BCC Minutes 03/09-10/2004 RMarch 9 & 10, 2004
TRANSCRIPT OF THE MEETING OF THE
BOARD OF COUNTY COMMISSIONERS
Naples, Florida, March 9 & 10, 2004
LET IT BE REMEMBERED, that the Board of County
Commissioners, in and for the County of Collier, and also acting as
the Board of Zoning Appeals and as the governing board(s) of such
special district as has been created according to law and having
conducted business herein, met on this date at 9:00 a.m., in
REGULAR SESSION in Building "F" of the Government Complex,
East Naples, Florida, with the following members present:
CHAIRMAN:
Donna Fiala
Frank Halas
Tom Henning
Fred W. Coyle
Jim Coletta
ALSO PRESENT: Jim Mudd, County Manager; David Weigel,
County Attorney; and Jim Mitchell, Office of the Clerk of Court
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COLLIER COUNTY
BOARD OF COUNTY COMMISSIONERS
AGENDA
March 9, 2004
9:00 a.m.
Donna Fiala, Chairman, District 1
Fred W. Coyle, Vice-Chairman, District 4
Frank Halas, Commissioner, District 2
Tom Henning, Commissioner, District 3
Jim Coletta, Commissioner, District 5
NOTICE: ALL PERSONS WISHING TO SPEAK ON ANY AGENDA ITEM
MUST REGISTER PRIOR TO SPEAKING. SPEAKERS MUST REGISTER
WITH THE COUNTY MANAGER PRIOR TO THE PRESENTATION OF THE
AGENDA ITEM TO BE ADDRESSED.
COLLIER COUNTY ORDINANCE NO. 2003-53, AS AMENDED REQUIRES
THAT ALL LOBBYISTS SHALL, BEFORE ENGAGING IN ANY LOBBYING
ACTIVITIES (INCLUDING, BUT NOT LIMITED TO, ADDRESSING THE
BOARD OF COUNTY COMMISSIONERS), REGISTER WITH THE CLERK TO
THE BOARD AT THE BOARD MINUTES AND RECORDS DEPARTMENT.
REQUESTS TO ADDRESS THE BOARD ON SUBJECTS WHICH ARE NOT ON
THIS AGENDA MUST BE SUBMITTED IN WRITING WITH EXPLANATION
TO THE COUNTY MANAGER AT LEAST 13 DAYS PRIOR TO THE DATE OF
THE MEETING AND WILL BE HEARD UNDER "PUBLIC PETITIONS."
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 THE PROCEEDINGS IS MADE, WHICH RECORD INCLUDES THE
TESTIMONY AND EVIDENCE UPON WHICH THE APPEAL IS TO BE BASED.
ALL REGISTERED PUBLIC SPEAKERS WILL RECEIVE UP TO FIVE (5)
MINUTES UNLESS THE TIME IS ADJUSTED BY THE CHAIRMAN.
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March 9, 2004
IF YOU ARE A PERSON WITH A DISABILITY WHO NEEDS ANY
ACCOMMODATION IN ORDER TO PARTICIPATE IN THIS PROCEEDING,
YOU ARE ENTITLED, AT NO COST TO YOU, TO THE PROVISION OF
CERTAIN ASSISTANCE. PLEASE CONTACT THE COLLIER COUNTY
FACILITIES MANAGEMENT DEPARTMENT LOCATED AT 3301 EAST
TAMIAMI TRAIL, NAPLES, FLORIDA, 34112, (239) 774-8380; ASSISTED
LISTENING DEVICES FOR THE HEARING IMPAIRED ARE AVAILABLE IN
THE COUNTY COMMISSIONERS' OFFICE.
Commissioners will be attending the Know Your County Government Teen Citizenship
Luncheon from 12:15 to l:15 p. m. located at the East Naples Methodist Church
1. INVOCATION AND PLEDGE OF ALLEGIANCE
A. Father Tim Navin, St. Peter the Apostle Catholic Church
2. AGENDA AND MINUTES
A. Approval of today's regular, consent and summary agenda as amended. (Ex
Parte Disclosure provided by Commission members for summary agenda.)
B. February 10, 2004- BCC Regular
C. February 11, 2004 - BCC/LDC Meeting
D. February 17, 2004 - Tri-County Meeting
E. February 18, 2004 - BCC/District 2 Town Hall Meeting
F. February 25, 2004 - BCC/Everglades City Workshop
3. SERVICE AWARDS
4. PROCLAMATIONS
A. Proclamation to recognize the Week of March 7-13, 2004 as Know Your
County Government Week. To be accepted by Cody Martin, Student at
Naples High School and Jose Nunez, Student at St. John Neumann.
B. Proclamation to designate the week of March 8-13, 2004 as Habitat for
Humanity's Build a Better Future Week. To be accepted by Dr. and Mrs.
Sam Durso.
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March 9, 2004
Proclamation to recognize the month of March 2004 as Invasive Exotic's
Control Week. To be accepted by Melissa Hennig, Environmental Specialist
for Collier County.
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Proclamation to honor the County's achievement, the 500th AED from EMS
to be dedicated to the W. Harmon Turner Building in the Collier County
Government Complex, the symbolic location of where the program began.
To be accepted by Noemi Diaz, Captain of Emergency Medical Services for
Collier County.
PRESENTATIONS
PUBLIC PETITIONS
BOARD OF ZONING APPEALS
A. This item to be heard at 9:00 a.m. on March 10t 2004. This item
requires that all participants be sworn in and ex parte disclosure be
provided by Commission members. ADA-2004-AR-5218 Pelican Bay
Foundation Inc., represented by Robert D. Pritt of Roetzel and Andress,
requesting an appeal to official interpretation INTP-2003-AR-4307 relating
to the approval of SDPA-2001-AR-412 for the Cap D'Antibes
Condominium Project, Waterpark Place, within the Pelican Bay DRI/PUD.
This appeal is pursuant to Collier County Land Development Code (LDC)
Section 1.6.6.
Be
This item to be heard after Item 7A on March 10, 2004. This item
requires that all participants be sworn in and ex parte disclosure be
provided by Commission members. ADA-2003-AR-4933, Michael J.
Volpe of Robins, Kaplan, Miller and Ciresi, LLP, representing Pelican Bay
Property Owners Association, requesting an appeal to official interpretation
INTP-2003-AR-4306 relative to the approval of SDPA-2001-AR-412,
Waterpark Place at Pelican Bay.
ADVERTISED PUBLIC HEARINGS
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Adoption of an Ordinance amending Chapter 74 of the Collier County Code
of Law and Ordinances, as amended by Ordinance No. 2001-13 (The Collier
County Consolidated Impact Fee Ordinance, as amended) providing for the
adoption of a General Government Building Impact Fee with a delayed
effective date of April 1, 2004.
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March 9, 2004
9. BOARD OF COUNTY COMMISSIONERS
10.
11.
12.
A. Appointment of member to the Collier County Coastal Advisory Committee.
B. Appointment of member to the Tourist Development Council.
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Discussion regarding FPL Preferred Transmission Line Alignment.
(Commissioner Fiala and Joe Schmitt)
D. Discussion regarding FEMA Update. (Commissioner Coletta)
Discussion regarding Aquaculture Use Zone in Collier County.
(Commissioner Coletta)
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Item continued from the February 24~ 2004 BCC Meeting and is further
continued to the March 23~ 2004 BCC Meeting. Approve a Resolution
supporting the preservation of the State Transportation Trust Fund.
(Norman Feder, Transportation Services Administrator)
COUNTY MANAGER'S REPORT
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This item to be heard at 1:30 p.m. Review the written and oral reports of
the advisory boards and committees scheduled for review in 2004 in
accordance with Ordinance No. 2001-55, including the Citizens Advisory
Task Force, Collier County Code Enforcement Board, Contractors Licensing
Board, Golden Gate Parkway Beautification Advisory Committee,
Immokalee Beautification Advisory Committee, Isles of Capri Fire Control
District Advisory Board, Parks and Recreation Advisory Board, and Collier
County Water and Wastewater (Utility) Authority. (Winona Stone,
Assistant to the County Manager)
Approve a three-year collective bargaining agreement with the International
Association of Firefighters Local 1826 (Emergency Medical Services
Union). (John Dunnuck, Public Services Administrator)
Request for County sponsorship for US Military appearances during July 2-
5, 2004. (John Dunnuck, Public Services Administrator)
PUBLIC COMMENTS ON GENERAL TOPICS
COUNTY ATTORNEY'S REPORT
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March 9, 2004
13.
14.
15.
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Recommendation pursuant to Collier County Resolution No. 95-632, that
the Board of County Commissioners consider authorizing the Office of the
County Attorney to select and retain outside counsel to represent two (2)
individual County employees sued in Dwight E. Brock v. Board of County
Commissioners, Linda T. Swisher, and Paul W. Wilson, Case No. 04-941-
CA, Twentieth Judicial Circuit in and for Collier County, and waive the
purchasing policy to the extent it applies to the selection of outside counsel
and/or otherwise exempt the selection of outside counsel from competition
pursuant to VII.G. of the Purchasing Policy.
OTHER CONSTITUTIONAL OFFICERS
AIRPORT AUTHORITY
STAFF AND COMMISSION GENERAL COMMUNICATIONS
16. CONSENT AGENDA - All matters listed under this item are considered to be
routine and action will be taken by one motion without separate discussion of
each item. If discussion is desired by a member of the Board, that item(s) will
be removed from the Consent Agenda and considered separately.
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COMMUNITY DEVELOPMENT & ENVIRONMENTAL SERVICES
1)
Request to grant final approval of the roadway (private), drainage,
water and sewer improvements for the final plat of "Eden at the
Strand Replat - 1". The roadway and drainage improvements will be
privately maintained, the water and sewer improvements will be
maintained by Collier County.
2)
Approve a budget amendment in the amount of $18,900 to fund
temporary seasonal part time staff consistent with past years for
conducting sea turtle monitoring for the 2004 nesting season.
3)
Request to approve for recording the final plat of "Verona Walk Phase
1B" AR4692, and approval of the standard form construction and
maintenance agreement and approval of the amount of the
performance security.
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March 9, 2004
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4)
Approve a 100% reimbursable Artificial Reef Construction Grant for
the amount of $25,000 from the Florida Fish and Wildlife
Conservation Commission.
TRANSPORTATION SERVICES
1)
Board approval to reject bid received under Bid #04-3595 "Clearing,
Grubbing, Tree Trimming & Removal Services".
2)
Approve a Donation Agreement for the acquisition of a perpetual,
non-exclusive easement, which is required for the purpose of
constructing and maintaining a sidewalk along the north side of the
Cocohatchee Canal, across Tracts "B" and "C" of Carlton Lakes Unit
One, accept the conveyance of said easement, and authorize the
payment of South Florida Water Management District permit
application fees. Estimated fiscal impact $330.00. Project 69081
WBS 1.
3)
Approve Supplemental Agreement No. 9 for professional design
services by Hole Montes, Inc., for the Immokalee Road Six-Laning
Project from U.S. 41 to 1-75, County Project Number 66042, Bid
Number 00-3057. Fiscal impact: $224,905.
PUBLIC UTILITIES
1)
Board approval of a budget amendment to recognize additional
revenue from Contract No. ML040284 with the South Florida Water
Management District in the amount of $40,000. A Pollution Control
Surface Water Sampling Program.
2)
Approve an agreement between Calusa Island Village, L.C., a Florida
limited liability company and the Board of County Commissioners
regarding the proposed upgrades to the Goodland Water Pumping
Station.
3)
Approve the purchase of a 2.81-acre lot at the northwest comer of
Wilson Boulevard and 14th Avenue NW for water supply well sites at
a total cost not to exceed $79,735; Project 701581.
4)
Authorization to waive the competitive bidding process for technical
assistance to perform a post implementation review, workflow
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March 9, 2004
0
analysis and documentation of operating procedures for the Utility
Billing Software System - (at a not-to-exceed cost of $72,300).
s)
Accept amendments to two grant agreements (Project time extensions)
with South Florida Management District.
6)
Approve funding and budget amendment for project management
process documentation and authorize the Public Utilities Engineering
Director to execute Work Order GH-FT-04-02 with Greeley &
Hansen in the amount of $31,706, Project 75000.
7)
Approve a Work Order under Contract #01-3271, fixed term
professional engineering services for coastal zone management
projects, with Coastal Planning & Engineering for a public
information program, Phase 2, for the County/City of Naples major
beach renourishment, Project 90527, in an amount not to exceed
$47,870.
8)
Accept grant agreement (Grease Control Educational Program) from
the South Florida Water Management District in the total amount of
$25,000 and approve necessary budget amendments.
9)
Accept four grant agreements from the South Florida Water
Management District in the total amount of $315,700.
PUBLIC SERVICES
1)
Approval of the Collier County Health Department Fee Schedule for
FY2004.
ADMINISTRATIVE SERVICES
1)
Recommendation that the Board of County Commissioners repeal
Resolutions 2001-294 and 2002-464 and adopt two new resolutions
for the sole purpose of removing any language related to authorization
to sign grant applications recognizing that such authority is outlined in
the County Manager's grant coordination procedure in the Practices
and Procedures manual.
2)
Recommendation that the Board of County Commissioners approve
and ratify a recommendation to file suit for recovery of
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March 9, 2004
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repair/replacement costs incurred by the County in connection with
property damage caused by a third party.
3)
Approval to utilize State contracts for purchase of furniture and floor
covering over twenty-five thousand dollars ($25,000).
4)
Report and ratify staff-approved change orders and changes to work
orders to Board-approved contracts.
5)
Approve payments to sub-consultants for the Naples Jail Project in the
amount of $112,845.
6)
Award annual contract for Underground Utility Contracting Services
pursuant to RFP #04-3535, in the estimated annual amount of
$6,000,000.
7)
Approve contract for Construction Manager at Risk for the proposed
Courthouse Annex and Parking Garage, RFP #04-3576 to Kraft
Construction Inc.
8)
Approve Amendment No. 1, Contract #02-3422, to Disney and
Associates, P.A., for architectural services for design of the new
County Fleet Facility in the amount of $154,750.
COUNTY MANAGER
1)
Recognize and approve the FEMA Assistance to Firefighter's
Matching (90/10) Grant in the amount of $157,500 and approve the
necessary budget amendments.
2)
Approval of Cooperative Agreement with the South Florida Water
Management District accepting $1,000,000 annual funding
contribution to Collier County for the first ten years of the twenty-
year agreement.
AIRPORT AUTHORITY
1)
That the Board of County Commissioners approve a budget
amendment increase of $16,000 to fund revised estimated costs to
complete powder coating conversion and other improvements to the
powder coating facility at the Immokalee Regional Airport.
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March 9, 2004
17.
2)
Approve the search for an Executive Director for the Collier County
Airport Authority.
H. BOARD OF COUNTY COMMISSIONERS
1)
Commissioner Coletta's request for approval for reimbursement for
attending a function serving a valid public purpose; the Hispanic
Chamber of Commerce of Collier County Annual Awards Banquet in
the amount of $65.00 as a "Valid Public Purpose".
I. MISCELLANEOUS CORRESPONDENCE
1) Miscellaneous items to file for record with action as directed.
J. OTHER CONSTITUTIONAL OFFICERS
1)
That the Board of County Commissioners make a determination of
whether the purchases of goods and services documented in the
Detailed Report of Open Purchase Orders serve a valid public purpose
and authorize the expenditure of County funds to satisfy said
purchases. A copy of the detailed report is on display in the County
Manager's Office, 2nd Floor, W. Harmon Turner Building, 3301 East
Tamiami Trail, Naples FL.
K. COUNTY ATTORNEY
1) Recommendation for the Board of County Commissioners to approve
a revised Retention Agreement with the Law Firm of Carlton, Fields,
Ward, Emmanuel and Smith, P.A., and to waive the purchasing
policy, to the extent that is necessary, and/or to exempt this request
from formal competition pursuant to Section VII.G. of the Purchasing
Policy.
SUMMARY AGENDA - THIS SECTION IS FOR ADVERTISED PUBLIC
HEARINGS AND MUST MEET THE FOLLOWING CRITERIA: 1) A
RECOMMENDATION FOR APPROVAL FROM STAFF; 2) UNANIMOUS
RECOMMENDATION FOR APPROVAL BY THE COLLIER COUNTY
PLANNING COMMISSION OR OTHER AUTHORIZING AGENCIES OF
ALL MEMBERS PRESENT AND VOTING; 3) NO WRITTEN OR ORAL
OBJECTIONS TO THE ITEM RECEIVED BY STAFF, THE COLLIER
COUNTY PLANNING COMMISSION, OTHER AUTHORIZING
AGENCIES OR THE BOARD, PRIOR TO THE COMMENCEMENT OF
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March 9, 2004
THE BCC MEETING ON WHICH THE ITEMS ARE SCHEDULED TO BE
HEARD; AND 4) NO INDIVIDUALS ARE REGISTERED TO SPEAK IN
OPPOSITION TO THE ITEM. FOR THOSE ITEMS, WHICH ARE
QUASIJUDICAL IN NATURE, ALL PARTICIPANTS MUST BE SWORN
IN.
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This item requires that all participants be sworn in and ex parte
disclosure be provided by Commission members. Petition
AVPLAT2003-AR4687 to disclaim, renounce and vacate the County's and
the Public' s interest in a portion of the 10 foot wide drainage easement
located along the rear of Lot 171, according to the plat of"Phase Two
Queens Park at Lago Verde" as recorded in Plat Book 14, Pages 94 through
95, Public Records of Collier County, Florida. Located in Section 18,
Township 50 south, Range 26 east.
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This item requires that all participants be sworn in and ex parte
disclosure be provided by Commission members. Petition: PUDZ-03-
AR-4528, Robert Duane of Hole Montes, Inc., representing Kevin Ratterree
of GLH Development, L.L.L.P., requesting a rezone from "PUD" to a
"PUD" Planned Unit Development to be known as the Terafina PUD. 'The
purpose is to eliminate the golf course tracts, reconfigure the land use tracts,
updating the Transportation commitments, revise the development standards
and to provide for well fields and additional landscaping for property located
approximately one mile north of Immokalee Road (C.R. 846) and on the
north side of the Olde Cypress PUD in Section 16, Township 48S, Range
26E and consisting of 637 acres.
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This item requires that all participants be sworn in and ex parte
disclosure be provided by Commission members. PUDZ-2003-AR-4648,
Florida Conference Association of Seventh-Day Adventists represented by
Robert L. Duane of Hole Montes, Inc., and Richard D. Yovanovich, Esq. of
Goodlette, Coleman & Johnson, requesting a rezone from "A" Rural
Agricultural and "PUD" Planned Unit Development to PUD known as the
Loch Ridge PUD by amending the PUD Master Plan to increase acreage
from 13.44 acres to 18.05 acres, show a change in ownership, add church,
private school, and community center as permitted uses, revise the plant
nurseries, florist and vegetable sales uses to be allowed only on a temporary
basis for up to three years, eliminate assisted living facility as a permitted
use, and add accessory uses related to church and school. Property is located
on the south side of Davis Boulevard, approximately 2000 feet east of the
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March 9, 2004
Kings Way/Davis Boulevard intersection, in Section 7, Township 50 South,
Range 26 East, Collier County, Florida.
18. ADJOURN
INQUIRIES CONCERNING CHANGES TO THE BOARD'S AGENDA SHOULD
BE MADE TO THE COUNTY MANAGER'S OFFICE AT 774-8383.
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March 9, 2004
March 9 & 10, 2004
Item #2A
REGULAR, SUMMARY AND CONSENT AGENDA-APPROVED
AND/OR ADOPTED WITH CHANGES
MR. OCHS: You have a live mike, Madam Chair.
CHAIRMAN FIALA: Oh, thank you.
The meeting will come to order.
Would you all please stand. We have Father Tim Navin with us
this morning.
And before Father Tim comes up and gives our morning
invocation, I just want to tell him how proud we all are of you, Father
Tim.
FATHER NAVIN: Thank you.
CHAIRMAN FIALA: Twenty-fifth-- 25 years ago he was
ordained as a priest.
FATHER NAVIN: Yes.
(Applause.)
CHAIRMAN FIALA: Thank you. I knew you wouldn't come if
I told you we were going to do that.
FATHER NAVIN: I would have traded it all for a parking spot
this morning.
CHAIRMAN FIALA: Father Tim is also on my kitchen cabinet
with -- as my advisory group for the East Naples area, and we're just
so proud of you and we all love you.
FATHER NAVIN: Thank you, dear. Thank you. Well, that was
unexpected.
Let us pray. Lord, you have called all of us to serve one another
with humility and truth. Let our prayers for our community leaders,
employees, and their efforts to work together. May they use our tax
moneys wisely and do their jobs to the best of their ability for the
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March 9 & 1 O, 2004
good of the whole community. Keep our neighborhoods safe and fill
us with the courage to follow your will in all things. Amen.
CHAIRMAN FIALA: And now we'll say the Pledge of
Allegiance.
(The Pledge of Allegiance was recited in unison.)
CHAIRMAN FIALA: Thank you.
FATHER NAVIN: Thank you, thank you.
CHAIRMAN FIALA: Oh, hi. How are you? This gentleman
here in the front row, Mr. Nunez, is a Key Club member, and
Commissioner Henning will know what a Key Club is because the
Kiwanis clubs do a lot with the Key Clubs. These guys are just vital
in our community. It's good to see you here this morning. MR. NUNEZ: You, too.
CHAIRMAN FIALA: Sorry to be on such a personal level. I
should sound more business-like; right, kids? Well, this is my style.
Now, this morning, we -- I'd like to ask our county attorney--
county attorney, Pat, do you have anything that you'd like to mention
for the consent agenda, for the regular agenda?
MR. WHITE: Assistant County Attorney Patrick White. There's
nothing that I'm aware of, but if there is, we'll get back to you, Madam
Chair.
CHAIRMAN FIALA: Thank you.
Mr. Mudd?
MR. MUDD: Madam Chair, good morning.
First of all I'd like to welcome the Know Your County
Government Teen Citizenship Program and all the participants that are
sitting off to your right-hand side in the front that I was talking to prior
to the meeting.
This is -- this also is their 25th year of doing this particular
program, and I think it's a milestone for them, and I'd like them to wel
-- I'd like to welcome them to our proceedings this morning.
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March 9 & 10, 2004
(Applause.)
MR. MUDD: The agenda changes for the Board of County
Commissioners meeting, March 9th, 2004:
Additional information regarding item 9(D). The executive
summary -- approval of emergency authorization to contract with
private sector firms as required to perform studies and other items of
work in support of Collier County's restudy of the flood insurance rate
map recently rescinded by the Federal Emergency (sic) Agency
(FEMA).
Mr. Schmitt will help Commissioner Coletta in this particular
item, but there's -- but there's an addition. It's just not an update to the
FEMA issues as in your agenda, but it's also going to be an approval
of an emergency authorization to contract for a private sector firm to
continue work until 1, December 4 (sic) as far as data that FEMA
needs.
The second item is to add item 10(D), and that's to award work
order PBS-02-35 in the amount of $66,264 to Professional Building
Systems, Inc., for the repair to the Cocohatchee River Park south
docks, contract number 02-3349, and Mr. Dunnuck will present.
The third item is move item 16(C)7 to 10(E). This item will not
be heard earlier than two p.m. Approve a work order under contract
01-3271, fixed term professional engineering services for coastal zone
management projects with coastal planning and engineering for a
public information meeting, phase 2, for the county/City of Naples
major beach renourishment, project 90527, in an amount not to exceed
$47,870. And this was moved at Commissioner Henning's request.
Notes: Item 16(E) 1 should read: Recommendation that the
Board of County Commissioners repeal resolutions 2001-294 and
2002-464 and adopt a new resolution (rather than two new resolutions)
for the sole purpose of removing any language related to authorization
to sign grant applications recognizing that such authority is outlined in
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March 9 & 1 O, 2004
the county manager's grant coordination procedure in the Practices
and Procedures Manual, and that's at staff's request.
Next item under notes: Replacement page for item 8(A).
Replacement pages have been provided for page 50 of this item. The
total square footage for general government buildings impact fee
inventory is 582,258. That's at staff's request.
Another item that I was getting -- as I -- as somebody was talking
in my ear, and this has to do with 17(C), and I'd like to read this -- this
particular change into the record.
The applicant shall be responsible for the construction of a right
turn lane at the project entrance at Davis Boulevard. Construction of
this improvement shall be completed prior to the issuance -- issuance
of a Certificate of Occupancy.
Time certain items for today: Item 7(A) to be heard immediately
following 7(B) Wednesday, March 10th, 2004. Again, item 7(A) and
7(B) that have to do with the Cap D'Antibes appeal will be heard
tomorrow starting at nine o'clock; however, item 7(A) will be the
second item for -- on tomorrow's agenda. And 7(B) will be heard first
at nine a.m. Wednesday on March 10th, 2004.
And I don't think I need to read the particular items. It has to do
the Cap D'Antibes appeals, and everybody's aware of it. It's been
published in our agenda. But again, 7(B) will be heard at nine o'clock,
followed by 7(A) tomorrow.
And the last item is item 10(A) to be heard at 1:30 p.m., and this
is your annual advisory board reports. This is to review the written
and oral reports of the advisory boards and committees scheduled for
review in 2004, in accordance with order number 2001-55, including
the Citizens Advisory Task Force, the Collier County Code
Development Board, Contractors' Licensing Board, Golden Gate
Parkway Beautification Advisory Committee, Immokalee
Beautification Advisory Committee, Isles of Capri Fire Control
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March 9 & 1 O, 2004
District Advisory Board, Parks and Recreation's Advisory Board, and
the Collier County Water and Wastewater Utility Authority.
That's all I have, Madam Chair.
CHAIRMAN FIALA: Thank you.
Commissioner Halas, do you have any ex parte for the summary
agenda or any additions or changes?
COMMISSIONER HALAS: Yes, I do. I had one meeting
scheduled on the ex parte with Terafina, but it was canceled.
CHAIRMAN FIALA: No additions or changes --
COMMISSIONER HALAS: No additions or corrections to the
agenda.
CHAIRMAN FIALA: Okay.
Commissioner Coletta?
COMMISSIONER COLETTA: Okay. Of course, we're not
covering A and B today, on 17 (sic), summary agenda. I'll do that
tomorrow as far as declarations goes.
On C, yes, I did have correspondence, and I have them right here
in my file for anyone that wishes to see them.
CHAIRMAN FIALA: Thank you.
Commissioner Henning?
COMMISSIONER HENNING: 17(B), I did talk to the petitioner
and representatives. I did talk to residents from Olde Cypress, Long
Shore, Quail Creek Estates, staff. And other emails that I received are
in my file for anybody's review.
CHAIRMAN FIALA: Commissioner Coyle?
COMMISSIONER COYLE: I have no additional changes to the
agenda, and I do have a disclosure on item 17(B) of the summary
agenda. I did meet with the petitioner and the petitioner's
representative concerning that item, and I also have received some
telephone calls. And any other correspondence will be in my file.
CHAIRMAN FIALA: David, shall we be declaring our 17(A)
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March 9 & 1 O, 2004
(sic) and (B) tomorrow? Because some of our commissioners were
waiting till tomorrow, some were giving them today.
MR. WEIGEL: No, it's fine to do it at the initiation of each of
those hearing items tomorrow.
CHAIRMAN FIALA: Okay. Very good.
MR. MUDD: Ma'am, you meant-- you meant 7(A) and (B),
correct?
CHAIRMAN FIALA: I'm sorry, 7(A) and (B).
COMMISSIONER COYLE: Yeah. We're talking about
summary agenda.
MR. MUDD: We're doing summary agenda right now.
CHAIRMAN FIALA: Yeah, I'm sorry.
COMMISSIONER COYLE: That's okay.
CHAIRMAN FIALA: I'm getting way off base, excuse me.
Thank you. I'm sorry. Probably all the kids in the audience make me
nervous, right?
Okay. Yes, I -- I have some disclosures on the summary agenda.
17(A), I have no disclosures, but 17(B), I have received (sic) a file
here, it has all of my phone calls and emails in it.
And with 17(C), although I hadn't gotten any emails or anything,
I initiated some phone calls, talked with staff about this, just to make
sure that I felt comfortable with it before approving it, and I do.
Staff has gotten back to me with all the information that I needed,
so I am comfortable with that. However, I would like to add one item
to our agenda, and that is, I'm not comfortable with what I feel isn't a
clear guidance to -- to the -- I'm sorry.
We had the listed species, and we wanted to put them on the
glitch cycle. And when I went back through the meeting notes, I felt
that some of the meeting notes said yes, we need to -- Marti Chumbler
said, yes, we need to have this cleared up on the glitch cycle because
there's some confusion, and we needed to give clear guidance to our
Page 7
March 9 & 10, 2004
staff, yet on the next one we kind of just glossed over it, and what I
would like to do is add that conversation to our meeting today so that
we commissioners can discuss that.
And that's all for me, but we do have some speakers. On 17(A)?
MS. FILSON: Yes, ma'am. 17(B) I have three speakers on the
summary agenda.
Susan Dinino. Susan?
UNIDENTIFIED SPEAKER: We can't hear.
COMMISSIONER HENNING: Sue, you might want to pull
your mike up.
MS. FILSON: Susan Dinino. You're registered.as a speaker for
17(B). Would you like to come up? She will be followed by Meggan
Davis, who will be followed by Carol Wilsey.
MS. DININO: Hi. My name is Susan Dinino, and I am a
resident of Santorini section of Olde Cypress.
This is the neighborhood on the south border of the GL Homes,
Santorini Falls, Terafina PUD. I'm here today because these plans
have been outlined for the portion of Terafina that will border our
development and it will increase the hardship of the residents along
the northern border of Olde Cypress.
We are being asked to approve -- what you are being asked to
approve today will create a potential for a development that violates
our rights to privacy, a potential habitant for those with a peeping tom
mentality.
The development, we have been told by GL Homes, sits on land
that is naturally about three feet higher than Olde Cypress. When the
homes are built along the south border, they will be 18 to 24 inches
above the crown of the road. This means that the base level of each
home will already be at least five feet above ours.
GL Homes wants these hom-- GL Homes wants these homes to
be only 30 feet from the back property line, and they are proposing
Page 8
March 9 & 1 O, 2004
two-story homes to be built there. This tells me -- this tell us it is
because -- that we are increas -- because it is to increase the
profitability by placing these homes in this area.
The problem with this scenario is that the second story of these
homes will then be approximately 20 feet above our homes. Even
with the wall that has been proposed, we are inviting those residents to
look inside our bedrooms and our pool areas. They won't need
binoculars to see us either.
There will be at least 10 women living on that border with
children and grandchildren as well.
Our homes were originally proposed to be looking into green
space. It was going to be a golf course. We are now telling -- we are
not telling GL Homes that they can't build their homes there. We are
just asking for our rights to privacy.
And we need the -- we need neither -- we either need the
two-story homes to be moved to another area of their development or
to have these homes landscaped very heavily with 20 feet high bushes.
Thank you for your time and consideration, and I urge you to
please have them put one-story homes there instead of the two-story
homes. Okay.
MR. WEIGEL: Madam Chairman?
CHAIRMAN FIALA: Yes, sir.
MR. WEIGEL: I would suggest -- this appeared to be more than
a question for clarification, and so I would respectfully suggest that
the item be moved to the regular agenda so that speakers can be sworn
in and testify on the matter as opposed to remaining on the summary
agenda.
CHAIRMAN FIALA: Commissioners?
COMMISSIONER COYLE: I agree.
CHAIRMAN FIALA: If that's okay with you. Very good.
Thank you.
Page 9
March 9 & 10, 2004
MS. DIN1NO: Thank you.
CHAIRMAN FIALA: Do we hear the rest of the speakers now
then or wait till --
MR. WEIGEL: I would suggest that it be heard as called on the
regular agenda, and to the extent that the speaker having just spoken,
would need to be recognized for what she said or replead, restate what
she said under oath at that point briefly and the other speakers allowed
to speak as well so that we can actually have the appropriate dialogue
as a regular agenda item, and if need be, notification should be done to
the parties in interest, such as the petitioner, so that they will know
that the matter is coming up on the regular agenda later today.
CHAIRMAN FIALA: Very good. Thank you.
So then we don't hear the other two speakers then until later?
MR. WEIGEL: Not at this point, no.
CHAIRMAN FIALA: Thank you.
MR. MUDD: And that would be 8(B).
CHAIRMAN FIALA: 8(B).
And when will the agenda item that I requested be on?
MR. MUDD: Ma'am, that item will come under communications
and staff, if that's where you want it to be.
CHAIRMAN FIALA: Okay, very good.
MR. MUDD: So it will go on 15.
CHAIRMAN FIALA: And so that will be on 15?
MR. MUDD: Yes, ma'am.
CHAIRMAN FIALA: Okay. Very good.
Okay. Commissioners, may I have a --
COMMISSIONER COLETTA: Motion to approve.
COMMISSIONER COYLE: Second.
CHAIRMAN FIALA: Okay. We have a motion to approve the
regular, consent, and summary agendas as amended.
All those in favor, say aye.
Page 10
March 9 & 10, 2004
COMMISSIONER HALAS: Aye.
COMMISSIONER COLETTA: Aye.
CHAIRMAN FIALA: Aye.
COMMISSIONER COYLE: Aye.
COMMISSIONER HENNING: Aye.
CHAIRMAN FIALA: And opposed, like sign.
(No response.)
CHAIRMAN FIALA: Very good.
Page 11
AGENDA CHANGES
BOARD OF COUNTY COMMISSIONERS' MEETING
March 9, 2004
Additional information reqardin.q Item 9D: Executive Summary - Approval of
emergency authorization to contract with private sector firms, as required, to
perform studies and other items of work in support of Collier County's restudy of
the flood insurance rate maps recently rescinded by the Federal Emergency
Management Agency (FEMA). (Joe Schmitt, Administrator, Community
Development and Environmental Services)
Add Item 10D: Award Work Order PBS-02-35 in the amount of $66,264 to
Professional Building Systems, Inc., for the repairs to Cocohatchee River Park
south docks, Contract Number 02-3349. (John Dunnuck, Public Services
Administrator)
Move Item 16C7 to 10E: This item will not be heard earlier than 2:00 p.m. Approve
a Work Order under Contract #01-3271, fixed term professional engineering
services for coastal zone management projects, with Coastal Planning and
Engineering for a public information meeting, Phase 2, for the County/City of
Naples major beach renourishment, Project 90527, in an amount not to exceed
$47,870. (Commissioner Henning's request)
Notes:
Item 16E1 should read: Recommendation that the Board of County
Commissioners repeal Resolutions 2001-294 and 2002-464 and adopt a new
resolution (rather than "two new resolutions") for the sole purpose of removing
any language related to authorization to sign grant applications recognizing that
such authority is outlined in the County Manager's grant coordination procedure
in the Practices and Procedures Manual. (Staff request)
Replacement pa.qe for Item 8A: Replacement pages have been provided for Page
50 of this item. The total square footage for general government building impact
fee inventory is 582,258. (Staff request)
Time Certain Items:
Item 7A to be heard immediately followinq Item 7B, Wednesday, March 10, 2004.
ADA-2004-AR-5218 Pelican Bay Foundation, Inc., represented by Robert D. Pritt of
Roetzel and Andress, request an appeal to official interpretation INTP-2003-AR-
4307 relating to the approval of SDPA-2001-AR-412 for the Cap D'Antibes
Condominium Project, Waterpark Place, within the Pelican Bay DRI-PUD. This
appeal is pursuant to Collier County Land Development Code (LDC) Section 1.6.6.
(Petitioner request.)
Item 7B to be heard at 9:00 a.m., Wednesday, March 10, 2004. ADA-2004-AR 5218
Pelican Bay Foundation, Inc., represented by Robert D. Pritt of Roetzel and
Andress, requesting an appeal to official interpretation INTP-2003-AR-4307
relating to the approval of SDPA-2001-AR-421 for the Cap D'Antibes Condominium
Project, Waterpark Place, within the Pelican Bay DRI-PUD. This appeal is
pursuant to Collier County Land Development Code (LDC) Section 1.6.6.
Item 10A to be heard at 1:30 p.m. Review the written and oral reports of the
advisory boards and committees scheduled for review in 2004 in accordance with
Ordinance No. 2001-55, including the Citizens Advisory Task Force, Collier County
Code Enforcement Board, Contractors Licensing Board, Golden Gate Parkway
Beautification Advisory Committee, Immokalee Beautification Advisory
Committee, Isles of Capri Fire Control District Advisory Board, Parks and
Recreation Advisory Board, and Collier County Water and Wastewater (Utility)
Authority.
March 9 & 1 O, 2004
Item #2B through #2F
MINUTES OF REGULAR MEETING OF FEBRUARY 10, 2004;
LDC SPECIAL MEETING OF FEBRUARY 11, 2004; TRI-
COUNTY MEETING OF FEBRUARY 17, 2004; DISTRICT 2
TOWN HALL MEETING OF FEBRUARY 18, 2004; AND
EVERGLADES CITY WORKSHOP OF FEBRUARY 25, 2004-
APPROVED AS PRFiSF, NTF, D
COMMISSIONER HENNING: Make a motion that we approve the
February 10th, '04, BCC regular meeting; February 1 lth, '04,
BCC/LDC meeting; February 17th, '04, tri-county meeting; February
18th, '04, BCC/District 2 town hall meeting; and February 25th, '04,
BCC/Everglades City workshop.
COMMISSIONER HALAS: I second that.
CHAIRMAN FIALA: Okay. I have a motion on the floor and a
second for the approval of the minutes for the five meetings stated.
All those in favor, say aye.
COMMISSIONER HALAS: Aye.
COMMISSIONER COLETTA: Aye.
CHAIRMAN FIALA: Aye.
COMMISSIONER COYLE: Aye.
COMMISSIONER HENNING: Aye.
CHAIRMAN FIALA: Opposed, like sign.
(No response.)
CHAIRMAN FIALA: Very good. Passes, 5-0.
Item #4A
PROCLAMATION RECOGNIZING THE WEEK OF MARCH 7-13,
2004, AS KNOW YOUR COUNTY GOVERNMENT WEEK-
Page 12
March 9 & 10, 2004
ADOPTED
Now we go on to our proclamations, and I have the privilege and
honor of presenting the first one to be accepted by Cody Martin,
student at Naples High School, and Jose Nunez, student at St. John
Neumann.
Would you please come up and stand here for me.
And you can face the audience, as embarrassing as it is. Good
morning.
Proclamation: Whereas, Collier County government is a
complex and multifaceted process which affects the lives of all
residents of Collier County; and,
Whereas, an increased knowledge of how various aspects of
county government work can enhance an individual's quality of life in
Collier County; and,
Whereas, it is desirable for all county residents to be
knowledgeable of the county's government and how it works; and,
Whereas, the League of Women Voters of Collier County,
Collier County University Extension/4-H Youth Development, and the
Collier County Public Schools have co-sponsored the Know Your
County Government Teen Citizenship Program for 25 years.
Now, therefore, be it proclaimed by the Board of County
Commissioners of Collier County, Florida, that the week of March 7th
to the 13th, 2004, be designated as the 25th anniversary of the Know
Your County Government Week.
Done and ordered this 9th day of March, 2004, Board of County
Commissioners, Donna Fiala, Chairman.
I make a motion to approve.
COMMISSIONER HALAS: Second that.
COMMISSIONER COYLE: Second.
CHAIRMAN FIALA: I have a motion and second.
Page 13
March 9 & 1 O, 2004
All those in favor?
COMMISSIONER HALAS: Aye.
COMMISSIONER COLETTA: Aye.
CHAIRMAN FIALA: Aye.
COMMISSIONER COYLE: Aye.
COMMISSIONER HENNING: Aye.
CHAIRMAN FIALA:
(No response.)
CHAIRMAN FIALA:
(Applause.)
And opposed, like sign.
Thank you very much.
CHAIRMAN FIALA: I want to shake your hand.
COMMISSIONER COYLE: Congratulations.
CHAIRMAN FIALA: You know, it does your heart good to see
all these shining nice faces, doesn't it? You read -- you read things in
the paper, but you see a whole group of really great kids that represent
our community, and we're all proud of you. Thank you.
MR. NUNEZ: Good morning, Commissioners.
CHAIRMAN FIALA: Good morning.
MR. NUNEZ: Jose Nunez, and we wish to thank you, the
Commission, County Manager, and all county divisions and
department heads, the constitutional officers and staff and volunteers
of the Collier County University of Florida, IFAS Extension, 4-H
Youth Development Program, Collier County League of Women
Voters, and Collier County Public Schools who have made -- who
have worked together to make the Know Your County Government
Program possible as we celebrate our 25th year.
Twenty-nine high school students from throughout the county are
participating representing Naples, Barron Collier, Immokalee, Gulf
Coast, Lely, St. John Neumann, and home-schoolers as well.
During the past three weeks, we have traveled our county and
learned about our county government. This is my second year, and
Page 14
March 9 & 1 O, 2004
just when I thought I was as knowledgeable as any 17-year-old should
be about county government, I learned many new things, as I'm sure
you, the commissioners, learn something new about our county and its
people every day.
We visited the county museum, Domestic Animal Services, the
supervisor of elections, Emergency Management Department, the
Water Treatment Plant, the landfill, and we've made a special trip to
Immokalee.
We also met some of our constitutional officers and county
heads. My favorites are, as always, Sheriff Hunter and our tax
collector, Guy Carlton.
Sheriff Hunter gave us a very in-depth look into county
government -- into county law enforcement -- excuse me -- task forces
and special assignment units, such as SWAT and drug enforcement
units. We then toured the 911 Emergency Response Unit.
We then visited our tax collector, Guy Carlton, where we learned
the Tax Collector's Office does much more than simply manage taxes;
it also manages the Department of Motor Vehicles and it issues all
sorts of licenses, from boaters to hunting to distribution of disabled
parking permits.
We also visited the Water Treatment Plant and the landfill. Both
of these facilities are very humbling, as we take for granted that our
trash is picked up, and every day we have running water for whatever
needed.
The workers at these facilities are just as instrumental as our
county heads, because although we would be a mess without our
commissioners, we would literally be a mess without our landfill and
without running water.
We also met with the public services director, John Dunnuck.
Mr. Dunnuck oversees many departments in public services and gives
equal attention to each, which is not an easy task.
Page 15
March 9 & 10, 2004
One of the goals of the Public Services Division is to make
Collier County a great place to visit and an even better place to live.
We all agree that the Public Services Division has done just that.
This morning we're looking forward to seeing the Commissioners
in action, visiting the Clerk of Courts and a courtroom and especially
to having lunch with you and celebrating the 25th year of the Know
Your County Government Program.
During this week, there has been one common factor within all of
these departments and divisions that we visited, and that's growth. All
the individuals we met work hard and efficiently every day to keep
Collier County from being consumed by this growth.
Collier County is a great place to grow up, and I'm glad I've had
the opportunity to participate in this program and be an active member
of this community.
MR. MARTIN: My name is Cody Martin.
We've learned about some of the challenges facing Collier
County. Rapid growth has brought several other important issues that
must be dealt with.
Simply housing residents is a tremendous task. Also providing
the basics, such as water management, electricity, waste management,
roads for increased traffic, and health services become increasingly
problematic as our county grows.
As our county sees more and more development, proper land use
and enforcement of building regulations needs to be given more
attention.
Lastly, care and control of the animal population. As the number
of unneutered animals, particularly cats and dogs, rises, so does their
abuse and neglect. A program is being instituted to spay and neuter
most of Naples in order to decrease the population of stray and
unwanted animals in -- excuse me -- Collier County.
We're also looking forward to our trip to the courthouse, meeting
Page 16
March 9 & 10, 2004
with the Clerk of Courts, and our lunch with you, the county
commissioners.
In addressing the board, we are able to add another component to
our learning process.
Again, thank you for the opportunity to take part in this program
and for everything you do, Commissioners, constitutional officers, and
dedicated county staff. Thank you.
CHAIRMAN FIALA: Thank you.
Item #4B
PROCLAMATION DESIGNATING THE WEEK OF MARCH 8-13,
2004 AS HABITAT FOR HUMANITY'S BUILD A BETTER
FI ITl IRFJ WFJFK - ADOPTFD
Our next proclamation is to designate the week of March 8th to
the 13th as Habitat for Humanities Build a Better Future Week, to be
accepted by Dr. and Mrs. Sam Durso and read by --
COMMISSIONER HALAS. Frank Halas.
CHAIRMAN FIALA: -- Frank Halas.
COMMISSIONER HALAS: Would Dr. Durso and Maryanne
Durso please come forward.
These two people are very actively involved. In fact, they're the
people that basically established Habitat for Humanity here in Collier
County.
At this time I'd like to read this proclamation.
Whereas, it's been identified that within Collier County there is a
need for more than 20,000 affordable housing units; and,
Whereas, the valued residents of our community who need
affordable housing serve its people and the businesses that are the
economic backbone of our county; and,
Page 17
March 9 & 1 O, 2004
Whereas, the average sale price of a home in Collier County is
more than $330,000 (sic); and,
Whereas, the Habitat for Humanity International was established
in 1976 to guarantee that every individual have the opportunity of
owning a decent place to -- in which to live; and,
Whereas, the Habitat for Humanity affiliate of Collier County
was founded for the purpose of addressing the needs of affordable
housing within the borders of our county for the very low-income
families; and,
Whereas, since its establishment as an independent affiliate in
1978, the community of Collier County, including its people,
churches, businesses, government, and philanthropic partners have
joined together in constructing 600 homes and providing shelter for
more than 3,000 individuals in our county and its communities; and,
Whereas, the commitment of our county and the people who
reside in it, is to work in a partnership to address all matters of social
needs for the betterment of the community for which it has chosen to
be part of.
Now, therefore, be it proclaimed by the Board of County
Commissioners of Collier County, Florida, that March 8th to March
13th, 2004, be designated as Humanity -- Habitat for Humanity Build
a Better Future Week within Collier County Florida, for the purpose
of recognizing the success and achievements of the
internationally-recognized committed to building community
infrastructure throughout the world and within the confines of our
county.
Done on the order of this 9th day of March, 2004, Board of
County Commissioners, Collier County, Florida, Donna Fiala,
chairperson, and I move that we adopt this proclamation.
CHAIRMAN FIALA: Second.
All those in favor, say aye.
Page 18
March 9 & 10, 2004
COMMISSIONER HALAS: Aye.
COMMISSIONER COLETTA: Aye.
CHAIRMAN FIALA: Aye.
COMMISSIONER COYLE: Aye.
COMMISSIONER HENNING: Aye.
CHAIRMAN FIALA:
(No response.)
CHAIRMAN FIALA:
And opposed, like sign.
Thank you. Congratulations.
Congratulations to us for having you, right? (Applause.)
COMMISSIONER COYLE: Thank you very much.
COMMISSIONER COLETTA: Thank you.
CHAIRMAN FIALA: We need you to take a picture with us.
COMMISSIONER COLETTA: Need a picture?
CHAIRMAN FIALA: Yes.
You want to say a couple words?
DR. DURSO: Sure. Thank you very, very much.
We've been doing this for a long time, and our plan is to be up
here for a long time in the furore.
Six hundred homes in 26 years sounds great. We did 500 in the
last 10 years. We did 110 in the last year.
We had a dinner last night for our big donors, and I challenged
them last night to help us raise the money to do the next 1,500 homes
in Collier County in the next 10 years. That's our goal, so you're
going to see a lot of us, and we need lots of cooperation from the
county commissioners and staff.
And if you guys help us, we think we can do it. And there
certainly is a need for those 1,500 homes, so -- that's our challenge
now, 1,500 homes in the next 10 years, okay?
Thanks very much.
(Applause.)
Page 19
March 9 & 1 O, 2004
Item #4C
PROCLAMATION RECOGNIZING THE MONTH OF MARCH,
2004 AS INVASIVE EXOTIC'S CONTROl, WEEK- ADOPTED
CHAIRMAN FIALA: The next proclamation to recognize the
month of March, 2004, as Invasive Exotics Control Week, to be
accepted by Melissa Hennig, environmental specialist for Collier
County. And Jim Coletta will -- will read this proclamation.
COMMISSIONER COLETTA: It's my honor, Madam Chair.
Whereas, the quality of life and the economic and ecological
well-being of Collier County are significantly dependent on the
county's natural resources; and,
Whereas, invasive exotic plants pose a significant threat to the
county's natural resources with certain plants causing safety and health
problems to county residents; and,
Whereas, the county -- Collier County Parks and Recreation,
facilities management, solid waste, transportation, water, wastewater,
and museum departments have upcoming and ongoing exotic
vegetation removal projects; and,
Whereas, the Environmental Service Department will be
removing invasive exotic plants from county-owned properties during
the week of March 14th, 2004; and,
Whereas, during the month of March, 2004, two Collier County
libraries will host presentations about invasive exotic plant control.
Now, therefore, be it proclaimed by the Board of Collier County
Commissioners of Collier County, Florida, that the week of March
14th, 2004, be designated as Invasive Exotic Control Week.
Done and ordered this, the 9th day of March 2004, Donna Fiala,
chairperson. Thank you.
Page 20
March 9 & 1 O, 2004
And I make a motion for approval.
COMMISSIONER HALAS: I second it.
CHAIRMAN FIALA: Second.
Okay. There's a motion on the floor by Commissioner Coletta,
second by Commissioner Halas.
All those in favor, say aye.
COMMISSIONER HALAS: Aye.
COMMISSIONER COLETTA: Aye.
CHAIRMAN FIALA: Aye.
COMMISSIONER COYLE: Aye.
COMMISSIONER HENNING: Aye.
CHAIRMAN FIALA: And opposed, like sign.
(No response.)
CHAIRMAN FIALA: Thank you for being here.
(Applause.)
MS. HENNIG: I would like to thank the board for proclaiming
the week as Invasive Exotics Control Week. It is an important
environmental issue, and it's always important to raise awareness in
the community about invasive exotic plants.
I'd also like to thank not only all of the county departments that
are doing a wonderful job with their exotics vegetation removal, but
also all of the local government agencies and nonprofit organizations,
businesses and citizens in Collier County who are also taking the task
of treating their invasive exotics. Thank you.
CHAIRMAN FIALA: Thank you very much.
Item #4D
PROCLAMATION TO HONOR THE COUNTY'S
ACHIEVEMENT, THE 500TM AED FROM EMS TO BE
Page 21
March 9 & 1 O, 2004
DEDICATED TO THE W. HARMON TURNER BUILDING IN
THE COLLIER COUNTY GOVERNMENT COMPLEX, THE
SYMBOLIC LOCATION OF WHERE THE PROGRAM BEGAN-
ADOPTED
Our last proclamation this morning is to honor the county's
achievement, the 500th AED -- excuse me -- from EMS to be
dedicated to the W. Harmon Turner Building in the Collier County
Government Complex, the symbolic location of where the program
began. To be accepted by Noemi Diaz, captain of Emergency
Medical Services for Collier County, and Commissioner Henning will
read this proclamation.
COMMISSIONER HENNING: Whereas, nearly 700 Americans
die each day from sudden cardiac arrest and 250,000 patients die each
year; and,
Whereas, nationally 95 percent of those who suffer from cardiac
arrest die from (sic) their reach-- when they reach the hospital; and,
Whereas, the American Heart Association emphasizes that access
to quick, quality emergency medical care improves the survival and
recovery of cardiac arrest patients dramatically; and,
Whereas, recovering (sic) that proactive health care is critical, the
board established an Advanced External Defibrillator (sic) (AED)
ordinance, May 12th, 1998; and,
Whereas, EMS deployed the first AED to the Collier County
Sheriff's Office on July 1st, 1989 (sic); and,
Whereas, AED machines allow paramedics, firefighters, trained
citizens in the community and law enforcement officers to respond
quickly to patients in cardiac arrest; and,
Whereas, today EMS county personnel (sic) and the communitY
-- to effectively use the lifesaving machines at over 230 locations
throughout the community; and,
Page 22
March 9 & 1 O, 2004
Whereas, Collier County presently has 499 AEDs in operation,
making it one of the most successful programs in the United States.
Now, therefore, be it proclaimed by the Board of Commissioners
of Collier County, Florida, that the honored (sic) -- county's
achievements, the 500 (sic) AED from EMS to be dedicated to the
Harmon Turner Building in Collier County Government Complex, a
symbolic location of where the program began.
Done in this order, 9th day of March, 2004. Signed by our
chairman, Commissioner Fiala.
And Commissioner, I make a motion that we accept this
proclamation.
COMMISSIONER COYLE: Second.
CHAIRMAN FIALA: I have a motion on the floor by
Commission Henning, second by Commissioner Coyle.
All those in favor, say aye.
COMMISSIONER HALAS: Aye.
COMMISSIONER COLETTA: Aye.
CHAIRMAN FIALA: Aye.
COMMISSIONER COYLE: Aye.
COMMISSIONER HENNING: Aye.
CHAIRMAN FIALA:
(No response.)
CHAIRMAN FIALA:
(Applause.)
And opposed, like sign.
Thank you very much.
MR. AGUILERA: Madam Chair? Go ahead?
For the record, George Aguilera, division chief for the Collier
County EMS Department.
CHAIRMAN FIALA: George, would you like to come up and
take a picture with us?
MR. AGUILERA: No, go ahead.
Good morning. For the record, George Aguilera, division chief
Page 23
March 9 & 1 O, 2004
for the Collier County EMS Department.
Just a brief-- I thank the board, county commissioners, county
manager's office for this proclamation.
In 1989 Collier County became the first county in the United
States to actually have adopted an ordinance to establish a very
aggressive yet coordinated plan to deploy these defibrillators, these
lifesaving machines throughout the community.
It continues today to be the primary model that's being used by
other communities and municipalities in the country as -- what they're
using in order to establish their community AED program. So it's
something that we're very, very proud of.
We're ecstatic to have reached our 500th, which was our
benchmark we established in 1998. I'm sorry, I said '89 (sic); '98. We
will now retool our benchmark and we'll hopefully be back in front --
when we hit 1,000. We're going to continue this aggressive
deployment.
It's been a tremendous benefit for the community. And, again,
we want to thank you for your support.
And with that, we'll do the official hand-off of the 500th AED.
(Applause.)
CHAIRMAN FIALA: Thank you very much.
Item 8(A).
MR. MUDD: Ma'am, that's adoption of ordinance amending
chapter 74 of the Collier County Code of Law and Ordinances, as
amended by ordinance number 2001-13, the Collier County
Consolidated Impact Fee Ordinance as amended, providing for the
adoption of a general government building impact fee with a delayed
effective date of April 1st, 2004. And Mr. Schmitt will present.
MR. SCHMITT: Go to the next item. They're not here.
MR. MUDD: Mr. Chairman (sic), the -- Mr. Tindale, who's the
presenter who is the contractor that did the impact fee isn't here in the
Page 24
March 9 & 1 O, 2004
audience today, and Mr. Schmitt has asked that this item --
CHAIRMAN FIALA: Oh, here he is.
MR. MUDD: Well, I take everything back that I just said.
MR. TINDALE: I was standing out there waiting for you-all to
call us. I need to set the computer up. Can I have a minute to do that,
or--
COMMISSIONER HENNING: Let's go to the next item.
Item #8B
ORDINANCE 2004-15 RE PETITION PUDZ-03-AR-4528,
ROBERT DUANE OF HOLE, MONTES, INC., REPRESENTING
KEVIN RATTERREE OF GLH DEVELOPMENT, L.L.L.P.,
REQUESTING A REZONE FROM "PUD" TO A "PUD" PLANNED
UNIT DEVELOPMENT TO BE KNOWN AS THE TERAFINA
PUD LOCATED ONE MILE NORTH OF IMMOKALEE ROAD
AND ON THE NORTH SIDE OF THE OLD CYPRESS PUD,
CONSISTING OF 637 ACRES- ADOPTED
MR. MUDD: Let's go to the next item, and that is 8(B), and
that's 17(B), and that item was -- was brought forward off the
summary agenda. And this item requires that all participants be sworn
in and ex parte disclosure be provided by commission members.
It's petition PUDZ-03-AR-4528, Robert Duane of Hole Montes,
Inc., representing Kevin Ratterree of GLH development, L.L.L.P.,
requesting a rezone from PUD to a PUD, Planned Unit Development,
to be known as the Terafina PUD.
The purpose is to eliminate the golf course tracts, reconfigure the
land use tracts, updating the transportation commitments, revise the
development standard, and to provide for wellfields and additional
landscaping for property located approximately one mile north of
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March 9 & 10, 2004
Immokalee Road, County Road 846, and on the north side of Olde
Cypress PUD in section 16, township 48S, range 26E, and consisting
of 637 acres.
CHAIRMAN FIALA: Who will be presenting?
COMMISSIONER HENNING: Why don't we go to the
speakers?
CHAIRMAN FIALA: Okay. Would you like to go to the
speakers first? Very good.
MS. FILSON: The first speaker is Susan Dinino. She will be
followed by Meggan Davis.
COMMISSIONER COYLE: Do you have to swear them in?
CHAIRMAN FIALA: Oh. I'm sorry, yes. We do have to swear
them in. Thank you.
Could you swear these people in. They're way in the back.
(The speakers were duly sworn.)
MS. FILSON: Susan Dinino.
CHAIRMAN FIALA: Well, now, we would have to -- we would
have to state -- oh, we've already done on the record --
MR. WEIGEL: We've already done that.
CHAIRMAN FIALA: Okay. Very good.
MS. FILSON: She will be followed by Meggan Davis, who will
be followed by Carol Wilsey.
MS. DININO: My name is Susan Dinino, and I'm a resident of
Santorini section of the Olde Cypress.
This is the community directly to the south of the proposed GL
Homes, Santorini, Terafina PUD.
I am here today because the plans that have been outlined for the
portion of Terafina that will border our development will increase a
hardship on all the residents on the north border of Olde Cypress.
They are being -- what are -- you are being asked to approve will
create a potential for a development that violates our rights to privacy,
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March 9 & 1 O, 2004
a potential habitant for those with a peeping tom mentality.
The development, as we have been told by GL Homes, sits on
land that is naturally about three feet higher than Olde Cypress. When
the homes are built along the south border, they will be 18 to 24
inches above the crown of the road. That means that the base level of
each home will already be five feet above ours.
GL Homes wants our homes to -- wants those homes to be 30
feet from the property line. They are proposing two-story homes there
on the back border of San -- like they have on the back border of
Santorini Lakes. This, they tell us, is because that will increase the
profitability by placing these homes in this area.
The problem with this scenario is that the second story of these
homes will then be approximately 20 feet above our homes. Even
with the wall that has been proposed, we are inviting those residents to
look inside our bedrooms and our pools. They won't need binoculars
to see us either.
There will be at least 10 women living in these homes along this
border with children and grandchildren as well.
These homes were originally proposed to be looking into green
space, a golf course. We are not telling GL Homes that they can't
build their homes there. We are -- or to take their golf course out. We
are asking for our rights to privacy.
We neither (sic) need the two-story homes to be moved to
another area or to be -- have the privacy landscaping along the south
border, at least 20 feet minimum in height. Thank you for your time.
MS. FILSON: Meggan Davis. She will be followed by Carol
Wilsey.
MS. DAVIS: Good morning, Commissioners. My name is
Meggan Davis. I -- I'm the president of the Longshore Lake Board of
Directors, our foundation.
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I wanted to come today to speak to you about GL Homes'
petition for -- to amend their PUD. We're in support of it in Longshore
Lake. The change from golf courses to lake without a change in any
of their density is acceptable to us.
Also, we've been in negotiations with GL Homes for almost --
almost a year to provide relief for us from the Logan Boulevard
Extension, which runs along the eastern side of our community.
GL Homes and Longshore Lake have entered into a formal
agreement for GL Homes to construct an eight-foot wall, irrigation,
landscaping, possible egress.
Now, this -- this comes at no cost to our homeowners and will
provide the needed relief that the 95 homes on our eastern border need
from the traffic on Logan Boulevard Extension.
An eight-foot wall will mitigate against sight and sound of that
traffic. And this is at no cost to our homeowners, so this is a
wonderful benefit to us.
We found GL Homes to be responsive. We've had weekly to
biweekly telephone calls with them. Just as an aside, when we got to
the endpoint where we were just about ready to sign and found out
that our dated irrigation system could not -- we couldn't take on the
additional irrigation on the other side of the wall, GL Homes also
agreed to drill a well for us so that we would be able to take care of
our maintenance commitments to the county to maintain that land on
the other side of the wall.
We will enter into a maintenance agreement with the county to
take care of the landscaping that is to be placed on the eastern side of
the wall that will front onto the Logan Boulevard Extension.
So just as an aside, we found that GL Homes is really interested
in building relationships with their neighbors, and we're delighted with
our dealings with them so far.
And our wall is contingent upon approval from the county. So
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their request to you today, if it's approved, that means that we get our
wall, and within 30 days they'll be in a design phase.
So we ask you to approve their petition. Thank you.
MS. FILSON: The next speaker is Carol Wilsey. She will be
followed by Brad Comell.
MS. WILSEY: I do have some handouts for you.
Good morning, thank you. For the record, my name is Carol
Wilsey. I am the president of the Olde Cypress Homeowners'
Advisory Council.
We're here to ask you to continue the same construction traffic
stipulations you made at the county commission meeting in September
when the Parklands PUD was approved.
At that time you asked Mr. Bassinet, the attorney representing
Ronto, to build a construction access road from Bonita Beach south to
provide for fill trucks to come from the north down to their
development, rather than from the south up the already-congested
Immokalee Road.
As you know, Ronto's Parklands and GL's Terafina abut one
another.
Mr. Ratterree has told us in numerous meetings with our
developer, Brian Stock, that they project the need for approximately
1,200 to 1,250 fill trucks during the course of their development.
I have here photos of the Logan Extension now under
construction so you can see how inadequate this road will be to the
traffic already projected for it, let alone as the major avenue for 1,250
huge dump trucks. The road won't stand up to that beating, and our
residents will be endangered, which is what we have argued all along.
We have spoken with Kevin Ratterree at length, and he did agree,
outside of commission chambers after the Collier County Planning
Commission last month, that if the construction access road from
Bonita Beach Road were in place by the time his fill is needed, then
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March 9 & 10, 2004
he would at least compare fill prices from sources to the south to those
from the north.
I would like him to go even further and ask you to make GL
Homes comply with the same request stipulation that you have given
Ronto. Their fill trucks need to come north from Bonita. It's wider
there.
This is even more critical when you consider the traffic mess that
we have on Immokalee Road now and what it will be in the next two
years when six-laning begins. That will coincide when -- with -- that
will coincide with when GL's trucks want to come up Immokalee to
Logan. We will have such a traffic nightmare that none of us who
need to get to work in the morning will even be able to leave our
development.
And, of course, this doesn't even come close to the noise, dust,
and debris problems that are attendant with construction traffic.
Also, as you look at these photos, remember that Ronto's
Parklands plan calls for a hundred feet of right-of-way for their road to
the north. That's where they have the access road requested.
We only have 60 feet, and as you can see, that road's only 24 feet
wide right now. I've had photographs taken with big trucks on there
so you can understand with a 30-mile speed limit and the narrow
width of that road and the proximity to the homes that we have there --
we aren't going to get a wall except on one very small portion. The
road can't take it.
That road, construction access road north would be much better
equipped to handle the heavier traffic that construction would dictate
than ours will. Safety, security, and inherent right to privacy. That's
what we're asking for today.
We're not asking that you not approve the density of the
development, we're not asking that you not approve the development.
We're asking for stipulations on two stories, as Susan Dinino asked,
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and we're asking for stipulations on no construction traffic up Logan.
That's it. Thank you.
MS. FILSON: Your final speaker is Brad Cornell.
MR. CORNELL: Good morning, Commissioners. Brad Cornell
with Collier County Audubon Society. I'm here to talk about traffic
from a little bit different perspective, and that is, that we all
understand the traffic is a big issue in Collier County. We've had
problems, it seems like, more than ever this season.
And I would like to point to one very prominent source for that
problem, that is, gated communities where everybody has to come out
a single entrance and get onto all -- everybody has to get onto the
same roads.
And I think that this project, the PUD, while I'm supportive of
them losing their golf course -- ! think we have enough golf courses --
I think that should have afforded them the ability to redesign and
reconfigure their project in a way such that you would have your
commercial area that's a tiny little spot in the middle of that project
accessible to the general public on the outside and be a more viable
commercial center.
The way it's designed now, it's designed to fail. That commercial
will not succeed. It will be gone very shortly. And so, you're not
going to have any mixed use in that -- in that community, and all those
people are going to be going out on Logan Boulevard, down to
Immokalee Road and adding to the problem that we already know
exists.
I think that this PUD, and the whole idea of a PUD affords us the
opportunity to encourage good design, good planning for a project,
and I don't see it there on that project. So I have to say that I'm very
disappointed in that design. I think it's going to exacerbate our road
problem, incrementally, but for sure.
And just one other point on traffic. I think that this project,
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March 9 & 10, 2004
especially with no golf course now, could have been redesigned to
have better internal and external interconnections, because that's
another principle of good road and traffic design.
And I would encourage us to be looking at -- at that and for those
in PUDs that come before you. Thanks very much.
MS. FILSON: That was your final speaker.
CHAIRMAN FIALA: Okay. Fine.
GL Homes is here to talk with us.
Yeah, you can come over here to this one. I think they're trying
to get that thing in order.
MR. RATTERREE: Good morning. For the record, my name is
Kevin Ratterree, vice president with GL Homes. I'm going to leave
the peeping tom comment for what it is.
But let me just address a couple of issues that have come up from
the speakers this morning. First and foremost, we have been working
very diligently with our adjoining property owners' associations and
trying to mitigate, not only the impact of our development, but also
the impact of the extension of Logan Boulevard, which was a
commitment made by Ronto with their Parklands DRI extension that
came before this board.
Quail Creek Community Association, Longshore Lake's
community association, and Olde Cypress Homeowners' Association,
granted still under the control of the developer, have all supported this
project.
We have agreed to upgrade the landscape buffer along our south
property line in the tune of 150 percent above what your code required
landscape buffer is. That includes the combination of Olde Cypress'
landscape area with our landscape area to create a cumulative total
30-foot berm, a six-foot wall, native trees, and palm trees that are far
in excess of what code required buffers are.
The elevations of our community are set by South Florida.
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March 9 & 1 O, 2004
They're not set by us. We have no control over where our finished
floor elevations are, but the design program that we worked very
diligently with Olde Cypress on was to come up with a program that
allowed us to maximize the 30 feet in question.
Some of the comments that were made are actually factually
incorrect, so let me clarify them for the record. Our rear setback for
our houses along our south property line are 20 feet. In addition to that
20 feet, there is a designated 15-foot landscape buffer tract.
So you have a cumulative total of 35 feet from what is our south
property line to our nearest home. On Olde Cypress' side, they have a
15-foot landscape buffer, and then they have their respective setbacks.
What is being asked of this commission is to basically make a
determination that a single-family residential project abutting a
single-family residential project is somehow incompatible with one
another. There is no restriction on Olde Cypress as to single-story and
two-story houses, yet they're asking you to put that restriction on us
for our own houses.
We have found that to be extremely damaging in a marketability
standpoint, because people want to buy the house that they want to
buy and not be told the type of house that they can buy.
With regard to construction access, Logan Boulevard is our
access. I've tried to make it as clear as I could from day one that if the
extension from Bonita Beach is open and the cost of fill coming from
the north is cheaper than the cost of fill coming from the south, then
we will obviously make a business decision to come from the south.
But to restrict our development to say you can only come from
the north when the road doesn't exist and we have no idea how the fill
or where the fill is going to come from today is an extremely onerous
commitment on our part.
And on top of that, I totally disagree with what Ronto's
commitments were. Ronto agreed that they would come to the south,
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March 9 & 1 O, 2004
but there is no obligation that they come from the north -- exclusively
from the north. They still have the ability of making that decision. I
wanted to clarify that for the record.
Any other questions, I'll be happy to answer. Yes, sir.
CHAIRMAN FIALA: Commissioner Henning?
COMMISSIONER HALAS: Oh.
CHAIRMAN FIALA: Commissioner Henning?
COMMISSIONER HENNING: The-- yeah, and I appreciate the
ability to clarify some of those issues, you know, the two-story,
one-story type thing.
But you were willing to landscape on the other side of the wall,
and I don't think that's a requirement by our code. Are you willing to
take that landscaping and fill in on the north side of the wall, you
know, where the two stories might be? And we won't worry about the
landscaping on the south side, because the developer is required to
have a landscaped buffer. Olde Cypress is required to have a
landscaped buffer on their side anyways as part of their PUD.
MR. RATTERREE: The design program that we came up with
was worked in cooperation with us and the representatives from Olde
Cypress, so we've committed to do that improvement.
The program that's in the backup material in front of the board
includes landscaping on both sides of the wall. What we basically
took was a type D landscape buffer, which was one tree every 30 feet
on center, went to staggered one tree 20 feet on center on both sides of
the wall and put palms on both sides of the wall in 60-foot clusters, so
we actually have agreed to put that landscaping on both sides.
So, unfortunately, I've made that commitment to Olde Cypress
that I will landscape on their side, so -- unless there's a direction from
the commission. Otherwise I will fulfill my obligation and
commitments to that association.
COMMISSIONER HENNING: Okay. The -- the next thing, I
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March 9 & 10, 2004
know that we cannot -- we'd have to do a Growth Management Plan
amendment to open that commercial up to the public creating a
commercial node over there. That could be very problematic with the
Growth Management Plan. The idea of creating commercial within a
PUD is try to capture trips.
The one thing -- and I talked to Mr. Ratterree about the flow way,
the Mirasol flow way. You're committed to be a participate --
participant in that?
MR. RATTERREE: Yes, sir.
COMMISSIONER HENNING: In what way?
MR. RATTERREE: There is an executed tri-party agreement
between Mirasol, Olde Cypress, and the developer of Terafina to
participate in the construction of the flow way program inclusive of
the water channel and all necessary permits. Mirasol has submitted the
permit application for the flow way inclusive of those three projects,
and we are committed to participate in that program.
COMMISSIONER HENNING: If the board is willing to accept
the amendment as written, would you be willing to put in part of the
stipulations that your commitment, your -- today's commitment to the
flow way restoration?
MR. RATTERREE: Absolutely.
CHAIRMAN FIALA: Commissioner Halas?
COMMISSIONER HALAS: Yes. They talked about -- I can't
see placing this traffic burden on our neighbors to the north, which is
Lee County, since all this property basically is encompassed within
Collier County.
One of the concerns that was brought up was the heavy
construction traffic that would be on the road. If there was any
damage to the road, would you make concessions that you would
repair the road after the build-out?
MR. RATTERREE: Yes, sir. If it's -- if it's our trucks that are
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March 9 & 1 O, 2004
doing damage to the road, we would repair the road.
COMMISSIONER HALAS: Okay. Also the landscaping
buffering that you're talking about, what's your best guess for how
quick that would mature so that it wouldn't be a problem with the
neighbors to the south?
MR. RATTERREE: We agreed to upgrade the landscape heights
initially on the installation anyway. Your code required (sic) 10 feet.
We went to 14-foot heights on the native trees. We would install that
landscaping as part of the development of the pods along the southern
property line.
COMMISSIONER HALAS: So you're saying that the -- the
trees that you're going to put in place there are going to be of the
mature quality, and that's going to be next to your property line, and
then we're talking -- you've got a 20-foot buffer from where the
landscaping is going to be taking place versus where the first home
will be built; is that correct?
MR. RATTERREE: That is correct, the rear setback on those
houses is 20 feet.
COMMISSIONER HALAS: And what do you anticipate that the
-- upon maturing of these trees, what the height is going to be?
MR. RATTERREE: These are traditionally like a live oak type
quality tree, and those can range anywhere from 30 feet to 60 feet in
height at maturity.
COMMISSIONER HALAS: And we're talking maturity, what's
the time frame from the time you place the 14-foot trees in?
MR. RATTERREE: If you get a good amount of rainfall during
the course, or a normal amount of rainfall, they generally grow about a
foot to a half foot a year.
COMMISSIONER HALAS: Okay. Thank you.
CHAIRMAN FIALA: Okay. Excuse me. May I ask our
transportation manager something?
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March 9 & 10, 2004
COMMISSIONER HENNING: Just got promoted, Norm.
CHAIRMAN FIALA: No, I think I just demoted him, didn't I?
He's really our transportation administrator.
MR. FEDER: Madam Chairman, any name.
CHAIRMAN FIALA: Mr. Feder?
MR. FEDER: Go ahead.
CHAIRMAN FIALA: Mr. Feder, do you have any problems
with the construction traffic using Logan Boulevard?
MR. FEDER: I think the applicant made it clear that they will
tend to the roadway for any damage that they cause. I'm not sure,
although we might like it, that we can dictate exactly which direction
the truck traffic come within.
I think you've worked with hours of the day overall in the nature
of haul traffic, and I think the critical aspect, that they try to be
sensitive to the community and make sure that they make a strong
commitment to bringing the roadway back up to condition in any
damage that they might create.
CHAIRMAN FIALA: Okay. Thank you very much.
MR. FEDER: Thank you.
CHAIRMAN FIALA: Any further discussions, Commissioners?
Commissioner Henning?
COMMISSIONER HENNING: Before I make a motion, the
canopy trees, is there any way that we can try to locate them, if they
are going to be two stories, to buffer those single-family residents on
the south side?
MR. RATTERREE: The commit -- the trees are going to be
spaced 20 feet on center.
COMMISSIONER HENNING: Right.
MR. RATTERREE: If you get any closer than that, what
happens is the tree will start to mature and then the branches are going
to grow into each other. Twenty feet on center is a very tight spacing
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March 9 & 1 O, 2004
to begin with, and that's generally -- once you do 20 feet on center,
you're going to cover those gaps with the mature trees.
COMMISSIONER HENNING: Okay. I understand the
concerns from the neighbors to the south. I, Commissioners, have
tried to -- tried to find other alternatives for a construction route, not
knowing -- knowing that we cannot demand the developer to come in
a certain way, I felt it was my obligation to look at alternatives.
There are some impacts on the suggested alternatives, not only to
environment, but to some other residents, so -- but I appreciate the
cooperation of the developer to at least listen to the concerns of the
residents.
With that, I will make a motion to approve with the additional
stipulation that Terafina -- or GL Homes, Saturnia (sic) Lakes,
whatever it might be, will participate in the reconstruction of the flow
way as committed to by GL Homes of this date, with the additional
staff's re -- stipulations and the Planning Commissions' stipulations.
COMMISSIONER HALAS: I'll second that.
CHAIRMAN FIALA: Okay. I have a motion on the floor and a
-- by Commissioner Henning, a second by Commissioner Halas.
David, would--
MR. WEIGEL: I'll note that you have actually closed the --
closed the hearing at this point, although I don't believe that we do
have -- staff wishes to make a comment, and then you may wish to
close the public hearing.
CHAIRMAN FIALA: Do you need to be sworn in?
MR. BELLOWS: Yes.
CHAIRMAN FIALA: Okay.
(The speaker was duly sworn.)
MR. BELLOWS: For the record, Ray Bellows. I just wanted to
add to the record that the project has been found consistent with all the
elements of the comprehensive plan and that staff has worked
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diligently with the applicant in developing agreements for the flow
way and for the extension of Logan Boulevard.
The project has also -- the petitioner has also provided additional
landscaping above and beyond the code requirements to help mitigate
the impacts not only of this project but for the extension of Logan
Boulevard. So, therefore, staff is recommending that this petition be
approved, and the Planning Commission also unanimously
recommended approval.
CHAIRMAN FIALA: Thank you.
And with that, we will close the public hearing. Thank you.
And we have a motion on the floor and a second.
Would you read that motion, David?
MR. WEIGEL: Well, it's a --
COMMISSIONER HENNING: I can restate the motion.
MR. WEIGEL: That would be fine.
COMMISSIONER HENNING: Motion to approve with staff
and Planning Commission stipulations adding one more, that GL
Homes will participate in the flow way restoration reconstruction as
agreed on by a tri-party agreement, of those agreements that is set
forth today.
CHAIRMAN FIALA: Okay. I have a motion on the floor and a
second.
COMMISSIONER HALAS: I --
CHAIRMAN FIALA: Any further discussion?
COMMISSIONER HALAS: No.
CHAIRMAN FIALA: Okay. All those in favor, say aye.
COMMISSIONER HALAS: Aye.
COMMISSIONER COLETTA: Aye.
CHAIRMAN FIALA: Aye.
COMMISSIONER COYLE: Aye.
COMMISSIONER HENNING: Aye.
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March 9 & 10, 2004
CHAIRMAN FIALA:
(No response.)
CHAIRMAN FIALA:
much.
And opposed, like sign.
We have a 5-0 on that. Thank you very
MR. RATTERREE: Thank you.
CHAIRMAN FIALA: And at lunch, Linda, we ought to try and
discuss with the students what a flow way is. I bet that's kind of
confusing if you've never heard of it before. Thank you. Thanks for
being here.
Okay. And we go back to 17 -- 7(A) -- I'm sorry.
Item #8A
ORDINANCE 2004-16 AMENDING CHAPTER 74 OF THE
COLLIER COUNTY CODE OF LAWS AND ORDINANCES, AS
AMENDED BY ORDINANCE NO. 2001-13, THE COLLIER
COUNTY CONSOLIDATED IMPACT FEE ORDINANCE AS
AMENDED, PROVIDING FOR THE ADOPTION OF A GENERAL
GOVERNMENT BUILDING IMPACT FEE WITH A DELAYED
EFFECTIVE DATE OF APRIL 1, 2004 - ADOPTED ON A
GRADUATED BASIS OF THREE YEARS (75% FIRST YEAR,
85% SECOND YEAR, AND 100% THEREAFTER) AND TO
INCI,I ~DE INDF. X1NG
MR. MUDD: Commissioner, this goes back to --
CHAIRMAN FIALA: 8(A).
MR. MUDD: -- 8(A). It's adoption of an ordinance amending
chapter 74 of the Collier County Code of Law and Ordinances,
amended by ordinance number 2001-13, the Collier County
Consolidated Impact Fee Ordinance, as amended, providing for the
adoption of a general government building impact fee with a delayed
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effective date of April 1, 2004. And Amy Patterson will present,
MS. PATTERSON: Good morning, Commissioners. I first want
to apologize for missing our call to the podium earlier. Sorry about
the confusion there.
We're back today to re-present the information on our proposed
general government building impact fee. We were before you on
February 10th, and you asked that we come back and provide a little
bit more explanation on some of the key points of this impact fee and
the calculations.
So I have here with us again Mr. Steve Tindale from Tindale,
Oliver, which is a consulting firm that was selected to perform this
study. And with that, I will turn it over to Mr. Tindale.
MR. TINDALE: Good morning. I'll be much briefer this time
than I was last time. I'll hopefully hit the highlights of questions that
you had and some things that we've reviewed with you in the process.
Basically, I want to just show you the formula again, talk a little
bit about the level of service standard, talk about costs very briefly,
the demand, the functional population was one you had the most
question, and I've got a -- kind of a summary presentation from that.
We've reviewed that with each one of you.
I want to highlight, again, the need for annual indexing, and
actually talk about some alternatives in terms of the implementation.
The equation is the same equation you're using on all the other
impact fees that you've adopted to deal with the cost per unit of
development, and we give credit in terms of tax credit, and the
difference is the impact fee.
The areas that you're serving is your support buildings,
court-related health, and the constitutional offices.
The -- I think there was a comment made in a calculation made
that about 80 percent of your first five-year program, close to that, is
dealing with your constitutional officers, so that's just a note that we
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March 9 & 1 O, 2004
found as we were going through it.
I want to briefly talk about level of service because I think,
besides it being used as an impact fee, there's been some, I guess,
questions about how much service you're delivering and the need for
it.
The level of service calculation we're using, we've come up with
about two -- almost two square foot per person in the county, is the
current buildings that you've paid for in terms of general buildings.
I had staff briefly look at the other impact fees that we've done
and some across the state, and the range is two and a half to four and a
half. So in terms of efficiency and the number of square feet that
you've got per population, what we're seeing, you're anywhere from
about 30 percent below everybody to almost half in terms of square
foot per buildings.
The other thing we're finding in other communities is about half
to two-thirds of their buildings are still bonded. The buildings we're
looking at, you've paid as you've gone. The people who are here have
paid as you've gone through it. You don't have a major bonding
commitment.
So in terms of, I guess, a pat on the back, you look to be one of
the most efficient, and also have paid for the buildings as you've gone,
which I think that is an important issue to understand in terms of what
you've done and the efficiency that you've developed over time.
So the level of service standard is more than just what we put in
the equation. It is a way to measure how you're performing.
The next is the actual cost. And I'm not going to go into that in
detail. I don't think anybody's had a complaint about the cost. The
costs -- we've looked at historical costs, we've looked at your plan, and
we looked at what you're getting ready to spend in terms of verifying
those costs.
We're using $184 per square foot. The master plan a few years
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back was using 186. We're seeing in your five-year CIP, with all the
things you're having to build along with the buildings to support them,
you're averaging about $244 a square foot. So we don't have any
concern at all that we're over-costing in terms of what we've got, at
least in the impact fee itself.
The -- one other comment I'll make about the buildings is you are
leasing some space. When I was asked about level of service, my first
reaction is, your level of service seems not to be very high at all in
terms of 1.9. You are leasing some space, and this investment is
really, in my mind, not getting bigger, it's becoming more efficient.
Rather than spending the money on lease space, which is more
costly, you'll be spending less money. So you're really not big
compared to other people, but you've reached a point now with the
requirements of leasing, and I think you've got to plan to try to
transition over the next three to five years of not having leased that
space.
So I think the capital investment is more for efficiency than it is
becoming bigger, and that's another comment I'd like to make.
I'd like to briefly go over the functional population. That was the
one, I think, we had the most questions about. The government
building impact fee, basically if your government building provides
service to both residential and nonresidential uses and support other
departments.
The residential side, I don't think there was any -- much of a
question. We know how many people are there per home. We
assume the people are there half time, and we come up with a number
of residents per thousand square feet in a home. And I don't think that
was the issue.
The one we had the most problem was -- was the nonresidential
and how we developed that, and I'm going to very briefly show a little
chart here that kind of summarizes the information that we used.
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We used two major sources. One is the Institute of
Transportation Engineers, who has done hundreds of thousands of
studies of how many cars arrive at every building by size, by type.
We also have the National Personal Transportation study that
knows how many people are in the car. So we start out with two
really solid bases of information that is really used by your traffic
engineers and people doing DRIs and studies in the county.
The calculate -- we did it for office, retail, and the various uses,
just as in the transportation impact fee, and I'm going to briefly go
through the office to show -- just to show you the sequence of events.
We take the ITE data, which tells us how many cars travel into a
-- to a site every day, on a 24-hour basis, we combine that with the
data that tells us how many people are in the cars, and we convert that
to the number of persons every day that visits every site. We feel very
comfortable we understand how many people go into a building every
day at each different land use. We have a tremendous amount of data.
So we go to persons. We take those persons, and we have to
figure out how long they stay, determine how many -- how many
average people are there during a day, so we had to convert those to
employees and we have to -- to visitors.
And, for example, in the office, we know there's 4.7 employees
per thousand square feet per office, we subtract that from the total, and
we have visitors and employees.
We put the employees in there 40 hours a week, we put them --
the visitor in there one hour each day, five days a week, so we
multiply it by the five hours. Well, now we're converting these
persons to how many people are in there for a whole week. And
basically we multiply those numbers, and we come up with 188 hours
of employees, 33 hours of visitors.
We total those two together, and that's the total hours in a week,
the person hours, and we divide by -- we assume seven to six for the
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office, and for the retail, it's nine -- excuse me -- 10 to nine at night, so
it's a 55-hour week, and we come up with the 3.84, and that's how we
do the office.
So it's very straightforward. It seems to be a little -- little
complicated, but the information's there, and it's very tight in terms of
being statistically valid.
Really, all we're doing is doing the transportation impact fee and
substituting -- instead of having a trip length, we substitute person
hours. And it's almost the same exact calculation.
Briefly, in terms of just summarizing. The single-family home
was very straightforward. We come up with a cost per person, the
number of people per 1,000 square foot, and we come up with $159.60
for each 1,000 square feet.
I want to highlight that in most communities they talk about a
home. If that was a home, it would be about $400. I think that's some
of the confusion. Sometimes you'll see a single-family home
compared to office or retail, and this is a single-family home and
1,000 square feet.
Now, why did we use 1,000 square feet versus per home? I
would say of all the counties I've worked in -- and I've worked in
many of them -- you're probably the most committed to dealing with
affordable housing. I don't think I've seen any county any more
committed that you are.
And what we actually did for almost every one of your fees, is
we converted from a single fee, which is a 2,500 square foot home,
and we found data for the -- by size for homes, and that when a person
builds 1,000 or 1,200 square feet home, they pay half the impact fee
that people are paying all over the State of Florida.
So that's the reason we've got -- and it seems a little convoluted
compared to most people, but it's a commitment to the homes. As a
matter of fact, in the transportation impact fee, we even found that
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March 9 & 10, 2004
lower income people generate less trips, and you can apply for a lower
impact fee if you meet a certain standard for income.
Between that and your S.H.I.P. Funds, you've really done an
outstanding job as far as dealing with affordable housing.
This is the -- the end results, the residential fee is $159, which
means the average home is about $400, the office is about a dollar a
square foot, and the retail is about $1.40 a square foot.
I'd like to, very briefly, talk about indexing. We're proposing you
do that again. And one reason I want to highlight this is, we've got
some alternatives in terms of maybe implementation alternatives. I
want to highlight how important it is that you index, if you --
especially if you-- you need to index if you consider adopting a fee
schedule and implementing it over time.
If you implement over time, you need to be implementing to the
index number as -- as the number goes up, and not a constant number.
The engineering records showing building construction costs is
going up about two percent a year. Your land values we've looked at
from '93 to 2003, is about 11 percent a year. Every year you should
have an annual index. The third year with a major update.
The last thing I want to show is something we've done in multiple
counties, and this just came from a feel from talking to the
commissioners, and that is, you don't have to adopt 100 percent of the
impact fees. You can stage it. You need-- if you do stage it, you
need to -- if you say you -- you want to start at 75 percent and not 100
percent, you need to start everybody at 75 percent. You can't pick and
choose without supplementing some revenues.
So I've just given you some examples for residential, office, and
retail. Starting out at 100 percent, if you vote on that today, the
numbers you see there would be the dollar-- the 159, the 1,000, and
the 1,400. Eighty-five percent, it would be 135, 900, and 1,199. And
at 75 percent, it would be 119, 806, and 1,058.
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Now, the reason I picked 85 and 75 is -- and I've done this all
over the state -- 85 percent could be a three-year implementation. You
go to 90, 95, and 100.
The 75 percent, which I've seen done, is a five-year
implementation. You go to 80, 85, 90, 95 and 100. So over time you
actually adjust a fee to the perc -- to a percentage of the total.
And, again, I'll remind you that you don't need to be -- you don't
need to be inde -- to increasing these fees to your current number.
When you get out there five years, you need to be indexing to the new
number, the one -- the price that's going up.
Because what happens if you don't do that, you propose to do
this, and five years from now, you're only charging about 65 percent
of what you need to be. So you need to combine the indexing and
basically moving from a percentage of each year's amount.
The next year -- if you start at 85 percent, next year it'd be 90
percent of a new number, of the index number. So that's an alternative
for you to consider today.
We've actually got some impact fee -- the, actually, attachment
with the fee schedule, so if you decide to pick an alternative, we can
simply slide that attachment in and you can adopt that today.
That's the -- the summation of my report. Thank you.
CHAIRMAN FIALA: Thank you. Do we have any speakers?
MS. FILSON: Yes, ma'am. We have two right now.
CHAIRMAN FIALA: Two speakers right now?
MS. FILSON: David Ellis. He will be followed by Rich
Weisberg.
MR. ELLIS: Good morning, Commissioners. My name's David
Ellis, and I'm with the Collier Building Industry Association.
I'm here this morning representing our 1,200-member companies
and over 20,000 working families and folks that work in our industry
in Collier County.
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We oppose the creation and the implementation of this
government building impact fee. Although we're really not convinced
of the technical merits and the rational nexus that's necessary for this
fee, CBIA, we really oppose the implication that the fee's going to
have for working families and expanding businesses in Collier
County.
Since 2000, 2001, when we really started looking at these impact
fees and actually increasing them dramatically, a number of things
have happened to the economics of our community. One thing, in
looking at MLS, the Multiple Listing Service in Naples, homes under
$150,000 have gone from 35 percent of our market to 19 percent of
our market, and that -- it includes resales, but, again, it shows the
effect of what's happening to affordability in our community.
Just last year our single-family permits plunged 26 percent. And
we're seeing, in the same time, a 37 percent increase in Lee County.
We know that's where the people are beginning to go, one of the
reasons are these fees.
And one of the things that's coincidental in this, it's actually
killing the source that we'll get these fees from. The less we build, the
less fees we collect.
We've also dramatically -- we've dramatically decreased our
ability to be effective with our S.H.I.P. Funds. Those are the moneys
we use for impact fee deferrals and those types of things. We can help
less and less people through our S.H.I.P. program now because of
what we've done through our impact fee changes in the past three
years.
We've basically gone from about 8,000 on a house to 15-, 16-,
$17,000 a house in just a three-year period, and we're seeing the
economic impact of it now.
This unhealthy reliance on impact fees has to stop, and we have
to look at the very negative effect these fees are having on business
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development. Certainly we conceded that when the EDC and the
chamber were before you talking about Immokalee recently.
We looked at and we said, these fees absolutely have stigmatized
Collier County as a place to come for business, and that stigma is
going to continue to have an impact. And every time that a business
looking at Collier County hears, hey, they just got their eleventh fee, I
just met with the sheriff's office yesterday about our twelfth fee, that is
a stigma that our business community can't overcome. And if we want
to properly develop economically the base of our community, we have
to think about that.
In a study a few years ago, it was demonstrated that for every
thousand dollars we raised the price of a home in Collier County, 311
families are told no, that they can't live here. They kind of fall off the
edge.
And one of the things, I think, that's been most difficult for us is,
you're telling those people no in this case, because we want to build
the buildings for government, and in essence, the sense of government
growing on the backs of that working families. Even the Naples Daily
News expressed concern over this fee.
In Collier County I know we can do better. We need to evaluate
our approach. We need -- if we're going to charge a fee, we need to be
100 percent sure that it's correct and that it's supporting the plan that
it's been assessed for.
Are you convinced that no waste exists in your facilities plan?
We really haven't had time, I think, to study that plan that corresponds
with this. You remember when we did the roads impact fee. We went
road segment by road segment as we evaluated what roads we were
going to build and what those fees were going to pay for.
I know this plan's been in place, and I know it's been periodically
evaluated, but never under the scrutiny of the fact that it was going to
be charged in this way.
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And are you charging for any increased level of service? Again,
I've seen even some new numbers today that help try to explain it, but
I don't know that we really bored into what's there.
We need to accurately access (sic) the impact on businesses and
families in Collier County.
Your executive summary actually -- I think actually falls short of
what it's being called to do when we talk about that. Through the
state, we're actually required to say what effect this will have on our
homes and what their costs will be.
We actually talked about how it affects us. We don't talk about
it's going to affect others. And I think it's time that we stop in Collier
County and do an evaluation of the impact of impact fees, that we
look at what it's going to do to the long-term economic health of
Collier County.
Let's take a comprehensive approach, a comprehensive approach
that looks at the social and economic impacts on working families and
businesses. I'd suggest a workshop or a commission or something that
actually evaluates that.
Bring your EDC into the process. You worked with them when
we looked at Immokalee, and brought them in, and they were a very,
very important partner in that evaluation process. I think it's time that
we do that now.
We shouldn't rush into these fees. We shouldn't tell working
families and expanding businesses that we -- that we'd rather have
larger government, and that's more important than their ability to own
a home or expand their business.
The Collier Building Industry Association vigorously opposes
this fee, and we ask you not to approve it today. Thank you. MS. FILSON: Your final speaker is Rich Weisberg.
MR. WEISBERG: Good morning. My name is Rich Weisberg.
I'm just a young business professional in Naples, Florida.
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And I just wanted to make a couple points. I think that as far as
bringing in new businesses inside -- excuse me -- inside Collier
County as well as young middle-class families, I think it will slow that
growth. I think if you are trying to bring in new funds, I think it's
going to slow tremendously, because I think these individuals, these
young businesses, will look at other places to bring their business to.
Maybe it's Lee County.
I was speaking with an individual yesterday who was deciding
where to put their business, whether it was Lee County or Collier
County, and they didn't want to bring it to Collier County because of
impact fees on new businesses.
And I think that if you're trying to raise capital, I think that it's
not the best way to do it.
So I would urge you to vote against it. And I want to thank you
again for allowing me to voice my opinion.
CHAIRMAN FIALA: Thank you.
Commissioner Coyle?
COMMISSIONER COYLE: I have a question of the consultant,
and then I'd like to make a statement concerning this.
During our conversations yesterday, a very interesting statistic
was brought up, and I'd just like to discuss it briefly and make sure I
interpreted it properly, and it had to do with the number of workers in
Collier County.
And it seems that your research has indicated that more people
live in Collier County and go outside the county to work than come
into the county to work. And I just want to bring that up, because I
think we have all been under an entirely different impression, that we
don't have places for people to live here, and so, consequently, people
live in other places where it's less expensive like Lee County and
come into Collier to work.
If your data is correct, we -- we need to maybe rethink that
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conclusion. Am I stating this correctly?
MR. TINDALE: You need to be very careful with my statement.
There is the census data who actually asks people where they work
and where they live. The census data information that we -- we
looked at showed more people going to work outside the county --
going outside the county than people who live outside the county
come into the county to work. That's not -- so that's -- then that's what
the census data said.
I travel -- my comment was, I travel here, and I've been here, and
it seems like there's an awful lot more cars coming into this county in
the morning and leaving this county in the afternoon. And I question
that, but I found it odd that that was -- you know, that that was what
the census data concluded.
COMMISSIONER COYLE: But is there a possibility that the
census data might be skewed or inaccurate?
MR. TINDALE: Yeah, I -- I just -- it's just an odd -- you know, I
thought I was going to go find just the opposite, and so we need to be
careful with it in terms of doing that.
But I can tell you that it's not totally incorrect, because there's
some counties that are what we call donor counties and some counties
are not. And I gave -- I think I also gave the example that in
Hillsborough County, which has a tremendous downtown -- it's got
25,000 people downtown-- it has as many employees as it does
people who live there. And you're at, I think, about half or two-thirds.
So it kind of matches a little bit.
So -- but I still -- it still bothers me to see this common sense
traffic coming in. When you go to Hillsborough County and Pinellas
County, there's a lot more cars coming into Hillsborough and going to
Pinellas County, and the two match. For you they don't match, and it's
kind of an odd thing with me.
COMMISSIONER COYLE: Okay, good. Thank you very
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March 9 & 1 O, 2004
much.
And I'd just like to make a statement concerning my opinion of
this. I think that a very good job has been done putting this
information together. I've gone through it in some detail. I'm not
going to pretend that I understand it as clearly as the people who
developed it, but I think it's good data. I think you've -- you're
prepared to defend it, and I think it probably could be defended as an
impact fee.
But I'm philosophically opposed to doing it at this point in time,
and let me tell you why. We're still in uncertain economic
circumstances here, and I think any action that we take that might
discourage economic development in Collier County is going to be an
unfortunate action.
Secondly, we are going into a budgeting cycle, and this
commission and the staff over the past couple of years has done a very
good job of prioritizing tasks and utilizing the money that we have in
the wisest possible way.
We're just going into that process. And I think that to impose an
impact fee before we go into the budgeting process where we can
determine how we allocate the funds that we've got is premature. And
at the very least, I would like to suggest that we postpone a decision
on this until after we go through the budgeting process.
I know there are -- there are requirements for capital
improvements, and I know that shortfalls have been identified, but we
also know that we will be getting additional funds just because of the
appreciation of property values in Collier County. Not because of an
increase in rates, but because of appreciation of the property.
And what I would encourage is that we deal with the
prioritization of our tasks before we start implementing additional
impact fees that might have an unfortunate economic impact on
Collier County at a time when we can't really afford to have any more
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adverse impact.
So basically, that's where I am with this. I think they've done a
very good job, but I think it's a little bit premature.
CHAIRMAN FIALA: Okay, thank you.
Commissioner Halas?
COMMISSIONER HALAS: I just differ totally with
Commissioner Coyle there.
I feel that -- first of all, I'd like to ask our consultant where we
stand right now with the level of service as far as government
buildings. And then another question I have for you, sir, is where do
we stand with level of service in five years and 10 years?
MR. TINDALE: In relationship, I think I made a comment. And
I'm always as honest as I can be, because I don't want to use any of
these numbers inappropriately.
And I had my staff call around. We're doing about five of these
right now, and there's about seven or eight of them in the State of
Florida.
For impact fee, for the number that's going into the impact fee
equation, you're at 1.9. The lowest -- that's almost two people -- two
square feet for person. The lowest I saw -- we've seen is 2.5 in a range
to 4.5.
Now, there's two -- it could be two reasons for that. One is -- and
I think is truly -- I've seen your buildings and your people. One is,
you're -- you are pretty efficient in what you're doing.
The other thing is, some of the other counties may not have
impact fees for some of the buildings, and so, you know, we're adding
some buildings in there.
But in general, trying to take all that into consideration from what
I've seen, you've got less buildings that you've bought -- you're having
to pay bond debt on, you've been paying as you go, you've got less
square feet per person, I think, than almost any county that I've -- I
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March 9 & 1 O, 2004
worked in in terms of your level of service.
And my general feeling is, you're probably sitting there at the
edge trying to deal with the quality of service. And usually these
things don't come up. And I worked in government my first 20 years,
which is a few years ago, and we never built a building until
everybody was just about, you know, to pop and having to make trips
around because you had some inefficiencies.
So from a level of service perspective, you're right on the lower
edge. I've not seen one this low.
COMMISSIONER HALAS: The other thing that -- we got
ourselves in a real bind a few years ago whereby we didn't take the
initiative to make sure that growth paid for growth. And I'm a very --
advocate supporter in regards to -- that growth has to pay for growth.
And I feel that we don't want to get ourselves in a pro -- in the
situation that we got ourselves into a few years ago where we couldn't
meet the demands of growth.
And I feel that we need to make sure that the amount of residents
that are coming here -- I know there's been some talk about that
economic downturn. I think that's over. I think that we're on an
upswing, and I think that was proven so far this year by the amount of
traffic that's been into our area. I know that the realtors are having a
field day in regards to selling new developments.
And I really feel that we need to make sure that growth pays for
growth. And I think that equation that you came up with -- I believe
you said it was $184 a square foot. I know that the developers are
charging close to $250 a square foot.
So I feel that your assessment of what you've come up with, I
think you've done an outstanding job in doing the research in here.
And even at $184, I'm sure that's not going to be paying for the total
amount of the government buildings that we need here.
And of course, we're very proud in Collier County here to make
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sure that the people here are well taken care of and that we make sure
that when they demand that there's service there, that we are attentive
to their concerns. And I feel that we need to go forward and establish
these impact fees today.
CHAIRMAN FIALA: Okay.
Commissioner Coletta?
COMMISSIONER COLETTA: Commissioner Henning was
before me.
CHAIRMAN FIALA: Oh, was he? I'm sorry.
The
COMMISSIONER HENNING:
COMMISSIONER COLETTA:
COMMISSIONER HENNING:
Age before beauty. Just kidding.
In that case, it's my turn.
The slide on the viewer and
what's in my book differ, and I'd like to kind of straighten that out.
MR. TINDALE: This is -- this is me. I talked to the staff. And
just in talking with all the commissioners, there was a concern about
the amount and the fee and the implementation, and I had made a
comment, I'm not sure which one it was to, that one of the tools we've
used in other counties is don't -- you don't have to adopt a hundred
percent. You adopt the ordinance --
COMMISSIONER HENNING: Right, I understood that.
MR. TINDALE: -- you get it on the book. And so I produced
this slide last night.
COMMISSIONER HENNING: Okay. Let's go at 100 percent.
MR. TINDALE: Okay.
COMMISSIONER HENNING: Residential, 159.60. What I
have for single-family 2,000 is 320, $320.
COMMISSIONER HALAS: Per 1,000 square feet.
COMMISSIONER HENNING: And what we're showing here
now is --
MR. TINDALE: Per 1,000 square feet?
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March 9 & 1 O, 2004
COMMISSIONER HALAS: That's for 1,000 square feet, I think,
Commissioner.
MR. TINDALE: Yeah. If you take a 2,500 -- I don't know what
size home you're looking at. We'll probably put a 2,000 square foot
home --
COMMISSIONER HENNING: Right.
MR. TINDALE: -- so you double this.
COMMISSIONER HENNING: Okay.
MR. TINDALE: At 2,500 square foot, it would be about $400.
COMMISSIONER HENNING: I just didn't want to confuse
people --
MR. TINDALE: Okay.
COMMISSIONER HENNING: -- looking at that thinking is --
MR. TINDALE: The main reason I did that -- excuse me.
COMMISSIONER HENNING: -- that all residential is going to
be, 159.60.
MR. TINDALE: Yeah, that's -- no, that's per 1,000 square feet.
COMMISSIONER HENNING: Per 1,000 square feet.
MR. TINDALE: Correct.
COMMISSIONER HENNING: The -- the next column, office, it
shows 50,000 square feet. If we adopt a hundred percent, that would
be 1,075.
MR. TINDALE: That's a bad slide. The slide should say,
everything here per 1,000 square feet. In other words, if you build an
office space at 20,000, 30- or 40-, the cost per 1,000 square foot would
be these numbers. And I did it last night late, and I should have a note
here that all these numbers are per 1,000 square feet.
COMMISSIONER HENNING: Okay. Now, on the retail, I
show per 1,000 square feet. In my book it's 1,697 per square foot.
And you're showing --
MR. TINDALE: Maybe I shouldn't do these things late at night.
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I thought I pulled this right out of the fee schedule, to be honest with
yOtl.
COMMISSIONER HENNING: Okay.
MR. TINDALE: I may have picked it out of the wrong location.
COMMISSIONER HENNING: So if we are going by, on retail
COMMISSIONER HALAS: It's 1,075.
COMMISSIONER HENNING: Fifty thousand square feet
would be $54,000.
COMMISSIONER HALAS: Uh-huh.
COMMISSIONER HENNING: I guess --
MR. TINDALE: Oh, I picked the very first item off the retail on
the spreadsheet, which is specialty retail, and I've been using retail. It's
16 -- it's 16 -- I picked the wrong number off the spreadsheet.
COMMISSIONER HENNING: Okay.
MR. TINDALE: I picked specialty retail, which is -- the
1,411.20 is perfectly right for the wrong -- for the wrong use. It's
1,696.80 is correct.
COMMISSIONER HENNING: And I -- the only reason I
wanted to state that, I didn't want to get -- have anybody have the
impression that commercial is 1,000, $1,100, or whatever it is. It's per
square foot.
MR. TINDALE: Correct.
COMMISSIONER HENNING: Probably the average is going to
be 30,000 for retail. And it depends on how big it is, naturally. MR. TINDALE: Correct.
COMMISSIONER HENNING: That's -- I guess that's my
concern, because in the business world, the cost of doing business is
passed off to the consumer. Whatever -- the items that you purchase is
passed off to the consumer with a profit. Whatever fees that are added
on to the mortgage is passed off to the consumer.
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And then with that, I know most businesses pass off profits from
that, whether it be 1.5 or 3 percent, whatever. Your mortgage is,
they're going to charge more and pass it off to the consumer.
So the statement of growth paying for growth in the commercial
world is not true. It's pass-through cost to the residents of Collier
County.
Looking at -- there's a building on Airport Road and Vanderbilt
Beach. They pay $29,000 of property taxes per year, $29,000, where,
you know, my house pays -- I think it's 3,000.
The -- so I'm not sure if the commercial is demanding -- or retail
is demanding that much government service to offset that. It's -- it has
to do with homestead exemptions and some other things.
So I feel that business is already paying its fair share, and I am
very concerned about pass-through cost to the consumer in Collier
County. And when we increase -- our assessed values increase each
year, as -- it appears to me that if we do our homework and be fiscal
conservative, we can still provide for our residents.
CHAIRMAN FIALA: Commissioner Coletta?
COMMISSIONER COLETTA: Yes, thank you.
If I could, please, before you leave. I need to draw some things
into comparison.
We keep saying that the impact fees are directly impacting
affordable housing in Collier County. And I'd like to know,
proportionately, do we have the statistical numbers for labor, con --
the construction materials? What is it going one year? I'm just
curious to what that would be and how it compares with this present
impact fee.
MR. TINDALE: You want to talk to this?
COMMISSIONER COLETTA: Thank you, Amy.
MS. PATTERSON: Hi. Amy Patterson, again, for the record.
We just did some preliminary research yesterday on various
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things that affect housing costs, and we know that a land component
here in Collier County, that we have about an average of 14 or 15
percent of an increase in land value each year.
Labor -- and a cost of living adjustment last year was a 2.9
percent increase, and building materials in the form of wood, lumber,
and other construction items went up 6.6 percent.
So if you add, just roughly, those three numbers together, you see
a 24.5 percent increase to the cost of construction; however, if you
then take the impact fee, this one that we're speaking about, the
general government buildings, for a $200,000 -- say a 2,000 square
foot home, it's a $319 fee added on top of the cost of the home. That's
a. 16 percent increase to the cost of the home, so it's --
COMMISSIONER COLETTA: Point one -- in other words, a
tenth of a percent?
MS. PATTERSON: A tenth of a percent, versus about, even
conservatively, a 20 percent increase.
COMMISSIONER COLETTA: So the driving factor in Collier
County, while impact fees do have a determining factor as far as
people that are close to the line for getting a mortgage or not getting it
is dramatically changing every year by 24 percent or so for -- in the
housing market because of forces beyond the control of this
commission?
MS. PATTERSON: Beyond our control, absolutely.
COMMISSIONER COLETTA: Okay. The other question I
have is, I think we're all pretty much in agreement that we have to put
together the infrastructure as far as government buildings in order to
be able to meet the demand. It's just a question of where does that
money come from.
If we were to opt out and say, okay, that this is going to come
from ad valorem, what type of an impact would that have to the
average taxpayers as far as their millage rate goes?
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MR. MUDD: Commissioner, if you -- if you go to ad valorem--
and there were two fees that Mr. Ellis represented, one was the
government building impact fee, and the other one is the law
enforcement impact fee that's coming before you sometime, April,
May, I hope.
MS. PATTERSON: The end of April.
MR. MUDD: The end of April. If you take a look at those two
impact fees and you -- and you pull those dollars out from the impact
fee part and you have to make it up with the millage rate, we're talking
about. 17 mills.
COMMISSIONER COLETTA: Okay. Let me ask you another
question, Mr. Mudd, since you're pretty much up on impact fees and
millage rates.
Is there any correlation between the fact that we have the lowest
millage in the State of Florida and also the highest impact fees?
MR. MUDD: Well, Commissioner, you're damned if you do and
you're damned if you don't. You know, if you want to have the lowest
millage rate in the State --
COMMISSIONER COLETTA: We use the word darn around
here.
MR. MUDD: Oh, I'm sorry. Well, I didn't -- it wasn't swearing
in my statement, okay? I'm just --
COMMISSIONER COLETTA: Oh, that's okay. Remember, Ave
Maria's coming.
MR. MUDD: Yes, sir.
The -- now, you got me on Gregorian chant. I'm sorry.
The -- if you're going to have the lowest -- if you're going to have
the lowest millage rate -- the lowest tax rate in the State of Florida,
okay, and you've tried sales tax issues before in the county and they
haven't gone anywhere -- because the residents basically say, deal
with it in the tax dollars, so you're pretty well stuck with two funding
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sources to look at -- or revenue sources in order to get at increased
demands.
You've got a county that's increasing by anywhere from 12- to
15,000 residents a year. The whole State of Florida is in a boom as far
as that's concerned, and I think we got that -- that information as we
did our lobbying efforts up in Tallahassee with Southwest Florida last
week. You're going to have to do something in order to get it.
Now, the county in the past has done things about renting
buildings. Now, we talked about, in one of our strategy meetings in
our workshops about stopping the renting side of the house and get
into government ownership of those buildings.
We moved the property appraiser across the street because --
because we couldn't bring any more folks in because we didn't have
parking spaces.
So we made a choice to start building parking decks. We've
started one with the sheriff's facility, the new -- the new expansion to
the jail, and we will continue, as soon as that's over, to start the other
parking -- parking deck that's planned so that we can get folks out of
rental spaces.
I can't do an expansion to the courthouse without having parking
spaces, because then we violate our Growth Management Plan, Land
Development Code, issues like that, so we're pretty well stuck in
increasing that process as far as the footprint.
So if we're going to keep our Master Plan, and we're going to do
that, we're going to have to build those particular facilities.
As you heard our -- the judge, the chief judge, Judge Hayes,
come in, they're -- they're looking at two new judges showing up.
And I've got Skip overseeing Judge Manalich here at the end of the
week trying to figure out where I'm going to put those two judges, and
their potential is another two on top of that because the 20th circuit is
growing and our need for courthouses are growing.
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You have a responsibility to provide those particular facilities for
the constitutionals and the judiciaries. So you've got a -- you've got a
courthouse that you have to deal with, you have public defenders that
you have to deal with, you've got the State Attorney's Office that you
have to deal with, plus you have your constitutional officers that you
have to house, and that's part of our responsibility.
And I would say today we're talking about everything except for
the sheriff as far as their future housing is concerned. And there was
an item on page 55 that talked about the particular build -- in your
packet -- the particular facilities that we're talking about over the next
five years in the packet that equate to some 107 thousand do -- $107
million that are impact-fee eligible under this particular impact fee.
You don't get it here on the impact fee, you're going to have to
get it out of your millage rate or you're going to have to do something
to cut services in order to pull it out.
COMMISSIONER COLETTA: I have one more question, and
then I'll surrender this mike.
CHAIRMAN FIALA: Okay.
COMMISSIONER COLETTA: Yes. This would be of Denny
Baker, if I may. And I have no idea which way this answer's going to
go.
Mr. Baker, prior to 2000, before this present commission that's
seated here today came and started getting involved, can you make
some sort of comparison with how we're meeting our affordable
housing needs today in comparison maybe in nUmbers; are we doing
better? Are we doing worse?
MR. BAKFJR: We're certainly not doing any better,
Commissioner.
Cormac is here. I'll defer to him. He's my housing expert in that
area, if you please.
COMMISSIONER COLETTA: Okay.
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MR. GIBLIN: Cormac Giblin, your housing development
manager, for the record.
Commissioner, that's a -- I think that may be a loaded question.
We are certainly working a lot harder to meet the ever-growing
demands that are placed on affordable housing in this county, as we
just heard.
For forces beyond our control, housing prices are rising at a
minimum of 20, 25 percent a -- every year in this county due to
construction and land increase expenses.
I can tell you that our Affordable Housing Commission and our
newly-formed Collier County Housing Development Corporation,
nonprofit group, are vigorously trying to research every possible way
that we can mitigate the effects of increased land cost, increased
construction prices and increased impact fees in this county, probably
more so now than we have in the past five years or so.
There happens to be a very strong push right now to address the
growing needs of our working residents.
COMMISSIONER COLETTA: Okay. But I want-- also too, in
the Immokalee area, we've come up with a recent deferral program to
be able to try to accommodate not only residents, but business, where
we're trying to direct business to.
Would you give us a brief recap of that, if you could? Or would
that be back to Denny?
MR. GIBLIN: Well, the Immokalee program is going forward.
And, in fact, we hope to use it as maybe a prototype to address
workforce housing needs throughout the county, building on the
successful model that we've started in Immokalee.
MR. MUDD: Commissioner, if I can interject Cormac and ask
Cormac a question on that line.
Cormac, do we defer or waive impact fees for affordable housing
in other places in Collier County besides Immokalee?
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March 9 & 10, 2004
MR. GIBLIN: We -- we call our Impact Fee Relief Program a
deferral program to the homeowner, but at the time that the impact
fees are otherwise due, we are actually making payment into those
funds with our S.H.I.P. program.
Right now we receive just barely $2 million a year from the State
of Florida to the S.H.I.P. program. Last year we used 1.3 million of
that through our Impact Fee Relief Program.
COMMISSIONER COLETTA: And could you address the
industry impact fees and how that is affected as far as where we're
trying to direct industry to?
MR. BAKER: Commissioner, the new incentives for the
Immokalee area, the impact fees are deferred and actually are paid
back through increases in property values and through other programs.
The trust funds are made whole at some point in time at a later
date, so the county loses the use of that money early on. But at the
end of the day, the county is made whole.
COMMISSIONER COLETTA: And I think this commission
was in agreement that they wanted to direct the industry east of 951, in
previous meetings, was mentioned.
So I guess the biggest concern would be like retail establishments
that are opening throughout the county, as far as to limit the scope of
discussion where we're actually concerned about.
Thank you so much. I do appreciate your time.
MR. BAKER: Commissioner, I would like to add one thing to
that. I should point out that -- we're talking about the impact fees for
new construction. For example, in East Naples, if someone wanted to
go in and open an establishment in an existing building, of course,
there is no impacts fees, even if they remodel, as long as they don't
increase the square footage.
CHAIRMAN FIALA: Commissioners, we're going to break for
10 minutes to give our stenographer a 1 O-minute break, and then
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Commissioner Halas is next, and then Commissioner Coyle.
you.
Thank
(A brief recess was taken.)
MR. MUDD: Madam chair, you have a hot mike.
CHAIRMAN FIALA: Thank you very much. Commissioner
Halas, you're next.
MR. MUDD: Ladies and gentlemen, please take your seats.
COMMISSIONER HALAS: It's amazing when we talk about
how we're going to finance all this.
Recently we had a revenue commission that was put together,
and we asked the commission to give us ideas of where we could
obtain funding sources. And believe it or not, some of the ideas that
has (sic) been bounced around up here by the commission at one time
was, well, franchise fees.
Well, guess what? When the revenue commission came back,
they didn't want us to raise ad valorem taxes, they didn't want us to
raise revenue -- or franchise fees, and the only thing they really came
up with was impact fees.
And it's amazing, nobody wants to pay for the services rendered
here in this county. They want -- but they want somebody else to pay
for it, and -- so we don't have very many options open to us, and we've
got a tremendous amount of problems looming in the front.
We've got stormwater issues, we've got a new jail that's coming
on line, we've also already heard from the sheriffs department that he
wants $20 million, that he's going to need $20 million just to run his
operation over there and the enhancements that are taking place in the
jail.
So we're really between a rock and a hard place. It doesn't give
us much leverage here on how we're going to address all these issues.
And the other thing, I realize the small businessperson that's
coming into this area and wants to start a business, there's a lot of
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March 9 & 1 O, 2004
areas still open yet that -- of store frontage, places in residential -- or
in, excuse me -- in commercial areas that are available, and he won't
be hit with these impact fees. So I think we can come up with
something that would fit all cases.
So that's where I stand, and that's how I feel about the whole
situation at this time.
CHAIRMAN FIALA: Commissioner Coyle?
COMMISSIONER COYLE: Yeah. I would just like to go back
to one of the earlier questions and make -- make sure that we correct
some of the statements that were made so that we don't draw the
wrong conclusions.
When the county manager was asked about the impact of not
approving this, the county manager prefaced his statement by saying,
well, we have the law enforcement impact fee coming up, and if you
don't approve that, and then we drifted into a discussion about
increasing ad valorem property taxes.
That is not where I'm going here. I will not vote for an increase
in ad valorem property taxes, nor am I convinced that it is even
necessary.
The other -- the other point I would like to correct is that -- is that
the cost of things are escalating in Collier County, and much of it is
beyond our control, much of it is construction cost and things of that
nature.
Now, let me -- let me describe for you how that is not beyond our
control. If we increase an impact fee and put an impact fee on a
50,000 square foot office building or retail facility of 50- to $80,000 --
let's presume that office is a construction office and the retail is a
lumber yard.
You pass through those costs to the consumers which increases
the cost of construction. That is under our control because we are
applying substantially higher impact fees to those kinds of businesses,
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and those businesses serve our taxpayers, and our taxpayers pay more
money.
So don't be too quick to leap to the conclusion that we don't have
control over some of these costs, because our actions do, in fact, have
a very direct impact on the cost of construction and the cost of
everything else in Collier County.
But let me get to the real point. I am not saying we don't need to
build additional buildings. I'm not even saying we don't need to have
this impact fee. What I'm encouraging the commission to do is at least
take the time to look at what our revenue is going to be this year and
take a look at what the demands are on our revenues and to prioritize
those demands before making a final decision on an impact fee
implementation.
In our private lives, we don't -- we don't just go out and buy a
new car without first deciding what our income and expenses are
going to be, and then decide, is a new car more important than sending
the kid to college. We make those kinds of decisions and we make
those kinds of priorities, and that's all I'm asking this commission to
do.
We are approaching a budget cycle. We know we're going to get
additional money from increased valuations of property, but we have
not yet sat down to discuss how we're going to prioritize the
expenditure of that money.
And I think when we sit down and prioritize it, we are going to
have to ask ourselves a question, what is more important, building a
building, which we really need? Is it hiring more deputies for the
prison, which we probably won't need until after the prison is
completed? Is it building another road? What is the priority?
And then we sit down and we say, okay, here is the priority, then
we know how we divide the money up, then we know how much
money we need for our capital improvement program, and then we
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make a decision. That's all I'm asking this commission to do is to
approach it in a business-like manner, not discard the idea of an
impact fee, but at least evaluate these other options first and put it in
its proper sequence with respect to the expenditure of taxpayers'
money.
None of that, none of it, translates into an increase in ad valorem
property taxes. Absolutely nothing that I've said would result in that.
But what it would result in is a more logical and responsible
decision-making process with respect to how we allocate taxpayer
funds.
CHAIRMAN FIALA: Commissioner Halas?
COMMISSIONER HALAS: What Commissioner Coyle said is
true to a point, but also -- that we were up in Tallahassee last week
and we found out that the state is probably going to mandate quite a
bit, a substantial part of the increase that we anticipate from the ad
valorem taxes that are going to be mandated for us to provide facilities
here in the county that the state provided for.
When that takes place, we're probably going to lose maybe
somewheres in the area of $3 million that we normally wouldn't have
to give up that we could use here in Collier County for our benefit.
But with the advent of the 20th district (sic) court, the new judges
coming onboard, we're going to have to provide those facilities, and
we're also going to have to probably provide facilities for juvenile
court.
So when we look at everything and we look at what's coming
down the road, I think we're going to have a very tight budget year.
Maybe we're going to have to stop looking at landscaping the roads.
Maybe we'll have to stop building roads. And we'll see where it's
going to lead to from there.
But I think we went through that scenario once before, and it
doesn't work. And there's no way that you're going to stop growth.
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People are coming. Especially with the baby boomers.
We hear the development community crying that we're going to
put a bind on them as far as people wanting homes. Let me tell you,
these people that are going to be coming down here that were born
after 1945 to about 1960, these people have garnered quite a wealth,
and they're coming down here.
And they're not going to build 1,000 foot square (sic) homes,
they're going to be building 5,000 square foot homes. They're going
to come down here with all their toys, and they're going to demand
services, and we better be ready, because if we're not, I'll tell you, it's
not going to be fun.
And I just don't want to leave a burden on other commissioners
that may sit in this -- up here at the dais.
We've done that in the past. We've got some serious issues like
stormwater retention issues. We know that we're going to probably be
mandated by the federal government the next few years. So it's not a
pretty picture, and it's a hard decision to make, but we also have to
look at what we need to do to take care of it.
As we talk about, you need a new car or do you need to send the
-- your child to college. You may need a new car because you can't get
back and forth to work, but you can buy a used car. But still, you have
a problem whereby you have to balance the budget.
And we can't-- we don't have the revenue sources anymore. We
pretty much bonded everything out. We asked for help by the revenue
commission to give us guidance, and the only guidance they gave us
was, hey, impact fees as you heard, and I just don't feel it's a rosy
picture.
Yes, we're going to have an increase in ad valorem taxes, but
we've got all the other constitutional officers that also want a piece of
the pie. And it's a -- it's a fight every year in regards to how much of
that pie is going to be passed out.
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So we have to look down the road. And I think we have to make
sure that we plan well in advance of what's in front of us and what's
coming down the road.
CHAIRMAN FIALA: Okay. With that, I will close the public
hearing. Thank you.
And I'll also make a comment. I do believe that if we build new
government buildings, the reason we would have to build new
government buildings is because of new growth, otherwise, if we had
no growth, we wouldn't need any more government buildings.
I also wanted to comment that 85 percent of this impact fee that
we're talking about is not going to our area of the government, but it's
going to the constitutional officers and the buildings that they need,
and we are required by statute to pay for their buildings.
We're also talking about building kind of like satellite offices
around the county to -- to decrease the traffic problems, to bring
government closer to people's homes.
I'm very concerned about the office and retail section of this -- of
this impact fee schedule, because I -- as I was mentioning to the
people in my office yesterday, I don't want to cripple business. I feel
that it's terribly important.
And I had a talk with Davis Ellis just before, and we were talking
about a day care center, and -- for the children and how much it would
cost just -- just for impact fees before they even began to open, and, of
course, they pass that on to -- to the families who bring their children
there, and people are already complaining about how much it costs to
have their children cared for.
And what we're talking about in most cases, the children that are
in these places are the people that are out-- are -- have parents who
are out working two jobs a day in order to keep their family going, and
now we're even talking about increasing that.
Conversely, I think that this rate is awfully high and we don't
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really know what buildings we're talking about building. We've
gotten all the figures, but do we know all the buildings we're building?
MR. MUDD: We know what we're going to do the next five
years.
CHAIRMAN FIALA: Well, the five-year plan, right.
MR. MUDD: And then you've got the master plan that goes with
it.
CHAIRMAN FIALA: And are they -- you know, have we
discussed how necessary they really are?
MS. PATTERSON: Yes. Amy Patterson, for the record, again.
We went through the five-year master plan, which is included in your
package. Item by item they're ranked, they're placed on that sheet in
the level of priority. So they're necessary and they're -- they're ranked
accordingly, or they're placed on the schedule accordingly. And there
is a continuing master plan that goes out 20 years, but we just gave the
first five years.
Again, I need to mention that this impact fee is projected to
collect -- or to create revenue of $3.8 million per year, and that would
give us somewhere in the neighborhood of $20 million over five
years. The total plan is $108 million over five years. So this is only a
portion. This is not 100 percent impact-fee funded.
CHAIRMAN FIALA: Okay. And you know what, more than
anything, I know how much we need like parking, for instance, on this
facility. Man, we don't have any parking, and I'm delighted that we're
building it. We're not building it soon enough. We should have built
it years ago.
There are other facilities that we need. People talk about
operating efficiently. My goodness, our people are housed in cubicles
because there's really no space for them. We've separated offices.
We -- I think that we -- we definitely need the space. I'm just
wondering if we need it as quickly, wondering if there's a way to
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approach this where we-- I like the idea of a graduated increase. I
think that's maybe good, and maybe that would be something that we
could accept. So I'm kind of leaning toward that.
I definitely know we need it, that's for sure. And I truly believe
that in this particular instance, growth does pay for growth. And as I
said, if you close the gates, then we don't need any more government
facilities.
COMMISSIONER HALAS: Doubt it.
CHAIRMAN FIALA: So, Commissioners, where do you want
to go from there?
COMMISSIONER HALAS: I make a motion that we approve
the impact fee increase for government buildings.
CHAIRMAN FIALA: As stated or graduated?
COMMISSIONER HALAS: As stated in the manual here.
COMMISSIONER COLETTA: I'll second it for discussion
purposes.
CHAIRMAN FIALA: Okay. I have a motion on the floor to
approve the impact fee schedule as stated on our agenda by
Commissioner Halas, and seconded by Commissioner Coletta.
Now, further discussion, Commissioner Coletta?
COMMISSIONER COLETTA: Yes. Could we have a little
more background on this graduated fee and how that would work so
this would be phased in in such a way that it might not have such an
impact, that people can start to brace for it?
MR. TINDALE: Sure, I can tell you what I've done -- we've
done in other communities.
You usually take a time period, either three to five years, to phase
it in. And that's the reason I used this 75 and 85 percent. For
example, if you decided that you -- you wanted to wait for three years
before you implemented 100 percent, you start out at 85 percent. Next
year, in 12 months, you would go to the 90 percent, and then 95 and
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100.
If you wanted to come up to 100 percent in five years, you'd
basically start at 75 percent and go 80, 85, 90, 95 and 100. And that
way -- a lot of communities do that because they feel like it gives the
builders time to absorb it, it gives them time to schedule changes, and
change is usually difficult, and this is change over time.
Again, I'd like to highlight that probably -- and we did this --
started doing this about 10 years ago, without using the index, it puts
you behind. And so I would suggest to you that by phasing it over the
three-year or five-year period and making sure you're taking a
percentage of the new number each year of this index, that it's an
effective way of doing it.
When you look at a 20-year period and you take that three-year
revenue loss or a five-year revenue loss, it doesn't seem quite so hard
to swallow. So I think they're starting to look in terms of the
long-term, it's a permanent -- semipermanent impact fee. It can
always be voted out. But looking at a 20-year plan, it doesn't have a
tremendous impact on it, and yet it still gives you the ability to absorb
it.
COMMISSIONER COLETTA: I'm not quite through, if I may.
My thoughts about the graduated -- and I'll tell you what it is. It's
very simple -- is that if we start off with a smaller number, we have to
learn to live within that. We're going to have to be very conservative
while we work.
I know what's been proven, that we need every single dollar of
this, we need every single building built on that particular time
schedule. But by coming up with a graduated schedule, we're
recognizing the fact that the people that have been here before us have
already paid for the infrastructure that's supporting them.
It's the people that are coming afterwards that have to contribute
towards that new infrastructure. And for us to have to pay that have
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been here 10, 15, 20 years for the new infrastructure that's going to go
in for homes and public build -- for public buildings or whatever, and
we already paid our mark, it doesn't seem fair.
So I do think that an impact fee can be fair, but I do think that we
have to put some sort of restraints on it.
Would -- Commissioner Halas is going to be next, and I hope he
reconsiders his motion.
CHAIRMAN FIALA: No, I'm next then.
COMMISSIONER COLETTA: All right. Forgive me. Your
light wasn't on, Commissioner Fiala.
CHAIRMAN FIALA: I don't have a light. They didn't give me a
light.
COMMISSIONER COLETTA: Well, you're the light of the life
up here, so go ahead.
CHAIRMAN FIALA: Yes, thank you.
Two things. First of all, I think if we -- if we approach it from a
graduated schedule, it will give us an opportunity also to apply for
grants. That was a question that I asked in my office. I'm certain
there are grants available there, and we're getting better and better at
applying for grants that will help offset some of these expenses.
And, secondly, another thing, you know, a benefit that we haven't
talked about up here yet, but a benefit to this is, with these impact fees
in place, yes, it might discourage some businesses, but the good thing
is it would encourage them to take up some of these empty spaces that
we have sitting around, some of them boarded up, and maybe move
into those spaces rather than build new buildings, occupy some of
these empty places.
And I know that there's a community out there eager to see some
new develop -- or redevelopment taking place. So there is a benefit to
this.
COMMISSIONER HALAS: Madam Chair, I'd like to amend my
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motion and put it on a graduated basis over three years.
COMMISSIONER COLETTA: And I amend my second.
CHAIRMAN FIALA: Okay. We have the motion amended to --
to include a graduated basis for three years and -- by Commissioner
Halas, and seconded by Commissioner Coletta. Do we have any further discussion?
COMMISSIONER COLETTA: We might want to state the
particular arrangement. I would assume that it has to do with the
impact fee schedule option that's in front of us.
COMMISSIONER HALAS: I would like to add that we start off
with 80 percent, and then go to 90 percent, and then the third year we
go to 100 percent.
COMMISSIONER COLETTA: Could I suggest that maybe 75,
85 and 100 might be more equitable? It gives a little more breathing
space for those people that are coming along.
COMMISSIONER HALAS: Commissioner Coletta, I'll let you
put that -- add that to that --
COMMISSIONER COLETTA: Okay, thank you.
COMMISSIONER
COMMISSIONER
COMMISSIONER
HALAS: -- 75, 85, is that correct?
COLETTA: That's correct.
HALAS: Okay-- 100.
COMMISSIONER COLETTA: Thank you.
CHAIRMAN FIALA: Okay. David, do you have this motion in
place, and would you like to read it for us?
MR. WEIGEL: I believe I do, thank you, and I'll ask Mr. Tindale
to stand by to make sure there's no further direction that may be
needed here.
We have a motion by Mr. Halas, second by Mr. Coletta, to
approve the impact fee ordinance --
COMMISSIONER HALAS: Seventy-five --
CHAIRMAN FIALA: Graduated.
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March 9 & 1 O, 2004
MR. WEIGEL: Yes. No, I heard someone.
COMMISSIONER HALAS: Oh.
MR. WEIGEL: -- to approve the impact fee ordinance
amendment relating to government buildings to be implemented with
an implementation date of April 1st, 2004, and such fee schedule to be
on a graduated basis of 75 percent the first year, 85 percent the second
year, and 100 percent after three years, or at three years. Is there any further definition required?
MR. BAKER: David, I would suggest -- Denny Baker, for the
record -- suggest that we include the indexing that Mr. Tindale
mentioned so we -- we're --
COMMISSIONER HALAS: I'll amend my motion to cover that.
MR. BAKER: Thank you.
MR. WEIGEL: Okay. Does the second so amend?
COMMISSIONER COLETTA: Yes.
MR. WEIGEL: Okay. So on top of what I have just said, the
motion maker and the second have amended their motion to include
indexing.
And is everybody clear as to what that indexing means and how
it is implemented over the years? (No response.)
MR. WEIGEL: Any further explanation needed prior to the
vote?
(No response.)
MR. WEIGEL: To the board.
CHAIRMAN FIALA: Okay. Commissioners, all those in favor,
say aye.
COMMISSIONER HALAS: Aye.
COMMISSIONER COLETTA: Aye.
CHAIRMAN FIALA: Aye.
COMMISSIONER COYLE: Aye.
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March 9 & 1 O, 2004
COMMISSIONER HENNING: Aye.
CHAIRMAN FIALA: And opposed, like sign.
COMMISSIONER HENNING: Aye.
COMMISSIONER COYLE: Aye.
CHAIRMAN FIALA: Opposed -- that's all right, that's all right.
Opposed, Commissioner Coyle and Commissioner Henning. Is that --
is that correct?
COMMISSIONER HENNING: Right.
CHAIRMAN FIALA: Okay. I wasn't quite sure where the first
aye came from.
Okay. So we have a 3-2 vote on that.
MR. WEIGEL: The motion passes 3-2.
CHAIRMAN FIALA: Okay. The three for, or in favor of the
motion, are Commissioner Halas, Commissioner Coletta, and
Commissioner Fiala. Those opposed are Commissioner Henning and
Commissioner Coyle.
COMMISSIONER COYLE: Very opposed, put that in there.
Item #9A
RESOLUTION 2004-69 APPOINTING GRAHAM GINSBERG
AND JOHN SOREY III TO THE COLLIER COUNTY COASTAL
ADVISORY COMMITTEE- ADOPTED
MR. MUDD: Madam Chair, that brings us to our next item.
Sorry?
Madam Chair, that brings us to our next item, which is 9(A), and
that's appointment of a member to the Collier County Coastal
Advisory Committee.
COMMISSIONER HENNING: I'll make a motion, and it's
going to be two motions. I make a motion that we accept John Sorey
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March 9 & 10, 2004
from the city council to represent the city on this board.
COMMISSIONER COLETTA: Second.
CHAIRMAN FIALA: Okay. This is 9(A), and that's the first
motion. So I have a motion to accept John Sorey from the --
representing the City of Naples by Commissioner Henning, and
seconded by Commissioner Coletta.
Any further discussion?
(No response.)
CHAIRMAN FIALA: All those in favor, say aye.
COMMISSIONER HALAS: Aye.
COMMISSIONER COLETTA: Aye.
CHAIRMAN FIALA: Aye.
COMMISSIONER COYLE: Aye.
COMMISSIONER HENNING: Aye.
CHAIRMAN FIALA:
(No response.)
CHAIRMAN FIALA:
And opposed, like sign.
And that passes, 5-0.
COMMISSIONER HENNING: The second motion is to appoint
Graham Ginsberg on the CAC.
COMMISSIONER COLETTA: Second.
COMMISSIONER COYLE: And I would like to nominate
Robert E. Dowling as the committee recommendation.
CHAIRMAN FIALA: Yes, and I second that. So we have --
COMMISSIONER COLETTA: You've got one motion.
CHAIRMAN FIALA: Okay. We have one motion on the floor
to accept Graham Ginsberg by Commissioner Henning, and a second
by Commissioner Coletta.
Oh, my goodness, and we have -- I can't tell which one was the
first one.
COMMISSIONER COLETTA: Oh, I'm sure I was.
CHAIRMAN FIALA: Okay. Commissioner Coletta, then we
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March 9 & 10, 2004
have Commissioner Henning, and then Commissioner Coyle.
COMMISSIONER COLETTA: Yeah, I just want to point out a
couple of things.
First, that Mr. Ginsberg is a civil engineer, number one, number
two, no representatives exist on this board from District 3 or 5. We
have three from District 1, two from District 2, and three from District
4, zero from 3 and zero from 5. And this man is an advocate for beach
access, and I'm backing him.
CHAIRMAN FIALA: Okay.
Commissioner Henning?
COMMISSIONER HENNING: The -- part of my -- other than
what Commissioner Coletta said, Mr. Dowling is already serving on
two committees for the Board of Commissioners, and I really
appreciate that. I think our efforts of trying to bring people -- people
in to give us feedback, so that's the reason for my motion.
CHAIRMAN FIALA: Okay.
Commissioner Coyle?
COMMISSIONER COYLE: Yeah. I have a question, and then a
comment. How is this vote going to be determined? If we have two
potential nominations, are we going to vote on both of them and have
the person with the largest number of votes be selected? Or is it just
the first person who is voted on?
You see, to me it's unfair because if you vote on the first person,
they've got three votes. You could vote on the second person and
might have four votes. So it's a problem I've always had with the way
we approach this process. So I have a question about how we should
do this.
MR. WEIGEL: Are you looking -- are you ready to --
COMMISSIONER COYLE: Yes.
MR. WEIGEL: The answer, or response is, that a motion on the
floor is the motion that must be handled before the second motion is
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March 9 & 1 O, 2004
had. There is an opportunity in the discussion portion of any motion
that's had prior to the vote to bring out the advantages or
disadvantages of the -- of the vote for the motion that was made and
the potential for a second motion and vote that could be had thereafter.
But the board will be obligated to vote on the first motion. And
it's not a question of seeing, ultimately, who -- who in multiple
motions garners the most votes.
COMMISSIONER COYLE: There is also a possibility of
putting more than one person's name in nomination and having a vote
on each of them.
MR. WEIGEL: Never seen it done here.
COMMISSIONER COYLE: Okay. All right. Then I'll wait till
I'm chairman, okay?
Then I would say that Mr. Dowling is the committee's
recommendation. The committee has apparently made a judgment
that he has -- is capable of performing well on this committee, and I
support Mr. Dowling and support the committee's recommendation.
MS. FILSON: And-- and if I may interject just one thing. Mr.
Dowling was appointed to a committee in January of this year, and he
was appointed to the other committee in February of this year. So if
he is elected, you'll need to waive section 5(D) of ordinance 2001-55.
COMMISSIONER COYLE: Okay.
CHAIRMAN FIALA:
(No response.)
CHAIRMAN FIALA:
Any further comments?
All those in favor of the motion to
appoint Graham Ginsberg to the Coast Advisory Committee, say aye.
COMMISSIONER HALAS: Aye.
COMMISSIONER COLETTA: Aye.
COMMISSIONER HENNING: Aye.
CHAIRMAN FIALA: I have three votes, Commissioner
Henning, Commissioner Coletta, and Commissioner Halas.
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March 9 & 10, 2004
All those opposed, say aye.
COMMISSIONER COYLE: Aye.
CHAIRMAN FIALA: Aye.
And that's Commissioner Coyle and Commissioner Fiala. So we
have a 3-2 vote.
COMMISSIONER HALAS: So that means that motion passed;
is that correct?
CHAIRMAN FIALA: Yep.
MR. MUDD: Madam Chair, is there a-- is there a second
motion, or are we moving on to 9(B)?
COMMISSIONER COLETTA: Nope, you can't.
CHAIRMAN FIALA: No, sir, there is not.
Item #9B
RESOLUTION 2004-70 APPOINTING JOHN F. SOREY TO THE
TOI JRIST DEVEIDPMENT COl JNCII,- ADOPTED
MR. MUDD: Next item is 9(B). It's appointment of members of
the Tourist Development Council.
CHAIRMAN FIALA: That was a wishful motion, I think.
COMMISSIONER HENNING: I'm going to second
Commissioner Coyle's motion to appoint Councilman John Sorey.
COMMISSIONER COYLE: I make that motion.
CHAIRMAN FIALA: I have a motion on the floor from
Commissioner Coyle, a second by Commissioner Henning, to appoint
Councilman John Sorey to the Tourist Development Council.
Any further discussion?
(No response.)
CHAIRMAN FIALA: All those in favor, say aye.
COMMISSIONER HALAS: Aye.
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March 9 & 10, 2004
COMMISSIONER COLETTA: Aye.
CHAIRMAN FIALA: Aye.
COMMISSIONER COYLE: Aye.
COMMISSIONER HENNING: Aye.
CHAIRMAN FIALA: And opposed, like sign.
(No response.)
CHAIRMAN FIALA: Very good. That's a 5-0.
Item #9C
STAFF TO PREPARE A RESOLUTION TO BE BROUGHT BACK
ON MARCH 23, 2004 AGENDA REGARDING THE FPL
PREFERRFD TRANSMISSION lINE AIJGNMENT
MR. MUDD: Commissioner, this next item is 9(C). It's a
discussion regarding the FP&L preferred transmission line alignment.
And you asked for the particular item to be on the agenda.
CHAIRMAN FIALA: Thank you.
Yes. I don't know if I should begin or not, but I will. I received a
call from Ray Juda asking -- saying that Lee county had sent a
resolution to -- to FP&L to say that they were certainly in favor of the
alignment that is proposed by FP&L, and he asked if we would send
the same resolution. I guess that's needed as we move on to the state.
And I said, I didn't want to put anything -- I didn't want to sign
any kind of a resolution without talking to the commissioners first, and
so here we are.
So I'd like to begin the discussion. Do we -- does anybody want
to hear from FP&L or from staff members, or shall we just move
forward?
COMMISSIONER COLETTA: Let's hear from them first.
UNIDENTIFIED SPEAKER: We have speakers.
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March 9 & 10, 2004
CHAIRMAN FIALA: Okay.
COMMISSIONER COYLE: What's the chain?
MS. FILSON: I have four speakers on this issue.
CHAIRMAN FIALA: Four speakers on this, okay. Very good.
Let's start there. And then --
MS. FILSON: Carol Wilsey. She will be followed by Grover
Whidden.
MS. WlLSEY: For the record, I'm Carol Wilsey. I'm the
president of the Olde Cypress Homeowners' Coun -- Advisory
Council. Wasn't sure that I would be allowed to present today, so I
haven't prepared anything in particular.
But I'm here on behalf of the Olde Cypress Homeowners'
Advisory Council to urge you to take a stand to support the proposed
FP&L route for the new power lines.
We have had a number of discussions with a number of different
county officials here as well as in Lee County. We've been very
active in attending the meetings and looking at these alternative
routes.
The one that has been proposed by Collier of late would take
power lines westward along Immokalee Road and then head up
toward Livingston. And in my discussions with transportation
officials, it does not appear that there is enough space along the
existing Immokalee Road and the canal to put these kinds of power
lines in.
So we are opposed to them, and we would hope that the
commission would see fit to draft a resolution in support of the FP&L
proposed route heading eastward out Immokalee, and send that on to
the governor. Thank you.
MS. FILSON: Grover Whidden. He will be followed by
Meggan Davis.
MR. WHIDDEN: Good morning, Commissioners. My name is
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March 9 & 1 O, 2004
Grover Whidden, the manager of external affairs for this region for
Florida Power and Light.
First I want to personally thank each of you for your participation
and support of FPL's proposed transmission line in Collier County.
Each one of you has been involved in the siting process, and further, I
think, has caused the citizenry of Collier County to also be involved.
And that's -- from our perspective, that's always a good thing. So we
appreciate that.
As you know, we've been involved in this siting of a new
transmission line to provide for the growing power needs in Collier
County for almost a year now. We've had a great deal of outreach
activities with the community, and I think everybody is well informed
as to what is being proposed.
The new line is needed not only to support the growth that you've
been talking about earlier this morning, but also very importantly, to
maintain the reliability of your power supply here in Collier County.
The FPL preferred route minimizes the impact to Collier
residents while protecting our sensitive environment here, specifically
the ecosystem of the Corkscrew Swamp.
Your staff has reviewed -- spent a great deal of time reviewing
our route, and we have resolved all the issues that your staff has had.
As you know, the final decision regarding the route of the
proposed transmission line rests ultimately with the governor and
cabinet. And I think each of you are also aware that the governor and
cabinet pay a great deal of attention to what local counties prefer when
it comes to siting of these facilities.
So for this reason, we are very much appreciative, if you can,
lend your support for the route that FPL is proposing. Thank you.
MS. FILSON: Meggan Davis. She will be followed by Amy
Taylor.
MS. DAVIS: Good morning again. Meggan Davis, for the
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March 9 & 1 O, 2004
record, president of the Longshore Lake Board of Directors, the
foundation.
A new power transmission line is required by Florida Power and
Light to meet the growing demands of Collier County.
FP&L is in the process of siting that new electric power line
transmission known as Collier Orange River, number three, between
the existing Orange River substations in -- east of Fort Myers to our
Collier substations east of Naples.
The transmission lines are needed for a continuous supply of
electric to Lee and Collier County with safe, reliable electric service.
And reliability is the issue here.
FP&L identified a route and -- which appropriately balanced
many factors, including community and environmental.
A geographical separate right-of-way is vitally important for
ensuring reliable electric service in Southwest Florida.
I contacted -- I emailed Commissioner Fiala and copied our
Commissioner Henning, and requested that the Collier County
commissioners take a stand on an official position on this. I think it's
important.
The governor will be looking, along with his cabinet, to make
this decision fairly soon, in the spring, early summer, and I would
think that he would be curious as to why Collier County hadn't
weighed in one way or the other.
Our community supports the FP&L proposed line, and we think
it's -- it best serves the reliability issue, and reliability should be the
major concern here.
So we support it and we hope that you will too. Thank you.
MS. FILSON: Your final speaker is Amy Taylor.
MS. TAYLOR: Good morning, Amy Taylor, Collier County
Public Schools.
We are also in support of FP&L's preferred route. We appreciate
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March 9 & 1 O, 2004
that FP&L has done its due diligence in evaluating its effects on
public schools, the route that it had finally determined.
The alternate route proposed would affect properties that are
owned by the Collier County Public Schools, and we would not prefer
that.
So we are in support of FP&L's proposed route. And that's all.
Thank you very much.
CHAIRMAN FIALA: Thank you, Amy.
That's all of our speakers?
MS. FILSON: Yes, ma'am.
CHAIRMAN FIALA: Okay. Commissioner Coletta first.
COMMISSIONER COLETTA: Yes. Thank you very much.
I realize where this is -- where this is going, and I do have to
speak up on behalf of the people that live in District 5 that aren't here
today. I assume that this will come back to us one more time when we
get the resolution drawn up.
But in any case, I want to point out a couple of factors on this
that we're not considering. One, the people that are supportive of the
particular route that FPL is endorsing do not live where the FPL
route's going to go. Maybe that's just coincidence, but I want to point
that out for one.
Number two, this is going to impact thousands of people because
of the thoughtlessness of how they're placing it right next to the road.
Most transmission lines have been inland slightly. They've had
access roads to them. They haven't been the eyesore or presented the
danger to traffic that these do on 951 and also on Immokalee Road.
I'm not saying that the route coming through from directly across
might be the best route to go with in the whole world, but what I'm
saying is, I need a little sensitivity to how the people feel in District 5
to this.
They're not embracing this with open arms. I don't think you
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March 9 & 10, 2004
have one supporter that lives anywheres near this line that's going to
ever show up at one of these meetings and say, yeah, we need to build
that line.
And we keep going with this issue about the security. We need
to have a separate line secure from the other lines because, if at some
point in time we may have a terrorist attack, and those terrorists will
be able to, very conveniently, take down both lines at the same time.
Well, there's points where this is going to cross where other
transmission lines are, which means it's still susceptible to terrorist
attack. With the modem technology that exists out there with such
things as garage door openers that can be manipulated, and timing
devices that are numerous out on the market, it wouldn't -- that
argument does not hold.
I mean, it would be very easy at one point in time for any
terrorist that's serious about it to be able to approach these lines, which
are unguarded, undefended, and do whatever damage they want, and
to synchronize their attacks would be totally effective.
I just -- these -- I have an obligation to bring that up. And I want
to mention the fact that we have power lines in District 5 now. One of
them runs along 39th. It sits back in about, oh, two houses back in,
and it goes through the area from one end to the other.
It doesn't impact anyone. It's not an unsightly thing, because
you're not looking at it unless you drive underneath it like I do twice a
day, but the people that built that, which, I believe, was the -- Alico, in
Fort Myers, and goes to Marco Island to meet their power needs, were
a little more considerate at that point in time in what they did to be
able to meet the needs of the neighbors that were coming.
Let's just see if I covered everything I wanted to. Yeah, that's
basically about it. I know which way you're going with this. I know
it's going to happen, but I do want to make sure that when this goes
out to the governor and his cabinet that my name is in very bold print,
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March 9 & 1 O, 2004
maybe about a 24 type high --
COMMISSIONER HALAS: About this big (indicating)?
COMMISSIONER COLETTA: You better believe it. It's (sic)
totally opposed to this and the unfairness to it. I plan, under my own
name, to write a letter to the governor and show him some pictures of
what it looks like at this point in time and what the furore effect's
going to be.
I don't know if that's going to have an effect on the cabinet. But
in any case, the people in Golden Gate and Immokalee, that live on
Immokalee Road along on the agricultural lands, they deserve better.
Thank you.
CHAIRMAN FIALA: Commissioner Henning?
COMMISSIONER HENNING: I guess there was some
correspondence that I received-- I'd like to ask Mr. Summers,
emergency management director, about-- and Commissioner Coletta
brought it up -- about the reliability and safety issues, and I'd also like
to say that this FP&L proposed transmission line, I'm going to live
closer to it than a lot of citizens in District 5.
MR. SUMMERS: Madam Chairman, Commissioners, Dan
Summers, director of emergency management.
For obvious reasons, the emergency management office was
asked to look at a very narrow scope related to the redundancy and
reliability and storm planning associated with this second line.
We were not involved in any of the siting of such or
right-of-way, proposed right-of-way identification. That was done so
that our office could make a presentation to the administrative law
group who heard that.
So our focus was, again, redundancy, storm protection, we did
discuss terrorism and those type of things. Our support and the
experience that I relayed from the 11 declarations that I had in Coastal
North Carolina, was a desire simply in a recommendation based on
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March 9 & 1 O, 2004
good emergency planning to separate risk, or to minimize risk, and
we've -- we supported that.
I supported that in terms of having those lines that are separate
and apart that do develop levels of redundancy. Some of that's
engineering, some of that's switching, some of that's separation.
And finally, I think the other part of that was, how quickly could
we identify the location of failure or damage and how quickly can we
gain access for emergency repairs. And as difficult as aerial
transmission lines are sometimes from an aesthetic value, they are
invaluable in emergency power restoration.
So those were the points that emergency management had to
convey, and those were the points that we shared.
COMMISSIONER HENNING: Well, with that I'd like to make
a motion that we direct staff to work with the county attorneys to draft
a resolution supporting FP&L's alignment --
CHAIRMAN FIALA: I'll second that.
COMMISSIONER HALAS: Second.
COMMISSIONER HENNING: -- being on our second -- or next
agenda.
CHAIRMAN FIALA: Thank you. I second that.
And Commissioner Halas, you also seconded it, right?
COMMISSIONER HALAS: Yes.
CHAIRMAN FIALA: Did you want to say anything further?
COMMISSIONER HALAS: No. The question that
Commissioner Henning asked, that's where I was going to lead to.
And maybe one other additional to that, and that is, the general
populous, when we look at the impact that is for District 5, I
understand where Commissioner Coletta's coming from, but when we
look at the overall picture, we've got to figure out where the general
populous is and how fast we can get them back and up and running
after a major storm event. Am I correct on my assumption on that?
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March 9 & 1 O, 2004
Thank you.
CHAIRMAN FIALA: Okay. I have a motion on the floor by
Commissioner Henning and a second by Commissioner Fiala.
One question I wanted to ask David. We're voting now to have
staff prepare a resolution. Do we then need to come back and vote on
that?
MR. WEIGEL: Well, the motion that was made was for it to
specifically come back at the next board meeting so that we'll create
and bring back to you -- if the motion passes, we'll bring back to you
at the next meeting as an agenda item a resolution in draft form for
your approval.
CHAIRMAN FIALA: Okay.
COMMISSIONER HENNING: The reason I did that, the
resolution in here, I don't think, fits Collier County. So that's the
reason I think that's important.
CHAIRMAN FIALA: Great.
COMMISSIONER COLETTA: It's only fair. I agree.
CHAIRMAN FIALA: Okay.
motion now?
COMMISSIONER HALAS: Yep.
MR. WEIGEL: Yes.
CHAIRMAN FIALA: Okay, fine.
All those in favor, say aye.
COMMISSIONER HALAS: Aye.
CHAIRMAN FIALA: Aye.
COMMISSIONER COYLE: Aye.
COMMISSIONER HENNING: Aye.
CHAIRMAN FIALA: And opposed, like sign.
(No response.)
COMMISSIONER COLETTA: Nay.
CHAIRMAN FIALA: We have a 4-1 vote; Commissioner
Very good. So are we clear on the
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March 9 & 1 O, 2004
Coletta dissenting.
Item #9D
DISCUSSION REGARDING FEMA UPDATE- STAFF
RECOMMENDATIONS APPROVED
MR. MUDD: Commissioner, the next item is 9(D), and that's a
discussion regarding the FEMA update and approval of an emergency
authorization to contract with private sector firms as required to
perform studies and other items of work in support of Collier County's
restudy of the flood insurance rate maps recently rescinded by the
Federal Emergency Management Agency, better known as FEMA.
And Mr. Joe Schmitt will present with Commissioner Coletta.
COMMISSIONER COLETTA: Thank you.
MR. SCHMITT: Commissioners, good morning. For the record,
Joe Schmitt, administrator of community development, environmental
services division.
I'm going to go through a brief power point presentation because
I want to highlight -- I'm not going to go through all the detail in the
executive summary. That was primarily there for the record because
this has been an ongoing issue, and I'm going to highlight kind of
where we've been.
This all started back in December of 1996, and that's when we
were notified that the Federal Emergency Management Agency was
going to look at Collier County and update the coastal flood insurance
-- update the floOd insurance study and the corresponding flood
insurance rate maps.
In December, '98, they issued that flood insurance study. We
raised concerns regarding the technical aspects of it and partnered with
the city. And at that time, we hired -- jointly hired, Tomasello
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March 9 & 1 O, 2004
Consulting Engineers to do the preliminary analysis.
There's a long track record in between. I'll bump all the way up to
December, 2001. That's when we basically began the formal appeal
process. But at that time, we also agreed to try and mutually, at least
in a cooperative manner, try and resolve the issue.
Between September, 2002, and March just recently, we've been
working with FEMA to resolve these issues, to discuss our objections,
but, frankly, we also, the more important aspect of this, was to obtain
the needed engineering, scientific and topographic data to improve the
accuracy of the map, and that was the most overarching and prob -- or
the most compelling aspect of staffs involvement in this.
In sum, we really wanted to focus to ensure the accuracy of the
maps, and to do so, correctly identify those who are in areas that
needed to pay the flood insurance and those who are identified as
having to pay but shouldn't pay, and that's -- that's pretty much where
we were.
Total cost to date this county has spent, at least from the county
coffers, $356,000. You'll note, $235,000 of that was a joint study
between -- where we partnered with the city and the county partnered
in pursuit of the dispute in regards to, at that time, primarily having to
do with the coastal surge model.
That contract is under control of the City of Naples. We have an
interlocal agreement with the City of Naples. The contract is
controlled by the City of Naples.
We amended that contract in January, another $57,000, to allow
Mr. Tomasello and Tomasello Consulting Engineers to determine the
base flood elevation, which is called the Sheet 2D study, which
impacts the Golden Gate Estates.
We spent $49,000 certifying the LIDAR, and another $61,000
developing vertical control throughout the Estates.
I think the important issue here is to understand that that contract
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March 9 & 1 O, 2004
-- and I'll get -- towards the end, I'll discuss the importance of where
we're going now. But that contract was -- the city actually controls
that contract.
I think our successful accomplishments -- and we truly have
some successful accomplishments. This staff diligently took LIDAR
data, and with the technological advances that we have made in GIS
over the last year, we certified the property appraiser's LIDAR data,
and we submitted over 76,000 names to FEMA for what we called a
mass letter of map amendment.
Fifty-seven miles of vertical control that never existed in the
Estates. We now have that. We now are requiring actual flood
certificates for every new home being built in the Estates. And we
merged the LIDAR data and the base flood maps. And the reason
we're on the slide show here -- because I'm going to show you pictures
of that. And all that is now on the Web.
This is -- in the blue is the first order control around the Estates.
Then the magenta or purple color is the second order control. We
have second order benchmarks throughout the Estates. There are the
points. There is a point now within almost a mile of every home in
the Estates, so now homeowners can get legitimate flood certificates.
Before we were using local datum. Eighteen inches above the
crown of the road was the requirement. Now they have to build to
flood elevation.
This is a product where we took the LIDAR data, the light
detecting and ranging data, and merged it with the FEMA maps. And
this is the ongoing dispute. And I'm going to show you examples.
These are X zones. X zones mean you do not have to pay flood
insurance. You can see there's somewhat of a correlation. They
missed this spot. This is in Naples Park, and these are some of the
reasons why we've been disputing 'this. Actually, if one were to take
this, this probably should have been the X zone.
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Another good example is the next one. You can see this is an X
zone. All this area. Interestingly enough, here's -- build a home right
here in the middle of the lake and it's an X zone. This is what we've
been disputing.
We produced these maps, and I -- my hat's off to my staff, and I
know Commissioner Coletta's going to give the names, so I'm going to
hold off on that because he was with us up in Atlanta. But these are
the products we took up to Atlanta a few weeks ago, almost a month
ago now, and where we -- we disputed the quality of the product and
displayed to them vividly that the maps that were produced
inaccurately, at least, depict the flood -- the flood -- the capabili -- or
at least the potential for flooding in Collier County.
Here's another X zone down here. I'm -- down in this area, but if
you look at how this X zone carries all the way through, certainly out
into the middle of the lake, and these were examples upon examples of
areas that were identified through X zones, meaning, an X zone means
you were not required to pay flood insurance.
We also successfully provided products to FEMA, and each one
of these little red spots are house pads that are throughout the Estates.
And you can see, interestingly enough, here's an X zone as well. Very
little correlation to what exists.
An X zone right here. The blue is a lower grade. The red is a
higher grade. Here's another large X zone, and this is what we've been
dealing with for the months and months.
One of my staff, Kevin, actually merged the base flood elevation
data with the LIDAR, and basically geo rectified it, and now produced
a product that we had the capability to vividly display this to the folks
up in FEMA.
What FEMA did was -- with some of this data and these house
pads now, they have taken basically the 7,600 names or property
owners and properties and are trying to identify those properties that
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could be deemed to be out of the flood zone, and we're still waiting for
that information.
Well, here's where we are. Friday we had a conference call,
Commissioner Coletta was on that conference call, and we convinced
FEMA to grant us a 16-month extension.
Criticality is that Collier County has eight months to provide all
the necessary data to update the flood insurance rate maps.
We committed to FEMA that we would provide them the
analyses, the topographic, scientific, and engineering analyses in order
to provide the data they need to update, and they agreed, they will
now upgrade the entire Collier County flood insurance rate maps that
were produced over eight years ago.
The criticality is the time frame. By December 1 st, we have to
have to them the information. They will follow up with an additional
eight months of editing the maps, and then publicly vetting those maps
through the required process that they have to go through.
We committed to three things: We would meet the imposed time
frame. We were, quite honestly, hoping for six months, and we even
pushed for eight.
We recognize that if we miss the imposed date of December 1st,
that they will probably implement the current maps or the revised
maps that exist, and we basically said we would stand behind the
results, and what I mean by that is, standing behind the results, we
recognize that there are some people who are identified right now in
an X zone who may have to pay.
But our position, along with the support from Commissioner
Coletta, was that all we want to do is do the right thing. Those that
need to pay and are deemed in a flood zone should be told and
identified and have to pay flood insurance, and certainly those who are
not should not. So that's -- that's where we -- that's what we
committed to.
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Tomasello Engineers, the -- our consultant said he -- he could
meet the requirement. He would do five basin wide studies. The five
are shown on the slide. And he would, based on that, determine new
base flood elevations based on the engineering and scientific data
through those studies. The criticality, again, is they have to be done
by the first of December.
We looked -- this is just a schedule. I won't go into detail. But if
you look up here, we're projected we can make that happen. And we
have Peter Hayden and Stan Chrzanowski, Peter from Norm's staff,
and Stan from my staff, if you want to -- have any questions in regards
to some of the details.
But the good thing is that these five basin studies will provide
some needed information that stormwater management has always
needed to begin with. We're asking -- we think we can do this for
right now, $160,000.
Given the imposed eight-month deadline, the scope of work, and
the time needed by the contractor, the fact that the county's been
working with TCE, Tomasello Consulting Engineers, since 1988 (sic),
we think it's prudent --
MR. MUDD: 1998 or--
MR. SCHMITT: 1998, thank you, Jim. We think it's prudent
and far more cost effective that we continue with this contract.
We want to enter into contract ourselves, Collier County, not
amend the interlocal agreement as we just did, and mod the contract
that the city has. We'd like to enter into our own contract, and--
because of that, it's going to be deemed an emergency.
Potential savings to the county, to the property owners, could be
in the millions of dollars when we're talking about flood insurance.
Our recommendation that the Board of County Commissioners
declare the situation an emergency, a valid public emergency in
accordance with the Florida statute and you approve and authorize the
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chairman, or the chair, to sign a standard county -- a standard contract
not to exceed $175,000, and that's our recommendation.
The critical time element here is the emergency in regards to
meeting the time frame that's been imposed upon us by the Federal
Emergency Management Agency in regards to me getting that data.
And the sooner we get -- we get the recomm -- or the sooner we get
this contract executed with TCE, the sooner Dick Tomasello can start
the work.
And I know Steve is here, Steve Carnell is here, if we need to
chat about the Florida statute.
But with that, that concludes my presentation. And I know
Commissioner Coletta'd like to add his -- his words on this as well, so
I'll stand by and await any -- any questions.
COMMISSIONER COLETTA: I'm very proud to say that our
staff was -- did a remarkable job in bringing this around to successful
conclusion.
I worked on this particular thing for six years now. I was
involved with it back when I was president of the Golden Gate Estates
Civic Association, and it was something that didn't seem was ever
going to reach resolution.
I did quite a bit of research on it, and I can tell you there's never
-- I don't think there's ever been a community that's been as successful
with their negotiations with FEMA as we have.
And the reason for that is very simple. It's because of the fact that
we have a tremendous staff that can sit down and negotiate facts. It's
pure science, which it should be based on in the first place.
We originally started this movement under way with a little bit of
saber rattling, as you might say. We involved our congressman who
was tremendously helpful, Mario Diaz-Balart. We involved the
community through community meetings. We held a mass meeting
that consisted of hundreds of people at the Gulf Coast High School.
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We had all these things under way to make it happen. Well, I'll
tell you what, it got the attention of FEMA, but it also got their anger
up a bit.
But I can tell you that in January when we went -- January? No,
February, excuse me -- we went for our first face-to-face meeting --
MR. SCHMITT: Yes.
COMMISSIONER COLETTA: -- at that point in time, I would
probably say that FEMA was not all that receptive when the meeting
started. They assumed, from past experience, that the only thing we
were going to do was ask for delays. Delays, delays, delays, challenge
the data, ask for more delays, and keep it going to that point in time in
the future when, I don't know, the world comes to an end or something
else takes place.
But we went in there, and we just told them the plain facts. The
only thing we want is honest representation of what the flood risk is
for our residents. And this isn't only Golden Gate Estates. This is all
of Collier County.
So what we're looking at here today is just the beginning. We're
also going to have to take the show on the road and be able to cover
the rest of the county to be able to meet the true needs of the citizens
there, to make sure that their safety's provided for.
But I want you to know that Joe Schmitt, who is our
administrator of community development and environmental services,
did an admirable job. He helped through the negotiations, and our
staff that was there to support him, such as Stan Chrzanowski, our
senior engineer with engineering services department, Pat -- Patrick
White was tremendous. I mean, Patrick White not-- is only an
attorney (sic), but he has, I believe it's a degree in science, and so his
background was absolutely tremendous in being able to keep the
discussions going forward.
Jim Turner, the FEMA coordinator, he was totally up on what
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was taking place. Matt Hatcher, environmental service department,
was very instrumental in this taking place. And, of course, Kevin
Gotfredson, our GIS technician, and CDES operators, they were all
absolutely critical to making this come.
When we got all through, FEMA started looking at what we were
saying and the fact that what we were asking was true science to be
applied. And when it got down to the very end -- and Joe, you can
correct me if I'm wrong -- they told us to go forward and apply the
true science and then bring it back to them. And as long as it falls
within their criterias, they'll accept the final outcome.
MR. SCHMITT: That's correct. And ifI could add Bob Devlin
from the City of Naples as well.
COMMISSIONER COLETTA: Forgive me for forgetting Bob.
MR. SCHMITT: And I left that off because of the -- this has
been a partnership with the City of Naples in regards to the coastal
surge model. TCE is going to continue to work the coastal surge
model process, and that -- all the coastal maps have been delayed as
well, so--
COMMISSIONER COLETTA: One of the things that we're all
going to have to realize, that it's not a question of us against them.
Now we're partners in this to bring resolution to this, to be able to
make it go forward.
Now, the ball's in our court to produce. And one of the things that
! asked early on, and Joe Schmitt and his staff was -- came across
within a timely fashion -- was a mile marker type of program where
we'll be able to measure our results. And with that, we'll be able to
make sure that everything falls within the correct time frame so that
we can get to the end with the measurable results that's going to have
the impact that we need.
We're going to have to be -- we're going to have to be realistic
and realize that we're not going to ever reach that state of perfection
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where everything is covered to the nth degree.
There's going to be such things as places that are going to be in
the X zone that we'll be able to eventually mitigate them out through
certain types of drainage, through other means that will be available to
us. They'll cost money, but they'll also have an impact on what
happens.
But one of the things that we've got to keep in mind is the fact
that, true, we have not had a serious storm since Donna back in '62,
was it?
MR. WEIGEL: Sixty.
COMMISSIONER HALAS: 1960.
COMMISSIONER COLETTA: -- '60, 1960. Prior to that point
in time, hurricanes were coming and hitting this coast every 10 years
on a regular basis, and one year we even had two major storms. We
have a tremendous amount of exposure out there, and we need to work
that into the science of what we're going to be doing to make sure that
we not only provide something that's a fair and equitable way for these
people to -- for insurance purposes, but also, that we can plan our
future drainage needs and everything to mitigate the dangers that are
going to be there. This is the responsible thing the government should
be doing on a regular basis.
And once again, Joe Schmitt and your staff, I congratulate you
for a job well done.
MR. SCHMITT: Oh, I'd like to also -- and I'd thank you,
Commissioner, but I'd like to also recognize Abe Skinner and Larry
Lawrence from the appraiser's office, because without the LIDAR
data, we would have been nowhere. And so, with those products, I
think we've made tremendous strides.
So, again, thank you, Commissioner, but we do have to make --
CHAIRMAN FIALA: Move on.
MR. SCHMITT: -- vote as to whether or not we're going to
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approve this.
COMMISSIONER COLETTA: Well--
CHAIRMAN FIALA: I am so impressed with what all you've
done and the cooperative effort with which everybody has worked
together and persevered and never let up.
COMMISSIONER COLETTA: Could I have the privilege of
making the motion for approval?
CHAIRMAN FIALA: You bet 'ya.
COMMISSIONER COLETTA: I'll make that motion.
CHAIRMAN FIALA: I've got two speakers, but --
COMMISSIONER HENNING: I'll second it, and I won't take 10
minutes.
CHAIRMAN FIALA: Go ahead. What is your motion?
COMMISSIONER COLETTA: I just did. The motion is to
approve staff recommendations, and Commissioner Henning just
seconded it, and he's going to take less than 10 minutes.
CHAIRMAN FIALA: Okay.
COMMISSIONER HENNING: I just did. I second it.
CHAIRMAN FIALA: I have -- Commissioner Henning, did you
want to make any comments or was that it?
COMMISSIONER HENNING: That's it.
CHAIRMAN FIALA: Okay.
Commissioner Coyle?
COMMISSIONER COYLE: I'm going to take his 10 minutes. I
wholeheartedly support this, and I want to commend the staff and
Commissioner Coletta for the fine work that has been done here.
I am troubled by one thing, however, and that is that there does
not seem to be much information concerning the progress that has
been made in challenging these issues along the coastal area to include
East Naples, not necessarily the city, but certainly including the city.
I think we have done a great job working together on this, and I
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do not think we should lose sight of the fact that it was, in fact, the
city that brought this entire issue to our attention. And I came into this
room and made the first presentation to our legislators to try to get
their support and focus their attention on the Golden Gate thing.
So my point in making that statement is, I do not wish to
diminish the work that has been done by others, but I don't want to see
us begin to focus on one part of Collier County to the exclusion of
others. This is a county-wide project.
And I believe when we -- when we're dealing with this, we need
to keep everybody in Collier County in mind with respect to the
impact. It is not an issue of who isn't required to have insurance today
and who might be required to have insurance tomorrow. It is who has
built a house at 11 feet above the flood elevation who is now going to
be put into a situation where they're no longer in compliance. And
what effect will that have upon the resale and the ultimate insurance of
that particular dwelling? There are some very serious issues
associated with that, and I think we need to make sure we focus on it
all.
MR. SCHMITT: Commissioner, the -- the time frame is to meet
all the reports, to include the coastal surge model. We've had
tremendous successes with that as well in regards to accepting --
FEMA accepting the data. It impacts Vanderbilt Beach as well as the
entire coastal area.
So that 1, December, is for all the studies to be to FEMA to
update the entire set of maps for Collier County.
COMMISSIONER COYLE: Okay. It would be helpful, I think,
if we were to issue status reports that cover all of those areas rather
than just focusing on one region of the county. That region is
important, but so are the other regions, and I think we need to
represent the entire county, not just select little geographical areas and
focus on those to the exclusion of others, okay?
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CHAIRMAN FIALA: Thank you. Any other further -- any
further comments?
(No response.)
CHAIRMAN FIALA: We have a motion on the floor--
MR. WEIGEL: I have some.
CHAIRMAN FIALA: Yes, David.
MR. WEIGEL: Well, it's just I'm -- in regard to -- although you
haven't asked me to restate the motion, the motion on the floor was, in
fact, to adopt the recommendation of the executive summary, and if I
may summarize it briefly for the record, that the Board of County
Commissioners declare this situation to be a valid public emergency in
accordance with Florida statute, 287.055, the consultant's competitive
negotiation act, section three, but also, I would note that the board, in
making the motion and approval, waive the county purchasing policy
to the extent necessary.
It further goes on to indicate that the board approve and authorize
the chairman to sign a standard county attorney approved contract for
the stated studies, as indicated in the executive summary, and related
activities up to an amount not to exceed $175,000.
So that was the motion, and I have added to that the reference to
the county's purchasing policy, that it is waived to the extent necessary
to make this selection and approval of contract.
COMMISSIONER COLETTA: That was my motion. Thank
yOU.
CHAIRMAN FIALA: Okay. And your second?
COMMISSIONER HENNING: (Nods head.)
CHAIRMAN FIALA: Okay. We have an amended motion and
second on the floor which has been read through by our county
attorney.
All those in favor, say aye.
COMMISSIONER HALAS: Aye.
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COMMISSIONER COLETTA: Aye.
CHAIRMAN FIALA: Aye.
COMMISSIONER COYLE: Aye.
COMMISSIONER HENNING: Aye.
CHAIRMAN FIALA:
(No response.)
CHAIRMAN FIALA:
And opposed, like sign.
And with that, we're going to break for
lunch.
MR. MUDD: Ma'am, and to reconvene at 1:30. You have the --
I'll remind you, Commissioners, we have the lunch with the Know
Your County Government Program with the high school over at the
Methodist meeting room. That's over here.
CHAIRMAN FIALA: Oh, okay.
(A luncheon recess was taken.)
MR. MUDD: Madam Chair, you have a hot mike.
Ladies and gentlemen, please take your seats.
CHAIRMAN FIALA: The meeting is back in order.
Item #10C
COUNTY SPONSORSHIP FOR US MILITARY APPEARANCES
DURING JULY 2-5, 2004, INDEPENDENCE DAY
CF, I,F, BRATION - APPROVED
What I've asked actually to do -- I was asked by somebody to --
actually asked by Leo if we could just quickly address 10(C) first. I
realize we have a 1:30 time certain, but Leo had suggested if we could
just get in here a little bit early. We're only two minutes early, but --
maybe we--
COMMISSIONER COYLE: Could I make a motion?
COMMISSIONER COLETTA: I'll second it.
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COMMISSIONER COYLE: To approve.
COMMISSIONER COLETTA: Sure.
COMMISSIONER COYLE: Okay. I've made that motion, and
we've got a second, right?
COMMISSIONER COLETTA: Yep.
COMMISSIONER COYLE: Madam Chair?
CHAIRMAN FIALA: Okay. We have a motion from
Commissioner Coyle to approve the agenda item 10(C) to authorize
the expenditure of $50,000 for expenses related to the Collier County
Independence Day celebration and approve any related budget
amendments, and it was seconded by Commissioner Coletta.
Any further discussion?
(No response.)
CHAIRMAN FIALA: All those in favor, say aye.
COMMISSIONER HALAS: Aye.
COMMISSIONER COLETTA: Aye.
CHAIRMAN FIALA: Aye.
COMMISSIONER COYLE: Aye.
COMMISSIONER HENNING: Aye.
CHAIRMAN FIALA:
(No response.)
CHAIRMAN FIALA:
And opposed, like sign.
And we're still a minute early.
MR. MUDD: Do you have any speakers on that one?
MS. FILSON: No.
COMMISSIONER COYLE: Tell them forget it.
CHAIRMAN FIALA: And we're here with a minute to spare.
MR. VEIT: Thanks, guys, so much.
Item # 10A
WRITTEN AND ORAL REPORTS PRESENTED IN
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ACCORDANCE WITH ORDINANCE 2001-55 FOR THE
CITIZENS ADVISORY TASK FORCE; COLLIER COUNTY
CODE ENFORCEMENT BOARD; CONTRACTORS LICENSING
BOARD; GOLDEN GATE PARKWAY BEAUTIFICATION
ADVISORY COMMITTEE; IMMOKALEE BEAUTIFICATION
ADVISORY COMMITTEE; ISLES OF CAPRI FIRE CONTROL
DISTRICT ADVISORY BOARD; PARKS AND RECREATION
ADVISORY BOARD; AND COLLIER COUNTY WATER AND
WASTEWATER AUTHORITY. ORDINANCES UNDER CEB TO
BE CONSOLIDATED INTO ONE AND CHAIRMEN TO WRITE
LETTERS TO EACH CHAIRPERSON OF LISTED ADVISORY
BOARD
MR. MUDD: The next item will be 10(A), time certain 1:30. It's
review the written and oral reports of the advisory boards and
committees scheduled for review in 2004 in accordance with
ordinance number 2001-55, including the Citizens' Advisory Task
Force, the Collier County Code Enforcement Board, Contractors'
Licensing Board, Golden Gate Parkway Beautification Advisory
Committee, Immokalee Beautification Advisory Committee, Isles of
Capri Fire Control District Advisory Board, Parks and Recreation
Advisory Board, and the Collier County Water and Wastewater Utility
Authority.
And Ms. Winona Stone will present.
COMMISSIONER COYLE: Can we do these all at once?
MR. MUDD: No.
COMMISSIONER COYLE: You have to do them individually?
MR. MUDD: Yes.
MS. STONE: Yes, sir.
COMMISSIONER COYLE: Well, you know, they're in our
packet, we've read them, we've read the report.
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Can I make a motion?
MR. MUDD: Sir, you have somebody -- Winona's not going to
do these. You have representatives from each one of these advisory
committees, the chairs, and they know they're going to try to keep it
down anywhere between three and five minutes -- CHAIRMAN FIALA: Oh, okay.
MR. MUDD: -- to supplement what's in the written package.
Winona?
MS. STONE: Good afternoon, Chairman Fiala and
Commissioners. Winona Stone, assistant to the county manager.
I won't read over the list. I think your presenters are prepared to
go in the order that Mr. Mudd had just gone through.
We do have the majority of them here as far as ! can tell at this
point. I just wanted to remind you they're up for review every fourth
year based on a rotating basis. This year you have eight that will go
over their annual reports for you to determine if they're meeting the
needs for which they were created and to determine if anything needs
to be changed so that they could operate more efficiently or
effectively.
If there are no questions, I'll go to your first speaker.
The first presenter is David Corban with the Citizens' Advisory
Task Force. He is the chairman.
MR. CORBAN: Good afternoon, Commissioners. Again, my
name is David Corban. I'm the chairman of the Citizens' Advisory
Task Force.
As you know, we are a five-member group that assists your staff
at the -- at the Financial Administration and Housing Department in
disbursing the Small Cities Community Block Grant, or CDBG
money.
I know I speak for my fellow CATF members when I say that it's
been a pleasure working with Denny, Jeanine, and all the other
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members at FAH in their capacity with the funds for CDBG.
CDBG moneys have gone to fund projects that aid our citizens
and communities in need. These programs put people to work, help
our citizens become homeowners, and fund programs as diverse as
streetlighting in Immokalee to housing that helps challenged citizens
re-enter society.
In 2005, the CDBG money will go directly from the federal
government with a mandate for grass-root community involvement in
the program.
Currently staff works with organizations that provide services to
the needy with little contact or input from those who actually benefit
from the programs.
Under the new program, the FAH staff will actually go in the
community, and with input from the citizens, determine the greatest
need and best use of the funds.
We appreciate your support of the program and the staff that
administers it, and I would like to invite the commissioners on our
annual tour of CDBG funded products underway and complete.
Commissioners Fiala and Coletta have joined us in the past, and this
year I hope to see all of you on the bus. Thank you very much.
MR. MUDD: Commissioners, do you have any questions?
(No response.)
MS. STONE: Your next presenter is Clifford Flegal. He's the
chairman of the Code Enforcement Board. Mr. Flegal. MR. FLEGAL: Afternoon, Commissioners.
As you know, Code Enforcement Board is a seven-member board
with two alternates. What we do is hear cases brought forward to us
from the Code Enforcement Department, possible violations of your
codes and ordinances.
We hold hearings, make a determination whether there, in fact, is
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a violation. If there is, we determine what's to be done to correct it. If
it's not corrected in a time we set, we assess a fine. All our fines are
recorded, they then become liens on property, which then can be
foreclosed.
We stay busy, but fortunately for us, people are aware of us. The
Code Enforcement Department has been very fortunate since people
know of the activity. They worked well with the investigators. And
we really, I think, have come down in the cases we have heard.
There is no other board or agency under your power right now
that does what we do. We're all volunteers and we appreciate it.
We've turned cases over to the county attorney for foreclosure.
We also, during the hearings, if we determine there's a safety
factor, we order the county to resolve the problem, and the cost that
the county expends is then assessed to the violator.
Any questions? I'll be glad to answer them.
COMMISSIONER COLETTA: Great job.
MR. FLEGAL: Thank you.
MS. STONE: I'd like to make a comment on that. There was a
recommendation included in the report from the Code Enforcement
Board that they consolidate. There's, I think, five ordinances that
they're currently acting under, and they would like to consolidate that
into one ordinance.
CHAIRMAN FIALA: How does staff feel about that?
MS. STONE: I -- Michelle Arnold is shaking her ahead
affirmatively. I would think -- it would be easier for staff also to
operate under one ordinance.
CHAIRMAN FIALA: Commissioners, any comments?
COMMISSIONER HENNING: I think that's the direction.
CHAIRMAN FIALA: Okay. You get five nods from up here.
Thank you.
Do you need a vote on that?
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MR. MUDD: We're okay, Commissioner.
CHAIRMAN FIALA: Okay, fine.
MS. STONE: It will come back to you. The ordinance will
come back to you.
CHAIRMAN FIALA: Great. Thank you for the report and the
recommendation.
MS. STONE: The third speaker is Les Dickson with the
Contractors' Licensing Board. He's the chairman of that board.
MR. DICKSON: Good afternoon, Commissioners. We are a
nine-member board made up of six contractors and three citizens. We
are full at the present time, and we handle complaints and disputes
with citizens of Collier County and the construction industry trades.
Give you an idea of the volume that we see, the office receives
over 400 calls in a monthly period. We have an unbelievable staff, or
you have an unbelievable staff, because very few of those complaints
ever get to our board meeting because they're handled by the staff.
But we do control the construction industry. Any complaints that
may arise. And, quite honestly, it's running very smoothly. We have
no need for any improvements. We have a wonderful board.
Mr. Coletta's been very, very supportive of our board in the past,
and we appreciate you very much.
COMMISSIONER COLETTA: We appreciate you.
MR. DICKSON: It is a sincere pleasure to serve you.
CHAIRMAN FIALA: Thank you, sir.
MS. STONE: Fourth speaker is Ms. Cheryle Newman. She's the
chairman of the Golden Gate Parkway Beautification Advisory
Committee.
MS. NEWMAN: Good afternoon. I'm before you again. Four
years, again, since I saw you last on this advisory board.
The Golden Gate Beautification Advisory Board has been in
existence since the late '80s. And we were one of the first MSTUs put
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together for beautification throughout Collier County.
We are a five-member board, and I am their chairman. And if
you have any questions, I'd be more than happy to answer them for
you.
I don't really have much to say. Everything is in the report. If
you have some questions, I'd be willing to answer them for you.
CHAIRMAN FIALA: No. Thank you. But you're doing a great
job. It just looks beautiful.
MS. NEWMAN: Thank you. We have a few more things we
want to do.
CHAIRMAN FIALA: Thanks.
MS. NEWMAN: Thank you.
CHAIRMAN FIALA: Well, we'll look forward to seeing them
done. Knowing you, they'll get there.
MS. STONE: Okay. Ms. Cheryl (sic) Tims was scheduled to
speak on the Immokalee Beautification Advisory Committee. She's
the chairperson for that committee. I don't believe she's here, so Diane
Flagg will answer any questions you may have on that report.
MS. FLAGG: Commissioners, I'm not going to -- Diane Flagg,
for the record. I'm not going to read what's in the report other than
that the Immokalee Beautification MSTU has made a lot of progress
in the projects that they're working on, and I'm open to any questions
you have.
Okay, thanks.
MS. STONE: The next speaker is Mr. Jim Louis. Is Mr. Louis
here?
MR. LOUIS: Yes.
MS. STONE: Oh, great. He is the chairman of the Isles of Fire
-- excuse me -~ the Isles of Capri Fire Control District Advisory
Board.
MR. LOUIS: Good afternoon, Commissioners.
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Beyond the written report that was submitted to you already,
there really is only one issue that is of major concern between us as a
board and yourselves as a board, and that is a rumor that has been
circulating around the Isles now for several weeks and coming from
some heavy hitters that you as a board would wish to divest
yourselves of the Isles of Capri Fire Department, would like to see us
either get taken over by East Naples or become an independent
district.
I would like to be able to tell the people that were circulating
that, yes, you're right, and you have to take that into consideration, or
tell them, once and for all, where did you get your information? It
ain't so.
Can you help me with an answer?
CHAIRMAN FIALA: Well, I can tell you where I'm coming
from on that and from what I understand the board is doing. We've
had a few reports that the Isles of Capri Fire Department has been --
has been negotiating -- let me say communicating with the East
Naples Fire District as well as Ochopee, and that they're just in
discussion stages.
We haven't heard -- but so far when we've had anybody -- like
Chief Rodriguez was here. He seemed to nod his head thinking that
that was something that they were at least talking about in a positive
sense.
As far as divesting us from you, we haven't ever talked --
MR. LOUIS: I guess what I'm trying -- I'm sorry to interrupt, but
I know my time is limited.
We have three choices facing us as a board to recommend. One
is to go ahead with a merger, two would be to become independent,
and three is to be status quo, that is continue our relationship with the
county commissioners as it presently is.
You have no problem with our accepting either one of those three
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that seems to be best in the needs of our department, needs of our
area?
MR. MUDD: Commissioner, if you remember how this came
up, Chief Schank from East Naples, with the other two dependent fire
chiefs, came forward to the board, petitioned the board, asked the
board permission to start negotiations to try to consolidate the two
dependents into one.
We listened to -- we, you, listened to that particular petition and
basically said, go ahead and do the nego -- do the negotiations and
start the discussion, but at no time did you make a decision one way or
the other. You wanted to let them talk and figure out what -- the best
thing to do for those particular three fire districts.
CHAIRMAN FIALA: And we've never stated that we wanted to
get rid of or divest ourselves of you, never.
MR. LOUIS: Thank you. That was the answer I was looking
for, and I'm very happy to hear it.
CHAIRMAN FIALA: Very good, Jim.
MR. LOUIS: We will carry on with that in mind.
CHAIRMAN FIALA: All righty.
MR. LOUIS: Thanks so much.
CHAIRMAN FIALA: It's good that you bring things like that
up. We can't -- you know, we can't fix a problem if we don't know
what's broken. Thank you.
MR. LOUIS: Exactly right, thank you.
Any questions?
MS. STONE: Your next presenter is Mr. John Ribes (phonetic),
and he's the chairman of the Parks and Recreation Advisory Board.
MR. RIBES: Good afternoon, and thank you for having us here.
I'd like to report to you that the PARAB, as we're called, alive
and well, seven members. They're very, very strong individuals, very
conscientious, and very committed to parks and recreation.
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We have an excellent rapport with the staff of parks and
recreation. We think that the parks and recreation is a great, great
asset to the county of Collier County. They do a marvelous job, and
we are pleased to work with them.
Relative to our commitment and participation with the citizens, I
would say based on or judging by the number of people that come to
us and share their views and concerns, I think we're doing an excellent
job.
Other than the other things that are reported in the paper that was
submitted to you, I would say that we want to continue as a board to
consider and focus on three points, one of them being acquisitions of
lands. We think that's critical to parks and recreation.
We want to continue our participation in the area of beaches as
they relate to recreation. And we think it's very important and would
like to suggest to you that in the early planning stages of projects, that
parks and recreation has an opportunity to look at how places are
being developed and whether or not parks and recreations might be a
contiguous part of that process. Thank you very much.
CHAIRMAN FIALA: Any questions?
MS. STONE: And the last presenter today will be Bleu Wallace.
He's going to be presenting on behalf Dr. Fay Biles, who, I believe, is
working the election polls today, and he'll be presenting on the Collier
County Water and Wastewater Utility Authority.
MR. WALLACE: Thank you. For the record, Bleu Wallace.
I'm the executive director of the Collier County Water and Wastewater
Utility Authority. It's a five-member board that was established by the
Board of County Commissioners back in 1996 when the board opted
to take back jurisdiction from the Public Service Commission over the
eight investor-owned utilities at that time.
Since then, four of the utilities have come under governmental
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control. And right now we have four utilities that we have jurisdiction
over; Orange Tree Utilities, Goodland Isles, North Marco Utility, and
limited oversight over the Florida Governmental Utility Authority in
Golden Gate City.
When the Florida Water Utility was purchased by the City of
Marco Island -- and that was -- the closing, I think, was in November
of 2003 -- our staff lost revenue of about 80 percent of our revenue.
So we're looking at lean times right now.
But with Ave Maria coming online, they will -- I am informed,
they will be an investor-owned utility, and we look forward to -- to
having jurisdiction over that utility. Any questions?
CHAIRMAN FIALA: Thanks, Bleu.
Okay. Now--
MR. MUDD: Commissioner, that-- Madam Chair, that basically
completes the list of boards that you are going to hear today and for
this year, the review. There's eight. Next year you'll have 20, and
we'll do that over several sessions.
CHAIRMAN FIALA: Thank you.
MR. MUDD: Do you have any --
CHAIRMAN FIALA: Do we need to approve or anything?
MR. MUDD: Do you have any additional direction that you
would like to give us on these particular eight boards?
If not, they will stay in existence and they will stay within their
charter and move on. I think the one piece of direction that we did
receive was try to consolidate those five ordinances into one so that
the Code Enforcement Board can go to one document instead of
having to reference five.
And Ms. Arnold and Community Development's Environmental
Services will start working on that in concert with the County
Attorney's Office.
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CHAIRMAN FIALA: Commissioner Coletta?
COMMISSIONER COLETTA: Yeah. Just one point. I think
it's -- these boards really serve a very important process -- purpose in
our government process. Possibly we might be able to direct the chair
to write letters to the heads of each board that appeared before us
today thanking them very much for their time and that we do
appreciate their efforts?
CHAIRMAN FIALA: Thank you. That's a great suggestion. I'd
like to do that. Thank you very much.
COMMISSIONER COLETTA: I don't know if you've got
enough nods, but --
COMMISSIONER HALAS: Yes.
Item #9E
DISCUSSION REGARDING AQUACULTURE USE ZONE IN
COLLIER COUNTY- CHAIR TO WRITE LETTER EXPRESSING
BOARD'S RECOMMF. NDATION OF AI.TERNATIVE ONE
CHAIRMAN FIALA: Okay. Then we move on to 9(E).
MR. MUDD: 9(E), which is a discussion regarding aquaculture
use zone in Collier County, and this was asked to be put on the agenda
by Commissioner Coletta.
COMMISSIONER COLETTA: Thank you. On this one I'm not
going to clam up. I had to get that one in.
Actually, this is something that's been in the works for some
time, and the person that's the authority on it, well known as the patron
saint of clam farming for Collier County, Captain Matt Finn, is going
to make a brief presentation on what he would like the letter to include
when it goes to the state. The state has sent us a letter telling us they
need some sort of action from this commission as to what we want
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done.
And go ahead, Matt. You go ahead with that.
DR. FINN: Patron saint of clams. That's a great thing.
Matt Finn. I work with the Aquaculture Task Force. And just a
background, we've been trying to bring clam farming into Collier
County for almost four years now.
The latest thing we did was a series of two workshops on January
7th, again, to sort of inform people of the whole process and also to
sort of gauge the amount of interest that we had from the various
fishermen.
After that meeting, the director of the department of shellfish,
Mark Berrigan, sent a letter to Commissioner Coletta requesting some
action from the Board of Commissioners.
And he offered two alternatives. One alternative, the one we're
not really recommending is for a larger number of people, which, I
don't know, the process then seems to take forever.
And the sec -- the first of the two alternatives, the one that we're
trying to go for now, he recommended as a fast track. So, you know,
be that as it may.
And he asked for several things from the board to help us along
that faster track to allow the leases to be allotted to the various
fishermen okay.
Now, let me see. Well, we -- what I've looked at here -- first
thing from the board we'd like to request, that they have -- hold
another workshop, and this is for the Division of Aquaculture to
provide assistance in completing the application forms for these
submerged land leases, and to inform applicants about the survey
requirements. And everyone's underwater lease has to be technically
surveyed and marked out according to their standards.
And every -- most all -- everyone pretty much knows this process
already. They seem to like to reiterate everything along the way.
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From these two workshop meetings that were held in January --
you know, we tried to put out the word as best we could. It looks like
the interest has actually diminished from the original close to 70
people who expressed interest, to now 15 to 20 people. And that's
what it looks like we have now is really like maybe 15 to 20 people
who really want to try to get in it and try this experimental endeavor.
And if we can ask that the number of leases allotted be limited to
20, that allows us to go into a faster track with less agenda items for
the board of trustees to consider, okay? Perhaps, we only have to get
onto their agenda one time. So we would ask that you set a limitation
of 20 -- of leases in the county waters.
However, since now we're trying to limit to just 20 -- we have
two different sites -- we would also ask that each applicant be
permitted, if they desire, to have one area in each of the two sites, or
two parcels, two leases -- actually it be considered as one lease, but
two parcel areas, and that sort of improves the chances for success.
If one of these, basically, untested areas are not very productive,
they could fall back on the second area.
In addition to that, I thought -- and other people thought it would
be a good idea to include a few parcels for research so that in the
future if someone from the county or the state wishes to help in
developing techniques or for new products for aquaculture, they have
a -- they have a site set aside already. You know, they can feel
welcomed into the commercial people's community to go ahead and
help us out in that way.
Just as a sort of paperwork thing, there's been some of the people
with experience in clam farming in other areas of the state, thought it
would be a good idea to increase the easement areas between the
lease, increase the easement area from 20 feet to, say, 50 or 100 feet.
It may help with some of the things that come up later during the
farming process.
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And the final point is to -- as a clause onto everyone's lease, not
allow the leases be transferred or sold for a period of three years. And
this is to try to avoid some of the problems that have come up in other
areas of the state where the persons who get the leases aren't really
interested in going and doing the dirty work. They just want to try to,
like, use the government to make money. So if we say, you have to
work your lease, you know, that will eliminate that small faction that
may actually just be trying to use the system.
CHAIRMAN FIALA: Commissioner Henning?
COMMISSIONER COLETTA: Oh, I'm sorry. Go ahead.
COMMISSIONER HENNING: Is it that we're going to have a
workshop or is it, the BOT's going to have a --
DR. FINN: This would be from the State Department of
Agriculture.
COMMISSIONER HENNING: Okay. Where's the proposed
land leases' location?
DR. FINN: The two sites that have already been selected and
cleared by, you know, the managers of the underwater area of
Rookery Bay, one's near Cape Romano and the other one -- they're
both in Gullivan Bay.
COMMISSIONER HENNING: Okay.
DR. FINN: And one is sort of, you know, south and east of Cape
Romano, and the other one is out south of Hog Key or--
COMMISSIONER HENNING: Yeah.
DR. FINN: It's just generally shallow water. We did a lot of
work trying to pick these sites, ones that aren't being used much at the
present by recreational fishermen, and also having the proper bottom
components that would be good for the clams.
COMMISSIONER HENNING: That was my concern of the use
of-- where -- the location of and how it's going to potentially interfere
with others. I didn't want a bunch of clamoring out there.
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March 9 & 10, 2004
DR. FINN: What's going to happen -- well, the leases are going
to be well marked. We're going to ask people not to anchor, you
know, where they could disturb some things. But what is going to
happen is, it is going to become an area of increased recreational
fisheries, and that's like a side bonus of coming -- we're talking an area
that is basically sand and mud bottom. It's not much happening for
fish. And there's going to be certain structures around, and clams,
which are food for these species growing on the bottom, and before
long it's going to become similar to these artificial reefs. Much
increased population of fish is what we're --
COMMISSIONER HENNING: Well, I'm in favor of alternative
number one, limit it.
DR. FINN: Limit it. That's the course of action we think's, you
know, going to be best for us. And hopefully we can stick with that
and get this thing rolling.
COMMISSIONER COYLE: Was that a motion?
COMMISSIONER HENNING: Do we need a motion, or is it
direction?
MR. MUDD: Commissioner, you just need to give us some
direction to say which alternative you're going to use, but based on
cap -- or Dr. Finn's?
DR. FINN: Dr. Finn, yeah.
MR. MUDD: -- Dr. Finn's comments and the interest, you
probably want to start small and then -- and then if it takes off, then
you can always get big. If you start big, what's going to happen is
you're going to run into so much bureaucracy that it will probably kill
the effort before it ever gets started.
DR. FINN: That's an important point, and it also goes to the
problems they're having in other areas of the state where they did have
-- they allotted a lot of leases, and very few of them are being utilized.
And so then the board of trustees looks at that, well, why are you
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doing that again there, you know, you're just going to run into the
same problem.
So the direction from the Division of' Aquaculture is try to limit it
to this core group, and later, if' we're successful, then we can expand.
CHAIRMAN FIALA: Commissioner Coletta?
COMMISSIONER COLETTA: Yes. I might add, alternative
one, the one we're looking for, that's the one that's 20 or less. But if
we could direct the chair to write a letter to -- back to Charles Bronson
and Mark Berrigan expressing our recommendations and also
including what I have a letter from Mr. Finn on, the recommendations
that he made, but to word it in such a way that it doesn't sound that it's
a directive from us, you know, using such language as if possible, it
would be preferred. That's what I would recommend.
Because if we box ourselves in a comer where all of a sudden
someone sitting in an office, some bureaucrat takes a look at it and
says, hey, Collier County's demanding, and then, send it back to them
and tell them we can't do this for some reason. But if we word it in
such a way that's a little bit open-ended with suggestions in it, I think
it might be more receptive. But I'll take your directive on that,
Captain Finn.
DR. FINN: They -- one, he always likes to know that the board
is still backing this project, which is great. That's part of the -- with
the letter, and then also these requests. It's always a request, not a
demand.
COMMISSIONER COLETTA: That's exactly right. But that
would be my suggestion.
DR. FINN: The things they want to see, and that will help us
along the process.
CHAIRMAN FIALA: Okay.
COMMISSIONER COYLE:
COMMISSIONER HALAS:
So do we have five nods?
Yep.
Yes.
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CHAIRMAN FIALA: Very good. We have five nods for
number one.
DR. FINN: Thanks, number one.
CHAIRMAN FIALA: Thank you.
draft a letter for us?
MR. MUDD: (Nods head.)
CHAIRMAN FIALA: Thank you very much. Thanks, Matt.
DR. FINN: Thank you.
And then Mr. Mudd, you'll
Item # 1 OB
THREE-YEAR COLLECTIVE BARGAINING AGREEMENT
WITH THE INTERNATIONAL ASSOCIATION OF
FIREFIGHTERS I.OCAIJ 1826- APPROVED WITH CHANGES
MR. MUDD: Commissioner, that brings us to 10(B), and that's
to approve a three-year collective bargaining agreement with the
International Association of Firefighters Local 1826, Emergency
Medical Services Union.
Mr. John Dunnuck, the Public Services administrator, will
present.
MR. DUNNUCK: Good afternoon, Commissioners. For the
record, John Dunnuck, Public Services administrator.
We set out with a goal through this contract negotiation
beginning last June to realign the EMS union with other county
practices, and I believe the package we're bringing before you today
does that.
It calls for the same cost of living increase, it calls for the same
type of merit package, and in years two and three, the language states
that they will get exactly what county employees get from our
standpoint.
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March 9 & 10, 2004
In addition to it, one of our other goals was to improve
communication through the -- through the contract. And one of the
ways we're tackling that situation, due to all the issues we've had in
the past, is to create a labor relations committee that will sit down with
both the union and the management side and discuss issues that are
pertinent to the EMS department. This is a very positive step in the
right direction.
From a logistical standpoint, the retro pay doesn't go all the way
back to October 1 st, similar to other county employees. It begins on
January 1st, and I -- I think it's -- it's a very fair contract and it's
consistent with the county's goals.
If you have any questions, I'd be happy to answer them.
COMMISSIONER COYLE: Motion to approve.
COMMISSIONER HALAS: Second.
COMMISSIONER HENNING: Second.
CHAIRMAN FIALA: Okay. I have a motion --
MR. PETTIT: Before you -- excuse me. I just wanted to make
sure you didn't vote so quickly. Go ahead. CHAIRMAN FIALA: Go ahead.
MR. PETTIT: I have a couple recommended changes in the
language for the agreement which I discussed this morning with the
district vice-president of the union, and she was happy with them. I
just wanted to get those on the record before you finally vote.
CHAIRMAN FIALA: Okay.
MR. PETTIT: Want me to go ahead?
CHAIRMAN FIALA: Yes. Why don't you go ahead.
Do we have any speakers also?
MS. FILSON: No, ma'am.
CHAIRMAN FIALA: Okay.
MR. PETTIT: Mike Pettit, chief assistant county attorney.
At page 31 of the agreement, section 11.2(A)(1)(B), we will
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change the agreement and break that section into two sentences. The
wording will remain the same. It's just kind of nonsensical now
because there's some commas there and no connectors.
At section 13.3(B)(3), page 39, I want to add the phrase, subject
to the FMLA, comma, before the remainder of that paragraph, which
is the Family Medical Leave Act. That's a reference that I think we
need there.
And finally, in article 17, page 57, on military leave, in the first
sentence, under 17.1, third line, we will add after the word, by
applicable, state or federal statute, and after section 17.2, final
sentence, we will add this final sentence to say, this section is intended
to be consistent with the applicable state and federal law.
Those are the only changes. And as I said, I discussed these this
morning with Mr. Page, Mr. Dunnuck, and also the union
representative, and there appears to be no problem with any of that.
COMMISSIONER HENNING: It's just scrivener errors
basically.
COMMISSIONER COYLE: Okay. Are you finished? All right.
Oh, the chair is back.
CHAIRMAN FIALA: Sorry about that. I have a runny nose.
COMMISSIONER COYLE: We have a motion on the floor.
CHAIRMAN FIALA: We have a motion on the floor by
Commissioner Coyle to approve with the -- with the amendments.
COMMISSIONER COYLE: With the amendments as stated by
Attorney Pettit.
CHAIRMAN FIALA: Okay.
Halas.
COMMISSIONER HALAS:
CHAIRMAN FIALA:
(No response.)
CHAIRMAN FIALA:
And a second by Commissioner
Right.
And do we have any further discussion?
All those in favor, say aye.
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COMMISSIONER HALAS: Aye.
COMMISSIONER COLETTA: Aye.
CHAIRMAN FIALA: Aye.
COMMISSIONER COYLE: Aye.
COMMISSIONER HENNING: Aye.
CHAIRMAN FIALA:
(No response.)
CHAIRMAN FIALA:
Thank you.
MR. DUNNUCK: Thank you.
Opposed, like sign.
And that's a 5-0.
MR. MUDD: Commissioner, that brings us to item-- excuse me.
That brings us to public comments on general topics.
Item #1 OD
WORK ORDER PBS-02-35 FOR REPAIRS TO COCOHATCHEE
RIVER PARK SOUTH DOCKS - AWARDED TO
PROFESSIONAL BUILDING SYSTEMS, INC. IN THE AMOUNT
OF ~66,264
CHAIRMAN FIALA: Isn't it 10(D)?
MR. DUNNUCK: There's two items.
CHAIRMAN FIALA: Are we on 10(D)?
COMMISSIONER HENNING: This one's about Cocohatchee.
CHAIRMAN FIALA: Oh, okay.
COMMISSIONER HENNING: Motion to approve.
COMMISSIONER COYLE: Second.
CHAIRMAN FIALA: Let's see. 10(D) is -- oh, yeah.
MR. MUDD: Work order PBS-0235 in the amount of $66,264 to
the Professional Building Systems, Inc., for the repair of the
Cocohatchee River Park south docks, contract number 023349.
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March 9 & 1 O, 2004
Mr. John Dunnuck will present.
MR. DUNNUCK: Good afternoon, Commissioners. For the
record, John Dunnuck, Public Services administrator.
We had currently had a project budgeted to do some minor
repairs to the park up at Cocohatchee Park. When we took a look at
some of the pilings and the dock work up there, we noticed that there
was a little bit more significant damage.
We went back and we had the opportunity through a work order
process to accelerate and actually get the contractor out there sooner
rather than later. That's why we walked this item on the agenda so we
can have the contractor out there on the 15th.
This will help us with our relationship with the lessee out there
presently from the standpoint of, we have an obligation to make sure
those docks are up and running per our lease agreement up there, and
so we wanted to do that sooner rather than later, therefore, we're
recommending this project move forward through this work order.
CHAIRMAN FIALA: Okay.
COMMISSIONER HALAS: Somebody made a motion already,
didn't they?
COMMISSIONER COYLE: Yes. We have a motion on the
floor to approve.
CHAIRMAN FIALA: You are the motion?
COMMISSIONER COYLE:
COMMISSIONER HALAS:
COMMISSIONER COYLE:
COMMISSIONER HALAS:
No, Commissioner Henning --
And I'll second it then.
And I seconded.
Oh, okay.
CHAIRMAN FIALA: Oh, okay. I'm sorry. We have a motion
from Commissioner Henning to approve as -- as recommended by
staff.
COMMISSIONER COYLE: Staff.
CHAIRMAN FIALA: And a second by Commissioner Coyle.
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March 9 & 10, 2004
COMMISSIONER COYLE:
CHAIRMAN FIALA:
(No response.)
CHAIRMAN FIALA:
Coyle.
Okay. Any discussion?
All those in favor, say aye.
COMMISSIONER HALAS: Aye.
COMMISSIONER COLETTA: Aye.
CHAIRMAN FIALA: Aye.
COMMISSIONER COYLE: Aye.
COMMISSIONER HENNING: Aye.
CHAIRMAN FIALA:
(No response.)
CHAIRMAN FIALA:
And opposed, like sign.
And that give us a 5-0.
MR. DUNNUCK: Thank you.
CHAIRMAN FIALA: Then we move on to-
Item # 10E
WORK ORDER UNDER CONTRACT 01-3271, FIXED TERM
PROFESSIONAL ENGINEERING SERVICES FOR COASTAL
ZONE MANAGEMENT PROJECTS WITH COASTAL PLANNING
AND ENGINEERING FOR A PUBLIC INFORMATION
PROGRAM, PHASE 2, FOR THE COUNTY/CITY OF NAPLES
MAJOR BEACH RENOURISHMENT, IN AN AMOUNT NOT TO
EXCEED $477870
MR. MUDD: Next item is 10(E), which used to be 16(C)7. This
was pulled from the consent agenda by Commissioner Henning, and
it's to approve a work order under contract 01-3271, fixed term
professional engineering services for the coastal zone management
projects with Coastal Planning and Engineering for a public
information meeting (sic), phase 2, for the county/City of Naples
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major beach renourishment, Project 90527, in an amount not to exceed
$47,870.
And again, Commissioner Henning pulled this off the consent
agenda.
And Mr. Ron Hovell will present or ask any questions -- or
answer any questions.
MR. HOVELL: For the record, my name is Ron Hovell, special
projects manager for the public utilities engineering department.
The public information program phase 2 for the county and City
of Naples beach renourishment project. The overall project is to
renourish Vanderbilt, Park Shore, Naples beaches. And as you may
recall, we're expanding the scope to provide a better project life for the
future.
The work is planned to start in November of 2004. As you'll
recall, we've now submitted a permit application. And one of the
major hurdles to get our permit application complete is easements
from the beachfront property owners. And this public information
program is in support of both the permitting and easement efforts.
Kind of an eye chart here, but the project location, just going
back again to Vanderbilt, Park Shore and main Naples beaches, and
the sand sources, both near shore one, about five miles offshore, and
the off-- and the way offshore one, about 33 miles offshore. That's
just a quick, you know, overall project view.
The overall project cost, this phase 2 of public information
program is proposed to be a time and materials work order not to
exceed $47,870.
But the overall construction cost estimate is $13.7 million for
putting the sand on the beach, with another $750,000 in engineering
services for environmental and construction monitoring, post
construction surveys, and reports.
The construction funding is to be addressed later this week at the
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March 11 th Coastal Advisory Committee meeting, the March 22nd
Tourist Development Council, and then should come to you on April
13th for final approval.
Phase 1 of the public information program was approved back in
the October, November time frame for about $8,500, and the idea was
to develop a program as well as a website design, and that's all ready
to go. We're ready to mm on the switch assuming phase 2 gets
approved.
Phase 2 covers up to 10 updates of that website between now and
when construction actually starts, because our vision is once
construction starts, then we'll bring the construction contractor into the
process of providing better public information of exactly where they
are on the beach and whatnot; to help with up to seven public
meetings, including Board of County Commissioner Meetings, if
required, and to do some media coordination for up to 10 press
releases.
This is a high-visibility project with some historical issues from
the '95, '96 time frame. Trying not to use that word that we used to use
a lot. And the idea is that we want to leverage our in-house resources
with out-sourced services for these peak requirements to handle the
public relations aspect -- or public information aspect of the project.
We're not typically staffed for this type of work in-house. And
also the consultant and sub-consultant have specific expertise in
dealing with these coastal issues.
This work order has gone through the Coastal Advisory
Committee and the Tourist Development Council, and Mr. Roellig,
the acting chair of the Coastal Advisory Committee is here. So both
the Coastal Advisory Committee, the Tourist Development Council,
and staff recommend to approve this work order for phase 2 with
coastal planning and engineering not to exceed the $47,870.
MR. ROLIG: Thank you. I'm David Rolig. I am acting chair of
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the Coastal Advisory Committee. My actual title is vice-chair.
I just want to give you a little bit of the history. You know, I've
been here for many years. And prior to the initial nourishment, the
beaches were very narrow.
A lot of folks have come into the county in the last five, 10 years,
aren't aware of what it was like in the past, what we have planned for
the future, and how we're going to avoid the problems we've had with
the last renourishment.
We feel this is a very important part of this project that will come
to this county about once every 10 years, and I strongly recommend
that we -- what will happen with this -- this is -- the firm that will be
handling this is based in Southwest Florida. They have extensive
experience in coastal information meetings and projects. They are the
-- they handle work for the Florida Shore and Beach Association, so
they're very well experienced in this type of endeavor.
And I would hope that we would be able to proceed as soon as
possible on this -- with this work order. If there's any questions I can
answer, I'd be glad to try.
CHAIRMAN FIALA: Any questions?
(No response.)
CHAIRMAN FIALA: Okay.
MR. ROLIG: Thank you.
CHAIRMAN FIALA: Comments?
COMMISSIONER HENNING: I would like to know, as far as
the permit, what is required under this work order. MR. DeLONY: Okay.
COMMISSIONER HENNING: Under the -- per this work order,
what is required from the -- for the permit?
MR. DeLONY: Specific -- for the record, Jim DeLony, public
utilities administrator. I always get frustrated when I don't do that
quickly.
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The permit for the beach renourishment project, what FDEP is
requiring us to do; is that your question --
COMMISSIONER HENNING: Yes.
MR. DeLONY: -- Commissioner?
COMMISSIONER HENNING: With this work order on public
information.
MR. DeLONY: Okay, okay. Do we have a specific permit, that
I'm aw -- there is not a specific permit requirement associated with the
delivery of public information one on one, but you and I both know, in
vetting it through the public process, associated with the permit, we
want to make sure that accurate picture's out there about what we're
doing. This is one means we will use to do that.
So, to say there's a nexus directly, no, but you and I both know
that the public are going to demand and want to be informed up to and
including the construction activities associated with this project, and
this is part of that process in my view.
COMMISSIONER HENNING: The -- in my understanding, that
almost $9,000 was to create a website. And I thought that was going
to take care of the whole thing. And it seems like we can inform the
public, the ones that are being affected, through other sources, maybe
City of Naples utility billing or Collier County utility billing. You
send out notices that way.
It just seems like, you know, we talk about shortage of beach
renourishment funding, and then we turn around and use funds for
creating websites and so on and so forth. And I'm not trying to negate
the need for public information. It just seems like we can accomplish
both for a lot less.
MR. DeLONY: Well -- and we're always going to look for those
economies, sir. And I think the board's been right -- hard with us
ensuring we are doing that.
Public utilities, for example, derives its funding from user fees
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and impact fees. User fees -- impact fees associated with delivering
public utilities.
Ad valorem taxes have another category of a funding source for
the kinds of things that the other house in the county does.
This project, fully funded by TDC funds, it appears to me that
there ought to be some crossover in terms of TDC funds to do some of
those outreach activities.
You're right. We'll -- we're going to take advantage of all the
means available within the county manager's agency to assimilate
information only about this project or anything else that the public
demands that we have information to them on a needed basis.
But I think that this provides, as Ron outlined in his presentation,
a good leverage of those resources and some expert out-house
resources that we can bring to bear to even prepare the public and
inform the public for this high-visibility, high-impacted project.
COMMISSIONER HENNING: Mr. DeLony, I don't want you to
misunderstand my comments. I wasn't asking to use utility funds to
inform the public about beach renourishment. I'm just saying, there's
a vehicle. Why can't we use it? That's all.
MR. DeLONY: Yes, sir. And I -- and where it's appropriate we
will, I can assure you of that. The public information function within
the county is, quite -- I think I'd be quite enabled with these funds and
with other funds that you provide us in assets to get the information to
the public, and that's our recommendation. But I understand your
guidance as well, sir.
CHAIRMAN FIALA: Commissioner Coyle?
COMMISSIONER COYLE: I just want to clarify a couple of
things. The -- some of the tasks in here are, develop content for
commissioner briefings, editorial board meeting preparation, and
CAC/TDC county commission meeting attendance.
Is this an attempt to make sure that the staff time, or somebody's
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time, that goes into doing this is charged to the appropriate fund, or is
this something that the staff could do itself?. Because after all, you
prepare for Collier County Commission meetings now and you
prepare for CAC meetings now.
My question is, why couldn't the staff do this? And if your
answer is, the staff has to have some source of funding to do it, then I
understand it. But if I'm -- if you're saying, we're just going to hire
somebody to do it rather than staff doing it, I'm not sure I understand
it.
MR. DeLONY: Yes, sir. And let me make sure you're clear.
We wrote a scope of work for these folks anticipating the wide variety
of things we might ask them to do to assist us to do all the things that
you outlined.
Our first default function is, use existing staff. When that
existing staff is either overwhelmed or under -- or not available or we
just can't get to it to the level of detail of level of sufficiency we feel to
put it before you and the public, then we're going to go to this
consulting agency as help as we need it on an as-needed basis.
This has nothing to do with funding staff support of this or any
other project. This is -- essentially allows us to set up a work order
process with this firm to provide deliverables to us as we -- on an
as-needed basis and paid for on a time and material basis.
COMMISSIONER COYLE: Okay. Let's presume you didn't
have access to an out-house source. MR. DeLONY: Okay.
COMMISSIONER COYLE: I usually use that term only when
we're hiring attorneys from other agencies.
But if you didn't have an out-house source, how would you do
this?
MR. DeLONY: Tough, I'll be frank with you. I mean, the assets
that we have available and the assets that Jack has available, Jack
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Wert, TDC chairman has -- I mean, TDC coordinator, has for him are
pretty limited in our ability to doing them on a day-to-day basis. And
that's the reason we wanted these services available for this activity --
this peak activity period.
COMMISSIONER COYLE: If you did it, though -- I mean, if
you had to do it, how would you charge out the staff time and
expenses for doing that?
MR. DeLONY: What we've done up to now in terms of TDC
support in the public utilities division is I've been funded certain
full-time equivalent positions within the firm for folks to work on
TDC work, and we've worked off of those -- those allocations of effort
and time and money to fund the kinds of things we're doing for the
TDC projects.
COMMISSIONER COYLE: And do you get TDC funds --
MR. DeLONY: Yes, sir, I do.
COMMISSIONER COYLE: -- to reimburse you?
MR. DeLONY: Yes, sir, I do.
COMMISSIONER COYLE: Okay. So what I see here, I think,
is that you're going to spend these funds one way or the other. If
you're made to do it yourself, you're going to have to charge TDC
funds for the staff time; is that -- is that a correct statement?
MR. DeLONY: It's appropriate to fund those TDC expenses
against the TDC.
COMMISSIONER COYLE: Okay. So if you were forced to do
all these things yourself with existing staff, you would still have to
charge this money to TDC, charge that time and expense to TDC
funds?
MR. DeLONY: Yes, sir, I believe that's true. We would -- we
would look to try to make it a cash and carry basis for the TDC.
COMMISSIONER COYLE: Okay. So that's the point I'm trying
to get at, is that I believe -- and please correct me if I'm wrong -- I
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believe this is a funding mechanism more than anything else.
Not all of this money would be saved if we were to disapprove
this particular project. You would still have to prepare for BCC
meetings and you'd still have to prepare for CAC meetings and get the
briefing material together, and that's time and that's money, and you
would charge that to TDC funds?
MR. DeLONY: To the extent that we had staff available to do it,
yes, sir.
COMMISSIONER COYLE: That's right. Okay.
MR. DeLONY: If I could, Mr. Coyle, you know, this would give
us a level of service much high than that.
COMMISSIONER COYLE: I understand, I understand. But I'm
just trying to make sure that I understand what you're -- what you're
doing, because a disapproval of this project would not save these
funds, because many of the funds -- I mean, many of the things have
to be done anyway. You would have to do them some way and you
would have to charge TDC for that -- that work.
MR. DeLONY: That would be a -- we would either not do them
as well, or to some degree, would have to do them to a much lower
standard than what the market would demand in terms of service to the
customer, in my view.
COMMISSIONER COYLE: Now, how about the business of
hosting the services and links from the county public page? Why do
we need to pay a consultant to do that?
MR. DeLONY: Not necessarily. When you set up these scopes
of work, you try to imagine as best you can what level of service
you'll need from this consultant and you'll pick those tasks off and you
will pay them accordingly.
To the extent that we need that, we'll pay for it. Extent, we won't
(sic). The key is -- and this is where I need to make sure I'm clear.
This is a time and materials arrangements if we don't need them to do
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it, they don't get the money. But if they need to do it, they'll get paid
according to the schedule that's outlined within the submittal package
that you have.
COMMISSIONER COYLE: Okay. Thank you.
CHAIRMAN FIALA: Commissioner Halas?
COMMISSIONER HALAS: So basically all -- these funds were
basically allocated before. All we want to do now is just approve it; is
that correct?
MR. DeLONY: The earlier phase was. At this stage of the game
now, we're waiting for your approval now so we can proceed with the
outreach effort as outlined in your packet, sir.
COMMISSIONER HALAS: Okay. I make a motion that we
approve this agenda item.
CHAIRMAN FIALA: I second it.
Any further discussion?
(No response.)
CHAIRMAN FIALA: All those in favor, say aye.
COMMISSIONER HALAS: Aye.
COMMISSIONER COLETTA: Aye.
CHAIRMAN FIALA: Aye.
COMMISSIONER COYLE: Aye.
CHAIRMAN FIALA: Opposed, like sign.
COMMISSIONER HENNING: Aye.
CHAIRMAN FIALA: Okay. We have four in favor with one,
Commissioner Henning, opposed. Thank you.
Now go to 12(A)?
Item #1 lA
KEITH REED AND DONOHUE SILVIS REGARDING THE
SANTA BARBARA ROAD PROJECT
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MR. MUDD: No, public comments on general topics, ma'am.
Number 11.
CHAIRMAN FIALA: Oh, I'm sorry.
MR. MUDD: Ms. Filson?
MS. FILSON: Yes, ma'am. We have two speakers. Bella Patel.
MR. REED: I don't believe she's here.
MS. FILSON: Keith Reed.
MR. REED: Yes, ma'am. Good afternoon, distinguished
Commissioners. I appreciate the time and opportunity.
What I'd like to --
CHAIRMAN FIALA: Your name for the record, sir?
MR. REED: Keith Reed. I'm a property owner along Santa
Barbara Boulevard. I'd like to -- the issue I want to speak on is the
Santa Barbara project, which has been an ongoing diamond in the
rough with this dis -- public discussion and everything.
I own a parcel of property along Santa Barbara that I received a
letter from the county over a year ago of their intent to purchase it for
part of the improvements along Santa Barbara.
So at that time, we chose -- we decided not to develop it like our
original intent was and sell it. Our intent was to wait and go -- you
know, deal with the county accordingly and be fair about it and
appropriate.
It's been over 15 months from the initial contact. I had a meeting
yesterday, a settlement towards the property, and -- excuse me -- the
results were very discouraging instead of encouraging from my
perspective as a property owner. And I know Commissioner Henning
is in -- lives in that area.
So as we all are in Collier County, we're aware of the property
values and how they escalate yearly. I just don't think that -- I just
want you guys aware, I guess, of the length of time involved already
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March 9 & 10, 2004
on just my individual parcel of property that I've dealt with the county
in good faith on up till now, and the fact that the longer the process
draws out, the more expensive it becomes for the county to do the
escalation of the property values.
I'm not wanting an arm and a leg. I just want to be fair to both
sides. And as I said earlier, I've already held up on plans for that piece
of-- parcel of property for over a year expecting to reconcile this with
the county to everybody's amicable agreement.
After yesterday's meeting, as I said, I'm very discouraged with
the approach the county has taken on the property. And by prolonging
the agree -- settlements on any parcel of property, as you all are
aware, it just becomes more costly to the county.
When there -- the difference in money is not -- it's less than 10
percent, I would think that you would be more than willing to
reconcile it with the individual in good faith. That's all I have to say. Thank you.
COMMISSIONER HENNING: Mr. Reed, did you get an
estimate? Did you get an appraisal?
MR. REED: Yes. From day one when I received the county's
letter, they required me to go out and get an appraisal that -- they
wouldn't accept anything over the phone or any -- they required me to
get an appraisal, as well as they did an appraisal.
COMMISSIONER HENNING: So what you're saying is your
appraisal and the county's appraisal is different?
MR. REED: Greatly so. I mean, after five hours yesterday, we
do come much closer. And like I said, it's a matter of less than 10
percent basically between the two sides.
And when you figure up, if this drags on another year at the
county's own appraisal's -- appraiser's numbers, property values are
going up 20 to 24 percent on other properties that they have settled on
in the last year, that the county has purchased, such as Tree Source,
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and there's three or four other pieces of property that the county
appraisers themselves offered-- recognized the 20 percent increase in
property value.
So like I said, it -- for the amount of money that's involved not
only with my parcel, but just for everyone, I would think that it would
behoove the county to become more cooperative, if you will. Thank
you.
CHAIRMAN FIALA: Have you talked with Norm Feder back
there about it?
MR. REED: No. Yesterday Kevin Hendricks was at the
meeting. And I apologize, I know Ellen -- and I apologize, Ellen, I
don't know your last name.
MR. MUDD: Chadwell.
MS. CHADWELL: Chadwell.
MR. REED: And Gregg--
CHAIRMAN FIALA: Strakaluse.
MR. REED: Yes -- were the three involved from the county.
CHAIRMAN FIALA: Well, maybe -- maybe you could meet
with them outside here and just discuss it.
COMMISSIONER HALAS: We've got --
CHAIRMAN FIALA: Oh, okay.
COMMISSIONER HALAS: -- Norm Feder coming up.
MR. FEDER: Madam Chairman, Norman Feder, transportation
administrator. I can tell you the staff has met with the gentleman. We
have made a good faith offer, a very good offer. He obviously has a
better feel for what he wants for the property than necessarily the
appraisal level. And his presentation to you is his concern that we're
not offering even more.
But, again, we'll continue to try and negotiate the property
purchase. We have two other parcels we have already purchased in
the area. We're being very, very consistent with those that have
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already been fully negotiated.
CHAIRMAN FIALA: Thank you. Thank you.
MR. REED: Thank you.
CHAIRMAN FIALA: Do we have any other speakers?
MS. FILSON: No, ma'am.
CHAIRMAN FIALA: Okay.
MR. MUDD: Commissioners, some background with Norman's
issue and with Mr. Reed-- and we'll continue, as Norman said, to
work the process.
But let me try to get it so that you do know. Mr. Reed's property
is a little less than four acres. Our appraisal came in at around 80K
per acre, and our price was $236. Mr. Reed had an appraisal, and his
appraisal came in at 105 an acres, $105,000 an acre, okay?
So they're trying to work in the difference. And Mr. Reed's final
was -- at the table yesterday, was 315, and then added attorney's fees,
expert witnesses' fees, our offer on the table was 290 inclusive of
attorney's and-- fees. So we're in the ballpark.
I think -- I think both sides will go back out there and work
through that process a little bit more. We got a lot closer. But again,
we're working off two appraised values, and there's -- there's some
significant issues between the appraised values of both, and we'll work
through that process to -- for both parties, the taxpayers of Collier
County and for Mr. Reed.
CHAIRMAN FIALA: Thank you.
MS. FILSON: And Madam Chairman, I just had one additional
speaker.
CHAIRMAN FIALA: Okay.
MS. FILSON: Donahue Silvis.
MR. SILVIS: Yes, I'm Donahue Silvis. I reside at 3770 25th
Avenue Southwest in Golden Gate. And on the same subject, I own
the property at 1600 Santa Barbara.
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I was approached by -- some time ago about selling my property.
I have seven acres. Three two-and-a-quarter-acre-plus lots. I've gone
to the meetings. In fact, I agreed way back almost two years ago to --
in the widening. I wasn't against it. I said I'm fine with it.
I went to the meetings. In fact, I walked out of one meeting that
Tom Henning was there, and the people were quite rude to him, and I
thought that was out of line, so I left and I contacted the county, sent a
letter to Mr. Coletta and Mr. Henning that I was willing to negotiate --
that was a year and a half ago -- and they told me I would be number
one on the list.
I've been waiting all this time. They keep putting me off. Not
only am I going to -- do they want my back two-and-a-half-acre
property for water retention ponds, but at the time I went deep in debt
building a modular home on one of the front lots, opened a business
and was going to develop the back two lots with modular homes, of
which I was stopped from doing.
At the present time I'm out of business because even though I
have over $600,000 tied up in the property, I can't sell the property. I
can't build on it. I can't sell modular homes to the people because I
don't have the finances to do it, and banks won't finance 100 percent
of modular homes in this area.
So I'm having my meeting tomorrow morning. I just wanted
you-all to be aware that this has been a hardship on me. I'm making
large bank payments, and I'm out of business, and I want -- I want --
what I've heard about Keith Reed, that he didn't get a fair shake, I have
been very cooperative. I just want to be treated fairly.
CHAIRMAN FIALA: And we want you to be treated fairly, too.
MR. SILVIS: Thank you very much.
CHAIRMAN FIALA: Thank you, sir.
That's it for public speakers?
MS. FILSON: Yes, ma'am.
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CHAIRMAN FIALA: Okay, fine.
Item # 12A
REQUEST FOR AUTHORIZATION FOR THE COUNTY
ATTORNEY TO SELECT AN RETAIN OUTSIDE COUNSEL TO
REPRESENT TWO INDIVIDUAL COUNTY EMPLOYEES SUED
IN DWIGHT E. BROCK VV. BCC, LINDA T. SWISHER AND
PAUL W. WILSON AND WAIVE THE PURCHASING POLICY
TO THE EXTENT IT APPLIES TO THE SELECTION OF
OUTSIDE COUNSEL- COUNTY ATTORNEY TO PROVIDE
LEGAL REPRESENTATION SUBJECT TO CONDUCT OF
IMMEDIATE AUDIT BY COUNTY STAFF OR PREFERABLY
Ol ~TSIDE ACCOI INTING FIRM - APPROVED
12(A), county attorney's report.
MR. WEIGEL: Thank you, Madam Chairman. 12(A) brings
back to consideration from the board the fact that the Board of County
Commissioners, sitting as ex officio, the governing body of the
Ochopee Fire and Rescue District, and two employees of the Ochopee
Fire District, Paul Wilson, Fire Chief, and Linda Swisher, employee,
were also included in a lawsuit filed by the clerk in court just two
weeks ago.
And as I indicated to you when I informed you last board
meeting, by virtue of the fact that Board of County Commissioners is
a party defendant and, therefore, a response and defense will be
tendered by the county attorney on behalf of the board, there will be a
need for the individual employee defendants to retain counsel, at least
have the ability to retain counsel, in their defense and response to the
-- to the complaint.
It is inappropriate for the Board of County Commissioners -- I
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should say for the County Attorney Office to represent both the Board
of County Commissioners and the employees. And so included in
your agenda packet on this item is a copy of the policy resolution of
the Board of County Commissioners which addresses those times and
instances where an employee or a board member or an advisory
committee member, to name a few, may find themselves on the tail
end of a lawsuit.
And I would -- the recommendation before you today is to
consider, but thereupon to apply the policy relating to the potential of
either board authorization for the county attorney to retain counsel for
each of these two defendants, and/or you have other parameters
available, 'such as for these individuals to retain counsel and seek
payment, reasonable payment, of their fees and costs in the response
to the lawsuit by the Board of County Commissioners.
I have spoken with -- and been informed that both of the
individual employees that are sued have not retained counsel at
present time, and it appears that they would appreciate or consider
certainly the assistance of the county attorney at the direction of the
board in the hiring and retention of counsel at a rate not to exceed
what the board would approve.
I would ask you, if you'd like, to turn in your agenda to the policy
resolution, but you don't have to because I'm going to refer to it
directly itself. But most importantly in the resolution relating to
lawsuits where county employees, board members, or advisory
committee members may be involved, is that this policy the board
adopted in 1995 is broken out into two major parts, and one is civil
prosecutions, civil litigation, and then criminal prosecutions or
litigation.
In the present case, this is a civil case, not a criminal case, and it
takes us then, looking at, if you wish, on page five of the executive
summary and page seven thereafter, it specifically indicates what the
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March 9 & 1 O, 2004
policy is. And it indicates that the board hereby resolves to provide
legal representation to county persons in civil actions and in civil
rights actions subject to the limitations set forth herein.
The reason I'm reading this is not so much for you who are
probably familiar with the agenda item in preparation for today, but
for the public as well.
It then provides the parameter with limitations. The first one
involves legal representation which is what I'm talking with you about
today. And it says, legal representation shall be provided in civil
actions and in civil rights lawsuits only if the litigation involving of
the county person to be represented arises out of or in connection with
the performance of official duties and while said county person was
serving a valid public purpose, so there are some parameters there.
There are also some limitations that follow thereafter that talk
about, no representation should be provided by the county if the
person was acting with malice and bad faith or intent to harm, things
of that nature.
Now, it would appear from the knowledge that we have, which is
small in this regard, that it would be, I would suggest, difficult for the
board to make the adverse determinations that are limitations here, but
we do know that the lawsuit purports to involve these persons as
individuals but also related to their employment with the fire district.
After all the fire district itself is sued by you being sued directly as the
governing body.
The -- on page seven thereafter is the second part of the equation,
which isn't before you today, and that is, it relates to the board
responsibility in regard to final judgments, settlements, and/or costs.
Well, this case has just started, so there are no final judgments,
settlements, or costs that have been assessed by the court. No matter
what you do at this point in time, that would be a subject for another
day.
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So before you today -- and I look forward to any questions you
may have -- would be the issue of, will the Board of County
Commissioners, pursuant to the policy, make a finding that it is
appropriate at this time to either authorize the defendants/employees
to seek counsel and be subject to reasonable reimbursement or to
direct the county attorney to assist and retain counsel for each of these
two individuals.
And I'm ready for any questions.
CHAIRMAN FIALA: Commissioner Coyle?
COMMISSIONER COYLE: Yeah. I would like to emphasize
that the policy calls for us to provide such representation absent any
evidence of willful or wanton behavior or criminal activity.
But we -- we have an obligation to make sure that there is no
such bad activity or behavior associated with this particular case. So I
would suggest that we -- that we provide the legal representation in
accordance with our policy. But as a condition of that, also
immediately, conduct an audit of that particular account, account in
question, with the purpose of determining whether or not there has
been any bad faith, malicious conduct, or criminal intent.
I think-- my overall impression of this whole thing is it is
absolutely ridiculous to try to solve this through a civil suit. We
should conduct an audit immediately. Taking the time and the
expense to go through a civil suit to determine if this is an improper
account and if it was handled improperly is, in my estimation, a
blatant waste of taxpayer funds.
So I would hope that either we would conduct an immediate
audit, or if necessary, to assure that there is no conflict of interest, hire
an auditing firm to go in and audit this account immediately, and that
way it gives us an opportunity to determine if there was any unlawful
behavior or bad faith or malice associated with this, and if so, we then
can terminate the legal representation.
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So on the one hand, we are permitted to -- to apply the legal
representation as permitted under our statutes, and on the other hand,
by conducting the audit, we are limiting our exposure in the event
something really is wrong here. So I would like to proceed on that
basis.
CHAIRMAN FIALA: Would you like to make a motion to that
effect?
COMMISSIONER COYLE: Yes. I'll make a motion that we
provide legal representation subject to the conduct of an immediate
audit by county staff or some outside accounting firm that we would
hire to do this. And I guess I would prefer an outside accounting firm
to assure there's no -- no possibility of a conflict of interest here.
CHAIRMAN FIALA: Okay. I have a motion on the floor.
MR. WEIGEL: Could I respond for clarification?
CHAIRMAN FIALA: Certainly.
MR. WEIGEL: Thank you. In essence, reading back the motion,
the motion then would include the county attorney making appropriate
efforts to retain counsel for each of the two defendants, Linda Swisher
and Paul Wilson, and -- at a cost not-to-exceed figure of $200 an hour,
which we believe is reasonable in the marketplace in the type of
matter that is in the court here, and additionally, that the board is
authorizing, pursuant to its powers and duties, authorizing the
utilization or employment, the implementation of an audit, which may
be done either in-house, or if appropriate to -- and preferably by
outside independent auditor, and to the extent appropriate, pursuant to
the -- that the purchasing policy be waived to the extent necessary so
that any retention may be -- may be accomplished of the outside
auditor.
I don't know how to give you a cost not to exceed figure on that,
but it would seem to me that if need be, I can come back at the next
board meeting with something in that regard.
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COMMISSIONER COYLE: You said it so much better than I.
MR. WEIGEL: Well, I'm sorry. I was a little -- little wordy
there, but I appreciate that.
CHAIRMAN FIALA: Okay. So we have a motion on the floor
by Commissioner Coyle. It has been repeated by our county attorney,
David Weigel.
Do I have a second?
COMMISSIONER HENNING: Second.
CHAIRMAN FIALA: Second by Commissioner Henning.
Any discussion on the motion?
Yes, Commissioner Coletta.
COMMISSIONER COLETTA: Yes. I'd like to hear from staff
to find out if we have already done something as far as an audit goes.
I want to know what we're spending this money on and why and if it's
justified.
MR. SUMMERS: I'm close. It's Dan Summers, emergency
management. I will tell you that we have done a -- not done a formal
audit, but I have looked personally at the check register for the
activities that were in there, and those activities were well within
concert of a volunteer fund.
Those type of funds for community outreach, fire safety and
Halloween parties, those types of things that were done as a
community activity, well within the scope of public outreach, as well
as some of the equipment that was purchased in there.
I have not done a line-by-line, dollar-for-dollar compilation or
accounting of that, but what I have seen recorded in the register is well
within the scope of those activities.
COMMISSIONER COLETTA: So what we're trying to prove
by doing the audit is to have an outside firm verify what you just said,
I would take it?
MR. SUMMERS: I think what it would do, would make sure --
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would look very closely at the balance. There is a -- an accounting
system that is used, a software system that Linda Swisher does use to
enter every account -- or I'm sorry -- to enter every transaction and
make additional records as well as -- all those additional records are,
in fact, done with her Quicken software.
The issue here is how far back, and I think this account has been
around -- Chief Wilson will have to help me with that timeline of this
account -- before they became a dependent district. So how far back
we go -- which I think the clerk has only asked that we go back two
years, if I'm not mistaken.
So, again, it -- part of that discussion would have to be how far
back, and even the fact that county staff inherited these records and
took positions down there within Collier County when this process
and this account was already in existence.
COMMISSIONER COLETTA: My other question-- and this
will be my last one -- are these -- these records are considered public
records where anyone that would like to see a copy of them could?
MR. SUMMERS: I don't know how that -- I assume it would be
just because of the nature of the fire department business.
COMMISSIONER COLETTA: Well, the fact that it came
before the commission and is part of our determination that we're
going to be doing in the future.
MR. SUMMERS: Oh, absolutely.
COMMISSIONER COLETTA: I assume it's public record.
MR. WEIGEL: Well--
COMMISSIONER COLETTA: There's nothing there that we're
holding back on. Anyone that wants it can have a copy of it?
MR. SUMMERS: No, sir, no, sir. We took several large boxes
immediately to the clerk. They made copies. Those boxes of records
are now, I believe, in the county attorney's possession. And some bank
statements came in today from fax. So we have very promptly
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provided the materials requested.
COMMISSIONER COLETTA: Thank you, Mr. Summers.
MR. WEIGEL: And if I can add to that, in regard to public
records, we are talking about an account that is not a Collier County
Government account. But to the extent that records have been
provided, received by the clerk, received by the county, whether it's
emergency operations or now in the custody of the county attorney, I
think a good argument could be made that, yes, those certainly are
public records.
To the extent that, as an internal review or an external auditor's
task of attempting to do a total review of records, there may be -- there
may be some issues as to the public -- the publicness of the records
that have not been provided at this point.
As I mentioned two weeks ago, it seemed to me that much of this
could be taken care of by a professional courtesy administrative
request, and that's what we would be attempting to do ourselves with
the assistance, potentially, of an outside auditor.
And to the extent that the two individuals as defendants in this
lawsuit may have some question or concern upon their advice of
counsel in regard to any other records that they may have pertinent to
those accounts, that's something that they'll have to, I'll say, interface
with us with their counsel a little bit later on.
I think it's a little broad to say that all records are necessarily
public records, although there are certainly arguments that could be
made toward that end.
CHAIRMAN FIALA: Commissioner Halas?
COMMISSIONER HALAS: I was led to believe that this was a
501C account too; is that correct?
MR. WEIGEL: Do you have any independent knowledge
yourself?.
MR. SUMMERS: We are still researching that. We do know that
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before the county took over the dependent fire district, that there was,
in fact, an articles of incorporation for the Ochopee Fire District.
COMMISSIONER HALAS: Okay.
MR. SUMMERS: The bank that held those records has been
through several mergers, and there has to be a hand archive of that, so
we are attempting to locate the nonprofit nature of the dependent fire
district, its articles of incorporation that tie to this account.
COMMISSIONER HALAS: Okay. And how will this affect --
maybe the county attorney -- if we find out this is a 501C account,
then how -- what kind of light does this cast on the whole scenario
here?
MR. WEIGEL: Well, I don't want to get too far --
COMMISSIONER HALAS: Okay.
MR. WEIGEL: -- into what might be some case discussion, but,
you know, the fact is, part of the audit examination would be the
source of funds, the identity of funds, and how they happen to exist
within the account and/or left the account at a point later on.
COMMISSIONER HALAS: I've got one last question.
MR. WEIGEL: Okay.
COMMISSIONER HALAS: So this was taxpayers' money that
was in this account, or was this money that was basically donated to
the fire -- Ochopee Fire District?
MR. WEIGEL: Well, I think that's -- that's what we're going to
determine. There may be some questions as to the character of the
money. There may be very few questions, things may be very clear
that the source or origin of some of the moneys that went into the
account came from what I've heard anecdotally, over a period of
years, such things as Annual Ochopee Fish Fry and other events or
solicitations.
I do not know right now -- and again, it would be inappropriate
for me to comment with any assurance -- that, in fact, there will be
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questions raised in the case -- in the case in the court that money that
was solicited, no matter how it came, was, you might say, converted
or became county money by virtue of coming into the possession of
the -- of the individuals and/or the account.
These are some things we'll be looking at in the future.
COMMISSIONER HALAS: Thank you very much.
CHAIRMAN FIALA: Commissioner Coyle?
COMMISSIONER COYLE: Yeah. I just wanted to address the
issue of cost. Please remember that if we're going to provide legal
costs for these people -- legal representation for them -- that the costs
associated with the -- an audit are going to be paid one way or the
other, because an attorney will have to get that information, and he's
going to charge you $200 an hour.
It would be better in my mind, I think, to have an auditor do it at
maybe 75 or $100 an hour, because it's going to be needed by an
attorney to perform an appropriate defense in the lawsuit, which I still
consider to be unnecessary and irrelevant here.
The important thing is the audit to find out what went into the
account, why did it go into the account, what came out of the account
and why, and then we'll have an answer to all those questions. And so
that's the reason I've tied this motion to an audit. MR. WEIGEL: This is fine.
CHAIRMAN FIALA: Okay. We have a motion on the floor by
Commissioner Coyle, a second by Commissioner Halas.
COMMISSIONER HALAS: By --
CHAIRMAN FIALA: Oh, by Commissioner Henning. I'm so
sorry.
Any further discussion?
(No response.)
All -- do we have any speakers?
MS. FILSON: No, ma'am.
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CHAIRMAN FIALA: All those in favor, say aye.
COMMISSIONER HALAS: Aye.
COMMISSIONER COLETTA: Aye.
CHAIRMAN FIALA: Aye.
COMMISSIONER COYLE: Aye.
COMMISSIONER HENNING: Aye.
CHAIRMAN FIALA:
(No response.)
CHAIRMAN FIALA:
MR. WEIGEL:
Opposed, like sign.
It's approved, 5-0.
Thank you.
Item #15A
COMMISSIONER FIALA RE LISTED SPECIES IN THE GLITCH
CYCIJE- TO lalE PI JT ON NEXT AGENDA
CHAIRMAN FIALA: Okay. Now we're on to staff and
commission general communications.
MR. MUDD: Commissioner, I would -- I would bring up the one
item that you brought up earlier at the beginning of the agenda, and
you wanted to talk about listed species and the glitch cycle.
CHAIRMAN FIALA: Yes.
MR. MUDD: So I think that would probably be appropriate to
get after, and then we can do the general nature of this particular--
CHAIRMAN FIALA: Great. I didn't know if I had to wait my
turn, so I'm glad you advised me. Thanks. All righty.
MR. WEIGEL: Okay. Just a minute.
Me?
CHAIRMAN FIALA: Oh, do you need a break? Okay.
COMMISSIONER COLETTA: Do you need a break?
COMMISSIONER COYLE: I need a break.
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CHAIRMAN FIALA: Okay.
COMMISSIONER HENNING: What are we going to do here?
COMMISSIONER HALAS: Let's have a break.
CHAIRMAN FIALA: Oh, okay, fine. We'll break for 10
minutes. Okay. We'll be back in 10. (A brief recess was had.)
CHAIRMAN FIALA: The meeting is back in order.
MR. MUDD: Madam Chair, you have a hot mike.
CHAIRMAN FIALA: Thank you very much.
Well, I called this because I found some confusion with regard to
listed species. And I had written to you, Mr. Mudd, about it, and then
I'd gotten a comment back from Mr. Schmitt.
But I still had some confusion on it, because as I looked back
through the record, I found that Marti Chumbler had said in a couple
places here -- and I have them here at my disposal in case you would
like me to read them -- at the January 29th first LDC meeting, that she
felt that it was really important for staff-- the initial problem that your
staff is trying to tackle and trying to deal with on a daily basis is, how
do we apply this comp. plan provision. We don't know what it means.
And so I thought maybe we could discuss that today, because
what I'd like to do is get this on to the glitch cycle rather than put it on
till the end of the year.
Marti Chumbler here in another spot says that she feels that this
would be important to have on the glitch cycle. I'm paraphrasing for
her, but I could read this. And also we had talked about it as
commissioners and felt that we wanted it on the glitch cycle as well --
COMMISSIONER HALAS: Yes.
CHAIRMAN FIALA: -- so that we could -- so that we could
address it. We didn't feel we were ready to do it at the time, but we
needed to get it on the glitch cycle, and somehow I understand it's not
going to be on the glitch cycle now. And what I'd like to do is just see
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if--
MR. MUDD: Yes, ma'am. Let me -- let me try to help you just a
little bit. The board directed, after the glitch cycle discussions were
ongoing, that they prefer to have a task force together to work through
a more robust listed species plan in the Growth Management Plan in
order to do it.
I will tell you, from what I've been briefed, we can fix it in the
glitch cycle. I can take out one sentence, and the environmental
community just loves it and the development community just hates it.
And then I could take out another letter, or another line, and leave the
line in, and I'll tell you, the environmental community hates it and the
development community loves it, okay.
So the glitch cycle isn't so glitchy -- it's not so easy, okay?
Because you just expect it to be a one-line change or whatever, or a
small paragraph to put in. But what we've got ourselves into is a
battle, and the lines are drawn.
And it became less obvious to staff, and I think to the
commissioners in general as they heard some of the comments from
some of the speakers, that isn't going to be an easy fix, that this needs
to be a more robust plan that basically states that if we have species
that need to be listed for our particular county that aren't covered by
some state or fish and wildlife list, that they could add it and figure out
a plan to protect those particular issues so that it necessarily isn't a
state average or a federal average of species, and, you know, a taking
of one won't necessarily affect.
But in Collier County, that one might be the only -- might be the
only bird or animal of that type in that entire species. So taking it
from this particular community might be very traumatic. And I think
that's where folks want it to go.
And that's where we are with the staff, based on what I received
-- what I think I heard -- and I think Mr. Schmitt and I have talked
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about it a little bit -- what we heard from the board was, they wanted
to come back with a plan, almost like the manatee protection plan,
where the listed species issues were covered in total and that both
sides of the issue had plenty of ample opportunity to craft that
particular language in that plan.
CHAIRMAN FIALA: So in other words, it's the developers
against the environmentalists, and what we're saying is we want this
group, this steering committee, to give us recommendations; is that
what you're saying?
MR. MUDD: Yeah. And to come up with a plan that everybody
can live with. Because if not, Commissioner, then you're going to
become the battleground, okay, and you're going to handle -- and
you're going to handle every tortoise, you're going to handle every
eagle, you're going to handle every chick, and that's where we are on
this one.
I mean, the glitch cycle, I understand it. I've been briefed on it,
and I've also been briefed on, well, if you take out that line
everybody's happy on this side, everybody hates it. If you do the
other side, then it does just the opposite, flip the coin.
CHAIRMAN FIALA: Well, apparently, no matter what this
committee recommends, we're still going to come out with one side or
the other, take in the sentence or leave out the sentence, and so we're
still going to have the same result.
So is it something that -- Commissioners, would you like to
discuss it during the glitch cycle?
COMMISSIONER COYLE: Whoops.
CHAIRMAN FIALA: Go ahead, go ahead.
COMMISSIONER COYLE: Okay. Yeah, I think we should
discuss it, but let me ask a question. If we change this to make it clear
that the Board of County Commissioners had the option of accepting
the federal or state interpretations or making an interpretation of their
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own, how would that hurt anyone?
If it appeared that we didn't have sufficient information to make
the decision, we could continue to defer to the federal and state
agencies who had hopefully issued some kind of an opinion, and if we
felt that there was an egregious error there, we would have the right
and the ability to override that decision, and it would be clear.
I would like to hear from both sides on that issue to see whether
that would be a reasonable compromise. But I need to say that I have
looked at the guidelines we have currently, and they clearly are not
sufficient in my mind to permit me to make a good decision about the
protection of those species, nor do we have the staff to do independent
evaluations and monitoring, and that's what we hope to develop during
this process that I think we're proceeding toward.
But I think it would take us -- if we got into the business of trying
to make a decision about these on our own, it's going to take us into
some very shaky ground. But as long as we have the option to look at
one or the other, based upon our understanding of the issue and the
information available, then we could say, hey, we don't have enough
information to overrule the federal and state, or on the other hand we
can say, the federal and state decision is absolutely ridiculous and
we're not going to accept it.
And so I'd just like to have an understanding of how that might
be interpreted.
CHAIRMAN FIALA: Bill?
COMMISSIONER COYLE: And that's just -- that's just an
interim solution, okay? I'm really looking for the long-term study to
be done.
MR. SCHMITT: For the record, again, Joe Schmitt,
administrator of community development and environmental services.
And I'm going to let Bill talk, but just so you know, we have met
and we've been looking at this glitch -- glitch cycle amendment, and
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I'm going to put this on the visualizer, so Jim can -- the visualizer.
There you go.
What we had was -- that just gives you -- and I don't intend for
you to read that, but--
CHAIRMAN FIALA: Oh.
MR. SCHMITT: -- what was four sentences has now turned out
to be a page, and we still aren't there yet. And this was just to take the
ambiguity out of the Growth Management Plan language that says we
will defer to state and federal agencies for letters of technical
assistance.
And Jim is right. I mean, he put it pretty succinctly. There is a
divergence of views. And I've got to admit, it's not adversarial in any
way. It's just a divergence of views.
We have met. We are meeting with both communities and it is a
-- I wouldn't call it an amicable relationship, but it isn't adversarial. It's
just trying to reach an understanding so that staff-- the language in the
GMP will allow staff to do what it needs to do to provide you the
wherewithal to make the proper decision.
But what started out as three lines, as you can see, is now a
paragraph, almoSt a page, and we still aren't there. But -- and that was
only to resolve the quick fix, because we still have to come back to
you for, what is the staff going to do in the future in regards to dealing
with listed species within the county, will we manage it ourselves or
those type of things that you have also asked us to do, which is what
the task force will -- or the -- I guess, the -- call it the task force or
what do you want to call -- stakeholders' group will help us do in
regards to bringing back to you some kind of a proposal with regards
to how we're going to deal with listed species in general.
Bill, I don't know if I kind of clarified it, but you can talk to
specifics.
MR. LORENZ: For the record, Bill Lorenz, environmental
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services director.
In terms of my perspective, one of the problems is, is that -- is
that trying to go through the glitch amendment, which is -- right now
has a very short time frame. I believe the documents I've already seen
from Carlton Fields as they go through the public hearing process -- I
think it's scheduled for your -- on your agenda for April 13th.
So we're looking at a very short period of time to try to make a
fix that I think the county manager had indicated early is, that it's
somewhat difficult to make that fix from a policy perspective.
What you have on the visualizer there, as Joe Schmitt indicated,
was our attempt to try to provide some degree of clarification to those
two sentences that are currently the policy. And it worked us through
that whole -- that whole page, and this was working through the
stakeholders' group. This is actually the notes that we put up on the
screen that worked through the language. And we still weren't at any
point of any answers. There's still a lot of holes and a lot of questions
to ask.
So I believe the discussion that we heard -- certainly I'll speak for
myself-- in terms of coming back to the board with that -- that longer
term effort where we can really put a lot of time and effort into it and
come up with a -- with a product at least that we have considered all of
the perspectives and all the angles, to come back to the board was
preferable in staffs mind, because if we come back to you with a --
quote, a quick fix on the glitch, it's still not going to cover those --
those answers, and so we've just -- we've just taken a poor product
and, I think, maybe substituting another poor product with it. At least I
don't have confidence that I can come back to you in this short a time
frame to be able to make those fixes.
CHAIRMAN FIALA: Okay.
Commissioner Halas?
COMMISSIONER HALAS: Bill, set me straight here. Are we
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trying to address -- is there a problem with the Growth Management
Plan, or is it just a problem with the LDC, or is it a combination of the
two?
MR. LORENZ: No, it's the Growth Management Plan. It's the
particular policy in the Growth Management Plan. Of course, the
LDC had to be consistent with the Growth Management Plan.
COMMISSIONER HALAS: Okay. So what do we -- we have
to address the Growth Management Plan? MR. LORENZ: That's correct.
COMMISSIONER HALAS: Okay. And when do you think that
will take place?
MR. LORENZ: Well, the schedule, in'the absence of the glitch,
would be -- would be within, let's say, nine to 12 months.
COMMISSIONER HALAS: Nine to 12 months.
MR. MUDD: And, Commissioner, let me tell you what the
glitch -- what the glitch is, okay, in the Growth Management Plan,
because you need to -- you need to understand that.
In one particular section it says that we will avoid all areas that
have listed species on it and we will push growth away from that
particular area. And then in the next breath it says that we will defer
to -- to the Corps of Engineers, the Fish and Wildlife Service, and
their particular opinions, and that their opinions will be consistent with
our Growth Management Plan.
So here you have one instance, you're saying, hey, if you have
any listed species, you get growth away from it, and in the next issue
you say, well, if somebody comes in with a biological opinion, okay,
from one of those federal agencies, state or federal, and you defer to
that particular opinion.
And so that's kind of where the issue is, and that's the way it's
written. And now you can see -- now you can see by striking the
language -- you strike the language that says you're going to defer
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growth from listed species habitat, you strike it, and then the
developers say, well, I'll go do a biological opinion, and that's fine.
And if you strike the other issue that says, you defer to state and
federal opinions, and you cross that thing and you say that they don't
necessarily need to be consistent with your Growth Management Plan,
then you're into -- you're pushing growth away from habitat.
And so -- and that-- and that's kind of where they sit in the
process. And so we were hoping to come up with a more -- a better
plan than two lines to figure that particular issue out.
COMMISSIONER HALAS: Okay. The other question I have,
has this always been a problem, or has there -- has there been a change
at some point in time where this all of a sudden came about?
MR. SCHMITT: This became a problem--
COMMISSIONER HALAS: Well, was there some --
MR. SCHMITT: This became a problem with the amendments
that we passed in -- to comply with the governor's order, so this was
part of the rural fringe and eastern lands amendments. And then when
we developed the--
COMMISSIONER HALAS: And what time frame was that?
MR. SCHMITT: Year, year and a half ago, almost --
MR. LORENZ: 2002.
MR. SCHMITT: Yeah, 2002, yeah.
COMMISSIONER HALAS: Okay.
MR. SCHMITT: When we passed that finally in June of 2002.
COMMISSIONER HALAS: Why didn't we look at that at the
time to see how that was going to affect the Growth Management Plan
MR. SCHMITT: Commissioner, we have--
COMMISSIONER HALAS: -- or the LDC?
MR. SCHMITT: We have. But we also -- in the developing of
that Growth Management Plan and all the implementing guidance to
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cover that-- the entire aspect of the rural fringe and eastern lands,
that's why we were coming back in this glitch cycle.
I think we're somewhere around the neighborhood of 50
something amendments that we have to come back to fix
inconsistencies that were developed as we formulated the language in
the Growth Management Plan.
This was just one of those. It's certainly the most contentious
issue. The others are -- they were oil and gas issues and other type of
things, mineral rights. We're coming back in April with that entire list
of glitches that we have to fix.
We're also -- this issue with coastal construction in regards to
densities and those kind of things that we have found that have errors,
or at least inconsistencies in the plan, this was one of them. This is the
one that's the hottest button right now, of course.
We really were looking at May for advertising again, meeting
with the stakeholders and bringing back to you in December a
recommendation.
So if-- like Bill said, if we were to try and put it in this cycle, we
can do it, it's just -- I honestly don't think we can get there from here
that's going to make everyone happy. We can bring it in and lay it all
out to you during the GMP cycle -- during the GMP hearings.
COMMISSIONER HALAS: Okay. The other question -- I got a
couple more questions, then I'll be finished here.
Is it the fact that maybe we rush these things through that we
overlooked some -- some of the fine points as we were changing these
amendments that caused us to get into this position where we are
today?
MR. SCHMITT: I -- it's a good question, but I can't put my
finger on it. I mean, we spent over two -- two years through
committee meetings and developing these -- the proposal to comply
with the governor's order and developing both the rural fringe
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amendment and the eastern lands amendments.
It's when we begin to implement and had to go back and began to
apply what we thought was right, that's where we've begun to kind of
find inconsistencies. Some of them, what I said about the 50 or so,
some are strike out of single words, but others are a little bit more
complex.
I don't know-- Bill, do you--
COMMISSIONER HALAS: So like this particular one is very
complex and so --
MR. SCHMITT: What we thought we wrote was -- we thought,
was pretty clear. And it -- in fact, it was written because -- it was
written to make sure that staff did defer to state and federal agencies
for technical assistance.
And in some instances now that has created what is termed an
unintended consequence. Maybe some people, they would prefer that
it not be deferred to the state and federal agencies, that you, the county
commissioners, make the decision and not defer or pass that off to the
state or feds.
COMMISSIONER HALAS: My feeling is -- I feel that we --
we, the county commissioners, and the residents of this particular
county, know what we feel is best for the interest of not only
developing -- development, but also of wildlife protection.
And so I'd like to see us try to address this issue as soon as
possible, and maybe we're going to put undue pressure on the -- on the
task force that's looking into this, but we need to address this as soon
as possible and get it taken care of.
CHAIRMAN FIALA: Commissioner Coletta?
COMMISSIONER COLETTA: Thank you.
I'm starting to have some concerns. We've got a task force who
obviously has been working together, at least I thought they were.
Suddenly this comes up, and I thought it was a pretty benign item to
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begin with.
Then we have a number of the people from the task force come
running in there from the other end very concerned about the fact that
this is taking place outside of the task force, which is, again, outside
the sunshine, but we won't go there today. Did I go there? I'm sorry.
COMMISSIONER HENNING: If you don't, I will.
COMMISSIONER COLETTA: But here we've got a problem.
What I'd like to do -- I think the only way I'm going to be able to come
up with some sort of definite idea where we're going is to be able to
listen to the stakeholders and be able to have them speak to us about
what their concerns are.
I'm starting to become very concerned about this. I thought we
were dealing with an item that was pretty cut and dry when this day
started, when Donna brought it up, Commissioner Fiala --
CHAIRMAN FIALA: No, it's Donna.
COMMISSIONER COLETTA: Donna. Donna, Commissioner
Fiala.
But obviously there's more than meets the eye here. Could we
possibly go to the speakers that would like to speak on this?
MR. MUDD: Commissioner, if you want to do that, I'd suggest
that you advertise this particular item --
CHAIRMAN FIALA: We don't have any speakers.
MR. MUDD: -- and you get all the stakeholders here, because
you're going to get yourselves into--
COMMISSIONER COLETTA: And I suggest that we do this. If
we're not going to have -- if we've got a task force that isn't working
together and can't come to a definite understanding where it is, let's
bring it here under the sunshine in front of us and have everybody
address it.
And I make a motion at this time that we continue this at the next
meeting.
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COMMISSIONER HALAS: Well, not the next meeting. Might
be the meeting after.
COMMISSIONER COLETTA: I don't care, in a coming
meeting, let me put it that way.
CHAIRMAN FIALA: Okay. There's a motion on the floor to
continue this, or to put this on --
COMMISSIONER COLETTA: Future agenda.
CHAIRMAN FIALA: -- the next agenda.
COMMISSIONER COLETTA: Or a future agenda.
CHAIRMAN FIALA: Or future.
COMMISSIONER COLETTA: I'm not too sure how it works
out for the task force or staff or anyone else. I hate to --
CHAIRMAN FIALA: I'm looking to second that, but I first want
to see what staff is discussing.
MR. MUDD: No. Commissioner, what Joe's basically talking
about, the evidence side to get ready for the next meeting, and that's
not a problem. You basically want to hear both sides of this particular
issue.
CHAIRMAN FIALA: Yeah.
MR. MUDD: Okay. And I just relayed to Mr. Schmitt, you
know, that you would make an executive summary, basically outline
what you have. You've got this particular item that's sitting on the
visualizer right now, and you basically want to make sure that you
hear both sides of the particular issue so that you understand it better,
so that you can make a determination if you want to put this in a glitch
cycle and move rather rapidly on it, or maybe have special hearings or
whatever in order to get that done outside of what's already there, or if
you want to continue this until the fall and come up with a plan. I
don't see a problem.
CHAIRMAN FIALA: Okay. There's a motion on the floor by
Commissioner Halas --
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March 9 & 1 O, 2004
COMMISSIONER COLETTA: No, Coletta.
CHAIRMAN FIALA: Oh, Coletta. I'm sorry -- to --
COMMISSIONER COLETTA: The good looking one.
CHAIRMAN FIALA: The good looking one -- to put it on the
next agenda, and I'll second that motion. Commissioner Henning?
COMMISSIONER HENNING: I guess that's the proper way
that we go, because we did give direction for staff, and I'm trying to
find it. And I think we gave -- no, I don't think, I'm sure -- we gave
direction to Joe Schmitt to deal with it holistically and bring it back
with GMP and Land Development Code amendments.
And if we're going to change our mind or reconsider it, then it --
then it should come back in a public forum, advertised public forum.
And my concern is, the correspondence that you received, and seeing
the people out here today, the stakeholders committee works behind
closed doors, and this is the result of it.
CHAIRMAN FIALA: They've never met?
COMMISSIONER HENNING: Let me finish now. We've had
the environmental community and the people in North Bay that want
to protect an eagle, and obviously -- these are the people on the
stakeholders' committee. They're here today to see what kind of
action that we're going to do today.
Now, how they communicated, I don't know. The only thing I
can do is guess since they didn't have a meeting.
CHAIRMAN FIALA: Commissioner Coyle?
COMMISSIONER COYLE: Yeah, I would like to make sure
that if we schedule this for the next meeting, that we plan on spending
a little time on this issue.
CHAIRMAN FIALA: We can't miss on that.
COMMISSIONER COYLE: Because I think there are people on
this board who need to understand a little better about what is going
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on, and I think we need to spend some time making sure that happens.
MR. MUDD: Yes, sir.
COMMISSIONER COYLE: And I don't want to take the time
today to do that.
MR. MUDD: No, I will make sure that we block this for a time
certain and that we have -- we have about two hours that are dedicated
to it.
CHAIRMAN FIALA: Great, great.
COMMISSIONER COYLE: Good.
CHAIRMAN FIALA: Okay, fine. So we're all -- we have a
motion on the floor. Oh -- and a second.
David, would you read the motion back.
MR. WEIGEL: Well, I would -- and I was looking for a little
clarification on the motion, and that is, there's a motion to bring this
matter back, this matter of discussion, back at next board meeting,
March 23rd. And I wanted to make sure we're clear. The discussion
seemed to initially start here in regard to more of a procedural
question, that is, do we include this -- this issue concerning species in
the glitch amendment cycle or in a separate cycle.
I am a little concern about the legislative sausage that we make
not being -- not being part of the advertised legislative process that we
typically have. And so I think it would be appropriate for you to bring
something back for discussion at the next board meeting, but you --
even at this point, perhaps, you're looking to limit the discussion to
learn more about the issues but that your ultimate decision is going to
be to include it in the glitch cycle or not.
CHAIRMAN FIALA: Right, that's what we're -- that's what
we're going to be talking about.
MR. WEIGEL: Okay. So that's kind of the motion, is to bring
something back for discussion as to whether to include this issue,
Growth Management Plan issue, for species in the glitch cycle process
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March 9 & 1 O, 2004
or in a later GMP amendment.
CHAIRMAN FIALA: Very good. So we have a motion on the
floor by Commissioner Coletta and a second by Commissioner Fiala.
Do we have any further discussion?
(No response.)
CHAIRMAN FIALA: All those in favor, say aye.
COMMISSIONER HALAS: Aye.
COMMISSIONER COLETTA: Aye.
CHAIRMAN FIALA: Aye.
COMMISSIONER COYLE: Aye.
COMMISSIONER HENNING: Aye.
CHAIRMAN FIALA:
(No response.)
CHAIRMAN FIALA:
CHAIRMAN FIALA:
Opposed, like sign.
And we have a 5-0 on that. Thank you.
Now, let's see. We have staff and general
commission communications.
Item #15B
CLOSED SESSION REGARDING HEALTHCARE A/K/A
MERRILL GARDENS AND SETTLEMENT NEGOTIATIONS ON
AQIIAPORT TO BF, PIIT ON NF, XT AGF~NDA IF NF, CF, SSARY
Do have you something, David?
MR. WEIGEL: Yes, I do. Thank you.
Pursuant to 286.011, the government in the sunshine law, I bring
to your attention the county attorney request for a potential closed
session, that is, executive session out of sunshine, relating to
negotiations and/or settlement and strategy for one or two lawsuits,
one is related to Health Care REIT, comma, Inc., also known as
Merrill Gardens, case number 02-5002, and also case number 03-231.
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March 9 & 10, 2004
These are related to our adult living facility im -- school impact
fee cases. And I expect there's a very real possibility that I'll wish to
bring that back on the agenda for an executive session, and then come
out from executive session to a very brief discussion and direction
from the board.
The second case which is, perhaps, less -- has less potential to be
heard next week would be -- next meeting, would be relating to
settlement negotiations on the Aquaport-related cases. And again,
based on additional information that we may rec -- be receiving, it
may not be necessary to go forward.
But as a courtesy to the public and the board, I have always
provided an advanced indication of this. And that's my message.
Thanks.
CHAIRMAN FIALA: Thank you.
Item #15C
ITEMS 7B AND THEN 7A TO BE HEARD ON MARCH 10, 2004
AT 9:00 A.M. RF, GARD CAP D'ANTIBFiS '
Mr. Mudd?
MR. MUDD: Commissioner, the first thing I want to make sure
that we take a look at this agenda -- and I want to make sure that
everybody understands that this meeting is going to be continued
tomorrow and that we are going to hear two items for the Board of
Zoning Appeals, both of which deal with the Cap D'Antibes issue as
far as these appeals are concerned.
And for public record, it will start at nine o'clock tomorrow in
these chambers, and we will start with item 7(B). And 7(B) is, this
item is heard on the 10th of March, this -- that item requires that all
participants be sworn in and ex parte disclosure be provided by
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March 9 & 1 O, 2004
commission members.
It's ADA number 2003-AR-4933, Michael V. Volpe of Robins,
Kaplan, Miller and Ciresi, L.L.P. representing Pelican Bay Property
Owners' Association, requesting an appeal to official interpretation
INTP 2003-AR-4306 relative to the approval of SDPA-2001-AR-412,
Waterpark Place at Pelican Bay.
And then that item, 7(B), will be followed by 7(A), which is
ADA-2003-AR-5218, Pelican Bay Foundation, Inc., represented by
Robert D. Pritt of Roetzel and Andress, requesting an appeal of
official interpretation INTP-2003-AR-4307, relating to the approval of
SDPA-2001-AR-412 for the Cap D'Antibes condominium project,
Waterpark Place, within the Pelican Bay DRI/PUD.
This appeal is pursuant to Collier County Land Development
Code section 1.6.6. So, again, this meeting will be continued
tomorrow to discuss those two items. Sir?
COMMISSIONER HALAS: Why are we going to item B before
going to item A?
CHAIRMAN FIALA: The chairman requested that B be taken
before item A.
COMMISSIONER HALAS: Okay.
CHAIRMAN FIALA: I was just -- I was -- I was approached to
change them, and I talked with Leo. I asked if there was any problem.
He said, they're both being presented by the -- you know, one, one
group, one another, but it's both addressing the same issue, and he
doesn't see a problem with it. So I phoned a message back. I did not
speak to the individual -- and phoned a message back and said we
didn't have a problem changing A and B.
COMMISSIONER HALAS: Okay.
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March 9 & 10, 2004
Item #15D
MARCH 19 & MARCH 20, 2004 IS BEST BUY COLLECTION
ACTIVITIES FROM 10:00 A.M. TO 5 P.M. TO TURN IN ALL
l JNWANTFD COMPI ~TF. RS, PR1NTF. RS, PHONF, S, F. TC.
MR. MUDD: Next item, Commissioners, I would say that -- and
this is just an item of public awareness. (Dais telephone rang.)
MR. MUDD: Can you hear me now?
CHAIRMAN FIALA: I think that's our telephone here.
MR. MUDD: Just mm the -- just mm the ringer off, ma'am, off
to the phone.
COMMISSIONER HALAS:
to you.
COMMISSIONER COYLE:
you?
Find out who it is. They're talking
This is Donna Fiala, can I help
MR. MUDD: This is an item of public awareness. On Friday
and Saturday, March 19th and 20th, 2004, we're going to have a -- we
call it a Best Buy. electronics collection -- collection activity. It will
be at Best Buy's, Naples, at 6325 Naples Boulevard.
Basically what will happen at that particular event for those two
days, that we will take, free of charge, any old monitors, CPUs, cell
phones, televisions, phones, terminals, printers, keyboards, copiers,
scanners, mice from your computer, fax machines, at no cost to the
people that turn them in. If they're broken, instead of getting them out
in the landfill and having any risk of lead seeping out of those
particular items, turn them in at Best Buy on the 19th to the 20th of
March from 10 a.m. to 5 p.m., and it will be at no cost to the people
that turn those items in.
Best Buy is working with us, and we're trying to stretch those
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March 9 & 10, 2004
dollars to make sure that we take it and it doesn't cost the taxpayers of
Collier County anything to dispose of those particular items properly.
That's all I have, Madam Chair.
CHAIRMAN FIALA: Thank you.
Item # 15E
COMMISSIONER HENN1NG REGARDING GOVERNOR'S
PRESS CONFERENCE CONCERNING THE HIGH SPEED RAIL
ISSUE. STAFF TO WORK WITH BCC TO EDUCATE THE
PUBLIC ON A PETITION INCENTIVE FOR THE VOTERS TO
SIGN REGARDING THE HIGH SPEED RAIL AND THAT IT
SERVES A VALID PUBLIC PURPOSE FOR THE TAXPAYERS
OF COIJJlF, R COl JNTY
Commissioner Henning?
COMMISSIONER HENNING: Two things. The -- I think it
was very productive when we were in Tallahassee, when the Board of
Commissioners went up there to lobby the -- our legislators not to hurt
us during the budgeting process for Tallahassee.
I had an opportunity to go to the governor's press conference.
The press conference was on the constitutional amendment of the high
speed rail. The governor is wishing to, through a petition method of
the residents, or the voters of Col -- or the State of Florida -- has put
back on the ballot to reconsider a high speed rail in the State of
Florida.
One example that he gave to link in between Orlando and Tampa,
the cost estimate is going to be over $2 billion, and no partnership
with any of the independent rail companies or any money coming
from the feds.
So, Commissioners, those items are going to come from our
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March 9 & 1 O, 2004
transportation dollars, or gas taxes and the transportation fund and so
on and so forth.
The reason I wanted to bring this up is, I would hope that the
county and the Board of Commissioners would be proactive and
encouraging the citizens to sign a petition to put this back on the
ballot.
Request them to work with staff to do a press release and have
means on our website to -- for citizens to access the petition, fill it out,
and what to do with it after that.
The -- I also want to talk to the party chairs, chair people, and
possibly do a press conference and encouraging, through the media, to
get that out.
CHAIRMAN FIALA: Thanks very much for your proactive
stance on this. That's wonderful. Anything I can do to support you,
and I'm sure the other commissioners feel the same way. Thank you.
COMMISSIONER HENNING: I'll send you the petition. And
let's see. I know I'm out at a speaking engagement, and I've got a lot
of petitions that I'm trying to fill out. So I ask you, when you're out, to
-- I'll get you the information, and ask the voters to sign a petition.
MR. MUDD: From a staff perspective, we'll help work on the
press release, we'll work the website so we get the petition and the
instructions on it in order to make is user-friendly for the folks that
want to access it through our website.
COMMISSIONER HENNING: And I'll send the letter to the
chairman of the board of Lee County and Charlotte County asking
them to participate in that.
CHAIRMAN FIALA: Could we do a little interview on our
government channel as well so that people can tune in and see what
the issue is and what we need them to do?
COMMISSIONER HENNING: Yes.
CHAIRMAN FIALA: Great, great. Would you -- would you be
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March 9 & 10, 2004
our key person there?
COMMISSIONER HENNING: Sure.
MR. WEIGEL: If the staff is taking some direction at this point
to go forward on this, notwithstanding that this is board
communication, I would appreciate if the record -- that record could
reflect at least a consensus, a majority of the board approving that
direction and that it is serving a valid public purpose, because it will
take some human resource and expenditure in making some of these
things available to the public. So if you would want to put something
on the record along that line, I think that that would assist the process
a bit.
COMMISSIONER COYLE: Do it now?
MR. WEIGEL: Well, you could do it now.
COMMISSIONER HENNING: I make a motion that we direct
staff to work with the Board of Commissioners to educate the public
on a petition incentive, for the voters to sign the petition.
MR. WEIGEL: And that this serves a valid public service.
COMMISSIONER HENNING: And it serves valid public
person (sic) for the residents and taxpayers of Collier County.
CHAIRMAN FIALA: Okay. And I'll second that.
So we have a motion on the floor.
David, would you like to read the motion back to us just to make
sure we all hear it.
MR. WEIGEL: Okay. It appears to be a motion to direct staff to
assist commission and the commissioners in creating a press release
and other information for the public relating to the governor's
initiative pertaining to a constitutional ballot initiative to derail the
high speed rail.
COMMISSIONER HENNING: There you go.
MR. WEIGEL: And that the board is finding in its motion that
this serves a valid public purpose in the public interest of the taxpayers
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March 9 & 1 O, 2004
and residents of Collier County. Amen.
CHAIRMAN FIALA: We have a motion on the floor by
Commissioner Henning, a second by Commissioner Fiala.
All those in favor, say aye.
COMMISSIONER HALAS: Aye.
COMMISSIONER COLETTA: Aye.
CHAIRMAN FIALA: Aye.
COMMISSIONER COYLE: Aye.
COMMISSIONER HENNING: Aye.
CHAIRMAN FIALA: And opposed, like sign.
(No response.)
CHAIRMAN FIALA: And we have a 5-0 on that.
Item #15F
COMMISSIONER HENNING REGARDING ZERO LOT LINES
WlTH SWIMMING POOIJS IN A Pl ID
COMMISSIONER HENNING: One other thing.
CHAIRMAN FIALA: Uh-huh.
COMMISSIONER HENNING: It was brought to my attention
by a resident that's assisting to build some townhouses from a previous
approved PUD with zero lot lines, and they -- finding out that the
residents want swimming pools, and the code doesn't provide it in our
Land Development Code. Is -- that's what-- staff's interpretation.
I looked at it and I seen ways that it could, but there are a lot of
issues similar to that that I see on a day-to-day basis, and it goes back
to the days when -- when some of our staff did some legislation things
that we felt that was inappropriate and we took action.
It's gone all the way around the other way now, and nobody
really wants to make a -- anything in the gray area, making any of the
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March 9 & 1 O, 2004
decisions. Therefore, that PUD is coming back for an amendment to
add an accessory use, such as swimming pools.
I think it's inappropriate (sic) and good for the day-to-day
business to empower the community development administrator to
rule on such things when there is conflict on small items like this.
I just thought I'd bring that up for discussion and see what the
other board members think.
CHAIRMAN FIALA: Boy, I certainly agree. You know, I've
been thinking the same thing. It seems like they're afraid to make any
decisions at all, especially something simple like that that should be
just, you know, common sense thing. And I don't know how we get
there, but I totally agree with you.
COMMISSIONER HALAS: Well, just so long as we don't run
into a situation that we're going to be addressing tomorrow. That's
what's happened in the past. So there's some good and bad on all
cases here. So I really think that we need to make sure that the
process is followed through so we don't run into any problems like we
have in the past.
COMMISSIONER HENNING: Well, the reason I bring it up, if
we take it out of the hands of the planning person, those gray areas,
and if there is any gray areas, go to the administrator.
COMMISSIONER HALAS: No, I think it should go back to the
Planning Commission again.
COMMISSIONER HENNING: Okay.
COMMISSIONER HALAS: Yeah, I really think so, because I --
if you -- you know, we had -- we went through the whole scenario
with the administrator making some decisions, and that's why we're
going to be meeting tomorrow, because --
MR. MUDD: Commissioner, if I --
COMMISSIONER HENN1NG: -- that was a planning director.
COMMISSIONER HALAS: Well --
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March 9 & 1 O, 2004
MR. MUDD: If I can help just a little bit, and I think it will get
you where you both want to go, okay? Why don't we, in those gray
areas where we -- if-- when we identify them, have the administrator
make a decision, okay, take that decision to the Planning Commission
COMMISSIONER HALAS: Exactly.
MR. MUDD: -- tell them why he made the decision. And then --
and if the Planning Commission has no objection, then it stands, and
then we move out with it?
COMMISSIONER HALAS: I think it's a great idea.
CHAIRMAN FIALA: Commissioner Henning?
COMMISSIONER HENNING: Well, let's try it.
MR. MUDD: Sure.
COMMISSIONER HENNING: I just --
COMMISSIONER HALAS: I know where you're going, but --
MR. MUDD: What you don't want -- right now people in
community development are a little bit shell shocked, and I'll -- I'll be
honest with you, okay, and rightfully so. And so -- because they saw
some people removed from their particular -- from their particular
jobs.
And I don't want to overstate it, but what I will say is, if there's
an area that's got some controversy to it and it's a gray area, I would
prefer that the community development's administrator make that
decision, okay, and then take that decision to the Planning
Commission to air it, to vet it in the public, to let them know what's
there, and if they don't have a problem with what -- the decision he
made, then it -- then it will stand, and then we'll move on. And this
will preclude an amendment to a PUD and those kind of things that
cost money for that particular person when it probably doesn't have to
cost them money.
CHAIRMAN FIALA: Commissioner Coyle?
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March 9 & 1 O, 2004
COMMISSIONER COYLE: How do you determine what gray
areas are? What items are you going to handle in that way? I'll tell
you, I think the intent is really good, but I'm very uneasy about
making these kinds of decisions on the fly and using terms like gray
areas, you know. I think if we're going to make a policy change like
that, we ought at least spend some time defining it a little more
clearly.
COMMISSIONER HALAS: Yep. I think we're on the right
track.
COMMISSIONER COYLE: Yeah.
COMMISSIONER HALAS: I think we're in the right direction
though.
COMMISSIONER HENNING: Joe, you could give us some
examples, can't you?
MR. SCHMITT: Yeah. This was an example, Commissioner
Henning was correct, but it's a little more in-depth than that. It was a
PUD language that specified setbacks for single-family homes and
multi-family homes.
It just so happens in this PUD, they were platted single-family,
adjoined single-family homes, town homes. There was no definitive
language in the PUD that described the side yard setbacks, so we
deferred to the LDC.
There was some ambiguity in the LDC. It depends on which way
you read the LDC whether or not you could legitimize, considering
that they could have an accessory structure, a pool.
I make these kind of decisions every day, or at least most every
day of the week, in regards to trying -- of the 150 or so SDPs that
we're reviewing at any given time, and probably 100 or so land use
items in the building at any given time.
This one, where it becomes difficult is, are you making a
decision that doesn't violate, or at least -- that I'm creating policy or
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March 9 & 1 O, 2004
that I'm creating something that is -- you're only empowered to do,
and that's where I'm careful. Because as they say, discretion lies in the
hands of the Board of County Commissioners.
In this case here, I'm offering -- they have to come back and
amend the PUD because the PUD needs to specify the language for
the accessory structures, and they recognize that. It's something they
omitted.
I was going to issue a conditional -- a building permit -- a
conditional CO and a conditional building permit, which will be then
lifted. And once the pool is constructed, or once -- once you-all -- if,
in fact, you approve the PUD amendment. That's where the issue is a
struggle because you've got to make a determination, is this something
that really requires the language to be amended or is it something you
could say, okay, make a decision and say, this is what -- how I
interpreted it, this is what I believe this product was, and then justify it
from there.
But, Commissioner Coyle, you asked the right question. There
are times when, in fact, you could end up down the other road. And,
you know, as they say -- we used to say, you bet your bars, you know,
that's kind of where we're at.
But we're into, you know, similar situations. I'll bring up the bad
word, the Bellagio, where a decision was made based on what we
thought was going to happen in a future legislation, and it never
happened. And as a result-- so that's -- it's one of those situations. As
-- this situation is a no-brainer, it really is not (sic). It's just, how do
you make that decision so you do it legally.
COMMISSIONER COYLE: And how do you decide upon
setbacks if you're going to permit a pool? What do you consider to be
an acceptable setback under that particular circumstance?
MR. SCHMITT: We defer to the LDC. The LDC for
multi-family structures does not allow -- this is a zero -- zero lot line,
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March 9 & 1 O, 2004
and I have to -- I have to defer to Susan, because she's my expert in
that.
MS. MURRAY: In this case, due to the definition in the LDC,
you would apply the single-family dwelling unit setback -- or, I'm
sorry. You would apply the multi-family dwelling unit setback. And
the way it's structured and the way the lots are laid out, you could not
fit a pool on those narrow lots if you applied that setback.
COMMISSIONER COYLE: So you have to -- you have to come
up with different setbacks?
MS. MURRAY: Exactly.
COMMISSIONER COYLE: You have to make some
judgmental decision--
MS. MURRAY: Well--
COMMISSIONER COYLE: And my point is, that no good deed
goes unpunished.
MS. MURRAY: In this case--
COMMISSIONER COYLE: Once you try to make a decision to
make somebody happy, somebody else is going to be unhappy that
you did that, and that's the problem that we always run into.
MS. MURRAY: Right. And in this case, there was an omission
on behalf of the petitioner from putting the setbacks in. And when
that happens, then the law says we revert to the provisions of the LDC.
And so the provisions of the LDC didn't work in this case
because they should have put in the correct setback when the PUD
was first established.
They have an application in to amend the PUD. It's been in for a
little while. We're on track to bring it forward to you. And as Joe
mentioned, he made the decision to issue a conditional building permit
with a conditional CO and a bond in case the revised setbacks do not
pass with the Board of County Commissioners.
I think probably what staff would appreciate, and you point out,
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March 9 & 1 O, 2004
Commissioner Coyle, the very difficulty of all the decisions we have
to make every day. I mean, we have a front counter staff that handles
probably close to 100 inquiries a day. Each one is -- has an individual
circumstance, each piece of property has individual unique
circumstances, and they have to try to apply the code to those
circumstances, so they are making those types of decisions every day
when the code is not black and white.
I think the staff would really appreciate an endorsement from
you-all to be able to feel comfortable making decisions in gray areas
of the code on their own with your support. They have my support as
their supervisor, and I know they have Joe's support as well. But as
you point out, some folks in the past have been, you know, punished
for things that people objected to, and that does have a bearing on the
way you conduct business in the future.
COMMISSIONER COYLE: It is a difficult problem. I do
sympathize with you in that. I've seen it. I know exactly what you're
talking about, and I wish -- I hope we can find a solution to it, and I'm
more than willing to do that.
But you understand the minute that you make a decision that
upsets a constituent who comes to a commissioner who then
complains about what you did, there's going to be a commissioner
who's asking questions about what you did and why you did it. MS. MURRAY: Right.
COMMISSIONER COYLE: It's a very difficult problem. And
to the extent that we can identify some of the more common of these
issues up front and then let us make a decision, a blanket decision that,
yes, you can do those kinds of things. If you can define them, I'd feel
fairly comfortable saying, okay, I'd be willing to defend your decision
with any constituents who found fault with it, but -- MR. MURRAY: I think--
COMMISSIONER COYLE: -- without having them defined --
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MS. MURRAY: It will--
COMMISSIONER COYLE: -- is the problem.
MS. MURRAY: And I agree with you. It will be really
challenging to try to define those decisions, but we can certainly try.
I think the flip side of that, that you have to consider is, that when
we make a decision or we opt not to make a de -- I don't want to say
not make a decision, because we make decisions every day, and
nobody's afraid to make a decision in my shop. I don't hire people that
are afraid to make decisions.
The problem is, if we go against what somebody is requesting,
then it's kind of the flip side of what you're saying.
COMMISSIONER COYLE: That's right.
MS. MURRAY: So it's kind of two sides of the same issue.
Either somebody doesn't like the decision that we made, or somebody
objects because we didn't make a decision in their favor. So we work
both sides of it.
COMMISSIONER COYLE: And you've never made a decision
that doesn't fall into that category.
MS. MURRAY: Correct.
COMMISSIONER COYLE: Nor have we.
CHAIRMAN FIALA: Yeah.
MR. SCHMITT: But I do appreciate Commissioner Henning's
objective analysis of this, and he's correct that there are times when
certainly it's something that we can do. It's just a matter of, in the
letter of the law, it may conflict with -- well, it will conflict with the
language in the PUD.
And I think that in those -- in those instances probably another
way to notify you through memorandum is that, here's what we've
done, because, frankly, the sad part about this situation right now, the
people who are going to be disadvantaged are the people waiting to
purchase the home, because either they will not -- they will -- they
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will have to delay the closing or they close and then they have the
pool constructed afterwards. And, you know, that's -- that's what
we're dealing with.
COMMISSIONER HENNING: Well, I appreciate the healthy
discussion. It's clearly no -- there's no silver bullet in this case, but
thank you.
CHAIRMAN FIALA: Commissioner Halas?
COMMISSIONER HALAS: Yes. I just -- I think that when it
comes to where we get into a real big gray area, I think instead of
putting the responsibility on the shoulders of one individual, I believe
that we should use the -- all sources that we have available in the
county, and I think maybe what we ought to do is address that back to
the Planning Commission. They seem to know the Land Development
Code pretty well there, or they can figure it out, and then give us
guidance what to do on a situation of this nature.
I just want to make sure that we don't get ourselves involved in
other possible litigation and that we try to do the thing right. That's
the most important thing. Let's get the thing done right.
And I trust your staff. I think they do an outstanding job, but I
think there's some areas that, you know, if you -- if it's questionable,
don't bet your bars, as you said.
CHAIRMAN FIALA: Okay.
Commissioner Coyle?
COMMISSIONER COYLE: Nothing from me.
CHAIRMAN FIALA: Commissioner Halas?
COMMISSIONER HALAS: I'm finished for the day.
CHAIRMAN FIALA: Commissioner Coletta?
COMMISSIONER COLETTA: I had a little bit of an oversight.
When we mentioned the people we were giving credit to for bringing
the FEMA to a final solution--
COMMISSIONER HALAS: Commissioner Coyle here -- I
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mean, Commissioner Coletta. CHAIRMAN FIALA: Yes.
COMMISSIONER COLETTA: No. Actually Representative
Dudley Goodlette was most instrumental from day one in being
involved with it, and also Mike Davis played a part in it, and I'd be
miffed if I didn't mention their names at this time.
MR. MUDD: Commissioner, I would also add Congressman
Goss also wrote letters --
COMMISSIONER COLETTA: You're absolutely correct.
MR. MUDD: And I think-- now I've covered-- you've covered
them all.
COMMISSIONER COLETTA: I hope we covered it all now. I
feel bad about the fact that I missed those names in the beginning.
COMMISSIONER HENNING: What about Mario Diaz-Balart?
COMMISSIONER COYLE: You covered Diaz-Balart.
MR. MUDD: He got--
COMMISSIONER COLETTA: Yes, I sure did.
MR. MUDD: You got that one in the beginning.
CHAIRMAN FIALA: Wow, that's a -- what a team effort.
That's really great. I appreciate all of that.
And I go last. I want to tell you, we had a great -- a great
meeting in Tallahassee. We did a lot of lobbying, and I think we were
effective. I hope we can see it in dollars coming back to Collier
County.
I also wanted to give my sincerest sympathies to Cheryl -- to the
Cheryl Reinertsen family, who just died on Friday, and she leaves
behind little children. She and her husband took in a lot of foster
children, and they just adopted two of them two years ago. I think
they're four and six years old right now. And so, my sincerest
sympathies to their family. And with that --
COMMISSIONER HALAS: Make a motion we adjourn.
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CHAIRMAN FIALA: No, no, no. We just want to continue the
meeting till tomorrow.
COMMISSIONER HALAS: Oh, oh, that's right.
CHAIRMAN FIALA: And with that, we'll continue the meeting
till tomorrow.
COMMISSIONER HALAS: Shoot.
There being no further business for the good of the County, the
meeting was recessed by order of the Chair at 3:53 p.m. and
reconvened on March 10, 2004, at 9:00 a.m. in REGULAR SESSION
in Building "F" of the Government Complex, East Naples, Florida,
with the following members present:
CHAIRMAN: Donna Fiala
Frank Halas
Tom Henning
Fred W. Coyle
Jim Coletta
ALSO PRESENT: Jim Mudd, County Manager; and David
Weigel, County Attorney.
CHAIRMAN FIALA: The meeting will come to order. We
never finished our meeting yesterday. This is a continuation of the
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meeting from Tuesday. And today we're going to be addressing just
one subject, and before we begin I would like to set the rules of the
road straight.
We -- I understand that staff has already talked with the
presenters on both sides and they both have their rules as far as how
much time they have and so forth. But what I'm going to do, in my
capacity, number one, is limit all the speakers to three minutes, so
everybody understands that.
And I also want to point out that this hearing isn't about whether
we like the building or don't like the building. And I'm going to ask
David to succinctly tell us exactly what we're here for today.
COMMISSIONER HALAS: Before we proceed, could I make
one announcement?
CHAIRMAN FIALA: Yes.
COMMISSIONER HALAS: I'll be leaving the dais about 1:00.
We have -- I'm on the Canvassing Board for the election committee;
and we're going to go -- be going through a recount of the election
results of the city council on Marco Island, and-- so I'll be -- that
starts at 1:00, and I'll try to get back here as soon as possible after we
complete the recount.
CHAIRMAN FIALA: Commissioner, how about this. I
understand that Commissioner Henning has a noon engagement. I do
too. I have a commitment that I -- that I promised to be at a month
ago yet. So how about if we break for lunch at noon and return at
2:00, and that way it should cover everybody's schedule.
Would that be all right with everyone?
COMMISSIONER HALAS: Fine with me.
CHAIRMAN FIALA: Okay.
COMMISSIONER HENNING: Commissioner, I don't have to
be anywhere. I'm here for the day.
CHAIRMAN FIALA:
Oh, okay. I had understood -- somebody
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told me that you were leaving at noon.
COMMISSIONER HENNING: No. I -- the concern that I have
that I relayed to our office staff was, can we rearrange our schedule so
that we can be here, all of us be here at once, and I just recommended
that somebody talk to the county attorney to make sure, as far as
legality, whether we can just, you know, pop in and out like that or,
like your suggestion is, just break for two hours.
CHAIRMAN FIALA: Yeah. I think that would be good because
we definitely want Commissioner Halas here, and he has no control
over -- over that board. He must be there by law, and we need to
break for lunch, and I had al -- now, I had already planned on being
here. But we all want to be here for this entire event so --
COMMISSIONER HALAS: Right.
CHAIRMAN FIALA: -- discussion, excuse me, not event,
discussion. And so we will break then at noon and we'll be back at
2:00 and that way we'll cover everybody's schedule.
COMMISSIONER HALAS: Thank you very much.
CHAIRMAN FIALA: Very good. And thank you for bringing
that up.
Now, can we go on to -- oh, and you wanted to say a prayer
before begin, didn't you? Let's do that. MR. MUDD: Yes, ma'am. Sure.
CHAIRMAN FIALA: Would you please stand, and then we'll --
after the prayer, we'll say the pledge.
MR. MUDD: Ladies and gentlemen, let us pray.
Our Heavenly Father, we ask your blessings on these proceedings
and all who are gathered here. We ask a special blessing on this Board
of County Commissioners, guide them in their deliberations. Grant
them the wisdom and vision to meet the trials of this day and the days
to come. Bless us now as we undertake the business of Collier County
and its citizens, that our actions will serve the greater good of all
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citizens and be acceptable in your sight. Your will be done, amen.
(The Pledge of Allegiance was recited in unison.)
MR. WHITE: Madam Chair, just as a procedural matter.
Assistant County Attorney Patrick White. I just would like to put on
the record that there were two app -- publications of legal notice. I've
reviewed each of the affidavits of publication for both of the items,
7(A) and 7(B) continued from yesterday's agenda, and I find that
they're legally sufficient, and at the break I'm going to mm them over
to our stenographer for recordkeeping.
CHAIRMAN FIALA: Good.
MR. WHITE: Thank you.
CHAIRMAN FIALA: Thank you, Patrick. And David, would
you please outline what we're doing here today, what the issue is.
MR. SCHMITT: Madam Chair, can I start first --
CHAIRMAN FIALA: Sure.
MR. SCHMITT: -- and then I'll -- so I can describe where we're
going with this and then turn it over to the county attorney --
CHAIRMAN FIALA: Okay.
MR. SCHMITT: -- for the legal description of what's going on,
if I could, please.
CHAIRMAN FIALA: Okay.
MR. SCHMITT: All right. Good morning, Commissioners, for
the record, I'm Joe Schmitt, the Administrator for community
development and environmental services. I'm joined today by Ms.
Susan Murray, who is to my left, the director of Department of Zoning
and Land Development Review. And also with us today County
Attorney David Weigel and Assistant County Attorney Patrick White.
We're here to discuss, of course, the agenda items 7(A) and 7(B).
I won't read those. They're already in the record.
But I'd like to take a few minutes to clearly define the objectives
of today's proceedings. After my brief introduction I'll be followed by
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Mr. Weigel who will take a few moments to lay the legal framework
for today's proceedings.
CHAIRMAN FIALA: May I stop you for just a moment, Joe?
MR. SCHMITT: Yes.
CHAIRMAN FIALA: I've been told, because of fire concerns
we have to keep everybody away from the doors, so if I might ask you
to just bunch up a little bit or --
MR. MUDD: And I'd also like to mention to the folks that are in
the audience that we have overflow seating in the hallway, and we
also have the HR room over in -- over in Building B that has a whole
room with television set with remote control so everybody can see it
and hear it, and then you can come back up in order to speak or
whatever you'd like to do. So for your comfort, those -- those other
amenities are available.
CHAIRMAN FIALA: And there are also a few scattered seats
around in the audience in case anybody would like to -- to --
COMMISSIONER HALAS: Buddy up.
CHAIRMAN FIALA: Yeah, buddy up. There you go. I'm
sorry, Joe, excuse me.
MR. SCHMITT: After a brief introduction -- after my
introduction, Mr. Weigel will follow by describing the legal
framework for today's proceedings, and I'll also ask that David
describe -- because we've had, since this morning, a proposal to
combine the two presentations into one presentation, so we'll need
your concurrence.
After David, Ms. Murray will present a brief synopsis of the
request for interpretation and the subsequent related appeals that were
submitted by the respective appellants.
Each appellant will then be allowed to present their case,
followed by any statements for the record by the attorneys
representing Parcel J Joint Venture, the registered property owners of
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the impacted properties. Then with your approval, we'll proceed to
the public comments and registered speakers.
And then we would like to close -- staff, we'd like close in
summarizing the proceedings, summarizing the comments that were
made, so that we can -- we can allow you to at least proceed to your
vote.
The objective of each of the appeals is to seek a reversal of the
Collier County Board of Zoning Appeals of interpretations issued by
the director of the Department of Zoning and Land Development
Review. And just to clarify for today, you are sitting as the Board of
Zoning Appeals and not the Board of County Commissioners.
Without going into great details on appeals themselves, the
underpinnings of the appeals claim that the director has incorrectly
interpreted language as specified in section 7.04.03 of the Pelican --
Pelican Bay Planned Unit Development.
The objective of the Board of County Commissioners, sitting
today, again, as the Board of Zoning Appeals, is to review the current
director's interpretation of the then existing facts and laws related to
the approval of the subject Site Development Plan and to determine if
any part of what staff did is inconsistent with the then existing Land
Development Code regulation, which include the Pelican Bay PUD
and the Growth Management Plan.
CHAIRMAN FIALA: Could you read that one more time --
COMMISSIONER HALAS: Yes.
CHAIRMAN FIALA: -- just to make sure we all understand.
MR. SCHMITT: The objective of the Board of County
Commissioners, sitting today as the Board of Zoning Appeals, is to
review the current director's interpretation of the then existing facts
and law related to the approval of the subject Site Development Plan,
which is the Site Development Plan for Waterpark Place, actually Cap
d'Antibes, and to determine if any part of what the staff did was
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inconsistent with the then existing Land Development Code, which
includes -- the Pelican Bay PUD is inclusive of the Land Development
Code -- and the Growth Management Plan.
The appeals process is not, and I stress, is not one in which the
board or staff conducts a rereview of the already approved site plan. It
is not one in which the board has the authority to revoke or amend the
site plan.
This hearing is focussed specifically on questions raised by the
applicant and the decisions rendered by the director of Zoning and
Land Development Review previously referred to as the Planning
Services director.
In sum, and I'll stress again, the approval or disapproval of the
SDP is not the issue. The issue is whether the interpretation as
rendered by the director regarding the then rules as applied during the
SDP Amendment approval process was applied consistent with the
then existing codes and regulations.
The board is required to uphold the determination of the director
unless you as a board determine that the official interpretation is not
supported by substantial competent evidence or that the interpretation
is somehow contrary to the Land Development Code.
Should you decide to reject staff's interpretation, the staff, given
your guidance and direction, would then be required to reevaluate how
the now existing SDP -- and in addition, evaluate the impact of such
rulings on previous decisions regarding the applications of the code on
projects previously approved in the PUD.
So with that, Madam Chair, I'll be followed by Mr. Weigel, the
county attorney, who will take a few moments to lay out the
framework for today's proceedings. David? MR. WEIGEL: Thank you, Joe.
Commissioners and the interested public, I'm going to try --
CHAIRMAN FIALA: David, could you speak into the
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microphone a little bit more, please.
MR. WEIGEL: Yes, I'll get it closer here.
CHAIRMAN FIALA: Thank you.
MR. WEIGEL: I'm going to be foll -- as you see, I'm following
Mr. Schmitt to talk to you about the legal considerations as you sit to
make a -- an ultimate determination or two today, and some of this
will follow right in line with what Mr. Schmitt has already told you.
The official interpretation appeal hearing process, the appeal
before you today, is quasi-judicial in nature and is subject to the
provisions of Resolution 95-376, requiring proper disclosure of any
commissioners' ex parte contacts or communications outside of the
board meeting today, as -- and additionally, the procedural rules of the
county Resolution 98-167 applying to ex parte hearings applies.
For each appeal, of which there are two today, the ultimate issues
to be determined are: A, whether the Planning Services director, now
known as the Zoning and Land Development Review director, relied
on competent substantial evidence to render the now challenged
opinion.
B, whether the written opinion rendered was consistent with the
Land Development Code, which includes, by incorporation, the
appropriate PUD ordinance, in this particular case the Pelican Bay
PUD.
Three, the appeal provisions of the LDC do not contemplate or
provide for you, sitting as the Board of Zoning Appeals, revocation of
any existing development approval. And because that is not the
subject of either appeal, the approved Site Development Plan
Amendment, known as SDPA-2001-AR-412 ought not be revoked as
a part of this hearing.
Number four, each appeal is limited to the Board of Zoning
Appeal, this board's review of the record as originally submitted by
that appellant, thus no new evidence should be considered by the
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board as part of either appeal, beyond that originally submitted by each
appellant as part of its filed written appeal.
CHAIRMAN FIALA: Will you now be monitoring that, David,
so that, in case we're -- in case new evidence is submitted, you would
then call that to our attention?
MR. WEIGEL: Absolutely.
CHAIRMAN FIALA: Okay. Thank you.
MR. WEIGEL: This is not a new trial. This is not a procedure in
which new issues and new arguments are to be sprung upon this board
or upon the staff in the response time that it has. There is an appeal
process to a written interpretation. A written interpretation was created
pursuant to the provisions of our Land Development Code where a
question can be asked, an interpretation is provided, and then there is a
provision that allows for appeal also with, in fact, time limitations as
to procedure for submittal of question or complaint or issues related to
that interpretation.
CHAIRMAN FIALA: Thank you.
MR. WEIGEL: So I repeat, this is not a new trial, and from that
standpoint, the county attorney will endeavor mightily to keep this
board within the parameters of its review process and also note to the
board when and if, to the extent that we can so note, that there are
issues or evidence purported to be brought before you which would be
inappropriate under the procedure today.
I will continue. Number five, although the appeal provisions do
contemplate public testimony, the Board of Zoning Appeals, which is
you, should only give consideration to sworn testimony that is, A,
relevant to the issue being considered, and B, those facts which could
not have been discovered by the time each appellant filed its appeal.
I repeat that.
COMMISSIONER HALAS: Yes.
MR. WEIGEL: Related to those facts which could not have been
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discovered by the time each appellant filed its appeal. I will submit
right now, apart from my outline here, that those facts probably are
very rare, about like hen's teeth in this case, because we're talking
about an academic esoteric interpretation based upon facts that were in
place over a considerable period of time and the application of our
Land Development Code and a PUD, which are not amorphous and
multi-changing on a daily basis. So that's a point well taken.
Thus, new evidence should be measured as to whether the facts
sought to be brought into the hearing could or could not have been
discovered prior to submission of each appellant's written appeal.
Number six, at the outset of the appeal process all procedural
matters should be considered and decided to the maximum extent
possible and ought to include, A, whether each appeal will be heard
separately or together as a consolidated case, B, the order of
presentation of each case, i.e., which party goes first, second, et cetera,
and when the public testimony will be considered, C, what the time
limits for testimony are to be -- are to be, and D, when rights of cross
examine -- cross-examination are to be afforded each party.
Continuing, I'll state this: Once the public hearing is closed, the
Board of Zoning Appeals, meaning this board, may approve any
motion by a simple majority vote. It does not require a super majority
vote in today's proceedings.
The board's action is to be limited to approving the director's
opinion, meaning the county director of the Land Use Zoning Office --
the director's opinion, on each separate item raised by each appellant,
or, again, the board's approval or determination should with specificity
individually modify and reject one or more of the items only when the
board finds that the director's determination of that item was not
supported by substantial competent evidence or that the interpretation
is contrary to the code.
The specificity required is that which is sufficient to allow the
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director to properly apply the challenged PUD or LDC provision.
Again, to restate, the challenge and burden and role you have is
to review the interpretation that has been written, provided, and to
determine if it is sustainable, based upon competent substantial
evidence, and that it follows the -- an interpretation and application of
the Land Development Code and the PUD. And if you should
determine that it does not, you will be charged with, as a board,
specifying how it does not and how it should be interpreted.
CHAIRMAN FIALA: Okay. Thank you, David.
MR. WEIGEL: Okay. Now I see some questions coming to the
chair or however you may wish to do. CHAIRMAN FIALA: Okay.
COMMISSIONER HALAS: As the proceedings unfold, are you
going to make sure that we follow the strict guidelines, and so that if
information is brought forth, it's either relevant to the case or
irrelevant to the case?
MR. WEIGEL: We will attempt to do that to the extent
practicable.
COMMISSIONER HALAS: Okay.
MR. WEIGEL: Again, as I've stated, it's hard to know what's
going to be said before it's said, but as it is said, it may provide an
opportunity for comment.
My hope is that this will not resemble more closely a trial in
court in the sense that we have -- in the sense that we have objections
springing from the floor and things of that nature. And if that should
occur, we will advise you how to proceed at that point in time.
But it seems to me that that is not -- not the preferred procedure
here and that we will be explaining in just a very few moments the
order of presentation. And with that order of presentation will come
the opportunity for any party of interest, appellant, stakeholder,
landowner and/or the county, to instruct you, advise you, and make
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requests of you. And again, as your attorneys, we will advise you as
to the appropriateness of the request that's made.
CHAIRMAN FIALA: Okay. Thank you.
Now, just a couple other things, Commissioners.
Number one, I think it would be more efficient if we would all
hold our questions until after the presentations and the speakers, that
way we can continue to move forward, number one.
If you have any questions that are absolutely necessary at the
time -- because we get carried away on questions. If they -- if they're
absolutely necessary at the time, then we can ask them, otherwise
we're going to hold them till the end of the presentation and the
speakers, and then we can move forward.
And now we -- we need to disclose our ex parte, starting with
you --
MR. MUDD: Commissioner, if we can -- if we could just state
what item we're going to do first, so if we can do --
CHAIRMAN FIALA: Certainly. We're going to start with --
MR. MUDD: 7(B) and that's --
CHAIRMAN FIALA: -- 7(B), as requested by Jim Carter, and
then we will move on to 7(A).
MR. MUDD: And that's ADA-2004-AR-5218, Pelican Bay
Foundation, Inc, represented by Robert D. Pritt of Roetzel and
Andress requesting an appeal of official interpretation
INTP-2003-AR-4307 relating to the approval of SDPA-2001-AR-421
of the Cap d'Antibes condominium project, Waterpark Place, within
the Pelican Bay DRI/PUD. This appeal is pursuant to Collier County
Land Development Code, LDC section 1.6.6.
CHAIRMAN FIALA: Now, we still have to declare our ex parte
before we move on, okay. Yes?
MR. WEIGEL: That's exactly right. It would be appropriate at
this time, Madam Chairman and the board, to provide your ex parte
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communications relating to this appeal. And additionally, for
purposes of procedure, we may wish to discuss and tentatively agree
upon the orders of presentation and purported time limitations of
presentation.
I note from prior -- the occasional prior hearings that we have
had of this kind, for the record, that, in fact, the stakeholder,
landowner whose property is involved, has traditionally had the
opportunity to participate essentially equally in time and ability to
address the board as the appellants, and would note that for you.
Additionally, we'll want to -- I'm going to suggest that, in fact,
after I finish with you on some of these procedural matters, that Susan
Murray, on behalf of the county, would have the opportunity to
provide kind of the frontispiece, the initial discussion of the executive
summary and information that is provided to you on the appeal, and
then afford the opportunity to the appellant, and then afford the
opportunity to the land -- stakeholder, landowner, their
representatives, and then opportunity to the county for response and
rebuttal, if need be.
Additionally, we need to determine, to the extent practicable, the
amount of time that will be allowed for presentation by the appellant
and the landowner. The executive summary discussion, which Susan
Murray will be providing, I can fairly assure you will be short, limited
to a period of, perhaps, 10 minutes or maybe less.
In regard to the appellant and the landowner representatives, I
would suggest that they have the opportunity, looking toward due
process and communication, the desires, to have 20 minutes or
something beyond 20 minutes but not less than 20 minutes.
And again, Patrick may have some additional comment for you
in that regard if you have a question. You may want to go more than
that.
And so those are the things for you to consider in regard to
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procedure so that everyone knows pretty much the ground rule as we
go forward.
COMMISSIONER HALAS: I have one question.
CHAIRMAN FIALA: Yes, Commissioner Halas.
COMMISSIONER HALAS: Do you think that we ought to have
a discussion in regards to whether we should combine both of these or
do we want to keep them separate?
MR. WEIGEL: Well, you're welcome to have that discussion. I
note that on the record--
COMMISSIONER HALAS: Because basically it covers the
same two -- the same item on both areas.
MR. WEIGEL: Well, that's -- that may be one person's opinion,
but not all persons' opinions in that regard. COMMISSIONER HALAS: Okay.
MR. WEIGEL: I do note that on the record at the board meeting
yesterday, continued over to today's meeting, that the board had
indicated, upon request, that 7(B) would be heard first, and that was
sort of the clarion call that went out.
If-- if there is a desire for the board to consolidate, I would
respectfully ask that both the appellant and the landowner
representative have opportunity to express their desire pro or con in
that regard before the board would make a decision, if there is that
desire of the board to even consider to consolidate.
CHAIRMAN FIALA: Board members, it might be -- being that
this is such a legal matter, maybe it would be better to take each one
separately just so that we address each issue.
COMMISSIONER HALAS: Might well want to have this for
open discussion so everyone has an input into this.
CHAIRMAN FIALA: Yes, right. That way then we haven't --
we haven't turned our back on anybody. If that would be okay?
Yes, sir?
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MR. VOLPE: Madam Chair, could we be heard on the --
CHAIRMAN FIALA: No, would you let us do this. Thank you.
Go ahead.
MR. MUDD: Commissioner, I need to read 7(B), which will be
the first item. What I read before was 7(A). CHAIRMAN FIALA: Oh, okay.
MR. MUDD: So I need to have a clarification -- so 7(B), this
item to be heard after 7(A) on March 10th, 2004. This item requires
that all participants be sworn in and ex parte disclosure be provided by
commission members.
It's ADA-2003-AR-4933, Michael J. Volpe, of Robins, Kaplan,
Miller, and Ciresi, LLP, representing Pelican Bay Property Owners
Association requesting an appeal to official interpretation
INTP-2003-AR-4306 relative to the approval of SDPA-2001-AR-412,
Waterpark Place at Pelican Bay.
I'm sorry for any confusion that I caused the first time I read the
wrong one.
COMMISSIONER HALAS: I would say the general consensus
of the board is that we start with 7(B) then.
CHAIRMAN FIALA: Yes.
COMMISSIONER HALAS: Okay.
CHAIRMAN FIALA: And you asked about time constraints.
And is our-- is our practice and we're-- have -- we have started to
adhere to it this year, each -- each presenter will have 20 minutes, not
each speaker, but the staff, the appellant -- appellant, and there was
some -- and the property owner. So each one will have 20 minutes to
present their-- their case.
I realize our staff might not need 20 minutes, but you have 20
minutes, so that we will be fair to everyone.
And we still have not disclosed our ex parte. So we'll start again.
Commissioner Halas?
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COMMISSIONER HALAS: Okay. I started off with December,
2002, with Ted Raia, had a meeting with him at that point in time. I
had another meeting with him in January. David and Mr. Ramiro, I
had a meeting with them, also in March of last year. Ted Raia again
in February. Joe Schmitt, Susan Murray numerous times, and had a
meeting with Aubrey Ferrero (phonetic) in December of 2003, and
had many meetings with the county attorney's staff on numerous times
in regards to this issue.
And that's -- and I also have other ex parte over here of all the
emails and of all the correspondence that I received through the mail.
CHAIRMAN FIALA: Thank you.
Commissioner Coletta?
COMMISSIONER COLETTA: Yeah, thank you.
I'm in possession of a letter dated September 29th, from Collier
County government to Mr. Volpe, and in that they cover many details
of what they were going to be covering. I'm also in possession of
email from Mr. Hardt and -- to Joe Schmitt, and have used that for a
reference in what I have, and all other emails and phone calls can be
found within my file.
CHAIRMAN FIALA: Thank you.
Commissioner Henning?
COMMISSIONER HENNING: The -- I got a pamphlet on
Pelican Bay, a detailed site plan that's in our packet, but that one's just
colored. Dr. Raia came before the board under public petition in the
past. I have a packet from Robin (sic), Kaplan, Miller, and Ciresi, and
another correspondence from that law firm. Talked to Jim Carter over
the weekend.
Let's see, an email from "pappyd" in florida, aol.com (sic),
Michael Lissack, G.H. Werner, Joe Schmitt, other staff members, a
Ms. Fogg, more correspondence from the law firm of Robin (sic),
Kaplan, Miller, and Ciresi, Roetzel Anderson (sic), Michael Volpe,
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Fred Hardt, Alice Potter, and a correspondence from the County
Attorney's office.
CHAIRMAN FIALA: Thank you.
Commissioner Coyle?
COMMISSIONER COYLE: I have spoken with Mr. Carter and
Mr. Pritt. I've met with Mr. Raia, Mr. Strain, Mr. Yovanovich. I have
also met with staff, Mr. White, Mr. Weigel, Marjorie Student from our
legal department, Joe Schmitt and Mrs. Murray, and, of course, the
county manager, Jim Mudd.
I have a file of correspondence and email that is available for
public review if anybody's interested in seeing those.
CHAIRMAN FIALA: Thank you. I have also met with County
Attorney Patrick White, David Weigel. I've met with Mark Strain,
Rich Yovanovich, Susan Murray, Marjorie Student, Joe Schmitt. I've
spoken with our county manager, Jim Mudd.
I don't know that I've met with Mr. Pritt. I don't think so. I didn't
think you'd been in my office nor Mr. Volpe nor Mr. Carter. But I do
have much correspondence here, and if you'd like, I can go through
them, but they just more or less echo what Mr. -- what Commissioner
Henning's just mentioned, and they're all here on file, plus a
correspondence from Ross Obley and -- that he hadn't mentioned, and
I've met with Mr. Raia. He came into my office. And I believe that
that's it.
I have everything written down here in my file for review. Oh,
and I got the same maps and brochures. Thank you.
Now, we need to swear in the audience. Anybody who is going
to be presenting or wanting to speak needs to be sworn in. Speakers
too.
(All speakers were duly sworn.)
MR. VOLPE: Madam Chairman, may we have the opportunity
to just comment on procedures that may assist the board before it
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makes its decision-- CHAIRMAN FIALA: Sure.
MR. VOLPE: -- Not a substantive. The problem, of course -- for
the record, my name is Michael Volpe. I'm with the law firm of
Robins, Kaplan, Miller, and Ciresi.
We are one of the appellants. There are two separate appeals.
Mr. Pritt, on behalf of the Pelican Bay Foundation, represents the
second appellant.
We've discussed and we would like for the board to hear both
appeals at the same time and consolidate the record. We would expect
though at the conclusion of the public hearing that the board will have
to make specific findings as it relates to each of the separate official
interpretations that have been rendered by your staff.
We don't want to have us present our appeal and whatever might
be presented by your staff and then have Mr. Pritt present his appeal.
So with the permission of the board, we would just consolidate the
record.
CHAIRMAN FIALA: Absolutely. That would make it so much
easier for all of us.
MR. VOLPE: The second--
CHAIRMAN FIALA: Is that okay with the five board members?
COMMISSIONER HALAS: Yes.
MR. WEIGEL: Well, Madam Chairman--
CHAIRMAN FIALA: Yes, sir.
MR. WEIGEL: Madam Chairman. I think it's appropriate for
you to have the discussion, and I appreciate Mr. Volpe having the opp
-- and should have, as he is -- the opportunity to bring this to your
attention.
In like manner, I would offer to the representative of the
landowner to also make any comment or request of you in regard to
procedure. So that, again, as we start out and get into the operational
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aspects of this hearing, that the questions of procedure have been
answered earlier rather than later and don't come up midstream here.
Again, I note -- and it's at the board's prerogative at the request to
make its determinations as to how to go forward, either consolidated
or bifurcated, separate hearings -- is that, in fact, these happen to be
scheduled the same day, but they do have a different life and genesis.
They -- they started apart and -- but they happen to have some
similarity and certainly relation to the same property of interest. But
they could very easily, of course, have been scheduled for different
days. They happened to be this day -- and on this day. And so to the
extent that there is facility and expedience that's -- that you may
determine toward your procedural determinations here, that's -- that's
an appropriate thing to consider.
And if Mr. Volpe has any further comment, I would welcome
that he make that comment. He has made his request, and I think
you're considering it on the record right now. I would also ask then
that if there is any comment from the landowner representative, that
they have the opportunity to also make any request or notation to you
at this time.
MR. VOLPE: Madam Chairman?
CHAIRMAN FIALA: Yes.
MR. VOLPE: I just -- you know, we want to get past the
procedure so we can get to the substantive part of our agenda.
In this instance, certainly you will take public input from the
stakeholder, but they're not parties to this appeal. The parties to this
appeal are the appellants, the Pelican Bay Property Owners'
Association and the Pelican Bay Foundation.
Your county attorney has suggested, in copy of his memorandum
that I received late yesterday, that we actually consolidate the
hearings.
So we're the appellants. We're the people. So we would -- we
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think it will expedite the process for you and not prejudice the
stakeholder in any way.
Of course, you're going to hear their comments. But that would
be our request, because it -- frankly, in terms of time sensitive, the
testimony is going to be repetitive. There are different issues, but --
and the other part I might comment is that there is a lot of public
interest, of course, in this appeal, but what we've tried to do in being
sensitive, the board was kind enough to set aside a full day for these
matters because we believe they are important and to give us a full and
fair opportunity to be heard.
The point there is, that we've orchestrated our presentation so that
you're not going to have 122 people speaking for three minutes. What
you're going to have is yours truly who's going to take, hopefully,
somewhere in the neighborhood of maybe 20 minutes; a spokesperson
for the Pelican Bay Property Owners' Association, Dr. Raia; one other
person; and then there may be two or three people from the public
who may be speaking.
So we don't anticipate, from our perspective, that we're going to
take a lot of time. So in that regard -- although, Madam Chairman,
you had indicated that you're going to limit us to three minutes.
Normally it's five--
CHAIRMAN FIALA: Well, not you.
MR. VOLPE: No, I understand. But normally -- I mean, what
we filled out said that we would be entitled to five minutes, and I
assume that what you're reacting to -- and I'm -- only an assumption,
that you were anticipating we were going to have lots of people and
you wanted to keep everything within a seven-hour time frame.
I'm telling you, we're not going to have that problem, and so we
would respectfully request that, subject to the chair's saying we've
overstayed our welcome, that you kind of have a little bit of flexibility
in terms of our presentation, because I have -- and so has Mr. Pritt --
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instructed everyone, short, concise and to the point.
CHAIRMAN FIALA: Yes, and I appreciate that. What my -- my
rule has been, since I started as chair, if we have 10 speakers or over,
we have three minutes. If we have under 10 speakers, then we have
five minutes. And so -- and if we have -- I will ask as we go along
how many speakers we have.
Commissioner Coyle has been waiting on deck to ask a question.
COMMISSIONER COYLE: Not so much a question but,
perhaps, an observation.
I think the terms combining or bifurcating this discussion are a
little confusing. Each petition has its own representative. And I will
presume that you and Mr. Pritt will be making independent
presentations and not combining the two of them, which is perfectly
fine.
I presume that the people who will speak on behalf of each of
your presentations, in support of your presentations, will also speak
primarily about your petition and not confuse the two.
This is going to be difficult enough for the commissioners to
separate in their minds the issues on which we must make a decision.
So I'm somewhat confused as to what the request is to
consolidate. We can't consolidate the vote. We can't consolidate your
presentations. We can't consolidate the presentations of individuals
who support your presentation.
So -- so I'd like for you to clarify for me what it is you want to
have consolidated, and then I'd like to propose a solution to the other
issue about the time.
As the chair has indicated, if you have just a few -- few speakers,
five minutes probably would be acceptable. But what happens if there
are 100 additional speakers who wish to speak that -- over which have
you no control? I think we must then apply the three-minute rule to
those speakers under those circumstances. So that would be my
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suggestion.
MR. VOLPE: Commissioner Coyle, the goal here -- and your
county attorney in a private -- not-- in a meeting with the county
attorney, and then in his memo yesterday, he indicated that it would be
one public hearing, a consolidated record, so at the end of the day
there would be -- all of what public testimony is heard by the board
today would be a part of the same record.
At the conclusion of the hearing, there are separate opinions, and
then you'll have to go through and say we reject, we modify, we agree
each one of those. So you -- a consolidated hearing, but then separate
findings on the separate appeals.
Our presentation, you'll see the number of registered speakers. I
don't think you're going to be surprised by 100 people. And the other
is, although they are separate appeals, there are -- there are some
overlaps. We're dealing with the same provisions of the Land
Development Code. We're dealing with the same provisions of the
PUD.
We've come at it a little bit differently. I've raised a couple of
questions that they've not raised in the interpretation.
So I don't think there'll be any confusion. The residents who are
here to speak or the public that's here to speak, you know, their
comments are going to be generic in nature that will address that, so
it's not going to be specifically as to, this only relates to.
What we're involved in, as your staff has indicated, we're talking
about a couple of issues, interpretation of provisions of the Land
Development Code and the PUD for Pelican Bay. That's one of the
issues. And the comments from the public will relate to those.
So I hope there would be no confusion, and their statements
would be appropriate for either appeal.
Is that responsive to your question, Commissioner Coyle?
COMMISSIONER COYLE: Yes, I think it is. I just don't -- I
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don't see the distinction from what we had originally planned.
Certainly the proceedings of this meeting will be considered in total
and will be part of an overall record.
MR. VOLPE: Let me -- let me just suggest to you what we --
what we would prefer not have is for myself, as the attorney
representing the appellant, Pelican Bay Property Owners' Association,
present my appeal on behalf of my client, close the public hearing,
have the board vote on those an&say, fine. Now we have ruled on this
question of whether cluster buildings and cluster development should
be read together, and now I turn the dais over to Mr. Pritt for his
presentation.
COMMISSIONER COYLE: Yeah.
MR. VOLPE: I mean, that's what we're trying to avoid.
COMMISSIONER COYLE: Okay. That's--
MR. VOLPE: We want to have you look at those issues which
are the same and those that may be a little different, but reserve your
findings until you've heard everything from everyone.
COMMISSIONER COYLE: Okay. So if that's the crux of the
matter, I would agree with you.
MR. VOLPE: That is the crux of the matter --
COMMISSIONER COYLE: Okay.
MR. VOLPE: -- Commissioner Coyle. We just don't -- I mean,
it just -- it will render the second part of this whole proceeding kind of
academic in certain respects.
COMMISSIONER COYLE: Okay.
MR. PRITT: May I add one thing, Madam Chair? This is Robert
Pritt, Roetzel and Andress -- rhymes with pretzel -- Roetzel and
Andress law firm here on behalf of the Pelican Bay Foundation.
Yes, and the other practical aspect of all of this is that we have at
least one, and maybe a couple, of witnesses who would speak on both
matters. It just seems to be very inefficient to have them speak on one
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-- on the one petition and sit down, and then have to get up again and
speak on the other petition. So we don't want to be forced to do that.
So having a common record would take care of that, and we're fine
with that. And would look forward to it.
COMMISSIONER COYLE: Would you specify when you have
a witness who's going to do that?
MR. PRITT: Yes, we could do that, sure.
COMMISSIONER HALAS: Let's do that.
CHAIRMAN FIALA: Commissioner Henning?
COMMISSIONER HENNING: Not to twist this issue into a
pretzel -- the -- this item was advertised as two separate things on the
agenda and there are two separate things that we're addressing. And I
agree, there's similarity and things that will be repetitive, but like I
said, I'm here all day. To me, I'd rather hear the items separate.
MR. VOLPE: Commissioner Henning, I'd just analogize it to the
situation where you've got a rezone petition and a conditional use
petition at the same time relating to the same piece of property. You
hold one public hearing on both and then you make separate findings
as it relates to the rezone and the conditional use. Really no different
than the procedures than would normally be followed.
CHAIRMAN FIALA: Okay. Any further comments on this?
Yes, sir.
MR. CRITCHLOW: Madam Chairman and members of the
board, my name is Richard Critchlow. I'm here on behalf of Parcel J,
the affected property owner. We have concerns about any effort on
the part of both of the appellants to combine the record. The primary
reason for that is that we believe that the appeal which was filed in this
case by the Pelican Bay Property Owners' Association is untimely and
a nullity. The rules specifically provide under 1.6.6 that the appeal
shall be filed, it's mandatory, within 30 days of the Letter of
Interpretation.
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The rules further provide that any evidence or all of the issues to
be raised by the appeal shall be set forth in the Notice of Appeal
within 30 days. The rule further provides that and any pertinent
evidence that is to be considered as of the appeal shall be filed within
30 days--
CHAIRMAN FIALA: Yes, sir. But we're just talking about
what order.
MR. CRITCHLOW: And what I -- the point of this is that there's
been some suggestion that by the combination of the two records that
are going to be presented before this panel, that there could be an end
run around our concern that the entirety of the record, which was --
which was submitted to this board well beyond the time period
provided for filing a Notice of Appeal will somehow be given
credibility when it otherwise is absolutely inadmissible by reason of a
clear reading of the rules.
This record, on behalf of the Pelican Bay Property Owners'
Association, was not filed until almost 90 days after the Letter of
Interpretation.
CHAIRMAN FIALA: Yes, sir. But -- we have -- you're not
addressing what we're trying -- I'd like to hear from our county
manager, please.
MR. CRITCHLOW: .Right. As far as --
CHAIRMAN FIALA: County attorney, please.
MR. CRITCHLOW: Okay. If I may say on the procedure, as far
as having one vote at the end of the day, that makes sense.
My concern is limited to the procedural issue of somehow
combining the records of both of the appellants, which will cure the
deficiency which we believe exists in the Pelican Bay Property
Owners' Association, and we not believe that that would be
appropriate. That's my procedural concern and my due process
concern.
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CHAIRMAN FIALA: Commissioner Coyle?
COMMISSIONER COYLE: It's my understanding based upon
Mr. Volpe's description at the end that they will have independent
presentations and that we will then, after both presentations are made,
we will then have independent votes on each of the petitions.
The term combining the record is still confusing, I think. But if
we have independent presentations, we're not going to be combining
them into one petition, nor will we be combining them into one
petition if we have two different votes on those petitions. So it
appears to me from a legal standpoint, and the county manager can
correct -- or county attorney --
MR. MUDD: County Attorney.
COMMISSIONER COYLE: -- can correct me here, that your
concerns would certainly be taken into consideration with the separate
votes on the petitions. And that way if you wish to appeal our vote for
some reason, such as the untimely submittal of the petition, then you'd
still be entitled to do.
MR. CRITCHLOW: With that understanding, we would agree
with you, Commissioner.
COMMISSIONER COYLE: And that's my understanding of
your -- your description of what you wanted to do; is that correct?
MR. VOLPE: Yes, sir.
COMMISSIONER COYLE: That you don't want us to lump
them together into a single vote. You want us to have separate votes
and you want to present your cases independently, but there will be
some overlap because the issues overlap to some degree -- MR. VOLPE: Right.
COMMISSIONER COYLE: -- but they will still be independent
petitions.
MR. VOLPE: Yeah, they don't lose that character, that's correct,
because there are, Commissioner Coyle, some issues that we have
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raised on our -- in our request that were not raised by -- and vice versa.
COMMISSIONER COYLE: Okay.
CHAIRMAN FIALA: Okay, fine.
Commissioner Coletta?
COMMISSIONER COLETTA: Yes. I'm still waiting to hear
from our county attorney, Mr. Weigel.
MR. WEIGEL: I'd rather you talk with the County Manager on
some of these.
But be that as it may, I can deflect slightly, and I'm going to have
Assistant County Attorney Patrick White comment in regard to Mr.
Volpe's comments of going forward, but also the property owners'
representative's comments about timing and admissibility of the -- of
the material that has come forward. Patrick?
MR. WHITE: Assistant County Attorney Patrick White.
Commissioners, the property owners have raised a question as to
whether the appeal submitted by Mr. Volpe was, quote, timely. And
that has, from our office's perspective at least, two components to it
that need to be considered.
One is the technical compliance with the rule. The rule in 1.6.6
that you've been provided copies of from our office's memorandum,
specifies that there's 30 days after the appeal is essentially rendered --
or, excuse me, that the interpretation's rendered, that there's a 30-day
window to file all of the written materials.
And it is factually correct and technically correct for the property
owners' attorneys to say that the time frame by which all of the
materials that are in your appeal package were submitted to you was
beyond that 30-day window.
There was essentially an initial letter, Notice of Appeal, if you
want to call it that, and some preliminary documents provided within
the 30 days, and that was supplemented at the 90-day period of time.
So technically, the bulk of the materials provided to you fall outside
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the 30-day window.
The second part of the analysis, I think, has to do with how much
prejudice would be suffered by those property owners because of the
untimeliness of the appeal by Mr. Volpe. That is something that I'm
going to leave to you to determine as to whether you're going to
ultimately hear his appeal or not. I think that the legal issues still
remain. The objection has been raised by the property owner and will
be part of this record when it's considered by a reviewing court.
So there's a balancing that has to occur between technical
compliance with the rule and whether there's any actual prejudice that
is suffered by the property owner because of the delay.
And some of the things I think that are relevant in finding the
balance here would be how much time was afforded to the property
owner to respond to that late submittal. In other words, were they
given enough time to actually understand what the issues were that
were raised by the appeal and be able to respond to them appropriately
today.
I want to caution you that I don't want to create a gray zone here
because of the more recent submittals, and including articles that may
attempt to come in today, where I think that there's no doubt that
there's a technical noncompliance with the 30-day window, certainly
there's true. But more so, I think that it's a question that we now start
to look to that new evidence rule that Mr. Weigel mentioned earlier
that there's a strong concern on our part that there might be prejudice
suffered by the property owners as a result of these late submittals,
along with the fact that they're technically not complying with
bringing the materials for your review within 30 days. And I think
that adequately should at least get you to the point of a discussion.
CHAIRMAN FIALA: Go ahead.
COMMISSIONER COYLE: I'm reluctant to prolong this, but
this raises a new issue. Are we the ones who are supposed to make a
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ruling on the timeliness of this submittal? Or are -- is that something
that has to be done outside these proceedings in a court of law?
MR. WHITE: Well, I believe that you can certainly make that
ruling. And let's assume for the sake of argument that you rule that
there is a technical default of the -- of the time requirement, but that
you don't believe that there was sufficient prejudice or any prejudice
suffered by the property owner, and that you want to hear it
regardless. There's still a remedy afforded to the property owner in
any subsequent litigation so long as their objection has been put on the
record and they've been fully able to explain to you why it is they
think that it's inappropriate.
And I'm not sure that Mr. Critchlow has fully done that yet or
not. He's only, at least initially, advised you of his concern as the
property owners' representative that there is this technical
noncompliance and that he believes that it should not move forward.
Although we don't want to turn these into courtlike proceedings,
they are quasi-judicial. At times -- and at times there are going to be
legal issues that ultimately you, the Board of Zoning Appeals, have to
act to decide on some of these issues.
COMMISSIONER COYLE: I presume your advice then to us is
to hear the appeals and then make any decisions concerning the
timeliness of an appeal at the point in time when we are to vote on that
issue? Is that essentially what you're saying?
MR. WEIGEL: No, it's not quite that essential. What it is, is you
do have the decision, responsibility to determine upon what you may
determine to be a valid question as to whether evidence received
beyond the -- when we say technical time frame, we're talking about
the time frame that exists by our own law, the LDC, for these kinds of
appeals.
And so you're faced with the, once again, difficult question as to
the admissibility for purposes, call it the broader purpose of hearing
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information, that -- that has not met the time frame requirement, which
an argument could be made, is a substantive or jurisdictional
requirement for you to hear the material that has -- that was not
tendered within the -- within the time frame provided by law.
If you determine -- as Patrick has indicated, if you determine that
in the broader picture an objection has been noted for the record and
you wish to hear it anyway and then make a decision on that either at
the end of your contemplating process today or not -- not make a
decision relating to, call it the -- not considering this. It's hard not to
consider information once you've heard it. CHAIRMAN FIALA: Right.
COMMISSIONER COYLE: Let me ask another question and
hopefully bring this to a conclusion. MR. WEIGEL: Okay.
COMMISSIONER COYLE: During the course of these
proceedings, can you alert us to any information which was presented
outside the required time frames so that we at least understand that
there might be some dispute about the consideration of that
information?
MR. WEIGEL: That's a very good question. I think that may
assist the process, and we will do so, and I would expect that the
parties of interest here, when I say party, I mean the people that are
here of interest, meaning the landowner representative as well -- as
well as the appellants, will take advantage of that opportunity to
indicate what they think are improprieties of the record that's being
placed before you.
MR. VOLPE: Madam Chairman?
COMMISSIONER HALAS: That was the question that I asked
originally. Are you going to alert us to what's relevant or irrelevant to
this (sic) proceedings?
MR. WEIGEL: Well, as you can tell, the alert bell went off
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rather early here.
COMMISSIONER HALAS: Well, we've got -- we've got to get
the ground rules established here. MR. WEIGEL: Right.
COMMISSIONER HALAS: And we need your guidance.
We're not judges by the court of law, so we need some guidance as
much as possible from our legal staff here also. MR. WEIGEL: Yes, sir.
MR. VOLPE: Madam Chairman, we are trying to determine in
terms of a consolidated record -- Mr. Critchlow's raised a new
argument, raised an issue about timeliness of the appeal.
I mean, I think he's reserved that right. We would ask that we
could proceed with the hearing. And I would just simply, for the
record, state that the Notice of Appeal was timely filed from the
response to our request for an interpretation. It was filed and served
within 30 days --
CHAIRMAN FIALA: Okay. Mr. Volpe --
MR. VOLPE: -- period.
CHAIRMAN FIALA: -- what we're going to do is we're going to
hear these two subjects together, B and A. We'll hear from you first
for 20 minutes, then we'll hear from Mr. Pritt for 20 minutes. We'll
hear from staff, and we'll hear from the -- from the landowner. Each
one has 20 minutes. If-- if there are more than 10 speakers, they will
be limited to three minutes.
How many speakers do we have?
MS. FILSON: For Waterpark, Madam Chairman, we have four,
for the foundation I have six, for Pelican Bay in general, I have 16.
CHAIRMAN FIALA: Okay. So--
MS. FILSON: I think some of those speakers include the
attorneys.
CHAIRMAN FIALA: I see. So shall we -- Commissioners, I'm
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tending to think that we'll give the first 10 speakers -- and we'll let the
petitioners decide which 10 speakers they are -- to have five minutes
each rather than limit everybody to three minutes, because I'm sure
they have some things in mind.
After that everybody will be limited to three minutes, and we're
going -- I'm going to be rather firm in keeping this on course and
directed. We've discussed this for an hour now. We're done discussing
it. And this is how we will move forward. Okay.
MR. CRITCHLOW: Madam Chair, may I have one procedure?
CHAIRMAN FIALA: Sir, we're done, we're done.
MR. CRITCHLOW: It deals with the amount of time that we
have.
CHAIRMAN FIALA: No, sir, we're done.
Okay. So let's move forward then. We have everybody sworn
in, we, have our ex parte's declared, and we will begin. At 10:30 we
will break for our stenographers for 10 minutes, then we will be back.
Thank you.
Mr. Volpe?
MR. WEIGEL: No, Ms. Murray.
CHAIRMAN FIALA: Oh, okay. Very good.
MS. MURRAY: Good morning. Susan Murray. I'm the director
of the Department of Zoning and Land Development Review.
Madam Chair, I'm probably going to need 20 minutes, but not all
at once, so I'm going to try to keep my first overview to 10, and then I
do need to follow up after the last speaker with respect to the
appellants and the property owners.
CHAIRMAN FIALA: Sure. However you want your 20
minutes.
MS. MURRAY: Thank you very much.
Item #7B
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ADA-2003-AR-4933, MICHAEL J. VOLPE OF ROBINS, KAPLAN,
MILLER AND CIRESI, LLP, REPRESENTING PELICAN BAY
PROPERTY OWNERS ASSOCIATION, REQUESTING AN
APPEAL TO OFFICIAL INTERPRETATION INTP-2003-AR-4306
RELATIVE TO THE APPROVAL OF SDPA-2001-AR-412,
WATERPARK PIJACF, AT PEIJCAN BAY- DISMISSED
This is ADA-2003-AR-4933, a request from an appeal from an
official interpretation which was filed on behalf of the Pelican Bay
Property Owners' Association. I'm going to make a brief introductory
statement. I'm going to call your attention to some exhibits that I
extracted from your executive summary, that will assist you
throughout this hearing. I'm going to give you a brief summary of
important dates and a brief overview of the request for interpretation.
I'm going to try to summarize as much as I possibly can the
interpretation. It is lengthy, and I will try keep it brief, knowing that I
will able to follow up later with some more detailed facts after we hear
from the appellants.
The interpretation filed relevant -- was filed relevant to the
approval of an original Site Development Plan within the Pelican Bay
PUD. The name of that Site Development Plan is Waterpark Place. It
was approved in 1990. And then there was a subsequent amendment
to that plan, which is -- was approved by staff in 2001.
As you know, Site Development Plans are approved
administratively. There is no public hearing required. And your staff
has the authority to approve those as submitted.
I'm going to go ahead and introduce you to the exhibits so you
can use them throughout your hearing and just give you a brief
overview of their content so that you can refer back to them when the
speakers are speaking to you.
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Okay. The first exhibit labeled Page 1 shows the original Site
Development Plan approved in 1990, known as Waterpark Place, and
let me just point out some important features here.
This is colored for your ease of use. As you'll note, the original
Site Development Plan was comprised of one parcel, and that is
outlined in blue.
Within this parcel of land, the original Site Development Plan
was approved for four structures, and they are highlighted in yellow.
Underneath those four structures I have just initialed the names
of the structures because only two are developed at this time. The first
one is the St. Pierre. Over here there's a small SP underneath. You're
going to hear these names throughout the hearing, I'm sure. The
second is the St. Laurent. And I've labeled the two buildings here as
F1 and F2, meaning future buildings. Again, this was the original Site
Development Plan.
The structures in green are parking structures. The highlights in
orange just give you an idea of the access, site circulation.
The second page is actually the amended Site Development Plan.
Again, the outline of the parcel in blue. The outlines in pink indicate
that the original parcel was fractionalized into tracts, and those pink
boundaries more or less represent the tracts that it was fractionalized
in. And I say that because tracts C and D, which are right in this area
are combined, so the line doesn't show up on this drawing.
Let me go ahead and orient you again. Again, the existing St.
Pierre with the parking structure, the existing St. Laurent, with their
parking structure, and the proposed Cap d'Antibes.
Another piece of information you're going to need to know about
is the fact that the Waterpark Place at Pelican Bay, again, as I
mentioned, was originally platted as a -- one tract, and the Site
Development Plan that came in as the original Site Development Plan
came in utilizing that entire tract with four different buildings, but it
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later was replatted. And these pink lines indicate the tract boundaries
of the replat. And the tracts are all labeled on there. It's pretty
self-explanatory.
And then this is just the same as the original one I showed you
with respect to the amended site plan. It shows the amended site plan
with your tract boundaries and the tracts labeled. This is almost a
duplicate of what I showed you.
The appeal filed, both appeals really, but the one I'm talking --
speaking to right now, claims that the director incorrectly interpreted
section 7.04.03 of the Pelican Bay PUD, and that's another item that's
going to be discussed quite a bit. I have that as an exhibit. It was
placed in your packet. 7.04.03 is basically the minimum yard
requirements for this group of housing. It's known as Group 4 in the
Pelican Bay PUD.
Specifically, the appeal states that the measurement of the
minimum yards and the point at which these measurements were
taken, meaning the parcel, overall parcel, versus the tract boundaries,
the appellant claims that because the parcel was replatted that the
minimum yard should be measured from the tract boundaries and not
the parcel boundaries. So your tract boundaries were the internal pink
lines I showed you and your parcel boundary was the external blue
line.
It's the director's opinion that subsection 7.04.03 of the Pelican
Bay PUD specifically states that minimum yards may be measured
from tract or development parcel lines and that the measurement taken
from the parcel lines by previous staff was appropriate and lawful.
Again, when I follow up, I'm going to expand on that a little bit,
after the appellants speak. And I am diving into basically the heart of
the appeal. I just wanted to give you a little bit of overview in that
there was five or six questions asked with this first appeal, so there are
responses to each one, and I'm going to just briefly touch on each one.
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In the second request, the appellant asked whether or not the
provisions of section 7.04.03(C) of the Pelican Bay PUD are limited to
the distance between principal structures as provided in 7.04.03(B), or
does the administrative authority also allow staff to vary the minimum
side yard setbacks as provided in that section with respect to adjoining
properties not depicted on the site plan.
The word distances in that provision is intended to apply to either
or both of the requirements set forth in Paragraphs A and B,
depending on the facts that exist. And under the facts that existed, or
that were presented by the referenced Site Development Plan
amendment and Site Development Plan, both the minimum yard
requirements and the building separation distances may be reduced so
long as the further condition of Paragraph C was met.
Paragraph C stated that in the case of clustered buildings with a
common architectural theme, these distances, meaning the distances
between structures and the distance from tract or development parcel
lines, provided the clustered buildings had a common architectural
theme, the distances could be less, and that determination would be
made during the Site Development Plan process. And that is stated in
Item C, which says, that provided a Site Development Plan is
approved in accordance with section 2.05 of the PUD.
There is a second part to the second request, and it asks that if the
provisions of section 7.04.03 of the PUD, again, which are the
minimum yard requirements of the -- of this group of housing, and the
provisions of section 2.6.27 of the Land Development Code -- 2.6.27
are the clustering provisions which are outlined in our Land
Development Code, and I have included those in your packet as well
-- should they be read together -- this is the question being asked again
-- should they be read together to require a petitioner who requests an
exception variance or an amendment to the development standards set
forth in 7.04, those being the yard requirements, to use the conditional
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March 9 & 10, 2004
use process to satisfy the development standards set forth in 7 -- or
criteria set forth later in that section.
So what they are basically asking is, if you wish to vary or
deviate from the development standards set forth in the PUD, should
you be required to do that through the conditional use process?
Then is asked, if not, if you're not required to do that, what are
the objective standards and criteria to be used by the director to
determine whether a petitioner-- excuse me -- is entitled to an
exception variance and/or amendment to the development standards
set forth in that section for clustered buildings with a common
architectural theme.
And then lastly is asked, does anyone agree by the decision of the
director granting or denying an exception or variance or amendment to
the development standards have the right to take an appeal from this
decision.
It was my opinion as the director that the provisions of section
7.04.03 of the Pelican Bay PUD and section 2.6.27 of the LDC, that
being the clustering provisions, were never intended to be applied
together, thus the petitioner is not required to submit a Site
Development Plan with a conditional use petition in order to reduce
the minimum yard requirements pursuant to section 7.04.03(C) of the
PUD.
At this point I also need to make a correction on the record,
because the interpretation that was rendered had some misinformation
in that, and unfortunately we didn't catch that until after you had
received the appeal.
And we had stated that, in response to this question, that the
Group 4 areas or Group 4 uses of the PUD only permitted
multi-family and did not permit single-family, and that is incorrect.
They permit both single-family and multi-family.
MR. WHITE: That's as to the PUD?
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March 9 & 1 O, 2004
MS. MURRAY: That is as to the PUD.
MR. WHITE: And as to the SDP, though, I think there's a
distinction. I think Ms. Murray would agree with that. MS. MURRAY: Yes.
So I wanted to put that -- make that correction on the record.
That is going to become important. That does not change our opinion
or my opinion by any means, but I did want to go ahead and put that
on the record.
In response to the second question for clust -- it's my opinion that
for clustered opinions (sic) with a common architectural theme, so
long as the Site Development Plan was approved in accordance with
section 2.05 of the PUD, then it was approved appropriately. And it is
my opinion that it was.
The third question asked was whether or not, under the rules of
construction in the LDC, section 6.1.1, are the provisions of section
2.05 and 7.04.03 of the Pelican Bay PUD and section 2.75 of the LDC
-- 2.75 refers to the variance provisions of the LDC -- are to be read in
para materia, which means be read together, meaning you would have
to apply all those sections together, and therefore, do the more
restrictive provisions of section 2.7.5 of the LDC control the
petitioner's petition to amend the SDP for Waterpark Place in order to
reduce the minimum yard and distance structures for Group 4 parcels
within the Pelican Bay PUD.
My understanding is that question was asking whether or not you
needed to apply for a variance to reduce the minimum yard and
building separation requirements within the PUD. And my opinion is
that under the prior and existing more specific provisions of section
7.04.03(C) of the PUD, for reduction of distances imposed for
minimum yards, a property owner is not required to obtain a variance
from the minimum yard and distance between structure standards
pursuant to the variance section of the LDC, section 2.75, so long as
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March 9 & 1 O, 2004
the requir-- so long as the requirement of being a case where there is a
clustered buildings with common architectural theme is met.
Section 7.04.03 of the PUD clearly states that the minimum yard
and distance between structure standards for clustered buildings,
which are listed in paragraphs A and B of the same section, may be
less subject to site plan approval in accordance with 2.05 of the PUD.
And it is my professional opinion that this procedure was
incorporated in the Pelican Bay PUD in order to allow flexibility in
determining the appropriate minimum yard and distance requirements
between structures based on a site plan that is approved in accordance
with the requirements contained in that section.
But that is a little bit different than what you normally are
accustomed to when somebody is requesting a variance or deviation
from the yard standards in that it was specifically spelled out as to the
procedure to be followed within the PUD, and that did not include
requesting a variance or a conditional use.
A variance would only be required under 2.75 if the building did
not qualify as a clustered building or have a common architectural
theme or otherwise did not meet the distance requirements of 7.04.03,
paragraphs A and B of the PUD.
None of these facts were considered to exist in the case of this
referenced SDP Amendment, so therefore it's my opinion they
followed the correct proceed -- the staff followed the correct
procedure when they reviewed the site plan.
And lastly, request four, the question was asked as to whether or
not the Pelican Bay service division is required to review and approve
a Site Development Plan and must there be formal action by the board
of the Pelican Bay services division or does the administrator of the
Pelican Bay services division have the authority to approve the Site
Development Plan on behalf of the board.
My opinion is that the Collier County Land Development Code
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March 9 & 10, 2004
does not authorize an approval by the Pelican Bay services division of
an SDP, a portion of an SDP, or SDP -- or an SDP Amendment.
Instead, under division-- LDC Division 3.3 and various
subsections, the approval authority is afforded to the planning or
Development Services director, or now the zoning director in this
case, or under section 6.1.5 to their delegate, meaning my staff.
And this is the person that renders the official approval of the
SDP or SDP Amendment. In other words, what it's saying is the code
does not require that the Pelican Bay services division or the
administrator of the services division approve the site plan before -- as
a condition of approval in order for the county to approve the site
plan.
The county has the administrative authority to approve the site
plan without the -- without waiting for the approval of the
administrator.
I believe that summarizes the appeal filed by Mr. Volpe. I would
give the same, only a briefer presentatio.n for Mr. Pritt's if desired at
that time.
And at this time I suppose you'd probably want to turn it over to
Mr. Volpe.
CHAIRMAN FIALA: Yes. Thank you.
MR. VOLPE: Madam Chairman, may I request, since it's 20
after, maybe you take your break now -- CHAIRMAN FIALA: Okay.
MR. VOLPE:
CHAIRMAN
MR. VOLPE:
CHAIRMAN
(A recess was
MR. MUDD:
seats and we'll get this proceeding started again.
-- and then we won't interrupt the presentation.
FIALA: We can do that.
Thank you.
FIALA: Very good. Thank you. Ten minutes.
taken.)
Ladies and gentlemen, if you'd please take your
Again, could you
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March 9 & 10, 2004
please take your seats. Thank you very much. Madam Chair, have you a hot mike.
CHAIRMAN FIALA: Thank you very much. Now, I
understand, Susan, you have to give your-- another 10 minutes with
regard to the other side, is that it, the other issue?
MS. MURRAY: Yes. For the record, Susan Murray. It won't
take 10 minutes on this one, but as you know there was two appeals
filed, and I've been asked to give a summary of the interpretation for
the second appeal, which was ADA-2004 --
MR. WHITE: Madam-- Madam Chair. If we're going to
proceed to consider, quote, evidence on what essentially is item 7(A),
then, I think, procedurally we have the same need for ex parte
disclosures and swearing of witnesses as to that matter.
CHAIRMAN FIALA: Oh, I thought when we did that we did
that for both items.
COMMISSIONER COLETTA: No, just one.
MR. WHITE: My understanding is we were doing it for 7(B).
CHAIRMAN FIALA: Very good. I'm glad you're keeping us
straight, Patrick.
Okay. Commissioners, it's ex parte for-- this is now 7(A), right?
Okay, for 7(A).
Commissioner Halas, we'll begin with you.
COMMISSIONER HALAS: Start off, December, 2002, I had a
meeting with Ted Raia, and then I had meetings with Ted Raia back in
June of 2003; David Ramir -- David Weigel and other attorneys in
March of 2003; again, with Ted Raia, 2004, which was February; and
numerous meetings with the county attorney, staff, and numerous
meetings with Joe Schmitt. Also met with Aubrey Ferrero, December,
2003, and got numerous correspondence, both by mail and email on
this topic, and all of my ex parte is over here, and it's open for public
-- for the public to look at.
Page 225
March 9 & 10, 2004
CHAIRMAN FIALA: Commissioner Coletta?
COMMISSIONER COLETTA: Very similar to Commissioner
Coyle's. I've also received numerous communications. I've had,
recently, a request for a phone call from Mr. Robert Raia -- is that how
you pronounce it?
COMMISSIONER HALAS: Ted.
CHAIRMAN FIALA: Ted.
COMMISSIONER COLETTA: But any case, I've had a request
for a phone call, which I tried to return two times just in the past day.
I've talked to staff on numerous occasions on this; received some
emails, some correspondence from within the county; and I have
everything here within my file for anyone that wishes to see it.
CHAIRMAN FIALA: Very good. I have met with staff, with
the county attorneys, and I don't know if I need to mention staff
members, but let me say staff right now, they're sitting here in the
audience. I've met with the landowner representatives, Rich
Yovanovich, Mark Strain, and others.
I've spoken with Mr. Raia. I don't know if that's how you
pronounce your name, but close enough, right? At least you know
who I am -- or who you are.
And I've also received much correspondence, and I've tried to
read most of it, and -- including from Roetzel and Andress and from
Mr. Raia and from Ross Obley, and I've gotten newspaper articles also
sent to me, and I've even received a telephone call. Thank you.
COMMISSIONER COYLE: My disclosures for this item are the
same as the one before. There's no distinction between the two, and so
the disclosures I read into the record at the beginning are still
applicable for both items.
CHAIRMAN FIALA: Commissioner Henning?
COMMISSIONER HENNING: Mine is the same as
Commissioner Coyle's -- I read mine into the record, ex parte
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communication -- as the last. Let's see. This is not a petition. This is
an interpretation.
MR. MUDD: Appeal.
CHAIRMAN FIALA: Thank you. And now we need to swear
in all of the audience members who will be participating and speaking.
(All speakers were duly sworn.)
CHAIRMAN FIALA: Thank you.
MS. MURRAY: Thank you, Madam Chair. Again, this is
ADA-2004-AR-5218, the Pelican Bay Foundation represented by
Robert D. Pritt of Roetzel and Andress, requesting an appeal to
official interpretation INTP-2003-AR-4307.
In this appeal and request for interpretation, Madam Chair, the --
in the official interpretation the applicant asked the following: Does
the Site Development Plan Amendment qualify for a reduction from
the minimum yard requirements under section 7.04.03 of the PUD as a
development consisting of clustered buildings with a common
architectural theme.
It is the director's opinion that subsection 7.04.03(A) and (B) of
the Pelican Bay PUD specifically provide the criteria for determining
the dimensions of the minimum yards and standards for determining
the distance between structures for principal and accessory uses.
Section 7 of the Pelican Bay PUD allows the development of
multi-family residential buildings as permitted residential use in
Group 4.
From my review of then applicable facts derived from the
county's records for this Site Development Plan Amendment, the
application for Site Development Plan Amendment would qualify for
a reduction from the minimum yard requirements for construction of
multi-family buildings under the express terms of the conditions stated
in subsection 7.04.03(C).
As a little background, I just want to go ahead and point to the
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March 9 & 1 O, 2004
amended Site Development Plan that I placed on the visualizer to give
you an idea of what -- or at least show you what yards were reduced
as a result of the approval of the Site Development Plan.
During the application process, the applicant requested a
reduction. And let me just orient you again. We're looking at the
amended site plan, this is the one approved in 2001, where you see the
cap d'Antibes structures, as of yet unbuilt, and they requested an
amendment from -- or excuse me, a reduction from the minimum yard
requirement along the northerly boundary of Tract D from the
requirement of 100 feet to 50 feet, and that's this dimension right here
on your plan.
The other request was to reduce the required distance from the
Cap d'Antibes structure to the St. Laurent structure. And the
requirement was for a 200-foot distance, and they requested a
reduction to 150 feet, and that's this dimension right here.
Again, this individual asked five questions, two of which were
responded to. Questions two, three, and five were not responded to.
It was staffs opinions that the requests made were not consistent
with the LDC Division 1.6 as to form of the request because they did
not set forth a set of existing or proposed facts applicable to the text of
the then approved or now proposed regulations to allow an
interpretation to be rendered. So those questions were not answered.
They are not addressed as part of this appeal, at least from the staffs
perspective.
The fourth and final question, the applicant asked, may the
county staff determine whether or not the Site Development Plan
Amendment qualifies as a, quote, common architectural theme project
without conducting an architectural review under section 2.8 of the
Collier County Land Development Code.
That was the question asked, and the opinion rendered was that
section 2.8.2 of the Collier County Land Development Code expressly
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March 9 & 1 O, 2004
limits the applicability of division 2.8, which are the architectural and
site design guideline standards, to commercial zoning districts,
commercial and non-residential components of PUD districts.
It's really important that 2.8 has no applicability here whatsoever.
It is strictly related to commercial or non-residential projects as
defined in that section.
And that concludes the summary of this appeal.
I did, real quickly, just want to stick up on the visualizer section
7.04.03 of the Pelican Bay PUD. It is in your packet. It's just
important because it's going to be a reference, and I just want -- that
you recognize.
These are -- again, section 7.04.03. This is the page taken from
the Pelican Bay PUD. These are the yard and building separation
requirements that are required to be applied for approval of a Site
Development Plan for projects within this group category, which is
Group 4.
I won't go over them, but I'll just point out A, B and C. A
describes the required separation or distance from tract or
development parcel lines, and the regulation is under there. B
describes the required distance between structures. And then C is the
provision that ties into A and B and says that in the case of clustered
buildings with a common architectural theme, the distances, these
distances, A and B, may be less provided that a site plan is approved
in accordance with section 2.05. And those -- that gets to the heart of
a lot of the discussion there, so I want to make -- make you aware of
that. Thank you.
CHAIRMAN FIALA: Thank you. Thank you, Susan.
Mr. Volpe. Oh, I'm sorry, I thought --
MR. SCHMITT: No, it's Mr. Volpe, but I'm just--
CHAIRMAN FIALA: Oh.
MR. SCHMITT: -- going to get the presentation, so go ahead.
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March 9 & 10, 2004
MR. VOLPE: Okay. Madam Chairman, members of the board.
For the record my name is Michael Volpe. I'm with the law firm of
Robins, Kaplan, Miller, and Ciresi.
I'm here this morning representing the Pelican Bay Property
Owners' Association in connection with the appeal which the Pelican
Bay Property Owners' Association filed on September -- I'm sorry --
on October 27th from the opinion rendered by Ms. Murray, which was
rendered on September 29th.
We are, as you know, appealing Ms. Murray, as your Planning
Services director, interpretation of various provisions of the Land
Development Code and also of the Pelican Bay Planned -- Pelican
Bay PUD.
I won't -- all of you have had the opportunity to review the
submittals and you've talked with your staff, so for the record, I'm not
going to go into a statement of the facts. I simply would refer and ask
you to look at executive summary, which was presented by your staff,
which I think concisely sets forth the factual background of where we
are in this process.
Just a couple of procedural footnotes. I would like to make sure
that for the record there is entered into the record a copy of your
resolution number 98-167, which simply sets forth your procedures for
how you are to conduct quasi-judicial proceedings.
The other is -- and Mr. White, on behalf of the staff, has entered
the public notice that was published in the Naples Daily News with
respect to this appeal.
One other item, and that would be that we have designated, the
Pelican Bay Property Owners' Association, have designated Dr. Raia
as the spokesperson for the Pelican Bay Property Owners' Association,
the petitioner. I'm the attorney, and Dr. Raia would like and
respectfully request 10 minutes for his presentation in lieu of the
presentation or other speakers presenting to the board.
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On behalf of the Pelican Bay Property Owners' Association, we
did request that various provisions of the Pelican Bay PUD and the
LDC -- we questioned the interpretation of your staff in interpreting
the procedures set forth in those documents as it relates to the
amendment of the original Site Development Plan for Waterpark Place
at Pelican Bay.
What Ms. Murray had on -- and I had asked her if she would put
back on the visualizer, Ms. Murray -- I think it would be helpful for an
understanding of the issues that are raised on this appeal. That one's fine, Mr. Schmitt.
The first issue was whether the provisions of the Pelican Bay
PUD, and in particular those provisions that Ms. Murray just brought
to your attention that establish minimum yard requirements for the
development within Group 4, are to be measured from the separate
platted tracts on the replat of parcel B or from the original plat of
Parcel B.
Now, on that issue, what is outlined in blue was the original plat
of parcel B, and that was what was presented and available to your
staff in 1990 when the staff originally approved the Site Development
Plan for Waterpark Place at Pelican Bay.
Fractionalized tracts on the southern portion of that property,
what was developed was St. Pierre. St. Pierre condominium, it was
developed around 1994, I believe, and 106 units, 22 stories, single
tower, declaration of condominium recorded, and in that declaration of
condominium, metes and bounds description of that portion of parcel
B that was being deeded to the unit owners who were buying within
St. Pierre.
After that portion of parcel B was developed, the developer came
in and asked to replat parcel B and to create four separate tracts: A,
which is on the south side, B, a little bit to the north, C and D.
On parcel B the developer proceeded to develop St. Laurent. St.
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Laurent, 22-story, 106 unit condominium, developed, sold to end
users. And in this instance, the -- a declaration of condominium for St.
Laurent has that tract B description as the property, which is submitted
to the condominium form of ownership.
The developer came in in 2000 and asked for an amendment to
the original Site Development Plan, and on the application itself,
which is all a part of what your staff has presented to you, of the legal
descriptions are C and D. Those are the two remaining undeveloped
tracts on the replat of Pelican Bay.
And in this instance said, we'd like to amend this Site
Development Plan, and what we'd like to do is we feel that we want
to, some adjustments in the minimum yard requirements, and staff told
them that what they needed to do in order to accomplish that was they
needed to show that there was a common architectural theme, which
would then allow, under 7.03, which was the section she put up, to
make certain reductions, provided further, though, that this
amendment to the Site Development Plan was approved under 2.05 of
the Pelican Bay PUD.
2.05 simply says -- is a site development procedure, interestingly
enough, in the Pelican Bay PUD. There's a site development
procedure as well in your LDC. The staff is using both now. They're
saying we're going to follow the procedures over here in your Land
Development Code and we're also going to look to the Pelican Bay
PUD because it has them, and you've got to comply with both. They
read them together as it relates to the approval process for the
amendment to this Site Development Plan.
2.05, which is a part of the record, the materials that are
submitted, essentially says you can go ahead and approve this Site
Development Plan if there are materials that are presented to the staff
which will demonstrate that this Site Development Plan is in harmony
with the PUD and it is not injurious to the neighborhood, adjoining
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March 9 & 10, 2004
properties, or it's not detrimental to the general welfare of the
community.
So staff, in the process, went through and concluded that those --
they satisfied the LDC they satisfied the PUD, there was a common
architectural theme, and as Ms. Murray pointed out, they reduced the
side yards.
What they did, though, was, rather than measuring the side yards
from the separately-platted tracts, they went back to the original blue
outline of what was parcel B, which no longer exists because it was a
replat. And when you replat, the original plat goes away.
So it's our contention, as it relates to this first point, that what
your staff should have done, that it incorrectly interpreted how we
measure minimum yard requirements. How we measure, what are the
points?
The points were, we should be measuring minimum yard
requirements are not from the original development parcel, which is
what Ms. Murray's opinion is, that is what is outlined in blue. We say
that it should be measured from the pink lines, and those are tract C
and D, and that the staff doesn't have the authority under this
interpretation to completely ignore and reduce to zero the minimum
yard requirements between tract C and tract D.
There's absolutely -- in her opinion, in all due respect, there's
nothing that she can point to in the Land Development Code or in the
Pelican Bay PUD that says, well, this is how we're going to --
development tract, development parcel, for purposes of the PUD,
mean the original property that was a part of the original Site
Development Plan.
And we think that it was an error for her to have used those
boundary lines for measuring minimum yard requirements. We think
that was error, and we submit that you will find that there is no basis
in the LDC for that interpretation.
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There are definitions within the LDC that talk about lots, parcels,
tracts, and all that. And if-- your staff will tell you that the definitions,
that measuring is off of platted tracts, and these are platted tracts. And
to measure from the original parcel boundaries just because that was
used the first time, we believe, was in error.
The next most important issue on this subject is this: When this
petition -- when are this developer came in in 2000 and wanted to
amend the Site Development Plan, it didn't own all of the property that
was covered by the Site Development Plan. It only -- it had sold off
St. Pierre, it had sold off St. Laurent. All it owned was C and D. That
was the undeveloped portion.
So now you've got the developer coming in and saying, I want to
amend this Site Development Plan, but he doesn't join the owners of
tract A and B. And this amendment is going to affect those people.
They don't join in the amendment process, they're not given any notice
of it.
And we submit that under your LDC, unity of ownership is
required in order for an amendment to occur. And again, these two
parcels were sold off to third parties and -- in this instance without
them joining in, without them consenting.
We feel that it was flawed under your LDC. The interpretation of
unity of ownership would require all of the people. And especially if
you go back and adopt Ms. Murray's interpretation where she says,
well, we're using the original boundary lines of parcel B, then you
ought to get everybody who has an ownership interest in parcel B as a
part of this amendment process.
Your staff concluded that this was a substantial change and
required the developer and his representatives to go through the site
development process just like it was a first time. That's what your
LDC says.
It says if your developer/director says it's substantial, then you go
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back to the beginning. You look like it's just a brand new process
going back to day one. So there are two points there, the
measurements, and also the fact that the application itself was
defective even under her interpretation.
The second issue has to do with the issue of clustering. The --
the basis upon which the staff administratively proceeded to reduce
the minimum yard requirements set forth in the Pelican Bay PUD was
that we found that there is a -- these are cluster buildings, common
architectural theme, and further, we find that this amendment is in
harmony with the Pelican Bay PUD and it's not injurious to the
neighborhood or the adjoining property owners. That's how they came
to the conclusion to reduce the side yards.
On the issue of clustering, you all know that there's a provision in
the Pelican Bay PUD. It was -- Pelican Bay was adopted, the
ordinance, 1978. Build out, 28 to 34 years. The LDC didn't come into
existence until, I think, 1989, when I was sitting there.
And at that time, it was recognized, both in the Pelican Bay PUD
and in the LDC, that things are going to change over time. We want
to make sure that what changes there are in development we're
cognizant of them and we apply the most recent standards.
So we've asserted that your staff incorrectly, did not read the
provisions of the LDC about cluster development with the provisions
of the PUD for Pelican Bay that talk about clustering of buildings.
I'm not a land planner, but the definitional section of your LDC
and in the definitional section of the City of Naples it talks about the
concept of clustering. Why do you cluster buildings? What's the
purpose? Why do you have this innovative planning technique.
Well, the reason why you do it is you want to provide open
space, create open space. And the definition says that. That's what
cluster is all about.
So in this instance, what was the purpose of clustering these two
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buildings? It certainly wasn't to increase open space. You know,
we've reduced side yards, we've reduced minimum yard requirements,
no more open space. Essentially, it was a business decision, which I
don't fault, by the developer, who said, well, if I make a bigger
building and I position it a little different way, I'm going to provide
bigger units and better vistas for my purchasers. But that's not what
cluster development or cluster building is all about.
I submit to you that these provisions have to be read together.
They have to be read together. If your staff picks and chooses and
says, well, we're going to read the site development procedures in the
LDC and the site development procedures in the Pelican Bay PUD
together, we're going to make them comply with both, that's the way
it's got to be, we submit that they should, as well, read cluster
provisions together and that it was an incorrect interpretation on their
part to conclude that they shouldn't be read together.
Ms. Murray corrected herself after I filed the appeal, and said,
whoops, well, I said that Group 4 housing only applies to
multi-family. That's not right. It isn't. It's not right.
Group 4 allows single-family residences. Indeed, the original
plan for Waterpark Place at Pelican Bay included a single-family
residence. It was one of the original -- if you look at it, it's there as
part of the record. So she was wrong. She based her interpretation on
that part of it. She said, they don't apply because Group 4 doesn't
allow single-family residences. Simply not true. She acknowledged
that.
The other part of the LDC is that, not only does the LDC apply to
single-family residences, but it also expressly applies to PUDs.
There's no question about it. You look in the applicability section, it
says it applies to PUDs.
So even if it didn't apply to single-family -- only applies to
single-family residences, it does apply to PUDs.
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We believe that that was an error in her interpretation as it relates
to clustering. You simply read them together, 78, 89, City of Naples,
the model code had all these provisions about clustering, and we
believe that they should be interpreted together.
Now, the concept of clustering. Now we have to talk about
common architectural theme. And your standard of review, as your
legal counsel has aptly tried to advise is, well, you're going to be
limited to everything that was before the staff. But if we've got some
other public testimony, no, you really shouldn't consider that.
Well, I submit that there was no evidence before your staff.
Evidence is defined as proof through a proceeding like we're having
today. That's what evidence is. I submit there is no evidence in this
record.
You've got three letters from three architects engaged by the
developer, submitted to your staff, that say, in our opinion there is a
common architectural theme. That's not evidence. It's a letter. It is
not evidence.
That was the basis upon which your staff concluded there was a
common architectural theme. We submit that that was not evidence.
You'll see on the visualizer later this issue about common
architectural theme. And we do have an expert from the University of
Florida who is an architect, who would offer public testimony on the
issue of common architectural theme.
The next issue is this issue about, it is in harmony and not
injurious to the adjoining property owners, the neighborhood, or
detriment for the general welfare. What's the basis for the staffs
conclusion that it is in harmony and not injurious to the adjoining
property owners, the neighborhood, and the like? The only thing --
and we've looked at the record, which is what, even if you're confined
to the record--
MR. WHITE: Madam Chair, I'd -- we've been asked to let you
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know if we thought there were an issue that were not part of was it
was that had been originally presented as an appeal, and we've
forborne until now, but I do not recall that as being any part of the
original request for interpretation nor is it anything that I think arises
except through Mr. Volpe's supplement that was filed, as we've
indicated, untimely, in the sense that it was beyond the 30-day
window.
So regrettably we're, I guess, going to have to have a discussion
about it at this point in time and try to advise you appropriately. But
at this point I'm concerned that we're straying into an issue that wasn't
previously raised in any way.
CHAIRMAN FIALA: Thank you.
COMMISSIONER HALAS: Okay. How far back do we need to
go then where this discussion started taking place?
MR. WHITE: Well, you're essentially at a place where there's
two sources from which Mr. Volpe's arguments can come. One of
them certainly is his original interpretation, and he'll stand before you
today and tell you that, as to the supplement that was provided --
assuming it's not going to be included as part of the, quote,
consideration of the BZA today -- he's not arguing from that.
He is arguing before you today essentially on the response -- as a
response to the interpretation that was issued. And I don't recall it
being within the scope of the original interpretation.
So I have to caution the board that we're getting into that gray
area and we may need to have some discussion about it.
CHAIRMAN FIALA: Okay. So if it's nothing that we have to
vote on, nothing that pertains to the issue -- we want to make sure that
we stay legally within our bounds. Okay, Mr. Volpe?
MR. VOLPE: And all I'm suggesting is, I'm commenting on
what Ms. Murray's comments were about section 2.05. That was
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applied. That's what the staff used.
In my request for an official interpretation and in her response,
we talked about harmony, we talked about injurious to the
neighborhood, surrounding property owner. That's a part of the PUD.
My comments are simply, your record, what you have before
you, I'm submitting to you that there is nothing in the record that
addresses that issue to support that conclusion, period. There's
nothing.
And I will comment -- it's a part of the public record, not a part of
my submittal necessarily. The only time that issue is addressed, there
is a February 6th, 2003, memo from Mr. Bellows. It's the only piece
of public -- in your file that will we have found, and Mr. Bellows says,
harmony is what -- in the professional opinion of the planner who's
assigned to this project. Mr. Nino was the planner in this project, so it
was his professional opinion, this amendment, with this new building
MR. WHITE: Madam Chair, it's at that point where I believe
we're starting to offend, perhaps, one of the other rules that we'd
suggest to you about, quote, new evidence, because remember, this is
not a review of the staff's --
COMMISSIONER HALAS: So it's irrelevant.
MR. WHITE: -- approval of the SDP or not.
CHAIRMAN FIALA: And not only that, but we have now
finished with your 20 minutes, so --
MR. VOLPE: I have -- Madam Chairman, please, I mean this is
-- if you would just accord me another five minutes. I've tried to be
brief, concise, and the point. I'll finish very promptly.
CHAIRMAN FIALA: I'm going to give you the five minutes --
MR. VOLPE: Thank you.
CHAIRMAN FIALA: -- but you've asked for an extra five
minutes for Mr. Raia. I don't know where I'm going to take these five
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minutes from. But would you get to the point and avoid getting into
any areas that don't pertain to this item, please.
MR. VOLPE: I will submit for the record the signatures of as
many as 1,900 residents of Pelican Bay who, in their opinion, do not
believe that this proposed amendment is in harmony and that it's not
injurious to the surrounding neighborhoods. (Applause.)
CHAIRMAN FIALA: But, again, you're getting onto the other
subject; is that correct?
MR. VOLPE: On that subject.
MR. WHITE: That's fine.
MR. VOLPE: The only other issue, Madam Chairman, that I
wanted to comment. There are other issues that were raised. Ms.
Murray has addressed them. I have submitted them to you. I think it's
proper for you to consider my arguments that are a part of what I
submitted because written materials could be submitted to you any
day up to seven days prior to. That's my argument on behalf of the
Pelican Bay Property Owners' Association.
The standard of review that you have, and it's set forth in your
Land Development Code, is staft~s determination, their interpretation,
has to be supported by competent, substantial evidence, and it can't be
contrary to the Growth Management Plan, Land Development Code.
I submit that there was no evidence before the staff.
And secondly, that in terms of interpretations, that they were
improper interpretations as it relates to who was the proper applicant
on the amendment to the site plan. They should have joined all the
property owner that own parcel B.
Cluster development, cluster building, we believe that that was
an incorrect interpretation, that the two, LDC and PUD; do not apply
and should not be read together. We believe that they should and that
the developer should have gone through the procedures under the
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Land Development Code. The more restrictive apply. That's what the
interpretations under your LDC said.
The relief that we request is that what you do is you require this P
-- this Site Development Plan, this amendment to the Site
Development Plan, to go back to your staff and be rereviewed based
upon what is a proper interpretation of the Land Development Code.
This is an interpretation by you, you're the Board of County
Commissioners sitting as the Board of Zoning Appeals, but this is
your law. It's your interpretation, it's not your staffs interpretation.
And we think that we have demonstrated and will demonstrate that it
was -- their interpretation was in error, single-family PUD as it relates
to clustering, and the concept.
Appreciate your indulgence. In terms of our presentation, Dr.
Raia is going to present 10 minutes on behalf of the Pelican Bay
Property Owners' Association, and most of the other speakers -- there
may be just a few -- have actually waived their right to speak, so we
won't be taking up too much more of your time.
CHAIRMAN FIALA: Okay. Commissioner Henning had a --
MR. VOLPE: Madam Chairman, I just have -- I had one other
question, I'm sorry, because it wasn't answered before, and that is, to
what extent will we be allowed to ask your staff questions?
Mr. Weigel, at the outset, had indicated about -- I hate to -- I'm a
lawyer, but I hate to -- cross-examination. But would we be accorded
the privilege of asking questions of the staff?. Because we're the
appellant, you're the appellee. You're -- you're the person who's, you
know -- so I guess I just need to know from Mr. Weigel and from the
Chair whether we will be able to -- and this will be for the foundation
as well.
CHAIRMAN FIALA: Mr. Weigel?
MR. WEIGEL: Yes. I'm happy to respond to that question. I
think that they can be afforded limited -- and I stress the word limited
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-- form of examination or cross-examination, and, in fact, all parties
will have that to the extent that the Chair so allows.
But I think that it that may be appropriate -- may well be
appropriate for -- upon request, to have limited examination or
cross-examination.
Another point I'd like to raise to the board is that with the
submittal of, purportedly, a packet of hundreds of signatures of a
petition of some sort, I note for the record that that is not part of the
review process before you today. And, in fact, if it is to be recognized
at all, it's just to be recognized as an unswom submittal to which you
have had no opportunity to review in the normal process of your
quasi-judicial review here.
So if it shall -- shall be affixed to the materials that become
record today, I would hope that the board would go on the record with
the answer to a few questions that I'll ask you right now.
Have you, in fact, seen and read the petition?
CHAIRMAN FIALA: No.
MR. WEIGEL: Any of you?
COMMISSIONER COLETTA: No.
MR. WEIGEL: Okay. Was it a part of the packet that came up
to you for today's hearing?
CHAIRMAN FIALA: No.
MR. WEIGEL: Okay. And do you have any knowledge that the
statements therein have been sworn to by the persons making the --
purportedly making the statements in those documents?
CHAIRMAN FIALA: No.
COMMISSIONER HALAS: No.
COMMISSIONER COYLE: No.
MR. WEIGEL: Okay. I thank you for that direction.
CHAIRMAN FIALA: Okay. Commissioner Henning, you had a
question?
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COMMISSIONER HENNING: I guess just the procedure.
We're only hearing the issue around the planning director's
interpretation?
MR. WEIGEL: That is correct.
COMMISSIONER HENNING: Okay.
MR. WEIGEL: You are not, as Patrick has indicated a couple
times -- Mr. Schmitt and Ms. Murray as well -- you are not reviewing
the actual process of approval of the amended SDP occurring several
years ago.
You are reviewing the appropriateness of the interpretation
provided pursuant to questions raised, and the -- upon the application
to the facts that were there for the director, zoning director to utilize.
And I would take issue that there are no facts until today. I think
that the facts are limited to that which is created before today and that
today's discussion is based upon those facts and those law that existed
at a point in time prior to today.
CHAIRMAN FIALA: Okay.
MR. VOLPE: I didn't say there weren't any facts, I said there
was no evidence.
MR. WEIGEL: That's true.
MR. VOLPE: Isn't that correct?
MR. WEIGEL: That's right.
CHAIRMAN FIALA: Okay.
Commissioner Halas?
COMMISSIONER HALAS: I would hope that our legal staff
would jump in immediately when there's something that's not relevant
to the hearings so that we stay on track and don't get into this gray
area so that it clouds what we have to do here today.
MR. WEIGEL: Yes.
CHAIRMAN FIALA: Thank you.
Okay. Next speaker?
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MR. VOLPE: May I ask Ms. Murray a question now, or would it
-- I just have one question to ask her. That would be it right now.
CHAIRMAN FIALA: Okay.
MR. VOLPE: I just have to --
CHAIRMAN FIALA: Okay. As long as our county attorney
said this is in order.
MR. WHITE: I would think so long as it was solely pertaining to
what she's already put into today's record-- CHAIRMAN FIALA: Okay.
MR. WHITE: -- or as part of her interpretation.
MR. VOLPE: It will be so limited, Mr. White.
Ms. Murray, on the question of your interpretation with respect to
clustering, in your interpretation you said the opinion that these should
not be read together, that is the clustering of the LDC and the
clustering of the Pelican Bay PUD, the above opinion is based on the
fact that the LDC section for clustering is limited in its application to
the clustering of single-family dwellings.
Furthermore, in the subject development request and underlying
Site Development Plan, only multi-family buildings are on the plan.
Two questions. You said that that was an error, that that's not
true. Is that -- is that -- the clustering provisions of the LDC, do they
apply to single-family?
MS. MURRAY: Let me make sure I understand your question,
Mr. Volpe. You're asking me if the clustering provisions of the LDC
apply to single-family; is that correct?
MR. VOLPE: That's correct.
MS. MURRAY: Yes, they do.
MR. VOLPE: Do they apply to multi-family?
MS. MURRAY: Yes, they do.
MR. VOLPE: They do? Was that -- your interpretation was that
they did not apply to multi-family; is that correct?
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MS. MURRAY: You're asking me if my interpretation said --
MR. VOLPE: When you rendered your opinion before today --
MS. MURRAY: Well, can I ask the question so I understand
what your question is?
MR. VOLPE: Sorry. Yes, ma'am.
MS. MURRAY: Thank you. You're asking me if section 2.6.27,
regarding cluster development of the LDC -- MR. VOLPE: Right.
MS. MURRAY: -- applies to multi-family?
MR. VOLPE: Correct.
MS. MURRAY: Okay. And I said yes. Okay?
MR. VOLPE: My next question was, was that your opinion at
the time you responded to my request for an official interpretation?
MS. MURRAY: Yes, it was.
VOLPE: Okay. And do the LDC provisions apply, with
clustering, also apply to PUDs?
MURRAY: You're asking if the LDC provisions for--
VOLPE: For clustering.
MURRAY: -- for clustering apply also to PUDs; is that
MR.
respect to
MS.
MR.
MS.
correct?
MR. VOLPE: Right. So the opinion above is based on the fact
that the LDC section with clustering is limited in its application to the
clustering of single-family dwellings; is that a correct statement?
MS. MURRAY: According to the provisions of the code under
the clustering section, there are zoning districts which are enumerated
in the clustering section in terms of applicability that include
multi-family as a permitted use.
MR. VOLPE: So I've just asked if that's a correct statement.
MS. MURRAY: So, correct, the clustering provisions would
apply to multi-family.
MR. VOLPE: No. I'm just -- I'm not trying to -- it just -- it says,
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March 9 & 1 O, 2004
MR. VOLPE:
the only question I
CHAIRMAN
Next speaker.
MR. VOLPE:
the opinion above is based on the fact that clustering provisions of the
LDC are limited to -- in its application to the clustering of
single-family residences; is that true?
MS. MURRAY: That's not true.
Yeah. And then -- the only other -- I think that's
wanted to ask you. Thank you.
FIALA: Thank you.
Thank you, Madam Chairman. And I --
presumably if there are any questions, and they would have been
asked by now, but I'll sit down.
CHAIRMAN FIALA: Yes, we're going to ask questions later.
Okay.
Dr. Ted Raia. Are you going to allow him 10
MR. VOLPE:
MS. FILSON:
minutes?
CHAIRMAN FIALA: Yes.
We'll allow Mr. Raia 10 minutes.
MS. FILSON: He will be followed by Susan Tate.
CHAIRMAN FIALA: Now these are all with 7(B), right, these
speakers? Okay.
MR. WEIGEL: Yes.
MR. RAIA: Honorable Commissioners, my name is Ted Raia--
CHAIRMAN FIALA: Mr. Raia, would you pull the microphone
closer to you, please. Well, just pull it down. There you go.
MR. WHITE: Madam Chair, I think there's a procedural issue,
and I don't know that this board's made a determination about this yet
or not, and I apologize to Mr. Raia.
But is public testimony going to occur after the presentations?
Because I'm not sure if Mr. Raia's testifying under the notion of public
testimony or as part of the time pertaining to this appellant? And I'm
just trying to get that clarified --
CHAIRMAN FIALA: Oh, I see.
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March 9 & 1 O, 2004
MR. WHITE: -- so that--
CHAIRMAN FIALA: Yes. You know, I had personally thought
we would be doing first 7(B) and then 7(A), and then Mr. Raia, and
then the speakers, is what I had thought we would be doing. Is that
okay?
Maybe Mr. Raia can come up, and he will then start the public
speakers, but he's going to have -- on the public speakers side, he's
going to have 10 minutes. I'm glad you brought that to my attention.
Yes, Mr. Pritt.
MR. MUDD: Commissioner, I want to -- I've been pretty quiet
over here, and I just need one point of explanation from the County
Attorney's Office, and I want to make sure.
On 2 March, Mr. Raia provided a packet to me to be put into the
public record, okay, and I'm not too sure it was part of the appeal or
the -- or the information that was provided for the appeal, but he
handed me this packet in the morning as I came in.
And it basically says, I'm requesting that the following attached
material will be made part of the official records of the Camp (sic)
d'Antibes hearing before the Zoning Board of Appeals scheduled for
March 10th.
My submittal containing information is referenced to the
approval of the site, the submittal containing the opinion of Professor
Susan Tate of the University of Florida in Gainesville in reference to
the approval of the site plan.
I just want to know from the county attorney's side of the house
what I do with this particular request.
MR. WEIGEL: Okay. Jim, as I told you on that day -- and I'm
glad you brought it up for the record today -- is that it was submitted
to you, and you are not a submitter to the Board of County
Commissioners on behalf of any public person or on behalf of the
appellant or the stakeholder, and that you were to hold on to that.
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March 9 & 1 O, 2004
And that document has not been submitted to the board through
you, you are so indicating, and as I so advised you. And, in fact, that
document, to my knowledge, has not been presented to the Board of
County Commissioners prior to this meeting and is not subject to be
presented to the Commissioners in the course of this meeting.
MR. RAIA: May I make a correction? On March 2nd I did give
a copy to each Commissioner that very morning.
CHAIRMAN FIALA: Of the same -- of the same item?
MR. RAIA: Exact -- exactly. They had the exact copy of all the
information. So they are in receipt of it.
Now, I don't know what the determination is going to be, but I
want to correct that.
MR. WEIGEL: Okay. Well, I appreciate the correction.
COMMISSIONER HALAS: I found this -- I found this on my
desk on the date that it came in, March the 2nd.
MR. WEIGEL: Okay. But the fact is, as --
COMMISSIONER HALAS: So is it relevant or irrelevant?
MR. WEIGEL: Irrelevant.
COMMISSIONER HALAS: Okay.
MR. WEIGEL: And my communication with Mr. Mudd was for
him not to distribute. So if it came in some other way --
CHAIRMAN FIALA: No, Mr. Raia came in 'cause he was in my
office that day, and he handed me a copy and he asked if he could give
copies to the rest of the members, and I said yes. So if there's any
fault to be had for allowing distribution, it's mine.
MR. WEIGEL: I'm not using the word fault, I'm just saying
irrelevant.
CHAIRMAN FIALA: Oh, that's all right.
MR. WEIGEL: Irrelevant, that's all we need to describe it.
MR. VOLPE: Madam Chairman, I just need to say that in
accordance with your public notice, we had the absolute right to
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submit materials to the board not later than seven days prior to the
hearing. That was submitted to the board in accordance with the
advertisement that appeared in the Naples Daily News seven days
prior to.
So I respectfully disagree with Mr. Weigel's statement that this
material is irrelevant. We could submit any materials to you under
your resolution governing quasi-judicial proceedings in the advertised
public hearing -- at least it was seven days.
You've said my petitions are not acceptable. I'll accept that
because they weren't seven days before, I submitted them. But
materials submitted prior to seven days before are part of the public
record.
CHAIRMAN FIALA: You have a question, Commissioner
Coyle?
COMMISSIONER COYLE: No, it's been answered.
CHAIRMAN FIALA: Okay. Very good.
So, Mr. Weigel?
MR. WEIGEL: Okay. What I'm saying is that to the extent that
new evidence -- using the word evidence, not facts -- is attempting to
being -- be submitted, that's inappropriate. Because although this is a
quasi-judicial decision-making proceeding, and we're operating
generally under the quasi-judicial procedures that we have by
resolution 98-167, the specific will control here and there are specific
rules for the board's review of an appeal to an interpretation.
And so, therefore, new evidence submitted at any point prior to
the hearing, whether it's within seven days, but after 30 days under the
specific rule for an appeal, has problems in being submitted to you,
and yet, I know that you've had significant information which you've
communicated rather fully in your ex parte communications, in the
meantime, and we're working through these things obviously the best
we can.
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March 9 & 1 O, 2004
The concept is to avoid prehearing prejudice of you so that you,
as Commissioners, sitting collectively, can hear the matter today,
sitting collectively, and come to your decision today, sitting
collectively, and it's very problematic if evidence that is not before --
competent and substantial evidence that is not before the zoning
director is being submitted to you sidebar.
MR. VOLPE: Just a clarification, Madam Chairman, that's not
evidence. It's a -- your county manager said you've got some
materials that were submitted. Is it relevant? It's relevant. I mean,
how you're going to treat it -- it's not evidence.
We don't -- Dr. Raia is going to offer public testimony which will
be evidence. That's not evidence. It's just a submittal. You can look
at it, you can read it, however you treat it your county attorney will
tell you, but it's not irrelevant.
CHAIRMAN FIALA: Well, David, we've all received it, and so
is there -- is there a point to this discussion that you want to make?
MR. WEIGEL: Well, the point--
CHAIRMAN FIALA: I'm sorry -- and please, folks.
MR. WEIGEL: The point to the discussion came from the
question from Mr. Mudd about further submittal at this point in time
of something that was given to him with an instruction from Dr. Raia
to submit on the record today, and so that's how we entered this.
And as I told Jim before and on the record tell him again, it's not
-- it's not appropriate for him to submit it to you or on behalf of
anyone else. So it's as simple as that in regard to that document.
CHAIRMAN FIALA: Oh, okay. But-- and we already have it
and Mr. Mudd did not submit it to us. We got it from Mr. Raia.
Now, Mr. Raia, I hate to do this to you because you're already
standing there, but we're going to follow the order that we had -- we
had begun with, and that will be Mr. Pritt for 20 minutes.
Yes, Commissioner?
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COMMISSIONER COYLE: Can I make an observation for the
benefit of the attorney when we get to Mr. Raia's presentation? There
are elements contained in Mr. Raia's submittal to us that clearly are
not part of the petition or the appeal.
COMMISSIONER HALAS: Yeah.
COMMISSIONER COYLE: And I think it is important that we
recognize that and anticipate it so that we can instruct Mr. Raia not to
venture into those areas.
There are portions of the information he has provided us that are
almost identical in nature to what -- what Mr. Volpe has stated in his
appeal. But there are areas that have nothing to do with this appeal,
and I think Mr. Raia should be -- should be advised of that at the point
in time when that presentation is made.
CHAIRMAN FIALA: Thank you.
MR. WEIGEL: I appreciate that. We'll endeavor to do that.
CHAIRMAN FIALA: Mr. Pritt?
MR. PRITT: Thank you, Madam Chair, members of the board.
My name is Robert Pritt with the law firm of Roetzel and Andress.
We represent the Pelican Bay Foundation.
I would like to save some time for rebuttal and closing. I'm here
also with my partner, John Blakely. If you would raise your hand,
John. John would like to do some cross-examination, reasonable
cross-examination, and perhaps, assist in the closing.
Mark Hewling, also from our office, is here. Raise your hand,
Mark. He's working with us on this matter.
The -- a lot of what I would want to say has been said by Mr.
Volpe, and I endorse his comments and his analysis to you. Some of
it I will have to go over in my own way. Maybe it will be a little bit
repetitive, but we are, again, trying to economize as much as possible.
I would like to indicate that we also had a submittal, sent a
submittal to this board on March 2nd in accordance with your
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resolution that allows for that, and in accordance with notice of this
hearing that we received.
As a matter of fact, one of our submittals is a copy of the notice
of this hearing. And we respectfully request and urge the board to
accept those submittals because we think that is part of your record.
I would like to point out that as far as we can tell the -- for lack of
a term, so-called record that you have with the agenda item numbers
consisting of some 200 plus pages, we never found until we got it off
the Internet. It was never given to us. The county attorney's opinion
was dated yesterday, and it was never given to us either.
So we ask that the board be flexible in both ways for both the
applicants and the staff and consider all of the evidence here in front
of you.
I would like to indicate to you also that we have David Trecker,
who's in the front row. He's the chair of the board of the foundation.
And then I'd like -- and he'll be one of the speakers.
We did try to limit the number of speakers. I'm a little concerned
about this thing about the petition. One of the purposes for the
petition was to make it unnecessary for a whole lot of people, more
people even, to come down and personally testify. However, be that
as it may, you do know that there are many, many signatures on
petitions that have been at least proffered to this board.
This is an appeal of an interpretation of the director of the
Department of Zoning and Land Development Review dated
November 24th, 2003, by a legal counsel -- and received, rather, by
legal counsel on December 8th, 2003.
In summary, our client disagrees with the interpretations of staff
that the Site Development Plan at Waterpark Place in Pelican Bay,
that you've already heard of, can be amended without notice to
property owners from two buildings that are 200 feet apart and 100
feet from the property line to one building with two towers -- one
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gigantic building with two towers that are only 50 feet from the other
property line.
I'd like to point out there -- it's still on the visualizer -- there is
nothing that shows the St. Raphael, which is on the left-hand side, on
the north side, there's -- in this application. So there was little or no
consideration that was given to the effect on the St. Raphael. And
you'll hear more about that from the speakers.
The applicant is the Pelican Bay Foundation, Inc. The
foundation is the master homeowners' association for Pelican Bay. It
includes over 13,000 members, many of whom are owners of property
in the same development area, that's Waterpark Place, and adjacent to
the property to be developed, and that's the St. Pierre, the St. Laurent,
and, of course, on the other side is the St. Raphael, as I said.
Some of the foundation members own property immediately to
the north, again, the St. Raphael, and also to the east.
Additionally, the foundation owns an easement on the berm of
the property -- of the property in question -- owns the berm
immediately adjacent to the property in fee simple, owns the
boardwalk property and the Sandpiper parking lot property, all within
300 feet of the Cap d'Antibes property. And we've alleged that in the
Notice of Appeal. In the supplemental notice, we just put in copies of
the deeds that show that. But Dr. Trecker can take a -- again, fill you
in on that, if permitted.
The foundation meets all of the requirements of 1.6.6 of the
county Land Development Code. It's an applicant, it's an affected
property owner, and it's an aggrieved or adversely affected party.
Those -- those are the ones that have the right to appeal.
We intend to provide a presentation by several members of the
foundation. We're not going to encourage all members who are
present to speak, as long as they can have their cards put into the
record.
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Again, I'm a little bit concerned because the cross-examination
that we had concerning -- from -- or the opinion from the county
attorney concerning you not considering any unswom testimony may
encourage people to actually come up and say something. I know I
would if I were them. But we'll try -- we do have some speakers that
are part of our presentation, and we'll try to keep that succinct.
Now, let's go to the request for the interpretation. What was
actually said and what actually happened? On June 10th of 2003,
Frederick R. Hardt, who was formerly with our law firm, submitted to
the director a request for formal interpretation of the development
standards under SDPA-2001-AR-12, and that's the development of the
Cap d'Antibes as the final phase.
This was submitted under division 1.6 of the Collier County
code, and that's in Exhibit 1 on to our Notice of Appeal. It was a
six-page request outlining the facts, outlining -- giving a summary of
the foundation's position, and even made a request for a formal
interpretation on four items.
And I won't go into the four. They're in your record attached to
the Notice of Appeal. I think they're on Page 20 through 24, 43
through 46. For reasons unknown to us the -- our Notice of Appeal
was bifurcated, Page 3 and 4, and 5 and 6 were separated. I'm not sure
why the staff did it that way, but we do have that in our Notice of
Appeal as exhibits.
The director did not respond to the request until September 29th
of 2003. That's 111 days later. So if you're wondering why this is
here today and it wasn't here 111 days ago, that's the reason.
The code requires a response within 45 days, and that's in Appeal
Exhibit 2. Now-- and I'll get into that in a minute. Put a little asterisk
by that.
What happened then, the director declined to respond, contending
that the request did not read -- meet the form established by the
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director because it did not, quote, set forth a set of existing or
proposed facts arising from a proposed pending or approved
development request, which would be or is applicable to the text of
then approved or now proposed regulations.
And further, that the request was not, quote, cast in the form of
questions. In other words, there was not a question mark at the end of
the sentence, so that was the reason for turning it down.
Now, we submit that this insufficiency response was actually
given because it was way past the 45-day limitation for the director to
have actually made a response to the request. As I said, it was 111
days, and then we get the sufficiency response.
In any event, Mr. Hardt revised the request for interpretation, and
that's in Exhibit 3 to the Notice of Appeal. He referred to the request
of June 10th that had already been made. He did not reiterate all of
the facts, but -- that were provided in the request, but he put the
request in the form of five questions.
One, does the SDP Amendment qualify for a reduction from the
minimum yard requirements under 7.04.03 of the PUD as a
development consisting of clustered buildings with a common
architectural theme? That's one of the issues.
Two, if your answer to question 1 is in the affirmative in
determining whether the SDP Amendment consists of clustered
buildings, what other standards, if any, imposed by the LDC, the
Pelican Bay PUD, or any other regulations, as defined in section
3.3.510 of the LDC, were applied or considered by the county staff for
purposes of the SDP review?
The answer was, I'm not going to answer that question. We think
that that question should have been answered.
Question three, very similar. If the answer to question one above
is in the affirmative concerning common architectural themes, what
other standards, if any, imposed by the LDC, the Pelican Bay, or any
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other regulations were applied or considered by county staff for
purposes of LD -- of SDP review?
So clustered buildings and common architectural theme, those
two questions were asked. Those two questions were not answered.
Four was, may the county staff determine whether or not the SDP
Amendment qualifies as a common architectural theme project
without conducting an architectural review under section 2.8 of the
LDC. Ms. Murray did mention that she did answer that question, and
she did, and she said no.
And five, did the application for the SDP Amendment
demonstrate that the approval of the site plan will not be, quote,
injurious to the neighborhood or adjoining properties as required by
section 2.05 of the LDC, and that question was not answered.
So we're standing here in front of you asking for determinations
on three really -- essentially three substantive issues.
A friend of mine who was a judge, very fine judge, I really
respect him, one time said that the key to the ability for good judging
is to be able to focus in on what the merits of the case are.
And all we're doing today, this morning, is wrangling about
whether or not we're going to be allowed in the public hearing, that is
allowed under 1.6.6, the only public hearing that has ever been
allowed on this matter, we're wrangling about whether or not we're
allowed to actually bring in any evidence.
Now, I'll talk about 1.6.6 in a second.
Oh, by the way, the -- the rules concerning form, the -- having to
do with the -- the question not being in the right form. That's a rule
that's made up by the director. The -- it says in a form -- the statute or
the ordinance says, in a form provided by the director, but it does not
give any guidance as to what that form is.
So this is a rule that was being made up by the directors. As I
submit, the rules are continuing to be made up even to this day by the
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legal staff, and I oppose that.
So what happened is the director's saying, hey, you're not--
you're not -- you didn't meet our rules. And the second time it was
restated and the director said, well, you didn't meet our rules again.
And I think in just a cursory review you'd find that the rules were met
and the questions should have been answered.
Now, on question one, she did render an interpretation only in
part. She refused to analyze the effect of section 2.05 of the PUD, as I
said, saying that the request for interpretation does not pertain to that
condition. Of course, question 5 asks just that, referring to section
2.05 by number and description, and she refused to answer question
number five.
So what are we asking you to do? Well, we're asking you to cut
to the chase, decide three issues. Common architectural theme, does
the Waterpark Pla -- does the Cap d'Antibes project at Waterpark
Place share a common architectural theme with the rest of Waterpark
Place and the rest -- and the -- the properties next door? We say the
answer is no, and we have experts here to testify to that point. Both a
-- a land planner and an architect.
Was this a clustered -- does this qualify as clustered buildings.
And the staff said, yeah, it's clustered. And the reason they said it's
clustered is because -- best I can tell, because it's many units in one
building. That constitutes a clustered building. Of course it not.
And you heard a little bit from Mr. Volpe about what a clustered
-- what clustered buildings are. This is a cluster in a building, one big,
gigantic building with two towers. That's what we have here, and so it
does not qualify.
The -- the legal framework for this hearing has been discussed
and rediscussed, and I think that you're getting bad advice, frankly,
and respectfully, from your county attorney staff.
I think that this is the public hearing. It's not my fault and it's not
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the county attorney's staffs fault, probably, that -- that this procedure's
a little bit backwards.
But the only time anybody got any notice was of this hearing.
There was never any notice -- as Mr. Volpe said, there was never any
notice of the SDP Amendment process -- in the SDP Amendment
process. There is no record -- there was no record that anybody can
point to as being the record of the SDP Amendment process. This
isn't one.
Now, one was made up for you recently. I don't know when or
by whom. We've had at least three public records requests. There
was no record of what happened at that time.
Substantial competent evidence. It's -- it's very clear in the law
that -- that the substantial competent evidence that is adduced at a
hearing is evidence, first of all, that is brought in at a hearing. Like
today, we have a hearing in which you are going to hear evidence.
There was none at the SDPA process. There just wasn't. There
was no swearing of witnesses, there was -- and the most important
thing, due process. I heard-- I heard the attorney for the -- for the
property owner get up and talk about due process. That's -- that's all
we're talking about, practically all we're talking about. Due process
was never given at the time that the SDP, Site Development Plan, was
approved.
MR. WEIGEL: And I'm going to interrupt right now just to let
you know that that isn't the issue before you today. The process of the
SDP review and approval, or the amendment to the SDP, is not the
issue before you today, although Mr. Pritt would purport to make it
such. And I would suggest that you disregard this discussion and
direct it elsewhere.
MR. PRITT: Is that what -- is that the board's --
CHAIRMAN FIALA: Yes. We're trying to stay on track, sir.
MR. PRITT: Well, your attorney is taking you very far off track.
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We're entitled to due process just like everybody else is entitled
to due process. Your procedures do not provide for that at the local
level.
Let me try to say it in a way that -- I don't mean to be offensive,
Mr. Weigel, so don't take offense. But the problem is is your
procedures do not provide for notice, opportunity to be heard, and a
hearing; however, when you get to your own review process, it says
that you are limited, you, the board, are limited in your analysis if
there was -- unless there was -- excuse me -- competent substantial
evidence. If there was competent substantial evidence, then you are
limited in your review. That never occurred. So that is very relevant
to what you are doing today. It's right here in 1.6.6.
CHAIRMAN FIALA: Okay. Well, you -- Commissioner
Henning?
COMMISSIONER HENNING: Mr, Pritt? Mr. Pritt?
MR. PRITT: Let me just read one point --
COMMISSIONER HENNING: Mr. Pritt, we are listening to go
you --
MR. PRITT: Okay. Thank you.
COMMISSIONER HENNING: -- okay? And we -- what we
want to hear is the argument on the planning director's interpretation.
The question that -- well, I was looking at the rendering of
opinion, and I find it hard to see where the questions are.
So if we could just stay to those materials, I think that's what
we're here for.
MR. PRITT: Well, the three issues before you, I've said,
common architectural theme. There was no evidence of that. I have
to -- I have to put it in that way because that's what you are looking at,
and this is what this hearing is all about. There was none then.
Yet, the director relied on documents that supposedly were in the
so-called record, even though the record didn't exist, pertaining to
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architects -- letters from architects that were not sworn, were -- there
was no notice, opportunity to be heard, or anything like that, for those
letters. She relied on that for her opinion. So that is not competent
substantial evidence to be relied on.
And the other thing is, if you're actually going to look at those
letters, which I say you should not and she should not have
considered, if you're going to look at the letters, the letters did not
claim that there was a common architectural theme. There's -- it's a
common architectural style. There's a difference between the two, and
we have architects who are prepared here today to show you the
difference and tell you the difference.
As a matter of fact, they have already submitted affidavits
indicating that -- to that effect, that this is not a common architectural
theme. So on that issue, there was no evidence to the contrary, and
we're pre -- we are prepared here at our hearing to present that
evidence that will show the common architectural theme.
And on the -- on the point of clustering that was considered. It
was considered wrong, as I explained to you a minute ago. And there
was no evidence to support that there was any decision or any -- any
decision made in the application pertaining to whether or not this
would be injurious to the neighborhood or to adjoining properties, and
certainly nothing having to do to the St. Raphael to the north. There
was no submissions or evidence that was placed in the record, because
there was no record, as to whether or not this was injurious to the
neighborhood.
So for those -- I do have some other arguments, but for those
primary reasons, we think that this -- that you cannot divorce the two
issues because that is the issue of what happened at the SDP level
because that was what she has testified that she has relied upon, the
record from that, and we claim that there is no record whatsoever. So
those are our primary arguments.
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I would like to ask that, while we're at it, that all of the PUD
pertaining to Pelican Bay be introduced into evidence. We've had
parts that have gone in. You do have the ability to take judicial notice
of your own ordinances, and we ask that you consider the PUD from
Pelican Bay.
Probably the best -- it has been amended a couple of times, but
89-35 probably is the ordinance that shows that the best, and we
would ask you to consider that.
CHAIRMAN FIALA: Thank you, Mr. Pritt. Appreciate it.
Mr. Raia?
MR. RAIA: Madam Commissioner, Commissioners, I was under
the impression that I would have been given more time to talk as
opposed to having over a hundred of the -- my fellow residents
requesting three to five minutes each, and that I would have saved
time.
I honestly feel that 10 minutes would -- would not do justice, and
if I knew this before, I would have had everybody in the room speak.
But since -- since I am going to be limited, I'm going to have to
narrow this down to points that I really feel important.
CHAIRMAN FIALA: If you can.
COMMISSIONER COYLE: Mr. Raia?
MR. RAIA: Yes, sir.
COMMISSIONER COYLE: If you want to have everybody in
the room speak, I'd be happy to have you stay here for -- for the time
to do it. And if that's what you'd like to do, I'll be here to listen to
them, and I imagine the rest of us will be, too.
MR. RAIA: I'd appreciate that, if the board would condescend to
that, I -- Madam Chairman, is that acceptable?
CHAIRMAN FIALA: You mean, and then everybody limited to
three minutes, including yourself--
MR. RAIA: I will call them back, yes.
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CHAIRMAN FIALA: But Mr. Raia, what we have to do, in all
fairness, is we have to make sure that every side gets the same amount
of time. And so what I'm trying to do is -- MR. RAIA: And I appreciate that.
CHAIRMAN FIALA: -- is bring this together in -- and so if you
would -- as -- I appreciate that you agreed to do it for 10 minutes, and
that's great. And we'll break for a lunch, and then we'll move on.
MR. RAIA: Are you saying I'm limited to 10 minutes?
COMMISSIONER HALAS: Yes.
CHAIRMAN FIALA: Yes.
MR. RAIA: Well, I thought I heard other than that from the
other commissioners, but if I'm limited to 10 minutes --
COMMISSIONER HALAS: Ten minutes.
MR. RAIA: I don't think I can deliver everything in 10 minutes.
And I would have to open up the floor to anybody that wants to speak
to try to get the rest of the information in, but --
CHAIRMAN FIALA: Commissioners, do any comments?
COMMISSIONER COLETTA: The only comment I got-- I got
no problem with him having 10 minutes and opening the floor. We're
here for the people.
MR. WHITE: Madam Chair?
CHAIRMAN FIALA: Yes.
MR. WHITE: Perhaps this will help. I recognize we're operating
somewhere in the world of a consolidated type of a case here, and I
think it's fair to say that as to 7(A), there's an entitlement to 10 minutes
for a speaker, and an entitlement under 7(B) for 10 minutes for a
speaker.
And I don't know how we divide between the two in terms of the
facts and the concepts and the arguments that Mr. Raia wants to make.
But it seems to me that it's at least some way to be able to afford some
greater amount of time under our rules.
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COMMISSIONER HENNING: Total of 20 minutes, combine it.
CHAIRMAN FIALA: Do you want to do that, Commissioners?
COMMISSIONER HENNING: Well, I -- my opinion is, we're
here to hear this case today, and you have a representative for the
community. Let him speak, and--
CHAIRMAN FIALA: For 20 minutes, you want to give him?
COMMISSIONER HENNING: -- and-- yeah--
CHAIRMAN FIALA: Okay.
COMMISSIONER HENNING: Whatever, half an hour.
CHAIRMAN FIALA: Commissioners?
COMMISSIONER COLETTA: Well--
COMMISSIONER HENNING: But -- and also let the public
speak.
CHAIRMAN FIALA: Oh, well, we're going to let the public
speak. We always do.
I just have to make sure that we have some time limitations onto
this -- on this, because if everybody wants to get up like Mr. Raia,
now the -- now the opposing side is going to say, well, he's had 20
minutes, now we want 20 minutes, and we're going to be here far into
the evening, and so -- let's get back on track, please.
COMMISSIONER HENNING: Well, Madam Chair, Madam --
COMMISSIONER COYLE: Can I make a--
COMMISSIONER HENNING: Just one minute.
CHAIRMAN FIALA: Wait, I've got three, one, two, three,
okay?
Commissioner Coletta?
COMMISSIONER COLETTA: Thank you very much. I -- I
have no problem with the gentleman speaking for 10 minutes. I don't
think that we should restrict the rest of the audience because he's
going to speak for 10 or 20 minutes and not be able to hear their
opinions.
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CHAIRMAN FIALA: He restricted them.
COMMISSIONER COLETTA: And I don't think that's right. I
resent that.
I want to hear from each individual person what they have to say.
I think 10 minutes is fair for you, and then we can go to the rest of the
audience for three minutes. And even if they repeat the same message
over and over again, that's fine. We're here to hear the public, not one
or two individuals.
If we grant you 20 minutes, I want to have 20 minutes for
everybody, including the audience.
CHAIRMAN FIALA: Okay.
Please, folks.
MR. RAIA: No, please.
COMMISSIONER COYLE:
anything at all.
Commissioner Coyle?
After that, I'm not going to say
CHAIRMAN FIALA: Commissioner Henning?
COMMISSIONER HENNING: Madam Chair, you are the chair
CHAIRMAN FIALA: Yes.
COMMISSIONER HENNING: -- of this, and in -- I appreciate
your asking the colleagues, but the bottom line is, you're conducting
the meeting. You're setting the rules for the meeting, and I will
support you, whatever you decide.
CHAIRMAN FIALA: Thank you so much.
you,
than
Go on with 10 minutes, sir.
MR. RAIA: Just 10 minutes?
CHAIRMAN FIALA: Yes, please.
MR. RAIA: I will have to try to cut this down. All right, thank
thank you.
CHAIRMAN FIALA: And start the meeting (sic) now rather
when he --
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COMMISSIONER HALAS: I'd like to say that I'd like to hear --
anybody that wants to speak has the right to get up and speak --
CHAIRMAN FIALA: Certainly.
COMMISSIONER HALAS: -- and I think we ought to limit to
three minutes. But I hope that everybody can accommodate the needs
(sic) that they need to say in that time frame. Thank you.
MR. RAIA: The only reason for my request for more time is that
these people have made me their spokesman -- (Applause.)
MR. RAIA: -- and they wanted me to speak on their behalf, and
it has been prepared accordingly. But they are very willing to fill in, if
I'm denied that privilege. I don't consider it a right. It would be a
privilege.
CHAIRMAN FIALA: Okay.
MR. RAIA: You want--
CHAIRMAN FIALA: Are you addressing 7(A) or 7(B), or both?
MR. RAIA: You know, I really don't care. I'm a member of the
foundation and a member of the Pelican Bay Property Owners'
Association, so whichever one you want.
COMMISSIONER HALAS: Madam Chair, can I request that he
be given 20 minutes?
CHAIRMAN FIALA: Well, I was just going to -- I was going on
to -- if he was addressing 7(B) well, then maybe he would also want to
address another 10 minutes to 7(A) -- I can't do that for everybody
else, though, Mr. Halas.
COMMISSIONER HALAS: I understand that.
CHAIRMAN FIALA: I have to just -- you know, if we're going
to do this once, that's all we're going to do, and then we're going to
limit everybody else to --
COMMISSIONER HALAS: Can I ask one question to the
presenter?
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MR. RAIA: Yes.
COMMISSIONER HALAS: Are -- you're to cover both areas,
7(A) and 7(B)?
MR. RAIA: I presume I'm going to cover everything.
COMMISSIONER HALAS: Is 20 minutes going to be sufficient
to cover both of these?
CHAIRMAN FIALA: You betcha it is.
COMMISSIONER HALAS: I guess you got -- I guess we got --
MR. RAIA: I got the message.
COMMISSIONER HALAS: -- our marching orders.
MR. RAIA: I got the message.
CHAIRMAN FIALA: Well, now we're at five to 12:00, and --
and if you want to continue on, you can.
MR. RAIA: If you want to break at 12:00, I would just as soon
we break now. I mean, and that's your call.
CHAIRMAN FIALA: Let's do that, because, I'll tell you, I -- I
had committed myself to -- MR. RAIA: Sure.
CHAIRMAN FIALA: -- conducting something at noon. They
know that I'm going to be running a little bit late, but I had done this a
month ago. And I didn't realize we were going to have this -- this issue
as a holdover to the --
MR. RAIA: On a Wednesday.
CHAIRMAN FIALA: -- next day.
So, if you don't mind -- and I would prefer to hear everything you
have to say.
MR. RAIA: So we--
CHAIRMAN FIALA: Okay?
MR. RAIA: -- adjourn until 2:00 then, you say?
CHAIRMAN FIALA: Until 2:00, and then we'll be back.
MR. RAIA: I accept that. That's fine.
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CHAIRMAN FIALA: Very good. Thank you, sir.
MR. RAIA: Thank you.
(A luncheon recess was taken.)
CHAIRMAN FIALA: 2:00 p.m. and we're back in session. And,
Mr. Raia, you're up to bat.
MR. WEIGEL: And as he starts we'll note, I think from the
discussion just before the noon adjournment, that Mr. Raia indicated
that he was speaking in regard to both petitions, representing a
significant factor of the public and that, if allowed to speak, that a
significant factor of the public, number of the public would, I believe
his assurance was, would not be getting up to speak. Ultimately they
have their own opportunity or not to sign up and speak. But that was
my understanding and what we heard before that time.
CHAIRMAN FIALA: And that he would have 20 minutes.
MR. WEIGEL: Is that correct, Dr. Raia?
MR. RAIA: That's correct.
CHAIRMAN FIALA: Twenty minutes. That's correct. Yes,
we've given him 20 minutes and he said he want -- many people
wanted him to speak for them.
MS. FILSON: Okay.
CHAIRMAN FIALA: Mr. Raia.
MR. RAIA: Good afternoon. Honorable Commissioners, my
name is Ted Raia. I am here speaking on behalf of the Pelican Bay
Property Owners Association and the Pelican Bay Foundation
pursuant to the notice of appeal filed and served on October 27th,
2003. I'm not an attorney and what follows is my opinion, and facts
presented are, in my opinion, facts.
However I do have some experience. I served the town of
Harvard, Massachusetts for 16 years. Three years on the Conservation
Commission, ten years on the Planning Board and three years on the
Zoning Board of Appeals. Over the entrance to the City Hall in
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Cambridge is inscribed "if laws are not enforced the people are not
well governed."
It is a year since we appeared before and we were advised how to
address our grievance with the Cap d'Antibes. You told us that we
must find an opening, an error in the process. We found that opening.
Now you are the quasi-judicial body that will publicly hear for the
first time how the county staff made errors in interpretation, did not
seek and was not provided necessary material, but was provided
inaccurate information. Therefore we are requesting the rejection of
the interpretation and resubmission of the site plan.
I will go through the approval process of Cap d'Antibes step by
step so that we all have a clear understanding of it. To expedite side
plan approval process, approvals are made without public notification.
Joe, you said page up.
UNIDENTIFIED SPEAKER: Page down.
MR. RAIA: Page down.
UNIDENTIFIED SPEAKER: Sorry.
MR. RAIA: Thank you.
The Land Development Code is like a box in which the
Commissioners place their requirements at a public meeting. A
planned unit development is a box within a box, also placed at a
public meeting, the rationale being if the developer uses only what is
in the box for a site plan approval, there is no need for a public
hearing. Therefore, the onus must be on the developer and the staff to
act in good faith and strictly adhere to the code. If not the public has
no say and no protection, which appears to have happened with the
Cap D'Antibes.
As a result of conducting public hearings, discovery. As a result
of not conducting public hearings, discovery of the existence of the
Cap d'Antibes was delayed, even though the plans were on file since
at least 1999. During the interval, purchases in Pelican Bay were
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based on the knowledge there would be two additional high-rise
buildings similar to the St. Pierre at Waterpark Place. All foundation
and realtors' maps show two separate lots. The Collier County
Appraiser's map shows two lots with different folio numbers and
different street numbers.
MR. WHITE: Madam Chair, I apologize for having to interrupt,
but at your request you had asked us to have -- help you to draw a line
of relevance. I don't recall any of this being a part of the official
interpretational requests of the staffs response and I'm not sure what --
in what way it can help you with your ultimate decisions today. So if
there's some way that the speaker could focus on those issues today I
think --
MR. RAIA: Madam Chairman, I -- in contrary to what Mr.
White is saying, I do feel I'm focusing on the issue because this the
only time the public has a chance to tell you anything. CHAIRMAN FIALA: Okay.
MR. RAIA: And I think we ought to be given a little leeway --
CHAIRMAN FIALA: Absolutely, that's fine.
MR. RAIA: -- to present this.
CHAIRMAN FIALA: You pick your 20 --
MR. RAIA: Now, if I'm fully out of line or presenting erroneous
material, by all means, correct me.
CHAIRMAN FIALA: You have got your 20 minutes. As long
as you're focusing on the issue, you use it.
MR. RAIA: He's made me lose five minutes already.
CHAIRMAN FIALA: No, two minutes.
MS. FILSON: No, I turned it off while the attorney was
speaking.
CHAIRMAN FIALA: Oh, did you? Great.
Did you hear that, Mr. Raia?
MR. RAIA: That's okay. I'm just joking. In fact the notice for
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the Waterside Shops public hearing mailed on December 22, 2003 has
a site map showing the two lots, and I believe this -- whoops, pressed
the wrong button here. This -- here you can see -- well, you can't see
but I can see it. But there -- on that site plan map that was just mailed
in December the four lots are showing. How is the public to know
that the St. Margot and the St. Armand are replaced by the Cap
d'Antibes when the county still shows the lots on a site map? This
may not be important to the staff but we want you to know how the
process affects your constituents.
However, Pelican Bay should have been an exception because
the approval process does require that plans be first referred to the
Pelican Bay services division.
The County Planning Director requested of the developer please
submit for our records evidence that the site plan has been reviewed
and approved by the Pelican Bay improvement district. The letter of
approval signed by the administrator was sent on July 18th, 2001.
Two days later the county staff approved the site plan. However, the
plans were never reviewed and approved at a duly publicized meeting
of the Pelican Bay services division. In fact, the Board never knew
about the approval and the residents who attend these public meetings
were denied the opportunity to voice their concern.
This violation of the Sunshine Law proved detrimental to the
community of Pelican Bay. We considered a letter requested by the
Planning Director to be invalid and a reason for rejection of the
interpretation.
On Page 3 of the notice of official interpretation the planning
staff claims that only high-rise building are permitted. She already
corrected herself, but I have two points to make. You know, since this
-- and I'll ask this in the form of a question. Since this correction is
just made now and I'm just learning about it now, does the 30 days
start all over from this moment7
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The second-- the second point I would like to make is that, since
they relied on the fact that only high-rise buildings were permitted in
Group 4 and that is why the cluster provision applied to them, now
that she knows that single family units are allowed, on what grounds
does the cluster provision still apply to high-rise buildings?
On the same page they also admitted that clustered high-rise
buildings are not permitted in the Land Development Code. The staff
should have stopped the approval process here. If something is not
permitted in the Land Development Code it should not be approved.
Section 2.15 of the planned unit development states definitions
shall be as contained in the zoning ordinance of Collier County. There
is no reference to using a dictionary, yet the staff decides to use a
dictionary and concludes that a cluster is just having more than one
building as long as they are the same sort of things gathered together.
The dictionary definition of cluster is more specific than that. It
is having a number of things of the same kind brought closely
together. The bringing of like things together creates space.
In the case of Waterpark Place, you do not have like things
brought together to create space. The Cap d'Antibes is not a like
thing. At 650 feet it is unlike anything else in Pelican Bay or in the
county. It is simply and oversized building that is taking more space,
including the required setbacks, and has nothing in common with
cluster.
The planning staff errs in interpretation of 7.04.03. Once the
staff redefined cluster to mean just having more than one building
setback requirements applied only if you had one building on a parcel.
When you have more than one building that are the same sort of
thing, and you have the developer's architect claim there is a common
architectural theme, setback requirements no longer apply. And this
became a matter of right. I will graphically demonstrate this section.
And the -- Section 7 deals with Group 4.
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In Group 4 of Pelican Bay only high-rise and single family and
multi-family units are permitted. No hotels or commercial buildings
are allowed.
Now here we have two buildings on two parcels. These are
200-foot buildings. The Section 7.04.03, Paragraph A, defines setback
distances between buildings very clearly. It says the setback distance
between two buildings shall be one-half the sum of the buildings. So
we have -- two 200-foot buildings equals 400 feet, half of that is 200
feet. And, as you can see, the distance between these two buildings is
200 feet. Very simple, very easy to understand.
Section B has to do with property lines. It states that the distance
from a property line should be one-half the height of the building.
And, as you can see, it's 100 feet. This is the way Pelican Bay was
developed and existed up until the end of the '80s.
Now, we had two different buildings -- let's call it the St. Pierre
and the St. Laurent. And now you have an architect come in from the
developer to say that these two buildings are now similar in design.
Paragraph C is where the problem comes in for the staff and
everyone else in this room. In the case of clustered buildings with a
common architectural theme, these distances may be less. Well, it
doesn't say how much less they can be. They can be zero.
Now, if the staff was to apply the cluster section of the Land
Development Code, they could end up with this. Here you have the
two high-rise buildings brought closely together, still on the same two
parcels of land, creating a decent amount of space. However, that
cluster section does not apply to high-rise buildings, only to single
units.
So the staff goes one step further. They redefine cluster to mean
all we have -- all that happens for our cluster when you have the
common architectural theme is that you just reduce the setbacks. It
has nothing to do with space. So you end up with this. You end up
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with a building that fills any space that you could create with -- with
the reduction of setbacks.
Here we have the building with 50-foot setbacks. This is as a
matter of right. Right now, if you accept the staff's interpretation of
7.04.03, Paragraph C, this is a legal right of, of a developer. But he
needn't stop there because, since the setbacks can be reduced to zero,
the building can grow to this size. But wait a minute. We really don't
have to stop there, because, if right next door to it the developer had
another building that staff defined as being clustered building and the
architect said it was a common architectural theme, you can add
another building to it. And you can add another building to it, and you
can add -- that Cap d'Antibes could extend from the Cap d'Antibes all
the way down here to government center as a matter of right.
The PUD section of the Land Development Code states, the
development plan for a PUD district shall provide harmonious
grouping of structures and for appropriate relation of space.
Waterpark Place is not a harmonious grouping of structures and there
simply is no space.
MR. WHITE: Madam Chair, I apologize. This is the point
where, with respect to Mr. Volpe's testimony, we drew the line. And I
just want to ask you at this point if you think the discussion about this
harmonious and injurious, which was never the subject of any
interpretations, ought to be brought into the record now or not? And I
apologize to the gentleman for interrupting.
CHAIRMAN FIALA: Commissioner Henning.
COMMISSIONER HENNING: I -- I agree. But I think it's our
duty to let him speak--
MR. WHITE: That's fine. It's your decision, I'm just trying to do
what you had asked.
COMMISSIONER HENNING: -- it doesn't pertain to the -- the
appeal of the Planning Director's interpretation of the code but I think
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that we need to --
COMMISSIONER COYLE: If I could add to that? I would ask
that you continue to notify us if you feel that there's someplace we're
getting off point. My personal position is that I'm willing to listen. I
may disregard anything he has to say about this, because much of it,
as I said at the very beginning, is clearly not related to the issue at
hand. And -- but he certainly has the right to speak and use his time
however he wishes to use his time.
MR. WHITE: My true intent, Commissioners, is to help him to
be able to more productively use his time.
COMMISSIONER COLETTA: I understand.
MR. RAIA: Well, I do appreciate the help, but I feel due process
is not served if I talk and nobody listens. I think the purpose of a
public hearing is for people to talk and listen. And then they can make
a decision.
(Applause.)
MR. RAIA: Excuse me. I wish -- please don't clap or boo or
anything. Thank you.
CHAIRMAN FIALA: Turn his light off again, would you;
would you, Sue?
MS. FILSON: I did.
CHAIRMAN FIALA: Just--
MS. FILSON: Oh, right now?
CHAIRMAN FIALA: Yeah.
It's back on. Yeah.
Commissioner Coletta had something.
COMMISSIONER COLETTA: Yeah. I just want to say I agree
with Commissioner Coyle. I don't have any problem separating what
we're supposed to be dealing with and other matters that he wants to
bring forward. It's his 20 minutes to spend as he wishes. Although,
however, I do want to be notified because I may miss something and
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believe that it's part of it. Somehow we have to come up with some
sort of way, if it's nothing more than just raising your hand and allow
him to continue to speak. We'll know at that point in time that there is
an objection from you and that that doesn't quite fit into what you're
talking about.
Does that sound agreeable so that we don't have to be
interrupting continuously?
MR. WHITE: As long as my arm doesn't get tired.
COMMISSIONER COLETTA: Okay. We'll be watching every
minute.
COMMISSIONER HENNING: As long as the court reporter
writes it down.
MR. RAIA: Well, you know, it really shouldn't because, as far
as I'm concerned -- I'm just a lay person here -- I think the staff is
supposed use the entire Land Development Code in reviewing a site
plan and I'm only bringing up things that they may have overlooked or
they looked at and didn't want to use.
COMMISSIONER COLETTA: And that's fine. Continue, sir,
and I -- I'm sure that we've found a way to be able to make this flow.
MR. RAIA: Thank you.
The staff also errs in interpretation of common architectural
theme. The Land Development Code, Section 2.6 -- and I want to,
you know, the -- Mr. Hardt made a typo and said 2.8, which deals with
commercial. Obviously he meant to deal with -- with residential. And
we're talking about the Land Development Code, Section 2.6.27.46,
states that the architectural style of dwelling units shall be similar in
design. It states other things but we'll focus on similar design.
The staff never visited the site to see the existing buildings nor
were they provided views of the buildings, including the Cap
d'Antibes, which would have been material necessary under Section
2.05, which they frequently reported on. The staff relied solely on
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letters from the developer's architects.
COMMISSIONER HENNING: Let the record reflect that
Patrick White raised his hand twice.
MR. WHITE: And I just want to point out that there's no way
otherwise that the record would know that my arm was up or down.
COMMISSIONER COLETTA: Good point.
MR. RAIA: I don't know how to interpret that. What part of
that, that-- if the staff was allowed to make the decision without
looking at it or knowing about it, then, is that --
MR. WHITE: I'm not here to answer Mr. Raia's questions but if
any of the Board members would like to --
MR. RAIA: Hopefully, at the end, if there's a question that could
be clarified. Thank you.
Here -- here are two of the existing buildings. These are side
views. On the left is the St. Pierre, on the right is the St. Laurent. The
St. Pierre is a modem building with definite horizontal lines to it,
predominantly glass with a lot of curves. The St. Laurent is a stucco
classical building with straight lines. All vertical lines are
accentuated. Here are rear views on the left and frontal views on the
right. On the rear views you can see that the terraces extend out from
the St. Laurent and the rails are painted white. The balconies on the
St. Pierre are recessed, painted black. And you can see on the frontal
view how glass dominates the St. Pierre with more modem lines than
the more classical lines of the St. Laurent.
These are aerial views taken from the County Appraiser's. On
the left you see the St. Pierre having a modified H configuration. It is
about 215 feet in width. On the right is the St. Laurent, having a more
modified U configuration and is 225 feet in width.
COMMISSIONER HENNING: Let the record reflect that Mr.
White raised his hand.
MR. WHITE: This information is not in the record.
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MR. PRITT: We want to be on the record also. About four
times now Mr. Yovanovich has walked over there, talked to the
County Attorney's office, they've raised their hand and they're playing
a game now. Now if Mr. Yovanovich wants to testify, I'm sure he'll
have a chance to do that. We don't have the ability to be on the
record, Mr. White does, and we would like to have -- CHAIRMAN FIALA: That's fair.
MR. PRITT: -- the same consideration.
THE COURT REPORTER: Sir, would you identify yourself,
please?
MR. PRITT: My name is Robert Pritt.
MR. WHITE: My point, Commissioner, solely was that there
have been a number of times that certainly I would have raised my
hand sooner. I'm trying not to interrupt the gentleman's presentation.
But any information that's being presented to you that wasn't part of
the appellate record when it was timely supposed to be filed, is
essentially what we've advised you could be considered as new
evidence. And there's no testimony by anyone that this was not
discoverable before the time period to have filed an appeal.
Now the information may be a matter of public record in the
property appraiser's and all of those things may be true, but for the
purposes of this appellate proceeding it is truly not appropriate, so --
and it has nothing to do with Mr. Yovanovich's approving us or not.
CHAIRMAN FIALA: Well, he's not -- he's not going to be
doing that anymore.
MR. WHITE: There probably would be a -- there would
probably be a continuing objection, at least on my part.
MR. RAIA: Madam Chairman, I want to stress to Mr. White that
I am doing this because I expect due process. This is the only public
hearing I am afforded. I want to be heard.
CHAIRMAN FIALA: And we want you to be heard.
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MR. WHITE: I'm not trying to stifle that, sir.
CHAIRMAN FIALA: Right.
MR. RAIA: We do know that the Cap d'Antibes is composed of
two towers, one measuring 328 feet, the second 265 feet, and
connected at the base by a 57-foot wide, 4-story structure, giving an
overall dimension of 650 feet. The footprint of this building measures
61,000 square feet. The footprint of the St. Pierre is just 13,000
square feet.
Now, to give you some idea of the St. -- of the Cap d'Antibes, the
Cap d'Antibes would extend from the southern margin of the St. Pierre
and it will extend clear up to the northern margin of the St. Laurent
and would fill in all of this space, this -- the distance between these
two buildings which, by the way, is 230 feet, at -- would -- at -- over
at -- once over 40 stories there would be a 57 feet separation between
these two towers. And those buildings are much more massive than
these buildings. As I mentioned, it's 61,000 square feet.
How are these three buildings similar in design? Do we really
need an architect to tell that they are or are not a similar design? Did
the Board of Planning Commissioners make this determination? How
did letters from the developer's architects come to be used?
This is not authorized in the PUD nor in the Land Development
Code. Again, the staff reached outside the box when they decided to
have the developer's architects interpret the Land Development Code
to the benefit of the developer. If the staff was not able to make this
decision it should have been made by a completely independent
architect, preferably with academic standing.
An alternative was to have the foundation or the Pelican Bay
Property Owners Association provide the opinions of disinterested
architects at a public hearing. Two identical letters are from architects
involved in the design of Waterpark Place. The third architect avoids
saying similar in design. He states: The architectural style of the
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proposed last building in Waterpark Place is similar in nature. The
nature of a building and a tent is that they both provide shelter but that
is hardly similar in design. How could this letter be accepted?
This is the original site plan that was approved back in 1991
showing the location of four buildings, one, two, three, and four. This
is the revised site plan showing the replacement with the Cap
d'Antibes. Section 2.05 of the PUD states the request shall include
materials necessary to demonstrate that the approval of the site plan
will be in harmony with the general intent and purpose of this
document, will not be injurious to the neighborhood or to adjoining
properties or otherwise detrimental to the public welfare.
The developer failed to comply with this section for two reasons.
First, a 650-foot building is not in harmony with Pelican Bay. Second,
the location of the St. Raphael was not provided and the staff made no
effort to determine it, which is material necessary for approval. Why
include the Sandpiper parking lot and exclude the location of the St.
Raphael?
Surely if you can show the staff a parking lot location you could
show a location of a building. The only time the St. Raphael is shown
is on a schematic plan that is inaccurate as to location of buildings and
setbacks. This is part of the large plan, but I'm just including the part
that has the St. Raphael.
The St. Raphael shows that there are 100-foot setbacks as
required between the property line. Again, 100-foot setback between
the property line. And all these 100-foot setbacks are equally
measured between -- when you look at other buildings.
It is strange that the setback between the Cap d'Antibes and the
property line is not shown. Not only is it not shown, it's not scaled
properly. This should be just 50 feet. This should be half of what this
distance is here. Instead it is demonstrated to be more than 100 feet. I
consider this submission of inaccurate information. Furthermore, the
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alignment of these buildings generally reflect that they are in a
north-south alignment when in reality they are east-west. Is that my bell?
CHAIRMAN FIALA: That's your bell.
MR. RAIA: Suppose I had three people stand up and say they
will not speak. Can I finish?
CHAIRMAN FIALA: No, sir. You know what -- I really stress
this.
MR. RAIA: Oh, okay. I feel I have more important information
and I will leave this here. The next party that comes up, I'll stay here,
you do the speaking and I'll show you where to read from. Well, this
is going -- we're going to do it.
CHAIRMAN FIALA: But I just have to be fair. I hope you
understand that.
MR. RAIA: I'm trying to be fair.
CHAIRMAN FIALA: Thank you. Okay. Now, do we hear the
speakers for this side or shall we hear all of the presenters first? I
would guess that the next presenter would be -- yes. I think we should
hear all of the presenters first and then we will go from there.
MR. WHITE: I thought we were, Madam Chair, already into
public testimony, public speakers.
CHAIRMAN FIALA: Okay. Pardon me?
MR. VOLPE: We would like to have Dr. Trecker speak next.
CHAIRMAN FIALA: Okay. So then do you want to hear all of
your speakers --
MS. FILSON: Do I have a speaker slip for him?
CHAIRMAN FIALA: -- first on this side and then go to the
other side. Is that what you are saying?
MR. VOLPE: Madam Chairman, I thought -- and correct me if
I'm mistaken -- I thought the procedure -- I was going to present from
a legal perspective as the attorney.
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CHAIRMAN FIALA: You already did that.
MR. VOLPE: I did. You're right. We had a team. And Dr. Raja
was accorded some additional time speaking overall for 20 minutes.
We have an expert and I thought that was a part of the time as a part of
the petitioner's presentation. And then we were going to take public
testimony from all of the other registered speakers. And that -- that's
the procedure.
CHAIRMAN FIALA: You're part of the team. You've got--
now you just have public speakers; is that correct?
MR. VOLPE: Well, we had one other member.
CHAIRMAN FIALA: We are not doing another 20 minutes.
MR. VOLPE: No. This was ten minutes.
CHAIRMAN FIALA: No, no, no. We are not doing ten more
minutes. We gave Mr. Raja 20 minutes. We've got to start put --
pulling in here, we can't just -- you know, we've got to start
confirming this, condensing this, right? I'm happy to hear your next
speakers, five minutes each. I've given you that rather than the three
minutes, up to ten speakers. I've given you that. But, you know, Mr.
Volpe, as much as I want to support everything that you're doing, I
can only support so far, please.
MR. VOLPE: We're sensitive to that and I guess -- you are the
Chair. I would just point out that under your ordinance our experts are
provided with ten minutes. We probably won't use the entire ten
minutes but that is the ordinance under which your quasi-judicial
proceedings are to be held, and it specifically says that we're entitled
to 10 minutes per expert.
CHAIRMAN FIALA: So that means this side also gets their ten
minutes, ten minutes, ten minutes for each of your ten minutes, right?
MR. VOLPE: I don't know who the other side is, ma'am. We are
-- we are the appellant. You are the appellee. As far as I'm concerned
those are the only parties to this appeal. The developer is here. He's
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part of the public. He has an interest and he can speak, but I assume
he's going to be confined to three minutes. He is not, in my opinion, a
party to this appeal. This is our appeal. It is the Pelican Bay Property
Owners Association Appeal and the Foundation's appeal, from our
interpretation. It is your staffs interpretation that we are saying was
contrary and so they are not parties to this appeal.
CHAIRMAN FIALA: Do you feel we should be listening to the
testimonies?
COMMISSIONER COYLE: May I?
CHAIRMAN FIALA: Sure, please.
COMMISSIONER COYLE: Yeah.
Mr. Volpe, I don't think any of us want to limit anyone's ability
to speak to an issue. The problem is I don't think that any of us need to
be told 15 or 20 times that the setbacks are not correct in your opinion,
and that there is no greenspace created as a result of clustering, and
that, in your opinion, the architectural consistency doesn't exist. I've
got the point, okay? And what I'm looking for is evidence to support
your contentions, not just a repetition of the same -- same contentions
throughout this process.
And I know that the people in this audience want us to make a
decision here and I would like to get to the point where we can begin
to deliberate on the key issues. And, quite frankly, the issues are not
complex. There are essentially three points, and you've pounded on
them consistently. And what I would ask is that, if you're going to
have other people speak, let's not repeat the same thing over and over
and over.
MR. VOLPE: And I think, Commissioner Coyle, that's what
we're trying to do. We understand the points.
Dr. Raia is the spokesperson for the group. He's spent more time
than all of the rest in putting forth a presentation. The other people are
simply members of the public. All they are going to do is express their
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concerns about what's happened here.
We're trying to avoid that repetition but Dr. Raia has a few more
minutes of his presentation that -- he's offered to say that there will be
three or four other people from the public who will waive, who won't
speak. So we're sensitive to that but we need to make a record. We
don't know what the record is that you have, so -- we understand you
have -- you have framed the issues, but we need to be able, under our
due process, to be able to give you additional information, what
information there is, so that you can deliberate and make your
decision. And that's all we are trying to do. But we're not going to
repeat ourselves over and over again.
CHAIRMAN FIALA: So we can't introduce new information
either, right? I mean, we have to, in -- we have to be addressing the
subject at the hand; is that correct? I mean, this is what we were
outlined by the attorneys and when we first began. We cannot
introduce any new information or evidence. We have to address what
we're here to address, and that is the interpretation by the -- by the
Director of-- what department are you any more? By Community
Development Department.
COMMISSIONER COYLE: Could I ask one more question?
MR. VOLPE: Certainly.
COMMISSIONER COYLE: And I would like to -- I'd ask the
audience this question. You know, I would like anyone to please
stand up or hold up your hand if you believe the staff made an error in
determining the setbacks, if you believe the staff made an error in
using the clustering concept, and whether you believe that using the
clustering in this particular case actually reduced the amount of open
space in this development. Would you please hold up your hand if
you believe that?
(A show of hands.)
COMMISSIONER COYLE: Now, okay, I got the point. Okay.
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MR. WHITE: I would just like to let the record reflect that
everyone in the room that I could see raised their hand.
COMMISSIONER COYLE: Except Rich Yovanovich.
MR. YOVANOVICH: Thank you.
MR. WHITE: I wasn't looking.
UNIDENTIFIED SPEAKER: And some out there.
COMMISSIONER COYLE: Okay. And some out there. So
you see, you've just communicated to all of us that most everybody in
this room thinks an error was made and you don't want this -- this
development. We understand. And we have certain legal
requirements with respect to the evidence to be able to reach a
conclusion concerning that.
So, at least from my standpoint, I don't need to be told a hundred
times today that you disagree with those issues. I don't need to be
quoted from the Land Development Code or the Growth Management
Plan that it should have been done a different way. I've got that point.
I know what you believe. I know what you're saying. So.
I -- I'm just asking you, if you have additional speakers, in the
interest of letting us -- these people don't want to stay here all night.
In the interest of helping us reach a decision here, let's cut out the
repetition. We understand you don't like it. And if you have any
additional substantiating information we haven't heard yet, I want to
hear it. Okay?
MR. VOLPE: We have -- Commissioner Coyle, members of the
Board, we do have an expert who is an architect who we would like to
have address the Board to speak professionally and -- in a professional
opinion on the questions about common architectural theme.
CHAIRMAN FIALA: And you want to give him ten minutes?
MR. VOLPE: And under your ordinance, Madam Chairman,
expert witnesses are entitled to ten minutes. We'll try to confine -- I'm
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saying at the outset, we don't want to use up additional time or waste
your --
CHAIRMAN FIALA: Maybe it's just because, as Commissioner
Coyle said, it's been so repetitious. MR. VOLPE: Sure.
CHAIRMAN FIALA: After you hear it, you know, so many
times, you don't want to lose site of what --
MR. VOLPE: And we don't want you to.
CHAIRMAN FIALA: Well, rather than argue any more, let's get
the guy up here. Thank you.
MR. VOLPE: It happens to be a woman and her name is Susan
Tate.
CHAIRMAN FIALA: Oh, geez.
COMMISSIONER HENNING: Madam Chair?
CHAIRMAN FIALA: Sorry about that, ma'am.
COMMISSIONER HENNING: Madam Chair?
MR. VOLPE: Madam Chair, if I may?
COMMISSIONER HENNING: Madam Chair.
CHAIRMAN FIALA: Yeah.
COMMISSIONER HENNING: I would hope that we deal with
the issue of the appeal of the Director's interpretation and nothing
more.
CHAIRMAN FIALA: Right, right. I think you've got that
message, right?
COMMISSIONER HENNING: Nothing more.
CHAIRMAN FIALA: Thank you.
MR. WEIGEL: Madam Chair, County Attorney speaking.
While the other attorneys are bolting to the podiums, I'd just indicate
that we view again that the standard of review has to do with the
limitation of material and statement and argument and issue that has
been provided within the 30-day period of the appeal. And so if Ms.
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Tate was not part of the submission of the material or the argument
that she's making part of the material of the appeal, then I want you to
consider that in terms of limitation. That's what I wanted to say.
CHAIRMAN FIALA: Then maybe you can state that for the
record, Ms. Tate, when you -- when you begin. Okay?
MR. YOVANOVICH: May I ask a question?
CHAIRMAN FIALA: Yes.
MR. YOVANOVICH: And I'll -- and I'll sit right down. I don't
want to get up and continue to make objections. CHAIRMAN FIALA: Please.
MR. YOVANOVICH: And I won't.
CHAIRMAN FIALA: You're going to have your time.
MR. YOVANOVICH: But -- we will -- but I also don't want to
use up our time pointing out the many, many points that your staff is
supposed to tell you of is what is and is not in the record because it
really wouldn't be fair to us to have to continue to point that out.
Suffice it to say that what Dr. Raid (sic) talked about was not on the
record, and she was not, she provided no information regarding -- CHAIRMAN FIALA: We just asked her to put that on the
record. Okay?
MR. YOVANOVICH: And I just want to continue to raise that
objection and I'll sit down.
CHAIRMAN FIALA: Thank you.
MR. MUDD: Madam -- Madam Chair? If you could get that --
Madam Chair, this is--
CHAIRMAN FIALA: I just -- I have to stop you for just a
second.
MR. MUDD: This is the County Manager. All you have to do is
-- for the record, because these people are typing, that person was not,
didn't state for the record who his name was, who he represents, and
they are having problems with voices.
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This voice is the County Manager, Jim Mudd. Okay.
MR. YOVANOVICH: And in the future, my voice is Rich
Yovanovich representing the affected property owner.
CHAIRMAN FIALA: And what I wanted to state for the record
is in the beginning when we were giving our ex parte I forgot to
mention that I've also spoken with Tony Pires. I just noticed him in
the audience and I thought, oh, my goodness, I -- so I wanted to make
sure that I right that record.
MS. FILSON: And, Madam Chairman, just so that I am clear on
my direction, Ms. Tate will have ten minutes?
CHAIRMAN FIALA: Ms. Take will have ten minutes, as long
as you state now, you know, what we've asked you to state, please.
MS. TATE: I'm Susan Tate and I'm here to speak on the appeal
filed on October 27th, 2003 on behalf of the Pelican Bay Property
Association. And my report was submitted, as I understand, in the
deadline that was prescribed, and that is what you have in hand. And
you may be happy to know that I have condensed my statements to
what I believe to be five minutes.
I'm a registered architect in the State of Florida, a faculty at the
University of Florida since 1972, consultant specialized in compatible
design, context and guidelines for designated districts. In academia
and in practice we may use standards and principles to develop
specific theses or opinions. In that regard I want to comment on the
interpretation of the three design features specified in the code
regarding clusters.
Number one from the code, architectural style shall be similar in
design and in use of materials and color. Architectural style may be
distinguished by special characteristics of structure and ornament.
Style is essentially visual and has no necessary relationship to the
function of a building. Architectural styles are recognized by
character defining features such as scale, shape and detail.
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Regarding scale. The scale of the proposed buildings creates a
visual imbalance rather than continuity of a style. Moreover, the
extensive size of the proposed Cap d'Antibes structures would obscure
lines of sight within the parcel from neighboring sites and from public
byways. This nonconforming scale would create a visual impact that
would be injurious to the context and to the community at large.
Regarding shape as a feature of architectural style. The overall
shapes of the St. Pierre, St. Laurent and Cap d'Antibes are not similar.
This is apparent in the footprints and elevation profiles. Likewise, the
proportion of height to width of the Cap d'Antibes building is not in
harmony with the existing buildings.
Regarding symmetry as an element of architectural style. The St.
Pierre and St. Laurent have facades that are primarily symmetrical.
The facade designed for each Cap d'Antibes structure is asymmetrical
with a domed tower. One structure has three projecting bays, the
other has two.
Regarding pattern and material. The St. Pierre visually
emphasizes horizontal bands of glass. Expressed in the glass and
rounded edges, the texture of the St. Pierre material is decidedly
smooth. While the visual rhythm of the St. Pierre is smooth, that of
the St. Laurent is staccato and dominated by solid materials. The
design for the Cap d'Antibes is not in harmony with either.
Regarding detail. The most obvious element of architectural
style is often the detail. The absence of ornament on the St. Pierre
suggests a relationship to the international modernism. In contrast, the
St. Laurent is detailed with vertical elements, this feature recalling
early skyscraper expression of the skeleton frame as we might see in
the Chicago style. Yet a third architectural style is suggested in the
design for the Cap d'Antibes structures. The domes, arched windows,
parapet balustrade are classical in origin. Therefore, the existing and
the proposed buildings do not incorporate the required criterion based
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on elements that constitute architectural style.
From the code, regarding Number 2, signature entranceway
which serves to identify the development as having a common
architectural theme. Theme is defined as a unifying or dominant
element or motif. Whether in music, literature, art or architecture, the
theme continues throughout the work. The existing and proposed
buildings of Waterpark Place lack a similar design feature or
architectural style that would establish such a theme. Thus, no
elements were found that would comprise architectural style that is
similar in design, and therefore, no common architectural theme can
be established.
Number 3 from the code, street materials, signage and lighting
shall be complementary. Based on the analysis regarding design
features one and two, that there is no architectural style that is similar
in design and that there is no common architectural theme, therefore
there is no common pattern or style or theme with which to be
complementary, and the project could not meet, thus, the required
criterion to include the listed complementary features.
Finally, regarding clustered development. The Collier County
Land Development Code, in conformance with the universal concept
of cluster development, states that the intent is to cluster buildings in
return for more common open space intended for recreation or public
use, less urban sprawl, preservation of natural features and
conservation of environmental resources. Legislation allowing cluster
development which originated in single family neighborhoods is based
on improved conditions for society, such as those identified in the
Collier County Land Development Code.
Compatible and harmonious scale is an essential feature of visual
context of neighborhoods and districts and communities. The
proposed scale would be a deviation from well conceived land
development regulations, from the spirit of cluster development, from
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visual harmony within the community, and from the three design
requirements of the code. Thank you.
CHAIRMAN FIALA: Thank you.
(Applause.)
CHAIRMAN FIALA: Commissioner Henning? Oh, I'm sorry,
excuse me.
Now we should probably listen to the rest of the testimony first
and then hear our speakers. That's the way we usually do it anyway.
Okay. So we've heard from staff. We've heard from the appellant --
appellate -- appellant.
Yes. Did you have -- Sue?
MS. FILSON: I have another speaker after Susan Tate and I
don't know if this is an expert witness but it's James Weaver. It was in
their same group.
COMMISSIONER COYLE: Apparently isn't.
CHAIRMAN FIALA: Apparently isn't. Okay. So then we go on
to the property owner?
MR. PRITT: Madam Chair, we haven't finished our
presentation. We have -- on behalf of the foundation we have David
Trecker, who is the chair of the foundation, who I believe will only be
a minute or two.
CHAIRMAN FIALA: Oh, okay. I'm sorry.
MR. PRITT: We do have an architect, the foundation's architect,
and we have a land planner, Mr. Fenton and Mr. Depew. Both of
them I think can be beaten into keeping their comments less than the
ten minutes.
CHAIRMAN FIALA: Very good.
MR. PRITT: Well, Depew is not -- he's not answering yet. They
will try very hard to do that.
CHAIRMAN FIALA: Very good. Thank you so much. I'm
sorry, I did not realize you weren't finished. Excuse me. Go ahead.
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MR. PRITT: Dr. Trecker.
MS. FILSON: So I'm to give these other gentlemen ten minutes
as well?
CHAIRMAN FIALA: Yes.
MR. CRITCHLOW: Madam Chair, Richard Critchlow on behalf
of the property owner. So that Mr. Yovanovich doesn't have to stand
up all the time, let me take his place for this.
This is outside of any directed on appeal. It is filed untimely. It
is not new evidence and it shouldn't be considered and --
CHAIRMAN FIALA: Well, I don't even know if it isn't new
evidence. He hasn't come up to speak yet.
MR. CRITCHLOW: We, we -- you will see. We've seen the
affidavit which he submitted in the materials which was furnished
you-all on March 2nd. So, based upon those and in anticipation, like
Ms. Tate, who pretty much read from the same opinion that she
provided you-all on March 2, I'm going to assume it's going to be the
same type of information.
CHAIRMAN FIALA: I have to give them the courtesy of giving
their presentation.
MR. CRITCHLOW: Okay. I'm sorry.
COMMISSIONER HALAS: And at that time will the County
Attorney let us know whether this information is relevant or irrelevant
to the discussion here at hand?
MR. WHITE: Certainly. At this point I can tell you what is
going to be testified to is what was in the materials that were
submitted.
COMMISSIONER HALAS: Okay.
MR. WHITE: That would be the case for the entirety of it
because of the fact that his evidence is essentially, quote, new and
there has been nothing put on the record that indicates it couldn't have
been previously discovered at the time the appeal materials were
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submitted.
CHAIRMAN FIALA: You know, it's really helping me, though.
I mean, some of this is explanation. It's helping me to understand
what it is, and maybe, you know --
MR. WHITE: And it may have some, quote, relevance in that
regard and it may not be correct to say that it's relevant or irrelevant.
But I think the nature of the objection you are hearing from the
property owner's representatives and that you've -- has been indicated
in our office's memorandum is that this is an appeal process not a new
hearing and that information was something that --
CHAIRMAN FIALA: Right. And they are appealing but what
they are trying to do is explain their appeal. I think many times we
seem to be stopping them and all they are trying to do is explain the
appeal. And I would like to just continue to move forward and get this
taken care--
MR. WHITE: Commissioner Halas had asked and I'm just trying
to give him a complete answer, okay?
CHAIRMAN FIALA: Okay. Thank you.
MR. WHITE: Thank you.
CHAIRMAN FIALA: Go ahead, sir.
MR. TRECKER: Good afternoon, Commissioners. As Mr. Pritt
indicated, my name is Dave Trecker. I'm chairman of the board of
directors of the Pelican Bay Foundation. This is the master
homeowner association in Pelican Bay. We represent all of the
homeowners, some 13,000 residents, about 4,900 of whom are
registered voters. In addition we own, operate and maintain all of the
common areas in Pelican Bay, including property adjacent to the Cap
d'Antibes site. And this includes a section of the boardwalk leading to
the beach, it includes a tram parking area and it includes a portion of
the berm.
Ownership information on this is contained in written material
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we submitted under Tab Number 9. Now, I have a single message to
deliver to you today and I'm going to be very brief. And
Commissioner Coyle preempted some of this, but what I want to do is
go beyond the members who are here today, all of whom, I think it's
very clear, oppose this. The community, the entire community
opposes building this structure. Thousands have signed petitions
opposing it. A survey conducted last year indicated that an
overwhelming majority of the residents object to this 650-foot wide
monolith. The community is unified in its opposition to this, and
that's a message that I want to deliver to you today. A cross-sectional
group of folks from the community are here to indicate their solidarity
but the opposition is deeper than that, goes beyond just the attendees
today.
Now, the community has no problem with the two towers
indicated in the original site development plan and you've seen these
from a number of the presenters. We strongly, on the other hand,
object to the massive structure now planned. There's widespread
belief that Cap d'Antibes, if constructed in its current form, would
severely damage the character of Pelican Bay and could have a
devastating effect on property values. This is a widely held belief in
the community. And I would urge you not to underestimate the
bitterness and the anger over this. There's anger about the proposed
building, and there's anger about the process. And, again, I won't be
repetitious. You've heard the details of this previously, the fact there
was no public hearing on what amounted to be what we consider a
very large deviation from the Land Development Code.
We feel this is a serious matter for Pelican Bay and, in turn, a
serious matter for the county. Again, my message to you, and I'll
conclude with this, the community is unified in its opposition, the
community does not want this building. Thank you.
CHAIRMAN FIALA: Thank you, sir.
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MR. PRITT: I believe we wanted to have an opportunity to cross
examine Susan Murray, and my partner John Blakely would like to
ask just a couple questions. We're not --
COMMISSIONER HENNING: Are we done with the
presentation?
CHAIRMAN FIALA: They have two speakers.
MR. PRITT: I have two more.
CHAIRMAN FIALA: Is this -- is this the one of the two
speakers?
MR. PRITT: No. I have two expert witnesses but we also want
the opportunity -- we have not had the opportunity to cross examine
Susan Murray and we would like to do that.
CHAIRMAN FIALA: What about your other two speakers?
You want to do that --
MR. PRITT: We'd be glad to put them on next.
MR. BLAKELY: Madam Chairman, this is part of our
presentation, is cross examination of Susan Murray, whose decision it
was that made -- brings us all here today.
So, Susan, will you please put on the visualizer Section 7.04.03?
COMMISSIONER HENNING: Madam Chair, are you
comfortable with this? It's your-- your call on the proceedings here,
on whether--
COMMISSIONER HALAS: I didn't think we were in a court of
law as such. Are we?
CHAIRMAN FIALA: That's how I feel, too.
MR. WEIGEL: We're getting closer.
COMMISSIONER HALAS: Well, it's about time somebody
takes -- guides us here. And I'm looking for guidance from you.
MR. WEIGEL: Commissioner? Commissioner, we have been
speaking up and guiding. And the fact is, we set the grounds rule
earlier, and that was that they would make their presentations. And I
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indicated that there would be an opportunity for examination and cross
examination.
He's, you know, attempting to go forward at this point, but the
question was, and that's why I'm speaking up, is to say the
understanding was not -- we're getting to a point where the
presentation is being broken up by attempts to come back across the
aisle, so to speak, to staff. I think that that opportunity should be there
but I think that you're looking for and I'm looking for, and my
understanding as we discussed the proceedings earlier today was,
within a 20 or so minute time period they would make their
presentations. And, as it turns out, we don't even know, or maybe we
know now, this afternoon, whom all they have to present. But we
didn't know that all this morning. Did we?
CHAIRMAN FIALA: No, no, we sure didn't. And I didn't
realize we were going to -- I think -- you know, to me it would flow
pretty smoothly if everybody just got up and made their presentations
instead of stopping and starting and cross examining. I'm certainly
happy to have you ask questions, but now, you know, you kind of lose
the thrust if you stop and start. If that's the way you want to do it,
you've got ten minutes, sir, and then we'll give the --
MR. BLAKELY: Okay. I don't need ten minutes. I would be
finished if I had just been able to ask my few questions.
CHAIRMAN FIALA: Very good. Thank you.
MR. BLAKELY: Susan, have you put the -- on the visualizer,
please.
MR. MUDD: State your name, please.
MR. BLAKELY: My name is John Blakely. I'm an attorney with
the Roetzel & Andress. I represent Pelican Bay Foundation with Mr.
Pritt. Thank you.
Now, Susan, we're here today, aren't we, because of Subsection C
of the 7.04.03, in that your staff made a determination that the Cap
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d'Antibes project on the amended -- amendment to the site plan fell
within the exception under Subsection C; is that correct?
MS. MURRAY: I didn't understand your question. You had two
questions there. What -- what exactly are you asking?
MR. BLAKELY: All right. I'm asking you if the amendment to
the site plan that was granted to the developer was granted pursuant to
Subsection C of 7.04.03 of the PUD.
MS. MURRAY: With respect to the reductions in setbacks, yes.
MR. BLAKELY: Okay. And, as I understand your response,
that you sent to us, to our request for an official interpretation, you
have inter-- interpreted the first clause of Subsection C where it says:
In the case of clustered buildings, you have interpreted that to also
include a single building that has dwelling units within that building,
clustered.
MS. MURRAY: You're asking me if I've interpreted that to
mean a multi-family dwelling unit, as in--
MR. BLAKELY: A single -- I'm asking you if you've interpreted
the first clause to include just a single building that has dwelling units
clustered within it.
MS. MURRAY: Okay. You're referring to C, then.
MR. BLAKELY: Yes.
MS. MURRAY: Okay. And the case of clustered buildings.
Then I would answer yes.
MR. BLAKELY: Okay. Now, and you-- and that is -- and that
is important here because in fact there are no separate buildings that
are being clustered but rather your interpretation that dwelling units
within one building are being clustered, which allows it to qualify for
Subparagraph C.
MS. MURRAY: Dwelling units within one building and
buildings themselves. The other thing you have to think about also is
that single dwelling units are permitted as a permitted use in this
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group. So one might also opine that, rather than building single
family homes, the developer has chosen to group them all into one
building.
(Laughter.)
CHAIRMAN FIALA: Please.
MR. BLAKELY: Are you saying then -- I want to understand.
You're saying that dwelling units within a high-rise condominium are
separate buildings themselves within a master building? MS. MURRAY: No, I didn't say that.
MR. BLAKELY: Okay. I thought -- well, isn't it true that in this
particular case there is one building that you have considered, this
proposed Cap d'Antibes building and you have determined that, that
your -- as I understood your response, your written response, that you
are considering clustering individual dwelling units within that
building to satisfy this requirement?
MS. MURRAY: I am opining on the facts of the approval of the
site development plan and what staff did when they reviewed and
approved the site development plan.
MR. BLAKELY: I understand that -- you weren't there at the
time; is that correct?
MS. MURRAY:
MR. BLAKELY:
I did not approve the plan. I was not there.
Okay. So you're -- but you recognize that
there are not two buildings here under consideration. It's one building,
and you have decided or you've given the opinion to the Commission
that that one building satisfies the requirement that there be clustered
buildings?
MS. MURRAY: I don't believe that's what I'm saying. I'm not --
I'm still, again, not sure of your question.
MR. BLAKELY: Okay. Well, what buildings are being
clustered?
MS. MURRAY: The unified plan together is being clustered.
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There's several buildings within that entire unified plan that have been
-- have enjoyed the reduction and reduced setbacks, the St. Pierre and
the St. Laurent.
MR. BLAKELY: So you're saying that those three buildings in a
row are clustered now, or would be clustered?
MS. MURRAY: No. All I'm saying is that several buildings
within the unified plan of development have enjoyed reduced setbacks
as a result of the application of 7.04.03(C).
MR. BLAKELY: Okay. As ! understood your testimony this
morning, you initially said that the definition of cluster under the Land
Development Code in Section 2.6.27 was not applicable, but now
you've changed your mind and you've determined that it --
MS. MURRAY: No. And I need to make a correction or
actually expand my statement on the record, and if now is the
appropriate time to do so, that's fine. I really wanted to kind of save
that to the end.
! didn't realize we were going to rehash this again, but I can do
that now if you wish. I just need to get my notes.
Okay. If I understand correctly you want me to discuss again the
MR. BLAKELY: Well, my question is that, do you agree today
that the definition of clustering in the Land Development Code under
Section 2.6.27 would be applicable in interpreting the word clustering
in the planned unit development?
MS. MURRAY: Again, I'm sorry. I'm still not following your
question. What -- could you say it again?
Okay. The term clustered is used here in the
MR. BLAKELY:
PUD, correct?
MS. MURRAY:
MR. BLAKELY:
Correct.
All right.
Land Development Code, isn't it?
The term cluster is also used in the
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MS. MURRAY: That's correct.
MR. BLAKELY: And doesn't the PUD say in Section 2.15 that
if the PUD does not define a word that you should therefore go to the
definition of that word in the Land Development Code, if it's existing?
MS. MURRAY: I would have to look that up.
MR. BLAKELY: All right. 2.15 of the PUD. Just read the very
last two lines of that for me, please.
MS. MURRAY: All other definitions shall be as contained in the
zoning ordinance of Collier County.
MR. BLAKELY: And that refers to the Land Development
Code? MS. MURRAY:
MR. BLAKELY:
Correct.
And the Land Development Code does talk
about clustering in Section 2.6.27; isn't that true? MS. MURRAY: That's correct.
MR. BLAKELY: Okay. And in that section, where it talks
about clustering, does it not say that the purpose of clustering is to
create more usa -- a more usable pattern of open space.
MS. MURRAY: It says, by creating another varied, efficient,
attractive and economical residential development containing a more
usable pattern of open space.
MR. BLAKELY: The purpose of clustering is to create more
open space, isn't it?
MS. MURRAY:
purposes.
MR. BLAKELY:
your --
MS. MURRAY:
MR. BLAKELY:
It can be. That's one purpose. There's many
All right. And it -- but that -- it says that in
It says that in the code, yes.
Okay. And in this case the amended site plan
in fact goes the opposite direction; doesn't it reduce the amount of
open space from eight acres to seven-and-a-half acres?
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MS. MURRAY: That is not a calculation I did. That is
information that I know is -- has been presented, but I can't speak to
that in an official opinion.
MR. BLAKELY: Okay. All right. Okay. I have no other
questions.
MR. PRITT: We would have David Depew testify next. He's a
planner.
MR. WHITE: Madam Chair, I'd just caution you and the Board
members that, based upon my prior review, again, of what was
submitted on March 2nd, Mr. Depew's affidavit, that there be a
continuing objection from the perspective of it being, quote, new
evidence that could have been discovered at the point in time that the
appeal was filed. In that sense I think that it's inappropriate, but I
certainly also caution that you could try to distinguish between those
comments he may make that are planning opinions and ones that are
not.
MR. YOVANOVICH: Just for the record, we'll join in the same
objection, that this information was not part of the appeal, could have
been discovered and was not presented timely.
MR. MUDD: Could I please have the name of the voice again,
please, for the clerk?
MR. YOVANOVICH: Again, Rich Yovanovich. I apologize.
MR. DEPEW: For the record, David Depew representing
Pelican Bay Foundation, Inc. And thank you again for the opportunity
to come and speak to you today.
I'm here in my guise as a planner and, speaking to you from that
area of expertise, I can tell you that I was asked to review the
documents associated with this case and, in doing so, I reached a
number of conclusions.
First off, in terms of clustering, I believe that the explanation
produced by staff with regard to clustering is insufficient and
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inconsistent with the generally accepted standards of the planning
discipline. The concentration of buildings on a portion of this site, as
you've already seen here, does nothing to increase open space,
recreation areas or protecting environmentally sensitive areas. In fact,
it decreases the amount of open space on the site, which is one of the
principal elements of the concept of clustering.
The parcel in question, I believe, does not qualify for a
determination as clustered if you compare it with the prior site plan.
You're not getting larger buildings with larger footprints and then able
to consider that as clustered. Everything about the proposed site plan
really moves against the concept of clustering. And the idea that, that
you can cluster something and end up with a larger building and less
open space is really turning the concept on its head.
Staff determined that the project has a common architectural
theme, it appears, based on some conclusionary letters that were
provided by architects. The record does not reflect that the staff had
any real description of the current architectural theme or any -- any
drawings or elevations that would really reflect whether or not a
common architectural theme existed within the project. And I would
submit to you that the authority to delegate that kind of determination,
I was unable to find anywhere in your code, to these letters from these
outside architects. I believe the staff has to engage in their own
analysis and their own discovery to make that determination.
There was no record that any such determination or study or
research was done and presented at any point during that
determination. And indeed it doesn't appear that -- that really the
adjoining structures were ever adequately considered in terms of a
common architectural theme.
The adjoining properties, I believe, are ones that need to be
reviewed. We took a look at the overall process. I understand that
there's a continuing objection with regard to bringing in any additional
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material, but I think what's physically on the ground is something that
needs to be considered and what should have been part of the overall
process when it was undertaken. If you take look at the actual
proposed footprint, compare it to the prior footprint and the exhibits, I
believe, were already before you, you can see the rather distinctive
difference in terms of the mass and the structure that has been
proposed on the Cap d'Antibes project.
If you take a look at that structure with regard to the adjoining
property to the north, the St. Raphael development, you will see that
the Cap d'Antibes project and building is much more obtrusive in
terms of mass and scale. I did an analysis on this. I have an exhibit
over there that demonstrates that and I believe you've been provided
with -- through my affidavit on the -- that was submitted, I believe, on
the second, with the evidence with regard to that.
Your Growth Management Plan requires that development has to
be compatible with and complementary to surrounding land uses. And
I believe that the question of whether or not the Cap d'Antibes project
is in harmony with its surrounding land uses is the real question of
compatibility. And whether or not there has been a communication of
negative or deleterious effects from the proposed project or will be
from the proposed project to the existing development in the area, I
believe that the proposed project clearly is not going to be compatible
because there are going to be deleterious effects.
And a review of the exhibits that you've seen already from this
morning showing the footprints and how those footprints align vis a
vis the existing development in the area demonstrates that lack of
compatibility.
Finally I would submit to you that the nature of the decision that
was made by staff I believe is outside and beyond the scope of what,
what they were able to do as -- in terms of administration. Rather than
moving the building envelopes or changing an access point or moving
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the internal rights-of-way, what happened as part of the approval was
that an entirely new building envelope of much greater extent and a
building of much larger mass and scope was approved. I believe that
is not what was intended in terms of what your code describes in its
provisions with regard to making kind of these kinds of adjustments
administratively. So I think from that standpoint that goes beyond the
scope of what -- what the staff would normally have been expected to
be involved in in terms of any kind of administrative amendment.
That concludes my analysis in terms of the overall general detail or
overall general provisions of the proposal and my analysis of the
documents.
I'll be happy to answer any questions the Board might have.
MR. PRITT: Next would be Raymond Fenton, architect.
MR. WHITE: While Mr. Fenton is coming up, Madam Chair
and Commissioners, I'd merely add to my comments before that,
although I have not to my knowledge seen any information from this
gentleman going back at least to Mr. Depew's testimony, not only are
comments about it not being in the record but I think that much of
what he testified to, as Commissioner Halas has indicated, is not
relevant in the sense that it pertains more so to the SDP review process
and not to this official interpretation of the PUD.
And I will have to play it by ear as to Mr. Fenton as well as Mr.
Weigel and I imagining the property owner's representative because I
do not know what he's, he's going to say nor if he's testifying as an
expert or not.
MR. FENTON: Thank you. My name is Raymond Fenton. I'm
an architect in the State of Florida. I've been in practice in Southwest
Florida for 30 years. I have been employed by the foundation to
examine the plans for the Cap d'Antibes and whether they meet the
standards for clustering, whether they meet the standards for a
common architectural theme. I'm going to be very brief because I
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could not possibly be as articulate as Professor Tate and most of my
testimony would be duplicate to her testimony and you have my
affidavit in the file.
There's just a couple of things that I think need to be emphasized
in addition to the issues of open space. The definition in your code of
open space includes the open space between buildings and around
buildings, and in this particular case the reduction of side yard setback
has significantly reduced that open space between buildings, by
definition.
And of course by definition the Cap d'Antibes project reduces
open space and therefore does not meet the standards for clustering.
An important area not particularly visited, and I noticed in the exhibits
that are a part of the file, is that the site plans do not include the
adjacent property, whereas your code requires that, in plan review,
that the activities are not injurious to the neighbors and adjacent
property owners.
To the north side is a condominium called St. Raphael. The
addition -- or the reduction, excuse me, of side yard setback by 50 feet
significantly reduces the view to the southwest from that existing
building of St. Laurent-- St. Raphael. The increased shadowing on
their property, which will be right over their recreational area, is
injurious to them.
In the first case, when view is removed you're not only losing
your personal rights and privileges and assumptions based on what
was planned to be there when you bought, you're also injured in the
form of real estate values. The increase in the reduction of setbacks
between two structures that face the water -- during a storm event it's
quite logical that water and wave action between two buildings closer
together is going to be more damaging to the adjacent structures than
if the buildings were further apart.
I would like to just reinforce the area of there being -- there not
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MR. PRITT:
MR. MUDD:
are signed up.
being a common architectural theme. In my affidavit you'll see that I
came to the same conclusions as Professor Tate. The Cap d'Antibes
building of course is so huge, and its predominant features are
different than the other two. And even more important there is no
common architectural theme among the existing two buildings, if they
are indeed to be considered as a part of the clustering proposal.
What is most important is the issue of harmony. In our
vocabulary we use rhythm and harmony. And .what was expected in
the original PUD was there be a rhythm and a pattern of certain sized
buildings and certain separations between those buildings, and that
that would continue on down the beach. And in fact that has
continued on down the beach with the now exception of the
application of Cap d'Antibes. Thank you.
CHAIRMAN FIALA: Let's see if we're finished here, please.
Okay?
Are we finished now, sir?
MR. PRITT: Madam Chair, we do not have any other official
presenters. I think the others have waived. We had four or five, but I
don't see anybody wanting to jump up, and that would be fine.
At some point we would like -- before the day is over we would
like to make sure that we move our exhibits into the record to be made
part of the record. I know that there's going to be a dispute over that.
We would be glad to wait until the end of all the testimony and handle
all of that at once if that's acceptable to the Chair and to the
Commission.
CHAIRMAN FIALA: Thank you. Okay, fine.
The Board.
Madam Chair, you have 19 public speakers that
CHAIRMAN FIALA: Nineteen public speakers. Okay, fine.
You're next, sir. Oh, I'm sorry.
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Commissioner Coyle?
COMMISSIONER COYLE: I would just like to make a
clarifying statement about something. The staff has been fairly
severely criticized during this process, and I want to make sure that
everyone in the audience and anyone who is listening understands that
there is no member of staff here who participated in granting approval
of the Cap d'Antibes in the year 2000.
CHAIRMAN FIALA: I'm glad you -- say that one more time,
please.
COMMISSIONER COYLE: That there's no person on the staff,
from the County Manager all the way down to all the people that have
been criticized today, who participated in approving or reviewing the
Cap d'Antibes project four years ago. It did not come before the
County Commissioners, so none of the County Commissioners here
have ever ruled on this issue.
The staff was given a very difficult task by you and their task
was to go back four years in their mind and look at the way things
were at that point in time, what the Land Development Code required,
and give an interpretation as to whether or not that particular decision
was supportable. And that's what they tried to do. And I'll submit to
you that it's very difficult and requires a lot of interpretation and,
despite the anger and frustration, I just want you to know that you
shouldn't blame this staff because this got approved initially. They
have had a very difficult task. There are things wrong with the
procedure, apparently, that I know you're frustrated about. There's
nothing we can do about it. We can't go back and solve that problem.
UNIDENTIFIED SPEAKER: They supported it.
CHAIRMAN FIALA: Sir, please.
COMMISSIONER COYLE: You can sign up and speak if you
want to. Okay? I've signed up.
And the -- the important thing here is that there are things we
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cannot go back and undo as far as procedures are concerned. There
are certainly things we can do in the future to keep things like that
from happening before -- or again. But there are only certain things
we can consider and we've gone over those things earlier, that's why
we've been talking about what the relevant issues are. And those are
the relevant issues we've got to consider.
But I felt it was necessary that I make this point on behalf of the
staff. We have a good staff and it's a difficult task.
MR. VOLPE: Commissioner Coyle, this appeal is not intended
to be critical of your staff, and if we have in any way, shape or form
implied that-- we are simply availing ourselves of a procedure that
asks for an official interpretation we are trying to present in an Orderly
way our belief that the staff, not that they're -- did anything wrong,
we're just saying that their interpretation is contrary to our
interpretation of the Land Development Code.
So again, I mean, we're not here to criticize anyone, neither the
Board of County Commissioners, nor the staff. So I've -- if we've
done that in our process, we apologize. We're simply availing
ourselves of an appellate process. We think that what we've said is
that the staff at the time incorrectly interpreted provisions in your
Land Development Code. You are the final arbiter of what the -- what
was meant. You are the final arbiter. So I just wanted to -- and since
you felt the need to say that, felt maybe we criticized. We certainly
don't intend and didn't intend -- and this appeal process isn't a part of
criticizing your staff.
COMMISSIONER COYLE: Good. I'm glad to hear that. Thank
you.
CHAIRMAN FIALA: Commissioner Henning.
COMMISSIONER HENNING: I guess a question for Mr. Pritt.
The last architect that got up and gave testimony made reference to
property values. Does he have a degree in appraising property?
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MR. PRITT: Actually, you'd have to ask him, I don't know.
No, he does not.
COMMISSIONER HENNING: Okay.
MR. CRITCHLOW: Madam Chair?
CHAIRMAN FIALA: Yes.
MR. CRITCHLOW: There were some brief questions on cross.
CHAIRMAN FIALA: Well, it's your turn. Now you -- you're on
your own 20 minutes.
MR. CRITCHLOW: Actually, they're going to continue. It was
just cross examination of Mr.--
CHAIRMAN FIALA: No, they are not going to continue.
They're finished.
MR. CRITCHLOW: They said they have 19 public witnesses.
CHAIRMAN FIALA: Well, we're going to hear you first. We're
going to hear everything you have to say, and then we'll hear the
public.
MR. WHITE: Madam Chair, I'm -- I'm at this point frankly not
sure I recall what the order of proceedings were. But I'm not sure that
Mr. Critchlow has actually asked his question or made his statement.
MR. CRITCHLOW: I have not. Mr. Fenton made some
statements that -- that I would like to ask him a couple questions
about. I would like to object. It's a two part procedure.
CHAIRMAN FIALA: Well, why don't you do that on your 20
minutes? I mean, you know, what I'm saying here is, I would like to
move on here. And every time you jump up, then you interrupt this.
If we -- as long as you've got 20 minutes coming, use your 20 minutes
however you want.
MR. CRITCHLOW: I believe we have 40.
CHAIRMAN FIALA: Well, I'm saying your 20 minutes and
then Rich wants 20 minutes.
Oh, you're a team? Okay, fine. You're on for your 40 minutes,
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sir. Go ahead.
MR. VOLPE: Madam Chairman, I just -- for the record, and I
apologize, but we need to -- since the rules of procedure seem to be --
we're trying to develop them in an orderly way -- I'm not sure why
they are being accorded 40 minutes and who they are. This is our
appeal. Your staff has made its presentation in 20 minutes. This is the
affected property owner.
CHAIRMAN FIALA: Right.
MR. VOLPE: But in terms of your -- and your County Attorney
is going to have to advise us in this regard. Under procedural due
process in terms of how they -- under your ordinance, how do they get
20 minutes, number one, or 40 minutes?
Number two is, they are members of the public. There aren't any
special rights accorded to the others. The cross examination of the
witnesses. If you're not a party to the proceeding, how can you cross
examine witnesses? So I guess Mr. Weigel will have to advise you in
that regard.
CHAIRMAN FIALA: Here's what I'm going to tell you. I told
them they could have -- you had two -- two attorneys come up to
speak. I told them they could have two. Twenty minutes. Twenty
minutes. It didn't afford them any more of the expert witness things
that you have presented, and you have 19 speakers waiting out there to
speak on your behalf. So it isn't like you're being shorted anything.
MR. VOLPE: Oh, I'm not saying that. Madam Chairman --
CHAIRMAN FIALA: But I'm giving -- I'm giving them time to
also rebut.
MR. VOLPE: I got 20 minutes because I represent the appellant.
CHAIRMAN FIALA: Right. And they represent the person
who is being accused, if you will.
MR. VOLPE: No. They are not a party to this proceeding. The
reason why you accorded me the privilege --
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CHAIRMAN FIALA: They are representing the landowner,
right? Do they not have a right to speak?
MR. VOLPE: As a part of the public they certainly do.
MR. WEIGEL: Madam Chair, we're getting back to what I
already talked about this morning, and that was, traditionally in these
infrequent but periodic hearings of this nature, we have afforded the
affected landowner the opportunity, similar to a party, to make a
presentation and to examine and cross examine. This is what I said
this morning and I'll say it again now, so it's not new news now.
CHAIRMAN FIALA: Right.
MR. WEIGEL: And I think the question that's being raised --
CHAIRMAN FIALA: And I stated it as we began the meeting as
well.
MR. WEIGEL: Yes. And part of what -- I think the question
that's being raised right now is, we've talked about 20 minutes'
presentation and that's 20 minutes per appeal. Mr. Volpe got 20
minutes. In fact, Mr. Volpe, plus the additional presenters he had, I
think have had significantly more than 20 minutes, if we were to
check the clock. The same with Mr. Pritt and his additional
presenters, have gotten significantly probably more than 20 minutes.
I don't know if we are going to consider the cross examination as
part of the 20 minutes since it was already reached by Mr. Volpe
earlier or not. But I did say earlier that, that both entities, including
the County Attorney on behalf of its staff, would avail itself of an
opportunity to examine or cross examine. And myself, I really don't
care if we call that within the 20 minute or not, but I just observed that
we've gone well beyond 20 minutes and had the opportunity as part of,
quote, the presentation to have cross examination. Cross examination
is--
CHAIRMAN FIALA: And we've already had their cross
examination; is that correct?
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You've cross examined our Susan Murray here. So we've done
that and you did it on a time limit. And so I think that that's where
we've moved.
And now we're at 3:30 and we've got these ladies who must get
up for ten minutes and just stretch their fingers. So --
MR. PRITT: Madam Chair, Bob Pritt. I join in the objection of
Mr. Volpe. That's all I wanted to say.
CHAIRMAN FIALA: Ten minutes.
(A recess was taken.)
MR. MUDD: Ladies and gentlemen, if you'd please take your
seats. Madam Chair, you have a hot mic.
CHAIRMAN FIALA: Thank you very much.
Now, sir, would you like to begin?
MR. CRITCHLOW: Madam Chair, may it please the Board, we
were going to start our presentation with a brief cross-examination of
Mr. Fenton, just so that you'll have that in some level of timing that he
just went. So we're going to ask him a couple of questions, if Mr.
Fenton --
MR. PRITT: On behalf of the foundation, and I'm looking for
Mr. Volpe, we would object to the property owner any -- doing any
presentation or any cross-examination. I want to get that on the record
once so that I don't have to keep popping up and Mr. Volpe does not
have to. We will look for Mr. Fenton, by the way. MR. MUDD: State your name, sir.
MR. CRITCHLOW: I was just going to do that, and I do
apologize. Richard Critchlow on behalf of Parcel J, the property
owner.
Mr. Fenton, my name's Rich Critchlow, I represent Parcel J. You
were sworn to tell the truth before you provided your testimony up
here a few minutes ago, weren't you, sir?
MR. FENTON: Yes, sir.
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MR. CRITCHLOW: Isn't it true, sir, that Pelican Bay as a
project, as a PUD in its entirety, was approved as a cluster concept?
MR. FENTON: That's correct.
MR. CRITCHLOW: So that when the PUD that was ultimately
approved, back in 1977, it was believed that this was going to be
clustered buildings, clustered houses?
MR. FENTON: Well, I come to a different conclusion. It seems
illogical to me that -- when you do a cluster you create a series of
bubbles, and in those bubbles, they had a set of standards that are --
that are different than you find in other zoning regulations.
MR. CRITCHLOW: But sir, it's your testimony, and you
provided that to the Board already, that Pelican Bay was a cluster
concept development.
MR. FENTON: That's correct.
MR. CRITCHLOW: And at the time the PUD was approved, the
LDC was not in existence.
MR. FENTON: I couldn't testify to that.
MR. CRITCHLOW: And in fact, the only provisions dealing
with cluster development that now appear in the LDC did not come
into existence for at least 15 years until after the PUD was approved.
MR. FENTON: I couldn't testify to that either.
MR. CRITCHLOW: So anything that you've told this Board
relative to the use of the LDC, relative to what was intended in the
PUD 15 years before the LDC was approved, is not anything that you
have an expertise to deal with.
MR. FENTON: No, my testimony clearly was that the LDC had
to be applied to the clustering concept as it was being used for Cap
d'Antibes.
MR. CRITCHLOW: My question is different, sir. The LDC
wasn't in existence, therefore, the PUD, when it was created in 1977,
had no intention to rely upon anything in a non-existent document;
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isn't that true ?
MR. FENTON: I thought I heard testimony that referred to
whenever it wasn't stated in the PUD, it referred to the Collier County
zoning code.
MR. CRITCHLOW: Well, was there any provision in the Collier
County zoning ordinances or codes in 1977 that had anything to do
with clusters, cluster developments?
MR. FENTON: I have no knowledge of that.
MR. CRITCHLOW: Isn't it true, sir, that you also have said that
the development regulations which were established within the
Pelican Bay PUD are different than those provided for in other aspects
of the county?
MR. FENTON: That's correct.
MR. CRITCHLOW: And the reason for that is, is because the
PUD in its creation established a contribution of hundreds of acres of
open land and environmentally protected areas; isn't that true? MR. FENTON: Yes, sir.
MR. CRITCHLOW: Sir, are you aware that at a minimum 16
other projects in Pelican Bay of high-rise buildings had been granted
reduction in the minimum yardage under 7.04.03 prior to the Cap
d'Antibes application?
MR. FENTON: Yes.
MR. CRITCHLOW: Is your testimony today the same, that the
wind and the wave currents that are created with the reduction here is
the same with all the other reductions that have been granted in the
history of the PUD?
MR. FENTON: No, sir, my testimony was that the wave
velocity would be increased between Cap d'Antibes and St. Raphael.
MR. CRITCHLOW: My question is different, sir. In any
instance where the buildings are moved closer together, I believe you
said that wave velocity would have an effect?
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MR. FENTON: That's correct.
MR. CRITCHLOW: So that all of the other 16 projects would
have the same issues that you're addressing here with Cap d'Antibes?
MR. FENTON: Perhaps. I have not seen them.
MR. CRITCHLOW: How far away is the ocean from Cap
d'Antibes?
MR. FENTON: Quarter of a mile.
MR. CRITCHLOW: So you're saying to this Board that a
quarter of a mile distance is still going to have a wave effect? MR. FENTON: Yes, sir.
MR. CRITCHLOW: Did you do any wind tunnel tests, sir?
MR. FENTON: No, sir.
MR. CRITCHLOW: I've got nothing further of this witness.
MR. YOVANOVICH: Commissioner, Rich Yovanovich on
behalf of Parcel J.
What I wanted to do, and I'm just going to briefly go back to the
original objection we had regarding the appeal filed by the Pelican
Bay Property Owners Association. And Commissioner Coyle
specifically requested that we let you know where it was that Mr.
Volpe strayed from the original information set forth in his notice of
appeal.
And if I can put up on the visualizer the original notice of appeal
and information submitted by Mr. Volpe when he filed his appeal.
And you'll see it's a two-page document. And there was no basis for
the appeal set forth, nor was there any listing of the information that
he would be relying upon.
And specifically Section 1.6.6 of the code -- and we need to blow
that up a little bit better for everybody to see. If you'll look at the
second paragraph, and it specifically says, a request for appeal shall be
filed in writing, shall -- such request shall state the basis for the
appeal, and shall include any pertinent information, exhibits and other
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backup information in support of the appeal.
Now, it's important that we look at the dates. The original
interpretation is issued on September 29th. The document I showed
you, which was the notice of appeal, was filed on October 27th, 2003.
We then did file a letter of objection saying that the notice of
appeal was insufficient, based upon the requirements in your
ordinance, which are mandatory requirements. 1.6.6 says "shall" state
the basis for the appeal, "shall" include any pertinent information and
exhibits and other backup information. Those are mandatory.
CHAIRMAN FIALA: But you've mentioned two dates, but you
haven't told us what, you know, what's legal there.
MR. YOVANOVICH: Right. And the bottom line is this: He
was required within 30 days of September 29th, 2003, to file a
complete appeal, including the basis for the appeal and all the
information on which he's relying. That information did not come
about until -- and we filed an objection on December 17th, 2003. He
then filed his supplemental information. In reality his supplemental
information was his entire case, because he never told us what his case
was within the 30-day time period. That information is 60 days late,
or pretty close to 60 days late from when he was supposed to -- when
he was supposed to file it.
We believe that this is a jurisdictional requirement, meaning that
he is -- he had to provide all that information to preserve his rights and
his ability to go forward with this appeal. He did not provide that
information and, therefore, the appeal filed by the Pelican Bay
Property Owners Association should not and could not and cannot be
heard by this Board, based on the very terms of 1.6.6.
Now, we objected to that before the hearing went forward. You
asked us to point out where they strayed from 1.6.6 and when it was
that they started to introduce information. They did not start to
introduce information until December 23rd, 2003.
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They then further -- and this is -- I'm just dealing with the Pelican
Bay Property Owners Association. Dr. Raia then further submitted
additional information on May 2nd -- I'm sorry, March 2nd, again in
an attempt to further supplement the record.
I believe that you should not have and cannot rely on any of the
information Mr. Volpe was talking about or relying upon in his appeal
and, therefore, that appeal should be dismissed and not considered.
And we renew that request and we ask that the Board not consider that
appeal, based on it not being timely and not being complete, as
required by Section 1.6.6.
We have a right, as the property owner who obtains the SDP --
and that SDP is a very valuable property right -- to know that there is
finality in obtaining that SDP. And there's a process to file this
request for interpretation. They followed the process, they got their
interpretation. They know what the rules were. Mr. Pritt knew the
rules. He filed a notice of appeal with exhibits. Mr. Volpe did not.
We believe that it would be improper to go forward, and we
would request at this time that you consider the dismissal of that
appeal. And if you have any questions, I'm happy to answer that.
Otherwise, I'll turn it over to Rick and let him handle the rest of the
presentation.
CHAIRMAN FIALA: Commissioner Coletta?
COMMISSIONER COLETTA: All right, this question is not
directed to Mr. Yovanovich, it's directed to David Weigel, our County
Attorney or to Patrick White, our Assistant County Attorney.
What we just heard from Mr. Yovanovich, does it have
something that we should considering at this point in time? I know
there's always two sides to this issue.
MR. WEIGEL: I'll speak first, Patrick.
Yes, it does have something that you should consider. And this
was something that we brought to your attention this morning as well,
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is that there was some, if not significant, material that was submitted
beyond the required time frame for the appeal and that this material
could be problematic in your hearing today, and that it -- an objection
was placed on record early on, and Mr. Yovanovich has indicated that
he believes it's jurisdictional.
Using that as a parlance of court term means that if that
requirement, if that prerequisite is not met, does that mean that you
cannot in fact hear the matter in chief that is submitted thereafter?
And Patrick, chime in, but I would submit that the statement by Mr.
Yovanovich is correct and that the procedure has not been followed
and the language of the procedure is mandatory. It says "shall", and it
did not occur, and the facts are now on the record for you to be able to
make that determination that in fact it did not occur.
And you are in a position to make further determination, either
now or later on in this proceeding, as to the -- I would advise you that
it appears that the prerequisites have not been met barring any further
information or testimony to the contrary, and that you could make a
decision that the appeal must fail.
COMMISSIONER COLETTA: Question, if I may go one step
further. If we were to ignore that suggestion and go forward and fina
-- and finally come up to a determination at the end, that determination
could be challenged, based upon our neglect as far as removing this
part of the element from consideration?
MR. WEIGEL: Well, if you're talking about a challenge in a
court to review the decision that you make today, I think the answer is
yes. But challenge can be filed, rightly or wrongly, and sometimes a
challenge is filed not knowing what is right or wrong and you look to
the other forum, a court, to help determine, subsequent to the
quasi-judicial proceeding that you have today. I'm not sure if there's
some more to your question to answer.
COMMISSIONER COLETTA: Well, just one more part, if I
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may.
If we were to do as has been suggested and to eliminate this
particular agenda item, find it to be incompatible, incomplete or
whatever the terminology is, this wouldn't in any way affect the other
agenda item, we could continue with that?
MR. WEIGEL: Yes, you may continue with the other item.
There are two separate appeals. They, for convenience, have been
rolled together to some extent, but they have a separate identity.
COMMISSIONER COLETTA: Would it be inappropriate at this
point in time if I asked Mr. Volpe to respond?
MR. WHITE: I'd just like to add, Commissioners, one other, I
think, helpful piece of, hopefully, information involving a resolution
that we mentioned in our memorandum, and Mr. Weigel has
mentioned earlier and certainly has been referred to by Mr. Volpe, and
that's 98-167. And therein there's a portion about pre-hearing
submittals. And it says that they should -- that an applicant -- in this
case it would be the appellant -- shall make those applications as
provided in the procedures established for the individual decision
being requested.
What I read that to mean is that here the decision that's being
requested is an appeal hearing of the official interpretation, and thus
the rules in 1.6.6 would trump and apply, rather than those particular
to 98-167. If that helps.
CHAIRMAN FIALA: Commissioner Halas?
COMMISSIONER HALAS: I'm going to throw another wrench
in the gear box here.
What codes do we use to come up with a decision on this? Do
we use the Pelican Bay PUD at the time of its inception, or do we use
the Land Development codes that were in existence in 1991 ?
MR. WHITE: Well, it depends upon what question you're
asking. If you're asking about today's appeal procedure, certainly the
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rules of today's Land Development Code control. If you're asking
about something else, then I have to better understand your question.
COMMISSIONER HALAS: Well, were there guidelines--
when the PUD for Pelican Bay established, since that was one of the
first PUDs in Collier County, were there guidelines that were set that
were predominantly for the Pelican Bay PUD and they did not have to
conform to the Land Development Code that was set forth in 1991 ?
MR. WEIGEL: I think I can answer that. I'll certainly start the
answer. And that is the Pelican Bay PUD was adopted on or about the
year 1977. The Land Development Code, the code before you today,
which of course has been amended since originally approved, it came
into being in 1991. Before the Land Development Code was a zoning
code of ordinances. The previous one prior to our Land Development
Code was, I think, Ordinance No. 82-2 or something like that. It was a
1982 ordinance which was the comprehensive zoning code.
Prior to the 1982 ordinance, there was another group of
ordinances or rules that affected zoning. There was not an absolute
gap in zoning rules whatsoever. But the LDC did not come into
existence until 1991 itself.
COMMISSIONER HALAS: So --
MR. WEIGEL: That's the history behind it.
COMMISSIONER HALAS: But -- okay. And I believe that the
landowner purchased this property in 1991 or thereabouts, am I right
or am I wrong? And maybe somebody could give me some guidance
on that.
MR. WEIGEL: I have no independent knowledge as to the
ownership of the parcel or area involved.
COMMISSIONER HALAS: Well, we got-- I think we have to
make a determination of what set of rules we're going to go by. Are
we going to go by the rules that were set up strictly for the Pelican
Bay PUD, or do we go by the Land Development Code that was
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established -- the Land Development Code as we know it today with
all the changes that are currently going on, but that code that was
established in 1991, is that what we're looking at and using as a
guideline?
MR. WHITE: I think your staffs interpretation clearly indicates,
and the requests for the interpretation themselves similarly are limited
solely to the PUD. That's certainly true for the staff. And I know that
there were questions that seemed to desire to strain the LDC as to its
applicability or not.
But your staffs answer to that, and they can correct me if I'm
wrong, is that this interpretation process, and hence the appeal, ought
to be limited solely to the PUD.
COMMISSIONER HALAS: So are we saying then it's the laws
of the PUD and not the Land Development Code?
MR. WHITE: I have to go back to the initial comment I made --
COMMISSIONER HALAS: Staff, if you have some input into
this, we need to use this as -- I think this is very important.
MR. WEIGEL: Well, the PUD is the controlling document, and I
think perhaps part of the thought process here is it was mentioned by
Mr. Critchlow in his cross-examination of Mr. Fenton -- and I'm sorry
if I'm on the wrong type of response here, but I'm attempting, trying to
try to reach a response for you -- I think that there was a thread of
discussion there, question and answer, that had to do with the fact that
there was a clustering concept that had come into play from 1977 and
onward and did not come to exist purely from the 1991 Land
Development Code and later on, that there was a clustering concept
that was envisioned for all of Pelican Bay, and they also had some
discussion about open space in the big concept of Pelican Bay itself.
And that -- that, of course, that type of thought or discussion or
argument, has nothing to do with the Land Development Code in the
sense that the Land Development Code did not exist at that time. The
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Land Development Code comes into play typically where there's an
absence of definition or description or delineation in the PUD itself.
The PUD is a hybrid zoning document. And the Land Development
Codes are really general rules of zoning regulation. And the hybrid
document typically controls, meaning in this case that -- the Pelican
Bay PUD.
And the point that was made, I believe, and I think this is where
your questioning leads in to, was that long before our Land
Development Code came into being there was a clustering concept
and big picture concept of clustering of buildings and open space
within Pelican Bay. Now, I'm not making that argument myself, I'm
trying to restate to, I think, how the question -- part of an answer to
this question may be realized.
MR. WHITE: And can I apologize if I was going down the other
thread that was the procedural part relating to what the LDC says
about today's hearing, because that was essentially the discussion that
was being held initially when we were talking with folks at the
podium.
COMMISSIONER HALAS: So what you're tell -- I think what
you're telling me then, that we go -- we're going to go by the
guidelines of the LDC that was established in 1991 ?
MS. MURRAY: No, what he's --
MR. WHITE: I'm not sure I'm saying that. What I'm saying is
that for the purposes of today's hearing and procedural matters
pertaining thereto with respect to the party, whether someone's a party
or not, you should look to 1.6.6 --
COMMISSIONER HALAS: Okay.
MR. WHITE: 1.6. It's not specifically .6. But that I thought was
the original discussion when the Board started asking our office
questions.
MR. WEIGEL: Well, what Patrick was indicating, there was in
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terms of what process controls, relative to the submission of material.
The resolution, 98-167 about quasi-judicial hearings does say fairly
specifically that ultimately the specific procedure will apply. And
there is a specific procedure for appeals of interpretations. And that
specific procedure was what Mr. Yovanovich put on our view screens,
which has some mandatory requirements for an appeal to go forward.
CHAIRMAN FIALA: Actually what we're doing now is
discussing whether we're going to accept the appeal or not, right;
basically?
MR. WHITE: Madam Chairman?
CHAIRMAN FIALA: This is the question Rich raised, right?
COMMISSIONER HALAS: My question, basically, whether we
accept this information that's been given to us today or whether we
address B or A of 7, what I'm trying to do is get a handle on, in
regards to the establishment of the Land Development Code -- which
it seems that we're basically encompassed with in the interpretation
that was come -- that staff came up with at the time that this PUD was
approved or this -- this building or the site development plan was
changed, we were using -- were we using the PUD that was
established by Pelican Bay rules or were we using the Land
Development Code that was established in 1991 ?
MR. WHITE: Although I probably --
COMMISSIONER HALAS: All I want is a yes or no.
MR. WHITE: The answer is I think the PUD.
COMMISSIONER HALAS: Okay.
CHAIRMAN FIALA: The Pelican Bay PUD.
COMMISSIONER HALAS: And so the Land Development
Code didn't play a part, really a big part into this?
MR. WHITE: From the staff's perspective, and again, we're
probably again beyond the record, that is true. There was only an
analysis based upon the PUD.
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MR. VOLPE: Madam Chairman, members of the Board, on the
last issue, if I may. Very quickly, three points. One, the Pelican Bay
PUD specifically provides in statement of compliance, the project
shall comply with the applicable zoning and subdivision regulations
and all other county and state laws dealing with platting and
subdivision of property at the time the improvements and plat
approvals are sought.
Secondly, under Section 2.13, amendment of ordinance, this is in
the Pelican Bay PUD, the last sentence says all petitions or requests
for exceptions, variances or amendments -- now, this was an
amendment seeking a modification of minimum yard requirements --
shall conform with the procedures existing at the time of the
application for the exception or the amendment. So the Pelican Bay
PUD anticipates that the LDC is going to be brought into.
And thirdly, the third point I make is simply this: When your
staff rendered its interpretation, it was interpreting the LDC and the
Pelican Bay PUD. And you heard Ms. Murray testify that as it relates
to clustering, these two provisions shouldn't be read together.
But the staff does look to the LDC, and so I submit that in your
consideration, contrary to what I thought your County Attorney is
advising you, is that you have to look at the law that was in existence
at the time that this application was submitted. In 2000. And at that
time, the LDC was adopted in 1988 (sic) or 1999, and it clearly says
that you've got to conform to what the law is at the time. That's -- you
don't pass legislation in 1978 and say that's the way it is and we're
going to ignore it. You know, in changes in law, every time you adopt
an ordinance you -- and in fact, the other thing I might comment is
that these people have requested an extension in the site development
plan and they've agreed to bring themselves into conformance with
whatever the changes in the law may be from the time it was approved
in 2000 to the time it is now. So that the law anticipates there will be
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changes and you need to look at what the changes are at the time. So
on that issue I respectfully disagree that in your interpretation you are
confined solely to the Pelican Bay PUD.
But the whole interpretation, all we're here telling you is that the
staff incorrectly interpreted the provisions of the LDC as they applied
to the PUD for Pelican Bay.
For the record, my name is Michael Volpe. I'm sorry.
So on that issue, maybe we can -- that's your standard of review.
And there is, in the -- in your ordinances, there's a statement of the
standard of review to be used, and you're to be looking at the evidence
in light of the growth management plan, the future land use map, the
zoning atlas and other related matters. So that's the standard of review
that you're applying so that the standard of review requires that you
look at these, because that's what it says, standard of review. We're
looking for competent substantial evidence or we're looking for
whether the interpretation is contrary to law in -- heard in light of the
growth management plan. The growth management plan wasn't in
effect in 1977.
CHAIRMAN FIALA: Have you -- have you gotten the answer
you were looking for?
COMMISSIONER HALAS: Yeah, I hope so.
CHAIRMAN FIALA: Thank you. Rich, go ahead.
MR. VOLPE: On the issue -- Madam Chairman, on the issue of
the timeliness of the appeal, we filed within 30 days of the rendition
our notice of appeal. It was timely filed, with the appropriate filing
fee. It was filed and served as it was required to.
In the notice itself, the basis of the appeal is that the official
interpretation is contrary'to law. That's what we're saying, it's
contrary to law. And specifically said that in support of the contention
that it's contrary to law, we'll submit a memorandum. What was
submitted later was simply my arguments fleshing out why. I could --
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I felt it would be materials which I could have submitted seven days
before or 30 days before. So the timeliness of the appeal, it was timely
appealed.
CHAIRMAN FIALA: Mike, you know what I have to do, I have
to give these people their time now, okay?
MR. VOLPE: Yeah, I'm just responding to the question about
the timeliness of the --
CHAIRMAN FIALA: I know, but if each time they raise a
question you come, then we're going to drag this out for hours and
hours. So I'd like to kind of move it forward, okay? Some of these
people have a bus leaving at 5:30, please.
MR. VOLPE: I just wanted to clarify the issue, Madam
Chairman, about the timeliness of the appeal. And you do have
jurisdiction of this appeal.
CHAIRMAN FIALA: You know what? As I've asked the
Commissioners, write the rest of your comments down, and when
they're finished then we'll start this again, okay? Thank you.
MR. YOVANOVICH: ! would ask quickly that you resolve that
issue, because it could shorten our presentation.
And when he talks about what he submitted after his notice of
appeal, this is it. I mean, this is everything. It's his argument, it's his
documents to support his argument, all of which the code required that
he submit within 30 days. He didn't do it. The appeal was not timely.
We would hope that the Commission will vote at this time not to
consider that appeal, and we'll go on and we'll address the other
appeal, which is 7(A).
And regarding the PUD comment, Mr. Volpe was referring to a
PUD provision that talks about amending the PUD ordinance. We're
not asking to amend the PUD ordinance, we're asking to apply for a
reduction in yards pursuant to the very provision in the PUD that
allows us to do that, 7.0 --
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MR. VOLPE: That says exceptions and variances, Mr.
Yovanovich.
MR. YOVANOVICH: You know, Mr. Volpe, I did not interrupt
you when you spoke --
MR. VOLPE: I apologize.
MR. YOVANOVICH: -- and I would appreciate it if you would
not do that to me.
The ordinance Section 2.1.3 says amendments to ordinance.
That's what it talks about. We're not amending the ordinance, we're
applying 7.04.03, and it's the PUD that controls.
But let's get back to the -- I guess original motion which -- or
request, was for the dismissal of the appeal, so we know how to go
forward with our presentation.
CHAIRMAN FIALA: Commissioner Halas, go ahead.
COMMISSIONER HALAS: Question I have for staff. This was
presented to us. Is this in error then, or is this a legal document that
we can base some of our decisions on?
MR. WHITE: I'm assuming what you have there is the
supplement filed by Mr. Volpe? That looks like Roetzel and
Andress's, which I think is Mr. Pritt's.
COMMISSIONER HALAS: Okay.
MR. WHITE: But your question is whether Mr. Volpe's
supplement --
COMMISSIONER HALAS: Yes.
MR. WHITE: -- is untimely. The answer is it was.
COMMISSIONER HALAS: Okay. All right. Thank you.
MR. WHITE: Under 1.6.6.
MR. VOLPE: The supplement, Madam Chairman, since that's
being -- the materials that were submitted are all materials that were a
part of the staff's file, your record, letters and the like, the official
interpretation. The appeal was filed within 30 days. If you choose--
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your County Attomey has advised you that everything that you're
hearing today is not relevant.
The only thing you can consider is what was before the staff at
the time. That's been the theme here. These are procedural issues that
they're trying -- that they've raised, and very legitimately.
But all of those materials, anything that came in later than the
action of staff, they're saying to you that you can't supplement the
record. So that's a broader question about whether those things that
came in on March 2nd that were part of the supplement. The appeal
was timely filed within 30 days. And whether it's jurisdictional or not
-- I don't believe it's jurisdictional -- it was timely filed. And even if it
were, you're going to deprive these people of the opportunity to have
their appeal heard. And I submit to you that there's nothing in the
provisions of the Land Development Code that divest you of
jurisdiction of this matter that you can consider.
Your staff had 45 days to render their opinion. I think someone
mentioned that the staff didn't render their opinion for longer than that.
And so that doesn't make their official interpretation invalid. These
are time limitations but not jurisdictional. The appeal was timely
filed.
CHAIRMAN FIALA: Commissioner Henning?
COMMISSIONER HENNING: Thank you.
We were told at the beginning that this information was filed late.
And I know how important it is for the Board of Commissioners to
hear the public and their representation. We heard that, and at this
time I think it is appropriate to dismiss the first petition -- or the first
appeal and address the other one, and the public still has the
opportunity to address the other one.
We have 19 speakers at this time, so Madam Chair, at this time --
is it a motion?
MR. WEIGEL: You may make a motion.
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COMMISSIONER HENNING: Motion to dismiss Mr. Volpe's
appeal.
MR. WEIGEL: If you could refer to the petitioner appeal
number, and provide some reason.
COMMISSIONER HENNING: The petition number is
ADA-2000-AR-4933, and the reason is for the appeal process, the
evidence wasn't submitted on time -- or the appeal wasn't submitted on
time.
MR. WHITE: I'm assuming that would be pursuant to LDC
1.6.6?
COMMISSIONER HENNING: Yes.
MR. WHITE: And just to correct, it's ADA-2003-AR.
COMMISSIONER HENNING: Oh, I thought I -- okay.
MR. WEIGEL: As the County Attorney, I've been asked to
repeat motions that are made, and I'll do so here. There's a motion by
Mr. Henning, waiting for a second, to dismiss the Petition No. --
Patrick? Or appeal number.
MR. WHITE: ADA-2003-AR-4933.
MR. WEIGEL: Upon a basis of failure to conform to the
requirements of Section 1.6.6 of the Land Development Code
pertaining to appeal to Board of Zoning Appeals, or Building Board of
Adjustments and Appeals. Specifically that the request failed to state
the basis for the appeal with any specificity and did not include any
pertinent information, exhibits and other backup information in
support of the appeal. So I --
CHAIRMAN FIALA: There's a motion on the floor.
MR. WEIGEL: -- would state it that way.
COMMISSIONER COLETTA: I'll second it.
CHAIRMAN FIALA: I have a second from Commissioner
Coletta. Commissioner Coyle?
COMMISSIONER COYLE: I would just like to ask a question.
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Is there any relief sought by this petition that is not also sought by the
next petition?
MR. VOLPE: The answer to that question is yes, Commissioner
Coyle. The clustering issue is an issue that's common to both, but
your staff did not answer the clustering issue as it relates to -- correct
me if I'm wrong, Mr. Pritt -- the official interpretation. They didn't
answer it.
So this process that we're involved in is going to take the
clustering issue out, number one. Number two, the arguments that
we've made as it relates to how do you measure minimum yard
requirements, that's not an issue that was addressed. Mr. Pritt
addressed how the staff responded to his five questions, and several of
them were not answered.
Part of the reason why they didn't answer them was because they
had previously rendered an interpretation. And if you look at your
Land Development Code again, these are very important issues that
cannot be dismissed lightly.
Frankly, once the staff has rendered its interpretation, the Land
Development Code provides that that interpretation stands until you
reject it, modify it. So they rendered an interpretation as it relates to
clustering in connection with our request. When Mr. Pritt asked the
question -- Mr. Hardt did -- staff said we're not going to answer that
question. And they probably shouldn't have because it said you've
already got it out there, we've already told you our interpretation.
These procedural tactics that are being engaged in are to deprive
the property owners of their opportunity to have you review these
interpretations. And, you know, you have the discretion, I've heard
the motion, I've heard the second. The basis of the appeal is it was
timely filed, it was filed within 30 days. It says the basis was contrary
to law, the interpretation was attached to it and our request was
attached to it. If you told me you can't consider all of those
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supplemental materials, letters and the like, that would be fine. But to
say that you lost jurisdiction on the basis of timeliness is, in my
opinion, going to deprive these people of that issue.
And Commissioner Coyle has said that, you know, we heard the
clustering issue, we've heard the clustering issue. Well, the other part
of what you're going to hear over here on the other side from the
property owner is that when it comes to the presentation of clustering,
he's going to say that that interpretation -- and he'll speak for himself,
but he's going to say that that interpretation wasn't made and so there's
no question there.
So they're going to take that away from the property owners and
you're not going to be able to interpret it. You can interpret it and say
staff was correct, that they properly interpreted the clustering
provisions of the PUD, and you can do that in the context of this
appeal. You can't do it -- in my opinion you're probably not going to
be able to do it in the context of Mr. Pritt's appeal. And that's
significant in the whole scheme of things.
So in answer to your question, Commissioner Coyle I think asked
the question, are there some issues that if we go ahead and dismiss this
appeal as being untimely, are there some issues -- the answer is yes.
And those are critical.
And again, the notice of appeal was filed within 30 days.
Supplement -- it said -- and at the end it said we're going to
supplement it not later than 30 days prior to with a memorandum. The
memorandum is my argument. The appeal was timely. And if you
look at the section that says that -- what's required, it says -- give me
just one moment, because it's so important here.
COMMISSIONER COYLE: Mr. Volpe, let me just finalize my
statement concerning this. I have just scanned the response to Mr.
Hardt from our staff. They very clearly mentioned both the common
architectural theme and the clustering issue here. The issue of
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greenspace is imbedded in that argument, since it is a condition for
clustering. I see no difference whatsoever in the issues to be -- to be
decided between your petition and the second petition. So I would
support this motion.
COMMISSIONER COLETTA: Let's call for the motion.
CHAIRMAN FIALA: Commissioner Henning?
COMMISSIONER HENNING: I'll let it lie.
CHAIRMAN FIALA: Okay, fine.
MR. WEIGEL: Do you close the public hearing at this amount --
at this time to discuss and vote on the motion?
CHAIRMAN FIALA: We close the public hearing for --
MR. WEIGEL: This is actually an advertised public hearing, so
CHAIRMAN FIALA: For 7(B)?
MR. WEIGEL: That's correct, yes.
CHAIRMAN FIALA: So at this time I will close the public
hearing for 7(B).
MR. WEIGEL: You have a motion and second on the floor. I'm
stating ahead what you'll be probably saying. And if you have any
further discussion prior to the vote.
CHAIRMAN FIALA: Thank you. You've said it all.
Okay, Commissioner Halas?
COMMISSIONER HALAS: I want to make it -- I want to get it
on the record, I want to make it clear that everyone here has the
opportunity to speak on behalf of the issues that we're talking here,
about clustering, about greenspace, that this will be brought up in the
next presentation, which is going to be 7(A).
I feel it's very important that the people there in Pelican Bay are
heard, and I want to make sure that if they have anything that pertains
to clustering, greenspace, that this is all going to be heard on 7(A).
And that is -- it's pertinent to what we're trying to accomplish here
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today.
CHAIRMAN FIALA: I just have one more question. I could see
that the appeal was filed. It wasn't filed completely. With it said they
were going to file the rest of it later. And I'm having a problem
deciding -- I mean, I'm having a problem judging, if an appeal was
filed and dated properly, but it wasn't complete, does that mean it's not
acceptable?
MR. WHITE: I think that Mr. Volpe's argument was that
because he had attempted to advise, I guess at that point, the Planning
Services Director he was going to supplement and provide some
substance to his appeal, that it's timely. And I think that -- that he
cannot cure the untimeliness and change the rule just by asking --
CHAIRMAN FIALA: Patrick, try and just answer my question.
When he --
MR. WHITE: I don't think it cures him, Madam Chair.
CHAIRMAN FIALA: Pardon me?
MR. WHITE: I don't think that --
CHAIRMAN FIALA: So in other words, filing the appeal as it
was, but it wasn't complete does not make it acceptable; is that what
you're saying?
MR. WHITE: Yes, ma'am.
CHAIRMAN FIALA: Okay, thank you. I'm sorry, it's hard for
me to -- so I just have to ask it in basic terms.
MR. WEIGEL: Madam Chair, one other thought comes to mind,
before you close the public hearing. Commissioner Halas was talking
about the desire for those who wish to speak to certainly have the
opportunity to speak on the other petition, which is 7(A).
It wouldn't be inappropriate with the speakers that are on file
right now, if they wish to speak on this one and then close the public
hearing and have your motion invoked. That way no one can say who
had signed up to speak they didn't get to sign up and speak on this --
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COMMISSIONER HALAS: That's what I'm concerned about, I
want these people to be heard.
MR. WEIGEL: -- on this particular one. And then there'll be
other opportunity to speak on --
CHAIRMAN FIALA: Okay. So if'we have anybody wanting to
speak on this particular -- do we have any -- anybody signed up?
MS. FILSON: Thirteen.
CHAIRMAN FIALA: Pardon me. 13 for this particular subject
before-- well, we have --
MS. FILSON: A lot of' them say 7(A) and B. But for
Commissioner Volpe's side, I believe I have 13 speakers.
CHAIRMAN FIALA: Okay. Commissioner Halas?
COMMISSIONER HALAS: That's what I want to make sure,
that these people are heard. That's what they're here for today, that's
what they've been sitting out here for today, and I want to hear from
them.
CHAIRMAN FIALA: But we want to hear them on the legality
of the appeal, right?
COMMISSIONER HALAS: I don't think that should even enter
into it--
CHAIRMAN FIALA:
That's what we're talking about right now
COMMISSIONER HALAS: -- we should have -- let these
people that are here, because they did not know--
CHAIRMAN FIALA: Well, yeah, we do want to hear that --
COMMISSIONER HALAS: -- they did not know that this was
-- that we're to this point in the deliberations of what we're going to
do. And I still feel that they should be listened to.
CHAIRMAN FIALA: Absolutely. Do you want to have them --
COMMISSIONER HALAS: I think we ought to reopen this --
CHAIRMAN FIALA: I would. I would, Commissioner Halas.
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March 9 & 10, 2004
Let me just -- just so that I understand, okay? COMMISSIONER HALAS: Sure.
CHAIRMAN FIALA: Okay. Right now we have a motion on
the floor and a second for the appeal, whether it's acceptable or not.
Not about all of the other things, right?
COMMISSIONER HALAS: Okay, then when are we going to
let the --
CHAIRMAN FI^IJA: Well, next. This -- I under -- let me just
make sure, because I want to make sure nobody is left out of this
equation.
By voting on this, does this mean that nobody can talk about the
rest of their concerns?
MR. WEIGEL: No, of course they can talk about -- in their three
minutes they can talk about anything they want to. But you did have
speakers signed up and Ms. Filson's indicated that some were for 7(A)
and 7(B) and some were for 7(B). So any of those that at least signed
up for 7(B), whether it was a combination or singularly, can still
speak. And this isn't untoward or different from general Board
meetings where from time to time the Board will put a motion on the
floor and then allow speakers to come --
CHAIRMAN FIALA: Right. I'd be happy to open the meeting
back up --
MR. WEIGEL: You actually haven't closed it yet. I suggested to
you that you could, but when we got into this discussion --
CHAIRMAN FIALA: But I really did close it, so I have to open
it back up again.
MR. WEIGEL: All right.
CHAIRMAN FIALA: Yes. Commissioner Coyle, then
Commissioner Coletta.
COMMISSIONER COYLE: Let me see if I can propose a
solution that I think will work to the best advantage of the public here.
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The public is interested in challenging the legality of these
interpretations by staff, okay? I don't think the public is interested in
trying to debate the LDC requirement that requires something to be in
in 30 days and be complete.
Now, if the public were to come up now and speak at a time
when we are debating an LDC requirement that governs the timing of
submission of a petition, they're going to want to talk about setbacks
and additional open space and that sort of thing. But that's not what
we're considering now. If we -- once we consider this issue, we will
then go into the other petition which addresses all of the things the
people here are interested in. And that's when I would encourage the
public to speak, because I think it's at that time that your opinions
would have the greatest impact on the decision. Otherwise, it appears
to me you'd have to do it twice: Speak now about something that
really has nothing to do with setbacks or clustering or open space, or
let this particular motion play out and then we have to go right back
into the process of considering the issues that you are sitting here to
try to resolve. So that would be my recommendation.
CHAIRMAN FIALA: Well, I just -- that's exactly what I was
trying to say before was, you know, we should finish this subject
before we get on to the next. But I wanted to make sure that by voting
on this subject we did not then deprive them of speaking on the next
subject. We wanted to make sure -- now, this doesn't null and void the
next subject; is that correct?
MR. WEIGEL: Oh, absolutely not. This is --
CHAIRMAN FIALA: Okay, fine.
MR. WEIGEL: -- totally separate from 7(A).
CHAIRMAN FIALA: Okay, Commissioner Halas -- oh, and
Coletta. I'm sorry, you were first.
COMMISSIONER COLETTA: Yes, I was. I just wanted to say
that you and Commissioner Coyle have it right. But one of the things
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March 9 & 10, 2004
that they have a right to do is you have to speak twice. And if you
want to vary from the subject a little bit and be able to do it twice,
that's your option also. Of course, you also have the option to waive
and then we can move on to the next item which will have more merit
to what we're trying to deal with.
COMMISSIONER HALAS: But also -- also I think there's some
people here that said they had to catch a bus or transportation back.
So I feel that why -- they're here today, they spent all day today, let's
give them the opportunity to speak out. And then that way they can
catch a bus, go home, and then we can go on with the deliberations on
this thing and make a determination. I'm sure that these people, once
they speak, that they'll get the point across and I don't think they'll
come back and want to speak again a second time.
CHAIRMAN FIALA: Right. Do we have anybody who has
signed up to be a speaker, anybody in the audience who wanted to
speak on this particular item, which is the appeal? (No response.)
CHAIRMAN FIALA: Okay, fine. Everybody wants to speak on
the --
MR. PRITT: Madam Chair, you're talking about 7(B) now,
which is the Property Owners Association.
COMMISSIONER HALAS: Right.
MR. PRITT: Okay.
COMMISSIONER HALAS: That's who is out there, the
Property Owners Association.
CHAIRMAN FIALA: Right. And so what we're talking about
right here is whether-- we have a motion on the floor and a second
with regard to accept the appeal or deny. That's pretty well basic,
right? And so --
COMMISSIONER HALAS: The point I'm trying to make, it's
4:30. These people want-- would like to speak because they represent
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March 9 & 1 O, 2004
the Property Owners Association, and some of them have got to catch
transportation.
MR. VOLPE: The transportation can be adjusted, Madam
Chairman, I've just been told that. There are a number of people who
have registered to speak. Probably won't take very long. They've
registered to --
CHAIRMAN FIALA: If you want to have them all up now,
that's --
MR. VOLPE: Yeah, I think that's what we're talking about in
connection with the appeal that was filed on behalf of the Pelican Bay
Property Owners Association.
It's unfortunate that the issue on the procedures that have just
come up and on which there is a motion didn't come up at 9:00 this
morning. And again, I object to the action that is occurring --
CHAIRMAN FIALA:' Well, they never had a chance to, because
I gave you the option first of presenting -- MR. VOLPE: No, no, the staff--
CHAIRMAN FIALA: That's my fault. I don't want to --
COMMISSIONER HENNING: Madam Chair, I want to correct
that. It was brought up in the beginning of the meeting, okay? So --
but knowing that the Board of Commissioners wants to hear the public
and the public's representation, Mr. Volpe, we went ahead with it,
okay?
MR. VOLPE: But on that basis then maybe we should have the
rest of the people who have registered to vote -- to speak to come up
and address the Board.
MR. YOVANOVICH: Madam Chair, if I might, first of all,
there's a limited motion in front of you. It's on the procedure of
whether or not 7(B) should go forward. We haven't even presented a
case yet. If they're going to come up and just speak on whether or not
you should dismiss 7 -- no, it's 7(B) that we're talking about, 7(B). If
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March 9 & 1 O, 2004
they're going to come up and speak about dismissing 7(B), fine, but,
you know, we haven't even presented our case. We'd like you to tell
us whether or not there's going to be a hearing on 7(B). I think there's
a motion, and if it's appropriate, if we could just vote on the motion
we'll know. They're still here and able to speak on 7(A), which -- and
I'm sorry we took it down. Commissioner Coyle is absolutely correct,
the central issue in this dispute, which is clustering and common
architectural theme, was raised in the appeal on 7(A). So these people
will have an opportunity to speak on that issue in 7(A).
CHAIRMAN FIALA: Well, that's kind of what I thought we
were saying all along.
And we're not trying to stop anybody from talking. They've
rearranged some transportation issues. And as soon as we can stop
beating this one to death and vote on it, then we can move on to letting
everybody speak. Is that all right with everybody, Commissioners?
COMMISSIONER COLETTA:
CHAIRMAN FIALA: All right.
And all in favor, say aye --
COMMISSIONER HENNING:
COMMISSIONER COLETTA:
Madam Chair, it's your call.
Call for the question.
No, no, no.
Hold it, hold it, hold it.
CHAIRMAN FIALA: Oh, I have to close the public hearing,
right?
COMMISSIONER COLETTA: No, more than that. I'm sorry, I
got a real problem here.
I don't see why we want to take away the right to speak.
CHAIRMAN FIALA: Jim, we're-- I mean, Commissioner
Coletta, we're not trying to stop them from speaking.
COMMISSIONER COLETTA: No, I know that, I know that.
But, I mean, we got two different items: We got one up before us now
we're going to do finality to it, and I did make the second for it. We
have people out there that may have to catch a bus, they may be able
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March 9 & 1 O, 2004
to stay, they may just want to leave. But in any case, even if they
spoke twice, I don't have a problem with it. I imagine a number of
them are probably going to want to wait.
CHAIRMAN FIALA: But don't you want them to be addressing
the subject at hand? I mean, you don't want them to talk about
something else when we're focusing on this, right?
COMMISSIONER COLETTA: It's just-- the way -- I feel it's
their vested three-minute time period, to be able to use it --
CHAIRMAN FIALA: Yes, but we're going to give them all that
after we stop beating this to death.
MR. VOLPE: Madam Chairman, the only comment that I would
have, and I apologize again, but you're about to move on a motion to
say that the appeal was untimely --
MR. YOVANOVICH: Madam Chairman?
MR. VOLPE: If there's a further appeal -- ! just need to say, if
there's a further appeal, we would like to have a record so that all of
our case is before the Board in terms of its interpretation. So I'd ask
you just to defer a final vote on that motion until you've heard these
people speak, then you've got whatever information, your County
Attorney, whether you can consider it or not, then you can make that
determination. But that's all I'm saying.
MR. YOVANOVICH: Can I offer a compromise?
COMMISSIONER COYLE: Then you're then going to have to
give the other side the opportunity to speak also. CHAIRMAN FIALA: Absolmely.
MR. YOVANOVICH: Why don't we do this --
COMMISSIONER COYLE: So you're talking about at least
another hour -- no, another two hours before we ever get to the point
of considering this particular motion. Because you not only are going
to have 13 people come up and speak, but in all fairness, you've got to
have the other party present their position concerning this particular
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March 9 & 10, 2004
motion and why it should be approved. So we're talking about
probably at least another two hours --
CHAIRMAN FIALA: And just for the record, I'm leaving at
6:30.
COMMISSIONER COYLE: -- before we ever get to vote on this
particular item. So we won't get to the central issue of the validity of
the staffs interpretation of Cap d'Antibes until sometime around 8:00
tonight. And that's assuming we don't break for dinner.
Now, I understand that -- the intense interest by some of our
Commissioners to make sure the public is heard, and I think we should
do that.
COMMISSIONER HENNING: We do.
COMMISSIONER COYLE: But I think the public should be
heard on the subject at hand. And if we're going to have the public be
heard, then they must discuss, in my opinion, the question of
timeliness of submission and the code that requires this to be
submitted in that period of time, and they would have to address why
it wasn't submitted or why it was submitted and provide competent
evidence to suggest that it does meet the requirements.
Now, if you have speakers who are qualified to make those kinds
of statements, I'm happy to listen to them, but I think it's a waste of
your time and the public's time to come up here and speak about
something that has no relevance to what we're talking about, and then
when we get into the relevant portion, they might be gone. And I
don't want to see them get gone at that point in time. I want to be able
to hear them when we get into the revelant -- revelant (sic)
discussions.
MR. VOLPE: Commissioner Coyle, the issue that is being
addressed now is a legal issue, question of timeliness of appeal,
whether it was complete or not complete. Your County Attorney has
given you some guidance in that regard. It's a question of an
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March 9 & 1 O, 2004
interpretation of another provision of the LDC.
At the outset, the procedure was we've got a consolidated hearing
on both. So I think that we're going to get to this question of proper
interpretation, clustering and the like. And it may be whether you vote
on this motion now or you defer, that same testimony I'm sure is going
to be offered. You've already assured yourself of the fact that the
staff, they've cross-examined witnesses, that you're going to have
them develop their record on those issues, so we're going to have the
same record. So it's still going to be --
COMMISSIONER COYLE: Is it your intent to present that
evidence twice?
MR. VOLPE: No, it's under the consolidated hearing. We
presented --
COMMISSIONER COYLE: No, no, no. There's no
consolidated hearing. We're voting separately on these two issues. So
don't try to confuse those two points. Now we are considering these
issues separately. We adopted a procedure for convenience for all
involved.
But my question to you is, are your public speakers, the people
you want to speak, are they going to speak twice on this subject, on
the issue? Or are they only going to speak one time? And if they're
only going to speak one time, don't you want them to speak at the
point in time when we're considering that issue?
MR. VOLPE: Well, the issue -- I guess I'm confused. But I can
only tell you, I don't know what the public is going -- I don't know
what each one of these speakers are going to say. I don't know that
they can in their own minds sort out between 7(A) and 7(B). I think
you should just hear them speak on the issues that are important --
CHAIRMAN FIALA: Let me interrupt you, please.
Commissioner Halas, who is the Commissioner for this district
would like to hear everybody speak; is that correct?
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March 9 & 1 O, 2004
COMMISSIONER HALAS: That's correct.
CHAIRMAN FIALA: Let's go on. We'll hear them.
MS. FILSON: And I received two late speakers. Shall I include
those as well?
CHAIRMAN FIALA: Yes.
MS. FILSON: And it's three minutes?
CHAIRMAN FIALA: Yes.
COMMISSIONER HALAS: I have one other question --
MS. FILSON: And then I have one other question so that I have
clear direction. Mr. Yovanovich's group had 40 minutes, they're down
to 30. Shall I give them 30 when we return? CHAIRMAN FIALA: Yes.
MS. FILSON: Okay. The first speak--
COMMISSIONER HALAS: Question. I have one question, and
I'm going to give this -- I'm going to direct this to the legal staff. Why
did we -- if this was the case, why didn't we address this issue first
thing this morning so we didn't have to go through this ordeal of eight
hours here?
COMMISSIONER HENNING: We did.
COMMISSIONER HALAS: Well, then we should have voted at
that time. Somebody should have given us the guidance to vote on it
at that time and get rid of it.
COMMISSIONER COLETTA: We got it.
MS. FILSON: Are you ready for the speakers?
CHAIRMAN FIALA: Ready for the speakers.
MS. FILSON: James--
MR. RAIA: I just want to ask a question. And -- to save time. If
you have everybody come up now, is it going to make any difference?
I don't -- I have to agree with Commissioner Coyle.
CHAIRMAN FIALA: I do too, but --
MR. RAIA: I mean, you know, it's one thing to talk, it's another
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March 9 & 10, 2004
thing to be heard. They have to be done together. If they're not going
to be done together, let's not waste time, let's move on. But if we're
going to be heard the second time around and it's going to help you
make your decision, then let's go in that direction. I'd like to know,
since I've wasted a lot of time talking, does that mean that everything I
said has been thrown out and you're not --
CHAIRMAN FIALA: Of course not.
MR. RAIA: All right.
CHAIRMAN FIALA: And what I'd like -- what we've asked for,
but it seems that it's not going in that direction, what we've asked for is
any of the speakers who want to speak on this particular subject. But I
understand that other people might want to speak. So we're not saying
that we're confining --
MR. RAIA: I think I can speak for just about everybody here
that they would not want to speak and not be heard. They would
prefer to wait and --
CHAIRMAN FIALA: Oh, we'd listen to them, but you know --
MR. RAIA: Yeah, but I mean it's not going to affect the ruling
and so let's not waste everybody's time.
COMMISSIONER COLETTA: They can waive. They can
waive. Each person can waive and we can go right through the whole
list. But someone may wish to speak now. MR. RAIA: Ask them right now.
COMMISSIONER COLETTA: No, one at a time, that's the --
we have to do by it the way we always do it.
CHAIRMAN FIALA: One at a time -- and if they waive, then
they have the opportunity to speak when the next subject comes up,
okay? So we need to make that clear.
MS. FILSON: So I'm going to call their names twice?
CHAIRMAN FIALA: Yes, ma'am.
MS. FILSON: Okay, James Weaver?
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March 9 & 1 O, 2004
MR.
MS.
MR.
MS.
MR.
MS.
MS.
MS.
MR.
MS.
MR.
MS.
(No
MS.
MR.
MS.
MR.
MS.
MR.
MS.
podium?
WEAVER:
FILSON:
HULING:
FILSON:
HOBIN:
FILSON:
Waive.
Marc Huling?
I'll speak later.
Jim Hobin?
Waive.
Jacqueline Mendelsohn?
MENDELSOHN: Waive.
FILSON: Baron Herman?
HERMAN: Waive.
FILSON: Merlin Lickhalter?
LICKHALTER: Waive.
FILSON: Dorsey Baldwin?
response.)
FILSON:
OBLEY:
FILSON:
BRAMSON: Waive.
FILSON: Richard McGahren?
Dorsey Baldwin?
Ross Obley?
Yes.
He will be followed by David Bramson.
McGAHREN: I think I'll speak.
FILSON: Okay. Would you like to come up, sir, to the
You'll be next. Right. You're on.
MR. OBLEY: Madam Chairman, my name is Ross Obley.
From 1978 until 1985, I was the senior Westinghouse community
development official for Collier and Lee counties. My staff and I
started Pelican Bay. I've always been proud of Pelican Bay and the
many awards it has received for quality development.
Unfortunately this proposed building, Cap d'Antibes, will be a
blight on this distinguished community and much of my pride will be
extinguished.
The concept of clustering is a key issue in this erroneous county
approval. As we developed Pelican Bay, clustering revolved around
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March 9 & 10, 2004
single-family houses and villas.
Four issues are involved in clustering: Property line setbacks,
building separations, greenspace, and view corridors. When a
restriction on one of these is relaxed, such as building separation, the
other issues, such as greenspace and view corridors benefit.
In this proposed building, all four issues are lost. I have heard
county officials state that building separations have been relaxed in
Bay Colony for high-rise or Group 4 buildings. As this area is an
unseen gated community, I don't know whether they're right or wrong.
But I do know that the string of high-rise buildings along Pelican Bay
Boulevard where this building is proposed have consistently adhered
to the original concept. Add the heights of the two buildings, two
adjoining buildings, divide by two, and the result is the obliged
separation.
For example, if one building is 200 feet high and the next one is
150, you divide 350 by two and that requires 175-foot separation.
That separation, which we have along Pelican Bay Boulevard,
continues down Crayton Road in Pelican Bay. A building of this size
does not belong along Pelican Bay Boulevard where all can see it.
Nor do ! believe it belongs anywhere within Collier County. Thank
you.
MS. FILSON: 'David Bramson. He will be followed by Richard
McGahren.
MR. McGAHREN: Ladies and gentlemen, I'm a resident of the
St. Raphael. When I was attending college, I took a course in legal
institutions. And one of the first concepts that was discussed by the
professor was the concept of procedural due process, and he also
discussed the concept of substantive due process. Procedural probably
deals with things like notice of people. Substantive due process deals
with the correct application of the law to the particular matter.
I believe that the determination in this appeal represents an
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March 9 & 10, 2004
appalling denial of both procedural due process and substantive due
process. And it represents a gross violation of the rights of Pelican
Bay and St. Raphael residents. And I feel that myself in particular,
because when my wife and I were first viewing Pelican Bay and
considering purchasing a unit, we were impressed by the spacing
between the condos and the similarity in size and height and the
placing of those buildings on the lots. And I believe we would not
have purchased if we knew that there was going to be a monstrosity
hovering next door to the St. Raphael, throwing the area out of
proportion. Thank you very much.
MS. FILSON: Richard McGahren (sic).
Libbie Bramson?
MS. BRAMSON: Waive.
MS. FILSON: David Bramson?
MR. BRAMSON: Waive.
MS. FILSON: Henry Price. Henry Price? He will be followed
by Aldo Magistrelli. Did he waive?
MR. PRICE: Madam Chairman, Henry Price. ! live in the St.
Laurent. I would only like to speak to the procedural issue at this
time. I've been a trial lawyer for 40 years. I am absolutely shocked
that a recommendation is made by your County Attorneys to dismiss
this appeal as jurisdictional -- based on a jurisdictional requirement
with no citation of authority, with no basis that they've given you to
dismiss this appeal and deny these people the right to have their
decision made on the merits. And I urge you not to accept that
recommendation from your County Attorney.
MS. FILSON:
Partee.
MR. PARTEE:
speak on part B.
MS. FILSON:
Aldo Magistrelli? He'll be followed by Frank
I'll waive, but I'd like to reserve the right to
Okay. Richard Laughlin?
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March 9 & 10, 2004
MR. MAGISTRELLI: My name is Aldo Magistrelli. I've been
in commercial real estate for 35 years, in very big projects in another
state. I've never seen anything like this.
I -- you've made a statement earlier today that you were hoping
that the people in this room did not hold you responsible for what
happened in the past. We are not. I don't think there's a person among
us that looks at you people and says that you're guilty for what's
happened here. All we're asking you to do, all we're asking you to do
is take the advice of 13,000 people that live here, that invested in this
county, that invested in this state, bought properties here, were led to
believe, and I was one of them, that because I live in the St. Raphael --
and where I live in my -- in the building is at the opposite end, so I
don't even see this project, or hardly see it. However, it's such an
injustice, that it can be corrected.
You know, and to go on whether or not everything was put in
here at the proper time or not is very irrelevant to the facts here. This
is not going to end here. People here are not going to give up. You
don't want to become a part of this. You're too good for that. You can
correct this. And you can put it back to -- what you have to do is take
your shoes off, try and put the 13,000 residents in this county's shoes
on that live in Pelican Bay and see what you would do. Thank you.
MS. FILSON: Richard Laughlin. And he will be followed by
your final speaker, James Weaver.
MR. LAUGHLIN: My name is Richard Laughlin, and I'm on the
board of directors of the Pelican Property Owners Association. I've
been a trial lawyer most of my professional career, and I want to point
out to this Board that this appeal was taken on the basis of
interpretation of the legal issues. It requires absolutely no exhibits. It
requires nothing other than legal arguments to make a conclusion.
And for the county attorney to say that it should be dismissed based on
something that he says is missing without detailing what he thinks is
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March 9 & 1 O, 2004
missing I think is absolutely wrong. And thank you very much for
your time.
MS. FILSON: James Weaver?
MR. WEAVER: Thank you for the opportunity to appear before
you today. My name is Jim Weaver, and I am a resident of St.
Raphael. St. Raphael is the building just north to the planned Cap
d'Antibes.
My wife and I purchased our home primarily for the panoramic
view of gulf bay--of Gulf of Mexico and the beautiful and natural
setting. Clearly, many of us who purchased high-rise homes do so
because of panoramic views that it provides.
The current site plan and positioning of Cap d'Antibes without a
doubt will cut off a good portion of our beautiful view to the
southwest. It is absolutely mind boggling to me to think that this
project was approved by staff without notice whatsoever to
neighborhood homeowners.
By the sheer size of the proposed building, any reasonable person
would have rightfully assumed that the immediate neighborhood
homeowners would find the proposed project to be overwhelming and
certainly injurious to the neighborhood. The fact that so many people
here are upset about the building shows that the consensus is that this
huge building is going to be injurious to the neighborhood.
Homeowners immediately adjacent to Cap d'Antibes project are
so concerned that many of them are considering selling their homes
before further devaluation sets in. The fact that no materials were ever
submitted that would demonstrate that Cap d'Antibes was not injurious
was due to the fact that it would be impossible to prove that it wasn't
injurious.
From what I understand, a lone individual on the county staff
made the approval decision without even viewing a simple artistic
rendition of the project and without fully understanding its location
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March 9 & 1 O, 2004
and the effect on the neighbors, particularly to the north at St.
Raphael.
We ask that you give this information serious consideration as
you make your decision today. Thank you for your time and your due
consideration.
MS. FILSON: That was your final speaker, Madam Chairman.
CHAIRMAN FIALA: The last of our speakers. We have a
motion on the floor to --
COMMISSIONER COLETTA: Close the public meeting?
CHAIRMAN FIALA: Oh, yes. First I need to close the public
meeting for 7(B) with regard to the appeal.
And now we have a motion on the floor to disregard the appeal;
isn't that the way it went? And was that motion made by you,
Commissioner Coyle?
COMMISSIONER COYLE: Henning.
CHAIRMAN FIALA: By Commissioner Henning.
COMMISSIONER COYLE: Seconded by Commissioner
Coletta.
CHAIRMAN FIALA: And seconded by Commissioner Coletta.
Any further discussion on this particular item?
COMMISSIONER COLETTA: You may wish to have the
County Attorney restate it.
CHAIRMAN FIALA: Okay. Would you restate that, the
motion, please?
MR. WEIGEL: Yes. It's a motion to dismiss the appeal pursuant
to Section -- pardon me, let me get my mic. -- pursuant to Section
1.6.6 of the Land Development Code which specifically requires that
such request, meaning for appeal, shall state the basis for the appeal
and include any pertinent information, exhibits and other backup
information in support of the appeal. And that the information,
backup and other materials were submitted beyond the submittal
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March 9 & 1 O, 2004
period, and therefore, not admissible for review by this Board sitting
as a Board of Zoning Appeal. That's close to a restatement of what I
said the first time.
CHAIRMAN FIALA: Well, I -- I'm still -- as far as discussion
goes, I'm still having a problem with, you know, being that they filed
an appeal--
MR. WEIGEL: Yes.
CHAIRMAN FIALA: -- within the time, but it did not contain
all of the information.
MR. WEIGEL: It didn't contain any of the information, other
than the assertion that the interpretation was illegal, or contrary to law.
CHAIRMAN FIALA: But we're talking about just the appeal.
Did they file it or not? Or are we trying to determine whether it was a
legal appeal that was filed; is that what it is?
COMMISSIONER HENNING: Commissioner Fiala, like Mr.
Weigel said, there was no backup with the appeal.
CHAIRMAN FIALA: Right. But legally was there supposed to
be backup? That's what I'm asking.
MR. WEIGEL: Absolutely, legally, pursuant to one --
CHAIRMAN FIALA: Legally there was supposed to be backup
with the appeal?
MR. WEIGEL: That is correct.
CHAIRMAN FIALA: All right. That's, that's what I need--
MR. WEIGEL: And part of that is related to the due process --
this is not part of the motion, it's part of my explanation-- as part of
the due process requirements is that you don't have an appeal hearing
by ambush or by surprise with materials and experts being submitted
significantly subsequent to the submittal period and close to or at the
hearing.
CHAIRMAN FIALA: Okay. We have a motion on the floor and
a second. It's been repeated by our County Attorney. Any further
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March 9 & 1 O, 2004
discussion?
(No response.)
CHAIRMAN FIALA: All those in favor, say aye.
COMMISSIONER COLETTA: Aye.
CHAIRMAN FIALA: Aye.
COMMISSIONER HENNING: Aye.
COMMISSIONER COYLE: Aye.
CHAIRMAN FIALA: Opposed?
COMMISSIONER HALAS: Aye.
CHAIRMAN FIALA: Opposed, Commissioner Halas.
4-1 vote. Thank you.
That's a
Item #7A
ADA-2004-AR-5218 PELICAN BAY FOUNDATION, 1NC.,
REPRESENTING BY ROBERT D. PRITT OF ROETZEL AND
ANDRESS, REQUESTING AN APPEAL TO OFFICIAL
INTERPRETATION INTO-2003-AR-4307 RELATING TO THE
APPROVAL OF SDPA-2001-AR-412 FOR THE CAP D'ANTIBES
CONDOMINIUM PROJECT, WATER PARK PLACE, WITHIN
THE PELICAN BAY DRI/PUD- MOTION TO DENY FAILED
AND MOTION TO APPROVE FAII,ED
Okay, moving on to the next. Are you next? You still have 30
minutes on the floor.
MR. CRITCHLOW: Would it be appropriate to take five
minutes?
CHAIRMAN FIALA: Yes, in fact, our gals need about 10
minutes. So please do.
(A recess was taken.)
MR. WHITE: Ladies and gentlemen, if you could please be
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March 9 & 1 O, 2004
seated, we're about to resume. Ladies and gentlemen?
COMMISSIONER COYLE: I think they've gotten to the point
where they don't really care.
CHAIRMAN FIALA: Let me say before we proceed, I just
wanted to say that back in January, I agreed to give a speech to the
power squadron at 7:00 on Marco Island. And of course I never knew
that I was going to be scheduled to do this today, nor did I realize it
was going to last so long. So at 6:30 at the latest I must leave here.
Commissioner Coyle will take over. But I just wanted to announce
that so everybody understands. And who knows, maybe we'll get
through with this faster and we'll be done by 6:30. That's wishful
thinking. Okay.
Rich, you're on. Oh, I'm sorry.
MR. CRITCHLOW: That is Rick, so -- Madam Chairman,
members of the Board, again Richard Critchlow on behalf the property
owner Parcel J Joint Venture.
We begin today with trying to focus on what is before this panel
and what the legal standard is that the Board is faced with. We cite
you to the Second District opinion, which is the district within which
this county sits, which quotes from our Florida Supreme Court about
what is the standard before you. And again, the question is not
whether upon review of the evidence in the record there exists
substantial competent evidence to support a position contrary to that
reached by the agency. Instead the circuit court should review the
factual determination made by the agency and determine whether
there is substantial competent evidence to support the agency's
conclusions.
What that means is, and I think it's self apparent, is that people
may bring in, and the appellant or appellants may bring in five or six
different architects, all of who might say something different. That's
not the test. The test was at the time was there substantial competent
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evidence at the time that the director issued this letter of interpretation
to support the legal and factual determination which she made in
issuing her letter of interpretation.
I cite to you as well another Second District decision for your
consideration, the case of Hillsborough County Board of County
Commissioners versus Longa (phonetic), which says that the opinion
of the zoning experts from the county department of development and
coordination and the city/county planning commission's opinions are
sufficient substantial competent evidence to support the determination
which it has made.
What appears -- and we're going to try to confine this to the
simple legal issues which are covered by the second letter of
interpretation. There's only two questions which are raised within that
which are the subject of this appeal.
What's clear here is that the nature of this objection is that the
appellants do not like the PUD, the appellants do not like the building,
and the appellants are trying to overturn the approval process that
occurred in connection with the SDP back in 2001. Those are not
issues before this panel. The issues before this panel are to test by
substantial competent evidence whether this director had substantial
competent evidence to issue the opinions that she did.
I also bring to your attention that this is an opinion, a letter of
interpretation, which the County Attorney has reviewed and
determined to be appropriate. This is an opinion about interpretations
and procedures which have been consistently applied in connection
with the same PUD in over 16 projects dealing simply with high-rises.
I add, however, this PUD does not deal simply with 7.04.03
relating to high-rises in Group 4. The identical provision in
determining for clustering -- and we've heard some comment that the
clustering was intended to apply to single family or perhaps duplex
type complexes -- the very same provisions exist within this PUD in
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Sections 4.04, 5.04, 6.04, as well as 7.04 that provide the identical
procedures for reducing the minimum yardage that exists to a lesser
amount. And the provisions within those, as well as 7.04.03, which
I'll put up on -- for the Board, for you again, are perfectly clear that
the procedure is set forth in 7.04.03(C), which requires an
administrative process. It does not require a process covered by the
Land Development Code.
As we spoke about earlier today, this planned urban development
came into existence in 1977, 14 years before the Land Development
Code ever came into existence, 15 years before there was a hint of any
words dealing with cluster in the Land Development Code. What the
creators of the PUD had in mind had nothing to do with what the Land
Development Code subsequently said 14 or 15 years later.
And that's important, because the PUD does control. The law of
the State of Florida, the law in land development is that the PUD is a
specific site zoning ordinance. It controls for all the property owners
that exist within that planned urban development. The LDC or a later
ordinance cannot change, cannot alter the terms of the PUD unless the
PUD itself is amended. It is the controlling and guiding light in the
interpretation of the provisions that exist within it. Unless it is silent.
And that's not the case here.
I would also bring to the panel's attention that this is the last of
the parcels within Pelican Bay. Throughout Pelican Bay, whether it's
Bay Colony, whether it's Crown Colony, whether it's any numbers of
others, as is attached within the record here, 16 or 17 other high-rises,
hundreds of single-family residences have all been clustered, moved
closer together by the same procedure.
At this point in time, and as Mr. Schmitt said first thing this
morning is, if for some reason this letter of interpretation is modified
or changed, part of the task is going to be to go back to see how that
change would affect every other procedure which is applied to every
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other building in Pelican Bay where this very same procedure has
been applied. If it's used strictly under 7.04.03, and I think that's too
limited in its guidance, it's going to affect a minimum of 16 or 17
high-rises. Indeed, it will affect St. Laurent, because St. Laurent, by
the, by the --
MR. PRITT: I object. This is totally irrelevant. This has
nothing to do with anything that is front of this Board. This is
absolutely irrelevant to your decision. What the staff might have to do
some day, depending upon your decision today, is not relevant.
They've spent the whole day talking about how nothing in the past was
relevant. Well, I assure you, nothing in the future is relevant
concerning this issue. They're just trying to scare you into saying,
well, we must make the wrong decision because there -- this would
have to be reviewed. And this does not have to be reviewed. You
don't have to go -- staff doesn't have to do another thing.
And Mr. White has had a memo on that, he's done a memo on
that before. What has happens as a result of you making the decision
is irrelevant. The consequences of your decision is irrelevant. The
issue is what is the correct interpretation, so we object to that.
MR. CRITCHLOW: I make that comment only because it's a
comment which Mr. Schmitt made this morning, and I wished to
address that comment in that context. I'll proceed. That-- this is a
procedure which has --
MR. PRITT: Are you allowing him to proceed with that? I
strenuously object.
MR. CRITCHLOW: I'm past that point.
CHAIRMAN FIALA: You're past that point?
MR. CRITCHLOW: I'm past that point.
MR. PRITT: It doesn't matter.
COMMISSIONER COYLE: You can't take it all back.
MR. CRITCHLOW: I'm not taking it back. But I'm past it.
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CHAIRMAN FIALA: We'll, we'll note that, though. Thank you.
Please.
MR. CRITCHLOW: The procedures that were applied here
again are the ones that have been universally employed. Indeed, as a
matter of persuasion, there is precedent within this county by a circuit
court. A similar process was instituted not by way of a letter of
interpretation, but by a lawsuit by the people who lived in Crown
Colony, asserting that common architectural theme was not
appropriate, that the procedures employed by the county were
inappropriate in determining common architectural theme. And Judge
Hayes, in adopting an arbitration award, as a matter of precedent and
persuasion said the procedures that were used by the county, which
are the identical ones --
MR. WHITE: Madam Chair?
MR. PRITT: Same objection.
MR. WHITE: Commissioner Halas, I think, had asked us to kind
of keep a line with respect to things that are, quote, relevant to the
interpretation.
COMMISSIONER HALAS: Exactly right.
MR. WHITE: And this prior proceeding, I don't know that it is
relevant, but I'm at least trying to follow your direction to draw that
line.
CHAIRMAN FIALA: Thank you.
MR. WHITE: And perhaps Mr. Pritt has some additional
comments about it, I don't know.
CHAIRMAN FIALA: You're hurting your own case, sir. I think
that you better move on to something that's maybe more relevant,
please.
MR. CRITCHLOW: I'll take your guidance.
CHAIRMAN FIALA: Thank you.
MR. CRITCHLOW: The test then is, is there substantial
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competent evidence to support what this director did in her opinion of
November 24 in connection with appeal 7(A?
The records upon which she relied, her interpretation of the
simple -- of the two simple questions is beyond reproach the only
legal conclusion that can be reached from the questions that were
posed and legally before her.
The first question is: Does the SDP amendment qualify for a
reduction from the minimum yard requirements under 7.04.03 of the
PUD as a development consisting of clustered buildings with a
common architectural theme? The director said we can't rereview the
process of the PUD, so I'm going to -- of the SDP, excuse me -- so I
have to take a look at the legal issue which you opposed, which is,
does procedure set forth in the PUD provide for the determination that
a reduction in the minimum yards can be accomplished by 7.04.03(C),
if there's clustered buildings with a common architectural theme?
As a matter of law she analyzed that. And as a matter of law,
that is the only conclusion that can be reached. Because the PUD that
is at issue here and the provision of the PUD is the only one that is
applicable.
The PUD has a very specific provision which says how it must be
done. It says it must be done administratively under 2.05. There is no
other procedure that is available to the county, based upon the
restrictions and specific restrictions of the POD (sic) of how it was to
be done.
She then answers the question, was there -- ! will -- from my
review of the then applicable facts derived from the county records for
this SDP, this application would qualify for a reduction from the
minimum yard requirements for construction of multi-family buildings
over the express terms stated in subsection 7.04.03(C).
So the test here is did she have substantial competent evidence to
arrive at that conclusion? And she cites what she said -- how she
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viewed clustered and she cites what she says about common
architectural theme. So we have to resort to what was in the records
that she reviewed to determine. Was there substantial competent
evidence to review -- or to support what she says?
The record that she reviewed and the record that's before this
panel is replete, is filled, with substantial competent evidence to
support the conclusions that were reached by Ms. Murray in her letter
of interpretation.
This process began in 1999. The process continued with the
submission of three letters of architects which addressed the very issue
which was posed by 7.04.03(C). It included a submission. And we've
heard that there was no submission relative to the schematic of Cap
d'Antibes. Well, it was filed, it was reviewed, and it's in the county
records.
There were visits to the site to review the project. In December
of-- December 20 of 1999, there were revised plans which were filed.
Again, addressing engineering, addressing the issues of common
architectural theme. On January 18, 2000, there were further revisions
to the site plan with the same support -- or with additional support and
backup.
On February 4 -- 14th --
MR. WHITE: Madam Chair, I apologize for interrupting, and
I'm not trying to take the gentleman's time, but I'm not certain that
these are indeed things that are in the record itself. Nor do I know
whether this is anything that Ms. Murray had relied upon in her
review. So--
COMMISSIONER HENNING:
MR. WHITE: Okay.
being overly conservative.
CHAIRMAN FIALA:
you be conservative.
I believe they are in the record.
Then I apologize. I apologize also for
That's all right, Patrick. I'd much rather
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MR. CRITCHLOW: Apology accepted.
On February 14, the first conceptual site plan approval was
issued by the Planning Department. And contrary to what has been
said by those who have come before you, there was a deliberate
analysis of the requirements of what is a common architectural theme.
The Planning Department, in approving a conceptual, not the final,
the conceptual site plan development in February of 2000, says the
element of common architectural theme consistently applied by this
office -- consistently applied by this office means that the buildings
are clustered within a unified plan of development-- have a signature
unified entryway, which is unquestionable in Waterpark. There is a
signature unified entryway for all of the neighborhood. Common
landscaping, streetscape and building of similar intensity and volume.
The subject site could accommodate two completely separate towers.
The towers by themselves are similar in intensity and volume to the
existing buildings. Indeed, orientation of Waterpark Towers to St.
Laurent and St. Raphael -- again, we've heard today that there was no
consideration of St. Raphael to the north; in February of 2000 there
was consideration given to it -- are at angles to one another,
diminishing the effect of the reduced separation.
Development option of one large building could have met the
separation requirement from St. Laurent. The developer didn't do that.
He created two towers of similar types of size that could have been
built on each of the lots. If either one of those was built on each of the
lots, each one of them would have been entitled to the same reduction
in minimum yards, as was applied in this case. Indeed, because there
were two tracts that were put together, one constant building without
the separation of the towers could have been built. But that's not what
was developed.
And the Planning Department considered that. This office
acknowledges receipt of written opinions from four architects -- in fact
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it was three, that was a mistake -- representing the work of existing
buildings at Waterpark Place who further opine the proposed
Waterpark Towers complement and are consistent with the goals of
common architectural theme.
Citing back to the Hillsborough decision, the
Hillsborough-Longo, that opinion of planning was sufficient
substantial competent evidence to support what ultimately happened.
The process, however, didn't end in February of 2000. And
indeed, more submittals were required. Submittals were filed again--
apologize -- in February of 2001, again addressing those issues
because of a constant inquiry and a continued inquiry by Planning.
On March 30 of 2001, a further submission was made to the
county. And in that one, the analysis of the 16 other buildings in
Pelican Bay was given to show that this same procedure had permitted
16 other high-rises --
MR. PRITT: Object again. We went through this once before.
MR. CRITCHLOW: It's part of the record. It's part of the record.
CHAIRMAN FIALA: Sir, could-- Patrick, would you please
advise? MR. WHITE:
MR. PRITT:
I'll do my best.
I'll object. In the first place, there is no -- there was
no record, was no competent substantial evidence, and we already
objected concerning 16 other projects, or -- you have no idea whether
those projects were the same or similar. What they're trying to do is,
once again, scare you into thinking that you only have one way to go
because this is how they always did it. That's -- that might be how
they always did it, but that's not relevant to this decision.
CHAIRMAN FIALA: And I thought we were just discussing
whether -- we were discussing the Planning Director's interpretation.
And I don't know how we got on to all these other buildings.
MR. CRITCHLOW: The reason is because --
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COMMISSIONER HENNING: But this evidence is in our
packet.
CHAIRMAN FIALA: Yes, right, but--
COMMISSIONER HENNING: And we're addressing the
evidence.
MR. CRITCHLOW: And what she said was -- and she said this
in her letter. And that's why we resort to it. In her letter dealing
specifically with the opinion that is the subject of this appeal. From
my review of the then applicable facts derived from county records for
this SDP amendment, those are all documents that were within the
record of the county's office relative to this SDP amendment.
And a part of this record, just to simply show that she reviewed
the record to determine that there was substantial competent evidence
to support what she said in her interpretation. That's why I go back to
MR. PRITT: There was no record until these documents showed
up for you for this hearing. So you do not know and she does not
know, nobody knows what was in the record. He's talking about what
was -- what might have been in files, but we've done a lot of public
records requests -- we've done lot of public records requests, and it
was not clear at all what was in what file. We found -- we found some
of these documents in different files, not even in that file. So all this
talk about a record and all this talk about competent substantial
evidence is just to fool you. I object.
MR. WHITE: Madam Chair, I so far have done my best to keep
up with the individual documents Mr. Critchlow has provided to you.
And up until this one, I have noted that they were in materials that
were presented as exhibits by Mr. Pritt. I do not know as to this
particular document whether it was or was not. And if it is not, then I
would, under the --
MR. CRITCHLOW: It is.
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MR.
MR.
MR.
MR.
WHITE: I don't see it.
CRITCHLOW: Which one are you referring to?
WHITE: The March 30, 2001.
PRITT: I'm talking about the record of the SDP.
MR. WHITE: I understand what you're speaking about. And I'm
just trying to advise my client that as to this particular document, it
wasn't something that's in the record for their consideration brought
either by you or the staff. So to that extent, it's, I would guess,
something you might want to think of as being new evidence.
CHAIRMAN FIALA: New evidence, okay.
MR. CRITCHLOW: And it was my mistake. It was in the
county files. I was relying upon the exhibit list that Mr. Pritt had
prepared, and it was my belief, in error, I might add, that this March
30 letter was part of it. It was not.
CHAIRMAN FIALA: Okay. Thank you.
MR. WHITE: Thankyou.
MR. CRITCHLOW: Okay.
CHAIRMAN FIALA: Thank you.
MR. CRITCHLOW: What is in the-- what is in the file,
however, is the ultimate determination or the ultimate granting by the
director of the Division of Planning Services on April 4, 2001. And
again, the question is asked, was there a deliberate conscious review
of the standards that exist? And there are numerous things that have
to be considered at arriving at the common architectural theme. Mr.
Mulhere determined that 7.04.03(C), the first bullet point, if you can
pull it up -- allows -- the Pelican Bay PUD allows for administrative
reduction of the building setbacks where buildings are clustered and a
common architectural theme is employed.
Two, you have submitted documentation that the project does in
fact employ a common architectural theme, as set forth in the PUD
document, including similar architectural design theme, the use of
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common materials and colors. And that's part of the record, the
submittal that showed the palettes, that the colors and the materials
were going to be the same on this building as they existed on the other
two buildings within. That a gated signature entrance with a
landscape theme that includes signage and a decorative pavement
treatment. Well, that's all part of the Waterpark Place. It was the
same entrance. It was the same gated entrance into the neighborhood.
Common treatments throughout the project, the landscaping, wall,
street design, materials, signage and lighting.
To suggest that he didn't review information is belied by the very
letter that he'signs that says I'm going to approve it. That letter alone,
again, according to Hillsborough County versus Longo, is sufficient
substantial evidence that the process that was used and the opinion
was derived by the expert within the Planning Division that this
process was satisfied and was appropriate.
He went on to say a number of other developments in Pelican
Bay have employed a common architectural theme and have been
administratively granted a reduction in building setbacks, based upon
that provision in the PUD. And again, he refers to how this has been
applied consistently as the standards that have been applied. The
nature of your request for building setback reduction does not exceed
the amount of reduction granted to other similar projects within the
PUD under the common architectural theme. Based upon this
information and the consistent use of common architectural theme
provision set forth in the Pelican Bay PUD, it is my opinion that you
may reduce the required separation between structures to a minimum
distance of 150 feet and that a 50-yard -- 50-foot yard setback on the
north property line is acceptable.
Within it he said he asked for and re -- and obtained. And every
-- each of these appellants have said the requesting and reviewing
certificates or certifications from other architects licensed by this state
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who practice within this community was not fair. Was not right. Well,
it was. It was an additional certification. And there's nothing that
could be said that would have suggested that that procedure or that
practice was inappropriate other than, in fact, the better practice to
make sure that the opinion that he had arrived at by himself was
supported by somebody else and somebody else's opinions.
That's what he did. That's substantial competent evidence.
That's sufficient to support Ms. Murray's interpretation.
Quite frankly, I do not believe, however, that you need to get
there based upon the limited question that's posed under that request
for interpretation, because it can only be applied in requesting a legal
interpretation, which is, is 7.04.03(C) available to provide a reduction
in the minimum yard setbacks if there's a common architectural theme
in clustered buildings?
Now, I know you've talked about clustered buildings, you've
wanted to hear about it. The PUD itself, and we heard their own
expert admit to that, was created as a clustered development itself. A
clustered concept. The basis of creating the PUD as a clustered
concept contemplated and required -- and if we look at the PUD itself,
we will see that under 2.03 of the PUD there are specific requirements
that open space must be contributed. Must be contributed. If we look
to the schedule of land use, that's Page 2~6 of the PUD, we see that the
open space and recreation requires 700 -- close to 800 acres of already
open space. As Mr. Fenton said to you, that this PUD reduced the
open space requirements because by its own creation it already set
aside the open space for recreation, it already set aside the open space
for the environmental protection. It, in its own specific provisions,
when it says that you may obtain a reduction in the minimum yardage
does not require, in the definition or the procedure of clustered
buildings, that there be a creation of any more open space than the
open space that the PUD itself provided for when it was created and
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approved by this very panel. That's why the open space question
which has been raised is a red herring. 2.6.27 upon which the
appellant relies was not in existence when this PUD was created.
The concept of the clustered development, which Judge Hayes in
his opinion also said is different from clustered buildings -- MR. PRITT: Object again.
MR. CRITCHLOW: It's a legal opinion. And Pat, I'll go with
you. If you say that's inappropriate, I'll back off.
MR. WHITE: Well, I'm not --
MR. PRITT: Object again. We went through this. It was
rejected and it's not relevant.
MR. WHITE: I'm not sure whether he's bringing it in as a
citation of authority as part of his legal argument or as part of the
factual testimony, so ask Mr. --
COMMISSIONER HALAS' Can I ask a question at this point?
MR. WHITE' Sure.
COMMISSIONER HALAS: The PUD that this gentleman is
referring to is all of Pelican Bay PUD. Is this particular item that
we're discussing today, Waterpark, is that a separate PUD within the
PUD of Pelican Bay?
MR. WHITE: No, sir, it's all part of the same zoning district.
And you may be thinking of the SDP, the site development plan for
Waterpark.
COMMISSIONER HALAS: Okay. All right. So when this
individual, the landowner, bought this land, he was still buying within
the PUD and was not creating another PUD within a PUD, that was
just considered a site development plan? MR. WHITE: Correct.
COMMISSIONER HALAS: Okay, thank you.
MR. WHITE: That's my understanding.
MR. WEIGEL: You're right.
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MR. CRITCHLOW: Yes, Commissioner, he was buying within
the Pelican Bay PUD, subject to the terms and provisions and
guidance of that PUD, which included the provisions under
7.04.03(C).
When the appellants tried to seek resort to the LDC, consistent
with what the director has said, that is simply not applicable. Because
specific procedures that exist within the PUD must control. The PUD
was created with those special procedures, which included the
determination by the director, administratively under 2.05, of what
was a common architectural theme and was it clustered. It's the sole
procedure provided.
To say that any other procedure should be in existence in this
case would say that the PUD has been modified, it has been altered,
because that's not what the PUD said, that's not what was intended
when it was approved, and that's not the process by which these
provisions in the PUD have been administratively ruled upon.
When I cite to Judge Hayes -- I don't cite to Judge Hayes because
it's evidence. I cite to Judge Hayes because it's legal precedent. I cite
to Judge Hayes because he and an arbitrator who was appointed in that
case --
MR. PRITT: Object.
MR. CRITCHLOW: If you don't want me to go there, I won't.
MR. PRITT: Three times now.
CHAIRMAN FIALA: Yes, please.
MR. CRITCHLOW: All right.
Accordingly, the common architectural theme issue, to the extent
that it's relevant here -- and I don't believe it is because of the limited
scope of the request for interpretation; I believe the limited scope of
the request for interpretation, based on the way it was framed is, is the
appropriate procedure for obtaining this result set forth in 7.04.03(C).
The answer to that is unquestionably yes, because that's the only
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procedure that would be applicable. Even if you go beyond it.
As Ms. Murray said, there's substantial competent evidence by
reason of what Mr. Mulhere did, and he's here today, in reviewing all
of the submittals, including asking for outside architects to support
what his opinion was, so that he had something else to support what he
was doing.
In addition to which, the issue of the clustered buildings, a
clustered building was something that had been passed upon time and
time again within Pelican Bay. It was a clustered concept project. It's
no different than any other clustered determination -- clustered
building determination that had been made since 1977. It was
clustered. There was no need to go find additional open space,
because the PUD said in its creation, you have to contribute it before
we'll even consider this PUD being accepted. That's why open space
is not relevant to that determination, nor should it be considered by
this panel.
The last issue which is raised in the letter of interpretation is
should this have been subjected to an architectural review by the
procedures of the LDC under Sections 2. -- under Section 2.8 of the
LDC. Number one, the answer is clearly no, because a simple reading
of 2.8 of the LDC says that it applies exclusively to commercial
projects. That's exactly what the director said, that's exactly what the
provision is. It could not be.
And even if somebody were to stretch to say that commercial
doesn't mean commercial, to apply it again would fly in the face of the
specific provisions that are set forth in 7.04.03(C) that says it's an
administrative determination, it is not to be guided by the procedures
set forth in the LDC. The LDC didn't amend it. The LDC could not.
You'd have to amend the PUD to accomplish that goal.
Accordingly, there is substantial competent evidence throughout
the records reviewed by the director, there's substantial competent
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evidence at the arrival of the legal opinions which she provided to
support her letter of interpretation.
That is the sole issue before you, not whether somebody else will
say I can determine that there wasn't a common architectural, I have
different opinions, that's not the test. We have people who will come
up and tell you what their opinions are, if you want to hear them. And
there are opinions of consistency. The test is was there substantial
competent evidence which she looked at in the record, and according
to Hillsborough versus Longo, relying upon Mr. Mulhere and what he
did in relying upon the filings of the architects was sufficient, was
substantial competent evidence, which is all this panel is supposed to
be listening to.
We hope and we request that the letter of interpretation that has
been provided to you by the director is affirmed without modification.
It is the right decision, it's the only decision.
Size, by the way, does not matter. Size, which is the -- size,
which is the argument which has been made, is what controls in some
significant regard. As a matter of legal precedent, not facts. That
issue has been determined by this county in a circuit court proceeding.
MR. PRITT: I'm sorry, I forgot to object for the fourth time.
MR. WHITE: I'd ask if Mr. Pritt's going to comment, just so we
get him on the microphone, that he approach the podium.
CHAIRMAN FIALA: Right. And we've been asked by our
court reporters to not interrupt anybody, but always get to a
microphone, because they've been having trouble making a clear
record, which is what everybody wants when they leave here is a clear
record. So please, make sure you get up to a microphone and make
sure you don't speak over one another.
MR. PRITT: I apologize, I was trying not to pop up all the time.
CHAIRMAN FIALA: Your name?
MR. PRITT: Bob Pritt. And I would object for the fourth time
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to the continuing attempt to get other collateral matters into the record.
I'll stand closer to the podium.
MR. CRITCHLOW: Mr. Pritt, I apologize.
One other thing that I forgot to mention is that the process of this
application was much broader--
CHAIRMAN FIALA: Not on.
MR. CRITCHLOW: Now?
CHAIRMAN FIALA: Yes, yes.
MR. CRITCHLOW: -- was much broader, as the final SDP
approval reflects. Not only were there submissions made, based upon
the common architectural and cluster, as has been said, but also, it
went to engineering, and the right-of-way --
CHAIRMAN FIALA: Speak into the microphone, sir. There
you go.
MR. CRITCHLOW: I'm not used to having a microphone like
this in my hand. I apologize.
MR. PRITT: While he's doing that, I'll object again. I don't
think that's part of the record.
MR. CRITCHLOW: It's been sitting up here all day. And it is
part of the record.
MR. PRITT: Well, sitting up there all day doesn't make it part of
the record. I have a lot of things over here sitting here all day -- MR. CRITCHLOW: That's a good point.
MR. PRITT: -- but that doesn't make it part of the record, and I
think we'll be talking about that.
MR. CRITCHLOW: You're absolutely correct.
The final SDP approval--
COMMISSIONER HENNING: Mr. White? Mr. White?
MR. WHITE: I -- if you need a legal opinion on it, I have --
COMMISSIONER HALAS: Yes.
MR. WHITE: It wasn't included as part of the appellant record.
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CHAIRMAN FIALA: Okay. Thank you.
MR. CRITCHLOW: Again, we urge affirmance, we urge
adoption. We urge that this appeal under 7(A) be rejected, and the
interpretive letter be adopted as provided by Ms. Murray. Thank you
all.
Oh, we have some other witnesses to come up as either both
experts and public witnesses.
CHAIRMAN FIALA: Well, they can sign up to be speakers.
MR. YOVANOVICH: I thought, Commissioner Fiala, that we
would be afforded the same process that the appellant was, so we do
have a couple of experts that we would like to speak. And they were
provided-- each of their experts was provided 10 minutes and we
would -- we would request that we be provided the same process that
the appellants were provided. And we'll bring them up here, they'll
speak quickly and we'll move on.
CHAIRMAN FIALA: I guess what's fair is fair, right?
MR. YOVANOVICH: That's all we're asking, is for the same
process.
COMMISSIONER HENNING: Madam Chair, it's the --
MR. PRITT: I'll object. They're not a party.
CHAIRMAN FIALA: Look, we --
COMMISSIONER HENNING: They -- Mr. Pritt is appealing
the process, so it's actually Mr. Pritt's meeting. But you're conducting
the meeting again. If it's -- I would say if it's relevant to making a
decision, we ought to hear it. There is some authority to that.
MR. YOVANOVICH: And I disagree with Mr. Pritt. We are a
party. We are the affected property owner. You're saying that if they
can attack--
MR. WHITE: Mr. Yovanovich--
MR. YOVANOVICH: I'm sorry?
MR. WHITE: -- do you yield?
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MR. YOVANOVICH: I will if-- I thought it was my mm.
MR. WHITE: Following up on Commissioner Henning's point,
Madam Chair, the resolution we mentioned in our memorandum
98-167 does afford the Board the opportunity to modify the
procedures here in 167 -- 98-167 to effectuate the effective
presentation, it says, of evidence. Now, I read that to mean that if
there's a circumstance where the direct rules may need to be varied,
that there is some authority to do so, so long as that evidence is
otherwise permissible.
And so I'm going to caution Mr. Yovanovich the same way we
cautioned and made mention to you earlier, that if there is going to be
testimony brought forward, expert of otherwise, that is essentially new
evidence, that that is something we don't believe is appropriate for the
record. You may hear it and there may be other objections and
concerns about the relevance of that testimony, and we'll have to
unfortunately wait till we hear it before we'll ~cnow whether it was
relevant or not. But I just wanted to remind the Board of those points
and point out the additional authority that's given by the resolution to
slightly modify the procedure.
CHAIRMAN FIALA: And Commissioner Henning is right, this
is Mr. Pritt's meeting and we're hearing it, but--
COMMISSIONER COYLE: No, it's not.
CHAIRMAN FIALA: No?
COMMISSIONER COYLE: It's our meeting.
COMMISSIONER HENNING: It's the Commissioner meeting.
CHAIRMAN FIALA: Okay. Then let's move forward. I'd like
to be fair with both sides.
MR. YOVANOVICH: Okay, thank you.
Do you have the list of names?
MS. FILSON: Okay--
CHAIRMAN FIALA: We don't have -- we don't have five or
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six, right?
MR. YOVANOVICH: Four.
MS. FILSON: I have five.
MR. YOVANOVICH: Five, sorry. It will be quick, we don't
take the full time.
CHAIRMAN FIALA: Okay.
MS. FILSON: All five of these get 10 minutes?
CHAIRMAN FIALA: Yes, but he said they'd be quicker.
MS. FILSON: The first one is Wayne Arnold. He will be
followed by Larry Cohan.
MR. WHITE: The traditional procedure, Madam Chair, is that
experts would get 10. So I don't know whether these witnesses are
going to --
MR. PRITT: Yes, could we have a standing objection to the
witnesses on the basis that this is not in the record? That way that will
save me from having to jump back up on these issues. I may jump
back up --
CHAIRMAN FIALA: And your name, sir? Your name?
MR. PRITT: Robert Pritt. P-R-I-T-T.
CHAIRMAN FIALA: Thank you.
Yes, you sure may. Okay.
MR. WHITE: And I just want to complete my thought, ifI may,
Madam Chair, that as to the time period that these individuals are
going to be given, if they're going to be testifying as experts and are
qualified, then I assume that under practice before, they'll get the 10
minutes; otherwise, it will be five minutes.
CHAIRMAN FIALA: Are these all expert witnesses?
MR. WHITE: We might just take them one at a time.
MR. YOVANOVICH: Yeah, I think you're all familiar with Mr.
Arnold's credentials and Mr. Mulhere's credentials. We did not go
through the process of forcing them to qualify their witnesses as
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experts. We -- I would request that -- if you want us to, we'll go ahead
and have them tell you their complete pedigree, or you can just allow
us to have the amount of time that their witnesses had. We'll go either
way you want to go.
COMMISSIONER HENNING: Your name for the record, sir?
MR. YOVANOVICH: I'm sorry. My name, for the record, is
Rich Yovanovich.
MR. PRITT: Madam Chair, I'm Bob Pritt. We would not object
to Mr. Arnold's credentials, as long as he's talking about planning.
MR. WHITE: I think that seals it.
CHAIRMAN FIALA: Very good. Thank you.
MR. ARNOLD: Good evening, I'm Wayne Arnold. I'm Director
of Planning with the firm Q Grady Minor and Associates. And I'm a
professional certified planner. I've been certified as a planner since, I
believe, 1990.
I have a master's degree in city planning, I have a bachelor's
degree in urban planning.
MR. PRITT: No, when we agreed to that, we -- that means you
don't have to testify to that.
MR. ARNOLD: Okay. As background, I was formerly your
Planning Services Director from 1993 to 1998, and I'm very familiar
with both the Pelican Bay PUD, your LDC provisions and procedures
for interpretation. I've been through a few of those myself in my day.
One of the roles that I played in this particular project of Cap
d'Antibes was to help with the SDP amendment process for our firm,
and that was simply one of, in many respects, the site development
plan as a function of engineering. But in this particular case, because
of the Pelican Bay PUD and its specific requirements for architectural
theme and reduced setbacks, I helped this -- I helped our firm prepare
the analysis for reduction of setbacks that have occurred in other
locations within Pelican Bay and we helped establish the process, with
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Mr. Mulhere's input at the time as the Planning Director, to help with
documenting how we met the theme requirements.
And that went to the extraordinary, I guess, effort of obtaining
opinions from other architects to demonstrate that we were in fact an
architecturally themed project, which was part of an enclave known as
Waterpark Place in Pelican Bay, which was a clustered grouping of
buildings owned and developed by one developer with commonality
that we've all heard about, signage, gated entries, landscape features
and so on, which qualified us then to seek the reductions in setbacks
and building separations, which we eventually did receive through that
process.
Today you've heard a lot about clustering, and we've talked a lot
about open space, but the provisions that are in the Pelican Bay PUD
that you've heard about do not take you back to the Land
Development Code provisions for clustered buildings, which require
additional open space, et cetera.
Those provisions that are -- that are in the Pelican Bay PUD are
very specific to the Pelican Bay PUD. And if the Pelican Bay PUD
were silent to clustering buildings and how you deal with that
situation, then the appellant would be right, you go back to the LDC
for that specific guidance of how you do that. But in this particular
case you didn't. You have those procedures in place in the Pelican
Bay PUD. We followed those and qualified for those under the
architectural theme process.
Part of the other component of this that you've heard about was
that clustering should only be used and we should gain additional open
space. Well, as you already heard from testimony, the entire Pelican
Bay PUD in essence is a clustered project. You have huge and vast
amounts of common open space that aren't found in many other
communities, especially coastal communities in Collier County. But
in addition to that entire process of the PUD, which had these very
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specific standards that were applicable to it, we could then go back
and modify those standards. Because the whole PUD process was
supposed to be flexible. And this process was meant to implement
that flexibility. That's what a PUD was supposed to have been.
And again, you heard that these procedures for the clustering that
the appellant would have us believe that we should have used, they
didn't come into effect until nearly 15 years after the adoption of the
Pelican Bay PUD. So the clustering that was contemplated was
exactly what we were doing. We were grouping buildings on a
unified site under common ownership at the time by the same
developer, which resulted in a grouping of buildings that could be
reduced for setbacks because of their unique character and theming
that was taking effect in this particular piece of the project that had
like signage, like entry features, landscape treatments, et cetera. In
addition to the fact that we went above and beyond demonstrating that
while the buildings may not look identical, there are certain theme
components of this project that warrant the reductions.
One of the other things that I just wanted to touch on was really
why we have the PUD process that we have for Pelican Bay, because
it was a very unique process for its time, 1977. And in many ways, it
was ahead of its time. And what we had were administrative
procedures in place that were not in place currently in the Land
Development Code or zoning code at that point in time. Much of
what we have in Pelican Bay was in fact many years before its time in
how we treat it as a master planned community.
And in my opinion, it's one of the best examples of a master
planned community that we have. We've blended a mixture of land
uses that all seem to work. And I understand that we have many
residents who don't like this building because of its bulk and massing,
but that's not the subject of the interpretation and that's not something
that you can go to under the architectural theming and then attack.
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So the procedures that were followed to meet the architectural
theme to get the building separation and setback reductions was
appropriate. Your staff did the right thing.
And I think Ms. Murray, having not been involved in that
immediate process, looked at that process and said, my staff did the
right thing, three years, four years ago, whatever the case may be.
That's really all I had for the record. And if-- I guess I would
close with that and yield the four and a half minutes. Thank you.
MS. FILSON: Next speaker is Larry Cohan.
MR. WHITE: If there's no cross-examination, then I just want to
remind you Commissioners that, consistent With Mr. Pritt's objection,
much of what Mr. Arnold testified to were matters pertaining to the
actual SDP review process and are not in fact part of the record
pertaining to this appeal of the official interpretation. I know there's a
fine line between the two, but we've been trying to draw it all day, and
I want to continue to do so.
MR. COHAN: Good evening. My name is Larry Cohan. I'm a
principal with Brito, Cohan and Associates. We're the architects for
Cap d'Antibes. I've been a practicing architect since 1981. Our
architectural firm was formed in 1991. We predominantly design
high-rise and mid-rise condominiums. We have projects up in Palm
Coast, which is just north of Daytona, in Lee County and Collier
County, Coral Gables, Florida, Miami, Miami Beach, Boca Raton,
West Palm Beach. We're not new to the design of condominium
projects. In fact, we're also the architect for Cap Ferratt, which is in
Crown Colony.
So we're not even new to architectural theme. And that's what I'd
like to talk to you about tonight is, we were not new to common
architectural theme. We had experience with it and we had your
documents and we relied on them in the design of this project.
So the first thing we did is we went out and looked at St. Pierre
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and we looked at St. Laurent and we found common elements between
the two buildings. The St. Pierre has ribbon windows and it's more of
a deco modem look. It's reminiscent of the Fountainbleau Hotel, in
Miami Beach. And from that we looked over at St. Laurent.
Well, I did study architecture and I am testifying to this.
I then looked at St. Laurent and found that it was deco, but deco
in what was more of the skyscraper era, the Rockefeller Center type
buildings, the buildings that are more with punched windows. And
then we looked at the roofs of both of these buildings and noticed that
the roofs of both of these buildings are parapet buildings. They are
flat roofs with a parapet, unlike the Mediterranean style where there
are hip roofs with barrel tile.
And so we designed Cap d'Antibes to extract elements from both
of these. The idea was to actually make the buildings in harmony, to
make them more uniform. And I think we've done that. I think they
are very similar, which is the term that we used in these books -- in the
design of these buildings. I think the designs are proper, because
we're talking about a zoning that is flexible, not rigid.
When we design in a community that has a zoning code that tells
us we have to have a pedestal of six stories and that there is a
maximum amount of window and defining shapes, that is a rigid
zoning. This was not. This was meant to be just what it is, to let
expression be there. And I think, again, these are fine buildings, they
are a complement to the community. And I hope that you do in fact
let us construct these buildings.
MR. WHITE: I would simply note again for the record that
much of the testimony pertained to the SDP review process, and I
think you've heard these comments before.
CHAIRMAN FIALA: Thank you. Mr. Yovanovich, can you --
can you have anybody that -- any of your expert witnesses actually
address the subject? That would be great. I mean, because you're
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wasting your time and it's very valuable. I'd prefer to see somebody
just address the subject.
MR. YOVANOVICH: If I can, these are the architects that
actually wrote the letters. They're explaining the letters that they wrote
to Bob -- actually to the county, on which Bob Mulhere relied in
issuing his opinion. But these are architects that I --
MR. PRITT: I'll object to that. They didn't say that. He didn't
say that.
CHAIRMAN FIALA: And your name, sir?
MR. PRITT: Bob Pritt.
MR. YOVANOVICH: Bob, would you -- when the next person
comes up, if you would like me to have him show you the letter he
wrote, I'll be happy to do that, but he did in fact write the letter.
COMMISSIONER HENNING: And it's a part of our record?
MR. YOVANOVICH: Yes, it is part of your record.
MR. PRITT: And I continue to object on the basis of relevance.
MS. FILSON: Joseph Barany.
MR. BARANY: It's Barany.
Madam Chairman, members of the Board, for the record, my
name is Joe Barany. I'm retired from active practice. However, I
practiced architecture for 29 years, 21 here in Southwest Florida. A
large portion of that as president and founding partner for Barany,
Schmitt, Summers, Weaver Architects. We were the architects and I
was the architect of record for St. Pierre, which is the initial building
in Waterpark Place that ostensibly established the character that we're
going to -- has been discussed today that, you know, is carried
throughout the process.
In November of 1999, I issued a professional opinion, and that
opinion was provided in the form of a letter, which is a part of the
public records under discussion. In that letter, based on materials that
were provided to me, I opined the following: The architectural style
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of the proposed building is similar in design in the use of materials
and color. Waterpark Place does have a signature entryway -- we
were responsible for designing that initial signature entryway -- which
serves to identify the development as having a common architectural
theme, landscaping, paving surfaces and common wall along Pelican
Bay Boulevard, which is common to the entire Waterpark Place
development.
And then I was advised, and I so state in my letter, that the streets
-- the street materials, signage and lighting, which was going to be
provided, but which I had no specific information on, was going to be
similar in design to everything else that we had done throughout the
project.
That was in November of 1999 when I issued that professional
opinion. I -- I'm here today to stand behind that opinion and to
elaborate on how I can say that if in fact that's open for discussion.
How I arrived at my opinion. It's up to you. If you would like to hear
how I approached the professional opinion that led to the creation of
this letter, I would be happy to review that with you.
CHAIRMAN FIALA: Do you have any problem with that, Mr.
Pritt?
MR. PRITT: Yes, we do. Bob Pritt, for the record. We object to
the testimony. It's not relevant. Furthermore, the letter was -- is not
competent substantial evidence, as we have said all day long. Thank
you.
CHAIRMAN FIALA: Do you want to move on to another
subject?
MR. BARANY: The -- I -- let's just say that I stand behind my
opinion.
There was testimony that was offered earlier today by both Ms.
Tate and Mr. Fenton with respect to architectural criteria as they
would apply it to reach their own conclusions. I would respectfully
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request an opportunity to address a couple of the points that they made
in their testimony, which at this point I assume is up for grabs.
Their criteria and their critique, really, as eloquent as it was, was
based on generalizations. And I'm not faulting them for that, but when
I rendered my opinion, I felt I needed to be much more objective than
that. And any time you're discussing issues of subjectivity with respect
to style and taste, it's a very slippery slope. What I did was to look at
what our original design intent was with Pierre and that was an art
deco, modem feel to it. Now, art deco modem is only one flavor or
one style of art deco. And the second building that was designed,
which was not our project--
MR. PRITT: Excuse me, Bob Pritt, once again.
He's doing just exactly what I objected to a moment ago.
MR. BARANY: At this point, I'm -- with all due respect, I was
responding just to testimony that was given earlier as opposed to how
I arrived at my opinion.
MR. WHITE: Madam Chair, I'm not trying to make this any
more difficult than it is, but we did hear fully, essentially all of the
testimony of the experts of the appellants.
I'm simply going to, at the end of each of these presentations,
remind you that largely what we're hearing, again, are matters of fact
pertaining to the SDP review process, and it may be in response to
other comments heard earlier, but essentially it's still fundamentally a
problem in terms of it's not being part of the appellate record and
further concerned that it's not related to the actual official
interpretation process. But be that as it may, it's his 10 minutes.
MR. BARANY: Madam Chairman, I defer to you. If you do not
want to hear this, please say so and I -- I'll will sit down.
CHAIRMAN FIALA: If you want to continue, but if it doesn't
pertain to what we're discussing, I would think that --
MR. BARANY: Yeah, I would rather not, not waste the Board's
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time. Thank you.
CHAIRMAN FIALA: Thank you, sir.
MS. FILSON: Robert Mulhere?
MR. MULHERE: Good evening. I -- at the outset, I guess I'd
like to state I wish I was not part of the record. But I think I am.
MR. PRITT: We agree with that, and we'll object to your
testimony.
Bob Pritt once again.
MR. MULHERE: And now, I'm not sure if I have to be
qualified. I guess it depends on whether Mr. Pritt will waive my quali
-- will accept my qualifications as an expert. MR. WEIGEL: Who are you?
MR. MULHERE: My name is Bob Mulhere, and I was the
Planning Director at the time that this was approved.
CHAIRMAN FIALA: Were you the guy that approved it?
MR. MULHERE: Well, I'm going to get to that.
CHAIRMAN FIALA: Oh.
MR. WHITE: I don't know that there's been an answer from Mr.
Pritt. I assume by his silence that he does not accept --
CHAIRMAN FIALA: Yes, I'm looking to you, Mr. Pritt.
MR. PRITT: Again, I object to any of the testimony, so --
MR. MULHERE: Well, you have discussion --
CHAIRMAN FIALA: Do you expect him -- accep -- I'm sorry,
accept him as an expert witness?
MR. PRITT: Yeah, I'll accept him as an expert.
CHAIRMAN FIALA: Thank you.
MR. MULHERE: Again, for the record, Bob Mulhere, currently
with RWA, Incorporated, and formerly with Collier County. And I
was the planning director at the time. Actually, I was not the planning
director at the time that the final SDP was approved, but I was the
planning director who issued the letter approving the application of
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common architectural theme.
And let me just say at the outset that I think there's been a lot of
comments about the approval, it being made in a vacuum or being
made by one individual. Nothing could be further from the truth.
First of all, no SDP in Collier County is approved by one
individual. There is a very substantial review that occurs. And there
was a very substantial review that occurred in this case as well. And
as was already put on the record, that process started largely in 1999
and continued through 2001, after which time I left the county in
April, and then further review occurred after I left.
Couple of comments. You know, I believe that the -- that we did
follow the appropriate process in approving the Cap d'Antibes SDP,
including the reduced development standards permitted through the
common architectural theme provisions of the PUD. I did not do so --
I did not review the request lightly and I did not approve it lightly. I
reviewed the plan against the provisions, the applicable provisions of
the PUD. And in fact, there were a number-- as has previously been
stated, there were a number of SDPs approved under these very same
provisions. In fact, I believe there are other PUDs in Collier County --
MR. PRITT: Okay. I'm going to object again. I think it's five
times now, maybe six. We're talking about other PUDs and what we
used to do. That's our entire point, Board, members of the Board. Our
entire point is the way they may have done it and the way they did it
in this case is incorrect, and we would like that not to be part of his
record, because it isn't.
MR. MULHERE: Well, actually--
CHAIRMAN FIALA: And your name, sir?
MR. PRITT: Robert Pritt.
MR. MULHERE: Actually, that's not my point. My point is that
we actually did it differently this time than the way that it was done
previously.
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In fact, we did it differently because we took the time to fully
review the application. In fact, we asked for and received opinions.
Because I am not an architect, although I did visit the site, although I
did review renderings, although I have several meetings with my
senior level staff, one of whom had 30 years professional planning
experience and a great deal of experience in reviewing Pelican Bay
applications.
Having done all of that, I still felt, you know, I think we need to
get some additional opinions relative to the common architectural
theme provisions.
MR. WEIGEL: Madam Chairman, and Bob, if you'd wait a
minute. Thank you.
Bob has come ostensibly to testify as an expert in relation to --
either in support of or some other comment of the zoning director,
Susan Murray's interpretation. I do not believe he has come before the
Board, at least at the outset, to testify in some other capacity such as
former employee, former person in the process. Mr. Pritt has also
raised concern along that line.
But the fact is, is the SDP approval is not before you today. And
so if Bob wishes to testify as an expert, being acknowledged as such
by Mr. Pritt, in relation to the interpretation written by Susan Murray,
I think that that can be done probably rather succinctly and then we're
done.
MR. MULHERE: Understood and accepted. Let me just say this
then very succinctly and summarily: The fact that during my tenure
with the county as the planning director I signed the letter that
approved the provisions of the planning common architectural theme
in this -- in this instance. And that I stand by that approval I think is
further supported by the independent and subsequent review of the
professional staff that is currently in place who were not involved in
that process, I think as Commissioner Coyle aptly raised that issue
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earlier.
The fact that Susan Murray, as well as the legal s.taff, have
reviewed the request, the appeal and have reviewed the interpretation
as it was rendered and have determined that the interpretation was
properly rendered I think further supports that the appropriate action
was taken during that period of time. And I'm happy to answer any
questions that you have. Thank you.
MS. FILSON: Final speaker is Grady Minor.
MR. YOVANOVICH: We're not going to --
MR. CRITCHLOW: The only other witness that we had was
Grady Minor, limitation on what he would say, and I would proffer to,
and you can tell us whether you want it or not, is that the SDP
development has been completed. And I don't know whether you
want to hear that or not.
CHAIRMAN FIALA: No, sir.
MR. CRITCHLOW: Then there's no need to call Mr. Minor.
CHAIRMAN FIALA: Very good. Thank you. Thank you.
Now, I'd like to hear from our speakers.
MS. FILSON: Okay.
MR. RAIA: We had an agreement. I would like to have -- how
many speakers would like me to represent them and not speak? Are
you all registered speakers? Who's a registered speaker?
CHAIRMAN FIALA: But you said you only wanted five
minutes, Mr. Raia, right?
MR. RAIA: Well, then they will come up and finish reading
what I'm going to read, but, you know, we've given --
CHAIRMAN FIALA: Well, you told me five minutes before.
MR. RAIA: Madam, I am also a property owner--
CHAIRMAN FIALA: I know, but --
MR. RAIA: -- significantly affected.
CHAIRMAN FIALA: -- we have given you 25 minutes before --
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MR. RAIA:
okay?
else.
I'm hoping that I would be finished in five minutes,
CHAIRMAN FIALA: Sir, five minutes.
MR. RAIA: I'm hoping.
CHAIRMAN FIALA: No, no, no. You have five minutes.
MR. RAIA: Then I will surrender some of the time to someone
CHAIRMAN FIALA: And everybody else --
MR. RAIA: And everybody--
CHAIRMAN FIALA: Just a minute, Mr. Raia. How many --
how many other speakers do we have?
MS. FILSON: I believe 16. We've only just called --
CHAIRMAN FIALA: Sixteen. We have three minutes each.
That's it.
MS. FILSON: Including Dr. --
MR. RAIA: Okay. Thank you. I just want to -- it was --
CHAIRMAN FIALA: No, I've given him five because he told
me five. I'm sorry I was misled. MR. RAIA: I'm sorry.
I will not go over cluster again. I think I've demonstrated with
graphics what the staff says, by right, developers can do, no limit to
the size of the building. And I will not go over common architectural
theme. I showed you actual pictures of what the buildings look like.
I will address, though, a reference was made that the cluster
provision is in Section 4, Section 5, Section 6, Section 7. I want to
call to your attention that in all those sections, single-family units are
permitted uses, and again, that's why the cluster provision is there.
The cluster provision, as in the Pelican Bay PUD issued in 1977,
I was on a planning board in 1972, cluster provision was available and
out there in the public, it had a definite meaning then, it has a meaning
now. There is a relationship between the PUD and the LDC. There's a
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statement of compliance, which one of the attorneys already read.
And again, I want to call to your attention that the definition section,
2.15, again refers you to the Land Development Code for the
definition, so there definitely a selection -- a connection there.
I want to get to finish my statement that I started. Okay. Sorry.
Why and how did we get here? If you have a 2,000-foot parcel
that requires 200-foot setback between each of your 200-foot
buildings, you can only build five buildings. Depending on how much
you can reduce the setback distances will determine how many more
square feet of building can be added.
At some time in the past there was a site development plan
submitted for clustered high-rise buildings within Group 4. Now, I
want to call your attention, it did not start out that way. If you look
south of Gulf Park Drive, all those buildings are at least 200 feet apart.
Some time after that, I would say in the late Eighties, early
Nineties, something happened. The planning manager at that time, by
intent or error, but not by right, determined the clustering provisions
of Section 7.04.03(C) of Pelican PUD -- Pelican Bay PUD applied to
high-rise buildings. Now the staff claims that since that first approval
many of the projects in Group 4 have been also deemed cluster
projects and have been approved.
As demonstrated above, the staff erred in their interpretation then
and continue to do so now. The planning staff has had ample time and
opportunity to include clustering of high-rise buildings language into
the Land Development Code. There have been a multitude of
amendment cycles, but the proposal for change remains conspicuously
absent. If developers wanted to reduce setbacks between high-rise
buildings, all they had to do was open a PUD at a public hearing.
However, it was easier, faster and safer to have the staff claim that
setbacks were not required.
I did not write Paragraph A of 7.04.03 and Paragraph B saying
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that the setbacks had to be 200 feet between buildings. The people
who had the unified control that signed the agreement with the County
Commissioners, they wrote that. They made the rules. And they can
change it anytime they want. They can reduce it to one-fourth height
or one-tenth height. They were the ones who had an opportunity to do
it.
The staff maintains that since similar approvals were granted in
the past, the developer is entitled to the approval now. There is a
reason why setback distances were reduced in the past with no public
attention. The developer owned both sides of the property line. The
case -- this case is not similar. This is the first time that a reduction in
sideline setback has been attempted where the developer did not own
both sides of the property line.
We are here to protect our rights, and that is what the staff should
have done the first time this was attempted.
Now, that schematic plan that I showed you, they really
presented this to try to argue that setbacks had been reduced in the
past. But I can show you, wherever setbacks were reduced between
buildings in the past, it was only when the developer owned both sides
of the property line. Property line setbacks are for the benefit and
protection of the adjacent property owner. When a developer reduced
a sideline setback from his own property, who was to complain if the
staff did not enforce the code? Certainly not the developer who
benefited from the reduction.
Pelican Bay was planned to have high-rise buildings 200 feet in
height with at least 200 feet between them. This gave all 14,000
residents of Pelican Bay the benefits of living close to the Gulf,
namely the Gulf breeze, sunsets and open sky. Although there was no
limitation on the width of buildings, only the last four buildings, the
Montenero, the Cap Ferratt, and the St. Raphael and--
CHAIRMAN FIALA: Thank you, Mr. Raia. I have to stop you.
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MR. RAIA: -- now they want to double it. Thank you.
CHAIRMAN FIALA: Thank you. Now, the rest of our speakers
will all have three minutes. We're going to break at 6:30.
MS. FILSON: Jim Hobin? He will be followed by Jacqueline
Mendelsohn.
What did she say?
COMMISSIONER HENNING: She said she'd waive.
MS. FILSON: Okay, then Baron Herman.
MR. HOBIN: My name is Jim Hobin. I'm vice president of the
Pelican Bay Property Owners Association and a homeowner in
Pelican Bay. I'm not an architect, I'm not an expert on common
architectural theme, but I do want to say a few words on common
architectural theme.
Pelican Bay is a community of many neighborhoods. Each
neighborhood has its own unique character. While there are many
facets that contribute to this character, none is more important than the
existence of a common thread or a common architectural theme. This
theme acts as a linchpin to give a particular neighborhood its identity.
In addition to style, size and dimension of a building to me would
appear to have to be in proportion to the neighborhood that it's in. If
we don't have some degree of controls, what becomes of our
neighborhoods? What becomes of their identity? Whether it's in
Pelican Bay or elsewhere, that to me is a primary question.
I close by saying that one can reasonably ask, if a building is
disproportionately larger than the neighboring buildings, does this
negate common architectural theme? I'm not an architect, but I think
as a halfway intelligent person, it certainly would, in my estimation.
If common architectural theme is absent, does this in fact impact
the neighborhood? If it does, what are the results of that impact;
positive or negative? You be the judge of that. I thank you for your
time and your consideration.
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MS. FILSON: Baron Herman?
MR. WHITE: Madam Chair, consistent with our comments, I
note that much of the testimony was facts specific and not part of the
appellate record.
MS. FILSON: Merlin. Merlin Lickhalter.
CHAIRMAN FIALA: I'm sorry, I couldn't -- I couldn't
understand you. Would you say that again, please?
MR. WHITE: Essentially making the same comment with
respect what you're been asking us to do, that largely his testimony
was fact specific and not part of the appellate record, and in that
regard, you should give it, I believe, lesser weight. CHAIRMAN FIALA: Sir.
MR. LICKHALTER: My name is Merlin Lickhalter. I live in
Waterpark Place. My wife and I are among the almost 2,000 people
who signed the petition. I am a licensed architect in Florida,
California and other states, with more than 30 years of experience. I'm
also a Fellow in the American Institute of Architects.
I was going to talk about clustered buildings and harmony and
architectural themes, but I think others before me have done that quite
adequately.
I just have to say, in response to the comments that I heard from
the property owners' independent architects and planners, that
architecture is more than the stylistic archibabble (sic) that I heard this
afternoon. It's more than cotton candy, it's more than entrances and
fountains. Professor Tate is an expert and she defined it for you and
you should listen carefully to what she said.
There's been a lot of emphasis on process here today. An awful
lot of the emphasis has been on the process of doing things, but there's
very little discussion about the results. And I think the residents and
the owner of Pelican Bay are interested in the results.
The issue of competent evidence is beyond my competence.
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That's a legal issue. But I can tell you that the end result isn't very
good. I don't think it's consistent with the Commissioners' vision of
serving the public interest with good planning and design practices.
There's no doubt in my mind that if this project is approved you, and
you're our representatives, and allowed to be built as it's presently
designed, the result will destroy the character of Waterpark Place
where I live, and perhaps even a broader swath of Pelican Bay, due to
its vastly different appearance. And appearance is very important.
I urge you to reject this opinion as you've gotten from your staff,
and remm the project to your new staff for rigorous review.
In that context, earlier one of the Commissioners said that none
of the people on duty now had responsibility for this. And I as a
resident accept that. But I think you're accountable. I think you're
accountable to the owners and to the residents, and I would urge that
instead of focusing on doing things right, you focus on doing the right
thing.
MS. FILSON: Merlin Lickhalter?
MR. LICKHALTER: That was me.
MS. FILSON: Oh, okay.
Dorsey Baldwin.
CHAIRMAN FIALA: Sue, after this then we'll take a break.
MS. FILSON: Dorsey Baldwin? Ross Obiey?
COMMISSIONER HALAS: He spoke before.
MS. FILSON: I know, but she told me to call him.
CHAIRMAN FIALA: Yes, I did.
MS. FILSON: Mr. Obley?
CHAIRMAN FIALA: He's not here any longer.
MS. FILSON: David Bramson? Richard McGahren? Libbie
Bramson? David Bramson?
CHAIRMAN FIALA: Looks like -- here -- this is David
Bramson.
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MS. FILSON: Okay.
MR. BRAMSON: I was going to say good afternoon, but it's
good evening.
My name is David Bramson, I am a registered voter in Collier
County and a resident of Pelican Bay.
It's my hope that you find that Cap d'Antibes is a project contrary
to anything that we all stand for. It's either the result of gross
ignorance or incompetence, whatever, but it was -- it's gross. And you
cannot let a gross error stand that benefits only one developer to the
disadvantage and harm to so many in Pelican Bay and the entire
county.
I plead with you, as our representatives, to not let this thing
happen.
MS. FILSON: Henry Price?
CHAIRMAN FIALA: Sue, we're going to --
MS. FILSON: Oh, I'm sorry.
CHAIRMAN FIALA: That's all right. We're going to need to
take just a 1 O-minute break for our court reporters to rest their fingers.
I just wanted to mention something that -- a couple of things that
--just so it's on the record. Although I have no education in anything,
so I'm reduced to common sense and logic. But I have a problem with
wondering how cluster involves just one building. If you had zoning
for a number of houses and then you clustered them all together to
make one building, maybe that's what it is. But one building to me
just doesn't seem like it's clustered, it's a building. And there's my first
problem.
The second thing is, we're talking about architectural theme, and
we're talking about all of the buildings in Pelican Bay being the same,
20-foot high and so many stories and so forth, and the width, and this
seems to not fall into that same category, so I'm having problems
getting my arms around architectural theme.
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And with that, we'll break for 10 minutes. Thank you. I just
thought I'd better say something.
MR. VOLPE: You won't be returning and voting on the --
CHAIRMAN FIALA: No, unless you're still meeting for a
couple hours.
MR. WHITE: Madam Chair, I'm taking us off the record.
(A recess was taken.)
MR. MUDD: Mr. Chairman, you have a hot mic.
Ladies and gentlemen, will you please take your seats.
COMMISSIONER COYLE: Ms. Filson, who is the next
speaker?
MS. FILSON: Henry Price.
COMMISSIONER COYLE: Mr. Price?
MS. FILSON: He will be followed by --
COMMISSIONER COYLE: Mr. Price waives. Who's the next
speaker?
MS. FILSON: Baron Herman.
COMMISSIONER COYLE: Mr. Herman.
MS. FILSON: And he will be followed by Aldo Magistrelli. Did
he waive?
COMMISSIONER COYLE: He already spoke. Okay, he wants
to speak again.
MR. HERMAN: Honorable Commissioners -- are we awaiting
for the Commission lady, Chairman?
COMMISSIONER COYLE: No, we're ready to go. Go ahead.
MR. HERMAN: Okay. Thank you very much. My name is
Baron Herman. I live in Pelican Bay. I've been a real estate developer
all my life, from Dade County to Lee County and in the last 16 years
in Atlanta. I've developed over 20 subdivisions. And moving here,
I'm seeing something that is radically disgusting happening in Pelican
Bay with Cap d'Antibes. Something that I didn't know when I moved
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in here, and I think is pretty pathetic and I think is sad.
And I know all the Commissioners here, nobody was involved in
this program when it started. But to see Cap d'Antibes -- and I know
this is a little bit repetition, but I really need to say this -- as having
cluster approval when there was one building involved that was really
considered for cluster, I think is a total mockery of fairness and
justice.
And I think it's a total error on the executive staff. I think they
absolutely violently erred, and I see that all the time in developing. In
-- wherever I've been, people make mistakes, and that's the way it is.
They make mistakes as a human being, or they get -- they think
they're doing right or whatever have you. I think they make mistakes
all the time. But now we have a big mistake, and I think everybody
here can help right that wrong. I think if you can wear our shoes, as
somebody else said that, you could feel the same way.
As far as having commonality, well, commonality, you can say
that a mouse and an elephant have commonality, too. I'll prove that,
just like the architect I heard say that there was commonality just
about 10 minutes ago. Well, an elephant has two eyes, two ears, and a
tail, and so does a mouse. And that's how much commonality I think
Cap d'Antibes has with the original two sites, that kind of
commonality. To say that paint, paint colors defines a common
architectural theme I think is ridiculous.
I think -- I think you people here are in a wonderful position to
right a wrong, and I'm hoping you do. I think you're all intelligent.
You are not the executive staff, you are the Commissioners. I hope
you do the right thing, I really do. And I thank you very much.
COMMISSIONER COYLE: Mr. Magistroni (sic), are you the
next speaker? Mr. Magistroni? If we could get the second speaker
lined up here so we won't have to wait for people to walk back and
forth, we might move along a little faster. Who's the --
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MS. FILSON: He will be followed by Frank Partee.
COMMISSIONER COYLE: Is Frank Partee here?
MR. MAGISTRELLI: I just want to say, what this gentleman
just said is totally correct, that you gentlemen are very intelligent and
I'm sure that you can right this wrong. None of you were here when
this happened.
Understand this: I'm 71 years old. I've been -- I own a lot of
commercial property, big property, millions of dollars worth, and I
came down here to sort of semi-retire. I go into a building called the
St. Raphael, and there's 173 units available in that building, and we are
told when we buy and everybody buys, look at the beautiful
panoramic view you have of the Gulf. That's what we were told. So
we bought. And we all bought and we were told -- we saw this empty
lot next door and we asked what is that lot, what's going in that lot?
Well, there's going to be a building right next to yours, back, just like
yours is in line with everything else. There was a sign posted at the
end of the tram ride that -- showing where the building was, and there
was a sign out in front right on Pelican Bay Boulevard there, showing
what was going next door.
And all of a sudden, after we bought, and after these people that
want to slow down -- most of them are retirees, want to enjoy the Gulf
there in front of them, we find out that there's a building coming up.
When we find out the building's coming up, not only is it coming up,
it blocks 40 percent of the view of the people in the 0 l's, and
gradually 50 percent of our building is losing as much as from zero to
35, 40 percent of their view. Okay? Besides that, when the sun -- at
certain times of the year where that building's going to be situated,
we're not going to have any sun in our pool.
Now, like I said, I've been in the building business for 50 years,
and I've been in -- owning commercial properties for 35. And what I
was always told was you can't hurt your neighbor. You can't do that.
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Now, what are we supposed to do when the sun's behind the
building and there's no sun in the pool and all the grandchildren are
down and want to go in the water?
All we're asking you for here today is fair. We believe you're
honest, we know you have a tough job, we know you're intelligent or
you wouldn't be in those chairs. Please come down with the right
thing, because this is not going to go away. I'll tell you, it is not going
to go away. If it doesn't end here, it will go on. As far as I'm
concerned, I'd go -- I've been to federal court. I would go wherever it
took to get this thing rectified. Thank you.
MS. FILSON: Frank Partee. He will be followed by Richard
Laughlin.
COMMISSIONER COYLE: Would you say that name again,
who was it, Potee?
MS. FILSON: Frank Partee.
COMMISSIONER COYLE: Frank Partee. Is Frank Partee
here?
MS. FILSON: I think that's this gentleman. He will be followed
by Richard Laughlin. Does he want to speak again? James Weaver.
MR. PARTEE: Good evening. My name is Frank Partee, and
my wife and I reside at 6040 Pelican Bay Boulevard. We canvassed
the City of Naples for three years looking for a retirement haven, and
we finally selected Pelican Bay because of its unique combination of
beach, greenbelts and the understated elegance of the surrounding
environment. I hope your action here tonight doesn't prove that
decision wrong.
I would have waived my right to speak. We were admonished
before coming here today to act with restraint and not show emotion.
And I really have to compliment the residents of Pelican Bay for
doing that.
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But right now, I am angry. I find it absolutely outrageous that
the Chairman of this Commission would leave this meeting to speak to
a power squadron group instead of putting her vote on the public
record that's going to affect 14,000 residents of this community. I'm
outraged with the mind-numbing quagmire of procedural and
technicality objections that have been thrown at us all day long, and
what appears to me to be an obvious deference of your legal staff to
the developer. I'm angry about the audacity of this developer who
thinks they can come in here and run roughshod over our community.
Now, I've sat here for eight-and-a-half hours, this is what I've
gotten out of it. The developer applied and got approval of an SDP for
four buildings that any commonsense person could understand
comported with the existing and anticipated Pelican Bay development.
Subsequently, the developer applied for an amendment to the
approved SDP that proposed a monstrous building that any
commonsense person could understand was a gross departure from
that original plan.
The county staff then proceeded to approve that amendment,
without public notice and by making interpretations of zoning
regulations that appear ludicrous on their face, which to me reflects
either incompetence or misfeasance, at best, or at worst, malfeasance
in the execution of their duty.
Now, the Pelican Bay community has tried all day to provide
reasonable and factual information that would demonstrate that the
amendment approval was improper and attempting to introduce
evidence, but even so -- even this has been objected to.
So I would request that you do two things: That your decision be
to overturn the previous decision and that you remand this back to
your staff, and when they have reconsidered the proposal, that it be --
that its decision be done pursuant to public notice and public hearing.
Thank you.
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COMMISSIONER COYLE: Thank you very much.
MS. FILSON: Clifford Landers? Mr. Landers will be followed
by Leslie Zell. She will be your final speaker.
MR. LANDERS: I'm a very unusual person in this room. I am a
native Floridian and proud of the fact. And I love Pelican Bay, I love
the Naples area, and I want to see it preserved. I don't want to see its
character change. And we feel that this megalith, as it's been called,
will indeed change the character of Pelican Bay, much for the worse.
I want to speak for a group that hasn't been considered yet and
that is a neighbor of the proposed Cap d'Antibes, but on the other side
of the Boulevard, on the east of the Boulevard. I am a resident of San
Marino, and we will fall into the shadow area of this giant 20-story,
two-tower megalith. Probably from 3:00 in the afternoon during part
of the year, we too will be in shadow.
But that -- even that is not the worst of it. There is another
consideration that hasn't been mentioned yet. I am not a physicist, but
anyone with a rudimentary knowledge of aerodynamics will realize
that the configuration of the building, two 20-story towers, joined by a
four-story bridge is such that it will create a venturi effect, a wind
tunnel effect. And if, heaven forbid, we get a hurricane in the Gulf, it
will come right between those two buildings, accelerating as it does,
and end up right on San Marino. We then are really very much the
target of that kind of potential meteorological disaster.
I think that you people have demonstrated your understanding
and your willingness to listen to us. As others have said, you are
intelligent, you're on top of the issues. You have a chance here to give
us relief; relief in the sense of substantive due process. We've heard a
lot about procedure today, but I'm sure that the fairness of this is
something that you will keep uppermost in your minds.
We hope then that you'll consider this, send it back for review
and we will take the process from there in the open daylight of public
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knowledge. Thank you.
MS. FILSON: Your final speaker is Leslie Zell.
MS. ZELL: Yes, thank you very much. I did not realize that Mr.
Landers was going to speak. I live in the San Marino also.
COMMISSIONER HENNING: Your name, please?
MS. ZELL: Leslie Zell. I bought my property in May, 2002,
and closed in August, 2002. During this time, the information
available for the site opposite was that plans had been passed for two
additional towers in Waterpark Place of a size comparable with the
existing St. Pierre and St. Laurent. These towers would be
approximately 2,000 feet tall (sic), with spaces 200 feet in between.
It's these spaces that would give light, sun and sky to the area, in
keeping with the rest of Pelican Bay. These buildings were shown on
the Pelican Bay Foundation plan at the time. And that's how I
purchased.
Apparently during this time, this plan had already been changed
without letting anyone know, and without any public notification.
Much to my dismay, we now have plans for a huge monstrosity, 650
feet long, across the whole site, with only 50 feet between the adjacent
plots.
With these changes, there will be a considerable loss of light, sky
and sun. Properties in this area and in the area of Pelican Bay
Boulevard itself will be overshadowed by and in the shadow of this
massive new structure. These changes could be a detriment to the use
and enjoyment of the properties.
This is not a small upgrade, but a vast deviation and alteration
from these plans. Clearly, this is injurious to the nature of the
neighborhood. I feel that the public and residents should have been
notified about these plan changes at the time.
I would like to thank you for listening to these points, and I urge
you to reconsider the changes made today back to the original plans,
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as do the many people here today. Everyone should take a
responsibility for the character and nature of Pelican Bay for now and
in the future. Better now than having to say in the future, if only.
Thank you.
COMMISSIONER COYLE: That was the last public speaker?
MS. FILSON: Yes, Mr. Chairman.
COMMISSIONER COYLE: County Attorney, I would like to
close the public hearing, but I know that the Commissioners have
questions of a number of people who have spoken. If we close the
public hearing, would that prohibit them from asking those questions?
MR. WEIGEL: No, not at all. You have your choice to leave the
public hearing open. There are no more spea-- there are no more
speakers to be had, and you can -- as Vice Chair sitting as Chair, with
calling Commissioners, ask questions of anyone. Or you may in fact
close the public hearing and still ask questions of anyone that you may
wish to question.
COMMISSIONER COYLE: Then I will close the public
hearing.
MR. PRITT: Mr. Chairman? Bob Pritt. Just a minor -- well, not
a minor, but a housekeeping item. This morning I had asked that
before we finished we be able to move our documents into evidence
into the record, and I would like to do that at this time. I had referred
to the notice of appeal and the exhibits that we attached to that. I
think those are actually in your record, but they're jumbled in different
-- in different order, so I would like to have a clean copy of that
moved into evidence.
COMMISSIONER COYLE: Mr. Pritt, can you specify for me
whether all of those items are in our packet and have met the
requirements for prior submission?
MR. PRITT: I believe they -- I believe that all of ours are in
there. It was a little bit of a problem because, for example, the
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question that Mr. Hardt had asked appears on a page -- two pages in
the 30s and then somewhere else in the 50s, so they're out of order.
They're very jumbled. You'd probably know that if you looked at
your packets. But it's my belief and understanding that all of our
documents in the first submittal are. And that's what I'd like to have in
the record.
COMMISSIONER COYLE: Mr. Weigel, do you have any
objections?
MR. WEIGEL: Mr. Pritt, when you say the first submittal, you
mean the submittal that came with the -- MR. PRITT: Yes.
MR. WEIGEL: -- written notice of appeal?
MR. PRITT: With the notice of appeal, right.
MR. WEIGEL: If that's the case, I should think that there would
be no objection to that.
By the way, Mr. Chairman, staff reminds me that in the
procedure we talked about this morning, staff did reserve its -- and the
Board approved its having an ability to respond at the end before you
went to the closed discussion.
COMMISSIONER COYLE: Okay, that's not a problem.
MR. WEIGEL: Okay. Thank you.
MR. PRITT: Mr. Chairman, I'm not done yet.
Mr. Chairman, the second submittal, the submittal that we made
on March 2, 2004, I think all of you have that. It's our position that
that also should be admitted into the record. That was sent to this
Board within -- or beyond the seven-day requirement. We did not
violate the seven-day requirement, so that was sent to the Board. We
do request that that be admitted into evidence also.
MR. WEIGEL: Okay. Looking to respond. In keeping with the
previous advice and discussion that we provided earlier and you heard
from others, the fact is that we believe, that we object to and would
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advise the Board to not accept the proffers of written information that
were tendered as recently as March 7th. There's been, again, a
reference to submitting -- March 2nd -- there's been references to
submitting something seven days prior to this hearing, but as Mr.
White noted and I noted, there is -- a specific rule governs the general
rule, and the general rule of quasi-governmental decision-making is in
fact trumped, to use Patrick's word, by the appeal process of 1.6.6.
So we would suggest to the Board not to accept this proffer of
evidence that's been received recently.
COMMISSIONER COYLE: Okay. Mr. Pritt, motion is denied.
MR. PRITT: Okay, I would like to make a proffer of this. The
procedure is, as the Chair may know, is we put that in the record as a
proffered exhibit, but not accepted.
And for the record, Mr. Chairman, it's a letter dated March 2,
2004 to Donna Fiala, Chair, and it consists of nine exhibits, and
Exhibit 9 is A, B, C, D and E.
COMMISSIONER COYLE: Good.
MR. PRITT: And there was one other one. I believe two other
matters.
I had -- some time during this day, I asked if-- I recommended
and asked that if the ordinance itself, the entire PUD ordinance could
be put into the record. The best copy we have of the PUD ordinance
is the 89-35, which made most of the changes. But there were several
areas other than 7.03 that were discussed during the day, and I would
ask that that be put into the record. I have no objection if the staff
wants to have all of the iterations of the PUD ordinances in the record,
but I think that that would be something --
COMMISSIONER COYLE: This is a document which existed
prior to your submission of the appeal?
MR. PRITT: Yes. This is -- this is the ordinance, 89-35. I'll
give you my opinion. I think that this Board can accept -- can take
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judicial notice of all of its ordinances and code sections, and we would
ask that you do that.
There are a lot of code sections that were referred to and
ordinances -- sections that were referred to during this day that were
not actually in front of the Board. And my recommendation would be
that for purposes of the record that be complete.
MS. MURRAY: Mr. Chairman, it's already in the record. I'm
confused by the request, because all the ordinance iterations in the
current ordinance are in there.
MR. PRITT: No, I don't think so. Section -- I think just a couple
of the sections are in there. I don't think the ordinance is -- the entire
ordinance is in there.
MS. MURRAY: The -- that-- well, yeah, it is in there. It's part
of the executive summary.
MR. PRITT: No, not--
MS. MURRAY: The ordinance was amended through the
amendment process. It was not repealed and readopted, it was --
COMMISSIONER COYLE: Okay, let's cut through this. This is
a document that is the county's own document, it existed prior to the
time this decision was ever made, it existed prior to the time any
appeal was ever lodged. I see no reason why it cannot be entered into
the record.
MR. WHITE: On that basis, Mr. Chairman, I'd ask that the
Board accept it under the notion that Mr. Pritt had indicated, to take
judicial notice of it.
COMMISSIONER COYLE: Okay.
MR. PRITT: Okay. And then -- I'm sorry?
COMMISSIONER COYLE: Let him-- do you mind if we let
him finish? Are you through?
COMMISSIONER COLETTA: Well, yeah, it seems like this is
all taking place with -- just between you and the attorney here --
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COMMISSIONER COYLE: Well, if you have a question, go
ahead and ask the question.
COMMISSIONER COLETTA: -- and I'd like to comment along
the way someplace.
COMMISSIONER COYLE: All right, go ahead.
COMMISSIONER COLETTA: Yeah, I'm very concerned about
the fact that these weren't handed in at the very beginning of the
meeting, where somebody could critique what you actually got in
those packages. I don't know what's in there.
MR. PRITT: I did mention it at the very beginning of the
meeting.
COMMISSIONER COLETTA: But you didn't offer them into
the record at that time. I'll tell you one of the problems I've got. In
the past we've had people come up here during the meeting and hand
us paperwork so they could say we had it in our hands, and that our
decision was based upon actually the paperwork we had, and we had
no chance to review it.
MR. PRITT: I'd be glad to put it in your hands, if you'd like.
COMMISSIONER COLETTA: Well, if you want to give me a
couple of hours to go and review it and everything, that might be one
thing.
But I'm having a -- maybe I'm wrong on this. And now, you tell
me, is this different that what we've dealt with in the past where
people have brought information in at the last minute and handed us
packages of information, and then we were responsible for what was
in those packages, even though we never had a chance to read it?
MR. WEIGEL: Well, I've always tried to keep you from being
responsible in the improper way in that regard by noting for the record
when something's been dumped to the record or given to the court
reporter that it is something that this Board has not had the opportunity
to review or read, either prior to or at the meeting.
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In this particular case, Commissioner, I think that the material
that was accepted was the material that was part of the appeal package
that was submitted by Mr. Pritt on behalf of his clients. And that I
believe is included within the agenda package itself.
And the second materials that he wished to submit, which I
suggested and Mr. Coyle indicated would not be acceptable, were the
materials that were tendered on March 2nd to the Board directly, I
think, and not through this process here today. And I indicated that
for this -- for the record here, we objected and Mr. Coyle indicated an
objection, and those have not been accepted here.
The third thing was the -- that we take quote, judicial --
quasi-judicial notice of the Pelican Bay PUD. And he's referring to
the 89 iteration, which captures many of the changes that occurred.
There have been far fewer changes, that I believe the thought is none
pertinent to the issues before the Board today. And you've taken
judicial notice of the Pelican Bay PUD -- ostensibly, I think--
ordinance in its entirety. So there shouldn't be an issue in regard to the
ordinance. I hope that answers the question there.
COMMISSIONER COYLE: Commissioner Halas, you had a
question?
COMMISSIONER HALAS: Yes, I'm-- this is directed to Susan
Murray or to anybody from staff. There was discussion, there was
some items that were brought up for discussion in regards to a former
employee saying they went through a process where a number of
people looked at this documentation.
Is there a paper trail that exists showing what people signed off
on this document and why wasn't that presented as evidence today, if
it does exist?
MS. MURRAY: Yes, it does. And it is in your evidence packet.
I believe in Item 7(A), as a matter of fact.
COMMISSIONER HALAS: I didn't see it.
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MS. MURRAY: I'm going to try and find it for you.
COMMISSIONER HALAS: All I -- all I seen was just -- all that
was there was just letters.
MS. MURRAY: It might be -- 50? Okay.
MR. WHITE: Thirty-one were the letters.
COMMISSIONER HALAS: That's all I saw was the letters. But
if there was a process where each person checked off on this --
MS. MURRAY: Yes, sir, that would be on Page 56 and 57. And
it might not be evident by looking at that, but I can assure you, that is
our -- that is a screen shot of all the required department reviewers and
the status of their review relative to this site development plan
amendment.
MR. WHITE: That was the SDPA approval.
MS. MURRAY: SDPA approval.
COMMISSIONER HALAS: Okay.
COMMISSIONER COYLE: Okay. Now, Mr. Pritt has not --
MR. PRITT: Mr. Chairman-- oh, I'm sorry.
COMMISSIONER COYLE: Go ahead, Mr. Pritt.
MR. PRITT: Yes, lastly, Mr. Volpe has asked that I bring to
your attention his notice of appeal does not appear to be in your
packet, in your record, and we would -- I think it's kind of a
no-brainer, but I would ask that that -- be sure that that be in your
record, his original notice of appeal.
MS. MURRAY: We've copied everything that the petitioners
gave us in the order that they gave it to us. It is all -- should all be in
the record. We've copied everything that they gave to us as part of
their submittal package.
COMMISSIONER COYLE: Just so the other Commissioners
understand, these are procedural issues, not issues to be voted on.
COMMISSIONER HALAS: Right.
COMMISSIONER COYLE: Now, the question is, can you tell
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us, Susan, if it is in fact in the packet?
MS. MURRAY: You don't have the original?
MR. WHITE: I am looking through it now, Mr. Chairman.
COMMISSIONER COYLE: Is there any objection-- legal
objection to it being placed--
MR. WHITE: No, it can be included.
COMMISSIONER COYLE: So let's admit it.
MR. VOLPE: Mr. Chairman, just some housekeeping. It was
not part of your agenda package, that's the reason for it.
I would just like clarification. Ms. Murray on several occasions
has referred to your agenda package. Is that then part of the evidence
that is before this body in connection with this hearing?
COMMISSIONER COYLE: Yes.
MR. VOLPE: So the agenda package as submitted is.
COMMISSIONER COYLE: Yes.
MR. VOLPE: Thank you.
COMMISSIONER COYLE: Okay, Ms. Murray, can you
continue?
MS. MURRAY: Yeah, I just need five minutes and I need to do
some housekeeping items. I need to put a clarification on the record,
and I just need to provide you some brief information and then
summarize.
First I want to just make a clarification for the record. In my
response to Mr. Volpe under cross-examination, I attempted to
respond to him. And if you remember, that was regarding clustering
housing. I attempted to respond to him precisely within the limits of
his question. And that makes me uncomfortable, and because the
entirety of the question in the issue is not revealed when you do that.
So for the record, I would just like to go ahead and state that the
provisions of the Land Development Code, specifically Section 2.6.27
regarding clustering in the LDC, and that talks to the requirement for
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the conditional use, does not factually apply to the multi-family within
Pelican Bay PUD, because the PUD makes specific reference to the -- MR. PRITT: Mr. Chairman, we'd have to object to this. You
closed the public hearing.
COMMISSIONER COYLE: Mr. Pritt, we have asked and we
reserve some time for our staff to provide a quick summary. I will
take note of the fact that you have objected. Will you proceed?
MR. PRITT: Staff-- staff is testifying again. And this -- you're
taking more evidence after the public hearing.
COMMISSIONER COYLE: Mr. Pritt, thank you very much.
Will --
MS. MURRAY: It's for clarification.
COMMISSIONER COYLE: -- you please sit down?
MR. WHITE: Mr. Chairman, I'm not sure whether you officially
have closed the public hearing or not. MR. WEIGEL: He did not.
COMMISSIONER COYLE: I did close the public hearing. And
I also specified that we would have questions of staff and other
people, and we wanted them to talk at our pleasure, and that's what
we're doing.
MS. MURRAY: May I continue, Mr. Chair?
COMMISSIONER COYLE: Yes, please continue.
MS. MURRAY: Because the PUD makes specific reference to
the site development plan process and approval thereof as the means
by which you obtain a reduction in setbacks when you cluster
buildings and apply a common architectural theme, I need to make
that clear, that the provisions of clustering in the LDC do not apply.
That's all I wanted to put on the record with respect to that. And that
has been the common application for reducing setbacks within the
Pelican Bay PUD for multi-family structures.
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COMMISSIONER COYLE: Okay. Thank you very much.
MS. MURRAY: The second part I wanted to clarify was I heard
somebody put on the record about clustering and how because
single-family land use was permitted in the Group 4 zoning -- or the
Group 4 category of land uses within the Pelican Bay PUD, that the
clustering provisions must only apply -- within the PUD must only
apply to the single-family because under the Group 1 provisions, or
Group 2 1 believe it is, excuse me, where single-family is permitted,
that the clustering provisions again repeat themselves in there.
And I wanted to let you know, or at least make you aware of the
fact that the clustering provisions also apply within the commercial
component of the PUD, and that has to do with building separation
under 9.06, and it provides that all buildings shall been separated by
25 feet or one-half the sum of their heights, whichever is greater,
except that in the case of clustered buildings with a common
architectural theme, these distances may be less, provided that a site
plan is approved in accordance with Section 2.05.
So that -- that is not exclusive to single-family within the Pelican
Bay PUD. I wanted to bring that to your attention.
The other thing I wanted to bring to your attention --
COMMISSIONER COYLE: How many other things are we
going to have, Ms. Murray?
MS. MURRAY: I'm sorry, just -- just one. And then I need to
summarize.
Is that acceptable?
COMMISSIONER COYLE: If you make it brief.
MS. MURRAY: I will.
On open space, we talked a lot about the reduction of open space
as the result of the approval of the site development plan amendment.
It's important to remember that open space is calculated on a
PUD-wide basis. It is not calculated on an individual building basis.
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In summary, Mr. Chairman, I just want to remind you, we are not
here to debate a site development review process. We are not here to
rework the approval of the site plan. Hearing opinions from
architects, while that might be nice, if you line 10 architects up here,
they'll all have an opinion. That really has no relevance to what we
are here for. You're here to review the director's interpretation of the
then existing facts and law related to the approval of the subject site
development plan and to determine if any part of what staff did was
inconsistent with the then existing LDC, which is inclusive of the
PUD and the Growth Management Plan.
Due to the dismissal of Item 7(B), you are now left with 7(A) and
two questions. The two questions that were asked, and I'll hit the
easiest one first, has to deal with the relevance of Section 2.8, which
are the architectural and site design guideline standards of the Land
Development Code and their applicability to this site development
plan amendment.
There is no applicability. As I stated earlier, the provisions of the
code, Section 2.8 are only applicable to commercial and
non-residential buildings as defined by the code.
That leaves one remaining question to be answered. The
question was, does the site development plan amendment qualify for a
reduction from the minimum yard requirements under Section 7.04 --
COMMISSIONER COYLE: Ms. Murray, I'm going to ask you
to wrap it up. The time is up. We've been very careful to try to keep
to the appropriate time here.
And I know you have some questions. But let me -- let me make
a minute and just say something for the people who are waiting for a
decision out there.
I don't think any of us doubt the fact that you're upset and
concerned and frustrated with this process. But I want to make sure
you understand the basis on which we have to make a decision, and I'd
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like to read this to you.
The Board of Zoning Appeals, and that's us, shall not be
authorized to modify or reject the Planning Services Director's
interpretation, unless such Board finds the determination is not
supported by substantial competent evidence, or that the interpretation
is contrary to the code.
Whether we like the building unfortunately doesn't enter into this
decision-making process. It could be the ugliest building in the world,
and we're not permitted under law to consider that. We are a
government of laws, and we have to abide by the laws. And that's
why we've been talking about procedure today. And if we are to reject
the interpretation of the Planning Department, we must do so by citing
clear violations of the code, our law, and not by using personal
opinions about the quality of the construction or the size of the
construction, unless that violates the code.
So I want you to understand that although you've suggested that
we should do the right thing, we are constrained to some extent by the
law as to what action we can in fact take.
So now comes the most time-consuming and frustrating part of
this entire proceeding and that's listening to us talk. So we're --
MR. PRITT: Mr. Coyle?
COMMISSIONER COYLE: Yes.
MR. PRITT: We have not been given our opportunity to close,
make our closing argument. Mr. Blakely has been waiting all day
long to do --
COMMISSIONER COYLE: Mr. Pritt, it's all over, okay? We
finished with this. We're going into deliberations. If you wish to
object, please object, sir, we'll deal with it in court. But we are not
going to keep going around in circles with this, okay?
MR. PRITT: I -- okay, let me put my objection on the record,
then. I object because I -- early this morning I reserved time for
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rebuttal and closing. My partner has a very short closing for this
Board. And Ms. Murray, under the guise of answering questions,
gave her closing. We must be given our right to close, also. That is
my objection.
COMMISSIONER COYLE: Put it on the record. We note your
objection.
Gentlemen, do you have any questions?
COMMISSIONER HENNING: Yes.
COMMISSIONER COYLE: I'm sorry. Commissioner Henning.
COMMISSIONER HENNING: No, don't be sorry.
COMMISSIONER COYLE: Go ahead.
COMMISSIONER HENNING: Ms. Murray, thank you for some
of your statements, because it answered some of my questions. I
really appreciate that. But I still have more questions.
And reading Mr. Hardt's official interpretation, I seen a lot of
language in there would -- would guide that the previous SDB (sic)
approval was wrong. And I didn't see a lot of questions. So can you
guide me through those, what we need to deliberate in that -- those
questions?
MS. MURRAY: Sure. You have specific questions you're going
to ask me?
COMMISSIONER HENNING: The issues of the architectural
review. The architectural you've already addressed, but there is still
one more --
MS. MURRAY: Okay.
COMMISSIONER HENNING: -- that you were going to
address?
MS. MURRAY: Oh. Thank you.
The question asked by the appellant was does the site
development plan amendment qualify for a reduction from the
minimum yard requirements under Section 7.04.03 of the PUD as a
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development consisting of clustered buildings with a common
architectural theme.
My opinion is that Section 7 of the Pelican Bay PUD allows the
development of multi-family residential buildings as a permitted
residential use in Group 4. And from my review of the facts derived
from the county of records for the SDP amendment, that the -- this
application would qualify for a reduction from the minimum yard
requirements for construction of multi-family buildings under the
expressed terms of the conditions stated in Subsection 7.04.03(C) of
the Pelican Bay PUD, which says that in the case of clustered
buildings with a common architectural theme, these distances may be
less, provided that a site plan is approved in accordance with Section
2.05.
COMMISSIONER HENNING: The documents that you used to
come to the interpretation -- or your conclusion was based on the Land
Development Code and the planned unit development?
MS. MURRAY: Well, for this question -- well, yes. Yes. For
this question, you would refer to Section 7.04.03, a part of which I just
read. When you get to the issue of common architectural theme, the
PUD does not state what common architectural theme is, what
elements of common architectural theme need to be present in order to
allow for the reduction. When that is the case, staff goes to the LDC
for regulation that either states that or is very similar to that.
In this case, it happens to be under 2.6.27, which is the clustering
provisions of the LDC. And the clustering provisions of the LDC,
when it talks about common architectural theme, provides that for
additional reduction to development standards for common
architectural theme, and that's just the heading of the section there, the
subsection, but underneath one, two and three, it provides some
specific criteria upon which you would evaluate for a further reduction
in this case. And that was the criteria that was -- that was relied upon
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by staff.
COMMISSIONER HENNING: Okay. The PUD document, it's
my understanding -- well, no, I'll let you tell me. Is it the governing
document when you review site plans, or is it the Land Development
Code?
MS. MURRAY: It's -- it's the PUD -- in the case of what we're
talking about here, it's the PUD that's going to govern. And I'm
talking about the development regulations. Where the PUD is silent on
things, then you would turn to the Land Development Code.
COMMISSIONER HENNING: The -- there was one part in
here, and maybe what I'll do, I'll just go to the other CommisSioners
and I'll ask you, but I need to find it.
You reviewed staff's review of the site development plan and
came to a conclusion that they reviewed the PUD and the Land
Development Code and it (sic) to be within harmony?
MS. MURRAY: Well, I did not review the site development
plan. This -- this process is one in which I respond to questions that
are asked through the official interpretation process. So to the extent
that I need to review the record or elements of the record to respond to
those questions, that's what I did. This is not a rereview of the SDP to
determine if staff did it right. It's simply a review of the elements of
the record necessary to answer the questions of the interpretation.
COMMISSIONER HENNING: Okay, thanks.
COMMISSIONER COYLE: Commissioner Halas?
COMMISSIONER HALAS: I was under the impression that we
were also in this interpretation to determine whether staff had made
the correct assumptions in regards to a following, adhering to the LDC
that was present for the site development plan. Am I correct in that?
MR. WHITE: Just have one minute.
COMMISSIONER COYLE: You want to break for dinner?
COMMISSIONER HALAS: I didn't mean to ask such a hard
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question.
MS. MURRAY: I'm sorry, Mr. Chairman.
COMMISSIONER COYLE: Okay.
MR. WHITE: Mr. Halas, you had a question. I think that's where
we left off.
COMMISSIONER HALAS: Okay. The question was, when the
site development plan was submitted, was the LDC, that used for the
site development plan? If it was, then that's what we're here for, to see
if the people who were on watch at that time interpreted the LDC
correctly. Is that right?
MR. WHITE: Commissioner Halas, I don't believe that's the
scope of what these proceedings pertain to. And in fact, we did not
hear from any of the county staff about what prior --
COMMISSIONER HALAS: Well --
MR. WHITE: -- staff did.
COMMISSIONER HALAS: -- we're looking at if the -- if
everybody -- if everything was done in accordance with the LDC that
was presently -- that was present at the time of the site development
plan; is that correct?
MR. WHITE: The only thing that is the scope of this hearing
today were the questions that were asked as part of the official
interpretation that Susan has just identified. And as to any rereview of
prior staff action, that is not the subject of either the interpretations, as
we read them, or of this appeal.
MR. WEIGEL: I think, Commissioner, the question is, where
appropriate the LDC was utilized, and if not necessary, because the
PUD is the primary document the PUD was utilized, maybe that is
your question, or words to that effect.
COMMISSIONER HALAS: Exactly. My understanding, and
what I may be -- correct me if I'm wrong, but in the site development
plan, as it was submitted, that what was used at that point in time was
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the current Land Development Codes that were put in place; is that
correct? And that's--
MS. MURRAY: Well, let me clarify. And I hope maybe my
answer to Commissioner Henning didn't confuse the issue. Because
the --
COMMISSIONER HALAS: Because that's where I picked up
on it.
MS. MURRAY: Okay. Where you have -- you've got your
Pelican Bay PUD, which controls the process in this case. However,
the Pel--
COMMISSIONER HALAS: To a point.
MS. MURRAY: Right. The Pelican Bay PUD was silent on
some issues with respect to common architectural theme. Where the
PUD is silent, generally what you look for is some set of similar
criteria in the code that you might apply to meet that requirement. It's
not to say that you go and then you extract the section of 2.6.27 that
applies and yes, you have to use that. We rely on the LDC as a
resource for similar information or similar regulations where the PUD
is silent, where the PUD does not provide very specific guidelines. If
there are guidelines provided in the LDC that are similar, then we
would use that as a resource. And that's what the staff-- that's what
the staff did in this case. And I guess my opinion is that is not -- that's
not wrong. Does that help clarify?
COMMISSIONER HALAS: That helps.
MS. MURRAY: Okay.
COMMISSIONER HALAS: Can I ask a question? In the case of
the site development plan and the Land Development Code, is there a
point in time when common sense enters into the equation?
COMMISSIONER COYLE: No.
MS. MURRAY: I really don't know how to answer that.
Common sense is not defined in the Land Development Code.
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COMMISSIONER HALAS: Well, I know that, but you would
think that if you looked at something and you --
MS. MURRAY: Let me clarify it this way. Yes, you -- as a
professional planner, okay, trained and'educated in the application of
land development regulations and the review of the Growth
Management Plan, of the creation of Growth Management Plan and
the creation of Land Development Code regulations, you would use
your best professional judgment to evaluate what would be the most
appropriate provision to assist you where the PUD is a silent -- is
silent.
COMMISSIONER HALAS: Okay. When I look at the whole
PUD and I look at the way the buildings are laid out and the
architectural theme, it seems that we have something maybe lacking
here in one area, because it didn't -- it didn't show up any other time
except for this last piece of property. Am I right or wrong?
MS. MURRAY: If you're asking did other buildings within this
development not avail themselves of the same provisions regarding
the reductions, I would have to answer no. The St. Pierre had a
reduction, and they applied the same provision. They would have to
apply the same provision.
COMMISSIONER HALAS: But I'm talking about the size in
regards to the way that the buildings were situated on this whole PUD.
MS. MURRAY: Provided they meet the minimum standards that
are within the document, they are considered to be legal.
COMMISSIONER HALAS: I just have a -- I understand why
these people are so upset, because I live in a neighborhood also where
there's a lot of high-rises, and the way that it's created a problem and
it's -- everything was legal, but the problem is that when you start to
look at a community, an upscale community such as Pelican Bay, and
then we look at what transpired over the period of time, over the
period of years as Pelican Bay was being developed, and then we
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come down to this last piece of property and we see what took place
here, even though the Land Development Code was used to the
utmost, it looks like there was some liberties taking -- taken that
maybe didn't lead to good common sense.
MS. MURRAY: I don't know how that opinion would factor into
the requirements -- required findings that you're required to make
relative to this application, but that certainly is your opinion.
COMMISSIONER HALAS: I mean, that would be where that --
there would be the possibility of looking at this and saying does it
really work here for this particular piece of development.
MS. MURRAY: I hear what you're saying. I think unfortunately
the staff is constrained by what's in the codes and their interpretation
thereof.
COMMISSIONER HALAS: And that's what bothers me is that
the codes may be to a point where they're so liberal that we stretch the
envelope maybe a little too far and then we lose the compatibility and
the theme of what was trying to be encompassed in this whole PUD.
That's what concerns me --
MS. MURRAY: I understand.
COMMISSIONER HALAS: -- and it concerns me greatly. And
I just hope that whatever the outcome is here, that we address this so
that it never happens in any other communities.
MR. WHITE: Mr. Chairman, there's just one question that seems
to be still in my mind, and I'm likely the fellow who's going to have to
address the subsequent litigation in this matter, and I'm just looking to
create a clear record for that purpose.
And as to Ms. Murray's comment about -- in response to
Commissioner Halas's question, I thought I heard her say that she was
responding to what she believed prior staff had done with respect to its
review. And I just want to make sure that that's indeed what you
intended to say, because I don't know that Susan's talked to those
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individuals and I don't know that it was part of the official
interpretation process at all, or if her answer was intended to say that
as part of her consideration of the official interpretation request she
looked at those items --
MS. MURRAY: Oh, yeah.
MR. WHITE: -- that were both in the SDP record in terms of the
letters that are in the appeal file, et cetera, and whether she considered
the provisions of the LDC for guidance.
And if I could ask her to clarify that, then I think it will help with
our record.
MS. MURRAY: As to the first part of your question, if I believe
I heard you correctly, I did not speak with any staff members that
were involved in the review or approved the project. I -- again, my
review is limited to the questions asked and to the extent that I need to
pull records, paper records and review them and able to respond to the
questions, that's the extent of my research and involvement with that.
MR. WHITE: And I think I heard you say that you looked into
2.6.27 for a consideration of some of the elements of a common
architectural theme?
MS. MURRAY: Yes.
MR. WHITE: And is that -- but you don't know that the staff did
that previously?
MR. PRITT: Mr. Chairman, may I please object to this. We're
starting a new public hearing.
MR. WHITE: I'm just trying --
MR. PRITT: Now -- now Mr. White is asking the questions,
answering the questions, rehabilitating his own witness. You closed
the public hearing, and you told me to sit down and not to say
anything more, but I can't resist.
COMMISSIONER COYLE: I asked you to sit down, I didn't tell
you to.
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MR. PRITT: I just have to object to this whole thing.
COMMISSIONER COYLE: I understand. Thank you very
much.
MR. WHITE: I'm just trying to be clear, and both in answer to
Commissioner Halas's question.
COMMISSIONER COYLE: All right. Commissioner Halas,
have you gotten an answer to your question? COMMISSIONER HALAS: Vague.
You said that now you had to pull out some additional
paperwork?
MS. MURRAY: No, I -- let me try one more time to clarify.
COMMISSIONER HALAS: All right.
MS. MURRAY: The -- what I'm relying on from the record is a
letter from the approving planner outlining the elements of common
architectural theme that they applied and identified that were
consistently applied by this office, meaning the planning office. And
those are similar to the provisions in 2.6.27. So I made an assumption
that he applied those. Right or wrong, that was the basis of my
response.
COMMISSIONER HALAS:
COMMISSIONER COYLE:
COMMISSIONER HALAS:
COMMISSIONER COYLE:
Thank you.
Commissioner Halas, you okay?
Yes.
Commissioner Coletta?
COMMISSIONER COLETTA: I'm fine.
COMMISSIONER COYLE: You're fine?
Commissioner Henning?
COMMISSIONER HENNING: Ms. Murray, one of the
attorneys on this side has referenced to 2.05 of the PUD. And I don't
know if this is relevant or not or whether you even should answer the
question, but it's referring to a director, but it -- and I'm assuming that
that's the planning director? I mean, I know they have a -- the
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March 9 & 1 O, 2004
Foundation has employees that could be directors.
MS. MURRAY: Yes, that -- that is the planning director, in my
opinion that's --
COMMISSIONER HENNING: Okay. Thank you.
COMMISSIONER COYLE: Any other questions? I guess it's up
to me.
Ms. Murray, will you put that chart up on the projector, please?
MS. MURRAY: Which page, Commissioner?
COMMISSIONER COYLE: Well, it looks like Page 2.
MS. MURRAY: Two?
COMMISSIONER COYLE: Yeah. Let's go to Page 4, I'm
sorry, because that has some additional information on it that will
make it easier to refer to the chart.
Now, in both Tract A and Tract B, there are zero lot lines,
apparently for the parking garages and the tennis courts. Now, how
did that come about?
MS. MURRAY: Well, as I put on the record earlier, the original
site development plan approved in 1990 was actually -- the parcel was
platted as one complete tract with four separate buildings on there.
COMMISSIONER COYLE: Right.
MS. MURRAY: When they fractionalized the tract into these
various tracts, these were the lines that were drawn. That's how they
were fractionalized.
So I guess to answer your question, it really in our opinion isn't
zero lot line if you're measuring from the parcel boundary. And that
was how the original SDP was reviewed and approved. And same
with the amendments.
COMMISSIONER COYLE: But then they treated -- they
created tract boundaries which redefined the ownership boundaries
between the property; did it not?
MS. MURRAY: Well, I can't speak to the ownership or the
Page 420
March 9 & 1 O, 2004
transference of ownership thereto in terms of when that happened or
who it went to. I don't have those details. But I believe that was the
purpose of actually drawing those lines, was to have the ability to
transfer to different owners.
COMMISSIONER COYLE: Now, would those two structures,
the two parking buildings, have been in conformance to the PUD had
they been built on a property line at zero setback in the beginning?
MS. MURRAY: Well, if you took the measurement from the
tract line, then no, they would not comply.
COMMISSIONER COYLE: Okay. The proposed building in
Tracts C and D that we call now Cap d'Antibes, tell me why the
appropriate setback for that building was not measured from the
parking structure and why it was measured from the St. Laurent?
MS. MURRAY: The requirement is for a building separation for
principal structures.
COMMISSIONER COYLE: So the separation requirement does
not apply to accessory structures?
MS. MURRAY: The -- let me pull it out so I make Sure I tell
you the right thing.
The regulation says that from minimum yards from tract or
development parcel lines, right-of-way lines and/or the edge of gutter
of a private road, 50 feet or one-half the height of the structure,
whichever is greater, except that detached accessory structures shall
be set back 20 feet or one-half the height, whichever is greater. So
there's a different regulation for --
COMMISSIONER COYLE: But you mentioned the setback
from a tract line would be 50 feet or one-half of the height. Not, it's --
refresh my memory, it was determined that the Cap d'Antibes did not
have to meet that because it was a clustered development, a clustered
unit; is that essentially the case?
MS. MURRAY: Could you restate your question for me,
Page 421
March 9 & 1 O, 2004
because I think we're -- I'm crossing over two different issues, and I
just want to be sure I'm clear.
COMMISSIONER COYLE: Yeah, you stated that the setback
from a tract line would be 50 feet or one-half the height of the
proposed building.
MS. MURRAY: Well, the code -- the way it reads says from
tract or development parcel lines. So you could measure from either.
And in this case, the original site plan was submitted, measuring from
the parcel or the overall line.
COMMISSIONER COYLE: The -- help me with the term
parcel. The -- it was my understanding that the blue lines identify the
parcel lines, the parcel itself.
MS. MURRAY: That's -- yeah, that's my opinion, yes.
COMMISSIONER COYLE: So we didn't really measure from a
parcel line when we tried to determine the setback, we measured from
a tract line. But in fact you measure from a building.
MS. MURRAY: I think we're maybe mixing up a little bit.
There's two different regulations: There's a regulation that says you
have to have a building separation distance, and there's a regulation
that says the building has to be set back from the parcel line in this
case, how it was applied. So both regulations would be -- would come
into effect here.
COMMISSIONER COYLE: But in this case, we didn't use the
parcel line for that particular boundary. We used the building, the
next closest building?
MS. MURRAY: Right, between the St. Laurent and Cap
d'Antibes?
COMMISSIONER COYLE: Yes.
MS. MURRAY: Yes, that would be the --
COMMISSIONER COYLE: Now, there's a one-unit building
between those structures. What is that one-unit building?
Page 422
March 9 & 1 O, 2004
MS. MURRAY: I don't know for a fact.
COMMISSIONER COYLE: Can somebody tell me? Yes, sir.
Yes, I'm sorry, Mr. Raia --
MR. WHITE: Could you come up to the microphone, please.
MR. RAIA: The reason why the developer does that, it makes
him subject to the homeowners' association rather than a
condominium association. This gives the developer more authority in
administering the entire Waterpark Place.
COMMISSIONER COYLE: Is that a habitable building?
MS. MURRAY: What is it?
MR. RAIA: It's not there, it's only on paper. But as long as it's
on paper and they are really developing four, or in this case three
buildings, as long as he shows the intent of having one private
residence, it's no longer subject to condominium association law. It
becomes homeowner association law.
COMMISSIONER HENNING: What's that guy's name?
COMMISSIONER COYLE: Yeah. Okay.
COMMISSIONER HENNING: We need his name for the
record.
COMMISSIONER COYLE: No, he gave it. It was Ted Raia.
MS. MURRAY: I assume that means it's a single-family home?
I still don't think you have the answer to your question.
COMMISSIONER COYLE: Yeah, that's right. My point was,
would it have been appropriate to measure from that building site as
the closest building site to the Cap d'Antibes, even if it is not yet
constructed?
MS. MURRAY: Well, a couple of things. If you define it as a
principal structure, yes.
COMMISSIONER COYLE: Okay. The -- let's talk a little bit
about compatible architectural style, or common architectural theme I
think is the appropriate term.
Page 423
March 9 & 1 O, 2004
If-- in reaching that particular conclusion, is it fair to say that
only the Cap d'Antibes property itself was evaluated for common
architectural theme? Or is it the position that the proposed Cap
d'Antibes is also compatible with the St. Laurent and the St. Pierre?
MS. MURRAY: Commissioner, I'd have to rely on the elements
of the record. Again, I did not review or approve the plan. I can only
repeat what's in the record. And I think I have something here that
might answer your question. This was a letter dated February 14th,
2000 from the planner who eventually approved the project. And he
states that: We have reviewed the architectural plan for Waterpark
Towers, a twin tower building complex with a common first story, and
its relationship to the remainder of Waterpark, a unified plan of
development, and have concluded that Waterpark Towers -- I assume
he's talking about Cap d'Antibes -- qualifies and contributes to the
common architectural theme for all Waterpark.
Then he goes on to say -- he goes on to describe the elements of
common architectural theme that he utilized in his evaluation, and
says that the towers by themselves are of similar intensity and volume
to existing buildings; the orientation of Waterpark Towers to the St.
Laurent and St. Raphael are at angles to one another, diminishing the
effect of the reduced separation. I believe that answers --
COMMISSIONER HALAS: Who was the -- who is the planner's
name there?
MS. MURRAY: Ron Nino.
COMMISSIONER COYLE: Okay, the issue of common
architectural theme and clustering and open space seems to have been
tied fairly closely together. It seems there's almost a chain linking
those three considerations.
I want to make sure I understand the issue with respect to open
space. As I understand the argument, the Pelican Bay PUD itself
specified open space based upon the assumption that there would be
Page 424
March 9 & 1 O, 2004
clustering throughout the Pelican Bay PUD. And that open space was
essentially established in the PUD at what, a little over 600, 700
acres? Is that --
MS. MURRAY: More or less, yeah.
COMMISSIONER COYLE: -- about where we were with that?
MS. MURRAY: There was some conservation as well, so, again,
you can include that in the calculation of open space.
COMMISSIONER COYLE: Okay. And so that open space was
established at the time the PUD was established; is that a fair
statement?
MS. MURRAY: That's my understanding.
COMMISSIONER COYLE: Okay. Is it your understanding that
two buildings, and these were originally proposed as two buildings,
could be clustered, essentially moved closer together, if they
themselves had a common architectural theme, without regard to any
neighboring structures?
MS. MURRAY: Yes.
COMMISSIONER COYLE: Okay. All right, thank you very
much.
COMMISSIONER HENNING: Commissioner, the problem that
I see is, why we're here, at one time this is all one tract or one parcel,
and then they were subdivided off into what we see here as four. And
then the present owner of Tract J, I guess it is, then joined the two
together, creating this large building.
And so one or the other, if the Land -- or the PUD did not allow
any subdividing or -- at the beginning, or what we have here today, we
wouldn't be sitting up here. That's the whole issue. And I know that
we can -- I could buy my neighbor's property next door and join them
together, because the Land Development Code provides it. I don't live
in a PUD, and I didn't see anywhere in this PUD that says you cannot
do what's been done here today. And that's a shame.
Page 425
March 9 & 1 O, 2004
And that's what I see is a whole issue is why we have this such
big building here, because there was nothing there to prevent it.
Mr. Chairman, I -- at this time, listening to all the evidence today,
I find that our planning director interpretation is correct. And I feel
that at this point, if it's appropriate, I'll go ahead and make a motion.
COMMISSIONER COYLE: It's appropriate. Go ahead.
COMMISSIONER HENNING: I make a motion that we find the
interpretation of our planning director correct; therefore, denying the
appeal.
COMMISSIONER COYLE: Is there a second?
COMMISSIONER COLETTA: I'll make a second to that.
COMMISSIONER COYLE: Okay. We have a motion by
Commissioner Henning, a second by Commissioner Coletta. There
will be -- now be discussion.
Gentlemen, any discussion concerning this?
COMMISSIONER HENNING: Could you state the motion?
COMMISSIONER COYLE: The motion, as I understand it, is
that we find that our planning director did in fact issue an appropriate
interpretation.
MR. WHITE: And that would be on both of the issues that were
identified in the--
COMMISSIONER COYLE: Let's --
MR. WHITE: -- interpretation?
COMMISSIONER HENNING: Mr. Hardt's letter?
COMMISSIONER COYLE: We've already disqualified one
appeal, so I don't know if we're going to vote --
MR. WHITE: I was going to give you the reference to this.
They were questions one and four in that interpretation, the other three
being essentially fact questions that couldn't be answered. But the
correct, I think, item for the purposes of the motion is that it's --
finding the interpretation that is essentially AR-4307, is supported and
Page 426
March 9 & 1 O, 2004
that the appeal, ADA-2004-AR-5218, is denied.
COMMISSIONER HENNING: That's part of my motion.
MR. WHITE: I just have one other piece of housekeeping, and
it's in terms again of the record, and that is to indicate to all that the
CD that Dr. Raia had included as part of his presentation has been
given to our stenographer and is part of the record in this case.
MR. WEIGEL: I have a question for the motion maker and that
is that with the motion made and restated --
COMMISSIONER COYLE: Before you do that, let me raise an
issue concerning the motion, please, with Commissioner Henning's
patience here.
What we have before us is a petition, an application to overturn
the staff's interpretation. The motion, as it is currently stated, does not
directly address the petition itself. So would it not be better to
rephrase the motion to deny the petition?
MR. WEIGEL: I think Mr. Henning actually mentioned that.
COMMISSIONER HENNING: The appeal.
COMMISSIONER COYLE: The appeal, I'm sorry.
MR. WEIGEL: It's the appeal, yes. And I think it appears that
what you have stated at this point encapsulizes a motion to deny the
appeal for agenda Item 7(A), referencing ADA-2004-AR-5218, and
adopt the interpretation of the Zoning Director without modification,
noting that the interpretation is supported by substantial competent
evidence.
COMMISSIONER HENNING: That's part of my motion.
MR. WHITE: And I would only add to that for the purposes of
clarity that the interpretation citation is in all caps, INTP-2003-AR-, as
I indicated earlier, 4307.
COMMISSIONER COYLE: Okay, gentlemen, any discussion?
COMMISSIONER COLETTA: Add that to my second.
COMMISSIONER COYLE: Okay. Commissioner Halas?
Page 427
March 9 & 1 O, 2004
COMMISSIONER HALAS' I just -- yes, again, I disagree. I
feel that this building is out of character. And it's sure not compatible
with the community there. And I'd just like to put that on the record.
COMMISSIONER COYLE:
(No response.)
COMMISSIONER COYLE:
All in favor, say aye.
COMMISSIONER COLETTA:
Okay. Any other comments?
I'll call the question.
Aye.
COMMISSIONER
COMMISSIONER
COMMISSIONER
HENNING: Aye.
COYLE: All opposed?
HALAS: Aye.
COMMISSIONER COYLE: Aye.
So the vote is 2 to 2. Motion fails.
Is there another motion?
COMMISSIONER HALAS: I make a motion that we approve
this appeal.
COMMISSIONER COYLE: And I'll second the motion.
MR. WHITE: In that case, Mr. Chairman, I think we would need
to have what the grounds are for rejecting or in what way you would
seek to modify the Planning Services Director's interpretation. That's
what 1.6.6 requires.
COMMISSIONER COYLE: Okay, I'll give you my reasons. I
find that the -- the three issues, the one of creating additional
greenspace by consolidating buildings in a single -- or in closer
proximity, and the reduction of the side yard setbacks was not done in
conformance with our code. And with specific reference to the fact
that the side yard setback was not determined from the closest
building structure to the -- I guess it would be to the south, that is the
St. Laurent.
And secondly, that the clustering process is to be done primarily
to create additional common space, encouraging the conservation of
Page 428
March 9 & 1 O, 2004
environmental resources.
The -- there is no evidence that the clustering of these buildings
in any way created any more common space or resulted in the
conservation of environmental resources. I find the argument that
such open space was provided at the beginning of the PUD to be
unconvincing, because there was no way at the beginning of the PUD
anyone could have anticipated this particular clustering concept. And
this clustering concept did in fact not result in any additional common
space or conservation of environmental resources anywhere in Pelican
Bay. At least there's no evidence to that fact.
So for the reason that clustering is done to achieve, among other
things, the conservation of environmental resources and the creation of
common open space, and the fact that clustering and the common
architectural theme are essential in order to grant reductions of
setback, those are the reasons that I would vote in favor of the appeal.
COMMISSIONER HALAS: I concur.
COMMISSIONER HENNING: May I?
COMMISSIONER COYLE: Sure, go ahead.
COMMISSIONER HENNING: The evidence that was before us
was the PUD and the Land Development Code, with the PUD being a
higher document. And it doesn't say in 7.04(C) anything about
greenspace or environment in that. It says in the case of clustering
buildings with common architectural theme, these distances may be .
less provided that the site plan is approved in accordance to Section
2.05 of the PUD. And there's nothing in here, in 2.05, that says
anything about increased greenspace or environment.
COMMISSIONER COYLE: The -- the definition of cluster
development is contained in our code, Paragraph 6.3. And that clearly
says that one of the reasons is a reduction in standard lot requirements
of the applicable zoning district with a difference being the reduced lot
size and standard lot requirement being placed in common open space.
Page 429
March 9 & 10, 2004
And in code Section 2.6.27.1 it further identifies encouraging
conservation of environmental resources and containing a more usable
pattern of open space as a requirement. Now, all this is of course
hindsight. And under no circumstances am I criticizing that the -- the
staff's conclusion here, I am merely saying that my evaluation of the
process, having the benefit of all of the information that has been
assembled and presented, has led me to this particular conclusion.
COMMISSIONER HENNING: Commissioner, the -- and I'm
not -- I know you're not attacking our staff and I know you wouldn't
do anything like that. The only point that I'm bringing out is the PUD
is a higher document than the Land Development Code, and whatever
the PUD doesn't say, you go back to the Land Development Code.
COMMISSIONER HALAS: That's exactly what we're doing.
COMMISSIONER HENN1NG: So you're saying -- okay, well --
COMMISSIONER HALAS: Exactly going back to the Land
Development Code, the interpretation.
COMMISSIONER HENNING: Okay. I'm done. Let's vote.
COMMISSIONER COYLE: Okay, we've got a motion.
MR. WEIGEL: The motion I think was made by Commissioner
Halas --
COMMISSIONER COYLE: Halas, and seconded by me.
MR. WEIGEL: And Mr. Coyle iterated it in quite some detail.
Mr. Halas, if I missed it, do you go on the record to adopt that as
your motion?
COMMISSIONER HALAS: Yes, I do.
MR. WEIGEL: And the second by Mr. Coyle?
COMMISSIONER COYLE: I do.
MR. WEIGEL: Thank you.
COMMISSIONER COYLE: Then I'll call the motion.
All in favor, please signify by saying aye.
COMMISSIONER HALAS: Aye.
Page 430
March 9 & 1 O, 2004
COMMISSIONER COYLE: Aye.
All opposed?
COMMISSIONER HENNING: Aye.
COMMISSIONER COLETTA: Aye.
COMMISSIONER COYLE: Still a tie vote. Commissioner
Halas and Commissioner Coyle aye, and Commissioner Coletta and
Commissioner Henning nay. And the motion fails.
And we are finished. I'm closing the meeting. We are adjourned.
*****Commissioner Coletta moved, seconded by Commissioner
Coyle and carried unanimously, that the following items under the
Consent and Summary Agendas be approved and/or adopted: *****
Item # 16A 1
RESOLUTION 2004-65 AUTHORIZING F1NAL ACCEPTANCE
OF THE ROADWAY, DRAINAGE, WATER AND SEWER
IMPROVEMENTS FOR THE FINAL PLAT OF "EDEN AT THE
STRAND REPLAT- 1". ROADWAY AND DRAINAGE
IMPROVEMENTS WILL BE PRIVATELY MAINTAINED, AND
WATER AND SEWER IMPROVEMENTS WILL BE
MAINTAINED BY COIJ~IF.R COl INTY
Item #16A2
BUDGET AMENDMENT IN THE AMOUNT OF $18,900 TO
FUND TEMPORARY SEASONAL PART TIME STAFF
CONSISTENT WITH PAST YEARS FOR CONDUCTING SEA
TI IRTI.E MONITORING FOR THE 2004 NESTING SEASON
Page 431
March 9 & 1 O, 2004
Item # 16A3
FINAL PLAT OF "VERONAWALK PHASE lB" AR4692, AND
APPROVAL OF THE STANDARD FORM CONSTRUCTION
AND MAINTENANCE AGREEMENT AND THE
PF. RFORMANCFi SF. CI ~RITY
Item # 16A4
100% REIMBURSABLE ARTIFICIAL REEF CONSTRUCTION
GRANT FOR THE AMOUNT OF $25,000 FROM THE FLORIDA
FISH AND WII.DI,IFF, CONSFRVATION COMMISSION
Item #16B 1
BID REJECTED UNDER BID #04-3595 "CLEARING,
GRI JBPlING, TRF,F, TRIMMING & RF. MOVAIJ SF. RVICF, S"
Item # 16B2
DONATION AGREEMENT FOR THE ACQUISITION OF A
PERPETUAL, NON-EXCLUSIVE EASEMENT, WHICH IS
REQUIRED FOR THE PURPOSE OF CONSTRUCTING AND
MAINTAINING A SIDEWALK ALONG THE NORTH SIDE OF
THE COCOHATCHEE CANAL, ACROSS TRACTS "B" AND "C"
OF CARLTON LAKES UNIT ONE, ACCEPT THE
CONVEYANCE OF SAID EASEMENT, AND AUTHORIZE THE
PAYMENT OF SOUTH FLORIDA WATER MANAGEMENT
DISTRICT PFRMIT APPI.ICATION FF.F.S
Item #16B3
Page 432
March 9 & 1 O, 2004
SUPPLEMENTAL AGREEMENT NO. 9 FOR PROFESSIONAL
DESIGN SERVICES BY HOLE MONTES, INC., FOR THE
IMMOKALEE ROAD SIX-LANING PROJECT FROM U.S. 41 TO
1-75, 11NDER BID NI~MBF, R 00-3057
Item # 16C 1
APPROVAL OF A BUDGET AMENDMENT TO RECOGNIZE
ADDITIONAL REVENUE FROM CONTRACT NO. ML040284
WITH THE SOUTH FLORIDA WATER MANAGEMENT
DISTRICT, A POLLUTION CONTROL SURFACE WATER
SAMPI JNG PROGRAM
Item #16C2
AGREEMENT BETWEEN CALUSA ISLAND VILLAGE, L.C., A
FLORIDA LIMITED LIABILITY COMPANY AND THE BOARD
OF COUNTY COMMISSIONERS REGARDING THE PROPOSED
UPGRADES TO THE GOODLAND WATER PUMPING
STATION
Item #16C3
PURCHASE OF A 2.8 I-ACRE LOT AT THE NORTHWEST
CORNER OF WILSON BOULEVARD AND 14TM AVENUE NW
FOR WATER SUPPLY WELL SITES AT A TOTAL COST NOT
TO EXCEED $79,735.00
Item #16C4
Page 433
March 9 & 10, 2004
COMPETITIVE BIDDING PROCESS WAIVED FOR
TECHNICAL ASSISTANCE TO PERFORM A POST
IMPLEMENTATION REVIEW, WORKFLOW ANALYSIS AND
DOCUMENTATION OF OPERATING PROCEDURF. S FOR THE
UTILITY BILLING SOFTWARE SYSTEM AT A NOT-TO-
EXCEED COST OF $72,300 WITH VACCARO CONSULTiNG,
INC.
Item #16C5
ACCEPTANCE OF AMENDMENTS TO TWO GRANT
AGREEMENTS (PROJECT TIME EXTENSIONS) WITH SOUTH
FI.ORIDA MANAGF, MF, NT DISTRICT
Item # 16C6
FUNDING AND BUDGET AMENDMENT FOR PROJECT
MANAGEMENT PROCESS DOCUMENTATION AND
AUTHORIZATION OF THE PUBLIC UTILITIES ENGINEERING
DIRECTOR TO EXECUTE WORK ORDER GH-FT-04-02 WITH
GREELEY & HANSEN IN THE AMOUNT OF $31,706, PROJECT
75000
Item #16C7 - Moved to Item #10E
Item # 16C8
GRANT AGREEMENT (GREASE CONTROL EDUCATIONAL
PROGRAM) FROM THE SOUTH FLORIDA WATER
MANAGEMENT DISTRICT IN THE TOTAL AMOUNT OF
$25:000
Page 434
March 9 & 1 O, 2004
Item #16C9
FOUR GRANT AGREEMENTS FROM THE SOUTH FLORIDA
WATER MANAGEMENT DISTRICT IN THE TOTAL AMOUNT
OF $315,700
Item # 16D 1
RESOLUTION 2004-66 ESTABLISHING THE COLLIER
COUNTY HEALTH DEPARTMENT FEE SCHEDULE FOR
FY2004
Item # 16E 1
RESOLUTIONS 2001-294 AND 2002-464 REPEALED AND
RESOLUTION 2004-67 ADOPTED FOR THE SOLE PURPOSE
OF REMOVING ANY LANGUAGE RELATED TO
AUTHORIZATION TO SIGN GRANT APPLICATIONS
RECOGNIZING THAT SUCH AUTHORITY IS OUTLINED IN
THE COUNTY MANAGER'S GRANT COORDINATION
PROCEDURE IN THE PRACTICES AND PROCEDURES
MANIIAIJ
Item # 16E2
APPROVAL AND RATIFICATION OF A RECOMMENDATION
TO FILE SUIT FOR RECOVERY OF REPAIR/REPLACEMENT
COSTS INCURRED BY THE COUNTY IN CONNECTION WITH
PROPERTY DAMAGE CAIISF, D BY A THIRD PARTY
Page 435
March 9 & 10, 2004
Item #16E3
APPROVAL TO UTILIZE STATE CONTRACTS FOR
PURCHASE OF FURNITURE AND FLOOR COVERING OVER
TWFNTY-FIVFJ THOIISAND DOIJI.ARS ($25:000)
Item #16E4
REPORT AND RATIFICATION OF STAFF-APPROVED
CHANGE ORDERS AND CHANGES TO WORK ORDERS TO
BOARD-APPROVED CONTRACTS
Item # 16E5
APPROVAL OF PAYMENTS TO SUB-CONSULTANTS FOR
THE NAPLES JAIL PROJECT 1N THE AMOUNT OF $112,845.
TO TLC ENGINEERING, TKW ENGINEERING AND WALKING
PARKING CONSI II~TANTS
Item # 16E6
ANNUAL CONTRACT FOR UNDERGROUND UTILITY
CONTRACTING SERVICES PURSUANT TO RFP #04-3535, IN
THE ESTIMATED ANNUAL AMOUNT OF $6,000,000 TO SIX
FIRMS AS Ol JTI.INFD IN THF. F. XF. CI JTIVF, SI JMMARY
Item # 16E7
CONTRACT FOR CONSTRUCTION MANAGER AT RISK FOR
THE PROPOSED COURTHOUSE ANNEX AND PARKING
Page 436
March 9 & 10, 2004
GARAGE, RFP #04-3576 - AWARDED TO KRAFT
CONSTRI ICTION 1NC.
Item #16E8
AMENDMENT NO. 1, CONTRACT #02-3422, TO DISNEY AND
ASSOCIATES, P.A., FOR ARCHITECTURAL SERVICES FOR
DESIGN OF THE NEW COUNTY FLEET FACILITY 1N THE
AMOI JNT OF $154~750
Item # 16F 1
RECOGNITION AND APPROVAL OF THE FEMA ASSISTANCE
TO FIREFIGHTER'S MATCHING (90/10) GRANT IN THE
AMOI JNT OF $157:500
Item #16F2
APPROVAL OF COOPERATIVE AGREEMENT WITH THE
SOUTH FLORIDA WATER MANAGEMENT DISTRICT
ACCEPTING $1,000,000 ANNUAL FUNDING CONTRIBUTION
TO COLLIER COUNTY FOR THE FIRST TEN YEARS OF THE
TWENTY-YEAR A GR F.F, MF, NT
Item # 16G 1
BUDGET AMENDMENT INCREASE OF $16,000 TO FUND
REVISED ESTIMATED COSTS TO COMPLETE POWDER
COATING CONVERSION AND OTHER IMPROVEMENTS TO
THE POWDER COATING FACILITY AT THE IMMOKALEE
RF, GIONAI. AIRPORT
Page 437
March 9 & 10, 2004
Item # 16G2
APPROVAL OF THE SEARCH FOR AN EXECUTIVE
DIRECTOR FOR THE COLLIER COUNTY AIRPORT
Al JTHORITY
Item # 16H 1
COMMISSIONER COLETTA'S REQUEST FOR APPROVAL
FOR REIMBURSEMENT FOR ATTENDING A FUNCTION
SERVING A VALID PUBLIC PURPOSE FOR THE HISPANIC
CHAMBER OF COMMERCE OF COLLIER COUNTY ANNUAL
AWARDS BANQUET ON MARCH 13, 2004 FROM 6:00 P.M. TO
MIDNIGHT AT THE El,KS CIJlJB IN THE AMOIJNT OF $65_00
Item # 1611
MISCELLANEOUS CORRESPONDENCE- FILED AND/OR
REFERRED-
The following miscellaneous correspondence, as presented by
the Board of County Commissioners, has been directed to the various
departments as indicated:
Page 438
BOARD OF COUNTY COMMISSIONERS
MISCELLANEOUS CORRESPONDENCE
March 9, 2004
FOR BOARD ACTION:
A. Minutes:
Pelican Bay Services Division - Agenda for January 21, 2004; February
4, 2004, Minutes of January 7, 2004, and Minutes for January 21, 2004
for both the 1:00 special meeting and the 2:00 special meeting; Budget
Sub-Committee Agenda for January 28, and February 18, 2004, Sub-
Committee Minutes for December 10, 2003; January 28, 2004 and
February 18, 2004 and Minutes of February 7, 2004.
Collier County Planning Commission - Agenda for February 5 and 19,
2004; Minutes of July 18, 2003, December 18, 2003, and January 15,
2004.
Parks and Recreation Advisory Board - Agenda for February 18, 2004;
Minutes of January 21, 2004.
Citizen Corps Advisory Committee - Agenda for November 20, 2003 and
January 15, 2004; Minutes of November 20, 2003 and January 15, 2004.
Golden Gate Estates Land Trust Committee - Minutes of November 24,
2003.
6. Coastal Advisory Committee - Minutes of January 8, 2004.
o
Immokalee Area Master Plan Ad Hoc Committee - Agenda for February
18, 2004, Minutes of February 4, 2004.
o
Ochopee Fire Control District Advisory_ Committee - Minutes of
November 12, 2003, and January 13, 2004.
Vanderbilt Beach M.S.T.U. - _Agenda for February 5, 2004 and March 4,
2004; Minutes of January 8 and February 5, 2004.
10.
Conservation Land Acquisition Advisory Committee - Agenda for
December 5, 2003, December 15, 2003, January 12, 2004 and February 9,
2004; Minutes of November 10, 2003; December 15, 2003 and January
12, 2004; Voting Conflict for County Municipal and other Local
Published Officers.
11.
Development Services Advisory Sub-Committee (Budget and Operations
Sub-Committee) Agenda and Minutes for February 10, 2004. Regular
Agenda for February 4, 2004; Minutes of December 3, 2003 and January
7, 2004.
H:Data/Format
12.
13.
14.
15.
Collier County Historical Archaeological Preservation Board - Agenda for
January 21, 2004 and February 18, 2004; Minutes of December 17, 2003
and January 21, 2004.
Collier County Hispanic Affairs Advisory Board - Agenda for November
20, 2003; January 22, 2004; January 22, 2004; Minutes of November 20,
2003 December 18, 2003.
Collier County Revenue Commission - Minutes for October 8, 2003.
Collier County Library Advisory Board - Agenda for January 28, 2004;
Minutes of December 10, 2003. ~
16.
Bayshore Beautification M.S.T.U. - Agenda for February 11, 2004;
Minutes of January 14, 2004.
17.
Tourist Development Council - Minutes of January 27, 2003, February
24, 2003, March 24, 2003, April 28, 2003, May 28, 2003, June 23, 2003,
August 21, 2003 (Sub Committee), September 22, 2003, October 27,
2003, November 24, 2003 and December 22, 2003. There are no minutes
for July, 2003.
18.
Forest Lakes Roadway and Drainage M.S.T.U. - Agenda for February 18,
2004; Minutes for Special Meeting on January 12, and Regular meeting
minutes for 21, 2004.
19.
Environmental Advisory Council - Agenda for February 4, 2004; Minutes
of January 7, 2004.
20.
Collier County Coastal Advisory Committee - Agenda for February 12,
2004.
21.
Radio Road Beautification M.S.T.U. - Agenda for January 20, 2004;
Minutes of January 20, 2003.
22.
Collier County Contractor's Licensing Board - Agenda for February 18,
2004.
23. Black Affairs Advisory Board - Minutes of December 15, 2003.
24.
Lely Golf Estates Beautification M.S.T.U. - Agenda for February 19,
2004; Minutes of January 15, 2004.
25.
Immokalee Beautification M.S.T.U. Advisory Committee - Agenda for
January 21, 2004, and February 18, 2004; Minutes of January 21, 2004.
26. Productivity Committee - Minutes of January 21,. 2004.
H:Data/Format
March 9 & 10, 2004
Item #16J1
THAT THE BOARD OF COUNTY COMMISSIONERS MAKE A
DETERMINATION OF WHETHER THE PURCHASES OF
GOODS AND SERVICES DOCUMENTED IN THE DETAILED
REPORT OF OPEN PURCHASE ORDERS SERVE A VALID
PUBLIC PURPOSE AND AUTHORIZE THE EXPENDITURE OF
COUNTY FUNDS TO SATISFY SAID PURCHASES. A COPY
OF THE DETAILED REPORT IS ON DISPLAY IN THE COUNTY
MANAGER'S OFFICE, 2N° FLOOR, W. HARMON TURNER
BI JII,DING~ 3301 FiAST TAMIAMI TRAIIJ~ NAPIJF, S FIJ.
Item #16K1
APPROVAL OF A REVISED RETENTION AGREEMENT WITH
THE LAW FIRM OF CARLTON, FIELDS, WARD, EMMANUEL
AND SMITH, P.A.; WAIVE THE PURCHASING POLICY TO
THE EXTENT THAT IS NECESSARY, AND/OR EXEMPT THIS
REQUEST FROM FORMAL COMPETITION PURSUANT TO
SF, CTION VII.G_ OF THF, Pl IRCHAS1NG POI~ICY
Item #17A
RESOLUTION 2004-68 RE PETITION AVPLAT2003-AR4687
TO DISCLAIM, RENOUNCE AND VACATE THE COUNTY'S
AND THE PUBLIC'S INTEREST IN A PORTION OF THE 10
FOOT WIDE DRAINAGE EASEMENT LOCATED ALONG THE
REAR OF LOT 171, ACCORDING TO THE PLAT OF "PHASE
TWO QUEENS PARK AT LAGO VERDE" LOCATED IN
SF, CTION 18:TOWNSHIP 50 SOI ITH, RANGF, 26 F, AST
Page 439
March 9 & 10, 2004
Item #17B - Moved to Item #8B
Item # 17C
ORDINANCE 2004-14 RE PUDZ-2003-AR-4648, FLORIDA
CONFERENCE ASSOCIATION OF SEVENTH-DAY
ADVENTISTS REPRESENTED BY ROBERT L. DUANE OF
HOLE MONTES, INC., AND RICHARD D. YOVANOVICH, ESQ.
OF GOODLETTE, COLEMAN & JOHNSON, REQUESTING A
REZONE FROM "A" RURAL AGRICULTURAL AND "PUD"
PLANNED UNIT DEVELOPMENT TO PUD KNOWN AS THE
LOCH RIDGE PUD BY AMEND1NG THE PUD MASTER PLAN
TO INCRF~ASE ACREAGE FROM 13.44 ACRES TO 18.05
ACRES, SHOW A CHANGE IN OWNERSHIP, ADD CHURCH,
PRIVATE SCHOOL, AND COMMUNITY CENTER AS
PERMITTED USES, REVISE THE PLANT NURSERIES,FLORIST
AND VEGETABLE SALES USES TO BE ALLOWED ONLY ON
A TEMPORARY BASIS FOR UP TO THREE YEARS,
ELIMINATE ASSISTED LIVING FACILITY AS A PERMITTED
USE, AND ADD ACCESSORY USES RELATED TO CHURCH
AND SCHOOL, PROPERTY IS LOCATED ON THE SOUTH
SIDE OF DAVIS BOULEVARD, APPROXIMATELY 2000 FEET
EAST OF THE KINGS WAY/DAVIS BOULEVARD
INTERSECTION, IN SECTION 7, TOWNSHIP 50 SOUTH,
RANGF, 26 FJAST~ COIJJIFJR COl JNTY, FI,ORIDA
Page 440
March 9 & 1 O, 2004
There being no further business for the good of the County, the
meeting was adjourned by order of the Chair at 8'00 p.m.
BOARD OF COUNTY COMMISSIONERS
BOARD OF ZONING APPEALS/EX
OFFICIO GOVERNING BOARD(S) OF
SPECIAL DISTRICTS UNDER ITS
CONTR L
)ONNA FIALA, Chairman
ATTEST:
DWIGHT E. BROCK, CLERK
as presehte'd'' ~ or as co:ected
TRANSCRIPT PREPARED ON BEHALF OF GREGORY COURT
REPORTING SERVICE, INC. BY TERRI LEWIS, ELIZABETH
BROOKS AND CHERIE NOTTINGHAM
Page 441