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CCPC Minutes 10/21/2004 R October 21, 2004 TRANSCRIPT OF THE MEETING OF THE COLLIER COUNTY PLANNING COMMISSION Naples, Florida, October 21, 2004 LET IT BE REMEMBERED, that the Collier County Planning Commission in and for the County of Collier, having conducted business herein, met on this date at 8:30 AM in REGULAR SESSION in Building "F" of the Government Complex, East Naples, Florida, with the following members present: CHAIRMAN: Russell Budd Robert Murray Brad Schiffer Paul Midney Lindy Adelstein Mark Strain (absent) Donna Reed Caron Robert Vigliotti ALSO PRESENT: Ray Bellows, Zoning & Land Dev. Review Mike Bosi, Zoning & Land Dev. Review Stan Chrzanowski, Comm. Dev. & Env. Services Joseph Schmitt, Comm. Dev. & Env. Services Don Scott, Transportation Planning Marjorie Student, Assistant County Attorney . Page 1 AGENDA (Revised) COLLIER COUNTY PLANNING COMMISSION WILL MEET AT 8:30 A.M., THURSDAY, OCTOBER 21, 2004, IN THE BOARD OF COUNTY COMMISSIONERS MEETING ROOM, ADMINISTRATION BUILDING, COUNTY GOVERNMENT CENTER, 3301 TAMIAMI TRAIL EAST, NAPLES, FLORIDA: NOTE: INDIVIDUAL SPEAKERS WILL BE LIMITED TO 5 MINUTES ON ANY ITEM. INDIVIDUALS SELECTED TO SPEAK ON BEHALF OF AN ORGANIZATION OR GROUP ARE ENCOURAGED AND MAY BE ALLOTTED 10 MINUTES TO SPEAK ON AN ITEM IF SO RECOGNIZED BY THE CHAIRMAN. PERSONS WISHING TO HAVE WRITTEN OR GRAPHIC MATERIALS INCLUDED IN THE CCPC AGENDA PACKETS MUST SUBMIT SAID MATERIAL A MINIMUM OF 10 DAYS PRIOR TO THE RESPECTIVE PUBLIC HEARING. IN ANY CASE, WRITTEN MATERIALS INTENDED TO BE CONSIDERED BY THE CCPC SHALL BE SUBMITTED TO THE APPROPRIATE COUNTY STAFF A MINIMUM OF SEVEN DAYS PRIOR TO THE PUBLIC HEARING. ALL MATERIAL USED IN PRESENTATIONS BEFORE THE CCPC WILL BECOME A PERMANENT PART OF THE RECORD AND WILL BE AVAILABLE FOR PRESENTATION TO THE BOARD OF COUNTY COMMISSIONERS IF APPLICABLE. ANY PERSON WHO DECIDES TO APPEAL A DECISION OF THE CCPC WILL NEED A RECORD OF THE PROCEEDINGS PERTAINING THERETO, AND THEREFORE MAY NEED TO 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. NOTE: The public should be advised that a member of the Collier County Planning Commission (Bob Murray) is also a member of the Community Character/Smart Growth Advisory Committee. In this regard, matters coming before the Collier County Planning Commission may come before the Community Character/Smart Growth Advisory Committee from time to time. 1. PLEDGE OF ALLEGIANCE 2. ROLL CALL BY CLERK 3. ADDENDA TO THE AGENDA 4. PLANNING COMMISSION ABSENCES 5. APPROVAL OF MINUTES - SEPTEMBER 2, 2004, REGULAR MEETING; SEPTEMBER 16, 2004, REGULAR MEETING 6. BCC REPORT- RECAPS - SEPTEMBER 21,2004, REGULAR MEETING; SEPTEMBER 28,2004, REGULAR MEETING 7. CHAIRMAN'S REPORT 8. ADVERTISED PUBLIC HEARINGS ADVERTISED PUBLIC HEARINGS 1 -..-.--..--" --_.-------- ."------_._---~-----_....__..- A. Petition: CU-2004-AR-5746, Jesse J. Hardy represented by Richard H. Thompson, P.E, requesting Conditional Use #1 of the "A" Rural Agricultural District for excavation of ponds in conjunction with the permitted use of Aquaculture. The property is located approximately two miles south of 1-75 and one mile east of Everglades Boulevard, in Section 16, Township 50 South, Range 28 East, Collier County, Florida, and consists of 160:t acres. (Coordinator: Mike Bosi) B. Petition: CU-2004-AR-5770. Office Depot represented by Vincent A. Cautero, AICP, of Coastal Engineering Consultants, Inc. requesting Conditional Use 11 of the C-3 zoning district for an Office Depot located at 10419 Tamiami Trail North (U.S. 41). The property is located approximately 1/2 mile south of Immokalee Road on Tamiami Trail N (U.S. 41) between 104th Avenue North and I05th Avenue North, in Section 28, Township 48 South, Range 25 East, Collier County, Florida, consisting of 1.85:!: acres. (Coordinator: Ray Bellows) 9. OLD BUSINESS A. WORKSHOP TOPICS 10. NEW BUSINESS A. Outstanding Advisory Committee Member Program: The objective of this program is to recognize significant contributions to the organization and/or community by members of the many advisory boards and committees formed to assist the Board of County Commissioners in carrying out their elected duties. All committee members who have completed at least one year volunteer service on an advisory committee are eligible for nomination. 11. PUBLIC COMMENT ITEM 12. DISCUSSION OF ADDENDA 13. ADJOURN cCPC Agenda/RB/sp 2 October 21, 2004 CHAIRMAN BUDD: We have mics. Good morning. We will call this meeting of the Collier County Planning Commission to order. Please join me and rise for the pledge of allegiance. (Pledge of Allegiance was recited in unison.) CHAIRMAN BUDD: We will have our roll call. Ms. Caron? COMMISSIONER CARON: Present. CHAIRMAN BUDD: Mr. Vigliotti? COMMISSIONER VIGLIOTTI: Here. CHAIRMAN BUDD: Mr. Abernathy? COMMISSIONER ABERNATHY: Here. CHAIRMAN BUDD: Mr. Strain is absent. Budd is here. Mr. Adelstein? COMMISSIONER ADELSTEIN: Here. CHAIRMAN BUDD: Mr. Midney? COMMISSIONER MIDNEY: Present. CHAIRMAN BUDD: Mr. Schiffer? COMMISSIONER SCHIFFER: Here. CHAIRMAN BUDD: Mr. Murray? COMMISSIONER MURRAY: Here. CHAIRMAN BUDD: Very good. Addenda to the agenda. We would like to take Item 8(B), when we get to advertised public hearings, and discuss the appropriateness of the advertising prior to hearing in detail petition 8(A). Are there any other proposed addendas to the agenda? (N 0 response.) CHAIRMAN BUDD: We have a motion for that modification that I suggested? COMMISSIONER ABERNATHY: So moved. CHAIRMAN BUDD: Second? COMMISSIONER ADELSTEIN: Second. COMMISSIONER VIGLIOTTI: Second. CHAIRMAN BUDD: Motion by Mr. Abernathy, second by Mr. Page 2 October 21, 2004 Adelstein to modify the agenda. Any further discussion? (N 0 response.) CHAIRMAN BUDD: All those in favor, say aye. COMMISSIONER CARON: Aye. COMMISSIONER VIGLIOTTI: Aye. COMMISSIONER ABERNATHY: Aye. COMMISSIONER ADELSTEIN: Aye. COMMISSIONER SCHIFFER: Aye. COMMISSIONER MIDNEY: Aye. COMMISSIONER MURRAY: Aye. CHAIRMAN BUDD: Aye. Opposed? (N 0 response.) CHAIRMAN BUDD: Motion carries. Any announced planning commission absences? (No response.) CHAIRMAN BUDD: There are none. Approval of minutes September 2nd, 2004, regular meeting. Any comments, or do we have a motion to approve? COMMISSIONER ADELSTEIN: I move that we approve the minutes as written. COMMISSIONER ABERNATHY: Second. CHAIRMAN BUDD: I have a motion by Mr. Adelstein, second by Mr. Abernathy. Any discussion? (N 0 response.) CHAIRMAN BUDD: There is none. All those in favor, say aye. COMMISSIONER CARON: Aye. COMMISSIONER VIGLIOTTI: Aye. COMMISSIONER ABERNATHY: Aye. COMMISSIONER ADELSTEIN: Aye. COMMISSIONER SCHIFFER: Aye. Page 3 October 21, 2004 COMMISSIONER MIDNEY: Aye. COMMISSIONER MURRA Y: Aye. CHAIRMAN BUDD: Aye. Those opposed? (No response.) CHAIRMAN BUDD: Minutes are approved. Minutes of our meeting of September 16th, 2004. COMMISSIONER ADELSTEIN: I move the minutes be approved as written. COMMISSIONER ABERNATHY: Second. CHAIRMAN BUDD: Motion by Mr. Adelstein, second by Mr. Abernathy. Any discussion? (No response.) CHAIRMAN BUDD: There is none. All those in favor, say aye. COMMISSIONER CARON: Aye. COMMISSIONER VIGLIOTTI: Aye. COMMISSIONER ABERNATHY: Aye. COMMISSIONER ADELSTEIN: Aye. COMMISSIONER SCHIFFER: Aye. COMMISSIONER MIDNEY: Aye. COMMISSIONER MURRA Y: Aye. CHAIRMAN BUDD: Aye. Those opposed? (No response.) CHAIRMAN BUDD: Motion carries. Board of County Commission report. We have recaps in our package. Ray, any report on county commission action? MR. BELLOWS: Yes. The Board of County Commissioners approved by 5-0 vote the Golden Gate fire station rezone. They approved it subject to staffs conditions, which eliminated the fire Page 4 October 21, 2004 tower training site from that particular petition, and then they made a direction for the county staff to work with the fire districts to find a new location for the training tower. The board also approved during that meeting a variance for the Gary property in Lely. That was approved 3-1. And the Hiwasse rezone was continued to 11/16, November 16th. CHAIRMAN BUDD: Okay. Any questions for Ray? COMMISSIONER ABERNATHY: Russell, was the direction from the county commission to find a space in that district or one that would be a multi -district tower? MR. BELLOWS: It's my understanding, it was a multi-district tower. COMMISSIONER ABERNATHY: So it doesn't have to be in the Golden Gate area necessarily. MR. BELLOWS: Yes. CHAIRMAN BUDD: Any other questions? (No response.) CHAIRMAN BUDD: Thank you, Ray. We'll move on to the advertised public hearing. And as our agenda was modified, we will start with a discussion of the appropriateness of the advertising for Petition CU-2004-AR-5007, the Office Depot in Naples Park. I understand that there are a couple different advertising issues. The signs on-site had conflicting dates, as well as the difficulty of the newspaper advertisement suggesting that a November 4th meeting would occur. Anyone that read that and believed it wouldn't be here, although they'd be interested in that petition. And I understand, Ray, the petitioner has requested the opportunity to readvertise, and depending upon whatever date that is that they can appropriately readvertise to, we will hear it at that time. MR. BELLOWS: That's correct. It looks like they're going to try for the November 11 th planning commission. Page 5 October 21, 2004 CHAIRMAN BUDD: Okay. So with that, do we need an action to -- MR. BELLOWS: Or excuse me, November 4th. CHAIRMAN BUDD: Okay. Marjorie-- COMMISSIONER ADELSTEIN: November 4th, why would they have to readvertise? It says November 4th. CHAIRMAN BUDD: Because the site signs have two different dates. COMMISSIONER ADELSTEIN: Gotcha. MS. STUDENT: Because there's an advertising issue, you wouldn't really continue. I think you'd just acknowledge and have staff acknowledge that it would be brought to you on the appropriate date. CHAIRMAN BUDD: Okay. Then if we don't need any specific action, we'll acknowledge that we do not have an appropriately advertised hearing and that petition will be heard on whatever date is appropriately advertised. Very good. We can move on then. And for anyone in the public who was here for that petition, we brought that up front so that they can leave and go on about their day. We will then go to Petition 8(A). That is CU-2004-AR-5746, Mr. Thompson representing Jesse Hardy for a conditional use in the A rural agricultural district. All those wishing to present testimony on this item, please stand, raise your right hand to be sworn in. (Speakers were duly sworn.) CHAIRMAN BUDD: Any disclosures by planning commissioners? I spoke briefly with the petitioner's attorney in the hall before the meeting started. Any other disclosures? COMMISSIONER MURRAY: I-- Page 6 October 21, 2004 CHAIRMAN BUDD: Mr. Murray? COMMISSIONER MURRA Y: Okay. I spoke with the petitioner's attorney yesterday. CHAIRMAN BUDD: Thank you. Mr. Schiffer? COMMISSIONER SCHIFFER: I had a phone conversation with Nicole Ryan from the Conservancy. COMMISSIONER MIDNEY: I spoke with Nicole Ryan. COMMISSIONER CARON: I spoke with both Nancy Payton and Nicole Ryan. CHAIRMAN BUDD: Okay. Any disclosure, Mr. Vigliotti? COMMISSIONER VIGLIOTTI: No. CHAIRMAN BUDD: Okay. Mr. Abernathy? COMMISSIONER ABERNATHY: No. CHAIRMAN BUDD: Very good. Well, then we'll move on into the proceedings, if we could hear from the petitioner's representative, please. COMMISSIONER SCHIFFER: Mr. Chairman, just for a point of information. I have a question about hearing the land use thing for a project that's an eminent domain proceeding against it. Could you tell us what the status of this would be? MS. STUDENT: You can go ahead and hear this item. The law of Florida and the case is City of Naples versus Central Plaza of Naples, is in a special exception or conditional use matter that the board is constrained to consider the items that are set forth in the Land Development Code as conditions to look at in determining whether or not to approve a conditional use. If you look at anything else, the courts would invalidate that. And whether or not a matter as -- or excuse me, whether or not there is an eminent domain matter pending on the property is not one of the conditions. And secondly, there's case law that tells us that in a situation Page 7 October 21, 2004 where a government tries to down-zone property because of pending eminent domain proceedings, the courts will invalidate that. When you look at value, this gentleman already has a conditional use. It was a condition in his conditional use that he come back in three years or after the first lake was dug, whichever was earlier, so he already has one. And it would be my opinion that it could be legally risky not to consider this petition because of the pendency of eminent domain proceedings. CHAIRMAN BUDD: Thank you. COMMISSIONER ADELSTEIN: They're two separate issues that have nothing to do with each other. CHAIRMAN BUDD: Ms. Student, would it be accurate then to say that whatever proceedings there are relative to the eminent domain is irrelevant to our -- MS. STUDENT: That's correct. CHAIRMAN BUDD: -- actions here this morning? MS. STUDENT: Yes. Pursuant to that case, that City of Naples case I cited. CHAIRMAN BUDD: Okay. Well, with some luck that will help focus our discussion. Mr. Abernathy? COMMISSIONER ABERNATHY: The planning department doesn't seem to agree with that. The paperwork about the eminent domain is a part of our package. MS. STUDENT: Well, Commissioner Abernathy, the planning department asked me to prepare a memorandum. I have one in draft. It would have been completed today had I not had many meetings to attend. So I don't believe the planning department disagrees with that, I believe -- because they asked for a memo from me on this point. I believe staff could -- I don't want to speak for staff, I think they could explain to the commission why the information is included in Page 8 October 21, 2004 the packet. COMMISSIONER ABERNATHY: I would be very interested to hear that. MS. STUDENT: And I would defer to Mr. Bosi for that purpose. MR. BOSI: Good morning, planning commission members. Mike Bosi, Zoning and Land Development Review. In the staff report, actually, I make references to the eminent domain proceedings that the Florida DEP has initiated against the petitioner, but I clearly state that the petitioner, Mr. Hardy, is full holder of title to this property, and this property may, through the eminent domain proceedings, eventually transition to the state if the conclusions reach that arrangement. But until then, he's entitled to the full rights of the zoning code afforded, whether it be a permitted or conditional use process. And I believe Ms. Student's legal research has basically confirmed the point that staff was trying to make. And maybe I didn't word it correctly within the staff report, but I felt I was obligated to mention the matter with the knowledge that Ms. Student was coordinating an effort to evaluate the appropriateness of us moving forward and it was going to be addressed at this time. So Commissioner Abernathy, I'm sorry if I misworded it. But staff fully concurs with Ms. Student's legal research in that the conditions before this conditional use are set forth in the Land Development Code and makes no mention of the eminent domain proceedings, and case law backs that belief and that direction up. CHAIRMAN BUDD: Mr. Bosi, would it be fair then to just say that the eminent domain information is just background information provided for clarity and orienting us but not germane to the land use petition before us today? MR. BOSI: Absolutely. CHAIRMAN BUDD: Good. Thank you. With that, if we could -- any other questions on that issue? Page 9 October 21,2004 (N 0 response.) CHAIRMAN BUDD: There are none. Ifwe could hear from the petitioner's representative, please. MR. THORNTON: Good morning, Planning Commissioners. F or the record, my name is Chris Thornton. I'm with the law firm of Treiser, Collins & Vernon. And this morning I'm representing Jesse Hardy on his petition for conditional use for earth mining. The request is -- our request today is that you forward this petition on to the board of zoning appeals with a recommendation for approval. That would be in accordance with the staffs recommendations. The staff had recommended approval in their staff report, subject to conditions. The property -- COMMISSIONER ABERNATHY: I think you need to speak up a little bit or into the mic, or both. MR. THORNTON: Okay. The property that's the subject of the petition is located at 6000 Naomi Street. It's -- we have a -- it's about two miles south of 1-75. It's on the east side of Everglades Boulevard. You can see the property. This map here shows the location of active commercial mining operations. To get to the -- I'll just point out the location. To get to the property from here, you would take 951 north all the way to Golden Gate Boulevard, Golden Gate Boulevard all the way out to Everglades Boulevard, Everglades Boulevard south over 1- 7 5 and lime rock roads down to the property. The property is remote and there are no residential or private property neighbors. The property is surrounded on all four sides by property that's owned by the State of Florida Board of Trustees of the Internal Improvement Trust Fund. This exact petition was heard in 2001. After going through the hearing process, including the environmental advisory council, planning commission and board of zoning appeals, the conditional use Page 10 October 21, 2004 application was approved in 2001 by unanimous vote of the board of zoning appeals. The proposal is to operate an aquaculture facility. Aquaculture is a permitted use on agriculturally zoned land. The aquaculture operations are proposed to be located on four excavations on the site. The site plan is in the staff report. Here they are. It's a 160-acre piece of property; 35 acres as shown on the site plan is Mr. Hardy's homestead. Mr. Hardy has lived on the property and owned it for about 28 years. In addition to the 35-acre homestead area, there are 25 acres of native preservation area. And the total acreage of the four lakes is 80.7 acres. The lakes have been designed to be a depth of 20 feet on the deep end. There's a littoral shelf on the shallow end with a 10-to-l slope that's for the bedding of the fish. Mr. Hardy could proceed to perform his aquaculture operations without a conditional use, because aquaculture is permitted in the agricultural zoning district and under the natural resource protection area overlay. However, rather than digging the holes and stockpiling all the fill material on-site, which would cause environmental and runoff issues, and in addition to gain the income from the sale of the fill, Mr. Hardy proposes to haul the fill off-site. That aspect of the operation requires conditional use, and that's why we're here today. Mr. Hardy has followed through in good faith on his commitment to eventually have aquaculture operations on this property. In August, after testing the water to make sure that the water would support fish, the first lake was stocked with 1,000 catfish and some minnows that are a food source for the catfish. The first lake is not yet complete. It's approximately 30 to 50 percent complete. You can see that from the aerial photograph. That -- the green lake that you see, when completed will come farther down towards the south -- not the south but the lower property boundary. Page 11 October 21, 2004 So that lake is approximately 30 percent complete. It has already been stocked with catfish. And Mr. Hardy has also obtained from the State of Florida, Department of Agriculture and Consumer Services an aquaculture certificate of registration. So he is a certified aquaculture operation with a certificate from the Department of Agriculture. You'll note that one of the staff report conditions, Condition No. 5, basically says that Mr. Hardy should in 24 months have aquaculture ongoing on the site. So I believe actually that that condition is acceptable to us. We also believe that by already having stocked the lake and obtained his aquaculture certification, he's essentially met that requirement. As noted previously, the State of Florida -- and there's a copy of the petition -- the State of Florida has filed with the courts here a petition in eminent domain. That issue, although it's nice to know for background, is not relevant. As long as he owns the property, which he does, he has the right to use it like any other private property owner in this county. And until the state obtains an order, if they ever do, transferring title of this property from Mr. Hardy to the state, he should be treated like any other applicant. The issue today is whether Mr. Hardy has satisfied the requirements for obtaining a conditional use for earth mining under the code. Those conditions are in your unified development code, 010.08.00. We believe that Mr. Hardy has satisfied all these conditions. This petition has already been heard once and approved in 2001. The staff has recommended approval. The site is remote and should have very little if any impacts on any of the residents of Collier County. And he's made substantial progress towards his goal of having an aquaculture operation on this property. Page 12 October 21, 2004 And therefore, we respectfully request that you forward the petition on to the BZA with a recommendation of approval. I'm also joined today by Richard Thompson, of Thompson Engineering, the engineer for the project. And I'm available to answer questions now or after Mr. Thompson. CHAIRMAN BUDD: We've got some questions for you now. Mr. Adelstein? COMMISSIONER ADELSTEIN: I understand that Mr. Hardy failed to comply with the certain conditions of the conditional use permit that was approved in March 13th, 2001. In fact, there were six items that were not done that he failed to do. Has he complied with them now? MR. THORNTON: I believe he is in compliance with the conditional use approval right now. I don't know what specific violations you may be speaking of. COMMISSIONER ADELSTEIN: Mr. Hardy, we'll start with, did not acquire a wetland permit or letter of exemption. Does he have that? MR. THORNTON: ERP permits under Chapter 373 Florida Statutes are not required for aquaculture activities as long as -- COMMISSIONER ADELSTEIN: It says here that he had to acquire a wetland permit or letter of exemption from ACOE or SFWMD. Did he do so? MR. THORNTON: I think Mr. Hardy is in compliance with the Florida statutes, and -- COMMISSIONER ADELSTEIN: I asked, did he do -- did he comply with that issue, the one I just mentioned? I've got five others. MR. THORNTON: Yes, sir. I don't believe he has a letter of exemption for a permit. COMMISSIONER ADELSTEIN: Okay, so therefore, he has not complied with that. Page 13 October 21,2004 Mr. Hardy constructed a mine within the wetland and constructed his mine directly over the drinking water aquifer. According to the needs to acquire -- he's required to have an ERP permit or a DEP or SFWMD permit. Has he done that? MR. THORNTON: Under Chapter 373, Florida Statutes, an aquaculture facility is exempt from obtaining an ERP permit. COMMISSIONER ADELSTEIN: This regulation says it is not exempt. He has to file a -- he has to file a permit. Did he get the permit is all I'm asking. MR. THORNTON: He does not have a permit. COMMISSIONER ADELSTEIN: Okay. Number three, he failed to acquire an environmental resource permit at that time from either DEP or SFWMD. Has he gotten that permit? MR. THORNTON: The staff report reflects that the staffhave investigated whether or not Mr. Hardy needs the ERP permits. The staff report states that they have determined that he is not required to have the ERP permits. And I have a copy of Chapter -- COMMISSIONER ADELSTEIN: This -- the regulation requirements is what I'm reading from. I don't know what the staff did. I'm trying to understand whether or not the information I've got is accurate. If it is and he doesn't have that permit, we'll go on to the next one. He failed to submit a notice of intent to begin mining. Mr. Hardy failed to acquire an NPDES multi-section genetic (sic) permit for stormwater discharge. Does he have that permit? MR. THORNTON: I don't know the answer to that question. COMMISSIONER ADELSTEIN: Okay. And he failed to acquire an individual -- well, I'll let that one go. The point is that none of these, to your knowledge, have been acquired; is that correct? MR. THORNTON: The permits that you're referencing, to the best of my knowledge, are not required for this project, because under Page 14 October 21, 2004 Chapter 373.406 sub-paragraph 8, a certified aquaculture activity which applies best management practices pursuant to Section 597.004 is exempt from this part of Florida statutes. COMMISSIONER ADELSTEIN: Well, again, I'm not sure what the code is. Maybe the staff could enlighten me, too. But it's in our records here that these things were supposed to be acquired, and as far as I can say now, you don't know if any of them have been. MR. THORNTON: If any DEP permits are necessary or required, or federal permits, then I think it's appropriate for there to be a condition in the conditional use that says if any state or Federal permits are required, then they shall be obtained. And if they're not obtained, then we'll be in violation of the conditional use. But if they're not required, then Mr. Hardy will be in compliance, and that's an acceptable condition to the applicant. CHAIRMAN BUDD: Anything else? COMMISSIONER ADELSTEIN: No. CHAIRMAN BUDD: Ray, could you provide any clarification there, or that list of regulatory requirements, what -- I'm sorry, Mr. Bosi, you're handling this, I should have called on you. Who's the author of the list of regulatory requirements? One. And second -- MR. BOSI: I'm sorry, I apologize. CHAIRMAN BUDD: And second, is Mr. Thornton's representation accurate that it is not required for this use? MR. BOSI: Commissioner Budd, I believe Commissioner Adelstein was reading from the information included within our staff report. As part of the -- the staff report and the full disclosure intent of staff, I included the eminent domain proceedings that the Florida DEP has initiated against Mr. Hardy, and we've clearly established that those items, though -- are not relevant specifically to the question before the planning commission. In addition, through numerous contacts with Ernie Barnett, the -- an officer within the Florida Department of Environmental Protection, Page 15 October 21, 2004 he provided me a list -- a memo to Mr. Hardy's representation in Sarasota, Florida, in a list of regulatory requirements that they believe, the Florida Department of Environmental Protection believes are outstanding issues with the -- with the applicant and his site. These are not conditions of approval from his 2001 conditional use approval. These are a list of regulatory requirements that the Florida Department of Environmental Protection has stated that the applicant is in violation of in a memo form. To date there have been no citations issued by that regulatory body against the applicant. Once again, I would have to place that because there have been no citations, no citations issued acting upon this list of regulatory requirements that have been asserted the applicant is in violation of, with the lack of a citation they are just assertions. And I do not believe that these are part of the record of a condition of approval. These are assertions made against the applicant. I'm joined by Stan Chrzanowski, water management engineer for community development and environmental services. Stan was with -- I wasn't with the county during the first go-around for this conditional use application. Stan was here during the first conditional use round, and he has been working for the past three to four years between the Department of Agriculture and the Department of Environmental Protection, both Florida agencies, and he has been trying to find what is in fact applicable towards the regulations that this -- that this applicant and this project must comply with. To this date, through his conversations, he has found -- he has been able to conclusively establish where the regulations actually meet the road. We as a local jurisdiction obviously want to comply and want our applicants to comply with all the regulatory issues placed before us by state boards. But with the lack of concrete direction, and without the -- with the lack of concrete direction that's been provided from the Page 16 October 21, 2004 Florida Department of Agriculture and the Florida Department of Environmental Protection, we can only view these right now as regulations that have been included within a memo and not regulations that have actually been imposed upon this property. And those list of regulatory requirements were not conditions of approval. The one condition of approval that you were correct were, the original 2001 conditional approval stated that the -- before the excavation project could start, an agricultural clearing permit would be required. And to get that agricultural clearing permit, a letter of exemption or approval from the Southwest Florida Management District and the Florida DEP would be required. Those letters of exemptions and approval were never obtained. But they obtained the agricultural clearing permit. I spoke with Steve Lenberger from community development and environmental service from the environmental division, and he said the reason why they weren't required to produce those was because the 160 acres has -- based upon the EIS is entirely upland, and there was no presence of wetlands, and therefore, a letter of exemption wouldn't be required for those agricultural clearings permits that were issued. So the applicant did obtain the agricultural clearing permit, he just -- he never presented the letters of exemption or letter of approval from both of those agencies. CHAIRMAN BUDD: Thank you. That explains it for me. Is there further question on this issue from the planning commissioners? (N 0 response.) CHAIRMAN BUDD: Okay. Mr. Thornton, had you completed your presentation on behalf of the petitioner, or did you have other representati ves? MR. THORNTON: Mr. Thompson, the engineer, has some comments. CHAIRMAN BUDD: Okay, thank you. Page 17 October 21, 2004 MR. THOMPSON: I'm Richard Thompson, RHT Engineering. I put together the application package that was submitted for this conditional use permit. Mr. Thornton's done a pretty good job of explaining everything to you. There are two points that I would like to bring up. One is that this is not an unusual request that we're making. The map over here on the right shows all of the active operations that currently are hauling fill off of their sites. And you can see that they're scattered all around the county and that they are -- you know, some considerably larger than what our site would be. And there are some that are smaller. So what we're requesting is not an unusual request. This is fairly typical of what would happen in these types of situations. I have one other map I would like to put up. Okay, this is basically a soils map of the county that shows in blue where all the water is. Lake Trafford is a natural lake, and some of the other streams down here are natural. But basically everywhere that you see in blue has been excavated. So just about all -- all of the water bodies in Collier County were excavated and are not natural. And that's all we're requesting to do here is to excavate four more lakes for the purpose of growing fish. As we're proceeding with the excavation, this is the -- this aerial was taken in August of this year, so this is fairly representative of what would be out there today. This first lake would come in in here, two more lakes here, fourth lake up here, with all of this being the state property. Lakes are one of the methods that are required to treat water for all your residential developments to make clean water before it goes out. We're providing lakes that don't have all the runoff going into them, no road runoff, no industrial stuff coming into it. All we're doing is raising fish. When you raise fish, you have to have a high quality water. Page 18 October 21,2004 We're not asking to do anything that will create a water quality problem. The lakes will not discharge into the canal. There will be no connection between the lakes and this canal. The water that we have in our lakes will not leave. We will not cause a water quality problem into the canal and on into the project that the state's trying to accomplish. There is no physical connection with any of the outside properties. What our neighbors choose to do with their property will not affect us. What we choose to do with our property will not affect them. Now, currently I'm having discussions with them because there's a disagreement on that fact. But in my professional opinion, what we're doing on this site will have no impact on the state's project. They're proposing a pump station right here to pump the water from northern Golden Gate to the south. That's south of our project. They're pumping down the canal that runs beside our project. I don't see where either project would interfere with the other one. Again, what we're proposing will not have a water quality impact, we will not have a direct discharge, and what we are requesting is a common thing for what we're trying to do. And if you have any questions, I'll be glad to answer them. CHAIRMAN BUDD: Questions for Mr. Thompson? Mr. Murray? COMMISSIONER MURRAY: Yes, sir. What is the elevation of the property with the lake on it as opposed to the canal that's adjacent? MR. THOMPSON: You're talking right here? COMMISSIONER MURRAY: Uh-huh. MR. THOMPSON: The properties in here are -- well, there's two different ways of elevations that -- the state is using an NAD, which is not what most of the county's done, but what's what our numbers are. Right in here, we are at approximately an elevation of 10 NAD. Page 19 October 21, 2004 They're proposing a high stage in this canal of -- a high stage of the water at approximately seven to seven-and-a-half. COMMISSIONER MURRAY: So do you intend to build some kind of a berm or -- because of potential for overflow? I know there's three feet there but -- MR. THOMPSON: We're higher. COMMISSIONER MURRAY: Yeah, I recognize you're higher. But you're saying the maximum that there -- would be seven feet. MR. THOMPSON: The maximum that they've done is -- and I did not bring that information because actually their project's not part of this. So forgive me if I get a number wrong. But if I remember correctly, seven to eight feet is the highest they'll go in here, and we are at least two feet higher than their peak stage for every storm event they've run. COMMISSIONER MURRAY: Okay. And the lake's lined or to be lined? Any kind of lining on there to prevent the water from leaching out? What's the natural containment there? MR. THOMPSON: To my knowledge, the lake is not to be lined. The water will fluctuate with the natural water table of the area. COMMISSIONER MURRA Y: How will the lake be first filled; is that rain? CHAIRMAN BUDD: Excuse me, sir. MR. THOMPSON: As the lake is being constructed, the water's there. COMMISSIONER MURRA Y: Okay, you're talking the water tab Ie. MR. THOMPSON: Yes. COMMISSIONER MURRAY: Yes. And I understand. So, in other words, it will just fill. MR. THOMPSON: It will just fill. COMMISSIONER MURRAY: And it will go to that -- and will it reach the 10-foot level, based on extraction of all that soil? Page 20 October 21, 2004 MR. THOMPSON: No. COMMISSIONER MURRA Y: So it's -- so won't there be -- it will be less than -- MR. THOMPSON: It will be less. When the project is completed -- the water table fluctuates. COMMISSIONER MURRA Y: Yes, of course. MR. THOMPSON: These lakes will fluctuate with the water table -- COMMISSIONER MURRAY: Okay, so they're -- MR. THOMPSON: -- which is part of the reason for the depth of the lake, because during the dry season as the water table goes down, we need to have the lake deep enough to still maintain the water for the fish. COMMISSIONER MURRAY: Yes, I appreciate that. Okay, you've answered my question. Thank you. CHAIRMAN BUDD: Mr. Schiffer? COMMISSIONER SCHIFFER: Since you brought the state's project into this, when they draw down, won't that affect your water table also? The pumping station to the south of you, will that affect your water? I mean, it has to, doesn't it? MR. THOMPSON: Yes. When they pump here, it will have an effect on our water table. COMMISSIONER SCHIFFER: By drawing it down a little bit. The other question is, when the state does do their project, will you have access to the site? I mean, right now I assume there's filled roads and access, but -- MR. THOMPSON: Unless they're successful in taking the property, they have to allow us to keep our access. COMMISSIONER SCHIFFER: Okay. I do have a question for the attorney when he comes back up. Thank you. CHAIRMAN BUDD: Any other questions for of Mr. Thompson? Yes, Mr. Abernathy. Page 21 October 21, 2004 COMMISSIONER ABERNATHY: You're talking about the state's project as being limited to that canal, the way I hear you. I thought there was a proj ect to tear out roads and reestablish sheet flow across there through all of those lots. Is that not -- is that not part of it? MR. THOMPSON: Yes, it is, but I was just referring to the portion adjacent to it. On this map, and I think this may be the best map, there's a pump station in this canal which will pump out, and all the roads south of here will come in. And here south of this property is where they will establish the sheet flow here. Over in the Miller canal, the pump station will be about a half a mile further to the north and everything south of there. COMMISSIONER ABERNATHY: So sheet flow doesn't start until south and west of your property? MR. THOMPSON: From the Faka Union canal, correct. And then here the sheet flow is up higher, and it comes down from here. But there is a high ridge of property between this pump station and Mr. Hardy's property. This would actually come in and come more into the slough that runs over here. COMMISSIONER ADELSTEIN: Well, obviously you're not the ultimate person to answer this question, but what's your opinion -- if all of what you say is true, why is the state so interested in acquiring this piece if it could be -- all this could be accomplished without -- MR. THOMPSON: I don't know. COMMISSIONER ABERNATHY: What do they -- they don't say what it is? They don't say why they need this piece, other than just the symmetry of having everything? MR. THOMPSON: We're still in discussions. The state and I do not agree on the impacts on the site. CHAIRMAN BUDD: Other questions for Mr. Thompson? COMMISSIONER VIGLIOTTI: Yeah, I have a question. CHAIRMAN BUDD: Mr. Vigliotti? Page 22 October 21, 2004 COMMISSIONER VIGLIOTTI: Could you tell me what the other map represents again? With the purple. MR. THOMPSON: Okay. These are all of the active mining operations that currently are hauling fill off of site. COMMISSIONER VIGLIOTTI: And they're all active? MR. THOMPSON: They're all active. And I'm not -- I'm not going to swear that this is all of them, but this is -- I obtained this map from the county, and I believe it's accurate to show all the active mines. COMMISSIONER VIGLIOTTI: Thank you. COMMISSIONER ABERNATHY: How many of those are in the area that the state is interested in acquiring? Just yours? CHAIRMAN BUDD: Mr. Chrzanowski? MR. CHRZANOWSKI: Excuse me, sir. Stan Chrzanowski, engIneenng reVIew. Since we're the ones that put that map out about two years -- two years ago, I think, maybe a year, some of those what used to be active excavations are now going to be subdivisions, like Heritage Bay. Well, it happens. COMMISSIONER VIGLIOTTI: So my question is then, there's some of them that are not active right now? MR. CHRZANOWSKI: Well, they're digging, and some of them are hauling off-site and some of them are keeping it on-site. I believe that there's digging going on on every site there right now. CHAIRMAN BUDD: Anything else, Mr. Vigliotti or Mr. Abernathy? COMMISSIONER VIGLIOTTI: No, sir. COMMISSIONER ABERNATHY: No. CHAIRMAN BUDD: Okay. Mr. Midney? COMMISSIONER MIDNEY: I have a question. Will the county stop maintaining the roads that lead into this property? UNIDENTIFIED SPEAKER: They already have. Page 23 October 21, 2004 CHAIRMAN BUDD: Mr. Thompson, do you know that, or Mr. Bosi? MR. THOMPSON: Well, I would hate to speak for the county maintenance staff. CHAIRMAN BUDD: That's a good point, you wouldn't be the one. Mr. Bosi, do you know, or-- COMMISSIONER ABERNATHY: Here comes transportation. MR. SCOTT: Don Scott, transportation planning. We don't own the roads anymore, so we don't maintain them. COMMISSIONER MIDNEY: My question is, if the roads are no longer maintained, will the petitioner have a way of getting the earth in -- I mean out of his property? MR. SCOTT: I guess that would be with the state, you know, the reference to what kind of access is left in the end. COMMISSIONER MIDNEY: Well, will the roads be able to be usable by these large, you know, earth trucks? MR. SCOTT: I can't answer that. COMMISSIONER MURRAY: May I ask a question? CHAIRMAN BUDD: Mr. Murray. COMMISSIONER MURRA Y: Are there easements owned by anybody there that allow them -- them or Mr. Hardy -- to gain ingress and egress to his property? If they're all -- if they're all to be flooded over, I mean, could you help us, sir? MR. THORNTON: Good afternoon. I'm Chris Thornton, again, for Jesse Hardy. I haven't done a title search on all the property between Mr. Hardy's and the nearest public right-of-way. But Mr. Hardy, it's my understanding that he has private easements to get to his property and he has been utilizing the ingress and egress to Everglades Boulevard for almost 30 years. I'm confident that he has the right to -- you come down Everglades Boulevard over 1-75 and hang a left, the pavement Page 24 October 21, 2004 stops. You're on lime rock roads that Mr. Hardy maintains himself. The county doesn't maintain those roads. But as long -- I have not done a title search, like I said, but I believe that he has private easements, and those easements, as a real property right, he would have the right to maintain those roads. And the conditions in 2001, and the staff report this time points out that your -- I believe your NRP A -- your comprehensive plan will not allow Mr. Hardy to pave those roads, he can only maintain them as unpaved lime rock roads. COMMISSIONER MIDNEY: And you think that he has a continuous easement all the way from his property to Everglades Boulevard? MR. THORNTON: I believe he does, yes. But I have not done the title search. COMMISSIONER MIDNEY: Thank you. CHAIRMAN BUDD: Other questions? Mr. Schiffer? COMMISSIONER SCHIFFER: To the attorney. When did Mr. Hardy -- after the first conditional use was approved, when did he start excavating? MR. THORNTON: I'm not sure. I believe it was -- he got the clearing permit in October 26th, 2001. He had some problems with his hauling contractor that didn't allow him to excavate as quickly as he would have liked. This is as far as he's gotten in three years. COMMISSIONER SCHIFFER: And is he actively excavating now? MR. THORNTON: He's actively excavating today. I've been to the site three times, and there's excavation activities ongoing. COMMISSIONER SCHIFFER: Okay. Thank you. CHAIRMAN BUDD: Any other questions for the petitioner? Mr. Thornton, any there other representatives from your team? MR. THORNTON: No, sir, not at this time. I would like to make sure that these exhibits that we've been Page 25 October 21, 2004 referencing will be included in the record, along with all the items in the staff report. CHAIRMAN BUDD: Yes, they will. MR. THORNTON: And then an opportunity to rebut, if necessary . CHAIRMAN BUDD: Certainly, we'll do that. Yes, sir, Mr. Thompson? MR. THOMPSON: Okay, this exhibit, which was just provided to me, shows the roads that the district is planning to maintain when the proj ect is done. This would be the road down to the pump station they're proposing south ofMr. Hardy's property, and Mr. Hardy's property would sit right here, right next to this road which the district will maintain as access throughout the life of the proj ect that they're doing. Did I say it right? CHAIRMAN BUDD: It's on the west side of the canal, I believe, that access road, Mr. Thompson? Mr. Tears, could you come forward and clarify that for us, please? MR. TEARS: Clarence Tears, director of Big Cypress Basin, South Florida Water Management District. COMMISSIONER ABERNATHY: He needs to be sworn. CHAIRMAN BUDD: I believe, Mr. Tears, did you stand and were sworn in early on? MR. TEARS: I haven't. CHAIRMAN BUDD: My mistake, I thought you were. If you'd please raise your right hand. (Speaker was duly sworn.) CHAIRMAN BUDD: Thank you, sir. MR. TEARS: Access will be an issue in the future when the restoration goes through. We'll have access to the pump station. The exact location of that access, you know, I can't tell you exactly today. But we guaranteed Collier County -- when we took over the road Page 26 October 21,2004 easements, the state did, as part of that agreement, this was attached to that agreement, and these roads would be maintained as primary roads, the ones in the dark color. Everything else is secondary or tertiary roads, and they'll be at natural grade. So when the area is wet, these roads will be underwater. CHAIRMAN BUDD: Mr. Tears, do you know on this diagram, you've got your dark roads and then you've got the dotted roads, it looks like Berson heads east and then there's a dotted Shar or Sher Boulevard. What's the distinction in the dotted line? What's the level of maintenance? MR. TEARS: The dotted roads are just going to be like at natural grade. And the only reason for this road network is so the Division of Forestry can maintain the area. And the roads at natural grade, you know, you'll need certain types of equipment to get to those roads. The main roads, depending on how many bridges and everything we need to put under those roads to pass the surface flow to keep it as natural as possible, those main roads in the dark, thick color will be maintained. And they'll provide access. You know, when you get to Jane's Scenic Drive and other areas further to the east, certain times of year they may be underwater. And the whole idea is, you know, to get that natural sheet flow through Southern Golden Gate Estates. CHAIRMAN BUDD: Mr. Murray? COMMISSIONER MURRA Y: Mr. Tears, I want to be clear in my mind, on that dark road, looks like Faka -- CHAIRMAN BUDD: Faka Canal. COMMISSIONER MURRAY: Whatever. That road is -- that is considered a public road? In other words, if Mr. Hardy were to traverse that road and leave his equipment, is there any restriction upon him? Is that used solely by the county, by the South Florida Page 27 October 21, 2004 Water Management District or any restrictions whatsoever? MR. TEARS: Those -- at this point, no. They'll be maintained roads, the dark colored roads. CHAIRMAN BUDD: And keep in mind, Mr. Murray, that that road is on the wrong side of the canal for Mr. Hardy to use it. COMMISSIONER MURRA Y: But he could not traverse it to -- and then reach it by adjoining property? That's not possible, physically? MR. TEARS: No. We probably would not allow anybody to cross our structures. COMMISSIONER MIDNEY: Okay. So he's restricted then solely to whatever -- how he can reach those dotted lines, is what I gather; is that correct? MR. TEARS: Yes. And they're at natural grade. COMMISSIONER MIDNEY: Okay. COMMISSIONER SCHIFFER: What do you mean by natural grade? MR. TEARS: Well, what we're trying to do is restore Southern Golden Gate Estates. And over the years, when they ditched and drained that area, they raised berms and swales, and the roads are actually elevated. And the whole goal of the project is to try to put it back at natural grade to allow water to move freely. So some of these areas, if they're extremely high compared to the surrounding elevations will be de-graded to make sure it's at natural elevation. So certain roads that are dotted, it's possible that they could be underwater parts of the year. COMMISSIONER MIDNEY: So the roads that -- when you say natural grade, you're thinking probably lower than the way that those lime rock roads are right now? MR. TEARS: Some of them, yes. Others, it just depends. Some roads, because of the traffic they've experienced over time, they've actually settled and some of them are at natural grade. Page 28 October 21, 2004 COMMISSIONER MIDNEY: Would Mr. Hardy have the right to continue lime rocking and maintaining the roads that he wants, to get egress from his -- MR. TEARS: You know, speaking for DEP and the South Florida Water Management District, this is not a compatible use, considering the restoration of Southern Golden Gate Estates. The state is moving forward with condemnation on this property because it isn't in the best interest of this restoration. CHAIRMAN BUDD: Mr. Schiffer? COMMISSIONER SCHIFFER: The choice of location of that road, because if you look at the aerials, Mr. Hardy does seem to have a road going on his side of the canal. Why did you choose the other side to put your road? MR. TEARS: Well, the pump station will be right in the center of the channel, because we're conveying water through the channel. So we'll just go up that one side to get to the pump station. COMMISSIONER SCHIFFER: But the point is you could have put it on the other side. MR. TEARS: Well, then we would have had to add an additional bridge across. COMMISSIONER SCHIFFER: Across what, Everglades or -- MR. TEARS: Uh-huh. COMMISSIONER SCHIFFER: In other words, when you come down -- you're coming off of, it looks like Berson; is that right? MR. TEARS: Yes. COMMISSIONER SCHIFFER: You're coming off on the left side of the canal when you could just as easy come off on the right side of the canal and come down in front of Mr. Hardy's property, correct? I mean, why would you choose the other side of the canal, versus the side that he already probably has a roadbed on? What are you doing there, is that flipping it around? Page 29 October 21,2004 CHAIRMAN BUDD: He's getting it so he can read it, but that's upside down for us. COMMISSIONER SCHIFFER: Okay. MR. TEARS: Honestly, I can't answer that one. You know, the pump station is going in the center of the channel. We'll have a spreader channel to move the flow. And to get access to that -- I need to check with the engineers if we're removing the bridge upstream to reduce constrictions. It's possible that we're trying to reduce things. COMMISSIONER SCHIFFER: But according to your dark road dotted line thing, you're keeping that Berson Road so you could come off of it on either side of the canal. You have to have a bridge to go as far as you're showing it to go anyway. MR. TEARS: Yes. COMMISSIONER SCHIFFER: Okay, thank you. CHAIRMAN BUDD: Okay, thank you, Mr. Tears. I think we're attempting to complete the petitioner's presentation. Mr. Thompson or Mr. Thornton, is there anything else in your presentation? Naturally, you'll have time to rebut later. Mr. Bosi, staff presentation? MR. BOSI: Thank you, Chairman Budd. Mike Bosi, zoning and land development review. I would -- it was brought up in terms of the transportation and the improvements that could or couldn't be made within -- within the transportation network that leads to Mr. Hardy's property. And the applicant was correct when he stated based upon the growth management plan and the Golden Gate Area Master Plan, it precludes road improvements within the Southern Golden Gate Estates area. Basically it states that a minimum road maintenance to include traffic signage, right-of-way, mowing, road surface patching and grading will continue, but no other improvements beyond that. The question and the reason why the applicant's here is for a Page 30 October 21, 2004 conditional use. In the agricultural zoning district with a natural resource protection area, a permitted use is aquaculture. The -- if there were lakes on this property, it would be a permitted use. The Land Development Code specifically states, though, any off-site hauling of material. To arrive at that -- at the lakes to provide for your aquaculture operation, anything over 400 -- or 4,000 cubic yards requires a conditional use for an excavation. The conditional use we're here is to decide whether we feel it's appropriate to allow the applicant to haul material off-site from his excavation, from his aquaculture operation. If -- the one thing that I came back to as I was going through the petition and looking at all of the issues surrounding this -- the Golden Gate restoration project, the eminent domain, the list of regulatory issues -- the thing that I kept coming back to is if we would deny the conditional use, then the 1,789,000 cubic yards of material would basically be stockpiled on the 160 acres at some location. Now, when I thought about the potential and where that material would go, and where -- and the potential effects that that could have within the surrounding properties, that really was an underlying key when staff arrived at the decision to recommend approval for this second conditional -- of the second conditional use for the site. Obviously the larger question and the larger transportation questions, I'm not sure if we're going to be able to answer today. In the event that will the state be mandated to provide access for the applicant if this was approved for the second go-around, I'm not sure if we're adequately able to answer that question today, and maybe an additional stipulation should have been suggested by staff, anticipating that particular issue. I do want to say that on the stipulations of approval, the stipulation No.8 requires that a preserve restoration management plan and conservation easement preserve will be required at the time of site development plan approval. Page 3 1 October 21,2004 This operation's been going on for three years. Traditionally excavation sites do not require site development plans, no built structures. The conceptual site plan that's submitted with the conditional use does designate in the area below the homesteaded area, required native preserve area. And that's (sic) is part of what motivated condition No. 8. It's a traditional standard stipulation within a conditional use. Most conditional uses will eventually lead to an SDP. This will not. We think we should modify -- staff recommends to modify this to say a preservation restoration management plan and conservation easement for the preserve requirement will be required at time of excavation permit, because the lack of a site development plan being required for the excavation site. The other stipulations that we've placed upon it, we tried to adequately address the issues that potentially would surround the off-site hauling of the material. With that, I've been able to chime in a number of times, and I guess I would just open myself up to any questions that the planning commission members may have and -- CHAIRMAN BUDD: Mr. Abernathy? COMMISSIONER ABERNATHY: I have a couple of questions, starting with your conditions of approval, No.7, best management practices.Do we know whether aquaculture is exempt from best management practices? MR. BOSI: No. COMMISSIONER ABERNATHY: It seems to be exempt from a lot of other things. MR. BOSI: Because of the thickness of this document, I did not include it within your staff report package. It's aquaculture best management practices, management 2002, and that was put out by the Florida Department of Agriculture. COMMISSIONER ABERNATHY: So they do anticipate aquaculture being subjected to its best management practices? Page 32 October 21, 2004 MR. BOSI: Absolutely. COMMISSIONER ABERNATHY: Okay. Well, that leads to my second observation on that item. Why not expand No.7 and give that citation that you just recited to me, because as it reads, it just says "will be used in accordance with State of Florida", then it drops off the edge of the world. MR. BOSI: I will do so, sir. COMMISSIONER ABERNATHY: Okay. My other observation is you said that pivotal to your decision on this case was the idea of 1,700,000 cubic yards of fill material being stockpiled out there in these big mounds or however, if this permission to haul it off-site was not granted. You really think that Mr. Hardy has the wherewithal to excavate 1,700,000 cubic yards and stack it there if he can't sell it? I mean, I think selling is the whole point of this operation. Aquaculture is just a little distraction, where selling fill dirt is what this whole operation is about. And we're acting awfully naive if we don't pony up to recognizing that. MR. BELLOWS: For the record, Ray Bellows. I'm the zoning manager. We discussed that issue. Unfortunately we can't make that a part of our review criteria. We can't guess how the petitioner is going to operate his business. He has a legitimate right to have aquacultural uses. The excavation is a by-product of that. He's not asking solely for an excavation. COMMISSIONER ABERNATHY: You're speculating that he's going to pile -- MR. BELLOWS: But you can't -- yeah, and that's a -- COMMISSIONER ABERNATHY: -- two million yards-- MR. BELLOWS: -- within the purview of the planning commISSIon. CHAIRMAN BUDD: Okay. Anything else, Mr. Abernathy? Page 33 October 21, 2004 COMMISSIONER ABERNATHY: No, that's it. CHAIRMAN BUDD: Mr. Adelstein was next. Do you have a question? COMMISSIONER ADELSTEIN: The question is can you guarantee that the dirt will get out? At this point is there a guarantee that they could actually move the dirt off the property and where it has to go? MR. BOSI: Commissioner Adelstein, maybe I'm not really understanding how that question would be directed to me. With a conditional use approval, I think that would grant assurance that the -- that the fill material would not stay on-site. Other than that, I don't think that I could provide any staff guarantees that no stockpiling shall take place. COMMISSIONER ADELSTEIN: Ifwe allowed -- ifhe's going to dig this up, and we're talking about that much dirt on the premises, we also have to be sure then that the property -- that he can get that dirt off his property and to where it wants to go. I'm just questioning, from what I'm seeing here, that the roads don't seem to give him that kind of ability to do so. MR. BOSI: And maybe I will -- maybe we'll have to have the applicant comment upon this. But I haven't -- from speaking with the applicant, speaking with the engineering services, there has not been any indication that access to the property as it exists today is a problem. As I stated at the very beginning of my statement, I'm not sure if we're going to be able to answer with 100 percent certainty whether the state will be mandated, if their eminent domain proceedings aren't successful and Mr. Hardy remains at this site, I'm not sure if we can legally address that question today, is if the state would be required to grant access to the petitioner. Like I said, I don't think we can adequately address that question today. And I apologize for that. Page 34 October 21, 2004 COMMISSIONER ADELSTEIN: No. Thank you. CHAIRMAN BUDD: Mr. Schiffer? COMMISSIONER SCHIFFER: Mike, are agricultural buildings exempt from site development plans? In other words -- MR. BOSI: Yes, they are. COMMISSIONER SCHIFFER: So we have to -- no way to look at his aquaculture operation at all, whether he can access that and stuff? I mean, that's not, I guess, what's before us today, correct? MR. BOSI: No. It's -- before us today is strictly the conditional use stuff, off-site haul of the material. MR. BELLOWS: For the record, Ray Bellows. I'd like to just comment on that, too. The site -- the conditional use process shows that the applicant has provided documentation that they have access easements to the site. That is something that we look at with the application, that they do have access to the site. They have demonstrated in the application that they have the easements to the site. The -- regards to the site development plan, the conceptual site plan in this case will serve as that, and any other permitting -- required permitting down the line such as excavation permits. But there is no site development plan with this. COMMISSIONER SCHIFFER: Okay. Mike, another thing, there was a complaint from a neighbor about the trucks going by their house and everything. Will that neighbor still be living there once the state gets through with their plans? Or -- it was in your report that the -- at the neighborhood meeting, a neighbor who couldn't come to the meeting was concerned about the trucks rumbling by her place. MR. BOSI: The exact location of that individual's house wasn't provided at that meeting. I am only to assume her showing up -- or that comment being relayed to us that their house would remain and not be part of the -- be part of the acquisition program from the state. Page 35 October 21, 2004 COMMISSIONER SCHIFFER: All right. Thank you. CHAIRMAN BUDD: Mr. Murray? COMMISSIONER MURRAY: This question is directed to anybody who is sworn in and can answer it. It has to do with the map that we have in our packet, the location map. And it shows the 160 acres, and surrounding it are a vast number of lots. And my question is simply are all of those lots yet in the ownership of the state, or are some of them still owned privately? Has the state moved to acquire all of them, and has the acquisition been successful? CHAIRMAN BUDD: Mr. Tears, if you could address that, please? MR. TEARS: Clarence Tears. There's actually only two parcels that the state still needs to purchase. The tribe of Miccosukee Indians own one parcel. It's a section of land to the south. In addition, this 160 acres owned by Mr. Hardy. COMMISSIONER MURRA Y: Everything else has been deeded over to the -- MR. TEARS: That's correct. And we've been to court numerous times and we've been extremely successful in condemnation. COMMISSIONER MURRA Y: Thank you, sir. CHAIRMAN BUDD: Mr. Vigliotti? COMMISSIONER VIGLIOTTI: Mike, my question is traffic. You spoke about it before. Can you give us some more details about how it's going to affect the traffic? MR. BOSI: I guess -- was the question directed how would the -- COMMISSIONER VIGLIOTTI: What kind of traffic do we expect, how many vehicles a day when this is in full swing? MR. BOSI: If you give me one second, I will try to find the TIS that was submitted with the application. COMMISSIONER MURRAY: I believe it's 50 trips a day on the Page 36 October 21,2004 -- COMMISSIONER ABERNATHY: I think it's summarized in your report somewhere. COMMISSIONER MURRAY: Mr. Thompson's study traffic impact statement, five trips an hour. COMMISSIONER VIGLIOTTI: That's fine. CHAIRMAN BUDD: Okay. Mr. Midney? COMMISSIONER MIDNEY: I have a question. One of the requirements for this is that there is a bona fide aquaculture activity. I saw a letter from Mr. Thompson stating that the applicant was experimenting with various types of fish. And my question is, do they have evidence that -- are they -- is this an experimental aquaculture, or do they have a business model where they show other aquaculture farms in Florida with 20- foot depth, raising, for example, catfish? I thought that it would be much shallower than that. And I guess that's not directed to you, but someone who knows. CHAIRMAN BUDD: I guess that the petitioner's representatives would be appropriate. Mr. Hardy, if you want to come forward and speak, you need to be sworn in. You can address the mic or your representatives can do so. (Speaker was duly sworn.) CHAIRMAN BUDD: Thank you, sir. MR. HARDY: This depth of 20 foot, if you notice, it goes on up to 12 foot, and that's like a littoral zone. Fish have to have a certain depth to breathe in and so forth and all. Also, the county restrictions is if when you do dig and you do -- you have to do mining to get to aquaculture. There's no other way around it. And this is not no phony operation. I've been called a liar and everything else for the 28 years or 30 years that I've lived there. Page 37 October 21,2004 Now, I'm homesteaded and this was my land, paid for by me. I'm a 100 percent disabled veteran. I paid all my taxes and everything up until a certain point when they started taking it, I stopped paying the taxes, even though I didn't have to. But what I'm saying here now is the county says you have to be a certain depth. And so with the depth of the water and everything, I could actually end up dry out there. I am actually -- they didn't get it across to you. The survey from the state right in the middle of my property, right at the corner of that first lake side of that canal right there is 11.80. 11.80. That's the height of my land right in there. That's a high ridge. There's no wetland, no nothing. That was studied. I paid Marco Espinar $4,000 to do a complete study. Steve Lenberger of the county went through that. As far as the trucks, this is not a big operation. Because of so much people trying to hold me back and so -- other things, I would have probably already had this finished. But so many restrictions and so forth and everything, it's so hard -- it's gotten so hard to do anything, you just have to crawl, and that's where I'm at. Now, this is the only living I got. I have to make a living. This here is an enormous cost. And technically, to tell you the truth, if that's one of the things you would like to use against me, you could use it, you know. No, I don't have the money to pile that dirt up there. So you don't have to worry about that. If I can't get this dirt out and I can't sell it, then I can't finish this proj ect. Now, as far as the fish is concerned, experimental? I started this. This was one of my dreams. I couldn't buy no land nowhere else. I bought this off of Collier County. Yes, I do have easements in and out of there. Yes, I built the road myself. I have maintained it for 30 years, the same road. The county has to only maintain one road, 52nd, which is known as Page 38 October 21, 2004 Berson. So I did all of that myself. Yes, the state could have used the east side. Yes, the state will use the east side, because that is a beautiful road. I built it and it's got pure lime rock on it and it's right on the bank of the canal. And yes, it is built up. And It won't flood. And there's no way that they can flood me. If you put up to 11.80 foot, you cover that height, then we're all in trouble. Especially North Golden Gate, you will see thirty-some thousand septic tanks go underwater. So that's something that you might have to look at, too, instead of just totally worrying about my little place over there. Of all the ponds there are in Collier County, I'm the only one now that's going to do -- mess up the water supply. They're not deep enough to mess up the water supply. All the wells go much, much deeper than that. Now, if you can actually use these ASR wells and pump water down into the thing and all, I'm not too worried about, you know, messing up the surface water of anything. Also, those management practices -- best management practices, I must have read them four, five, six times. I know how to do that. You can pollute a place by feeding fish too much. But I mean, fish is not going to pollute the area. You feed a fish what -- and you know what you got in there and so forth and all, you feed those fish what will eat in seven minutes and that's it. And you watch them. And you do. Just like any other thing, you know, you can't go just go out there and throw two or three fish in there. '96 I dug my first little lake and it was eight -- and it took everything I had, but I dug it and never saw no dirt or nothing. I dug it and I piled it up and I give it away, and that's the truth, and built most of the road that's there. And I put different types fish in there. That wasn't -- it was experimental with native fish. It's got bass, brim, catfish, what's native Page 39 October 21, 2004 here. Even tilapia. I went and fooled with tilapia, because that's not a native fish either. Most of the fish in Collier County anymore is not native. They throw so much stuff in here from aquariums and stuff, it's full of all kinds of junk. So therefore, that's a -- it's a bad situation. But what it will be on my property -- and I'm not out to make no killing. I don't make any money out of this. And as far as the traffic goes, it ain't -- they's trucks running up and down Everglades Boulevard that ain't my traffic, though they're running everywhere. If they don't run up Everglades Boulevard with my dirt, they go get it somewhere else and come up Everglades Boulevard, because they're building houses right up to this point there. So, no, my trucks ain't hurting it. I mean, they all pay $3,000 or $4,000 a year to travel on the road, so that's their right. And I do have a right to make a living. And that's what I'm trying to do. This is my land. I've owned it. I'm going to fight for it. I did 14 years in the Navy and I fought for everybody else. So now it's my turn and I'm going to fight for mine. Now, ifthey's any other questions, gentlemen, I will be more than happy to answer them. CHAIRMAN BUDD: Mr. Midney? COMMISSIONER MIDNEY: What's the normal depth of a catfish farm? How many feet? MR. HARDY: It's according to how you're going to do it. Now, you're talking about lining them. Yes, they do have liners and they have smaller ponds and everything. And they have -- they put the fish in there, they line them, they feed the dickens out of them. They put them in there, they feed them real hard and you got a polluted situation. That's water you've got to get rid of. That liner keeps the water from going in there, but you still got to get rid of the water; you got to do something with it, sooner or later there. You can raise fish, if you're going to keep it there and all like that. You can raise them five foot. But you see, I couldn't dig Page 40 October 21, 2004 five- foot. I couldn't dig a pond five foot there and do anything. It wouldn't work. It just wouldn't work. COMMISSIONER MIDNEY: Do you know of any catfish ponds that are 20 feet deep? MR. HARDY: Yes, sir, plenty of them. All of our rivers in the State of Florida and a lot of the lakes and all are 20 foot. That's where catfish feeds on. I'm from north Florida, Port St. Joe, born and raised there. Born there in 1935. And those -- all those rivers and all around there and lakes and everything are 20 foot -- COMMISSIONER MIDNEY: I mean commercial catfish places. MR. HARDY: No, sir, not -- I don't really know of any that are 20- foot -- COMMISSIONER MIDNEY: It seems kind of deep for me. MR. HARDY: -- but I'm sure a lot of the lakes are now commercial that have been mined, and they're 50, 60, 70, 80 foot deep and they do real well. The water is really tremendous because of the lime and the pH factor and so forth involved in it. It's really good, conducive to farming fish. This is something I wanted to do for Collier County. I mean, I thought maybe I could give something or other back to Collier County. And they've been fairly good with me. I started dealing a long time ago and trying to do right. And I got a permit for everything I could get a permit for. I always have. I have nothing to hide from none of you people. I started with a gentleman by the name of Mr. Magra (phonetic). Do you all know him? A long time ago, Mr. Magra, he was the head of the building department, what little it was, there was only one. And he told me, he says, "Hardy, there's no permits out there. Go ahead and do whatever you'd like, but keep your buildings under four foot -- 400 foot, 400 foot. And that way that's considered a camp." And that's just what I did. Except my main house now, I have got it up. I really Page 41 October 21, 2004 expanded on it and got it up to 1,000 foot because I have a little boy that I took on to try to help out. CHAIRMAN BUDD: Thank you, Mr. Hardy. We've got a couple more questions for you. Mr. Abernathy? COMMISSIONER ABERNATHY: When did you buy that land, Mr. Hardy? MR. HARDY: I bought that land from Collier County. I bought it from the Collier family. COMMISSIONER ABERNATHY: When? When? MR. HARDY: 1976. COMMISSIONER ABERNATHY: '76. MR. HARDY: Yes, sir. COMMISSIONER ABERNATHY: But aquaculture didn't occur to you until about '96; is that right? MR. HARDY: It had occurred to me all along, sir, but there's nothing you could grow out there, it's solid rock. COMMISSIONER ABERNATHY: Aquaculture, I'm saying. MR. HARDY: Aquaculture is -- eventually -- I talked with a lot of different people. I went all the way to Tallahassee, I talked with the aquaculture department all up there. And this here was a -- you know, was a use that could be utilized on that land. COMMISSIONER ABERNATHY: And that was about the same time the State of Florida was closing in on those lands down there as a part of their project, was it not? MR. HARDY: It appears to me, Mr. Abernathy, they're closing in on all of them. They have got 75 percent of Collier County now, so it appears to be they're closing in on all of them. But nobody wasn't closing in on me then. And a matter of fact, they just decided. They haven't put eminent domain on me yet. They have -- I think they pulled the papers, but they haven't actually put eminent domain on me. COMMISSIONER ABERNATHY: But they started buying Page 42 October 21, 2004 property down there as a part of this restoration, didn't they? MR. HARDY: You know what? You've right. You are right. You are right, because listen, ever -- Nancy Payton has -- and the Conservancy and Brad Miller (sic) of the Audubon Society, they have all continuously wanted that piece of land. They seem to have a puzzle or something or other, they keep trying to fit all of this land together in a puzzle, so everybody has to go. So that was part of their puzzle 20 years ago. But the sales keep going on. You have to acknowledge the sales keep going on. People keep selling land and doing it. People are not going to stop and set still for 20 years to decide what the state's going to do. COMMISSIONER ABERNATHY: But aquaculture would be a pretty good defense to your selling your land. It would give you income forever as you keep selling dirt. MR. HARDY: I have a little boy that I have to take care of, and he's going to need help from now on. I took him on at five -- at five months old. And so therefore I promised him, and I also promised the State of Florida that I would make a living for that little boy. I'm going to make a living for that little boy. I'm 100 percent disabled and I will make that living one way or the other. So aquaculture, yes, will give me a living from now on and will give him a living that he can do. He goes to school at Laurel Oak. He's in the third grade and he's doing pretty good. And I also have a tutor for him. And this is our life. We're just trying to live just like you gentlemen on this board know, right down to the brass tacks of it. I'm just trying to live in this county. I came over here from Miami after I had gotten out of the Navy. There was nowhere else. I couldn't buy land or anything anywhere. The Collier family said this land is no good for anything else. They told them to get rid of it. I actually went to work for the Collier family, that's how I paid for it. COMMISSIONER ABERNATHY: So at this point you couldn't Page 43 October 21, 2004 -- just couldn't get by on $4 million, then. MR. HARDY: Sir, there's something of it -- some things in life, without land, without the home and without ownership of land and so forth, means more to me. I bought it, a piece of good-sized piece of land because the St. Joe paper company took the homestead away from my mother -- I mean my grandmother. That ended that. So we never really had nothing up there. My father got killed when I was three years old. So what I'm saying, this was always a dream of mine, to try to get to a good-sized, decent-sized piece of chunk of land that I could actually do something or other with, you know. Four-and-a-half million dollars? Sir, I have fought all my life for just to make a living. I wouldn't know what to do with four-and-a-half million dollars. I would never be able to move into any of those gated risk communities or anything. I would never be able to live in a high-rise or anything of that nature. I have lived out and made a living off of the land or somehow or another all my life, except the time I was in the Navy, 14 years. So therefore, this here is the way I want to live. Please, don't take this away from me. CHAIRMAN BUDD: Anything else, Mr. Abernathy? COMMISSIONER ABERNATHY: No, sir. CHAIRMAN BUDD: Mr. Schiffer? COMMISSIONER SCHIFFER: Yeah, what kind of equipment do you have out there for your mining operation? MR. HARDY: At the present time it comes and goes. I have a dragline now, a six-yard dragline, a six-yard bucket on it. I have a couple of trackhoes and four or five front-end loaders. COMMISSIONER SCHIFFER: And all the trucking is done by private individuals? MR. HARDY: Private individuals come in there and buy, including Collier County. They purchase fill from me. Page 44 October 21,2004 We have a -- we had a -- we did have a bid -- a contract with them, but now we're doing purchase money, purchase money orders, and they buy all their fill from -- I have very good, excellent fill. And I actually tried to deal with the -- your gentleman right there, I believe it's the chairman there? I probably to one of those gentleman out in Fiddler's Creek. I tried to sell this project to them at one time, and I went and talked to them and all, because it's excellent, excellent lime rock. It's a reef. COMMISSIONER SCHIFFER: How much -- what percentage of your fill goes to the county? MR. HARDY: How much goes -- COMMISSIONER SCHIFFER: What percent goes to the county; do you know? MR. HARDY: Roughly 30 percent of my -- my business-wise? COMMISSIONER SCHIFFER: Yeah. MR. HARDY: I would say 20 to 30 percent of my business goes to the county. COMMISSIONER SCHIFFER: Okay. All right. Thank you. MR. HARDY: Now, I have easements out of there. I have easements out of there. Collier family give me easements out of there. CHAIRMAN BUDD: Thank you, Mr. Hardy. Appreciate your coming forward with that information. MR. HARDY: Thank you. CHAIRMAN BUDD: I did want to clarify that Mr. Hardy's probably making reference to Mark Strain, who's the vice chair and is employed by Gulf Bay Development and is in Ohio today, so he's not with us. If we can kind of get back on track now. We've had the petitioner's presentation. Mr. Bosi, did you conclude the staff presentation on this, that we're ready to go to public speakers? MR. BOSI: I didn't officially conclude it, but I had wrapped up. Thank you. Page 45 October 21,2004 CHAIRMAN BUDD: Very good, thank you. Public speakers? MR. BELLOWS: The first speaker is Mark Gerstel. And he's followed by Cindy Kemp. CHAIRMAN BUDD: Sir, were you sworn in? MR. GERSTEL: No. CHAIRMAN BUDD: Okay. Well, for you and for anyone else that's registered to speak, that was not sworn in we can catch you at the same time. So anyone that wishes to present testimony now or in the future, if you would stand and raise your right hand. (Speaker was duly sworn.) MR. GERSTEL: My name is Mark Gerstel, and I actually am probably more -- CHAIRMAN BUDD: Excuse me, sir, could you spell your name for the court reporter, please. MR. GERSTEL: Sure. G-E-R-S, as in Sam, T as in Tom, E-L. I live on Desoto Boulevard on the north side of 75, so I am probably one of Jesse Hardy's closer neighbors. And aqua-farming I think is a great idea. I'm a little surprised that Mr. Abernathy can read people's minds and feels that Jesse Hardy is just basically a scam artist. I'm a little surprised at that, unless you have a degree. But aqua-farming. We live -- and my wife and I try to eat organic. And we won't touch fish because of the mercury. And you're probably all aware of that. They don't even let -- you know, pregnant people they recommend not to stay away from fish -- I mean, to stay away from fish. So aqua-farming is a great idea. And that's something that Mr. Hardy wants to do for the county. As he said, he wanted to give back to the county what they've given to him. This man is a disabled veteran, one of the first Navy Seals, and he's got character that I've never seen in a man before. Page 46 October 21, 2004 How many of you would not have taken that $4.4 million? Raise your hand. Anybody. You would have not taken that $4.4 million. Is there anybody? So if he didn't believe in his dream of aqua-farming for the county, he would have been gone a long time ago. Would any of you have gone through all this problem, all these headaches that he's going through, all the money it's costing him? Aqua-farming's a great idea. Again, I eat organic. I'd love to eat fish again, but I won't, it's not safe. So if you let this man do his aqua-farming, and that's truly what he wants to do, and that's the big picture, you'll have something better for the county, better for the state and maybe better for the whole country. I am one of his neighbors. I have no trouble, you know, with the trucks going by, because right, like Jesse Hardy said, there's trucks coming by on a regular basis with all the construction going on in Golden Gate Estates. So I agree, I highly recommend that you agree with the conditional permit that his lawyers have brought up, and I hope you recommend it to the county. Thank you. CHAIRMAN BUDD: Thank you, sir. Next speaker, please. MR. BELLOWS: Cindy Kemp, followed by Nicole Ryan. MS. KEMP: Yes, hello. My name is Cindy Kemp. I am the vice president of property rights action committee. And on behalf of our members and myself, I wish to express support for the approval of Jesse Hardy's conditional use permit for the following reasons: Number one, from a property rights perspective, Mr. Hardy should be able to pursue his ambition to create an aqua-farm. This is his land. He's entitled to do what he wants on his land as long as it meets all the criteria, which he has done. To deny him this is wrong Page 47 October 21, 2004 and unconstitutional. Number two, from a resident's perspective, Mr. Hardy's project poses no problems. The community is supportive of what he is doing. I have not met one single person who is against this. We look forward to having an area where people can go out into the wilderness and enjoy the day out in nature. My God, you have taken every parcel of land from us, and you're denying us access. This man is trying to do something for every one. What's wrong with that? Are you going to be so tyrannical that you're going to control us all? Three, our Gulf is in trouble. The fishing industry has many concerns. There is a need for fish farmers. I have looked over the Internet, I have seen how fish farming is so -- is in so much need. And the Department of Agriculture is very much behind this proj ect. Four, Mr. Hardy has studied the topic of fish farming. As I said, he is supported by the Department of Agriculture and has met all the criteria of the county and the state. Furthermore, if he were interested in making money from this proj ect, which he certainly is not or he would have taken the money, do we not live in a capitalistic society where entrepreneurship is what made this country great? Is there a crime if that was the pro -- the initiative, which it certainly is not? I get annoyed when people are controlling our lives like this. There's one thing to do things that are in accordance with good zoning and planning, that's fine. But do not take away our rights. A recent Supreme Court ruling in Michigan just reversed Poletown, where thousands of people were put out of their home. That has been reversed. Right now there is something going to the federal Supreme Court in Connecticut. Jesse Hardy's case. Don't be looked at as a tyrant, because the country will be looking at you. This man deserves this right. Let him have his fish farm. Let us have a fish farm. Let us have a place where people can Page 48 October 21,2004 go out there and recreate. Thank you. CHAIRMAN BUDD: Thank you, Ms. Kemp. Ms. Ryan, before your presentation, we're going to take a 10-minute break. (A recess was taken.) CHAIRMAN BUDD: Planning commission will come back to order. And our next speaker will be Ms. Nicole Ryan. Ray, who is the speaker behind Ms. Ryan, so they can get on deck? MR. BELLOWS: Brad Cornell. CHAIRMAN BUDD: Thank you. MS. RYAN: Good morning, Commissioners. For the record, Nicole Ryan, here on behalf of the Conservancy of Southwest Florida. As you're examining this conditional use renewal, it's important to examine two things: First of all, how the applicant has complied with the original permit, and whether this activity is compatible with the growth management plan. In this circumstance, there's a long record of noncompliance with the conditional use stipulations and with local state and federal regulations. Therefore, the Conservancy believes that it would be inappropriate for Collier County to renew this off-site hauling permit. The original conditional use permit contained the statement that within the initial three-year period the applicant is required to commence a bona fide aquaculture activity on-site which will occupancy all completed lakes. Your staff report states clearly no aquaculture has commenced. The reason why this three-year condition was attached was to ensure the applicant was not trying to mine within a NRP A, which isn't allowed, but was serious about aquaculture. Without an actual aquaculture in place after three years -- and I believe the applicant's representative said something about an eventual aquaculture operation, but that wasn't the permit stipulation, it was three years. So Page 49 October 21, 2004 this is cause for concern. And we believe that it's grounds for considering denial of this renewal. The conditional use permit also required that permits or letters of exemption from the Corps and the water management district shall be presented prior to issuance of an agricultural clearing permit. This also has not been done. You have the May 11 th memo from the DEP, and it's been discussed, confirming that there are necessary permits that have not been obtained. Mr. Hardy's failed to comply with the conditions of his aquaculture certificate because he's constructed his mine directly in the drinking water aquifer. This requires an ERP. He's also failed to acquire an ERP for activities in uplands that alter the flow of surface water. Failed to comply with DEP's mine reclamation requirements, because he has not submitted a notice of intent to begin mining or to file an annual report for mining. And also, failed to acquire the proper permits for stormwater discharge and to provide reasonable assurances that the mining activity will meet all applicable surface and ground water standards. The state is currently negotiating with Mr. Hardy to try to come to a willing seller agreement for the sale of this parcel, and that is the reason why no enforcement action has been taken. There is speculation that if they had such great grounds for enforcement, they would do it. Well, the state is really trying to come to some sort of willing seller agreement, so that's why enforcement hasn't been taken. But please, don't be led to the incorrect assumption that these concerns aren't valid and that these aren't very serious violations, because they are. And the Conservancy believes that this long list of noncompliance is grounds for considering denial of the permit. As the planning commission, it's your job to make findings on a series of items. First of all, approval of the conditional use will not adversely impact the public interest. Well, the applicant has not Page 50 October 21, 2004 obtained the required permits or the letters of exemption, so there's really no way of knowing that there's no adverse impact. Furthermore, the Division of Aquaculture sent Mr. Hardy a letter warning him that his mining pits may have a connection to the drinking water aquifer. This is based upon their assessment that the excavated ponds are constructed within the surficial aquifer system, and approximately 90 percent of Collier County's potable water is derived from this system. Since the proper permits have not been obtained, the Conservancy does not believe that no adverse impact can be properly assessed. Secondly, as a planning commission you look at all the specific requirements for the individual conditional use permit and will these be met. Since the applicant has not currently met the requirements of his current permit, and he's had three years to do this, it's reasonable to assume that if given another conditional use permit, these violations are going to continue. And what sort of precedent does this set? You also look consistency with the growth management plan. Under the conservation and coastal management element, Goal 1 states essentially that the county protects natural resources. And one way that this is done is through the establishment of natural resource protection areas. Policy 1.3.1 states the purpose of natural resource protection areas is to direct incompatible land use away and activities away from sensitive environmental systems. Southern Golden Gate Estates is considered a NRP A. Mr. Hardy's mine, in light of the fact that it's within an Everglades restoration project; in light of the fact that required permits or letters of exemption have not been obtained; in light of the fact that questions are being raised by the Division of Aquaculture about potential of groundwater contamination, this permit request is not compatible with Goal 1 of the CCME. Page 51 October 21, 2004 Goal 2 further states the county shall protect its surface and estuarine water resources. How do we know these resources are being protected when the proper permits have not been obtained? In addition, as a planning commission you look at ingress and egress, and is it sufficient. It's been discussed that the Golden Gate Estates area master plan states that the roads will have minimal road maintenance in Southern Golden Gate Estates. But also the State of Florida now has ownership of these roads. The Conservancy does not believe that haul trucks and their access are part of the restoration plan and would be a valid use within a restoration area. Therefore, we have sufficient questions about the ingress and egress. And finally, as a planning commission you look at the effects the conditional use will have on neighboring properties. Well, the neighboring properties, even though there aren't homes there, you do have a neighbor. And these neighbors are us, the taxpayers, as the State of Florida. The Golden Gate Estates area master plan in Goal 2 states the county recognizes Southern Golden Gate Estates as an area of special environmental sensitivity. If the county recognizes this goal, then it will be impossible to issue a permit for mining activities that, in the words of Clarence Tears, director of Big Cypress Basin, is incompatible with the hydrologic restoration plan for the area. The conditional use renewal application that you have before you is counter to Everglades restoration. Stipulations from the original permit have not been met and are still being ignored. This activity is not consistent with our growth management plan and, finally, this activity is not compatible with the adjacent properties in the area, because it's surrounded by state-owned lands, our lands as residents and taxpayers of the State of Florida, and it was purchased for hydrologic restoration. Therefore, the Conservancy is asking that you recommend denial Page 52 October 21,2004 for this permit to the board of zoning appeals. And I have a copy of the letter and e-mail from the Department -- or, sorry, Division of Aquaculture, if you'd like a copy of that. CHAIRMAN BUDD: Thank you. Next speaker, please? MR. BELLOWS: Brad Cornell, followed by Nancy Payton. MR. CORNELL: Good morning. I'm Brad Cornell, on behalf of Collier County Audubon Society. And I want to share first a quick mention of the fact that the issue of uplands versus wetlands keeps getting raised, and I want to point out that uplands are important to restoration proj ects as well, and in fact that's what restoration is. We're not just looking at wetlands, we're looking at the combination of wetlands and uplands. That's how our ecosystems work, that's how we need to restore them. I'd like to read a brief letter that's written on behalf of Collier County Audubon Society and Audubon of Florida. Collier County Audubon Society and Audubon of Florida wish to jointly offer comments on this conditional use petition, Picayune Strand State Forest. While we are sympathetic to the personal circumstances of Mr. Hardy, we strongly disagree with staffs recommendation to approve this petition. Excavation of over 80 acres of 20- foot deep lakes is contrary to the goals of the Picayune Strand restoration proj ect being implemented under the comprehensive Everglades restoration plan, and just last week accelerated as a priority proj ect by Governor J eb Bush. Most important, however, is the failure of Mr. Hardy to comply with the requirements for his aquaculture endeavor. As part of the state-adopted best management practices for aquaculture, Mr. Hardy must already have obtained necessary state and federal permits. Because he does not appear to have received these permits, his mining and aquaculture operation is noncompliant and, therefore, no longer Page 53 October 21, 2004 merits exemption as a bona fide agricultural activity. The natural resource protection area land use category in which Mr. Hardy's land is does not permit earth mining, which this operation essentially is. Collier County Audubon Society and Audubon of Florida urge you to recommend denial of this conditional use petition as inconsistent with the future land use element of the Collier County Growth Management Plan. I've got copies of these letters which 1'11 give to the record. Thank you. CHAIRMAN BUDD: Thank you, sir. Next speaker, please? And who follows, Ray? MR. BELLOWS: Nancy Payton, followed by Clarence Tears. MS. PAYTON: Nancy Payton, representing the Florida Wildlife Federation. There is one disclosure that does need to be made today, and Mr. Schiffer, you hinted at it, that Collier County is purchasing fill from Mr. Hardy's mine. And since July 27th of this year, they have purchased $75,000 worth offill and anticipate purchasing at least an additional $50,000 in fill. And that was confirmed in an e-mail from Mr. Mudd. I understand that the focus today is very narrow. It's a conditional use permit, an extension and expansion to haul dirt off-site. And these trucks will be hauling through Southern Golden Gate Estates, which is an Everglades restoration project and a Collier County designated natural resource protection area. It's a conservation area. The restoration goals of Southern Golden Gate Estate are to reestablish a natural flow of water to the Ten Thousand Islands Natural Wildlife Refuge; enhance wildlife habitat, including upland habitats; improve the quality and quantity of water delivered to the coastal estuaries; and maintain flood protection for northern Golden Page 54 --- October 21,2004 Gate Estates. Southern Golden Gate Estates is a keystone conservation parcel, abutting Florida Panther National Wildlife Refuge, Fakahatchee Strand State Preserve, Ten Thousand Islands National Wildlife Refuge, Collier Seminole State Park, South Belle Meade CARL state acquisition project, and our North Belle Meade natural resource protection area. It is the keystone parcel in the middle of all those that I have mentioned. Southern Golden Gate Estates restoration involves de-grading or removing 260 of 279 miles of roads, and plugging 42 of 48 miles of canals to mimic natural sheet flow; that is, water to flow this way, not that way through canals. It's about filling holes, not digging holes. Restoration on the Prairie Canal started last year, and at least two miles of the canal have been filled. Southern Golden Gate Estates restoration is going to happen. As Mr. Cornell mentioned, money is in the budget, it was announced last week by Governor Bush, and this is a proj ect that is being accelerated and is going to happen. As Mr. Tears said, there are only two parcels left in this 55,000 acre block of land that have yet to be acquired by the State of Florida. Both have -- the state has filed a petition for eminent domain to take both properties. According to the DEP, the courts have condemned 1,800 other parcels in Southern Golden Gate Estates, with the courts citing the need for all Southern Golden Gate Estates lands to be owned by the state for a meaningful restoration project. Mr. Hardy's order of take hearing is February 8th, 2005. And I realize that some feel that this is not an issue that should be taken into consideration, but I do think it's background information that you need to have to know how serious this project is. And it's not a wish and a prayer and it may happen, it is happening. Conditional use -- conditional use permits have to meet four Page 55 '- October 21, 2004 criteria. Two of those criteria are compatibility and access. Mr. Hardy's petition does not meet both of those criteria. Mr. Hardy has not honored the terms of his 2001 conditional use permit. And I was involved in the negotiations for the approval of that permit which initially was for four lakes, it was reduced to one lake. And the restriction was that Mr. Hardy was not to return for the three additional lakes until that first lake was completely dug and there was a bona fide aquaculture operation there. That has not happened. He has not honored the terms of the 2001 conditional use permit; therefore, we should not be extending it. A haul truck route through an environmental restoration project is not a compatible use. It just does not take rocket science or brain surgery to conclude that. Access is via an improved road. That is Naomi Road -- Naomi Road. Mr. Hardy acknowledged that he's made improvements to that road, in violation of our comprehensive plan. Ms. Ryan spoke about that specific requirement, that those improvements are not something that's allowed under our comprehensive plan in Southern Golden Gate Estates. It does not have a federal permit, so there are unresolved water quality, wetland impacts and listed species impacts to the road improvements that Mr. Hardy has done. An aquaculture operation does not exempt one from the federal Clean Water Act, the 404 permitting, which he should have gone through for improvements for his road. If he did not have to have those permits, there should be in a file -- in the file an exemption letter from the Corps and other applicable agencies that he did not require permits. Those exemption letters are not in the file. They do not exist. He does not have the permits for those roads. Therefore, we raise in question that he has proper access in and out of there for those haul roads. I rode that road back in 2001 when he was first requesting the Page 56 October 21, 2004 permit to haul road off-site. I had a little Ford Escort and I barely could make it in there. I drove very slowly, there were incredible potholes. It was a difficult road to maneuver. That road now is a major road with major improvements. There have been improvements to that road so that the haul trucks can make it in and out of there. They have not been legal improvements. Again, I'm going to stress that the restoration goals for Southern Golden Gate Estates are to reestablish a natural sheet flow. It is -- involves removing roads and plugging canals, enhancing wildlife habitat and improving quality and quantity of water delivered to the coastal estuaries, and also to maintain flood control. A haul truck road through a restoration project is clearly not a compatible use. And we urge to you deny this permit. And I have one comment as a side. I found it dismaying that staff referred to Mr. Hardy as their client and that they were assisting him in determining what permits were necessary. I thought that was the duty of the client's consultants, not county staff. And if Mr. Hardy is the county's client, who are the rest of us? And how do we fit into these determinations? Just a side comment that kind of got my nerve this morning. Thank you. CHAIRMAN BUDD: Thank you. Next speaker, please? Are there any other speakers, Ray? MR. BELLOWS: Yes. Clarence Tears, followed by Dave Wolfley. The last speaker is David. MR. TEARS: 1'11 just reiterate a statement earlier: This project is not compatible with the Southern Golden Gate Estates restoration. CHAIRMAN BUDD: Thank you, Mr. Tears. Mr. Wolfley? MR. WOLFLEY: As I may not be as eloquent or passionate as some the others, my concern really goes beyond Jesse Hardy, it goes on the taking of land by the state for other than a right-of-way purpose. Page 57 October 21, 2004 There's an awful lot of people, and I'm actually very, very surprised that there aren't -- this place isn't filled, because I've talked to 50, 100 people that did agree exactly the way I feel. I've been out to Jesse Hardy's property several times. I've seen hundreds offish. I don't know if that's just an experiment or not, but he's got plenty of fish in the first pond that he dug some years ago. And I don't understand why this conservation, the environmentalists want this piece of property so badly. When I was on the planning commission, I was like where were all these people when we passed Heritage Bay? You didn't show. And that, you know, dismayed me that we didn't have an environmentalist on a huge, major mining operation. Nobody showed, nobody cared. MS. PAYTON: It was done. MR. WOLFLEY: Sure it was. Now we've got 3,500 units going there. So that seemed to have been an environmental aspect that -- I was just sitting right there in Robert's seat. I just shook my head and went, my God, what is going on here? There was nobody to speak on the proj ect. In any event, I just wanted to stand up and say that there is no reason we can't move forward with this aquaculture project. As you all know, it's not just local, it's not just national, this has international view right now. Unfortunately this is going in front of the BCC after the elections. I'm sure the votes would be a little bit different if it were before the elections, because it is a very political thing. That's what it's all about, it's really a political situation. Thanks. CHAIRMAN BUDD: Thank you, sir. No more speakers? MR. BELLOWS: No more speakers. CHAIRMAN BUDD: Any summary comments by the petitioner? MR. THORNTON: Thank you. Chris Thornton again. Thank you for the opportunity to be here today. I'd just like to say that it's -- I think it's offensive to me and it's Page 58 October 21, 2004 offensive to Mr. Hardy for anybody to call him a liar and say that he's not actually doing aquaculture. This man's a private property owner in this county and he has a use that he would like to do on his privately owned land. If the state wants to take his land from him, if the state wants to block the access to his property or if the state wants to initiate enforcement action against him under Chapter 373, then the state will do that. But those issues are not part of the criteria that we're supposed to be using today to decide ifhe can do this. This is agriculturally zoned land. The NRP A overlay says that aquaculture is allowed. He just wants to dig the holes and haul the fill away. There's nobody out there to be bothered by it. And all the talk about the takings is -- it's irrelevant. There's not a rule in our land development code that says here's the criteria to follow, but if there's a taking going on you should let -- you should make the man stop using his land. It's his land and he would like to use it until such time as the state takes it from him, if they can. The county has, to the best of my knowledge, not ever issued any code enforcement notices of violation to Mr. Hardy. The State of Florida has not initiated enforcement action against Mr. Hardy. He's not required to have the ERP permits that everybody's talking about. He's exempt from the ERP permitting requirements under Florida law. Weare fine with the condition that says any permits, state or federal that he's required to have, he needs to have them. We don't think he needs them. So the condition is acceptable. There's one clarification I'd like to make on the requirement to record a conservation easement in the staffs conditions. I think it's staffs intent, and they can clarify if I'm incorrect, I believe it's staffs intent for that condition to say conservation easement will be required to be recorded at the time of site development plan approval, if required by the code, or any time -- any Page 59 October 21,2004 other time it's required by the code. I don't think that this individual or guy should be picked out and required to put a conservation easement on his land unless your code already requires it. I don't think you ask everybody else to do that and I don't think he should be picked out and obligated to give the county an easement over his privately owned land unless everybody else is required to do the same thing under the code. I hope staff will clarify that for us. That's all I have. Mr. Thompson has a couple -- yes. CHAIRMAN BUDD: Mr. Schiffer? COMMISSIONER SCHIFFER: Yeah, I have a question. One thing that's missing in this whole thing is that what makes this land unique in Collier County that's the only place he can do aqua-farming? In other words, why couldn't he sell this parcel, buy another parcel someplace else and do the identical thing? MR. THORNTON: I think Mr. Hardy would tell you, and I agree with him, this is his property. It's unique because it's the property that he owns. He doesn't own any other property. He lives here. He's lived there for almost 30 years. And if -- maybe if it were me, maybe I would take the money and move in the top floor of a high-rise condo. COMMISSIONER SCHIFFER: Well, I'm not saying that, I'm saying that he could -- I mean, there's some high numbers being thrown around here that why wouldn't he be able to go someplace else in Collier County and do exactly what he wants to do? CHAIRMAN BUDD: We may not like the answer, but I think he gave us the answer, because that's the land that Mr. Hardy wants to be on. So we may not like it, but that's it. So is there other questions? Mr. Midney? COMMISSIONER MIDNEY: How would you respond to the letter from the Florida Department of Agriculture saying that, in the first paragraph that indicated the ponds you are constructing may have Page 60 October 21, 2004 connection to the drinking water aquifer? MR. THORNTON: The response is that -- I read that briefly when it was handed to me a few minutes ago, and it indicates that he needs to comply with the best management practices for aquaculture. And that's already one of the staff conditions. Mr. Hardy has agreed to comply with those best management practices. He's got his aquaculture certification. And if he doesn't comply with the best management practices, then he's going to have to go and get ERP permits. So it's in his best interest to comply with those. He will comply with those, and to keep his certification, he needs to comply with those. COMMISSIONER MIDNEY: But if it's connected to the aquifer, it's going to be a potential source of contamination, won't it? MR. THORNTON: The engineer-- CHAIRMAN BUDD: Mr. Chrzanowski? MR. CHRZANOWSKI: Good morning. Stan Chrzanowski with engIneenng reVIew agaIn. As it was brought up in the past, there's a bunch of lakes. Every canal -- I think you saw the exhibit up there. Every -- the reason we don't worry that a lake is going to fill up, if you go in your backyard and dig a post hole certain times of the year, you've got a Collier County lake there. You know, the water just comes up out of the aquifer. It's the ground water. Most -- this is a relatively shallow excavation, 20 foot. That's pretty near the standard excavation anywhere in Collier County. The canals are a little shallower. The only people that I know that draw drinking water out of the shallower aquifer is the City of Naples with their well field that goes up along Golden Gate, up along the Faka Canal. I think their wells are 35 to 45 feet deep, from the borings we saw. And they're a good six or seven miles to the north in an area where the water flow is to the Page 61 October 21,2004 south. I -- if we told everybody that was digging a hole that they're penetrating the aquifer, we wouldn't allow anybody to dig any holes in Collier County. COMMISSIONER MIDNEY: Well, if that's true, then why did the Florida Department of Agriculture point that out to him? MR. CHRZANOWSKI: I know. I see people bring that up all the time, and I don't know why they think it -- most of our lakes, like was brought out, are retention lakes for cleaning the water. And what you do is you run your runoff into the lakes. The canal system in Golden Gate north and south takes the runoff from 10, 20 miles of road into every two or three miles of canal. It's where the road runoff goes. If you've got a spill, it goes into that canal. That is the same surface water table that all these bodies of water sit in. There's no distinguishing. The other map you saw had orange and red -- light orange and dark orange on it. That's a correlation with the soils map. If you looked at what the map said, it said that those are areas with the limestone substratum. You have less connection between -- if you have -- and we found in those areas is where you get the harder rock, like Jesse -- you have to blast -- are you blasting now? Yeah, he has to blast to get his rock out. That rock runs pretty deep. We have pits like Willough Run, I think they're running 40, 50 feet deep. Most of our deeper pits -- I live on Lakeside, the lake is 30 to 40 feet deep. I don't know why people constantly think -- you know, if you didn't dig the lake there and you poured oil on the ground, it's going to percolate down and go into the same aquifer that everybody's talking about. I don't know where people get this idea. And, you know, if somebody can correct me that this is a problem and we shouldn't allow any more digging of lakes in Collier County, you know, have at it. CHAIRMAN BUDD: Thank you, sir. Page 62 October 21, 2004 COMMISSIONER MIDNEY: I don't think it's us that is questioning it, but we're just looking at what the advice of the state has said. MR. CHRZANOWSKI: Yes, sir, I know. I see that advice from all kind of agencies. We've had major discussions. We have a pit called Stewart. It's permitted up -- it's even off that map there. And he's going to hydraulically dredge 70 feet of sand. It came through you guys maybe two years ago. He's still having trouble getting other permits from the state. But he's a different kind of operation. And he's permitted to go 70 or 80 feet deep. And it came up at the time that he was a connection to the aquifer. But what also came up is that there's very little pollution going to go into that area. We had a meeting in front of the EAC about that project, and because of it we brought in people from FGCU and the Conservancy. We invited everybody along. And the general discussion was that, you know, these lakes, they're not doing that much harm to what's down there. We're sucking water out of the 80 to 120-foot aquifer. Most people are irrigating out of that. The county now, our deep wells are seven, 800 feet deep. I -- you know, I don't know what drinking water aquifer they're talking about. The only connection I ever heard about that somebody was concerned was Calusa Bay when that proj ect along Goodlette Road opposite the coastal ridge well field, the well field was sucking the lake down. Now that, definitely there was a connection. But I think what they determined was that that's a very porous area. It's the sand ridge. And, you know, it just -- that condition doesn't exist in most places in the county. COMMISSIONER MIDNEY: Don't you think, though, that if there was a commercial fish farming operation that there would be a lot of nutrients that would be falling to the bottom of those lakes? MR. CHRZANOWSKI: Ifhe did it wrong. Page 63 October 21,2004 COMMISSIONER MIDNEY: I think maybe that's -- maybe that's what they're talking about a heavy load of nutrients constantly falling to the bottom. And if there was a connection to the aquifer, that's probably what they're thinking. MR. CHRZANOWSKI: Ifhe did it wrong. But I'm not sure there's a connection to the aquifer, and I'm not sure that's much different than herbicides, pesticides and the oil from your car going into the lake in your backyard. CHAIRMAN BUDD: Okay. Do we have -- and Mr. Thornton was making his summary comments, and Mr. Chrzanowski was coming up to clarify an item. Anything else for Mr. Chrzanowski, or can we get back to Mr. Thornton's summary comments? COMMISSIONER SCHIFFER: Let me just ask a quick question. And it has nothing to do with the topic Paul had. But do you have a concern with the pump station next to these lakes with drawing down water that would -- MR. CHRZANOWSKI: I'm not familiar with the plan, no. CHAIRMAN BUDD: I believe that was the canal pump that's transferring water horizontally, not vertically lifting water out of the ground. Thank you, Mr. Chrzanowski. MR. CHRZANOWSKI: I think there's supposed to be a berm there? COMMISSIONER ABERNATHY: Let's-- COMMISSIONER MURRAY: Yeah, let's move on. CHAIRMAN BUDD: Well, whatever. Mr. Thornton, you were making your summary comments? MR. THOMPSON: I'll wrap up for Mr. Thornton on this one. A lot has been brought up about the need for state and federal permits. I spent six years in the regulatory department of South Florida Water Management District. Well, I spent nine years, my last Page 64 October 21,2004 six years as supervisor for permitting for Southwest Florida. I was on the original inter-agency committee that set up the aquaculture rules with DEP and all the water management districts and the Department of Agriculture. This an aquaculture project. The rules for aquaculture do not require any type of permit from DEP. They do not require any type of permit from the South Florida Water Management District. Aquaculture is totally regulated through the Department of Agriculture. We have an environmental impact statement that says there are no wetlands on the site. He has not constructed in wetlands, there were no wetlands there. If he were in wetlands, that would trigger his jurisdiction to the Water Management District or to DEP. But there are no wetlands on the site; therefore, he needs no permits from them. Army Corps of engineer permitting is triggered by wetlands connected to the waters of the United States. There are no wetlands on the site. You do not need a letter of exemption if you don't -- unless someone requests it. You can do your works without anything from a governmental agency if you're not required to get a permit. These are the things that I dealt with for six years. We don't need a letter of exemption from South Florida Water Management District because he's exempt, unless there's a request made to produce that. The Water Management District has no requirements to do that. The Army Corps has no requirements that you ask permission before you do something that does not need a permit. Based on the rules that we have, there are no permits required, other than what we've already obtained. CHAIRMAN BUDD: Thank you, sir. Mr. Schiffer? COMMISSIONER SCHIFFER: Yeah, who would request the exemption letters? When you say "unless requested", who did you Page 65 October 21,2004 mean? MR. THOMPSON: Well, there have been times where the county may want a letter. Although in the past when I was at that agency, we normally would handle that through e-mail. There's been many times where Mr. Chrzanowski or some others down in the county, we would just handle it with telephone calls or e-mails and not have anything in writing as to whether or not would a project be exempt. But the rules are clear on this. CHAIRMAN BUDD: Mr. Midney? COMMISSIONER MIDNEY: You say you have some experience with aquaculture licensing and permitting. Are you aware of any commercial fish farms that are 20 feet deep? MR. THOMPSON: I'm not aware of all the fish farms within the state. COMMISSIONER MIDNEY: But that's not the normal depth, I assume? MR. THOMPSON: That's not the normal for a mass production farm, which is not what Mr. Hardy has in mind. Mr. Hardy's farm is more recreational in nature. He's -- what his proposal is is to build more of a natural lake. Mass production, they will come in, they will drain all the water, they'll stack as many fish as they can in each one, and it's a warehouse operation. The water gets -- does get bad on those situations. The ponds are typically much smaller, much shallower because they're -- to harvest the fish, they pump all the water out and scoop the fish up off the bottom. That is not the intent for Mr. Hardy. COMMISSIONER MIDNEY: So he's not doing a normal type of fish farming operation. What kind of a fish farming operation is it? Could you be more specific? The reason I'm asking, because one of the requirements is that it has to be a bona fide aquaculture. Page 66 October 21,2004 MR. THOMPSON: And it is. It would be -- as I understand from Mr. Hardy, portions of it would be -- I'm trying to think of how to describe this. Basically you go out, you pay him some money, you fish in the lake. More of a recreational type, sort of like a hunting lease for fish. CHAIRMAN BUDD: Further questions? (N 0 response.) CHAIRMAN BUDD: If there are no others, Mr. Thompson, Mr. Thornton, does that conclude your presentation? MR. THOMPSON: There is one other thing. With respect to Mr. Hardy starting his aquaculture, it has started. But as you can see, right now the lake's not real big. He had trouble getting started with his construction of the lake. This past August it was stocked with catfish and the minnows. The minnows are in there to serve as a source of food for bass and brim, which he plans to put in the lake in the future. He cannot add the other brass and brim until the population of minnows gets up to a level that will support them. It is an ongoing operation. It has commenced already, but you can't start an aquaculture until you get enough lake area to be successful. You can't take one shovel out and throw a fish in and start. CHAIRMAN BUDD: Okay. Thank you, sir. With that, that concludes the petitioner's presentation. We'll close the public hearing. Planning Commissioners, is there a motion would someone like to make? Mr. Murray? COMMISSIONER MURRAY: I would move that the approval be forwarded to the BZA in accordance with staffs recommendations and possible inclusion of Mr. Abernathy's suggestion regarding item eight, if he wishes to sustain that recommendation. CHAIRMAN BUDD: Please elaborate for me, what do you mean by item eight inclusion? I'm behind you here. Page 67 October 21, 2004 COMMISSIONER MURRAY: Exhibit D, which is conditions of approval. COMMISSIONER ABERNATHY: Seven is mine. COMMISSIONER MURRAY: Was yours seven? I apologize. I made a mark on eight. On seven then. We would include that, if he wishes to have that part. CHAIRMAN BUDD: Okay, we have a motion by Mr. Murray. Is there a second? I will second your motion, Mr. Murray. Discussion? COMMISSIONER SCHIFFER: I'd like to -- COMMISSIONER ABERNATHY: Yes. CHAIRMAN BUDD: Go ahead, Mr. Abernathy. COMMISSIONER ABERNATHY: Putting aside whether or not Mr. Hardy really wants to be a fish farmer or not, and putting aside all of these discrepancies over his compliance with one regulatory requirement after another. Putting all that aside, you turn to the findings that we have to make in order to approve this, and right out of the box you have the sentence "granting the conditional use will not adversely affect the public interest." Now, there's no way in the world that you can argue that this conditional use is in the public interest. It adversely affects the public interest because the public is interested in doing a project down there. And as you heard from Clarence Tears, there are only two people, two organizations, standing in the way of that: Mr. Hardy and the Miccosukee Indians. So I just -- it escapes me how sentiment -- and Mr. Hardy's a nice man and all of that. I'm a Navy veteran myself, more than twice as much service as he had. But that has nothing to do with this. We've got a public interest project that he's standing in the way of. Earth mining is a way for him to generate income and draw the state out indefinitely. Page 68 October 21,2004 So I think we made a mistake when we first approved this thing, and I've thought so all along. And his performance, though a halfhearted performance, has not done anything to change my opinion. So I think the conditional use petition can't possibly merit our favorable endorsement. CHAIRMAN BUDD: Other comments on the motion? Mr. Schiffer? COMMISSIONER SCHIFFER: Yeah, I'd just like to make a comment. And Mike, in the report it wasn't aware (sic), but this last testimony that this is going to be like a fish "you pick 'em," that means that there's going to be a mass of public people going down there to fish around these ponds and stuff? Is that something -- why was that not in the report? And is that what you think the case is going to be? COMMISSIONER ABERNATHY: Excuse me, Mr. Chairman, we can't reopen the hearing. We've closed the hearing. We've got the testimony. We've got to make the best of it that we can. COMMISSIONER SCHIFFER: I'll leave that as a statement then. CHAIRMAN BUDD: Okay. Other discussion of the motion on the floor? There's no further -- yes, ma'am. COMMISSIONER CARON: I'd have to say that I agree with Commissioner Abernathy. I do not see how this is in the public interest. In fact, I think the public interest is having the hole in the donut closed so that Everglades restoration can go forward. CHAIRMAN BUDD: Thank you. Any other comments? Yes, ma'am. MS. STUDENT: I just want to point out, if you look at your finding of fact sheet, there is that criterion about adverse effect of the public interest. And then it goes on, because of. That's a general statement. And then the specific reasons that relate back to the public interest are listed below. So I just wanted to clarify that. COMMISSIONER ABERNATHY: Okay. Well, I would say it's Page 69 October 21, 2004 because ofD, it's not compatible with all of the surrounding parcels, all of which are in the hands of the government for a public purpose. CHAIRMAN BUDD: Okay, we've had discussion, everybody's expressed their sentiment. We'll call the question. All those in favor of the motion, signify by saying aye. COMMISSIONER MURRAY: Aye. CHAIRMAN BUDD: All those opposed, signify like sign. COMMISSIONER CARON: Aye. COMMISSIONER VIGLIOTTI: Aye. COMMISSIONER ABERNATHY: Aye. COMMISSIONER ADELSTEIN: Aye. COMMISSIONER SCHIFFER: Aye. COMMISSIONER MIDNEY: Aye. CHAIRMAN BUDD: Aye. We had Mr. Murray in favor of the motion, all others in opposition. Motion fails 7-1. Do we have another motion? COMMISSIONER ABERNATHY: Well, I'll make a motion that we forward it to the BZA with a recommendation of disapproval. COMMISSIONER ADELSTEIN: I'll second the motion. CHAIRMAN BUDD: Motion by Mr. Abernathy, second by Mr. Adelstein. Further discussion? (No response.) CHAIRMAN BUDD: There is none. All those in favor of the motion, signify by saying aye. COMMISSIONER CARON: Aye. COMMISSIONER VIGLIOTTI: Aye. COMMISSIONER ABERNATHY: Aye. COMMISSIONER ADELSTEIN: Aye. COMMISSIONER SCHIFFER: Aye. COMMISSIONER MIDNEY: Aye. Page 70 October 21, 2004 CHAIRMAN BUDD: Aye. Those opposed? COMMISSIONER MURRA Y: Aye. CHAIRMAN BUDD: Motion carries 7-1, Mr. Murray dissenting. A reminder to all the planning commissioners, please fill out your findings of fact and sign them and pass them down to Mr. Adelstein. COMMISSIONER ABERNATHY: Sitting here looking at the thing and not doing it. CHAIRMAN BUDD: Okay, with that, that concludes that agenda item. We will move on to Item -- well, Item 9, old business. I'm not aware of any. Item 10, new business, outstanding advisory committee member program. Mr. Schmitt, I believe you have a presentation for us on that item? MR. SCHMITT: Well, I thank you, Mr. Chairman. For the record, Joe Schmitt, administrator, community development and environmental services division. I really do not have a presentation, I just would like to point out that the county, as endorsed by the chair of the Board of County Commissioners, has initiated a program to recognize service to our various -- our 45 various advisory boards, committees, authorities and other activities where we would wish to recognize the service of citizens who participate in the government process, specifically who participate in these boards and activities. There are two components of the program: The service award and the achievement award. The service award recognizes the advisory committee members based on years of dedicated service, and the achievement award recognizes outstanding advisory committee members for significant contributions. Page 71 October 21, 2004 What we put in your packet is somewhat the criteria for each of these, and basically what it -- all it is, is if you wish to nominate one of the members of the planning commission, former members or sitting members for any of these -- well, either of these two awards. Probably more appropriate would be recommending for members, say as a prior -- when they depart to be recognized for their service, such as Mr. Richardson, and something at that regard, where we would submit his name based on the recommendation of this board or the committee or whomever. But you all would basically ask, staff would then prepare this and forward it to the director of our human resources who would bring it to the Board of County Commissioners and try to formally, at least, recognize the volunteer work. It seems, and sadly what has happened in the past is kind of thank you and they're gone. And certainly we had a former commissioner in our audience today, same thing. And what we'd like to do is have a more formal program to recognize service. So with that, that's really what this is. If you would wish to confer amongst yourself as far as if you want to recognize anyone for either outstanding achievement or a service award, please let us know, and we'll certainly process the award. CHAIRMAN BUDD: Mr. Schmitt, is it correct that while it's a very reasonable suggestion, that it be a past serving member? I didn't read in there that it was a requirement. MR. SCHMITT: No, it's not. CHAIRMAN BUDD: Okay, but it's a very reasonable recommendation on your part. MR. SCHMITT: Right. It could be to recognize -- what I was looking at is probably more recent service, and then certainly anybody that is sitting on a board, for instance, a year serving as the chair or those type of things, where -- or whatever you want to do as a -- as far as the planning commission is concerned, recognizing the years of Page 72 October 21,2004 service of individuals, or to recognize specific achievement in regards to service. CHAIRMAN BUDD: If I understand the procedures and instructions that were included in our packet, it contemplates the selection of a liaison, that one of our members would be the liaison; is that correct? MR. SCHMITT: Well, actually the staff is a liaison. CHAIRMAN BUDD: The staff is considered that liaison? . MR. SCHMITT: That's Ray, actually. Ray is the staff liaison to the planning commission. CHAIRMAN BUDD: Okay. That's the guy I'm looking for. Okay. So we can take action now or at some future date? Are we flexible in that? MR. SCHMITT: I just wanted to introduce you to the program. You can certainly take action today if you wish or some future date. I just want to make sure you're aware of this, and certainly that you understand that the program exists, and we will process any awards you so choose. CHAIRMAN BUDD: Well, with that in mind, the Chair will entertain motions today, or if we choose to do at a future date, whatever is the pleasure of this committee. Mr. Adelstein? COMMISSIONER ADELSTEIN: I'd like to make a nomination now. CHAIRMAN BUDD: Please do. COMMISSIONER ADELSTEIN: I'd like to nominate Mark Strain for both. I can't think of anybody that would be more deserving from this. There are others here that should be, but there's no question as far as I'm concerned, he's heads and shoulders above others. COMMISSIONER MURRAY: I would second that. COMMISSIONER ABERNATHY: I'll second that. COMMISSIONER CARON: I'd second that. Page 73 October 21, 2004 CHAIRMAN BUDD: We have a motion by Mr. Adelstein, technically a second by Mr. Murray, but an acclamation of second. Further discussion on that motion? COMMISSIONER ADELSTEIN: I don't think discussion is necessary . CHAIRMAN BUDD: I don't think -- okay. So with that, all those in favor of Mr. Adelstein's motion to recognize Mr. Strain, please signify by saying aye. COMMISSIONER CARON: Aye. COMMISSIONER VIGLIOTTI: Aye. COMMISSIONER ABERNATHY: Aye. COMMISSIONER ADELSTEIN: Aye. COMMISSIONER SCHIFFER: Aye. COMMISSIONER MIDNEY: Aye. COMMISSIONER MURRAY: Aye. CHAIRMAN BUDD: Aye. Those opposed? (N 0 response.) CHAIRMAN BUDD: Motion carries. Mr. Bellows, our liaison, you're duly notified. MR. SCHMITT: I'll take care of you, Ray. CHAIRMAN BUDD: Okay. With that, is there any other business to -- COMMISSIONER MIDNEY: Yes. CHAIRMAN BUDD: Yes, sir. COMMISSIONER MIDNEY: I would like to ask staff -- I would like this commission to consider asking staff to prepare, as a regular agenda item for a future meeting, to ask -- recommending to the Collier County Commission that they change the present formula for grading. roads from a 10-month system to a 12-month system. Some members of this commission, including myself, have felt uncomfortable with the present formula because we feel that the Page 74 October 21,2004 present traffic congestion in Collier County on many roads has become a quality of life issue. The Collier County Commission about four years ago decided to go to the 10-month rule, to exclude two months of the year on the grounds that we have extraordinary traffic mainly during those two months and that we would not -- they wouldn't want to spend a lot of transportation money to upgrade all the roads to have more road capacity than we need for most of the year. I've talked to Don Scott from transportation about this, and it's his impression that our traffic peaks last for more than two months now, and that changing to 12 months wouldn't change the classifications of the roads very much. But even so, using the 12-month system will make our system more in line with national norms and more accurate and perhaps more adequate to our needs and prevent unduly congested roads. So what I would like to ask is that we ask for input from the county transportation staff, and after getting their input, their information, to ask the county commission to reconsider their vote of four years ago, because it seems to me that our traffic congestion is more year-round; in other words, that conditions have changed from the way they were four years ago to change back to the 12-month rule. CHAIRMAN BUDD: Mr. Schmitt, how would it be appropriate for that to be carried forward? MR. SCHMITT: We can do that a couple of ways. Let me offer a couple of suggestions. One, certainly we could do that as a regular scheduled item, if you wish to do that, in somewhat of a workshop environment, which we would go over the history of it and again discuss the merits and why those decisions were made. We could do that as a separate workshop. Or we could do that as part of the upcoming AUIR workshop, annual update and inventory report, since it's very germane to that issue in regards to concurrency and the level of concurrency. And Page 75 October 21, 2004 certainly that's an issue, really, that's within, I think December -- December 6th, 8th, 9th, whatever that date is. I know it's on our calendars and I didn't look. But we could do that as part of the AUIR where we discuss all the concurrency issues in regards to the consistency or at least the compo plan. CHAIRMAN BUDD: Mr. Adelstein? COMMISSIONER ADELSTEIN: I'd like to see this done in the form of a motion, though, and approval by the board so that it carries some weight, it's not just one person making a statement. And if it's possible, I'd like to make that -- have that motion made by you. COMMISSIONER MIDNEY: Yes, I would like to make a motion to that effect, if it's a clear enough motion. CHAIRMAN BUDD: If I understand correctly, you're suggesting that this recommendation be brought forward in the AUIR process, which is coming up in the next -- within the next couple of months, I think. MR. SCHMITT: Yes, it's in December. COMMISSIONER MIDNEY: Yeah, I would like to see that happen so that we could get all the input from staff. COMMISSIONER ADELSTEIN: I'll second the motion. CHAIRMAN BUDD: Very good. MR. SCHMITT: That is a scheduled joint meeting with Board of County Commissioners and the planning commission where we give the annual briefing of the -- all our Category A and Category B -- CHAIRMAN BUDD: Okay, we have a motion and a second. Just a little bit of discussion. I'm in support of that. I think it's an appropriate time, appropriate venue to bring forward that discussion. All those in favor, signify by saying aye. COMMISSIONER CARON: Aye. COMMISSIONER VIGLIOTTI: Aye. COMMISSIONER ABERNATHY: Aye. Page 76 October 21, 2004 COMMISSIONER ADELSTEIN: Aye. COMMISSIONER SCHIFFER: Aye. COMMISSIONER MIDNEY: Aye. COMMISSIONER MURRA Y: Aye. CHAIRMAN BUDD: Aye. Those opposed? (No response.) CHAIRMAN BUDD: Motion carries. Any further business today? Mr. Schiffer? COMMISSIONER SCHIFFER: Russ, we did have that workshop topic. That was an agenda item that we didn't discuss. And there is one topic that I would like, and it may not have to be a workshop, but I would like to do something that gets the flow of information from board to board a little bit tighter. Case in point, we made a motion during the LDC hearings that was regarding the dumpsters and the size, the appropriate size, that motion was never presented to the board as other than a comment that one of the commissioners wanted a, you know, 12-by-18 space, when the reality was that we actually made a motion to amend the wording in the LDC hearing. So I would like us to some -- to sit down with staff or something to figure out a way that we can get all the information from all the different boards so that it's clear as to what the other boards felt. For us, I'd like to see the DSAC and stuff like that come to us where we're seeing exactly what they said. CHAIRMAN BUDD: Okay. Thank you. Mr. Abernathy? COMMISSIONER ABERNATHY: Joe, back when we were discussing, I don't know, the new LDC, I think I mentioned something about the environmental advisory council and their needs for quorums and all of that. That's not an LDC amendment, I don't think, is it? MR. SCHMITT: No. Page 77 October 21, 2004 COMMISSIONER ABERNATHY: But it needs -- MR. SCHMITT: I'd have to turn to the county attorney, but no, it's not. COMMISSIONER ABERNATHY: I still want to staff that sometime. MR. SCHMITT: It's part of the -- well, there is a -- in the LDC there is -- MS. STUDENT: I do not have my book with me, but I do believe it's in Division 5 of the old LDC, and under advisory bodies. And I'm still learning the new one, so -- COMMISSIONER ABERNATHY: Okay. Well, at least we know what we're talking about rather than where it goes. So I'm still interested in that. MR. SCHMITT.: I just want to bring up -- Commissioner Schiffer brought up the issue of the last LDC meeting. And I'm not sure if you're all aware, but when we met with the county commissioners at the first meeting of the LDC, the architectural standards, we'd been directed by the board to come back and to come back with a form of -- not an appeal, but what's the word, Ray? I lost the word now. Deviation process for commercial buildings. You will all have -- had supported staffs position, advice or -- other than Commissioner Schiffer in regards to eliminating commercial buildings from the deviation process. The board directed staff to develop a modified deviation or a deviation process for commercial buildings. In sum, what it will be is commercial buildings less than what they call the big box standard, the 10,000 -- what is big box, 20,000 square feet? COMMISSIONER SCHIFFER: 20,000. MR. SCHMITT: 20,000. So we're -- we'll be coming back to the board with a modified deviation standard or deviation procedure for the commercial buildings. Page 78 October 21, 2004 CHAIRMAN BUDD: Okay. Any other items? (No response.) CHAIRMAN BUDD: There being none, we're adjourned. ***** There being no further business for the good of the County, the meeting was adjourned by order of the Chair at 11 :00 a.m. COLLIER COUNTY PLANNING COMMISSION :RUSSELL A. BUDD, Chairman TRANSCRIPT PREPARED ON BEHALF OF GREGORY COURT REPORTING SERVICE, INC. BY CHERIE' NOTTINGHAM. Page 79