself on this item because my employer does have interest in a hotel property on Vanderbilt Beach. Can I recuse myself under that same little form I filled out, or do I need to do it again? MR. WHITE: I think it would be advisable to fill out a new form, if you will, using the same rationale. Again, I don't know if it's a disclosure of a voting conflict that is one that is probably more discretionary rather than mandatory, so I commend you for trying to err on the side of the law that's going to -- ,� CHAIRMAN SANSBURY: Do you think there's a problem with me chairing the meeting as long as when we came to a vote in the meeting -- MR. WHITE: Any part that you participate in the discussion is appropriate. It's merely only when you have a voting conflict that at the point in time that you vote that you abstain. CHAIRMAN SANSBURY: Okay. Thank you. MR. COE: Okay. CHAIRMAN SANSBURY: Yes, ma'am. MS. LYNNE: If I could have some clarification. Bill, you were stating that these changes are the result of Maura's work. What I don't understand is how using vehicles on the beach is going to promote sea turtle safety. MS. KRAUS: Well, the vehicles on the beach would be to facilitate the removal of the hazardous items from the beach. Currently they exist, and we have lots of documentation that they are causing hazards for the adults and for the hatchlings. Page 11 May 2, 2001 And if they need a vehicle to get the stuff off the beach and they use a specific designated corridor that we monitor that can be moved if we see that a nest is close by or if it's going to interfere with hatchlings, you know, then this corridor can be moved. MR. CARLSON: I have one. CHAIRMAN SANSBURY: Mr. Carlson. MR. CARLSON: I'd like to ask one question at this point. The nesting, now does most of the crawling and the digging and the nesting occur up front in the season which runs from May to October or throughout the season? MS. KRAUS: It starts very slow in the beginning in May, and then, you know, slowly on a daily basis it gets to a peak in the middle, the end of June, beginning of July, and then it starts dropping off. MR. CARLSON: You could have nesting in September or October? MS. KRAUS: Usually it's done by August. MR. CARLSON: Okay. MS. KRAUS: Yeah. The first week of September is good. MR. CARLSON: So the last hatchlings have hatched and are gone usually by the end of October? MS. KRAUS: Yes. Yes, they are. CHAIRMAN SANSBURY: Okay. MS. KRAUS: Okay. As I was saying, our proposed strategy is to facilitate the removal of the hazards from the beach on a daily basis by allowing a limited use of ATVs, by allowing a limited use for these hazards, to confine these vehicles to the specific corridors designated to eliminate the risk to the marked nests, and to regulate vehicle specifications. And what that is is there's certain pounds per square inch acceptable by the state for a vehicle to have. It has to be under 10 PSIs, which is ground tire pressure, and that would eliminate some of the compaction Page 12 May 2, 2001 problems that could be caused by vehicles. MR. LORENZ: Remember that second back -- if you can go back, it talks about "designed to eliminate risks to marked nests." The only way we can mark the nest is to insure that raking has not occurred prior to the monitoring staff getting out on the beach. MS. KRAUS: So our recommendation is to remove all items from the beach and to store them in designated locations or in off-the-beach locations and to allow for a limited ingress and egress corridor for the vehicle to travel to facilitate the removal of the furniture and other items and to regulate the ground -- the tire pressure standards. Also, require tire-tread identification on vehicles which would help eliminate somebody saying, "Well, it wasn't me that did that." And by having a marking on the tire, we would be able to tell whose vehicle was on the beach, and if they caused a violation, then we would know who it is. They would leave a mark. Does anyone have any questions? CHAIRMAN SANSBURY: Questions from council? Yes, sir. MR. SOLING: I have a question. Chet Soling. When you mark a nesting area, do you number it and keep track -- because I'm thinking of the possibility that after you mark it, somebody comes along and removes it, the marking, and then runs vehicles over it or puts equipment on it. So do you keep track of the numbers? MS. KRAUS: Oh, yes. We keep a very good eye on every single nest. Actually, that's only happened one time where someone pulled out the stakes and we had to relocate the nest. We tried to find the nest again. People are pretty respective of the turtle program, and we do collect a lot of data and keep an eye on the nests on a daily basis. Page 13 May 2, 2001 CHAIRMAN SANSBURY: Yes, ma'am. MS. SANTORO: I beg to differ with you. My husband has watched people beach raking from a high-rise when it was going up on construction and has seen them mow the tape and the stakes and everything down, so you're missing some. I mean, that's what concerns me. You're saying about enforcement that you can currently only enforce it if you see it, and that's going to be pretty difficult. I'm very concerned if we allow it that we have good enforcement and that it's done, and especially that we have a heavy penalty if they actually destroy a nest. MS. KRAUS: Do you live on Marco Island? MS. SANTORO: Well, I live near there, but this particular one was in Naples. They have high-rises going up all over. MS. KRAUS: Naples. Okay. Because I do know of one incident where a nest was -- and we have photographs of it -- knocked over by a beach rake, and also it happened on Hideaway Beach one time. CHAIRMAN SANSBURY: Yes, ma'am. MS. LYNNE: Do we currently allow furniture and so forth on the beach during sea turtle nesting season? MS. KRAUS: No, we do not. MS. BURGESON: Well, we do have some variances that were approved over the past five years; that in order to facilitate moving that furniture into storage areas to reduce the impact of the sea turtles we've given them variances. For instance, Cabana Dan's has a variance. He is allowed to keep the beach furniture in a small, compact identified area as far back on the beach as possible, and it's back behind the tow of the dune walkover of the county park at Vanderbilt Beach. There are a couple of other areas. For the most part they have to remove them because those identified storage areas are back off the beach. For instance, the Ritz has an exception to Page 14 May 2, 2001 that because they've identified areas that are as far back as possible to areas, I believe, where they're storing their beach furniture. MS. LYNNE: And the furniture gets stored there all summer? MS. BURGESON: Yes. MS. LYNNE: It doesn't go in and out; is that true? MS. BURGESON: No, no. Each night it gets stored in those areas. MS. LYNNE: So the beach furniture does go out during sea turtle nesting season? MS. BURGESON: Uh-huh. Right. MS. LYNNE: That's what I wanted to know. Are beach events currently permitted in sea turtle nesting season? MS. BURGESON: Yes. MS. LYNNE: Thank you. CHAIRMAN SANSBURY: Any other questions from council? Thank you. MR. LORENZ: That was the point that we wanted to make from the last BAC meeting with regard to the vehicles on the beach. As I said earlier, our direction from the County Commission -- I guess it was in the fall -- was to try to develop working with the hoteliers in trying to develop some type of reasonable accommodation to see what could be allowed to occur on the beach. Our perspective from the natural resources department and our first top priority is to get the furniture off the beach. We provided you the data to show that that's a hazard that we want to facilitate getting off. We feel an ingress and egress corridor that restricts the ability of an ATV to go perpendicular down to the mean high water line is appropriate with that ATV having the proper tire pressure and then move that furniture and give the vendors some -- it's a little bit more easier to get that furniture Page 15 May 2, 2001 off the beach. That's the hazard that we have documentation on and problems with. Again, the underlying assumption with that accommodation is that we're able to see where those nests are through our monitoring program. Any time somebody comes in and rakes the beach or does something before our monitors get onboard, we could potentially have a nest in the sand at some location that is going to be there for 60 or 70 days and then hatch. And we don't want to have our egress and ingress corridor to go over that nest, for instance. Or if somebody then wants to have some function on the beach and then puts a tent or drives a tent stake down in that nest location, that's what we're trying to avoid. So to the degree that we're able to locate those nests, that's the underpinning for the proposal that staff is saying that we have a high degree of confort with. CHAIRMAN SANSBURY: Yes, ma'am. MS. LYNNE: Is it currently in the law that the beach furniture is supposed to be moved off the beach by 9 p.m.? That's currently the law? MR. LORENZ: Yes, it is. MS. LYNNE: And currently is that being enforced? MS. BURGESON: You might want to check with Alex, but that has been required and enforced ever since I've been with the county. CHAIRMAN SANSBURY: Could we -- MR. LORENZ: Put it this way. We have noted that there are violations -- that there are times -- there are a lot of times when that furniture and other things are not taken off the beach. To the degree that code enforcement has a proactive enforcement program or it has been difficult to enforce, I guess the answer is, yes, it has been difficult to enforce. There are, perhaps, some strategies that Michelle may want to discuss with you about Page 16 May 2, 2001 heightening up on a proactive enforcement program, but your assertion is correct. Furniture is not allowed to be on the beach during turtle nesting season at night. CHAIRMAN SANSBURY: Could we ask Miss Sulecki or whoever in code enforcement -- I'm not quite clear on the interaction between our folks going down the beach in the morning and how it interacts between code enforcement and how everybody gets out there, so kind of the process on how you guys do it. MS. SULECKI: Yeah. Some violations have to be observed by us. For example, if there is a vehicle being used on the beach and we just observed -- or the turtle people just observed tracks in the morning and then they call us and we go down there, it's very difficult to determine who made those tracks, and so we can't really enforce that. If there are chairs on the beach, generally they call us and take a picture or something like that, and we can enforce when there's some kind of documentation and we can actually link the chair to a property. MS. ARNOLD: For the record, Michelle Arnold, code enforcement director. I'm sorry, I hit something. With respect to how we're coordinating with natural resources and the monitoring that's occurring or will be coordinating with the sea turtle nesting season, we're probably going to -- depending on what this board does and what happens with the final approval or amendment on this amendment, we'll probably have to be coordinating a lot more and relying on the natural resources department for citing violations in the morning while they're out there doing the monitoring. Then outside of their monitoring program with respect to special events or beach events, I'll have to come up with some way that we can monitor those activities with respect to set up Page 17 May 2, 2001 and dismantling, making sure that furniture has been removed off the beach at the appropriate time and those types of things. Right now with the added amount of events that are allowed on the beach, the staff impact is great. So I'll have to devise a system where we can schedule monitoring or inspections of the site to insure compliance. And, hopefully, after a certain amount of period with no violations, we can just do sporadic checks on the beach events and furniture and those types of things. CHAIRMAN SANSBURY: Anybody have any questions for code enforcement? Yes, ma'am. MS. LYNNE: Has there been any allowance for extra money or extra staff in order to do this enforcement? MS. ARNOLD: No. CHAIRMAN SANSBURY: Let me ask one other question. MR. COE: Sure. I'm sorry. CHAIRMAN SANSBURY: I know it's probably interdepartmental -- I don't know which one it would be - having the individual that's actually going down the beach have authority to write violations. MS. ARNOLD: Well, that's what I mean. What we're going to be doing is -- CHAIRMAN SANSBURY: Okay. MS. ARNOLD: -- working with the natural resources staff and training them as to what they would need to cite, what specific ordinance, violations, how to write up the notice of violation, so that we are not having to then go back maybe hours later after an occurrence. Something has been witnessed, so we will be doing that. CHAIRMAN SANSBURY: Okay. Thanks. MR. CARLSON: Have any citizens expressed any interest in volunteering to monitor this? MS. ARNOLD: No. We have volunteer programs, but Page 18 May 2, 2001 typically we don't rely on the citizens to do any citing or anything like that. It's mostly just the reporting of violations. We really want to maintain that authority to the county and county staff. MR. CARLSON: Oh, sure, that's what I meant, but just the sighting. MS. ARNOLD: Yeah. CHAIRMAN SANSBURY: If you all need help one night, I would like to volunteer Mr. Coe. MR. COE: Yeah. Right. I'll be more than happy to do it. CHAIRMAN SANSBURY: Okay. Thank you-all very much. MR. LORENZ: That was the nature of the natural resources presentation. MR. HILL: Mr. Chairman, one question. CHAIRMAN SANSBURY: Yes, sir. MR. HILL: I think this inventory aerial is - you are to be ,.� complimented on that. Do you know by any chance was this photographed at -- did he fly over at low tide or high tide? Do you have any idea? It's amazing how they oriented their nest towards the erosion control line or the mean high waterline. MS. KRAUS: Those -- I'm not sure what the tide was on that particular photograph. They're flown annually. I'm not sure of the tide but - CHAIRMAN SANSBURY: Hold for just a second. Identify yourself, please, again, for the record. MS. KRAUS: Maura Kraus, Collier County natural resource department. CHAIRMAN SANSBURY: Thanks. MS. KRAUS: All the nests and false crawls were GPS'd and then plotted on the maps. CHAIRMAN SANSBURY: Okay. Any other questions? MR. HILL: It's amazing. CHAIRMAN SANSBURY: Where are we going? Page 19 May 2, 2001 MS. BURGESON: Let's go back. I'm Barbara Burgeson for the record. The handouts that were given to you this morning all contain revisions from what you were mailed out last week. If you go to -- it's one of the thicker packages for vehicle-on-the- beach regulations. I'll go through that with you as quickly as I can. CHAIRMAN SANSBURY: Okay. MS. BURGESON: Where you see in parentheses to propose to delete the following paragraph or "proposing to delete," those are in response to Matt Grabinski's concerns where we received letters -- CHAIRMAN SANSBURY: Let's all make sure we all have it. We've got three different documents. Let's make sure we've got the right ones In front of us. Proposed, okay. All right. MS. BURGESON: 3.14. MR. SOLING: Excuse me. Which document are you referring to? CHAIRMAN SANSBURY: Got it. Okay. Thanks. About halfway down there's -- all caps and brackets -- "(Proposed to delete the following paragraph.)" MS. BURGESON: You'll see that throughout each of the three packages, and those are in response to, as I mentioned, concerns from the Ritz that Matt Grabinski had submitted to the county staff. MS. LYNNE: I don't know who that is and what the concerns were. MS. BURGESON: Matt is the lawyer representing the Ritz. MS. LYNNE: Okay. MS. BURGESON: So these are areas of concern for the Ritz that they would like us to request or consider deleting those areas. MS. LYNNE: Is that statement -- paragraph statement true? Page 20 May 2, 2001 MS. BURGESON: That paragraph statement was true when this was written. The only group that I know that's made a change to that is the Conservancy of Southwest Florida. I understand that they are supporting the language as long as the strictest penalties that we proposed are incorporated into this ordinance. CHAIRMAN SANSBURY: Why don't we go ahead and hear Barbara walk through it, and then we'll hear from everybody else involved. MS. BURGESON: If you'll flip to the second page, we haven't made any changes except for some grammatical changes to what you saw at the last presentation regarding the PSI for the tires. That's just a nonsubstantive change. If you get down to the larger paragraph at the bottom of the page, that's putting back the language that we had removed last time, and that would allow limited use of vehicles on the beach during sea turtle nesting season to facilitate mostly the removal of beach equipment from the beach at night to prohibit or reduce any chances of false crawls or harm to the sea turtle nesting program or to the sea turtle nesting. On the next page, again it's the PSI and that paragraph regarding limited use. Then that's repeated again on the next two pages. We've got this ordinance broken down into three components; that is, the use of vehicles by the concessions, the use of vehicles for standard hotel uses during the day such as bringing out towels in the morning and bringing them back in the evening, and then third being the annual beach events tie-in. So that's why you see that repeated in there three times. If you'll flip to the page that in the middle it says, "beach raking and mechanical beach cleaning," all we've done on that page is clarified the language. Flip to the next page, and you'll see Page 21 May 2, 2001 another clarification for 3.14.6.1 on the language, and then the new language that's added to it is the penalties section. This is something that's changed I think quite a bit from the last time you had seen it. It includes penalties handled specifically for the beach raking and cleaning activities under 3.14.7, and then 3.14.8 addresses the penalties for the hotels and commercial uses. CHAIRMAN SANSBURY: Okay. Discussion by council. MR. COE: Yeah. Why are you proposing to delete the -- and I'm talking about back in the penalties section. You're proposing to delete the second and third violations. MS. BURGESON: What was requested was not deleting the violation but keeping the fine and deleting the suspension of the ability to use the vehicle for beach raking. CHAIRMAN SANSBURY: Yes, ma'am. MS. LYNNE: Throughout this revised thing there's these sections that say "proposed to be deleted." Who made those proposals? MS. BURGESON: I'm sorry? MS. LYNNE: In all the sections where it has in parentheses "proposed to be deleted" and then there's a paragraph or a section to be deleted. MS. BURGESON: Since you don't have that in color, the proposal is for the language that's after that follows that. MS. LYNNE: Right. And who proposed making those deletions? MS. BURGESON: That was -- the proposals were from -- I think all of these proposals came from the Ritz. MS. LYNNE: So perhaps -- can somebody explain to me why the Ritz proposals are presented to us in the staffs -- CHAIRMAN SANSBURY: Well, we're going to hear from that petitioner. Page 22 May 2, 2001 MS. LYNNE: But I just don't -- there's a process here that I don't understand. For example, if the Audubon Society comes in, can they say what they want in this and have it presented to the board in the planning staffs -- in your report to us? MS. BURGESON: We haven't done that. What we've incorporated here are the concerns from the hotels, probably because they have been in contact with us the most with specific proposals to change language. MR. LORENZ: Let me clarify that. Bill Lorenz. My understanding is that it's because the board basically directed staff to work with the hotel industry to come up with some strategy or scenario that we worked together with, so I think that's why you're seeing their recommendations at this particular point in these particular drafts. CHAIRMAN SANSBURY: Okay. Shall we now hear from anyone from the public? �-. MS. BURGESON: Well, I think we should probably go through all three of them first. CHAIRMAN SANSBURY: Okay. Fine. MS. BURGESON: They all -- MR. HILL: Mr. Chairman -- CHAIRMAN SANSBURY: Yes, sir. MR. HILL: I'm a little confused on the rationale. For example, at the bottom of page 2, the underlined text is not a change; right? That's from the current -- MS. BURGESON: The underlying text is the additions that we're proposing to the Land Development Code. MR. HILL: Right. Then in the last three lines at the bottom of page 2, the proposed-to-be-deleted section is a proposal by the Ritz -- MS. BURGESON: Yes, that we're considering. MR. HILL: -- which is a deletion of what staff has proposed Page 23 May 2, 2001 to be added. MS. BURGESON: Right. MR. HILL: Okay. I'm clear on that. Should we ask for comments now, Mr. Chairman, from staff or wait? CHAIRMAN SANSBURY: What I think staff would like to do -- and you can correct me -- is go through all three documents and then go to comments, if we could, if that's fine with everybody. Okay. MR. SOLING: Wait a minute. I have one more question. CHAIRMAN SANSBURY: Yes, sir. MR. SOLING: I assume it's page 3 of the documents we're looking at. It's 3.14.3.6.1. There's a statement, and I'm trying to understand this rationale. And then afterwards there's in brackets "(proposed to be deleted.)" What is that? The whole thing that preceded it or -- ,-, MS. BURGESON: Yes. MR. SOLING: -- what follows? MS. BURGESON: That would be proposed to delete that Section .1. CHAIRMAN SANSBURY: The portion of it that follows is proposed to be deleted. I think that's what -- MS. BURGESON: Well -- MR. SOLING: No, precedes. MS. BURGESON: -- where it's just -- where it follows a section, then it's proposing to delete the entire section. Where you see it in the middle of the section, then what's proposed is what follows. CHAIRMAN SANSBURY: Okay. Yeah. MR. SOLING: When it's preceded you're saying the thing preceding is being deleted? MS. BURGESON: In the case of 6.1 they're requesting that entire sentence be struck. Page 24 May 2, 2001 MR. SOLING: Preceded. MS. LYNNE: Can we get the transcript of the board's direction to staff regarding this amendment? CHAIRMAN SANSBURY: Excuse me. I believe that we requested staff to sit down with -- at that time of the discussion and to come up with ideas back and forth. I think the way they projected it here is it's our determination after we've heard everybody to determine whether we agree with these proposed deletions or not, and I'm very clear that they're doing what they asked us to do. MS. LYNNE: Did you mean our board -- CHAIRMAN SANSBURY: Yes. MS. LYNNE: -- or did you mean the Collier County commissioners? MR. LORENZ: Collier County Commission. CHAIRMAN SANSBURY: Us also. MS. LYNNE: Right. But I thought Bill was referring to the original charge by the Board of County Commissioners to examine this further. MR. LORENZ: Originally, that's correct. Then when you heard it at the last meeting, you wanted to have some additional information from staff in terms of what was the rationale. From that point we also -- staff had also sat down with the hoteliers as well to discuss items to draft that you currently have in front of you now. It's in a form in terms of the underlining where staff is recommending, and staff is very comfortable with that, but the -- and you'll hear from the speakers that they are not. And it's in those areas that it says "(proposed to be deleted)." They're not comfortable with that language. CHAIRMAN SANSBURY: And that's where we have to make a decision at the end of this hearing. Page 25 May 2, 2001 MR. LORENZ: I'm trying to show you both sides of the proposal. CHAIRMAN SANSBURY: Okay. MR. GAL: They have a question. CHAIRMAN SANSBURY: Yes, sir. MR. GAL: Can the public ask questions? MR. SOLING: Not yet. CHAIRMAN SANSBURY: Well, what we are going to go through is all three of the -- the term I want to use is ordinance, but that's not right. MR. LORENZ: Yes. We want to go through all three documents or sections of the Land Development Code. CHAIRMAN SANSBURY: And then we'll make it a public discussion if that's acceptable with everybody. Okay. What's your second one? MS. BURGESON: The second one is Section 3.13, and that's the coastal construction setback line variance. In making amendments to the vehicle-on-the-beach section, we recognized that there were some sections that were missing in other parts of the Land Development Code. So we went into the coastal construction setback line variance and clarified the exemptions paragraph, which requires that the beach furniture and equipment be removed from the beach by 9 p.m. And clarifies the appropriate personnel to do that monitoring. And then it adds a penalty section which has not been a part of that section of the code. Under 3.13.9.3, the proposed deletion is the language following that. Under the section violation they're proposing to delete the suspension, and on the third violation they're also proposing to delete the suspension. CHAIRMAN SANSBURY: Questions? (No response.) Page 26 - I May 2, 2001 CHAIRMAN SANSBURY: Hearing none, we'll move on to No. 3. MS. BURGESON: The last is the annual beach-events permit. Again, the majority of this is clarification and adding penalties to this section. On the second page, it's a simple clarification that the documents have to be provided to Collier County and to natural resources during sea turtle nesting season. It cleans up a little bit of the language describing nesting season and the DEP permits and then makes this section consistent with the vehicle- on-the-beach section regarding structures that need to be removed from the beach. On the next page, we're proposing that whenever a nest is identified at a hotel where there will be beach events on that beach that that nest have additional protection by placing a 25- ,--. foot barricade around those nests. That entire paragraph, 2.6.34.5.3 is being proposed to be deleted. MR. CARLSON: Is that like radius or diameter? MS. BURGESON: That's 25 foot out from the center of the nest and a radius placed around that. CHAIRMAN SANSBURY: Radius. MS. BURGESON: 2.6.34.5.4 and 5.5 are just clarifications, as well as 5.7. Then the addition on the bottom of the page -- at the bottom of that page is the addition of the violations for the annual beach-events permits. The proposal to delete or to make changes on the second violation in 6.1 is to reduce the second violation fine to $500 and reduce the third violation fine to $500. And in 6.2 the proposal to delete -- the second violation is to delete the suspension, and the proposal to delete in the third violation goes also to delete the suspension. CHAIRMAN SANSBURY: Questions from council? MS. BURGESON: The following two pages are corrections to Page 27 May 2, 2001 the standard permit conditions which are attachments to all the annual beach-events permits, and that's also clarification language consistent with what's presented in the pages preceding this. CHAIRMAN SANSBURY: Okay. Questions to staff before we go to input from the public? MR. COE: Yeah, I've got one question. Patrick, is the law in the State of Florida? Who owns the beach? MR. WHITE: Patrick White, assistant county attorney. There's any number of potential owners depending upon first whether you're above or below the mean high waterline. Typically the state is the owner, if you will, below the mean high waterline held in trust, if you will, for the public. Above and to what may be an identified property line by way of a conveyance and a deed or some type of legal description, there is an area that may be, if you will, owned by the county or the public again. And, thirdly, there is the circumstance where some properties are owned by a property owner down to the mean high waterline. So there's any number of potential combinations. Indeed, there's also another one where some of the lands may be held by the cabinet sitting as the administration. Actually, it's the trustees to the Internal Improvement Fund. So there's -- factually you would have to look at each individual case in order to know who owns "the beach." But going to a more geophysical type of definition of what the beach is, it's traditionally the area that's the fore shore and up to and just behind the dunes, I guess, is generally regarded as the beach depending upon which statutes or rules you're looking at. I hope that answered that. MR. COE: So, in other words, let's just throw this out: Hypothetically I decide to have a party for 25 of my Marine buddies, and I get a permit to drag down 25 kegs of beer In front Page 28 May 2, 2001 of the Ritz-Carlton. Could I do that if I had a permit and all of that? MR. WHITE: I think there's some facts that you may have not provided me that could determine the answer. MR. COE: I mean, I would have to get the permits. I would to do all that sort of thing. Could I take it down on the beach where their events are being held and have my party for my 25 Marine buddies? MR. WHITE: I think if you were going to, quote, have your party below the mean high waterline -- MR. COE: No, above it. It would be above the mean water -- I mean, it would be basically in the same area where they have theirs on the beach. MR. WHITE: Without knowing where their property line begins and ends relative to the mean high waterline, it's i-. impossible for me to answer the hypothetical. I can do it by saying that if we assume they own down to the mean high waterline you would be trespassing. MR. COE: But how would a - MR. WHITE: If there was an area -- MR. COE: -- public member know that? MR. WHITE: I don't know of any simple way short of putting signs all up and down the beach, which I don't think is aesthetically pleasing. Regardless, I don't know some simple way to know. You can always know by looking in the public records and doing title searches and things of those type. There's also a state agency, a department of which if you ask them or are in doubt about whether there is, for example, sovereign in submerged lands or not, they make those determinations. So there's a process available, but it's just not one that's readily apparent or easy to follow. MR. COE: I mean, if I sound amazed, I really am quite Page 29 May 2, 2001 surprised. I came from North Carolina. The public owns up to the mean dune line, from the waterline to the mean dune line, period. MR. WHITE: Each state traditionally has the right to set those rules differently. There is all different kinds of jurisdictional lines, if you will, but ownership is a different concept. In the State of Florida, typically, land is held by the state below the mean high waterline. MR. COE: Okay. CHAIRMAN SANSBURY: Before we get to it from the public, I'm sure those folks want to address that also -- yes, ma'am. MS. LYNNE: This is another question for Patrick. CHAIRMAN SANSBURY: Wait a minute. He's reading something else. MR. WHITE: I'm sorry. MS. LYNNE: Two other legal questions. Are federally endangered species such as the sea turtle protected on private property? MR. WHITE: I'm unaware of any exemption affecting the nature of ownership of the land with respect to those rules. MS. LYNNE: My second question is, if somebody owns property and habitually and regularly allows the public to cross it, isn't there some sort of provision for that becoming law, the access to that property? MR. WHITE: Those types of prescriptive easements or other types of traditional uses, again, in different states are handled differently. I'm not aware of any judicial decisions that may have decided those matters on the beaches in question, so I think you would have to go back to a factual analysis of where each individual property owner owns to under their deeds and legal descriptions and where that line falls relative to the mean high waterline. Page 30 May 2, 2001 MS. LYNNE: Thank you. CHAIRMAN SANSBURY: All right. Yes, sir. MR. SOLING: I would like to -- Chet Soling. I would like to offer a general comment. After our last meeting -- I live not too far from the Ritz, and I did make several trips down to the beach and through the Ritz or down from Vanderbilt Beach. Admittedly, it was before 9 p.m., but it was about sunset at that time, and I did make observations. One, there are a lot of condominiums up and down that beach in Pelican Marsh that have long boardwalks elevated, narrow, that no vehicle could run down or up with steps down to the beach. At the foot of all of these ramps, there are stored beach chairs, which probably stay there year in and year out, for the convenience of the residential tenants to take out and put on the beach or hopefully bring back. But I am sure these chairs and equipment stay yearround parked on the beach. At the Ritz I did also notice boats, chairs, and everything else stacked on the beach. No one was there, but as I said, it was admittedly before 9 p.m. I did go -- on two of the visits the Ritz was having parties, but it was on their big swimming pool deck. To me it's inconsistent for the level of tenancy that the Ritz has to see these women with their dresses, etc., walking out on the beach to have a beach party when on the terrace it's much more pleasant, nice. They did have stands set up for a buffet, several different stands for different types of food, and the participants were standing around drinking cocktails on this beautiful terrace that they've just enlarged with a new swimming pool and enjoying themselves. And, as I said, it was inconsistent for me to conceive that these women and the men in their suits would happily walk down on the beach to be doing the same thing. So my question is -- I don't know -- well, the last point I make is this: We have probably 20, 30 hotels up and down the beach in Page 31 May 2, 2001 Naples and Collier County. We may have a couple of -- maybe 100 condominiums that are up and down the beach in Collier County. I object strenuously for having our staff spend a great deal of time on making proposed regulations and then having one hotel delete the whole essence, the whole enforcement, of these regulations to satisfy the one hotel. We were given this Just this morning and have had no opportunity to really see the potential of what's being deleted. And I don't think that we have the hours to spend to go through all of this and comment on what our staff did and then having it excised because of one hotel. But that's my general comment, and I thank you. CHAIRMAN SANSBURY: I think, Mr. Soling, in defense of staff, I think we asked staff the last time to sit down with -- and we used the term, I believe, plural "hotels." I don't know how many hotels came forward other than the Ritz. But I think they've done what we've asked them to do, to come back and say, "This is the way we would like to see it. The hotels would like to delete this." If you don't want to delete it, that's our decision to make today, and we need to go through it. I think they made a pretty simple way to look at this way rather than go back and forth, back and forth. I don't know if any other hotels gave you input, but they certainly had the opportunity from our last meeting because we asked everybody else to do that. So, you know, I don't quite see it in the same manner. I see it -- I'm setting it up so that when we go through this, we need to make these decisions. It's clearly stated that this is a proposed deletion by the hotel industry. And if we agree with it, we do; if we don't agree with it, we don't. The staff has said the way they'd like to see it. I think it works kind of good in this way. Page 32 May 2, 2001 Let's -- go ahead. MS. LYNNE: I'm sorry, but I just looked through the minutes, and I don't see any place where we directed the staff to talk to the hotels. We directed staff to come back to us with additional information about sea turtles and what's necessary for their safety. I also agreed that having the hotel industries preferences put into the official staff report is inappropriate. That's something that the hotels can do on their own, and I don't think our county staff should be putting that forward to us. Also, it never says specifically in this proposal who proposed those deletions. We had to ask to get that information. Otherwise, you could assume staff made those recommendations. CHAIRMAN SANSBURY: Point well taken. Let's move forward. MR. WHITE: Let me just address that last point first, if I may, since I was the one that inserted the propose-to-be-deleted type of text. It was done -- and I just checked this with Mr. Grabinski -- at his request. Although it probably is similar for the folks that aren't his clients, but it was only for his particular clients. So it's not the "hotel industry" speaking as of yet with one voice. These are individual requests, and I'm certain that if the others choose to chime in they will do so. My understanding is that it's probably representative of the industry. It's just that I don't want to make the statement specifically. CHAIRMAN SANSBURY: Let's -- yes, sir. Go ahead. MR. GAL: I have a legal question on a totally different topic. CHAIRMAN SANSBURY: Sure. MR. GAL: Do you think that the county has the authority to create a civil cause of action to enforce the provisions of this ordinance? You know, in many environmental statutes and Page 33 May 2, 2001 federal and state they create a private cause of action, and I know enforcement is a problem. If any citizen can see a violation and go to court to enforce it, I mean, would the county have that authority to do that? MR. WHITE: That's an interesting question. I don't fully know the answer. My belief at this point, without the benefit of further research, is that wouldn't be something that the state has delegated to political subdivisions such as counties or municipalities. I think it's something that may be reserved. Causes of action are something that typically either the legislature or the constitution may set forth in the statutes and otherwise. I don't think it's something that is delegated to the 67 different counties and hundreds of municipalities. Otherwise, I suspect we would need far more number of judges than we have. CHAIRMAN SANSBURY: Okay. Thanks. Let's move forward and hear from the public, if we could, regarding these three items. MR. STAROS: Good morning. Ed Staros, I am the managing director of the Ritz-Carlton Hotel. I started full time -- I've been with the company -- I'm in my 19th year with the company. I helped Mr. Freni open the hotel back in 1985. However, I started full time at the Ritz-Carlton, Naples, in November of '99. I had just -- the turtle nesting season was just coming to a close. And when the previous general manager, Mr. Bill Hall, sat with me in an orientation as to the issues of the hotel, he spent a great deal of time with me as to the sensitivity of the environmental impact of the hotel to the county. I immediately -- because I didn't know the laws having come from Georgia, I immediately hired Tom Garlick and Matt Grabinski to help me work through this simply due to the fact that I wanted to be a good citizen, and I wanted to make sure Page 34 May 2, 2001 that we followed the law to the tee. On the record, I've been in the industry 30 years, and I have a reputation as being an environmentalist and businessman all at the same time. So at any rate that was the whole purpose of hiring a law firm, to make sure that I knew what was going on, etc. With reference to some of the things that were said today, I want to just make a couple of comments. One, I learned today of these 13 violations. I know of two. One was human error, a brand new employee raking the beach last season, and one was - - we have a logbook, by the way, that we set up so every morning when we get checked we sign a logbook. One of the -- the second violation was -- take today's date, May 2nd, it's a Wednesday. It was in the book as May 2nd Thursday, so it was misunderstood as to which day of the week was already previously signed, and that was just human error in both cases. I am aware that we have called Alex on numerous occasions when we find tire tracks on the beach, and I am sure in that 13 number that those are also part and parcel of the count, as far as that is concerned. I would also like to mention that "vehicles" is plural. We own one vehicle. It is one ATV. So there is a -- when you're talking "vehicles," it sounds a little bit like Daytona Beach. This is not Daytona Beach. We own one vehicle simply for the purpose of delivering towels and -- taking dirty towels and delivering beach furniture and taking it off the beach. So it is not something that we take advantage of. It is simply a mechanical vehicle to help get from Point A to Point B. The laundry is a thousand feet away from the beach. Hand carrying a thousand towels down and back and forth is a little bit difficult. So it is simply a singular vehicle. I would also like to mention that the reason why Page 35 May 2, 2001 we took the -- we are requesting not to stop the raking is because -- I like to use the term "cleaning." When we rake the beach, it kicks up all the straws, all the paper cups, and so forth. On a daily basis, we walk the beach all the way from our property line, inclusive of the Remington right next door because they're our neighbors and we like to help them out and pick up their beach as well. It makes it all look better for us, all of us. We pick up a garbage pail full of miscellaneous things, some of which are left from our guests and some of which are left from the public. We know that because of the products that we're picking up we don't sell; beer cans, etc., etc., and so forth. So the raking of the beach is really the cleaning of the beach. Yes, I'll be the first one to admit on my watch we've violated it twice last year, both by human error and so forth. We're highly sensitive to it. I asked Matt to put together a five-page document with reference to the sensitivity of the issues that happen here in Collier County environmentally. Every single employee has to read and sign that, and it goes into their employment file. So we will not have -- or it was a preventative measure so we would not have a new employee not understanding. They have to go through that orientation before they work on the beach. I would like to also state a couple of other things. The nine o'clock issue with reference to requesting a later time frame -- and I'm talking about one hour, ten o'clock, to take everything off the beach with reference to parties is simply due to the fact that here it is, May 2nd. If you looked at the Weather Channel this morning, the sunset is going to be at 8:01 tonight. By the time June 21st comes around, it's going to be nine o'clock. There's not a person that comes to Florida -- and the whole reason they come to Florida is to put their toes in the sand, et cetera, and to watch the sunsets and so forth. I think it's just a little Page 36 May 2, 2001 unreasonable to think that you can have a gathering on the beach, even for your 20 friends or your 20 Marine friends and your kegs of beer, etc., and be off the beach before the sun sets and/or the second the sun sets. All we have asked for -- we're not trying to be uncooperative. There's probably only about ten parties of any size during the sea turtle season that we're talking about. We're not talking about 150 parties. We would like a little variance or a little wiggle room in order to comply because we want to comply. Last, but not least, Mr. Coe, I would like to address your friends, your Marine friends coming. We would love to book your party. I'll get the proper permits. And by the way, it would be on our property. One hundred percent of all these parties that we're talking about -- one hundred percent of those parties are on our property line. MR. COE: Good. MR. STAROS: So all we're trying to do is be a good citizen, and I sincerely mean that. I used to be the vice president of operations for our company. I opened every hotel worldwide. I chose to come here. I feel -- I chose to come here to finish the last 15 years of my career. I will be the one -- unless I drop dead, I will be the one that you'll be working with for the next, hopefully, 15 years, and I'm going to follow the letter of the law. I would just like the letter of the law to allow us to do some business. That's all. Thank you. CHAIRMAN SANSBURY: Thank you, sir. MR. STAROS: I'd like Matt to address the property line. CHAIRMAN SANSBURY: Okay. Do we have any -- we may have some questions before that. Yes, ma'am. MS. SANTORO: I think the biggest concern -- I mean, if an employee -- if the tape, the yellow police tape, and the stakes are up and the employee hits it, that's really vagrant, I think. So my Page 37 May 2, 2001 biggest concern is, if we allow them down there, prior to monitoring to get around -- if we amended that portion to not let vehicles on prior to the monitoring being completed, and they've indicated that nine o'clock in the morning is the last time frame for all the beaches, if we added the 9 a.m. In the morning, would that -- tell me what that would do to your hotel. MR. STAROS: Well, quite frankly, we have a good rapport with the people that come by in the morning -- or at least we did last season -- that rake the beach, and they're normally there around 7, 7:15, sometimes even a little bit earlier. That's why we put in the logbooks. Because once we made the first mistake last year and raked the beach, we decided that a logbook would satisfy both parties. We put the logbook down there, so we're perfectly happy to wait until we get permission to rake the beach and clean the beach. But we did mess up twice last year, and I'll be the first one to admit it, both human error. I think we've got enough -- since that time I think we've got a greater awareness with all employees that work the beach because of what Matt was kind enough to put together for me to sensitize, if you will, all new employees, and all we want to do is rake and clean the beach after it has been checked. So when Matt made some -- at my request -- he said, "Look, if the beach has already been checked" -- and raking it, by the way, is the same ATV, the one that we own -- it goes back and forth numerous times to rake it and so forth. If it's been checked and if there are no turtle nests, respecting anything that's already there, of course, by diverting that, and we allow the raking which has always been the case in the 16 years the hotel has been open, why couldn't we 30 minutes later, hypothetically, deliver something to the beach in that same raked area that that same vehicle just went back and forth 50 times? It's not okay to do Page 38 May 2, 2001 that. So I asked Matt, I said, "If it's at all possible" -- I mean, let's allow common sense to prevail that we've already recognized that there are no nests there. We've already had it checked. We've already raked the beach. We've already been on the beach with the ATV. Why couldn't the ATV come back later in a minimal use of -- later to deliver more product to the beach?" That was one of the issues in these changes that you were concerned about. MR. SOLING: Well, I thank you for a very rational and honest proposal. You make everything understandable. I have no objection when it comes to voting to make it 10 p.m. That's minimal. And I did, upon reading these things, accept the fact that once the beach is patrolled, ATVs could be operated on there. There's no sense restricting it after the fact that everything is okay. I just -- when we get to it -- object to some of the deletions that's been proposed. CHAIRMAN SANSBURY: That's fine. MR. SOLING: But I compliment you on your presentation. MR. STAROS: And I -- quite frankly, sir, I could go with those penalties because they're not going to happen. That's how I look at it. And I want to clarify one other thing. The Registry is part of this as well. Ron Albright could not be here this morning, but Ron has also sat in on our meetings, just as fellow hoteliers, figuring that we're the two big guys on the beach, etc. There was some question if this was the Ritz only, and no, it's not. It's the Registry as well as the Ritz. I happened to have already retained the firm, and you know, rather than -- so Ron just sat in as a courtesy to help us with this. I think that covered everything. CHAIRMAN SANSBURY: Mr. Carlson has a question for you. MR. CARLSON: You brought something up that I need Page 39 May 2, 2001 clarification on. MR. STAROS: Sure. MR. CARLSON: I think it's for staff. Because I thought that after the beach was checked and the raking had occurred that these corridors would go into effect and the beach -- the ATV couldn't go down the beach. Why am I -- MR. STAROS: Well, presently it's once in the morning and once at night. I'm saying that if it's okay to take once in the morning to deliver towels and once at night to take the dirty towels back to the laundry, why wouldn't it be okay, say, at noon to bring down some more product and bring it back if we've already been through this and we've already played by the rules. And I'm going to play by the rules; I really am. You know, I'd like to be considered innocent until proven guilty rather than the other way around. And, by the way, we happen to have an aerial photo of our property line showing that 100 percent of the parties that we're talking about are on our property. MS. LYNNE: I've got a question. CHAIRMAN SANSBURY: Yes, ma'am. MS. LYNNE: The Ritz, you're saying, has only one ATV vehicle right now. MR. STAROS: Yes. MS. LYNNE: Is there anything in these amendments that's going to limit that to one ATV? MS. BURGESON: No, there isn't. MS. LYNNE: So they could get two or five or ten or a hundred? MR. STAROS: I'd be happy for you to write that in. MS. LYNNE: No. I'm just asking -- MR. STAROS: I just want to say that. MS. LYNNE: Okay. MR. STAROS: I'd be happy for you to write that in. All I want Page 40 May 2, 2001 is one vehicle to help me out. That's all. MS. LYNNE: Okay. I just also have to say that I don't agree with the argument that just because you can't prove that it's dangerous in this particular situation means that it still shouldn't be allowed. I'm not sure I said that right. The point is that protecting of federally endangered species is extremely important. Any time that we're looking at safety issues, whether it's human life or people life or property life, we put into place regulations that do more than protect the bare necessities. And what I hear you coming to me with is exceptions that, you know, if you look at them, yeah, if you absolutely follow them, blah, blah, blah, blah, it would work. And if I might return to the old analogy of an airplane, you know, you can take out one rivet and that airplane is still probably going to fly. But that doesn't mean that we allow -- the FAA allows people to take rivets out of airplanes before they fly. So my point is that sea turtles deserve not just the minimal protection, but also the maximal protection and that human error still destroys nests. Even if you do your best, human error is going to occur. We've been told that as many as 150 eggs can be destroyed at a time or in one instance. MR. STAROS: I understand that but, you know, as a resident -- all of us go to the beach. We have the ability to accidentally do things too. I'm just saying -- I agree with you wholeheartedly. I'm a turtle hugger, okay? So I just want you to know that I'd like this all to work out. But what I'm saying is, when we say things like we would like to delete the 60 days of not raking the beach because we did make an error, well, what are we saying there? We're also saying that we're not going to clean the beach for 60 days. We're going to have plastic straw and plastic cups and garbage up on the beach, the same beach that the sea turtles are Page 41 May 2, 2001 now going to have to heave-ho over the plastic instead of us cleaning it. So I think that there is a little give and take here. We don't want to make a mistake, and I truly mean that. But to say that you covered up a potential track -- by the way, I'll be the first one to sign up on having our logo on the tire tracks. I'll be the first one to do that. I don't care because I know it's not us in some of these incidents. We have actually called Alex to say, Hey, there's tracks down here" in the morning and so forth. So if you want to put logos on the tire treads and so forth, have at it, because I would be more than happy to walk my talk. MS. LYNNE: Can't you pick up the -- CHAIRMAN SANSBURY: Okay. MS. LYNNE: -- junk on the beach by hand? MR. STAROS: Yes, but you don't see it because it's all muddled. You don't see the straws. When you rake it with -- and that's another issue that I'd like to discuss. I think that there should be some regulations on how a beach is raked, quite frankly, because you could plow a beach and call it a rake, or you can do what we do. We pull, like, a chain-link fence that smooths out the beach, and it kicks up all the straw and plastic cups and so forth. Then you go around and you pick it up. There are days that we pick up a 55-gallon plastic bag full of junk. So if you don't rake the beach, yes, we'll be able to pick a lot of that up, but not all of it. It's really a cleaning service to make our beaches better. CHAIRMAN SANSBURY: Okay, sir. Yes, sir. MR. COE: I've got one question. CHAIRMAN SANSBURY: Okay. One question. Go ahead. MR. COE: I've got one more question, sir. I think you see what our intent was in the penalties. MR. STAROS: Yes. Page 42 May 2, 2001 MR. COE: We want to make it stiff enough -- MR. STAROS: I agree. MR. COE: -- to make sure that it doesn't keep occurring. What's your suggestion as to the level of penalty that will make it hurt enough for you-all to understand and whoever else is a violator -- because this isn't just against the Ritz. MR. STAROS: I understand, yes. MR. COE: What level of penalty is sufficient to hurt somebody bad enough to make them understand we don't want the second and third and the fourth attempt? MR. STAROS: If you, sir, had to write a check for $5,000 think that's a pretty heavy penalty. MR. COE: My income last year was a hundred thousand dollars. What was your income in the hotel? MR. STAROS: Well, after net, net, net, and paying the mortgage -- MR. COE: I'm talking about the hotel now, the hotel itself. MR. STAROS: Okay. MR. COE: That was my gross. What was the hotel's gross? MR. STAROS: The hotel's gross -- MR. COE: Let's put this kind of in the proper context. I was kind of prepared for that. MR. STAROS: I would be happy to discuss all of our figures with you, and I honestly will, but you have to understand what the net is too. The net is extremely small. The gross is extremely high. You know, my payroll alone is $22 million. MR. COE: I'm asking you, sir, what level of penalty is sufficient to make sure that whoever is the person that goes against this ordinance won't do it again and that they understand. Because in my case I can write a check for $500 if I violate an ordinance -- MR. STAROS: I think these are -- Page 43 May 2, 2001 MR. COE: -- and that hurts me. I mean, that hurts. MR. STAROS: This would hurt me, too, the $500, $1,000, and $5000 to answer your question. I think that is a pretty strict penalty. All we're saying is why take the 60-day suspension of raking. It should say a 60-day suspension of cleaning. MR. COE: I have no other questions. CHAIRMAN SANSBURY: Okay. Thank you. Any other questions? Yes, sir. MR. GRABINSKI: I'm Matt Grabinski. I'm here on behalf of the Ritz-Carlton. I would also like to make a few comments on some of the things that were said as well as clarify a few of the reasons why we propose to delete some of the language and also withdraw a few of our requests to delete some of the language. First, just to get the property line clarified and out of the way, I promised you I would bring back a survey indicating exactly where the erosion control line is located. As you can tell from the diagram, the bold line that you see running down the beach dissecting it is where the erosion control line was set by Collier County. And pursuant to Florida Statutes, Chapter 161, when that line became fixed, title to the property above that line vested in the the upland property owner. Therefore, the area that you see that is yellow, which is an area of the beach that is approximately 60 to 75 feet in width from the erosion control line up to the dune line, would be owned and is owned by the Ritz- Carlton. As Patrick indicated there are some areas that would be owned by the county and some by the state. From the erosion control line down, it would be owned by the state. The area that you see that is pink, a portion of that would be owned by Collier County. Collier County has the parking facility and the beach access. So what you're looking at as far as for purposes Page 44 May 2, 2001 of where the beach events are taking place, from the north boardwalk of the Ritz north to the property line -- to the north property line, you're looking at approximately an area of 75 feet in width by about 300 feet in length. It's more than enough room for the Ritz to hold its beach events on its property. Again, as Ed mentioned, the violations that Alex Sulecki talked about, a significant number of those were violations concerning the existence of tire marks that the Ritz did not cause. In fact, county found out about these tire marks appearing because we told them. Because the Ritz called me up and said, "Matt, there's some tire marks out on our beach, and we didn't do it, would you please call Barbara and Alex and let them know that it's occurring, and we'll try to find out where they're coming from. There are other ATVs that are driven on the beach on a routine basis." With respect to the penalties -- and I'll talk more about them in a minute as we go through the language specifically, but would like to reiterate as noted on staff's cover page that there are already very stiff penalties, both at the state and federal level, if sea turtles are harmed. MR. WHITE: That would be the cover page for the provisions for 3.14? MR. GRABINSKI: Yes. MR. WHITE: Thank you. That's just for the record. MR. GRABINSKI: Federal penalties can reach as high as $250,000 if sea turtles are harmed or taken. I think that would hurt the Ritz at $250,000. A member of the council mentioned the fact that perhaps the public would have an easement in front of these upland property owners. Again, I'm not in a position to give an opinion either way with respect to that issue, but I would just like to point out that even if the public had some type of an easement right, it would Page 45 May 2, 2001 not be an exclusive easement, and it wouldn't change the fact that would still be the hotel's property and they would still be conducting the beach events and operating on their property. If I could go through some of the changes that we've requested to the language on a step-by-step basis starting with the vehicle-on-the-beach regulations -- in 3.14.3.4.7, the reason why I requested that one ingress and egress corridor perpendicular be deleted and that all vehicles be operated below the mean high waterline be deleted is simply due to the fact that, as we've requested in our proposal to delete Section 3.14.3.6.1, which was discussed with members of county staff, the Ritz- Carlton would like to be able to get the ATV -- after the beach has been inspected and raked during the day, make periodic trips with its ATV in order to take fresh towels out onto the beach and to get dirty towels back to the hotel. If you look at this diagram, the southernmost boardwalk of the hotel is located at the bottom of the diagram, and the Ritz- Carlton's new service boardwalk is located at the north edge of its beach pavilion. So when towels and equipment and beach supplies are brought down to the beach through the service boardwalk, they have approximately 300 feet to travel. And the reason why we were requesting that 3.14.3.6.1 be deleted is because we discussed our concerns with staff, and we feel that it's reasonable that once the beach is raked and any turtle nests are identified and we use the ATV in a responsible manner with its proper tire pressure, that it would not be an unreasonable request to be able to make periodic trips -- and I'm not talking about 20 trips. We're talking about three or four trips during the day every couple of hours to get a clean supply of towels out on the beach and the dirty towels back rather than having to do it by hand with handcarts that are compacting the beach in the same manner as the ATV would. Page 46 May 2, 2001 I'm aware that members of the environmental community are going to object to our request to delete the mean high waterline distinction. I've been informed that -- and I'm sure they'll explain it to you more -- but it has to do with the concern over the vehicles creating ruts and tracks that hatchlings may be trapped in. Once they hatch in their nest, they try to crawl back down to the water. I think that with some proper and careful drafting that we can come up with a reasonable compromise that would address those concerns. Again, there would be -- we're asking, basically, for an established corridor that runs parallel to the shoreline up near the dune -- not within ten feet of the dune, but near the dune so that the ATV can get from the service boardwalk at the north end of the beach to the boardwalk at the south end of the beach. And if the concern is over beach ruts, it would not be difficult to rake and smooth the beach by hand at the end of the day to remove any possible ruts. With respect to the penalties, the reason why we requested that the suspension for violations -- suspension of the permit for violations that occur outside sea turtle season be deleted is for, No. 1, again, the possibility of any violations occurring outside of sea turtle season is unlikely, but this language was already approved and passed. In fact, when we met last December, beach raking wasn't even an issue. We spent a lot of time in this meeting talking about beach raking and our concerns with beach raking and how it affects sea turtles. You don't have to make a decision at all on beach raking, and it's still going to continue. It's already allowed or has been allowed under the code. MR. LORENZ: For the record, Bill Lorenz. If you don't mind, beach raking above mean high tide is not allowed during sea turtle nesting season. That's the existing prohibition in the code. Page 47 May 2, 2001 MR. GRABINSKI: Okay. I guess it hasn't been enforced in the past, and we've, I guess, examined the issue and tried to figure out why. And one of the reasons why I think that beach raking was prohibited was due to the nature and the type of beach raking that was going on. I think, like I said, the way Collier County rakes its beach is a lot different than what occurs at these hotels as far as the smoothing effect and the cleaning effect. MS. LYNNE: Excuse me. Michelle, did you have a comment? MS. ARNOLD: Did I have a comment? MS. LYNNE: Yeah. About why we do or don't. CHAIRMAN SANSBURY: Excuse me. Excuse me. Excuse me. I'm the chairman. MS. LYNNE: Sorry. CHAIRMAN SANSBURY: If you would please refer that to me. MS. LYNNE: Excuse me. CHAIRMAN SANSBURY: We refer to the pulpit to do that. Okay? Does staff have further comments? Anyone from staff have a comment on it? Okay. Ed. MR. CARLSON: Okay. Just for clarification, beach raking at this point or sea turtle nesting is not allowed even after the beach has been checked in the morning for crawls? MR. LORENZ: That's correct, above the mean high tide. MS. BURGESON: Above the mean high tide. CHAIRMAN SANSBURY: Above the mean high tide. MS. BURGESON: Just as a matter of record, yesterday as we were starting to issue our first vehicle-on-the-beach permit for beach raking, I brought it to the attention of the Collier County staff that picked up that permit that we would probably be enforcing that this year. They recognized that although they Page 48 May 2, 2001 haven't done it in the past, if it's determined that the rake line is what they will be raking this year, then that is what they will adhere to. So even though we have not necessarily enforced that in the past, we are bringing that to everyone's attention this year that that is something that's a strong possibility that it will be enforced this year. MR. CARLSON: Okay. And this language does not change that. MR. LORENZ: That's correct. MS. BURGESON: Right. It still prohibits beach raking above mean high water or the last high tide line mark. MS. ARNOLD: I just wanted to -- THE COURT REPORTER: Your name, please. MS. ARNOLD: Michelle Arnold for the record. I just wanted to point out that at the last EAC meeting this question was raised, I think, as a result of comments that were being made, and I think there was a lot of confusion as to what was permitted and what wasn't permitted, and we determined that, in fact, the raking of the beach above the mean high water during sea turtle nesting season is prohibited. It indicates that on the permit. It indicates that in the Land Development Code and those types of things. The language that's being proposed with respect to the corridors was derived partly because we make allowances for beach raking -- for the vehicles for beach raking to use a corridor -- establish a corridor for where they're going to go down and do it below mean high water. This language that's being proposed with respect to the corridors for the vehicles on the beach for furniture and special events is consistent with that beach-raking language, and that's kind of how we came to where we are today. Page 49 May 2, 2001 CHAIRMAN SANSBURY: I'm missing something on 3.14.7.1. How does 3.14.7.1 relate to -- since we're talking about the time out of sea turtle nesting season -- MS. ARNOLD: Three point what? CHAIRMAN SANSBURY: 3.14.7.1. How do you violate what we're talking about outside of -- what we're saying, then, is the violation would be -- tell me what the violation would be. I don't - - I'm missing something. MS. ARNOLD: For instance, using a vehicle with greater than 10 PSI tires. CHAIRMAN SANSBURY: Big tires and stuff like that. MS. ARNOLD: Or if that vehicle were used and damaged any of the dune while they were at the north end -- CHAIRMAN SANSBURY: Okay. MS. ARNOLD: -- or the landward edge of the beach doing their raking. CHAIRMAN SANSBURY: It's not turtle nesting related in any manner? MS. ARNOLD: Right. CHAIRMAN SANSBURY: Okay. MR. LORENZ: And those would be vehicles -- that section is specifically tied to 3.14, 5 and 6, so vehicles that were used in conjunction with beach raking or mechanical cleaning. CHAIRMAN SANSBURY: Okay. MR. LORENZ: An example also would be if they didn't have a proper permit. MS. ARNOLD: Right. CHAIRMAN SANSBURY: All righty. Let's move on. MS. LYNNE: I have a question. CHAIRMAN SANSBURY: Yes, ma'am. MS. LYNNE: Is Delnor-Wiggins Pass beach raked? Does anybody know? Page 50 May 2, 2001 MR. LORENZ: I don't know. I would have to look at my staff. MS. KRAUS: They don't rake it. CHAIRMAN SANSBURY: Identify yourself, please. MS. KRAUS: Maura Kraus, Collier County natural resources. Delnor-Wiggins Pass state recreation area does not rake the beach themselves, however, I do know that there have been times when the county beach raking has gone into their parks, but they prefer a natural beach. MS. LYNNE: Okay. Thank you. The other question I had involved the violations, alleged violations to the Ritz-Carlton, and you folks are saying there were only two. Alex. MS. SULECKI: For the record, Alex Sulecki, code enforcement department. I want to correct something on the record. Maura said there were 13 violations. I didn't explain my paper well enough to her. There were actually eight violations that I handled in the last two years. Three of them were for vehicles on the beach which concerned vehicles or tracks that were seen early in the morning by natural resources staff. After an investigation we determined that these vehicles were being used late at night. All the tracks headed up the boardwalk onto the Ritz property. I did speak with the Ritz staff about this. They stated they were doing an in-house investigation to determine where this vehicle was coming from because they denied it was there's, but the actual reports of this were turned in by natural resources staff. CHAIRMAN SANSBURY: Thank you. Yes, sir. MR. SOLING: Before we go further, our witness objected to page 2, 3.4.7, saying there should be more than one vertical access to the beach. And I don't understand that comment because my knowledge of most hotels is they only have one point of entry to the beach because of where the vehicle is kept. Page 51 May 2, 2001 So why is there any objection to having -- restricting it to one and, in essence, asking for more than one access? MR. GRABINSKI: What we're asking for is not more than one access. The access will always be through the service boardwalk. What we're asking for is language that would allow the Ritz during the day to make several periodic trips from its service boardwalk to the north down to its boardwalk that services their pool and where most of their guests go between the beach and the pool to get towels and beach supplies down there and to remove dirty towels. Right now the language provides that all operation of vehicles has to be below the mean high waterline, so that would prevent the Ritz from in any way being able to do that. And with respect to -- if I could just comment on the beach raking and beach cleaning, because I'm looking at 3.14.5.1, and I don't see where this proposed language here prohibits beach raking above the mean high waterline. And, again, there is an issue that we've been discussing and picking around in meetings, and we're trying to -- we want to basically ask why not. If the beach is inspected every morning and cleared, and we're dragging a screen across it with an ATV that doesn't compact sand anymore than a human, why can't the beach be raked? MR. LORENZ: Bill Lorenz. Let me answer that. First, it's 3.14.6.1 where it says, "All beach raking and mechanical beach cleaning during sea turtle nesting season shall be confined to the area of the beach below mean high water or previous high tide mark." That's the current -- that's basically the current language in the code. We've talked about not being -- and it must not be done prior to the turtle monitors coming out in the morning. That's the additional language. So it still does not allow raking above the high tide line during nesting season. The reason is we're sitting here and we're saying that we're Page 52 May 2, 2001 capturing 100 percent of all the nests when we do the monitoring. That's not true. We don't know that we're capturing 100 percent. We may be missing some. The rationale for not having raking throughout the whole nesting season is because we are not completely infallible in our ability to understand where all the nests are. So we're talking about risk management here. The nesting season, you didn't have raking during the nesting season to try to reduce that risk as much as possible to zero. That's the current status quo. When we add an ingress/egress corridor during nesting season, quite frankly, we're increasing the risk a little bit more than the status quo. Staff is saying that we will tolerate that increased risk with the other restrictions that we're placing in the code. MR. GRABINSKI: But as was discussed at the prior EAC meeting, we haven't heard an explanation, a sound scientific explanation of how that risk is increased. If a nest is undetected, whether it's in front of the Ritz-Carlton or down at the Vanderbilt Beach public access -- if a nest is undetected and the tracks get covered up either by rain, water, or human activity -- it's undetected until it hatches -- what is the difference between a human walking over it and placing 10, 11, 12, 13 PSI or maybe 20 PSI if someone's running down the beach and an ATV driving over it impacting it 9 or 10 PSI? MR. LORENZ: It's because the human is going to -- it's very unlikely -- the probability that a human is going to walk on that nest each and every day during the whole incubation period is not there, but when you rake it each and every day, you've just increased that amount of time over top that nest because we don't know where that nest is. CHAIRMAN SANSBURY: I think at this time -- I mean, we're starting a debate of philosophy about to rake or not to rake or Page 53 May 2, 2001 when to rake. I think if we're going to get anywhere with what we're doing we need to look at starting at 4.7 -- and I think you've explained that -- as to why you feel that the proposed -- why you believe that your item should be deleted, and I think we need to walk through this in order and stay on the subject here and try to solve what we're doing here otherwise we're going to be going around in circles all day long. Do we -- do I hear any objection to that from the council? MR. GRABINSKI: Okay. If we could move past that then and go to 3.14.8.1 -- MS. SANTORO: Before we go through that -- CHAIRMAN SANSBURY: Yeah. MS. SANTORO: I wanted to ask the staff or the monitoring people a couple questions when it's appropriate. CHAIRMAN SANSBURY: Go ahead. Go right ahead. MS. SANTOR: Okay. I have some concerns. I'm wondering whether we should add nine o'clock in the morning prior to any vehicles being on the beach or if you feel comfortable enough that all hotel beach activity entities have checked in with you to make sure the nests are located if you come at 7. I'm a little concerned about that. My second question is, sea turtle nesting season is May 1st to October 31st. Does that mean that all nests have hatched or might we still have nests that have not hatched? And if so, I'm thinking that we should change the penalties -- amend the penalties from the 60 days to 70 days, whichever is greater, to consider the hatchlings. Are you following my question, or have I lost you? MS. KRAUS: You kind of lost me a little bit. MS. SANTORO: My first question was -- CHAIRMAN SANSBURY: Identify yourself. MS. KRAUS: Maura Kraus, Collier County natural resource Page 54 May 2, 2001 department. MS. SANTORO: My first question was, you're monitoring in the morning. I'm very concerned that if we accept this that we make sure that all entities are assured that it's monitored and marked prior to using any vehicles or beach activities during the turtle nesting season. Would it be advantageous to amend this to put a time frame saying "also not prior to 9 a.m." to make sure that the monitoring people in all the areas have been completed? I'm concerned about this. MS. KRAUS: Yeah, but I'm a little concerned about putting a time in there. What if somebody's car breaks down and they don't make it to the beach until a quarter to nine, you know, or something like that? The Ritz is the only ones that we have a sign for currently right now. All the other hotels have not had a problem with waiting until -- MS. SANTORO: So you've notified each hotel and they know that you're there at the time that you're there? MS. KRAUS: Yes. We've worked with the Registry, and they don't even set anything up until after nine o'clock or way after nine. MS. SANTORO: So it's not a problem. Okay. MS. KRAUS: Yeah. It's not a problem with any of them. MS. SANTORO: My second question was, in the penalties we're saying that if a violation occurs, they're either not to do it for the balance of the turtle nesting season or 60 days, whichever is greater. The turtle nesting season is May 1st to October 31st. So, technically, if we say the end of turtle nesting season ends October 31st, they can then start their activity again. My concern is, are all the nests hatched or should we make the change from 60 days to 70 so if there is still a nest at the end of October 31st and people have been Page 55 May 2, 2001 prevented from activity by the penalty, then 70 days then would allow that last nest to hatch. That's my only other question. MS. KRAUS: Typically most of our nests are hatched and off the beach by the second and third week of October. I've never seen it go beyond October 31st. Turtles stop nesting -- I believe the latest one I can remember was, like, September 8th, so that's pretty early on. MS. SANTORO: Thank you. MS. KRAUS: Seventy days not being able to use the vehicle on the beach came from it takes 60 days for a nest to hatch. If it's been inundated by water or something, up to 70 days, and 70 days is not uncommon for a nest to hatch. MR. LORENZ: Bill Lorenz. Let me add to that. That was part of the presentation earlier, and this is where it comes together. That 70 days, as I said earlier, is not punitive. What that means is if somebody rakes the beach and we cannot tell where there is a nest, then what we're saying is, if a nest has been laid there, it's going to take 70 days for it to hatch. We do not want to have any activity in that area because we cannot now determine with a high enough degree of certainty that a nest does not exist there. So it's not so much a punitive penalty as much as it is trying to protect a nest that gets laid there that we weren't aware of. We do not want to have raking occur on that nest day in and day out, which is a much more -- a higher set of activity than simply somebody walking along the beach and possibly going over the nest. That's the difference. MS. KRAUS: Did I answer your question? MS. SANTORO: Thank you. CHAIRMAN SANSBURY: Okay. Now we're going to 3.14.3.6.1, and that's the use of one time a day. I think you've made your point on that. Does everyone understand what the Page 56 May 2, 2001 hotel's position is on that? That's why they would like to see that deleted. That gets us to 3.14.3.6.7. MR. GRABINSKI: Again, that contains the language that -- we've already discussed that issue regarding our concerns with overseeing any operation above the mean high waterline. This language is in the code three times; one to address the use during beach events, one to address the use of vehicles in beach concession areas, and one to address the use for day-to-day hotel operators. CHAIRMAN SANSBURY: Okay. Then 3.14.3.7, the proposed to be deleted is after the whole paragraph. Are we proposing to delete the whole paragraph there? MR. GRABINSKI: We propose to delete the tire-tread identification simply because -- CHAIRMAN SANSBURY: I thought you said it wasn't a big deal a couple of minutes ago. MR. GRABINSKI: Well, I guess in an ideal world it's not a big deal, but in a practical world it's impossible to enforce. Because unless you want to ask the hotels to rake their tracks, when you get there in the morning and you see a tire track with the Ritz- Carlton's emblem on it or their initials on it, how do you know whether the tire track was created that morning by using an ATV before the patrol monitor got there or if it was from setting up or breaking down a beach event that occurred the prior evening? CHAIRMAN SANSBURY: Well, I'm confused because I heard a few minutes ago that that wasn't going to be a big deal to you guys, and now you're telling me it is. No? MR. GRABINSKI: I apologize. I just think that it was -- MR. STAROS: I'm confused. MR. GRABINSKI: The tire-tread identification -- it was suggested by one of the operators of the beach concession Page 57 May 2, 2001 stands as a way to resolve where these phantom tracks are coming from. CHAIRMAN SANSBURY: Okay. MR. GRABINSKI: So if the Ritz sees tracks that it belives are not theirs, they can say, "Look, we have these tracks, and they don't have an RC identification mark on them, so you can't cite us and you can't hold us in violation." And it's a really good idea. I just think that it's going to be very difficult to use this effectively. If the Ritz has their ATV marked, and they have a beach event in the evening, they can -- they'll legally be able to get the ATV out on the beach to drop off supplies and to break down at the end of the event. And once they're done there will be tracks out on the beach with their tire mark on it. They could wait the next morning and never take an ATV out there again that evening or the next morning until the turtle monitors come. The turtle monitors come and see tracks that were created the night before. CHAIRMAN SANSBURY: We understand. Mr. Carlson has something. MR. CARLSON: But if we adopt the conditions suggested by the county and the tracks are all below the mean high water and in these corridors established, then your tracks are just on those areas, and your tracks are fine no matter when they were put down. MR. GRABINSKI: If that can be understood, yes. MR. COE: That's the way I understand it. MR. GRABINSKI: Okay. CHAIRMAN SANSBURY: I mean, am I incorrect in hearing that when I heard from your GM he said you didn't have a problem with that, and you're telling us we do have a problem with it? Page 58 May 2, 2001 MR. GRABINSKI: Well -- MR. STAROS: Ed Staros, again, for the record. I was speaking about the raking portion of it and the tire tracks. He does have a point. I was not on that subject. If we use the vehicle to deliver a product, a food or beverage product, to the beach for a beach party, obviously it would still have that same logo on the tire. You know, that's a point that I didn't cover earlier. MS. BURGESON: What the markings of the tires allow staff to do is identify areas where that vehicle has been used that are prohibited areas. CHAIRMAN SANSBURY: Okay. What I'm saying here is, do you continue with your proposal to delete the marking? MR. GRABINSKI: No. We withdraw that request. CHAIRMAN SANSBURY: Thank you. Okay. Next. MR. GRABINSKI: 3.14.7. The problem we have with the violations occurring, again, outside of sea turtle nesting season is that this council as well as the BCC and the CCPC all passed this language last December without these increased penalties and temporary suspensions of the permit. We question why county feels now that it needs to be inserted particularly when we're here to discuss possible effects and possible potential harm to sea turtles. We're creating fines and language pertaining to violations that occur outside sea turtle season. The reason why we object to the suspension of the beach raking or beach cleaning permit even temporarily, even outside of sea turtle season, is that the violations could be any violations. I mean, outside of sea turtle nesting season, if you have a permit to rake your beach, there aren't too many bad things you can do other than, say, rake too high if that issue can't be resolved or drive over sea oats. But there are all sorts of conditions regarding vehicles on the Page 59 May 2, 2001 beach that can result in technical violations that aren't really addressing any specific harm. It's technically a violation if you don't have the permit with the vehicle at all times. That's why we had discussed -- I had discussed with members of county staff defining major violations and minor violations and having the increased stiff penalties when a major violation occurred. We asked ourselves, what is a major violation? Well, during sea turtle season, a major violation would be raking the beach or driving the vehicle on the beach before the sea turtle monitors came. If that happens -- again, last year that happened twice at the Ritz. Both times it was from human error. We developed a process and we're still revising and perfecting it, and the Ritz took measures to insure that that type of mistake wouldn't happen again, and it didn't. So, as Ed said, I think we're confident that we can, you know, avoid raking the beach before the sea turtle monitors come. But if we're talking about language that would cause the hotel to lose its right to rake its beach for two months on a mere technicality, we just think that completely unreasonable. Particularly -- the reference to 3.14.6 -- 3.14.6 deals with operations of vehicles on the beach during sea turtle nesting season, so that could not be violated outside of sea turtle season. So even for that reason alone that reference should be deleted. But that's why we object to the suspension of the vehicles during sea turtle nesting season as well as outside of sea turtle nesting season, because we don't -- we don't -- we don't -- sort of define and try to pin down the harm for these major violations, and we think it's unreasonable to suspend a permit on a technicality. It would be possible to do so. That is also why -- it was not noted in here, but we would request in 3.14.8.1 and .2 that the suspension language be deleted. Page 60 May 2, 2001 Again, that's dealing with the use of ATVs for beach events, for concessions, after the raking has occurred. The real harm that everyone has been focusing on, and rightfully so, is raking is not raking until the beach has been monitored. We think that once that has been addressed that the potential for harm for, say, using an ATV or some type of vehicle -- again, we're also focusing solely on ATVs here. Under the county code, anything with wheels on it is a vehicle. I mean, I think it's unreasonable to cite the Ritz and charge them 5,000 bucks because at the end of a day after the beach had been monitored and raked and an ATV had been used, a new employee brought a dolly out onto the beach that the Ritz forget to get a vehicle-on-the-beach permit for, which Collier County would want to require them to do. That's why we object to this language. MS. BURGESON: I need to add some -- CHAIRMAN SANSBURY: I think, though, sometimes -- we do have some reasonable people in code enforcement that I don't think are going to look at it that way, but let me ask one question first. Does staff have a problem with the definition of "major/minor" here? Is there -- MR. LORENZ: The code enforcement staff and the county attorney's office kind of work on the violations. Michelle will come up with that. MS. ARNOLD: For the record, Michelle Arnold. I don't particularly have a problem with clarifying what's major and what's minor and working with the county attorney's office to formalize that a little bit more clearly because, as you said, we try to be reasonable in our enforcement, and if we can clarify things so that there's no confusion, it's all the better for us when we're going out and enforcing it. With respect to how we do enforcement, if somebody doesn't Page 61 May 2, 2001 have their permit on their person or a vehicle on the beach, we usually go and check to see whether or not one was issued before we consider it a violation. So, you know, although it's technical that they need to have it on the vehicle and they don't, we'll insure that a permit was actually issued for that particular vehicle before we cite somebody for it. CHAIRMAN SANSBURY: Thanks. MR. WHITE: Mr. Chairman, the notion of characterizing penalties as minor and major to some degree already exists in the proposed structure given the fact that the existing penalties for any code violations that are set forth in the LDC and Section 1.9, if you will, constitutes minor violations. These are, if you will, enhanced penalties that perhaps could be characterized as major violations and penalties, but certainly no objection at all to refining the definitions of those and which should be classified as what. CHAIRMAN SANSBURY: Barbara. MS. BURGESON: There were a couple of things that were discussed. I need to state that in the past two weeks we've made revisions to these three ordinances probably eight times. So even reading through it this morning and discussions late yesterday after these were amended it was brought to my attention that I should have made this disclosure during the presentation that staff has a concern regarding the beach-raking violation during sea turtle nesting season. During discussions we used to have language in there that said the first violation would automatically be a suspension for the number of days that the nest would take to possibly hatch, and discussions with the natural resources department and code enforcement staff has indicated a desire to put that language back in the ordinance. So the first violation would be a $500 fine and the suspension of the beach raking for that time period that it would take for Page 62 May 2, 2001 that nest to hatch. So that 70-day period would be in there. CHAIRMAN SANSBURY: Bill Lorenz. MR. COE: I'm confused. CHAIRMAN SANSBURY: Yeah. I'm confused too. Go ahead. MR. COE: Stop right here. I've spent two hours, and I'm still confused here. During the nesting season, May to the end of October, no beach raking is permitted; correct? MR. LORENZ: On mean high tide. CHAIRMAN SANSBURY: On mean high tide. MR. COE: Okay. So, therefore, the area that they're currently raking that we're not enforcing is really -- they can't do it anymore. Why are we even talking about it? Why are we suspending beach raking for 60 or 70 days when they can't do it anyhow? MR. LORENZ: This was a clarification I'm going to make. We are -- what we need to suspend is any activity within that beach area, and we would allow an -- we would be moving an ingress/egress corridor. Remember the premise of what we're working under. We will know where the nests are such that we can -- our monitoring staff will provide an ingress/egress corridor for the use of the ATV through that area. If they rake the beach and we don't know now where the nests are, all of our permitting activities from there on are -- we will jeopardize that unknown nest. So for me it's not a penalty. We need to rewrite this to indicate that activities that we would currently allow within that area are no longer going to be allowed because we don't know whether there's a nest or not because the beach was raked prior to our monitoring. MS. BURGESON: Also, I wanted to address the concerns that Matt had brought up regarding once the beach raking is completed or the monitoring is completed in the morning, why would staff be concerned if, for instance, they took a vehicle out Page 63 May 2, 2001 on the beach in the later afternoon or evening. One of our greatests concerns is that -- they have events that are scheduled in the evening, and they need to break these down. If this is approved, they can use a vehicle to break those down. Sea turtles nest at sunset, and the hatchlings will start to hatch at sunset. So we need to be very careful that we minimize the vehiclar use on the beach in the evenings. So that's why we wanted to make sure that we're limiting the use of vehicles. And it's not just a concern the first thing in the morning. It's also a concern in the evening. MR. STAROS: I'd like to address that for a second. Ed Staros, again, if you don't mind, Chairman. All I want is a roundabout. All I want is to be able to come down my boardwalk and make a U-turn and be legal in doing that. I don't want to be driving product all up and down the beach. I'm going to hand carry my product from there all the way to where it's going to be set up. So all I want is that little permission for a -- right here (indicating) is my new boardwalk. All I want is a little turnabout. That's all. MR. SOLING: Mr. Chairman. CHAIRMAN SANSBURY: Yes, sir. MR. SOLING: I'm cognizant of that concept. I don't know whether this would be a problem, but why can't the Ritz put down a mat for the turnaround, and with a mat permanently in place no sea turtle is ever going to nest there, and you have a permanent turnaround area for your vehicle. That to me makes 100 percent sense. MR. STAROS: I'd be happy with that if it's okay with everybody else that environmentally it doesn't screw anything up. CHAIRMAN SANSBURY: Do you want to comment on that? I think I know what the answer is going to be. Page 64 May 2, 2001 MR. LORENZ: Bill Lorenz. The answer is, our egress/ingress corridor allows for that now. I mean, the way it's written allows for that. Now, we may have to move that if a nest were to be placed in that corridor, and that's the whole point of the regulation. We will then move the corridor to accommodate your ability to do that to the degree that the nests are -- you know, mean, we are subject to where the nests are being laid. But the rules that staff is proposing would allow that. CHAIRMAN SANSBURY: Mr. Carlson has a comment here. MR. CARLSON: Just so I understand further, the rule is you can go down the beach below the mean high waterline and then back in at designated corridors so you can get your material all the way down the beach and all the way down to the other end of your property. MS. BURGESON: Is the Ritz -- MR. CARLSON: Then we would need -- THE COURT REPORTER: Wait, wait, wait. MR. CARLSON: But we would need two corridors. CHAIRMAN SANSBURY: Oh, wait. One at a time. Hold it. MR. CARLSON: But they're saying, if I understand this, that there could be additional or more than one corridor back up to the beach? Hello? If the vehicle has an access point to below the mean high waterline, goes down the beach, and they've got 300 feet, then are there other access corridors back to the beach that can be designated? MR. LORENZ: We are only recommending the one corridor. MS. BURGESON: They would need to bring their equipment down to the trailer or the ATV to stack that to bring it back out off the beach. MR. CARLSON: Okay. MS. ARNOLD: For the record -- MS. BURGESON: But what I understand -- I'm sorry. Page 65 May 2, 2001 MR. CARLSON: I'm getting there. It's slow -- MS. BURGESON: It sounds like -- MR. CARLSON: -- but I'm getting there. THE COURT REPORTER: Wait, wait, wait. CHAIRMAN SANSBURY: Wait. One at a time. MS. BURGESON: I just wanted to find out if the hotel is suggesting that they're interested in less than what the language is proposing, that they just need the turnaround, and they'll be removing -- MS. ARNOLD: Can I try to clarify it? CHAIRMAN SANSBURY: All right. THE COURT REPORTER: Your name. MS. ARNOLD: Michelle Arnold. I believe what they want is an additional corridor for their towels. Right now the proposed language, staffs proposed language, allows for a corridor for the vehicle to drop off equipment and those types of things, and it doesn't limit the number of times that they do that. But we do limit the number of times that they can use the vehicle to drop off their towels. We only allow it once in the day and once in the evening. They want to be able to establish a corridor for that towel operation and not limit the amount of times that they're using it for the day. So we would then approve two corridors; one for the vehicles for the event and another one for the towels. That's what they're trying to address. MR. STAROS: Ed Staros one more time. There's a little confusion here that I think I can clear up. The service boardwalk is right here (indicating). The towel distribution point is right here (indicating). There's about 300 feet between the service boardwalk and where the towels are. You might say, "Well, why don't you move the towels up here, and then everybody is happy?" The reason being is 90 percent of Page 66 May 2, 2001 our customers come this way because this is where the pool is. They go from pool to beach, beach to pool. So this is the logical location for the towels some 300 feet away from the service boardwalk. So there are two issues here. One, on beach parties all I want is just a roundabout because I'm not going to ride up and down the beach on my ATV. I just want to get the product to the beach. However, to operate the hotel efficiently, I am now allowed to go down this corridor once a day to deliver towels and back once a day to take the dirty towels. All we've asked for is to have a little bit more leniency to do it more than once a day. That's all. CHAIRMAN SANSBURY: Okay. Yes, sir. MR. SOLING: I don't want to be confrontational, Mr. Staros, but if my memory is correct, that towel bin is up the steps and on your boardwalk at the pool. At the other end of that little walk about within 25 feet or 50 feet, there is another towel bin with a roof over it, and there's a woman or a man sitting there. So would assume that most of the towels don't come down the beach but come across your pool deck to service both towel bins. MR. STAROS: This particular boardwalk down here (indicating) by the pool -- as many of you have probably walked it, it has many -- it has four steps up, four steps down, and so forth so it can't be used with a vehicle to roll things to and from. There is a towel bin right here (indicating) on the pool deck -- you are quite correct -- which normally services the pool, and we have a towel bin on the beach that services the beach. It is not unusual on a busy day for the Ritz-Carlton to go through two to three thousand towels on the beach in addition to the towels at the booth. MR. SOLING: In the summer? Page 67 May 2, 2001 MR. STAROS: In the summer. It's not unusual. That's 3,000 towels, clean towels; 3,000 dirty towels on a full house. CHAIRMAN SANSBURY: Okay. We've gone through 3.14. We've heard the various paragraphs which you are objecting to or are requesting to be changed. I would like to see if there's anyone else from the public who would like to -- and I think there's someone right behind you -- who would like to address those if we could. Let's hear the objections or the comments, if we could, and go from there. MS. BURGESON: We'll need to take a break very soon. I don't know if this is a good time. CHAIRMAN SANSBURY: What's your pleasure? Do you want to take a break, or do you want to get through this one? What do you want to do? MR. COE: Let's get through this one. CHAIRMAN SANSBURY: Let's get through this one and we'll take it then, Barb. Thanks. Are you all right? THE COURT REPORTER: Yes. CHAIRMAN SANSBURY: Okay. MS. BARNETT: Eileen Barnett, environmental permitting manager, Coastal Engineering, on behalf of the Registry Resort. I appreciate this opportunity to speak. Also, on behalf of the Registry, we really appreciate the opportunity that the natural resources department and development services have given us to work back and forth with them. Chronology-wise, we saw a "final draft" yesterday, and there were a flurry of faxes, e-mails, meetings, and telephone conversations all day yesterday. I appreciate that you haven't had a chance to look at all these revisions, but as you heard from Barbara Burgeson, it wasn't by any sudden moves on the hotel industry's part. We've been working diligently and at every Page 68 May 2, 2001 opportunity we were given to work with the county on our concerns and the protection of the sea turtle at the same time allowing the hotels to operate their business. We were working with the Ritz-Carlton in conjunction with Matt Grabinski on the comments that you heard him speak about earlier. I did want to bring to light a couple of other things. The natural resources department, Bill Lorenz and Maura Kraus, I think did an excellent job of telling you about the intent of the law and what the environmental issues are. Number 1 is to protect nests during sea turtle nesting season. That requires no beach raking before the turtle monitor can go and monitor the nest area because it wipes out the tracks. That's easy to visualize. The other major thing is having furniture on the beach that can cause false crawls. A picture is worth a thousand words. You've seen that. One of the biggest problems with taking the intent of protection to legal language is a lot of times something gets lost in the verbage of the law, and that seems to take on a life of its own, I think, as you're all well aware. That sometimes happens. That's why I'm bringing forth a couple of clarifications in addition to the Ritz's comments. In 3.14, 3.4.7 is also reiterated in 3.14.3.5.7 and 6.7. Items 1 and 2 we agree with. The one ingress and egress corridor, we were asking for some relief on that. As Bill had mentioned, any time you might add an ingress/egress, also, if that's done before the nests are monitored or a nest is missed, that's an incremental increase, perhaps, in a possible undetection. But I believe that's negligible or maybe even impossible because the ATV tracks are similar in size to the turtle tracks. The turtle makes a U-turn. There's several feet between their ingress, and then they turn around and make an egress. If this is what it has to be, we will go along with it. I just Page 69 May 2, 2001 wanted to bring out that the ingress and egress may be a little bit going too far on saying that that could wipe out an undetected turtle nest track. The discussion -- we've had a lot of discussion about the mean high waterline. What we were asking for was a consideration that -- and I hope that Maura can clarify this. She's the expert, and we would go along with whatever she says. The mean high water is a very protective line, however, it's unmanageable because it's basically a surveyed line, an imaginary line, an elevation line. A lot of times the mean high waterline is underwater. I know the intent is to have it at the line of the last high tide, which you can see is a line of wet sand. That language is in 3.13, and I'm asking at least to add that language into here and get rid of mean high water because it's a survey elevation line. The experts know what that means, but as I said before, the law sometimes take on a life of its own. What we were asking for was consideration that -- actually the turtle's way above that area, much closer to the dune vegetation line. Traveling up and down the area of wet sand would in no way impact a turtle nest. Traveling back and forth across the beach close to the vegetation line -- now you're talking about a very big chance that an undetected nest will get run over. So I'm asking for consideration at least to talk about the wet sand or line of last high tide, but also to please consider using another line or another demarcation to allow the hotels to clean the beach in a nonimpactive manner during sea turtle nesting season beyond the mean high waterline. We reiterate very strongly the concern about the penalties. In 3.14.7, 3.14.8, I think because of the flurry of work that has occurred back and forth, they were duplicated. It's just a Page 70 May 2, 2001 bookkeeping issue. But 3.14.7.1 has violations of suspension of activity outside of sea turtle nesting season, and I'm asking to please consider to delete those. They have nothing to do with the protection of sea turtle nesting activities. It's outside of nesting season. The violations that they can violate are basically -- they can be taken care of in other areas of the law. Again, the suspension of activities during sea turtle nesting season, the beach-raking activities or beach ingress and egress, if it is going to be at the very lower end of the beach, there's no sea turtle nest there. So we have -- we're juggling a couple of issues. I would like to answer any of your questions or have Maura Krause come back up to the podium to clarify it. Our main concern is really whatever the reasonable way to protect sea turtle nests are, the Registry is completely and 100 percent behind that, but they are asking for consideration of these certain issues I brought up so that they can continue to operate. Thank you. MS. BURGESON: Regarding the first language -- CHAIRMAN SANSBURY: I -- MS. BURGESON: I'm sorry. CHAIRMAN SANSBURY: Excuse me. MS. BURGESON: I can clarify one of those rather quickly. We do already use language that refers to mean high water or the line of the previous high tide, so that language is completely acceptable to staff, and we have been using that -- MS. BARNETT: Thank you. MS. BURGESON: -- and we can incorporate that into the code. CHAIRMAN SANSBURY: Yes, sir. MR. SOLING: Just a point of information, the Registry is using a county beach, aren't they? MS. BARNETT: Yes. Page 71 May 2, 2001 MR. SOLING: And do you rake the county beach? There is one access that the county uses for the public along the boardwalk. Do you have another access at the Registry to the beach other than that boardwalk? MS. BARNETT: The Registry does use the county beach. The Registry does rake the county beach. They work in conjunction with county parks and rec. They're in constant communication. I believe they have a very good relationship with county parks and rec's staff, as well as the natural resources' staff. They use the same access points that the parks and recreation division uses. MR. SOLING: So then no matter what happens, you can only have one access. MS. BARNETT: I wasn't discussing the access issue. The Registry does have different activities and different concerns, but they're overlapping concerns with the Ritz-Carlton. I didn't want to go into all that detail. Actually, the Registry has very few beach events. They do have several, but I believe it's under a dozen a year. But their main concern is the concession getting the chairs set up and taken down and getting the canoes and kayaks down to the pass and back again for the trips. CHAIRMAN SANSBURY: Okay. Why don't we do this. Why don't we take about a five-minute break and then come back and see what further discussion we want to have. Is there anyone else from the public that wants -- MR. GRABINSKI: Excuse me, Mr. Chairman. CHAIRMAN SANSBURY: -- to discuss -- excuse me. I'm sorry. Let's do this. Let's get all the public discussion out of the way first. MR. GRABINSKI: Mr. Chairman, could I make one final point CHAIRMAN SANSBURY: Go ahead. Page 72 May 2, 2001 MR. GRABINSKI: -- regarding vehicles since we're just doing the vehicles? Because Mr. Lorenz and I sort of exchanged a brief debate regarding foot traffic and the amount of foot traffic that's to be exposed versus if there was an established corridor for an ATV on an undetected nest. And I would like to point out that, again, what we're asking for, okay, is the periodic trips throughout the day to get beach towels down to the south end of the beach. Okay. We're talking about either using an ATV that compacts the sand no more than a human, maybe less than a human -- using an ATV four times a day, four trips a day, approximately, four or five, not constant all day, but four or five trips a day as opposed to forcing the hotel employees -- forcing the hotel to use handcarts like they do now that are going to compact no more but require more trips over a possible unmarked nest or, if they didn't use handcarts, regular foot traffic. Then you're talking about literally having to have a beach towel staff on site that would be using that same path. Because I guarantee to ask an employee to carry beach towels back and forth all day -- they're not going to make random trips throughout the beach so they're avoiding a particular path consistently, and so the same area of the beach is going to be used. The question is, do you want an ATV that's compacting the beach no more to go over a possible unmarked nest or to drive across the beach 4 times a day, or do you want 8 trips or 10 trips or 20 trips by pedestrian traffic that's going to cause the same compaction in the same area? CHAIRMAN SANSBURY: Okay. I think that's clear. I think what you're proposing is clear to us. Okay. Yes, ma'am. MS. LYNNE: I just would really like to have a break now. I'm having a hard time following it, and I don't think I can listen to Page 73 May 2, 2001 the next two. CHAIRMAN SANSBURY: Okay. Let's take five then. MS. LYNNE: Thank you. (A short break was held.) CHAIRMAN SANSBURY: Okay. Are we ready? Let's come back to order. Thank you. MR. SIMONIK: Michael Simonik with the Conservancy of Southwest Florida. I'm going to make comments in the beginning, and then I'll go to specific comments in the code language. We had hoped to come here today in a group hug with the hoteliers and county staff and sing Kumbaya. CHAIRMAN SANSBURY: You and I both. MR. SIMONIK: That was our plan until 4 p.m. Last night when I received by e-mail all new language after maybe eight changes in the past two weeks and several more changes in the last two months. We applaud the Ritz for coming forward a year ago, I guess, from my understanding, and saying, "We want to do right by the sea turtle. What do we need to do with what we do now and what we've been doing for 15 years?" That's commendable to say, "Let's get language in place so that we can do it right so that there's no harm to the sea turtle." I personally have been involved in all of the meetings over the last few months representing the Conservancy discussing all of the concerns and issues as was directed from the Board of County Commissioners. From my understanding -- I was not there at the meeting and I didn't read the minutes -- but they asked county staff to get together the hoteliers and the environmental community to discuss all of these concerns to bring back language through the process, I assume, beginning with BAC. We've got three meetings today. At this point, I don't think I can verbalize the amount of frustration that I feel sitting here this morning that my boss felt, Page 74 May 2, 2001 Kathy Prosser, the new president of the Conservancy, at 5:30 last night with all of this. We thought we had our position nailed down. We thought we had that group hug, and I was ready to sing Kumbaya. We are very -- extremely disappointed to learn of a meeting that happened between, I think, just the Ritz -- but Mr. Dunnuck called a meeting, as my understanding, with either the Ritz or both hotels, the Ritz and the Registry on last Friday. I was totally unaware of that meeting. And from that meeting came language of proposed deletions to some of the very important aspects of these documents that we were in favor of. And I didn't know that until four o'clock last night. And it's a good thing I checked my e-mail because there was no call to me saying, "We just sent you all new language with major deletions proposed." And by whom I didn't know until the Naples Daily News reporter told me. So we have -- we're starting off bad this morning. We were happy yesterday afternoon until four o'clock. We feel a little disenfranchised from this process now because we have been so involved all along. I've been to the EAC meetings, been at the table with the hoteliers, and the Conservancy is the only environmental group that has done that, been at the table the whole time. I'm making sure I get through my comments before I get to the actual code. Well, my biggest point right now on comments is that because of what happened Friday and because of what happened last night at 4 p.m. With new language, we are not ready to go to public hearing today. Look what you just did for two and a half hours, and I didn't even have a chance to input yet. It's been way too technical to take to a public hearing. That's why we thought we were meeting this whole time. I was on the Page 75 May 2, 2001 phone to the Ritz and the Registry Monday and yesterday finding out more and doing my best to do my due diligence to stay in touch without people contacting me to tell me of these changes. Now, I'm going to go to some of the changes -- and there's even more this morning that I'm hearing about. For the record, with these changes we strongly object to this language being passed. On the document "Vehicle on the Beach Regulations," 3.14, going straight to 3.14.3.4.7, which is the language that appears over and over again, one ingress/egress corridor. We strongly object to taking out the language that says only one ingress/egress corridor. If there is a case to be made on a case- by-case basis and argued for some kind of variance from the one to go to two, maybe. We recommend keeping it at one ingress/egress. The mean high waterline under No. 4 in that paragraph -- we've heard from Maura Kraus and in speaking with our scientist and our biologists at the Conservancy who have been working on turtles for the last 20 years -- we just celebrated our 20th year. As I said before, we have privately spent more than a million dollars protecting sea turtles in this county. Mean high waterline -- having the ATVs run up and down the beach above the mean high waterline would harm the hatchling sea turtles, and we've heard about alternatives. I don't know sitting here by myself if those alternatives of raking those ATV tracks every single day is good enough. I have to talk to the biologists. I can't do it this morning. This is why we needed to be in a workshop mode at the table so I could learn things, take it back, discuss, bring it back again; not at the last minute at four o'clock last night. I agree with some of Eileen Barnett's comments about the Page 76 May 2, 2001 definition of mean high water and the wet soil area or the line of the highest tide or the last tide or something, but our issue is opposing the deletion of being able to drive the ATV above it along the dune line. Whether it's 10 feet, 15 feet, we don't know. At 5:30 last night we didn't have a chance to discuss or look up studies of what happens when you do that. I'm turning the page to 3.14.3.6.1, the one-time set up and one-time removal of equipment each day. We did discuss that yesterday with our biologists, and we could not see a reason that that would harm the sea turtles if the ATV went down to the mean -- below the mean high waterline, traversed across, came up to pick up some towels at 11 a.m. And 3 p.m. We have no objection to that language being deleted. And I'm only speaking for the Conservancy because there may be other environmental groups who do object. Turning the page there's more of the same language on mean high water and ingress/egress. Tire-tread identification, frankly, I'm very confused at the position of the hoteliers on this one. I don't know what they want on it. I think that there may be practical problems working with that. That's some of the discussion we need to have at the table. Make it practical. So that's something that needs to be worked on, not in the middle of a public hearing. I need to go back to the scientists and say, you know, "Is that going to work?" Then 3.14.5, "Beach Raking and Mechanical Beach Cleaning." I wrote I'm very confused on 3.14.6.1. I must be because I'm still confused. Oh, that's whether or not hotels can rake above the high tide mark or mean high waterline. I need to go back and ask our biologist, "Is there harm to the turtles or the ecosystem raking above the mean high waterline during sea turtle nesting season or during the summer?" I don't know what else goes on in the summertime. Maybe there's crabs or something that breed Page 77 May 2, 2001 in that line of -- in the rock line or something. I don't know. need to ask. That's why this needs to be in a workshop. I can't do it this morning. The penalties under 3.14.7 -- CHAIRMAN SANSBURY: Excuse me. Let's go back to 3.1 4.6.1. MR. SIMON IK: Right. That's what I just did. CHAIRMAN SANSBURY: Okay. That's one, but that's not something that's been asked by the hotels. That's something that's been recommended by staff; am I correct? MR. SIMONIK: No, the hotels -- I'm confused today because I think the hotels just asked this morning to have language that says they're allowed to rake above mean high water during the sea turtle nesting season. There is no language to that effect, unless I'm totally confused, in this document. That's a whole new language that was proposed this morning. MS. BURGESON: I understood that they were possibly confused, that they weren't able to do that, but I didn't specifically hear that they wanted an exception to be able to do it. CHAIRMAN SANSBURY: Nor did I. MS. BURGESON: So I think that we're keeping the language as it is. MR. SIMONIK: Well, I don't want them to answer it, but the question may be, are they already doing it? And did they do it this morning, the second day of sea turtle nesting season? If they need to do that, let's get it in language and work it out. CHAIRMAN SANSBURY: Okay. Let's stick with the copy. MR. SIMONIK: I'm not asking the question. CHAIRMAN SANSBURY: Let's stick with the copy here. MR. SIMONIK: Okay. The penalties, 3.14.7, we're talking about outside of sea turtle nesting season. I've already -- the Page 78 May 2, 2001 Conservancy has spoken previously to the Ritz about issues dealing with penalties and fines outside of the sea turtle nesting season. We care about sea turtle nesting season. I'm not going to comment on whether or not there should be language proposed, deleted, amount of fines, whatever, outside of sea turtle nesting season. That's not our mission. Our mission is to protect the sea turtles, 3.14.7.2, during sea turtle nesting season. We are not supportive of the language you see that was changed about three weeks ago from the first violation being 70 days of suspension of the beach raking or mechanical cleaning activity for the first violation. That's what we saw two months ago when we sat at the table. In the last couple of weeks, we've had new language changed here, and I think Barbara spoke to that. Staff now would like to see that changed back to 70 days for the first violation based on Bill Lorenz's comments and based on Maura Kraus's comments. We agree. We've always agreed on the 70 days on the first violation. It hasn't changed in the last couple of weeks. All right. 3.14.8, it might have been an oversight, but I think about 1 p.m. Yesterday I called the county and said, "Where are the penalties -- where are the penalty sections for ATVs on the beach?" 3.14.8 was not there until 4 p.m. Yesterday. There were no penalties in this language last month for ATVs on the beach. I think it was an oversight, but it might have stayed there until this morning had I not caught it. Now we have penalties, so I'm looking at the penalties. All right. We have another new addition this morning, "propose to delete," but that's outside sea turtle nesting season, so I'm not going to comment on that on 8.1. 8.2, once again, that's the 70- day first violation. Now, you see, I've confused myself. It's either a 70-day first violation, or if the language stays that there's a suspension of the vehicle beach permit, we object to it only be Page 79 May 2, 2001 a suspension of the beach permit. The Conservancy wants stronger language in the penalties to be the beach-event permit suspended, not just the ATV. I'm talking about violations of the ATV-on-the-beach permit to taking and suspending the beach- event permit on the third violation. CHAIRMAN SANSBURY: Okay. MR. SIMONIK: On coastal construction setback -- CHAIRMAN SANSBURY: Why don't we do this. We're going to -- let's get through 14. We're going to get to the other ones. Let's concentrate on 14 right now. MR. SIMONIK: Oh, that's all we've been doing all morning? CHAIRMAN SANSBURY: Yeah, unfortunately. MR. SIMONIK: Well, I disagree, but okay, Mr. Chairman. CHAIRMAN SANSBURY: Okay. Let's get back to it. We haven't heard anybody else's comments on the other ones. We ought to get through 14 first. Okay? Okay. What is the pleasure of the council? Let's take -- yes, ma'am. Okay. I'm sorry. Come on in. I'm sorry. Come right up. Come right up on 14. I apologize. I wasn't paying attention. MS. KOELSCH: No. I shouldn't have been standing over there lingering in the wings. Hi there. My name is Jessica Koelsch, and I am with the Center for Marine Conservation. haven't appeared before you previously, so I'm just going to take 30 seconds and let you know that the Center for Marine Conservation, CMC, we're a nonprofit marine advocacy organization. We support science-based conservation of our oceans and the marine life that supports us. We're based in Washington, D.C., but we have a regional office in St. Petersburg, and that's where I drove down from this morning to speak to you today. We've been involved in the discussions with staff, the hotels, Page 80 May 2, 2001 concessionaires, and environmental groups since February on these proposed amendments. I thought that a lot of the issues had been resolved at these meetings, but based on the version of the amendments that I received yesterday afternoon and the discussion this morning, I'm sorry to say a lot of them apparently haven't been worked out. One general issue that I want to get out of the way early relates to the underlying issue of the legality of operating vehicles on the beach. The Caribbean Conservation Association based in Gainesville, they also expressed the same opinion. Earth Justice Legal Council, the Florida Fish & Wildlife Conservation Commission Bureau of Protected Species Management -- we all have questions regarding the legality. There's debate on whether this amendment violates state law Section 161.58 which prohibits beach driving except for that allowed prior to 1989. I'm just going to read just a little short bit. (As read): "After 1989 no additional beach driving can occur except that required by maintenance, emergency vehicles, and environmental work." Although beach raking admittedly causes a lot more impact to the beach than operating these ATVs, there is -- it is, in fact, legal, and there is some debate over whether an extension of the county ordinance would violate that state law. Now, we have been in touch with the state's DEP attorney to inquire as to their interpretation of the law, and these conversations are ongoing. The Earth Justice Legal Council are still discussing with them. But our understanding is that they felt that the degree of use of the ATVs on the beach would not constitute vehicular traffic, so it does, therefore, not violate state law. So it's kind of a gray area, and it's kind of something that we're continuing to explore. I'm not prepared to challenge the state law at this point, but I just want to let you know that we Page 81 May 2, 2001 are still investigating it -- well, I'll get to that in a minute. When I received the latest round of amendments last week, the Center for Marine Conservation felt that they were reasonable and provided the necessary safeguards for nesting sea turtles. We received this latest proposal last night. We didn't have the opportunity to prepare formal written comments but, you know, we are concerned about them. I wanted to commend the staff on the round of amendments that I received last week. I want to commend the staff for adding the strict penalties, establishing the ingress/egress corridor, limiting the degree of traffic, safeguarding the nests during the beach events -- which I know we're not talking about yet -- requiring the remove of gear and impediments to nesting turtles on the beach. But, in addition, we would also like to see training for the ATV operators. As we heard from the Ritz-Carlton, human error does occur. I think that if we are going to allow operation of these ATVs on the beach during nesting season there needs to be some additional training, some sort of safeguard, maybe a list of names of the approved drivers of the ATVs, and also make sure that the county does provide the necessary resources for additional enforcement and monitoring. Let's see, one of the issues that we hear a lot at these working group meetings was, "What's the harm of driving on the beach?" And I just want to mention that, briefly, one is that it sets a precedence. It potentially violates or at the very least stretches the state law against beach driving. And if you start to allow just these few concessionaires, few hotels, to operate their ATVs, what's to prevent other ATV operators, other smaller hotels to begin operating them as well, therefore increasing the level of traffic. Then maybe you'll start to push the envelope of that state ordinance again. Page 82 May 2, 2001 Also, as staff mentioned, the major harm is if beach activities such as equipment left on the beach impedes sea turtle nesting activities or hatchlings or raking, ATV driving, equipment set up, that obliterates and obscures turtle tracks and prevents the identification and protections of the nest. So I just want to touch on that. They keep asking, "What's the harm? What's the harm?" Well, that's two of the causes of harm. In this most recent version of the amendment, we found several provisions that unacceptably increase the risk to nesting turtles, and I'm going to go through those comments now. On the very first page, there was that note they proposed to delete the note about the environmental community opposing the use of vehicles on the beach, and I wasn't really sure why they wanted to have that removed. I guess there are -- different environmental organizations have different levels of comfort or discomfort with the use of vehicles, and I would just propose maybe leaving that in but amending it to say something to the effect of "the environmental community has concerns with use of vehicles on the beach during sea turtle nesting season." Strike the rest of that sentence and "voice concerns of disbelief" and maybe add something about "and seek to minimize the risk to the sea turtle population." I think that it is important to note that there are a lot of groups that have concerns with these amendments, but they need to be maybe generalized a little bit, and they also need to be cleared with the different environmental groups cited before it's inserted. Going through 3.14.3.4.7, the same thing again, deleting the ingress/egress corridor and allowing the driving. Deleting the restriction to using the vehicles behind the mean high water, think it's fine to change that to the last high tide line; that's great. Page 83 May 2, 2001 I did have one question with the hotels wanting to delete the language. I was wondering what they do now. I don't know if can ask that or not. But they're making it sound as though it's a hardship to not be using the ingress/egress corridors and not be driving their vehicles only below mean tide water. I mean, they're not supposed to be using any vehicles on the beach at all during sea turtle nesting season, so I don't understand why allowing some limited driving is going to be a problem if technically they're not supposed to be doing any driving now. Is there anybody that can speak to that? Can I ask them that? MR. GRABINSKI: I guess the -- Matt Grabinski for the record -- simplest answer is when there's no additional harm, why not? When there's an easier way to operate your business, when there's a more efficient way to operate your business and it's not compacting the sand and increasing a risk, why not? I would like to address the issue that you brought up with respect to Chapter 161 because you did raise it at the first meeting. Subsequent to that issue being raised, I again contacted Patrick Krechowski -- he's an attorney with the office of general counsel with the DEP in Tallahassee -- and again obtained a letter from him. If any of you would like a copy, would be happy to give you a copy of the letter. He stated that the amendments that we were proposing have limited use, values. ATVs at commercial beachfront property sites was not prohibited and was not intended to be prohibited by Florida Statutes Chapter 161 which pertains primarily to coastal construction, and it has one section addressing the prohibition of vehicular traffic. And if you research that section of the statute in West Law, you'll find that all of the cases that have even dealt with those sections arise again out of the east coast. It was our position all along that that was addressing -- you Page 84 May 2, 2001 know, allowing access to automobiles to the beach, the Daytona Beach type of scenario -- the DEP confirmed our initial impression of that, and so we feel that is a moot point. CHAIRMAN SANBURY: Okay. Let's address this. We're not addressing today what the present operation of the Ritz is. We're addressing this particular proposal. So I would like to continue addressing this. MS. KOELSCH: Is that all right? Did you want to add -- that's fine. Okay. Well, continuing along those lines -- well, I don't know if I should mention this or not. I was making little notes through various presentations. When Matt mentioned or was talking about making a few trips a day across the beach to move the towels versus using several trips with a handcart or dolly or a person -- heaven forbid, a person walking back and forth across the beach, and I was visualizing a field with fresh snow over it, and I was trying to imagine a person taking the shortest distance across this field a couple of times and how many tracks would be made versus even one trip of a four-wheel wide-tired vehicle moving across it. I was just thinking about the surface area of sand or snow that would be impacted. I didn't think it was a good argument to make that ATVs would impact less sand than a person making several trips, but regardless -- moving onto 3.14.3.6.1, "Use of the vehicle shall be limited to one-time set up." Well, I have a couple problems with that proposed to be deleted. One is it just adds to -- if you're making multiple trips per day, it adds to the public perception that beach driving, driving of ATVs on the beach, is okay. You know, if you're making one trip a day, I don't think that the public is going to be seeing a lot of it. The more driving you get, the more precedence it's going to be setting. Page 85 May 2, 2001 Also, what's to stop them from making 20 trips a day? What's to stop them from -- instead of carrying the towels back and forth to the consession area, what's to stop them from bringing towels to individual guests sitting on the beach? It's just sets a precedence. Also, the whole idea of using the ingress/egress corridor I thought was to keep the ATVs away from areas where most of the sea turtle nests would be occurring to force them to operate down at the high tide line where there would be less chance of interacting with the turtle nests. Again, as we heard, human error occurs. I spoke with someone from another county north of here where a county natural resources staff actually operating an ATV legally on the beach ran over a marked sea turtle nest. It was human error. It was an accident. I just think the more driving you have on the beach in the vicinity of nests, marked nests even, it increases the likelihood of error. We know human error occurs. So I would request that council leave in those two sections where -- leave in the proposed to delete language. As far as the penalty section, 3.14.7, for driving outside of the nesting turtle season, again, I'm not so worried about that. I think there should be some sort of stepwise penalties, but I don't know if they need to be as strict. I'll leave that up to the other folks to hash out. As far as the violations during the sea turtle nesting season, mean, the harm in these amendments is if -- it stems from if violations occur. And I think the weaker the penalties, then you have an increased chance for noncompliance. So I think that leniency in terms of the first violation is reasonable, but I do support having strict penalties for subsequent violations and that apply to 3.14.7 as well as 3.14.8. CHAIRMAN SANSBURY: Thank you very much. Page 86 May 2, 2001 MS. KOELSCH: Thank you. MR. GAL: I've got a question. CHAIRMAN SANBURY: Yes, sir. MR. GAL: Does your group have a position as to whether ATVs should be on the beach at all during sea turtle nesting season? MS. KOELSCH: I don't think we have an official position. I think it would be correct to say we're concerned about it. It's not so much because of the compaction factor, but it's as much just accidents occurring, running over nests, and things of that nature. Also, it just sets a precedence for driving on the beach. Again, going back to the state statute I know that -- I understand that the state attorney's office has indicated that they don't feel that this law violates the -- or this ordinance would violate the state statutes but -- CHAIRMAN SANBURY: Okay. We're not here to determine the state statutes today. Okay? MS. KOELSCH: Okay. Exactly. Anyhow -- thank you. CHAIRMAN SANBURY: Okay. It's twelve o'clock. We still have a ways to go here. What's the pleasure of council of what you want to do? I know a lot of staff is going to have to be leaving. Barb, why don't you tell us what's happening so we can determine what we need to do. MS. MURRAY: Susan Murray for the record. We have a DSAC meeting this afternoon to discuss all the LDC amendments to this as well, and then this evening at 5:05 we have CCPC as well. So everybody's going to be going through this three times today. We need to take off at one o'clock, as I mentioned to you, Mr. Chairman, and we also still have the hearing examiner information to present to you as well, which I'm sure you're going to have a lot of questions about. What I suggest is that you-all go Page 87 May 2, 2001 ahead and have your brief discussion and make a recommendation that we can forward to the board, and then we go on to the hearing examiner information. Close your public hearing. Thanks. CHAIRMAN SANSBURY: Okay. Does that sound good to everybody on the board here? On 3.14 -- MR. SOLING: I was going to offer a motion, but I didn't fully comprehend. Do you want a decision from us now, or do you want us to hold off a decision? MS. BURGESON: Now. This is the last opportunity you're going to have to forward your recommendation, so now if you could, please. CHAIRMAN SANSBURY: Okay. The suggestion is that we just take these items and look at them individually, where the proposed changes have been made, and then -- and I think -- do you have other comments on that, sir? Very quickly. Very quickly if you could, please. MR. STAROS: This will be very brief. There was just one comment, Michael, that you made on the end. I appreciated a lot of the things that you did say. On that 3.14.8.2, the absolutely very last portion of the vehicle-on-the-beach permit, if I heard you correctly, Michael, you wanted to tie in a violation of the ATV to the beach-event permit, and I don't know if I heard that correctly. But if that's what I heard, I don't think that that's related. In other words, if there is a violation of using the vehicle, what are we doing penalizing another thing that already has its own permitting process, etc.? It would be like saying take away your liquor license or take away your business license, etc. I don't know if I heard that right, Michael. I was confused by your final comment. That's all. CHAIRMAN SANSBURY: All right. MR. SIMONIK: If I can respond to that. Page 88 May 2, 2001 CHAIRMAN SANSBURY: I think we understood what your comment was. MS. MURRAY: Is the public hearing closed? Okay. THE COURT REPORTER: Your name, please. CHAIRMAN SANBURY: For the record -- MS. MURRAY: I'm sorry. Susan Murray, again, for the record. You will be meeting on June 6th. I'm sorry I wasn't aware of that. So at that time you could have the opportunity if you would like to have further discussion or make your vote at that point, and we would still have the opportunity to bring your recommendation forward to the board which is meeting that evening at 5:05. However, consider that your recommendation would not be able to be forwarded to the CCPC because the last meeting in front of them is May 16th. CHAIRMAN SANSBURY: What's your pleasure? The two alternatives we have -- we have about three things to talk about. We have to determine real quickly whether we move forward on this or table it until the next meeting, and that is the beach issue. We have the hearing examiner's report. We have the annual report and a couple other little things that we have to face today. What is your pleasure? Yes, sir. MR. SOLING: I would like to offer a motion without going through the entire or every change that's been offered. My motion states that we are all here because we're concerned with the sea turtles. The most -- the best way to protect the sea turtle is to close the beach off completely to all occupation or use. That would be the best for sea turtles. But recognizing that impossible and recognizing that businesses have to go on, I think Mr. Ed Staros's comments were very reasonable and practical that in some way our staff -- not to the extent that's been offered Page 89 May 2, 2001 -- should work out a way to protect the sea turtles but allow business to function somewhat reasonably within that parameter. That's my motion to leave it to the staff to finalize. CHAIRMAN SANSBURY: Okay. I think at this point because we're getting ready to make a decision on this, I think I'm going to turn the chair over to Mr. Coe and kind of listen. MR. COE: Let me hold the bag, is that what you're saying? CHAIRMAN SANSBURY: You're holding the bag. MR. COE: I'm not real clear on what your motion was. Your motion was to just table it and let the staff work it out? MR. SOLING: In essence, yes, let the staff work it out, but not to the extent with all the deletions that are currently -- MR. COE: Okay. Discussion on that? MR. HILL: I disagree totally. I've been quiet all day, somewhat unusual. I've been very disappointed -- MR. WHITE: Just as a point of order, Mr. Chairman, do you have a second for the motion, because if you don't, you need not have a discussion. MR. COE: All right. Do I have a second? Okay. MR. CARLSON: I'll second it. MR. COE: Thank you. All for? MS. LYNNE: Don't we get to discuss? Now we get to discuss it. MR. COE: Okay. Discuss. MR. HILL: I'm totally against this motion to handle it in this fashion and will put a different motion on the table later after the action is taken here, and I'll reserve my comments until that time. But at this point I do not think it's proper that we put the entire decision back on staff. I think the decision has to be ours. I don't think we can do it today. And with some additional comments in a few minutes, that's all I'm going to say right now. MR. COE: Any other comments? Page 90 May 2, 2001 MR. CARLSON: My comment is that this just seems to be way too complicated for this issue here. I mean, I just can't believe the amount of discussion that's gone on. It's not like we've just discovered sea turtles on the beach in Naples, and it's not like we've never had hotels on the beach in Naples. Everybody in this room has expressed the same objective, which is to save the sea turtles. And with all the expertise of staff, I just -- I don't understand. It seems to me like a tempest in a teapot. I mean, all the horrible things that are happening in this county that we deal with which result in, you know, real environmental, you know, horrible problems and affect our future -- you know, I don't want us to lose a single sea turtle, but you know, putting in context, I just can't believe that this is this big of a problem. I just can't understand why the hotel industry and the staff and the Conservancy can't get together and work this out. You know, I'm very upset that these changes came at the last minute, and I don't feel comfortable voting on this. You know, if someone can come up with a better idea than turning this back to staff, you know, great, but I haven't heard one yet. MR. COE: Any other comments? MS. LYNNE: Am I allowed to ask the question at this point? MR. COE: Sure. MS. LYNNE: The changes that the Conservancy is objecting just were made yesterday; is that true? MR. LORENZ: As I understand it, the changes that we're talking about for the most part were -- what's proposed to be changed is what Matt Grabinski requested. Those were his changes to be made. Staff is not recommending those to be made as changes. MR. WHITE: I think what Mr. Lorenz is saying is, where you Page 91 May 2, 2001 read the words "proposed to be deleted" or words of similar effect, those were proposed to be deleted by the hoteliers, not by staff. But I do believe, also, to be clear about this that Mr. Simonik had said that there were additional changes to those provisions, the result of last Friday's meeting, that he objected to as well. MS. LYNNE: Whose decision was it to include those proposed changes, the ones proposed by the Ritz incorporated into the proposal we got today? MS. MURRAY: Susan Murray for the record again. Forgive me, I sort of seem to be hearing the same issue come up over and over again. I think it's important to understand that this was a board-directed process between all entities involved. What staff attempted to do is bring forward where staff would support changes versus where the hotel industry would support changes in one document. Perhaps that wasn't the best course of action to take, but that is what's before you now. You know, perhaps now you might want to consider if you are going to make a decision today going through the documents and highlighting those areas where you might agree with staff or disagree with staff and agree with staff or disagree with the hotel industry. That's just a suggestion. What you have before you today is a culmination of efforts to this point. If you would like to direct staff to go back and work further, it sounds like we were in agreement with some of the hotel industry stipulations that they brought forth this morning. Ultimately you will likely end up with a document where staff disagrees with some of the proposals that the hotel industry is coming forward with. So I don't think you're going to end up with an agreement, I believe, based on all the meetings we've had so far. But just to present that to you for your consideration, this is a Page 92 May 2, 2001 board-directed process, so this is why you're seeing both sides of the story here. MR. HILL: Mr. Chairman -- MR. COE: Yeah. MR. HILL: Essentially I'd like to move to table this until the June meeting with the following caveats: One, request staff to present a clean document to this counsel with their recommendations which essentially we have before us today modified with some of the industry suggestions. Two, in some manner allow the hotel industry, the Conservancy, Audubon, and any other interested party to submit to this council through staff by the 20th of May their recommendations as far as the staff recommendations. And this council -- three -- make a decision at the June meeting which, as I understand, gives us a very small window to present to the BCC -- although we will miss the Planning Commission -- and that we act on this officially at the June meeting subject to those caveats. MR. COE: Well, we've still got a motion on the table. MR. SOLING: Mr. Chairman -- MR. COE: We've still got a motion on the table down here that's been seconded. MR. SOLING: I will withdraw my motion if my second will. MR. CARLSON: I'll withdraw it. MR. SOLING: And I will second the motion to -- MR. COE: All right. Withdrawn. Do I have a second on his motion? MS. SANTORO: Second. MR. COE: I have a second over here. Any discussion? MR. WHITE: Yes, just one question, Acting Chairman. With regard to the text or opinion that would come back based upon what staffs revised proposal would be, are you asking to have Page 93 May 2, 2001 those entities who also want to comment to comment generally or with regard to specifics as to what the text of the code should be? MR. HILL: Specifics. MR. WHITE: Thank you. MR. COE: Any other discussion? MR. HILL: Is it clear what I'm asking? MR. COE: Yeah, it's clear. I've got a couple of comments that I've jotted down here. It's just my own feelings. I don't think the document was clear enough, and it was obvious because it came up several times during our discussion. The document wasn't clear enough that there was no beach raking period permitted during the turtle season from the 1st of May to the end of October. That needs to be clarified. MR. HILL: That's not germane to the motion, Mr. Chairman. MR. COE: Pardon me? MR. HILL: I don't know that's germane to the motion. MR. COE: Well, what is germane, though, is we need to give them some policy as to what our thoughts are. We've listened to three hours' worth of testimony here. They've listened to -- that's this time, not including the last couple of hours that we had before. It's gone into numerous workshop hours where the county can't get it hammered out either. Now it's come before us, and what we're doing now, it appears to me, is not making any decision at all. We could at least discuss what our recommendations are to the staff so we can send them off with an idea. They've already beat this thing until it's half dead. As a matter of fact, it is dead. This is roadkill we're looking at this far. And to not give the staff some direction, I think, is just pushing off a decision. I realize we've sat here for a long time listening to Page 94 May 2, 2001 all this testimony. I would be more apt to feel like going to a special meeting if we have to, as we've done in the past, in order to finish this thing and get it hammered out. We can do it. To bounce it back to the staff, they're just going to have to go right around in circles again with the hotel people again, and there's no need for that. So that's why I would be against the motion. MR. CARLSON: Unless this change that was presented to us today was the result of the hoteliers reacting to something they saw very late in the process, and there's still room for everybody to get together and hammer out these -- get an exchange going to solve some of these problems that may have happened very quickly in the last couples of days. MR. COE: The last couple of hours almost, yeah. I prefer to leave it with no more comments. We're tired up here. I want to talk to the board, and if they have questions of you, that's fine. Any other comments? Okay. I've got a second to go ahead and send it back to staff and let them work on it. Let's take a vote. All for? MR. HILL: Whoa, whoa, whoa, whoa, whoa. No. MR. COE: What? MR. HILL: The motion -- the staff has already given us their recommendations. We have in this document -- taking out the deleted proposals, we have staffs document; am I correct? MR. LORENZ: Yes. MR. HILL: Up to what they may judge on the basis of what they heard today. We already have that. All I'm saying is that I would like to have this document cleaned up, taking out all of those proposal for deletions, and given to us a clean staff recommendation on these items. MR. WHITE: My further understanding, Mr. Hill, was that we would be entitled, also, to incorporate those things that staff Page 95 May 2, 2001 would support and make a recommendation or proposal on that brought forward by the hotel industry today. MR. HILL: That's right. MR. WHITE: And were either agreed to or not depending upon which of the environmental groups you want to -- MR. HILL: That's correct -- MR. WHITE: Okay. MR. HILL: -- if they wanted to change anything. MR. WHITE: Thank you. MR. HILL: But I want to give the Conservancy, the hotel industry, and any other environmental group for any other entity an opportunity to address this and bring it to us by -- what did I say -- May 20th -- MR. SOLING: May 25th. MR. WHITE: The statement was May 20th. MR. HILL: -- comments in a document that will be distributed along with the staff report to us in a timely fashion following the 20th, and that this board be prepared at the June meeting to act. MR. WHITE: Although it's not part of the motion, Mr. Chairman, there has been an inquiry from hotel representatives with regard to how long it would take staff to prepare its position so they could respond to it by the 20th. And certainly the commitment I believe we would be able to keep would be a week from today we would be able to publish that and have it available. MR. COE: Does that work for you-all? MS. LYNNE: I agree with Mr. Coe in that we have a responsibility to make some decisions about the proposal by the planning service staff, and by sending it back again and again we're just prolonging this. Somebody referred to it as beating a Page 96 May 2, 2001 dead horse. I don't think that it's going to be -- I don't see what's going to happen to improve the situation after another month, although I have no real objections to discussing it another time except the amount of time we spend doing it. MR. GAL: I have a comment. We did beat this dead. I do object to discussing it again. I think we've heard most of the evidence that the hotels have. The Conservancy presented their testimony. I know he said he was not -- he was shanghai'd a little bit and was not prepared on every detail, but the record is clear what's been handed to us. We should have at this time the ability to vote on this ordinance up or down on each of the changes and make our own changes. I don't see the use of sending it back to staff or to get more comments. I think we pretty much know what they are at this point. MR. HILL: I guess in response to that -- and I understand what you're saying, but I believe following the comments of the Conservancy that our feet may be held to the fire on the basis of this procedure as it has occurred and that we, in essence -- and I'm not pointing fingers, but we have essentially disallowed some of the public groups or the private groups to address this situation. And I think it would behoove us to give that window to the Conservancy and the hotel people and anybody else out there that might not have been advised of this document and the proposed changes at this time. I think in our interest to serve the public we need to do that. At the expense of having another meeting and another discussion, I think it's critical that we do that. MR. GAL: We tabled the matter the last time the Conservancy was here. They made good points. I understand his points. But it's been another month, and I think the next time he deals with the hotels there's a certain lack of trust now in their Page 97 May 2, 2001 negotiations probably. But, you know, a decision has got to be made at some point. Delaying this another month is not going to be useful, you know, unless they make written comments and submit it to us ahead of time and we vote on it and there are no public comments at the next meeting. MR. HILL: That's the motion. MS. LYNNE: That's part of it. MR. GAL: It's just a vote; no public comments. I mean, we get -- MR. HILL: May 20th. Bill Hill. We are to be in receipt of it from the staff and all interested parties, and we will come together in the June meeting prepared to vote. MR. WHITE: Mr. Chairman, just as a point of information, I have been advised that the Conservancy and the hoteliers agree with the form of the motion, if that's at all helpful in your deliberations. MS. LYNNE: I'm sorry. I couldn't hear you. MR. WHITE: I've indicated that both the Conservancy and the hotel industry agreed with the proposed motion that's on the table. They have no objection to the motion. MS. SANTORO: I would like to say something. MR. COE: Sure. MS. SANTORO: I would not be prepared to vote. I have spent three hours last night going through this grammatically, detail by detail. I feel very badly for the Conservancy, but he's got to realize that we're in the same boat. We get this in the mail two days prior to the meeting, and it's all changed. And I had just spent three hours -- I mean, we just got the revised today. MS. LYNNE: Uh-huh. MS. SANTORO: I am not prepared to put my name and approval -- it's probably conceptually fine, but I want the time to Page 98 May 2, 2001 go through it. I want the time for the environmental groups to look at it and get their information to me so we come out with the best documents. MR. COE: Any other comments? MR. GAL: Well, I think our votes could be a denial of the whole ordinance. MS. SANTORO: You're just voting to table it. MR. COE: What you're voting for is to table it, get the staff and hotel people and everybody back together and let them come up with a smooth document; correct? And then they're going to give us their written input by the 20th of May. MS. LYNNE: What I would like to see is -- being able to get all the information from the public or whoever wants to give it to us, and then having a session where we get to actually discuss what's going on. Does that make sense, where we actually hash this out together as a board about what's the best thing here? MR. COE: Okay. MS. LYNNE: That's -- I just wanted -- MR. COE: But we've already had the public input and the staff input. MS. LYNNE: Right. MR. COE: What is remaining is a smooth document and for them to work out some details and then bring it back to us in writing. And during our June meeting we will not have any more discussion; we'll just vote on it. MS. LYNNE: But we can discuss it? MR. COE: Yes. Of course, we're going to discuss it. MS. LYNNE: Okay. MR. HILL: My intent -- and maybe I wasn't clear enough -- was to cut off, essentially, public input, verbal public input at a meeting, rely on staff's clean document without the hotels deletion suggestions and anything else that went into that Page 99 May 2, 2001 document, give the opportunity for the Conservancy and any other interested private group to comment on this within the window of the 20th of May for us to receive those documents, written documents, and at our June meeting in a closed public hearing discuss those documents and vote. MR. COE: All right. Is everyone prepared to vote, or is there any other comments? MR. HILL: I will say part of the reason for that is the same thing that Allie said. I'm not prepared today to vote on this. MR. COE: All for the motion say aye. (A chorus of ayes.) MR. COE: All against? MR. GAL: No. THE COURT REPORTER: Just Mr. Gal said no? He's the only one? MR. GAL: I'm against, yes. CHAIRMAN SANSBURY: And I abstained. MR. COE: One abstention. All right. Are you back as chairman again? CHAIRMAN SANSBURY: I'm back again. Okay. We only have about a half hour. Do we talk about the hearing examiner program? Is that what we're going to do next? MR. WHITE: Mr. Chairman, if I understand where we are in this process, you had indicated earlier that these discussions applied to 3.14 only in that we hadn't talked about 3.13 or 2.6. If that's still true or not -- CHAIRMAN SANSBURY: I think it should include all three. MR. WHITE: Thank you. I just wanted it on the record. CHAIRMAN SANSBURY: Concur. MR. WHITE: Concur. Excuse me. Sorry to interrupt. CHAIRMAN SANSBURY: Okay. Moving right along. MR. REISCHL: Good afternoon, council members, Mr. Page 100 May 2, 2001 Chairman. The hearing examiner -- THE COURT REPORTER: Your name for the record. CHAIRMAN SANSBURY: For the record -- MR. REISCHL: For the record, Fred Reischl, planning services. The hearing examiner proposal, as you know, was directed by the Board of County Commissioners last year. There are certain benefits that are proposed to be derived from this. It would allow the Board of County Commissioners, the Planning Commission, and the Environment Advisory Council to concentrate on policy issues -- basically what you're doing today -- land development, code amendments, and growth management plan amendments. It would regulate ex parte communication, the purpose of which would be to create a more level playing field as opposed to the way the situation is today where professional lobbyists, whether in reality or perception, have greater access to commissioners or yourselves. And another maybe is that it may reduce the likelihood of appeals of the final decision. The fiscal impact is approximately $212,000 a year with an additional start-up of $42,000. In front of you is a one-sheet table, and also on the visualizer is a summary of the major changes. The ones that would affect the EAC for the most part would be the special treatment overlay which, except for one recurring case which you've seen over the last year and a half -- you rarely see a special treatment go as far as the Board of County Commissioners. The next one would be the rezones, both the Rezone II commercial or a residential district or a Rezone II PUD. In that case the hearing examiner would be the first public hearing followed by approval by the -- or approval hearing -- approval or denial by the Board of County Commissioners. The conditional-use process, again, you don't hear as many of Page 101 May 2, 2001 those, but the EAC is involved with several conditional uses when there are environmental issues involved, particulary excavations. And those also would be heard by the hearing examiner and then going to the Board of County Commissioners. Environmental impact statements, when they are not connected with another petition -- most of the environmental impact statements that you see are connected to another petition with the PUD or with a rezone or the conditional use. There are rare occasions when the environmental impact statement is required on a stand-alone basis with an administrative process like a site development plan. In that case, the proposal is for that to go to the hearing examiner who would be the final decision maker on that. As you can see, Patrick White is here for any legal questions. I'll try to answer any of the policy directions. CHAIRMAN SANSBURY: Questions? MS. SANTORO: Can I ask a question? CHAIRMAN SANSBURY: Yes, ma'am. MS. SANTOR: I'm not sure why this is on the agenda. I didn't know if this is for information or whether we have a vote to decide whether there's a hearing examiner or what. I guess my -- again, we get these booklets. It's not on the agenda. We get these things. And if it's just informational then perhaps we can table it to another meeting time. MR. WHITE: If I may deal with that one, this is part and parcel of the proposed Land Development Code amendments that appear as Agenda Item V (A), old business, for today's agenda. apologize if you did not receive those until this morning. That was an oversight on our part. What we would hope you might be able to do is take a look at those things. If you're going to meet again on the 6th, certainly we have no objection to you bringing back a recommendation at Page 102 May 2, 2001 that point in time, but it is provided because one of the functions that the council does perform is make recommendations with respect to Land Development Code amendments that are proposed. Although these are a block of proposals that are traveling as part of that package, they are in some sense separate because they are anticipated to have a separate effective date from the balance of the LDC amendments that you're otherwise being asked to consider today. MS. SANTORO: Has not the Board of County Commissioners already approved having a hearing examiner? MR. WHITE: They've approved the steps necessary to have a special act amended which, even as recently as today may be heard by the Senate, certainly this week. We required that legislative amendment in order to authorize the creation of a hearing examiner program. These are the provisions that would create that program because it's to be created by ordinance pursuant to the special-act amendments we're looking to get from the legislature this week. MS. SANTORO: We're reviewing it for recommendation? MR. WHITE: Yes, ma'am. MS. SANTORO: Might I suggest we possibly table this to give us a chance to read it. CHAIRMAN SANSBURY: What is the time frame for our recommendation to go back to the BOCC? MR. REISCHL: It's the same as the environmental amendments, June. CHAIRMAN SANSBURY: So we can table it, but it would be -- it will give us a full plate at next month's meeting. What's the pleasure? MR. HILL: Two quick questions, if you permit me, Mr. Chairman. The BAC is essentially out totally from this matrix of Page 103 May 2, 2001 responsibility, and I'm not disagreeing necessarily with that. The program document seems to include informal legislation for the Planning Commission, BCA, but nothing in there for us. MR. WHITE: I'm not following you. MR. REISCHL: I think I can answer that. Those are required by state statute. The planning commission, board of zoning appeals -- MR. WHITE: Are you saying that the draft text that you have available does not make reference to any changes pertaining to the Environmental Advisory Council? MR. HILL: No. I guess I'm saying that this matrix takes away all of these functions from the EAC. MR. WHITE: I believe that's essentially -- MR. HILL: We're no longer involved with these petitions and MR. WHITE: With cite-specific determinations. MR. HILL: Right. Which puts us, I guess, in a policy mode. MR. WHITE: Correct. MR. COE: A much better situation, I agree. MR. HILL: But then I look at this document, and there's nothing in here that defines our role, but it does enable the planning commission, the BCA -- MR. WHITE: I did understand your comment correctly. Let me tell you, I don't know which draft you have. You may have -- if you look on the second line following my name, there's a parenthetical, and I think yours may say four twenty-three, the very first page. CHAIRMAN SANSBURY: Four twenty-three, correct. MR. WHITE: It was an oversight on my part not to include the provisions in what's known as Division 5.13 which pertains to the Environmental Advisory Council, and in the four-thirty draft that is available. We do have those for you if you'd like them. Page 104 May 2, 2001 think -- I don't have a copy with me. Essentially what I did in 5.13 was adjust accordingly the changes that are reflected in that table in 5.13. MR. HILL: I guess the crux of my question is, if I'm going to be asked to make a comment on this, I would like to have more official information on what our role is in the new scenario, and that's not here. MR. WHITE: The only changes that would occur are those that would implement the specific changes that you see all throughout the rest of the code. 5.13, if you will, is kind of the big picture of the EAC's function and role and all of the administrative aspects of it. The part that deals specifically with the powers and duties is contracted to reflect each of those specific changes that appear elsewhere in the code as evidenced by the table you have. And that's what I put in -- MR. HILL: That will be included in the updated verion of this? MR. WHITE: Yes. MR. HILL: That will be included in it? MR. WHITE: Yes. What you will see in your agenda packets -- and if we can get it to you, hopefully, maybe even by the 20th to kind of go with the rest of the information you'll have. Given the larger quantity, I'll commit to getting it to you by the 20th as well so that you'll have more time than normal to review it. What you'll have by then would be essentially a third draft based upon further discussions staff and other individuals are going to have early next week. We recognize that, you know, it's to some degree a work in process, but the rough contours of it are pretty much what you see in the one-page table. CHAIRMAN SANSBURY: Okay. Any other comments? What I'm hearing is what we're going to be doing is getting a second draft. We're going to be looking at that draft. We're going to be Page 105 May 2, 2001 agendaing our discussion for the June meeting; is that correct? Okay. All right. Do you want to take a break for just a second? Are you all right? THE COURT REPORTER: Yes. CHAIRMAN SANSBURY: Okay. We have a couple of things. Can we jump to new business while you guys are still here because I have a quick question for you. Miss Santoro has asked that we agenda a request she has to attend -- could you just tell us what it is? MS. SANTORO: The 2001 Florida Land Trust Conference. And I would like to -- I wanted to go to the Saturday program. A lot of it is on preserving land, both working with private land owners and other organizations. CHAIRMAN SANSBURY: Do we have authority under what we're doing to do such things? I don't know. MS. MURRAY: I don't believe you do. Patrick, do you know the answer to that? THE COURT REPORTER: Your name, please. MS. MURRAY: Susan Murray for the record. You don't have a budget, do you? CHAIRMAN SANSBURY: I don't think so. MS. MURRAY: I don't believe so. MR. COE: Not one that includes a salary. MR. HILL: Put that on the agenda for the meeting. CHAIRMAN SANSBURY: I think the hearing will be over by then. MR. COE: The hearing will go a lot quicker if they pay us $100 an hour. MR. LORENZ: Bill Lorenz -- for the record, Bill Lorenz. I'm not exactly sure how this is handled, but I have seen it handled in the past on other advisory boards that I was just looking from Page 106 May 2, 2001 the outside on. Typically they would go to the Board of County Commissioners through our consent agenda item that it's been requested that so-and-so attend whatever conference it is and request the board to authorize that expenditure fund. Then if the board authorizes that expenditure, then that individual can then be reimbursed. Typically what I've seen also on the advisory committees is the advisory committee would make a recommendation -- take a vote and recommend that a member, you know, attend that conference or whatever it is, that it's in the benefit of the EAC in conducting its business. You would have to have board authority, then, to do that. That's at least what I have seen. MS. SANTORO: It's $100, and the advantage is it's right here at the Naples Beach Club, so for me it would just be the $100 registration; no travel, no hotel. MR. HILL: If it's proper, I move, Mr. Chairman, that we request an allocation of $100, not to exceed $100, for expenses for Allie to attend that. MR. COE: I'll second that. MR. LORENZ: If I could, Mr. Chairman -- CHAIRMAN SANSBURY: All those in favor say aye. (A chorus of ayes.) CHAIRMAN SANSBURY: Opposed? None. MR. WHITE: A point of order. I think Mr. Lorenz has correctly identified the process. If I understand the nature of his comments and the request of you, it would be that this council would support the request and make a determination that it would be -- and there's a section that applies specifically to this entitled "reimbursement of expenses" under Division 5.13 which is -- the section is 5.13.8, and it says, "Entitled to receive reimbursement for expenses reasonably incurred in the performance of their duties." Then it says "upon Page 107 May 2, 2001 prior approval of the board." The timing of this is, I guess, maybe a little out of sync, but still the notion that you-all would make a determination that this would be within the scope of the duties of council and that it's an expense reasonably incurred, I believe, would be the form of the motion, and that's what you-all act on, including the recommendation that the expenses be reimbursed. CHAIRMAN SANSBURY: Sir, would you like to revise your motion to speak as to -- MR. COE: Yeah. We'll use legal-speak. MR. WHITE: Sorry. MR. HILL: I move that attendance by a representative of the EAC at the land trust conference would be appropriate in carrying out the duties as a member of this council, and we request support for this from the Board of County Commissioners to the tune of $100. CHAIRMAN SANSBURY: Moved. Seconded? MR. COE: Seconded. CHAIRMAN SANSBURY: Mr. Coe seconded it. All those in favor? (Unanimous response.) CHAIRMAN SANSBURY: Unanimous. No opposed. Okay. Barbara, you look like you want to leave. Don't write that down. Okay. One other question before you guys get out of here. We're going to be talking about our report -- our annual report in a few minutes. Is that going to be -- when will that be agenda'd before the BOCC? MR. LORENZ: Well, if you're able to provide me the annual report today, I can put it on the board's meeting for -- I believe it's the 22nd. MR. COE: Okay. Page 108 May 2, 2001 MR. LORENZ: That's a Tuesday. CHAIRMAN SANSBURY: Okay. MR. LORENZ: If not, it would have to go onto the Board's June -- the first meeting in June, June 6th. CHAIRMAN SANSBURY: Okay. Very good. I do want to have a discussion here very quickly of two things. I put together a little outline, and I think Mr. Hill has put together -- in fact, all the things that are in my outline are in Mr. Hill's review of -- MR. HILL: Did everybody get a copy of it? CHAIRMAN SANSBURY: Did everybody get a copy of Mr. Hill's -- do we have any comments on it? Would we like to look at it, come back on it? I think it pretty well says what we're doing here. Yes, sir. MR. HILL: I meant to ask, June 6th we will -- that's a Tuesday? MR. GAL: No, negative. The 5th is Tuesday. MR. HILL: The board meeting on the 6th -- I'm wondering if we have our June meeting prior to that one, but if it's a Monday, the 6th, we should have our June meeting the previous Wednesday. MR. WHITE: You talk without the benefit of a calendar. CHAIRMAN SANSBURY: Why don't we do this. I mean, is there any deadline? I mean, do we have to have it in May, or can we have the meeting in June? I asked you that before, I think. MR. LORENZ: Well, the ordinance says May of each year. CHAIRMAN SANSBURY: What's the penalty? MR. LORENZ: You'll have to ask -- CHAIRMAN SANSBURY: Suspended for 60 days or what happens? MR. HILL: Allie will have to spend her own money. MR. COE: What, this, you're talking about? Page 109 May 2, 2001 CHAIRMAN SANSBURY: Yeah. MR. COE: Let's do it. CHAIRMAN SANSBURY: I feel comfortable with this document. What's the feeling of the council? MR. COE: I don't have any problem with it. MR. HILL: We meet on the 6th. MR. WHITE: Is that a Tuesday or Wednesday? MR. HILL: Wednesday, the 6th. MR. WHITE: Thank you. CHAIRMAN SANSBURY: I would like to hear a motion. If they table it -- this document is prepared by Mr. Hill. MR. COE: I'd like to make a motion -- CHAIRMAN SANSBURY: Okay. MR. COE: -- that this goes as it proceeds except for the comments at the bottom, but that's obvious. We'll let it go the way it is. CHAIRMAN SANSBURY: As the annual report of the Environmental Advisory Council to the BOCC. MR. HILL: Whoa, gosh. MR. COE: Do I have a second for that? CHAIRMAN SANSBURY: A second to the motion? MR. STONE: I'll second it. CHAIRMAN SANSBURY: A second. Discussion? MR. HILL: Just allow me to clean it up a little bit. CHAIRMAN SANSBURY: Yeah. I think we can give you that time. MR. HILL: Bill, like you did last year, can you summarize the petition figures and so forth? MR. LORENZ: Yes. We'll put that in as the attachment of activities. We'll shoot for getting that on the board's agenda for May 22nd. Last year the chairman made a presentation to the County Commission for it, so I would propose that that would be - Page 110 May 2, 2001 - to do something similar this year. CHAIRMAN SANSBURY: Mr. Coe, if you would like to attend, I would like to have Mr. Hill attend also because I'd like to have Mr. Hill actually do the verbage of it and do the introducion and go from there if that's all right. MR. HILL: May 22nd? MR. LORENZ: May 22nd. CHAIRMAN SANSBURY: May 22nd. MR. HILL: I can't. CHAIRMAN SANSBURY: Mr. Coe, are you available May 22nd? MR. COE: I don't know. I don't have my schedule with me. CHAIRMAN SANSBURY: Okay. Let's get -- why don't you get back to Barbara because you can't get back to me directly. MR. COE: Why not? CHAIRMAN SANSBURY: You heard what Patrick said about that. Okay. MR. HILL: Tom, if you want any of your specifics to go into here, let me know. CHAIRMAN SANSBURY: Okay. If you could -- Bill, if you could just go ahead and -- however you'd like to clean it up, or put everything in there. MR. HILL: If there's some items anybody wants, give me a call. CHAIRMAN SANSBURY: Okay. Thank you very much. Let's see. We have one final item. Mr. Hill. MR. HILL: I have two. CHAIRMAN SANSBURY: Two. MR. HILL: One, an apology before Bill Lorenz leaves. For a variety of personal problems and reasons and schedules, I have not been able to discharge my responsibilities very well to the subcommittee on growth management, and I apologize to Bill and Page 111 May 2, 2001 Allie and Ed. They have carried the brunt of the load, and I'm not sure my situation is going to change very much in the next month or two. So if you would like to add somebody to that mandated or required subcommittee of the council, I would be more than happy. The other thing is the thank you letter that was approved two months ago. I submitted -- I was asked to write it and submit it in the April meeting. I would ask, again, that that be sent out. CHAIRMAN SANSBURY: Okay. Does everyone have a copy of the letter thanking Mr. Mulhere for his services? No? Yes? MR. GAL: I believe I do. MR. HILL: I think I gave them out. CHAIRMAN SANSBURY: What's the pleasure of council? MS. LYNNE: I have a question. CHAIRMAN SANSBURY: Uh-huh. MS. LYNNE: 1 thought Mr. Mulhere was leaving after April 1st, and I've still seen him around, so I actually thought maybe he decided not to leave. MR. WHITE: I suspect we're going to continue to see Mr. Mulhere around. He actually works about a hundred yards from where he previously was employed, but he is in the private sector now. CHAIRMAN SANSBURY: He's in the private sector now. MR. LORENZ: I can comment there. He may be under a contract with the county, as well, doing some report writing and some other deliverables for the rural fringe conceptual plan. CHAIRMAN SANSBURY: Thank you. MS. LYNNE: He chaired one of the workshops for the BCC after April 1st, the one on development. MR. WHITE: I think his actual last day may have been the 12th. MR. LORENZ: Something like that, the middle of May. Page 112 May 2, 2001 MR. WHITE: The 12th or 13th. MR. HILL: You can sign and send that copy. CHAIRMAN SANSBURY: Okay. Do we have a -- what am hearing from the council? Any objection? MR. HILL: I move we send it out. MR. SOLING: I'll second it. CHAIRMAN SANSBURY: All those in favor? (A chorus of ayes.) CHAIRMAN SANSBURY: Opposed? MR. COE: Nay. CHAIRMAN SANSBURY: Mr. Coe is objecting. Okay. Do we have a report from the growth management subcommittee? No. Okay. Any other council member comments? Hearing none, June 6th -- MR. WHITE: Mr. Chairman. CHAIRMAN SANSBURY: Yes, sir. MR. WHITE: If I may inject under public comment -- CHAIRMAN SANSBURY: Yes, sir. MR. WHITE: I think there's perhaps two things. One is there's the balance of the LDC amendments other than the sea turtles and hearing examiner proposals that you're also going to have on your plate for the 6th, because I didn't hear any formal action in terms of a recommendation today. It's just so you know that all of that -- I don't know if you review those typically or not, but they may be on your plate as well. I don't know that they quote, unquote, have some environmental component or not and if that's a limitation of what you review but -- MS. SANTORO: Would they be in the mail to us prior to our meeting so we can review them, please? MR. WHITE: It's more my lack of experience that I'm bringing that to your attention. It may be there; I'm not sure. It may be that everything that you're requesting or are required to Page 113 May 2, 2001 consider you already know about. The second thing is, at our last meeting there was a brief discussion off and on the record with regard to Sunshine and public meeting requirements. I just want to make a point of referring everyone back to a letter I sent each of you individually. And if you did not get it because you weren't on the board at the time, I would be happy to provide it to you. Essentially, there's a sentence included in part of the second paragraph that said (as read), "Because a disclosure is not required except for matters that are quasi-judicial in nature," i.e., a site specific project, "a meeting with a citizen or staff pertaining to general policy matters would not require an ex parte contact disclosure." Perhaps in thinking about this after the last meeting, that may have been where the notion of the discussion about general policy may have arisen. I just wanted to clarify that that is with regard to individual citizens or groups or with individual staff or groups of staff. The general policy prohibition, I think, as we discussed at the last meeting still exists between council members outside of a meeting where there is also something that you are likely to consider at some future date. MR. COE: So what you're saying is if two of us are there talking to a staffer, that's not allowed, but individually if we're talking to a staffer, that is allowed; is that correct? MR. WHITE: That's a new hypothetical that we haven't discussed before, but I think you're correct in analyzing that. MR. COE: Can we talk about specific projects, say, with staff or with the developer as individuals? MR. WHITE: Yes, as long as you then subsequently make an ex parte contact disclosure -- MR. COE: MR. WHITE: -- at the meeting where that decision is made. Page 114 May 2, 2001 MR. COE: So, in other words, let's say I call Bill about, say, a project, and I talk to him on the telephone about it, then when I come to the meeting I have to let you-all know about the ex parte or whatever; is that correct? MR. WHITE: My preference would be that you would make that disclosure. Although technically under some provisions that wouldn't be considered lobbying per se. I think the general point or spirit of the document or the resolution that controls these matters would be that you make the disclosure. The point is that if there's anyone in the public or the applicant who would want to cross-examine either you or the staff with regard to the nature of those discussions, they would be able to do so the same as they would anyone else who would not be staff, such as some other individual who had an interest. CHAIRMAN SANSBURY: Yes, ma'am. MS. SANTORO: In other words, we could call people for information, but we just have to disclose at the meeting that we called certain people and the date? MR. WHITE: Yes. CHAIRMAN SANSBURY: Any further discussion? Hearing none, we are adjourned. MR. WHITE: Thank you. * * * * * There being no further business for the good of the County, the meeting was adjourned by order of the Chair at 12:50 p.m. Page 115 May 2, 2001 ENVIRONMENTAL ADVISORY COUNCIL THOMAS SANSBURY, CHAIRMAN TRANSCRIPT PREPARED ON BEHALF OF DONOVAN COURT REPORTING, INC., BY MARGARET A. SMITH, RPR Page 116 Item IV.A ENVIRONMENTAL ADVISORY COUNCIL STAFF REPORT MEETING OF JUNE 6, 2001 I. NAME OF PETITIONER/PROJECT: Petition No.: Site Development Plan SDP-00-111 Petition Name: Tamiami Square Applicant/Developer: Tamiami Square LLC Engineering Consultant: McAnley Engineering & Design, Inc. Environmental Consultant: Boylan Environmental Consultants, Inc. II. LOCATION: The subject property is located on the east side of U.S. Highway 41 in north Collier County, adjacent to the southern property line for the Two Lakes PUD, which is immediately south of Community Congregational United Church of Christ. The parcel is within Section 9, Township 48 South, Range 25 East, Collier County, Florida. III. DESCRIPTION OF SURROUNDING PROPERTIES: This parcel is located approximately '/2 mile south of the congregational Church, on the east side of US 41. It is surrounded by an approved, undeveloped commercial PUD to the north, residential development to the east, undeveloped land to the south and Tamiami Trail (US 41) to the west. ZONING DESCRIPTION N - Two Lakes PUD undeveloped S - Agricultural undeveloped E - Meadowbrook Estates PUD residential W - US 41 Road R-O-W PUD — The Retreat Retirement Page 1 V. PROJECT DESCRIPTION: The subject property is a 9.63-acre parcel located on the East side of U.S. 41, north of Old Business 41 and the U.S. 41 intersection. The petitioner is proposing to develop this C3 zoned property with commercial land uses with the remainder of the site to remain as conservation areas. V. GROWTH MANAGEMENT PLAN CONSISTENCY: Future Land Use Element: The subject property is designated Urban Residential-Mixed Use on the Future Land Use Map. The subject property was rezoned to C-3 commercial in under the In-fill Commercial Sub-district of the Collier County Growth Management plan. The proposed development is consistent both with the County's Growth Management Plan and the Land Development Code. Conservation & Coastal Management Element: Objective 2.2. of the Conservation and Coastal Management Element of the Growth Management Plan states "All canals, rivers, and flow ways discharging into estuaries shall meet all applicable federal, state, or local water quality standards. To accomplish that, policy 2.2.2 states "In order to limit the specific and cumulative impacts of stormwater runoff, stormwater systems should be designed in such a way that discharged water does not degrade receiving waters and an attempt is made to enhance the timing, quantity, and quality of fresh water (discharge) to the estuarine system. This project is consistent with the objectives of policy 2.2.2 in that it attempts to mimic or enhance the quality and quantity of water leaving the site by utilizing lakes and interconnected wetlands to provide water quality retention and peak flow attenuation during storm events. With regards to native vegetation preservation and wetland policies, the following Objectives and Policies apply: Objective 6.3 states, "A portion of the viable, naturally functioning transitional zone wetlands shall be preserved in any new non-agricultural development unless Page 2 ii 1 II I II I 11 I I1 II I II I 11 I II I 11 I II 1 11 g I I ‘i II I 1 1 11 1 • I II 1 1 I 11 11 11 CONSERVATION EASEMENT 11 1 1 1 AGRICULTURAL 1.25 ACRES 11 I I I 1 1 1 ' I 1 ii i lk.11111111 MI 111111 ...M1 fri, :;:_.:'. -1':,; i ' 1 1 Y II 1 , ,,;: % 1 I 1 1 1T1 -� - \3 \ \ \ L�' .: i ,n irts.--:.-- ,\:...:,,.:-,.5-; 1 I 1 1� 1 a' \ \ \ \ \;11 ;I1 -r ■n L 11i \V11UI 1 L 1k I1 I11% t % \ I1 IN 1 1 11 1 1 I 1 1 1 Ii `t $ 1 a % 1 1 1 IN 1I I I, I 1 I c4 ,1 I 1 I 1 I I I ‘ I I 1 I I 1 __� 1 1 1 1. I I I 1 1I 1 \ - 1 I \ \ \ FLUCCS LEGEND I I I I I I I I 1 FLUCCS 411 PINE FLATWOODS FLUCCS 621 CYPRESS FLUCCS 641 FRESHWATER MARSH FLUCCS 643 WET PRAIRIE •;; ACOE&SFWMD JURISDCTIONAL WETLANDS TO REMAIN AS INDEGENOUS OPEN SPACE,0.19 ACRES" "WILL REMAIN IN ITS NATURAL STATE,BUT CONSIDERED IMPACTED BY SFWMD&ACOE 111111= UPLANDS TO REMAIN AS INDEGENOUS OPEN SPACE,0.06 ACRES" "WILL REMAIN IN ITS NATURAL STATE WETLANDS TO BE PRESERVED&PLACED UNDER A CONSERVATION EASEMENT,0.96 ACRES V /; UPLANDS TO BE PRESERVED&PLACED UNDER A CONSERVATION EASEMENT,0.29 ACRES �'� Boylan —5?-- Engineering plan provided by McAnly Engineering&Design,Inc. Environm'`Rtl ' _JOB# 990065 COUNTY COLLIER Consultants, nc. SCALE 1"=200' TAMIAMI SQUARE 9.64 ACRES SEC 09 FILE Conease TW? 48$ Wetland & WILM. Surveys, Permitting, DRAWNBYJ.S. PRESERVE\CONSERVATION EASEMENT MAP RNG 25E impact A DATE 3-1-00 REVISIONS 05-01.01 11000 Metro Parkway,Suitt 4,Ft.Myers,FL 33912(941)418-0671 ItemIV.6 . ENVIRONMENTAL ADVISORY COUNCIL STAFF REPORT MEETING OF JUNE 6, 2001 I. NAME OF PETITIONER/PROJECT: Petition No.: Planned Unit Development No. PUDZ-2001-AR-620 Petition Name: Mediterra PUD Applicant/Developer: Long Bay Partners, L.L.C. Engineering Consultant: Wilson Miller, Inc. Environmental Consultant: Wilson Miller, Inc. II. LOCATION: The subject property is located on the north side of future east/west Livingston Road, approximately one mile east of Interstate I-75 and two miles north of Immokalee Road, in Section 11 & 12, Township 48 South, Range 25 East, Collier County, Florida. The 213.71 acres to be added to the PUD are located immediately to the east of the existing PUD, on the east side of north/south Livingston Road. The existing PUD lies on the west side of north/south Livingston Road. III. DESCRIPTION OF SURROUNDING PROPERTIES: Surrounding properties include a mixture of developed and undeveloped parcels. ZONING DESCRIPTION N - Lee County Partially Developed PUD (Ronto Livingston) Undeveloped S - R.O.W. east/west Livingston Road Agricultural Undeveloped RSF-3 (Imperial Golf Estates) Developed E - R.O.W. north/south Livingston Road Agricultural Mostly Undeveloped EAC Meeting Page 2 of 11 PUD (Ronto Livingston) Undeveloped W - Industrial Partially Developed IV. PROJECT DESCRIPTION: The intent of this petition is rezone 213.7-acres from "A" Agriculture and A/ST to the Mediterra PUD. The purpose is to allow a 20,000 square foot Village Center within the added Mediterra east property and to shift some of the approved residential dwelling units over a larger area. This additional land will increase the overall PUD size to 1,168-acres while reducing the overall density to 0.56 units per acre. The Master Plan indicates that the main access points to this added property is from the Future Livingston Road Boulevard while the primary access to the Village Center will be from an internal project road. Lastly, water and sewer service are readily available to support development of the site. V. GROWTH MANAGEMENT PLAN CONSISTENCY: Future Land Use Element: The subject PUD is designated Urban Residential Sub-district on the Future Land Use Map and Element (FLUE) of the Growth Management (GMP). This designation permits residential land uses and the proposed Village Center is consistent with the provisions in the Future Land Use Element permitting PUD neighborhood village centers to serve the residents within the development. Based on staff review of the approved land uses on the adjacent and nearby properties, the proposed uses are consistent with the Future Land Use Element of the GMP. Conservation & Coastal Management Element: Objective 2.2. of the Conservation and Coastal Management Element of the Growth Management Plan states "All canals, rivers, and flow ways discharging into estuaries shall meet all applicable federal, state, or local water quality standards. To accomplish that, policy 2.2.2 states "In order to limit the specific and cumulative impacts of stormwater runoff, stormwater systems should be designed in such a way that discharged water does not degrade receiving waters and an attempt is made to enhance the timing, quantity, and quality of fresh water (discharge) to the estuarine system. This project is consistent with the objectives of policy 2.2.2 in that it attempts to mimic or enhance the quality and quantity of water leaving the site by utilizing EAC Meeting Page 3 of 11 lakes and interconnected wetlands to provide water quality retention and peak flow attenuation during storm events. With regards to native vegetation preservation and wetland issues, the following Objectives and Policies apply: Objective 6.2 states, "There shall be no unacceptable net loss of viable naturally functioning marine and fresh water wetlands, excluding transitional zone wetlands which are addressed in Objective 6.3". Policy 6.2.10 states, "Any development activity within a viable naturally functioning fresh-water wetland not part of a contiguous flow way shall be mitigated in accordance with current SFWMD mitigation rules. Mitigation may also include restoration of previously disturbed wetlands or acquisition for public preservation of similar habitat". Objective 6.3 states, "A portion of the viable, naturally functioning transitional zone wetlands shall be preserved in any new non-agricultural development unless otherwise mitigated through the DEP and the COE permitting process and approved by the County". Objective 6.4 states, " A portion of each viable, naturally functioning non-wetland native habitat shall be preserved or retained as appropriate". Policy 6.4.6 states, "All new residential developments greater than 2.5 acres in the Coastal Area and greater than 20 acres in the Coastal Urban Area shall retain 25% of the viable naturally functioning native vegetation on site, including both the understory and the ground cover emphasizing the largest contiguous area possible. When several different native plant communities exist on site, the development plans will reasonably attempt to preserve examples of all of them if possible. Areas of landscaping and open space which are planted with native plant species shall be included in the 25% requirement considering both understory and groundcover. Where a project has included open space, recreational amenities, or preserved wetlands that meet or exceed the minimum open space criteria of Collier County, this policy shall not be construed to require a larger percentage of open space set aside to meet the 25% native vegetation policy. This policy shall not be interpreted to allow development in wetlands, should the wetlands alone constitute more than 25% of the site. Exceptions shall be granted for parcels that cannot reasonably accommodate both the native vegetation and the proposed activity". This petition is consistent with staff's policy, as directed by the Board of County Commissioners, to allow for impacts to jurisdictional wetlands when State and Federal agency permits are issued. The petition is consistent with Objective 6.4 in EAC Meeting Page 4 of 11 that it provides for 25% on-site native vegetation preservation pursuant to Policy 6.4.6. VI. MAJOR ISSUES: Water Management: The proposed stormwater management system for Mediterra East will route runoff from the roads, roofs, and "green" spaces to a series of interconnected lakes to provide water quality retention and peak flow attenuation. These lakes are connected via pipes under Livingston Road N/S to the existing stormwater management lakes in the original Mediterra project. The petitioner has committed to incorporating natural drainage patterns into the surface water management system wherever possible. The project will be reviewed by the South Florida Water Management District, and once their requirements are met, the project will be permitted. Environmental: Site Description: The Mediterra east property is undeveloped with large areas altered from their natural state by past agricultural activities and construction of electrical power lines. Undisturbed vegetation associations are concentrated in the northern third of the site. Roughly 70% of the property is uplands. Of the upland areas, over 38% are comprised of pastures and agricultural fields while over 18% consist of cleared power line easements and rights-of-way (ROW) for north/south Livingston Road (under construction) and future east/west Livingston Road. The remaining uplands mainly include areas dominated by pine flatwoods and Melaleuca. Wetlands comprise roughly 30% of the site (based on SFWMD jurisdictional determination). Remaining native vegetation associations mainly consist of pine flatwoods and mixed pine and cypress forests. EAC Meeting Page 5 of 11 5 , At'vA rr Pine Flatwoods-Graminoid Understory(FLUCFCS Code 416E2) According to the Collier County Soil Survey prepared by the Natural Resources Conservation Service (NRCS), five soil map units are present on the Mediterra east project site. These units include the following: (Unit 2) Holopaw fine sand, limestone substratum; (Unit 14) Pineda fine sand, limestone substratum; (Unit 17) Basinger fine sand; (Unit 25) Boca, Riviera, limestone substratum and Copeland fine sand, depressional; and (Unit 27) Holopaw fine sand. All these units are classified as hydric soil units by the NRCS. Wetlands: The Mediterra east project site contains 62.69 acres of South Florida Water Management District (SFWMD) jurisdictional wetlands. The major vegetation types within the wetlands on site include hydric pine flatwoods, pine/cypress mix and Melaleuca monoculture. Minor areas of cypress and willow also exist on the property. Existing seasonal high water (SHW) levels in representative portions of wetlands on site were determined using hydro-biological indicators and groundwater monitoring well data collected in 1999 and 2000. Hydro-biological indicators used to assess SHW included water stain lines, moss collars, and lichen lines. Historic SHW levels were estimated using biological indicators such as lichen lines and buttressing. Table 4 in Appendix B of the EIS contains topographic and hydrologic data for wetlands within the Mediterra east property. A comparison of the existing and historic SHW levels indicates that site wetland hydrology has been altered as a result of surrounding obstructions (roadways, berms, FPL easement, adjacent EAC Meeting Page 6 of 11 development, etc.) and ditches that have caused diversion of historic flow through the site. Water table data collected from site piezometers indicates that the current SHW levels are approximately 0.7-1.1 feet lower than historic SHW levels. Additionally, the existing average wet season water table (WSWT) is approximately 2.0-2.3 feet lower than the existing SHW. The reduced hydrology has allowed Melaleuca to invade the site. • Vit. Melaleuca (FLUCFCS Code 424) The proposed Mediterra east expansion will impact approximately 70% (43.86 acres) of wetlands on site. Wetland loss will be compensated for by on-site mitigation activities. Wetland conservation areas on site will be enhanced by removal of exotic plants, reforestation with native species, and hydrologic improvements. Of the 24.20 acres to be placed in a conservation area, 18.45 acres represent existing wetlands to be preserved and enhanced while 0.93 acres represent wetlands to be created (restored) from present-day uplands (a dirt road). Approximately 4.82 acres of uplands will also be preserved in the conservation area, and will be enhanced through eradication of exotics. In the event proposed on-site mitigation is insufficient to compensate for wetland losses, additional credits will be purchased from an approved mitigation bank such as Panther Island Mitigation Bank. It is estimated that approximately 11.3 credits would be purchased to compensate for the on-site mitigation deficit. Lands within the Mediterra east expansion area were designed so the conservation area would connect with the off-site preserve in Tuscany Reserve, thus providing for a larger more functional preserve area. Preservation Requirements: EAC Meeting Page 7 of 11 Approximately 51 acres of the 214-acre Mediterra east expansion area are vegetated with native vegetation. In calculating the percentage of native vegetation within a given FLUCFCS type which counts towards the native vegetation preservation requirement, any areas with 75% or greater cover of exotic plants were considered to be non-native and not counted towards this. Areas that had been completely cleared of former native vegetation (power line easements, roads, etc.) were similarly considered as having no native vegetation remaining. Many areas on the site have been disturbed in the past but still have remnants of the forested systems originally present. In these areas, the amount credited towards the native vegetation requirement was estimated based on the percent of native canopy remaining (Table 2, Page B-2 of the EIS). • f ry ei .}-, �fr•\ a V' r Fallow Agricultural Land(FLUCFCS Code 216E1) with Woodland Pasture (FLUCFCS Code 213E3) in background. A total of approximately 24.20 acres of native vegetation are proposed for preservation within the Mediterra east expansion area. This exceeds the 25% (12.75 acres) required by the Land Development Code. Listed Species: Biological surveys of the Mediterra east property were performed during the period from November 1999 through November 2000 using field methodology that met Florida Fish and Wildlife Conservation Commission (FFWCC) guidelines. The surveys were performed to document vegetative associations and to locate and document any listed plant or wildlife species that may occur on the project site. Results of the survey are provided in Appendix D in the EIS. This EAC Meeting Page 8 of 11 report encompasses the entire Mediterra expansion project which involves the addition of two parcels: Mediterra east, the 213.71 acre parcel that is the subject of this submittal; and Mediterra north, a 41.12 acre parcel located in Lee County. The report includes information regarding the Lee County property because a Binding Letter of Determination and an amendment to the Lee County Mediterra RPD are being submitted concurrently with this amendment to the Mediterra PUD. During the listed species survey, three active gopher tortoise burrows were observed on the Mediterra east property (Exhibit 1 in the EIS). It is estimated that two or three tortoises represent the population. Two of the burrows are in close proximity to each other and may be utilized by a single tortoise. All the burrows appear to have been constructed by adult tortoises. The habitat occupied by these tortoises is of low quality. Gopher tortoises located on the Mediterra east property will be relocated to the existing permanent gopher tortoise preserve which spans both Collier and Lee Counties within the existing Mediterra property. The location of the gopher tortoise preserve is shown in Figure 9 of Appendix C in the EIS. Vegetative communities in the gopher tortoise preserve include live oak, pine flatwoods with palmetto understory, and limited areas of improved pasture, scrubby flatwoods, and mixed pine and cypress. Tracts of a single American alligator were observed on the edge of wetland#49 in the Mediterra east property (Exhibit 1). Judging from the size of the tracts, the alligator is likely young and no more than 3 to 4 feet in length. It is unlikely the animal remains in the wetland since it is only inundated for a couple of weeks during the peak of the normal wet season and there is no prey base (no fish, few amphibians or reptiles). No other listed wildlife species were observed nor were signs of such animals detected on the Mediterra east property during the course of the listed species survey or during prior site inspections. No listed plant species were observed on the property. VII. RECOMMENDATIONS: Staff recommends approval of Planned Unit Development No. PUDZ-2001-AR- 620 "Mediterra PUD" with the following stipulations: Water Management: 1. A SFWMD Surface Water Management System permit for this project must be obtained prior to any construction drawing approval. EAC Meeting Page 9 of 11 Environmental: No additional stipulations. EAC Meeting Page 10 of 11 PREPARED BY: STAN CHRZANOW t ,P.E. DATE SENIOR ENGINEER 4,(X-4,‘,//7: SAP4 09 1 STEPHEN LENBERGER DATE ENVIRONMENTAL SPECIALIST II REVIEWED BY: 72: 5/(8 70) RAY4ND V. BELLOWS DATE PRINCIPAL PLANNER V7-QtA-A.A-1--y_ /a1 /0 / SAN MURRAY, AICP DATE INTERIM CURRENT PLANNING MANAGER 401/4/4 2144 45/27A,f THOMAS E. KUCK, P.E. DATE INTERIM PLANNING SERVICES DIRECTOR APPROVED BY: EAC Meeting Page 11 of 11 .)1,14,„......---Q5`2310, JO M. DUNNUCK, III DATE IN'1 RIM COMMUNITY DEVELOPMENT & ENVIRONMENTAL SERVICES ADMINISTRATOR SL/gdh/c: StaffReport tfrA Joyce and Douglas Finlay #5H 3430 Gulf Shore Blvd., N. Naples, Florida 34103 (941) 403-4490 May 22,2001 Dear Members of the EAC: The attached was written for CCPC. However, I have requested a copy be distributed to each of you as well. Sit -• ely C • _tits . Joyce and Douglas Finlay #5H 3430 Gulf Shore Blvd., N. Naples, Florida 34103 (941) 403-"F190 May 22, 2001 To All Members of the Collier County Planning Commission RE: LDC Amendment relating to section 161.58 (ATV's on the beach during sea turtle nesting season) Dear Commission Members: Several points were discussed at the May 16 meeting which I felt needed an immediate follow-up: 1. FLORIDA STATUTE 161.58 (regulation of beach traffic). One of resorts in question, the Ritz, made mention that the Florida DEP had passed on the various drafts of this amendment.Whereas this statement may have had some validity a month or so ago, I do not believe it is true today. As Jessica Koelsch from the Center for Marine Conservation mentioned,the DEP is re-examining the legal ramifications of this amendment. I have personal knowledge of the DEP's more recent position because on May 10, I spoke directly to Mr. Patrick Krechowski, counsel for the DEP. I know this presents some confusion to the commission. I suppose it is possible that Mr. Kreckowski is trying to appease whoever contacts him. More likely I would surmise that Mr. Krechowski is giving closer scrutiny to a subject that has become fairly controversial. I am sure that at some point the DEP will clarify its interpretation of FS 161.58 to those concerned. In the interim and because FS 161.58 is so vital to the support of this amendment, each one of you may want to make your own inquiry. When reviewing FS 161.58, there are several key points to consider: Traffic: With no limits on the number of ATV's a resort may operate, or a limit on the number of trips ATV's may make,the amendment sanctions a level of use that comprises "traffic". Allowed Use: Resort ATV uses permitted in the LDC amendment do not meet the definitions established by FS 161.58. Limit Use: FS 161.58 was enacted to LIMIT vehicle use on our state's public beaches. The LDC amendment has been drafted to EXPAND vehicle use on these beaches, and with an activity that is not "grandfathered". I am convinced that if you review FS 161.58,you will get a good understanding as to why the ATV uses allowed in the LDC amendment exceed the perimeters established by Florida law. 2. FINES AND SUSPENSIONS. The fines proposed in this amendment may seem excessive to some and inadequate to others. However,at least one commission member expressed the obvious, "What's a $500 or$1,000 fine to a $100,000 Ritz beach party?" Perhaps even more important is this. The maximum fine generated by LDC amendment would cover little more than a fraction of the Federal fine Collier County could incur if a turtle nest were taken by a resort ATV. The only "big stick" our county has to protect its interests (or the sea turtles), is via a revocation or suspension. Based on past resort abuses, including those that I have personally witnessed, sanctions must be approved that would minimize the c+ounty's financial and criminal liability(see my letter dated 5/14/01). That is,assuming this controversial amendment were to be adopted. 3. A TABOO. One of your commission members, I believe it was Mr. Richardson, touched on a "taboo" at Wednesday's meeting. He said something to the effect, "Hasn't there been a problem in the past with county staff looking the other way when it comes to enforcing these(current) codes?" Any response to his question was a bit muted. But Mr. Richardson hit the nail on the head.As I began talking to people about the creation of the LDC amendment this "taboo" came up more than once. In fact, I am quite sure it is the reason we are where we are today. It was about a year ago that Collier County liberalized the code which allowed resorts to make more use of our beaches for private parties,ATV's and equipment. However, at that time,the county held the line when it came to protecting nesting sea turtles. The resorts were not pleased and they vowed to fight on (Naples Daily News 3/24/00). In the interim, the resorts, primarily those on Vanderbilt Beach, engaged in numerous beach activities that broke the county codes. In many cases citizen complaints went unanswered and citations were not issued. One quote that reached my ears was, "Hey, everybody was breaking the rules so how could it get any worse?" As a result,everyone felt uneasy. The resorts knew they were breaking the law, the county knew they were only selectively enforcing the code,citizens didn't like what they saw, and the environmental groups were frustrated by the actions of the resorts and inaction by the county. So now our county is in the process of legalizing what was previously illegal. It's kind of like if everyone is driving 90mph instead of 70mph, let's raise the speed limit up to 90. This is a poor way to gain respect for our laws and it is a horrible way to protect an endangered species. As a citizen and frequent beach-goer, I am disappointed my county appears to be heading down this path. Finally, something very critical has recently come to light. The LDC amendment seems to have been put on a "fast track". This may be improper because I believe the LDC amendment changes the county's Growth Management Plan. If true, any such change requires submission to the Florida DCA (Department of Community Affairs). See policy 7.3.1 and 10.5.5 and most importantly 10.4.10. Can the county modify the LDC before modifying the GMP? I don't think so. No only is this amendment bad for the sea turtles, its creation has become a nightmare for almost everyone involved and it should be rejected. Sinc• • , glas"Plv nlay cc: Patric Krecho ski, Florida DEP Allen Eg i lorida Fish and Wildlife Conservation Comm. Sandy Mac Pherson, U.S. Fish and Wildlife Cari Roth, Florida Department of Community Affairs 05/18/01 12:58 FAX 7278953248 CMC-GULF OFFICE X101 11 : ENT E R FOR MARINE Li 51E.Atlantic&Gulf of Mexico Regional Office 1725 DeSales Street,NW 449 Cenral Avenue Suite 600 Headquarters U N S E R VA T I U 1� Suite 200 Washington, DC 20036 Sr, Petersburg,FL 33701 Phone: (2021 429.5609 Phone: (727) 895-2188 Fax:(202)872-0619 Fox:(727) 8953248 Web:www.cmcoceen.org May 18, 2001 Col ier County Government 281_ 3 North Horseshoe Dr. Nal les, FL 34104 Re: Center for Marine Conservation (CMC) Comments on LDC 3.14 (Vehicle on the Beach Re: :Illations), LDC 2.6.34 (Annual Beach Events Permit), and LDC 3.157 (Supp. 10; Co stat Construction Setback Line Variance) During Sea Turtle Nesting Season Gr( etings: Thi Center for Marine Conservation (CMC) appreciates the opportunity to provide comments on pro )osed amendments to Collier County on LDC 3.14 (Vehicle on the Beach Regulations),LDC 2.6 34(Annual Beach Events Permit), and LDC 3.157 (Supp. 10; Coastal Construction Setback Lit ;Variance). We have attended several workshops and public meetings to present our pos tion but wish to restate some key points in these written comments_ CI' C is a national non-profit marine advocacy organization with 120,000 members nationwide ane: 10,000 members in Florida. We support sound, science-based conservation of our oceans ani: the marine life it supports. We are headquartered in Washington DC with several regional off ;es, including St. Petersburg, Florida. W': have been involved in meetings with Collier County staff, hotels, concessionaires, en'k ironmental organizations, and other interested parties since February to discuss amending Cc my Code to allow limited use of ATV's on the beaches during sea turtle nesting season. As arc suit, county staff developed (and then revised multiple times) proposed amendments. CMC wa:, under the impression that most of the issues regarding the proposed amendments had been ra, ilved at these meetings. However,based on the numerous recent iterations of the am ;ndments, apparently not all issues are resolved and we understand that additional revisions to the amendments may occur. We submit comments based on the May 15, 2001 proposed am :ndments but some of the issues continue to be debated and we respectfully request per nission to submit additional comments based on new developments and/or any further rev sions to the final proposed amendments. On ; underlying issue which has not been addressed by any versions of the proposed amendments reg Mrd the legality of allowing ANY additional use of ATV's on the beach. Florida state law Set lion 161.58 FS prohibits beach driving except that which was allowed prior to 1989 OR dri ing required for beach maintenance, emergency vehicles, or environmental work. None of the ATV driving in the proposed ordinances fall under these categories. We have serious co: :erns that the proposed county ordinance violates state law. Upon initial review of the issue, Flo ida Department of Environmental Protection attorneys indicated that they did not feel the pre >osed amendments violate state law (apparently because the degree of ATV use would not 0 Printed t 17 OU%poet-consumer unbleached recydnd paper 05/18/01 12:58 FAX 7278953248 CMC-GULF OFFICE i 92 cc istitute "vehicular traffic"). The Center for Marine Conservation, the Caribbean Conservation G rporation, a Florida Fish and Wildlife Conservation Commission Bureau of Protected Species M Lnagement staff, and Earth Justice Legal Defense Fund council remain concerned that • litional use of ATV's on Florida's beaches DOES violate the state statute. In fact, Earth iii ;tice has expressed that in their lefial opinion, the ordinance IS illegal and DOES violate state le- vv. Our impression is that legal council for the state agencies is currently re-evaluating the o:r linance for compliance with state law. A pother important point for the county to consider is that based on the opinion of U.S. Fish and ar ildlife Service staff in the Jacksonville Field Office, if a sea turtle nest (or sea turtle eggs, h: :chlings, or adult turtles) are damaged or harmed by activity associated with ATV's on the b:ich, the ATV operator AS WELL AS Collier County will be liable. This is a criminal offence ar I can be penalized with fines of up to $100,000 or$250,000 and prison. CMC urges the cc mty to carefully consider whether they are prepared to accept the liability for any damage to to ties or their nests potentially causes by the proposed amendments. C. 4C and some other environmental organizations are concerned over the additional use of v: licles on the beach during sea turtle nesting season for two primary reasons: 1. Allowing additional beach driving sets a precedent. The proposed ATV use potentially violates, and at very least stretches, the state law prohibiting beach driving. The amendments also open the door to additional driving by other beach users, further increasing beach traffic. 2. Beach activities such ATV driving, beach raking, or equipment set-up that occurs before nesting beaches have been monitored by county staff,may obscure or obliterate turtle tracks,preventing identification and protection of nests. 3. With additional vehicular use comes additional risk to the nests. As acknowledged at public meetings, "human error"occurs in the implementation of the current approved ATV uses. By increasing the level of ATV use on Collier County's beaches, the exposure and opportunity for increased "human error" also occurs. With more vehicle use on the beach, the likelihood of an ATV accidentally damaging a nest or the nest marking will increase. Pr urge the county to address the legality of operating ATV's on the beach, the increased risk to th :nests, and the potential liability to the county if a nest is damaged completely before ar. tending the county code to allow beach driving. Because the legality of operating ATV's on tri ;beach is still unresolved, we wish to comment on the proposed amendments as written, and th :n revisit the state law after state legal council have issued a final opinion. received a version of the proposed amendments on May 15, 2001 that we found to provide th ; some of the necessary safeguards for nesting sea turtles. We commend the staff for including re sonable provisions to protect sea turtles and their nests: • Establishing an ingress/egress corridor and all other limit driving to below the mean high water line • Safeguarding the nests during beach events with a 30 foot radius protection zones (consistent with Florida state standards) • Defining minor vs. major infractions (to promote fairness in enforcement of the code) 05/18/01 12:58 FAX 7278953248 CMC-GULF OFFICE al 03 • • Requiring removal of gear and impediments to nesting turtles and hatchlings on the beach by 9 pm each evening (shortly after sunset when female sea turtles begin coming ashore to nest and hatchlings begin emerging; consistent with state standards) • Including strict penalties for violations. V e request that staff consider additional provisions to include: • Training for operators of the ATV's • Name approved drivers on the ATV permits • Provide resources for additional patrolling and enforcing these regulations. P: evious versions of the amendment have specified additional safeguards that do not appear in th t May 15,2001 version of the amendments. CMC feels the following text should be re- in ;erted (in the original form or a modified version)to the proposed amendments: • "Use of the vehicle should be limited to a one-time set up and one-time removal of equipment each day." Some hotel and concessionaires expressed that they would need to make additional trips along the beach throughout the day. Although we appreciate that multiple trips throughout the day may be warranted in some circumstances, additional trips equated to additional traffic and additional risks to sea turtle nesting habitat and the nests themselves. In addition, the "Reason" for the proposed amendments indicate "limited vehicular use". By omitting any limits to the number of trips allowed,vehicle use is essentially not"limited". The county should establish limits to the number of trips that could be made each day. The county should also consider limiting the NUMBER of ATV's that could receive permits each cycle. • Penalties: 2.6.34.6 (2. Violation of Annual Beach Event Permit during sea turtle nesting season) and 3.14.7.4 (2_ Violation of 3.14.32, 3.14.3.4,3.14.3.5, 3.14.3.6 Vehicle on the Beach Regulations;Major infractions) Strict penalties for violations during sea turtle nesting season should be reinstated in the proposed amendments. We feel leniency for the first violation is reasonable but harsh penalties are a strong motivation to encourage compliance. Previous versions of the amendment proposed fines and suspension ofpermits for second and third violations. After the third infraction, CMC wishes to see this more strict penalties for repeated violations re- instated in the amendment (violators should lose their vehicle on the beach permit for 60 days or the balance of sea turtle nesting season). C AC appreciates the opportunity to present our comments. We respectfully request that the cc arty and its various committees consider these comments and proposed changes when making th ;ir recommendation. Please feel free to contact me if you have questions or comments. Thank y. L Si l 4 Jt: isica Koelsch Fl arida Marine Wildlife Project Manager Page 1 of 2 hadleykim From: Gary Appelson Sent: Monday, May 21, 2001 10:40 AM To: hadleykim Subject: RE: Meeting Today Kim, I tried again and again they were not delivered. I have enclosed the letter in the body of this e-mail and as a Word Perfect file attachment. If you could pass this letter on to the County Commissioners I would appreciate it. Thanks. Gary *********************************** Caribbean Conservation Corporation 4424 N.W. 13th St., Suite A-1 Gainesville, Florida 32609 (352) 373-6441 May 16, 2001 Dear County Commissioners, The Caribbean Conservation Corporation (CCC) would like to again offer comments regarding your proposed beach driving ordinance (LDC 3.14). The ordinance will allow and permit through the Beach Events Permit process driving on the beach by motorized vehicles in order to facilitate the organizing of large parties and other activities by private hotels within the county. It is CCC's opinion that the proposed ordinance is a violation of 161 .58 Florida Statutes. Based on correspondence between the Caribbean Conservation Corporation, county attorneys, legal counsel for the Florida Department of Environmental Protection, and staff of the Fish and Wildlife Conservation Commission there seems to be considerable confusion regarding what state agency has jurisdiction to enforce 161 .58 F.S. However the jurisdictional issue ignores the real problem that the proposed ordinance likely violates state law. Your county attorney expressed his belief early on in this debate that the proposed ordinance would violate state law in a memorandum to County Planning Services' staff on September 7, 2000. In that memorandum the county attorney concluded that, "if approved by the County, the proposed provisions (amendments to LDC 3.14) would likely run afoul of the state statute which preempts local regulations, and could be challenged successfully in court." After consulting with our legal counsel we also conclude that the proposed ordinance would violate 161 .58 F.S. 5/21/2001 Page 2 of 2 It is our recommendation that the County Commission refrain from adopting the LDC amendments to Section 3.14 that would authorize permits for driving on the beach through the Beach Events Permit process. In our opinion the vehicular uses being authorized are beyond the scope of activities which are allowed by state statute. The Caribbean Conservation Corporation is also concerned that the additional driving is being authorized even into the sea turtle nesting season. During the ongoing debate and review of this ordinance at county public meetings the discussions have often turned toward the need to restrict the driving as mush as possible during the turtle nesting season and to levy strict penalties when the restrictions are violated. County EAC staff are to be commended for supporting these restrictions and clearly expressing the need to ensure that sea turtles and their nesting habitats are disturbed as little as possible. We reiterate the need to ensure protections for sea turtles. If the county does intend to adopt the beach driving ordinance then we recommend that the county consider applying for a Section 10 Permit from the U.S. Fish and Wildlife Service as authorized by the U.S. Endangered Species Act.. A Section 10 permit would authorize a specified "take" of sea turtles and help to insulate the county from liability under the ESA while at the same time resulting in a program of mitigation and minimization of harm to turtles caused by the actions permitted by the county. The CCC appreciates the opportunity to offer these comments. Please do not hesitate to contact our office if we can be of any other assistance in this matter. Sincerely, Gary Appelson Advocacy Coordinator Caribbean Conservation Corporation 5/21/2001