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EAC Minutes 02/02/2005 R February 2, 2005 TRANSCRIPT OF THE MEETING OF THE COLLIER COUNTY ENVIRONMENTAL ADVISORY COUNCIL Naples, Florida, February 2, 2005 LET IT BE REMEMBERED, that the Collier County Environmental Advisory Council in and for the County of Collier, having conducted business herein, met on this date at 9:00 a.m. in REGULAR SESSION in Building "F" of the Government Complex, East Naples, Florida, with the following members present: CHAIRMAN: Alfred Gal Erica Lynne, Ph.D. Irv Kraut Michael Bauer Judith Hushon Ken Humiston, P.E. Michael Sorrell William Hughes Lee Horn ALSO PRESENT: Marjorie Student, Assistant County Attorney Mike Bosi, Zoning and Land Development Review Page 1 ENVIRONMENTAL ADVISORY COUNCIL AGENDA February 2, 2005 9:00 A.M. Commission Boardroom W. Harmon Turner Building (Building "F") - Third Floor I. Call to Order II. Roll Call III. Approval of Agenda IV. Approval of January 05, 2005 Meeting minutes V. Land Use Petitions A. Planned Unit Development No. PUDZ-2004-AR-6015 "Triad RPUD" Section 34, Township 49 South, Range 26 East B. Planned Unit Development No. PUDZ-2004-AR-5967 "Coconilla PUD" Section 17, Township 48 South, Range 25 East C. Conditional Use No. CU-2004-AR-6625 "Wiggins Pass Hotel and Spa CU" Section 17, Township 48 South, Range 25 East D. Planned Unit Development No. PUDZ-A-2004-AR-6876 "Cocohatchee Bay PUD" Sections 8, 9, 16, 17 and 20, Township 48 South, Range 25 East VI. Old Business VII. New Business A. Oustanding Advisory Committee Member Nominations B. LDC Amendments VIII. Council Member Comments IX. Public Comments X. Adjournment ******************************************************************************************************** Council Members: Please notify the Environmental Services Department Administrative Assistant no later than 5:00 p.m. on January 27. 2005 if yOU cannot attend this meetinQ or if yOU have a conflict and will abstain from votina on a petition (403-2424). General Public: Any person who decides to appeal a decision of this Board will need a record of the proceedings pertaining thereto; and therefore may need to ensure that a verbatim record of proceedings is made, which record includes the testimony and evidence upon which the appeal is to be based. February 2, 2005 CHAIRMAN GAL: Can we have the roll call, please. MS. MASON: Mike Sorrell? MR. SORRELL: Here. MS. MASON: Judy Hushon? MS. HUSHON: Here. MS. MASON: William Hughes? MR. HUGHES: Here. MS. MASON: Alfred Gal? CHAIRMAN GAL: Here. MS. MASON: Erica Lynne? DR. LYNNE: Here. MS. MASON: Lee Horn? MR. HORN: Here. MS. MASON: Ken Humiston? MR. HUMISTON: Here. MS. MASON: Irv Kraut? MR. KRAUT: Here. CHAIRMAN GAL: Next item is approval of the agenda. I have some changes to it. Before we discuss the land use petitions, our county attorney is going to make an announcement as to how the public discussion is going to proceed and how we're going to hear the petitions. And after, Marjorie will have staff explain just a brief overview of items 5(B), (C) and (D) and how they relate. Any questions? (No response.) MS. STUDENT: You want me to-- DR. LYNNE: The LDC amendments have been moved, too. CHAIRMAN GAL: Sorry. Go ahead. MS. STUDENT: Okay, thank you. For the record, Marjorie Student, assistant county attorney. Items Roman numeral 5(B), (C) and (D), (B) being the Coconilla Page 2 --.- February 2, 2005 PUD, (C), the conditional use for the Wiggins Pass Hotel, and (D) for Cocohatchee Bay PUD are, you know, different petitions. (B) and (C) involve the same property. (D) involves different property. I understand the question's come up for some members of the public wanting to address, one, the item having to do with one piece, and then just saying well, that carries over into item (D) as well. Because they're separate pieces of property, we have a record on each petition, and so we would advise that members of the public present their issues on items (C) and -- or (B) and (C), and then later-- and (D), to preserve the record and make sure that the record is, again, preserved appropriately. Then I understand that items (B) and (C), because they involve the property -- and this is up to the council to vote on it -- because they involve the same property, they may be heard together. They're mutually exclusive. The Board of County Commissioners in the one case could deny the rezone, then the board sitting as the Board of Zoning Appeals could also deny the conditional use. So they are __ involve the same piece of property, but they're a different type of petition. And it's up to the council if they want to hear those two together, since they involve the same piece of property. And I don't see any problem with that. So I just want to put those things on the record. CHAIRMAN GAL: This is how we will hear it, just for the public's knowledge. We'll hear land use petition identified as (A) first, have public comments on it. We'll vote on it. And then we'll have (B) and (C), we'll hear that petition, one after another. And then we'll have public comments on (B) and (C), and then we will make separate motions -- MS. STUDENT: That's correct, you need separate motions. CHAIRMAN GAL: -- on (B) or (C), approval or denial. And after that, we will hear petition (D) and we'll have public comments as to (D). And then we will have our discussion and make Page 3 February 2, 2005 our motion. Under new business, item (B), LDC amendments, is that still on the agenda? MS. MASON: No, that will need to be moved to the next month's meeting, the March 2nd meeting. CHAIRMAN GAL: And also for the public's knowledge, you need to sign up if you want to speak, and we will impose a five minute time limit on the speakers today. MS. STUDENT: Mr. Chair, I'm going to need a motion on the LDC amendments to -- because they do appear on this agenda, to -- to formally move them to the next meeting. MR. HUGHES: I make a motion to move that to the next meeting. MS. HUSH ON: Second. CHAIRMAN GAL: All those in favor, say aye. MR. SORRELL: Aye. MS. HUSHON: Aye. MR. HUGHES: Aye. DR. LYNNE: Aye. MR. HORN: Aye. MR. HUMISTON: Aye. MR. KRAUT: Aye. CHAIRMAN GAL: Aye. All those opposed? (No response.) CHAIRMAN GAL: That motion passes unanimously. A motion to approve the agenda. DR. LYNNE: I so -- MR. HUGHES: So moved. DR. LYNNE: Second. CHAIRMAN GAL: All those in favor, say aye. MR. SORRELL: Aye. Page 4 ----~..~_.~ . " February 2, 2005 MS. HUSHON: Aye. MR. HUGHES: Aye. DR. LYNNE: Aye. MR. HORN: Aye. MR. HUMISTON: Aye. MR. KRAUT: Aye. CHAIRMAN GAL: Aye. All those opposed? (No response.) CHAIRMAN GAL: Motion passes unanimously. Next item is approval of the January 5th, 2005 meeting minutes. Are there any changes? DR. LYNNE: Yeah, I've got one. On -- when we were discussing the -- the school and moving the -- let's see, which project is it here? The Seacrest Country Day School. I was suggesting that the school rescue the plants, the listed species plants in the areas that are going to be destroyed and put them in the preserve area. In the minutes, it seems to indicate -- it just says Ms. Lynn suggested it would be a good project for the school, but it doesn't say what proj ect. In fact, previous to that it just mentions destroying the plants species. So I would prefer if that was clarified. My suggestion -- Dr. Lynne suggested that listed plants located in natural areas slated for destruction be rescued and transplanted into the preserve area, and that this could be a good project for the school to undertake as a learning and environmental exercise. CHAIRMAN GAL: I need a motion to approve the minutes as amended. MR. HUGHES: So moved. CHAIRMAN GAL: Is there a second? MR. SORRELL: Second. CHAIRMAN GAL: All those in favor? MR. SORRELL: Aye. Page 5 ~'-- '-~________'_m""""'__'_"H~"""__"'_'_+_"M' ..~___ February 2, 2005 MS. HUSHON: Aye. MR. HUGHES: Aye. MS. LYNNE: Aye. MR. HORN: Aye. MR. HUMISTON: Aye. MR. KRAUT: Aye. CHAIRMAN GAL: Aye. All those opposed? (No response.) CHAIRMAN GAL: Motion passes unanimously. Our next item is the land use petition Triad RPUD. Are there __ does the board have any ex parte communications to disclose? MR. HUGHES: Just reception of e-mails pertinent to the entire group. CHAIRMAN GAL: No, I'm talking about the first -- MS. HUSHON: The first one we haven't got e-mail. CHAIRMAN GAL: Does anyone have a conflict of interest? (No response.) CHAIRMAN GAL: All those who are going to testify as to this petition, please raise your hand be to sworn in. (All speakers were duly sworn.) MR. NADEAU: Chairman Gal, members of the council, good morning. My pleasure to be before you this morning. Today we're going to be looking at a small residential infill type of a project. It's currently known as the Triad RPUD residential planned unit development. And it is PUDZ-2004-AR-6015. What we're proposing to do is to use the incentives within the Growth Management Plan to convert some commercial zoning where it's found to be inappropriate for commercial land uses, and we're going to convert that to a residential development. The compo plan, or Growth Management Plan provides for a density of up to 16 dwelling units per acre for that conversion of Page 6 February 2, 2005 commercial. The petition, as advertised, is requesting 14 dwelling units per acre. The -- there will be some significant decrease in the density on that project, given some negotiations that are ongoing with the residents of the neighborhood. We've been in very diligent discussions to try to appease their concerns, and we feel it's going to be finalized probably tonight. So we can present that to the planning commission tomorrow. You will see some densities that are less than 14 dwelling units per acre in this presentation. They are part of the discussions. They have not been finalized yet, but I can assure you, it will be something less than 14. The subject property is located on the north side of Radio Lane, and it's adjacent to Palm Springs Boulevard, approximately one- quarter mile east of the intersection of Radio Road and -- Radio Road and the intersection with Davis Boulevard. The product type that's proposed on the project is going to be an upper entry level or a second home. There will be condominiums. They won't be for rent, they'll be a for sale condominium product. With regard to the biotic character of the property, I'll turn your attention here to this vicinity map. Subject property lies right here. All the historic hydrological connections have been lost through the impoundment of the property by Palm Springs Boulevard, 1-75, the Radio Lane improvements, and the improvement of water management of the Saddlebrook Village PUD that lies immediately to the east. The project is primarily disturbed lands. It's a pine canopy with some Palmetto understory and some emergent wire grass. There was a small depressional area approximately two-tenths of an acre that was claimed by the South Florida Water Management District as their jurisdictional wetlands. You can see it up in the top left, or middle left portion of the project site. Page 7 -~-~_.~,.-.". February 2, 2005 The project site has -- of the 10.75 acres of the project, only 8.92 acres is defined as native vegetation, pursuant to our Land Development Code. And the LDC requires that a minimum of 1.34 acres of the native vegetation be retained. Being conscious with compatibility with our neighbors to the north, we have designed the project to provide for a 1.6-acre native preserve area, which, if you take a look at the next side, there is a IS-foot separation from the project boundary to the preserve area, and that would allow any further compatibility buffering in the forms of berming and walls that would not encroach into the conservation area. Access will be from Palm Springs Boulevard, with an opportunity for construction access coming off of Radio Lane, so as to lessen the impacts on Palm Springs Boulevard. There is adequate roadway capacity for the project. There are __ utilities are in place with sufficient level of service. And our -- the project sponsor, Palm Springs, LLC has made a concerted effort to be conscientious of both the disturbed site, the need for native vegetation, the incorporation of that native preserve on the north boundary to ensure compatibility with the neighborhood. And with that, if you have any specific questions related to the biotic character of the site, I have Mr. Mike Myers, vice president of Passarella and Associates, a very qualified ecologist, that would be able to answer any questions that you may have on that. With that, council members, I humbly request your unanimous recommendation of approval to the board for the adoption of this PUD. DR. LYNNE: Could somebody from staff remind me why we give a density bonus for conversion from commercial to residential? MR. BOSI: Good morning, council. Mike Bosi, zoning and land development review, principal planner. I'm charged with shepherding - this proj ect to the board. The reason why the Growth Management Plan allows for a ,- Page 8 February 2, 2005 density bonus of conversion of commercial to residential is in the category of intensities of different land uses, commercial is a much higher intensity compared to residential, in terms of impact upon surrounding areas, impact upon the systems and the infrastructure that makes -- that supports various land uses. And when you go from the higher intensity to a lower intensity residential, with the recognition of the downgrading or the lessening of the intensity of the project, therefore a higher number of residential units is allotted for that conversion. It rewards that type of downzoning with a higher density. DR. LYNNE: Thank you. MR. NADEAU: If I may also add to Planner Bosi's explanation to you, Council Member Lynne, the -- the C-l property does not meet the locational requirement of the Growth Management Plan for commercial, so that's why the incentive is also included in the Growth Management Plan. MS. HUSH ON: I'd like to ask your representative, your environmental person, a question. MR. MYERS: Good morning. MS. HUSH ON: Good morning. MR. MYERS: Mike Myers for the petitioner. MS. HUSH ON: Okay. This has a pine canopy, you said, over most of the property? MR. MYERS: That's correct. MS. HUSHON: That's correct. Okay. I assume that you have inspected the property and there are no hollow old pine trees? MR. MYERS: Yes, ma'am. MS. HUSHON: You're in RCW territory, so-- MR. MYERS: That's correct. We had done -- performed a 13-day RCW survey on the property and none were found. MS. HUSH ON: Okay. You just had the right environment that might have a tree. Page 9 " ....._-""-~--- February 2, 2005 MR. MYERS: Well, the trees are younger, so it's -- MS. HUSHON: Younger, okay. Okay, thank you. DR. LYNNE: It looks to me from your diagram here that the little wetland area is not going to be in the preserve. MR. NADEAU: A portion of it will be in the preserve, Council Member Lynne. We will be going through the environmental resource permit process with South Florida Water Management District. It is a -- it's a small depressional area. Could be from scouring, some fill. Don't really know. But we will be required to go through the ERP process with the district. DR. LYNNE: But you couldn't have designed it -- I mean, it looks to me like you've got the preserve practically wrapped around that little wet area. You couldn't have designed your project to incorporate that into the preserve area? MR. MYERS: The wetland is very small. Its functional value is so limited that the South Florida Water Management District allows for the fact that anything under a half acre in size, typically it doesn't even require mitigation. So they recognize the fact that areas this small and isolated and disturbed, you know, are -- we can impact them. MS. HUSHON: This was an already disturbed site and that was probably just the lower area. It isn't a true natural wetland. It's sort of a created wetland by accident, probably. MR. MYERS: It's a small remnant area. It has very little value. CHAIRMAN GAL: Comments? (N 0 response.) CHAIRMAN GAL: Make a motion? MS. HUSHON: Move we approve this PUD, Triad PUD. MR. HUGHES: I have one more question, if I may, before we do that. Would the county staff, in their congruency of these preserve areas, the location of this preserve area make sense for future Page 10 February 2, 2005 development on the other side of that property line, and would they be contiguous? MS. SANCHEZ: Cristina Sanchez, Collier County Environmental Services. I don't recall what's next door. I'm trying to find a -- there's single-family homes to the north of the site. There's Palm Springs Boulevard to the west. And there is a preserve area to the east that I think will be recreated. Right now it's just cleared area with a lake. I think given that the existing road that goes through the property, it made more sense to preserve the area that's already vegetated on the north side of the property. And it just made more sense to preserve that area, as opposed to trying to recreate the road and recreate the area that's already cleared along the east side, just to join up with an area that's already cleared. And also, although there's pine canopy throughout the site, that north area of the site had more diversity in the ground cover vegetation than the area along Saddlebrook Drive. It seemed to have a bit more diversity. It just seemed to make more sense to preserve that area. MR. HUGHES: All right. So we've done the best that we can with the layout. The area is so busy, noisy with traffic and everything else, and the site is so small, it's almost negligible what it would provide anyway. MS. HUSH ON: That's right. MS. SANCHEZ: I feel that the area that was chosen to be preserved made sense out of the whole property. I'm not sure if that's answering your question, but -- MR. HUGHES: Thank you. CHAIRMAN GAL: There's a motion to approve the petition. Is there a second? DR. LYNNE: I'll second it. Page 11 February 2, 2005 MR. HUMISTON: Second it. CHAIRMAN GAL: All those in favor, say aye. MR. SORRELL: Aye. DR. HUSHON: Aye. MR. HUGHES: Aye. MS. LYNNE: Aye. MR. HORN: Aye. MR. HUMISTON: Aye. MR. KRAUT: Aye. CHAIRMAN GAL: Aye. Those opposed? (No response.) CHAIRMAN GAL: Motion passes unanimously. MR. NADEAU: Thank you, council members. CHAIRMAN GAL: The next item will be (B), and then item (C) on the two petitions. First, has anyone from the board had any ex parte communications with respect to items (B) and (C)? MR. HUGHES: E-mails. DR. LYNNE: E-mails. CHAIRMAN GAL: Let's -- we'll -- MR. HUMISTON: I have. The applicant, Ecco Venture Wiggins Pass is one of my clients, and, in fact, I'm involved in this project. It's in the design of the boat basin and the marina. So I will abstaining from voting on this item. But I would like to be able to partake in the discussion. CHAIRMAN GAL: Okay. Did you say you had -- DR. LYNNE: I've spoken to -- Nicole Ryan has spoken to me about this project. And then, historically speaking, I've been to meetings in the North Naples property owners association where these projects were discussed. I've also signed a petition to save the bald eagle nest. Page 12 .----...-- ----.....- February 2, 2005 CHAIRMAN GAL: I spoke with Nicole Ryan regarding the letters she had written and delivered to us, and I had a conversation with Joe Moreland, who is the president of the Estuary Conservation Association, Inc. MS. HUSHON: And I've spoken with Nicole Ryan. MR. HUGHES: Yes, same thing. I've had contact with Nicole Ryan pertinent to this issue, several e-mails, and I visited this site approximately one year ago. CHAIRMAN GAL: Why don't we swear in the witnesses. (All witnesses were duly sworn.) CHAIRMAN GAL: Could I just ask from staff for just a brief overview of the relationship between Coconilla, Wiggins Pass and Cocohatchee Bay PUD? MS. MASON: Both of these petitions will be presented at the same time. The Coconilla PUD would be a rezone from C-4 to a residential PUD, and the second petition is a conditional use that's allowed under commercial, which would be for a hotel and the amenities associated with that hotel. They are two completely separate petitions and need to be treated as such. MR. YOV ANOVICH: Good morning. For the record, Rich Y ovanovich, representing the petitioner. I think your question was between Coconilla and Cocohatchee Bay. And they're totally unrelated, separate developers, no interrelationship between the developers. They're totally separate projects. Again, I'm Rich Y ovanovich with the law firm of Goodlette, Coleman and Johnson. I'm the land use attorney on this particular matter. With me today are Ed Oelschlaeger and John Demilio, both from EcoGroup; Bob Mulhere from RW A, who's the planner on the project; Andy Woodruff from Passarella and Associates, who is our ecologist; and Jo Tucker with Mactec -- I was worried about her new firm name, Page 13 February 2, 2005 I forgot her last name -- Jo Tucker with Mactec, who can answer some of the contamination questions we have on the property. I'm going to briefly talk about the proposals. Bob's going to into a little more -- Ed is going to go into a brief overview of EcoGroup, because some of you were here about last year when we came through with a different proposal, but some of you were not, so we thought it would be important if you get to be familiar with the developer. Then Bob will take you through the two proposals in a little bit more detail. Andy Woodruff will address the environmental concerns and questions, and so will Jo Tucker. It might be helpful if you can hold your questions until we make our presentation, and then if we didn't cover your issue, please feel free to ask any questions. We'll do both. We'll talk about both petitions at the same time, but as Ms. Student pointed out, they're totally separate petitions. One's a rezone, one is a conditional use. The board can approve one or approve neither. The board will have that decision. The two proposals generally are, one is a 95-unit residential PUD that will be two 10-story mid-rise buildings, with a maximum height of 120 feet. There will be 29 marina slips, a fueling station and a ship's store. The second alternative is a conditional use. The property is already zoned C-4. As your staff report pointed out, in C-4 to do a hotel you must go through the conditional use process. This was a change that occurred in the Land Development Code a few years back. If you're not in an activity center, you must go through the conditional use process. The destination resort hotel would have 230 rooms with your typical accessory uses for a resort hotel. There will be a restaurant, there will be a lounge, there will be meeting space and ballroom space. There will be retail shops, there'll be a spa, there'll be a 47 -slip Page 14 February 2, 2005 marina, and there will also be the fueling station and ship's store. Similar to the petition you had before you, this property is located in an area that when the 1989 camp. plan was put forth and ultimately adopted, it was not a location that commercial was encouraged to be located. In fact, commercial was encouraged to be located in activity centers. However, there was an existing marina on the property at the time, and that's why the commercial use was grandfathered in. The comprehensive plan talks about converting those types of commercial that are in locations where the county didn't want them to be to residential, and they offer a density bonus to entice a property owner to give up the valuable commercial rights and convert it to residential rights, which the board determined was more appropriate in those locations. That's what the first petition before you does, it converts commercial to residential, at a density less than the maximum of 16 that we could do. The -- as your staff report points out, our eagle management plan and everything else concerning this project is consistent with the comprehensive plan. We'll get into the details about that. But at the end, we're going to request that you transmit your recommendation to the Board of County Commissioners consistent with your staff report, recommending approval of both projects, which ultimately they'll __ the board will ultimately vote on. With that, I'm going to turn it over to Mr. Oelschlaeger to give you a brief overview of EcoGroup and then we'll continue on. MR. OELSCHLAEGER: Good morning, council members. For the record, I'm Ed Oelschlaeger, the head of EcoGroup, Inc. My wife and I have had a home here in Naples for the last 1 7 years and currently still do. I wanted to just take you through very quickly what we've done Page 15 February 2, 2005 in this community. We're quite proud of the projects that we have developed, and this project, whichever way it goes, whether it ends up being a residential property or the hotel property, the standards by which we run our company and the proj ects that we produce will be similar to the standards that we've adhered to for everything that we've done. The first project that you may be aware of is Pelican Isle Yacht Club, which happens to be a neighboring property to the former marina site. This property was 136 units and three 10-story buildings over parking, 190 boat slips and a 20,000 square foot yacht club. We also did Barefoot Beach Club on the north end of the county. This was back in the early Nineties. Sancerre is the most recent project that we completed a year ago down on Gulfshore Boulevard in the City of Naples. Small 23 unit, very high-end project. Sanibel Golf Village on Sanibel Island, also a relatively small unit, project of 36 units. Vizcaya on Longboat Key. This was also a very high-end project. At the time it was the highest end project on Longboat Key. Again, a 36-unit project. And lastly, The Tides Beach Club in our sample here is a project we did on the beach up in North Redington Beach in Pinellas County. With that, I will just simply ask you for your support on both of these petitions. The county commission will be the ones that determine -- ultimately determine which project they choose to approve. And thank you for your time. I'll be followed by Bob Mulhere. MR. MULHERE: Thank you. Good morning. For the record, Bob Mulhere with R W A. I'm going to go over both of the petitions fairly briefly and try to explain some of the differences in the site development plan between the residential proposal and the conditional use for the hotel. Page 16 February 2, 2005 And I think I'm going to use this power point program here, as soon as I get to the -- well, I don't want to take too much of your time. Okay, I'm just going to leave that rendering up there. I think as Rich indicated -- first of all, I assume that everyone is familiar with the location of the project. If not, it's at the terminus of Wiggins Pass and Vanderbilt Drive, and so it's directly on the Gulf of Mexico. It's the site of the former Wiggins Pass Marina, which had up to 450 dry boat slips. Quite a bit of activity at that marina. As Rich indicated, in terms of the residential PUD, the proposal is for up to 95 dwelling units. Rich indicated that it was less than the maximum lot bonus that we could ask for, which is 16 units per dwelling acre. The actual density per acre in the residential component is 9.5 dwelling units per acre. Interestingly enough, that number was arrived at actually by the staff in a previous application, and basically they took the base density of three dwelling units per acre and then took -- subtracted that from the bonus of 16, came up with 13, and reduced that by half, six and a half plus three, nine and a half. Our actual density is slightly less, 9.48 dwelling units per acre. The residential PUD will also contain a marina with 29 slips. I'd like to step over to the board here, talk a little bit about some of the setbacks and other issues. Are we on? No. That's working, okay. The residential PUD provides for a very generous setback from Vanderbilt Drive. The -- there are water features that you can see perhaps better in the rendering, but we can go back to that. And they're substantial building setbacks from Vanderbilt. This building, which is the closest point, is over 200 feet from Vanderbilt Drive. I did want to point out this public use tract, which you'll see on the PUD master plan. The public use tract is intended to be dedicated to the county. And we will develop, through the site development Page 1 7 .- ~ '---,'----'..,-, ......_._. February 2,2005 plan, a revised parking and traffic flow pattern for the county park to increase the number of boat trailer parking and vehicle parking spaces. Initial indications are that we can increase significantly those parking spaces by in excess of 50 spaces, but we haven't done a detailed site development plan for that yet. The other benefit is that the public will be able to access the light at Wiggins and Vanderbilt. Presently it's a little bit difficult to get out of the park when you're trailering a boat and you want to head north. It's an unprotected turn. So obviously being able to access that light will be a benefit. I'd like to move on to the conditional use and discuss that briefly. Figure out how to end this -- minimize it maybe? Okay, there we go. Thank you. Talking about the hotel, as Rich has indicated, 230 rooms. Slightly more boat slips, up to 47 boat slips. The hotel will contain all kinds of typical uses that you would normally see in an upscale resort, destination resort hotel: spa, ballroom, restaurants, shops. Both of the options will have a fueling components and a ship's store. I want to step over to the board here, if this microphone works, and discuss a little bit about the conditional use site plan. I think you can see that the hotel site plan actually has greater lot coverage than does the residential. Nevertheless, of course, there will be very generous landscaping along the perimeters in order to make it a very attractive, tropical looking resort. Parking is located primarily under the building. There is some surface parking. I should mention to you that the site is entirely cleared. I think you saw that indicated in the staff report. The primary differences between the hotel and the residential use, and I think the differences that probably folks that live in the neighborhood will potentially address for you and for others, the planning commission and the board, I think are that the residential use Page 18 February 2, 2005 generates significantly less traffic. The hotel use will generate about the same traffic that was previously generated by the marina. The residential use will generate significantly less; no more than about 25 percent of the traffic than previously was generated. I think some of the other issues are that the hotel as a use generally will attract -- will have some other components that the residential use will not. Obviously there will be, in addition to the greater traffic, restaurants and the types of impacts associated with the restaurant, the spa and those types of things. The difference again is that the hotel is a permitted use in the C-4 zoning district. And just to give you a little bit more information on a conditional use, a conditional use is a use that is permitted and generally would be permitted in that district, but may not be permitted without some further review, based on conditions associated with that use. For example, traffic may be an issue, or there may be some environmental issues. So a condition for -- hotels are deemed to be permitted by right in activity centers, and conditional uses when located outside of activity centers in the C-4 district. I think following me Andy Woodruff will discuss the environmental issues. I'm certainly not qualified to discuss those with you. I think basically there are two issues related to the site: One is manatee protection and the other one is the bald eagle's nest. We are located partially within a secondary zone. And I'd let Andy Woodruff speak to those issues. And we're happy to answers questions, I think, collectively at the end of this presentation. Thank you. MR. WOODRUFF: Good morning. It's on now? Okay. Good morning. I'm Andy Woodruff with Passarella and Associates. We're the environmental consultant for both of these petitions. We are responsible for preparation of the environmental impact statement that you all have copies of. Page 19 February 2,2005 The project site, as Bob alluded to, abuts the Cocohatchee Bay PUD, which is located to the north of us. Undeveloped lands are located to our west side. The Pelican Isle Yacht Club and the Cocohatchee River Park are located to our south, and Vanderbilt Drive is located on our east. The site is, as you can see, the site of the previous Wiggins Pass Marina, and is entirely developed in its current state. It has approximately 10 acres of uplands on the property associated with the previous marina, and approximately four-tenths of an acre of open water that were used for docking and launching of vessels in the manna. There are no native habitats located on the property in the uplands, and there are no sea grasses or mangroves located in the open water habitats on the property. Both of the proposed projects are fairly similar with regard to impacts on the proj ect. For the residential, there is a small amount of dredging associated, maintenance dredging associated with the existing marina basin, and also some configuration of the existing seawall. There will also be an expansion of the boat basin. That boat basin will be expanded into the upland areas adjacent to that boat basin. And then similar to the hotel and spa, there is some associated dredging and realignment of seawalls in the existing boat basin, and there will be an expansion of the boat basin into the uplands a little bit larger in size than associated with the residential component. The project site doesn't provide any nesting or foraging habitat for listed species. Manatees are known to occur in waters -- in the open waters of the project and adjacent in the open bay. And we do have eagle nest 19, which is located approximately 830 feet northwest of the project site. With regard to the manatee, the applicant has prepared a Manatee Protection Plan in accordance with Collier County standards, to Page 20 ~._,..,,----_. February 2, 2005 increase boater awareness for the projects. With regard to the bald eagle, the bald eagle's nest has been documented since 1990 by the Florida Fish & Wildlife Commission. That nest has been active, for, I believe, all but one out of the last 14 nesting seasons, and it has produced young, either one or two, for most of the years that it has been active. So it has been a very active nest. The eagles have demonstrated a tolerance to the activities and development that has encroached into its secondary zone. We've got Vanderbilt Drive on the east, we've got the Wiggins Pass Marina, which is the development -- the redevelopment that we're proposing. And that marina's been there for, I believe, over 30 years. And then you have Arbor Trace, which is located partially within the secondary zone further to the north. And there's also been some recent clearing associated with the Cocohatchee Bay PUD, which you can see on this aerial, that occurred up to the 750 primary protection zone. Our project is located entirely within the secondary protection zone, and also outside of the secondary protection zone as well. The project will occupy, like I've said, an existing developed site. It's not located within the primary protection zone. And if you look at a percentage-wise of the occupation in the secondary zone, it's about seven percent of what exists there in the secondary zone for the existing marina. The applicant is proposing to do construction during the nesting season. The nesting season is October 1 to May 15. Non-nesting is approximately four and a half months out of the year. To try to construct -- deconstruct a project that's existing and redevelop within that time frame is just not an economic feasibility to do. We have prepared bald eagle management plans for the project to try to address construction activities during the nesting season, and some of those proposals that we've prepared for this proj ect have Page 21 ---,,--,'.,.~._,,- .... ..-----.- February 2, 2005 included monitoring eagle behavior during the nesting season, in accordance with the U.S. Fish & Wildlife Service guidelines; removing the existing buildings, the existing Wiggins Pass Marina buildings during the non-nesting season; erecting cranes that would be used for construction activities during the non-nesting season; limitations on building heights -- and I can talk about that in a little bit; using auger cast piles for construction of the building foundations, as opposed to doing pile driving activities, which are particularly troublesome around eagles' nests; and limiting the excavation of the upland marina basins and limiting the pile driving activity for the docking all during the non-nesting season. We're also proposing to shield our exterior lights on the north side of our project from the nesting zone. As you're aware, the U.S. Fish & Wildlife Service has issued a biological opinion for this project that allowed exterior construction activity to occur during the nesting season. The U.S. Fish & Wildlife Service based that opinion on a project that we brought before you a year ago that included a residential building to 22-story over parking and a 52 wet slip marina. Both the building height and the marina wet slips have both been reduced in the current residential plan and in the hotel and spa plan, which represents a further minimization of the effects to listed species. The county bald eagle protection plan that we've prepared that's in your EIS for both of these petitions includes all of the protective measures that were included in the U.S. Fish & Wildlife Service bald eagle plan, as well as providing additional protective measures. And it's more restrictive on the building height that was proposed in the U.S. Fish & Wildlife Service biological opinion. Furthermore, I've passed out, I believe, to most all of you, a copy of a December 15th letter from the U.S. Fish & Wildlife Service regarding construction activities that they are allowing to take place now within the secondary protection zone. And if you can refer to Page 22 February 2, 2005 that document for just a second. It's entitled Clearance to Proceed with Construction Activities Adjacent to Bald Eagle Nests. If you don't have a copy, I can provide one to you. And this letter is directed toward both individual single-family homes and any project in the secondary zone of a bald eagle's nest. About midway through the first page of this document it states: This letter provides applicants guidance and subsequent clearance to proceed with construction for the following types of activities within a bald eagle nest territory. And the second item underneath that says: All development in the secondary protection zone, 750 to 1,500 feet of bald eagle nest trees, which is our proposal. It goes on to make some recommendations as to how they would prefer you to do that activity within the secondary zone. And it says: We recommend that exterior construction activities and site work in the primary and secondary zones be conducted outside of the nesting season. And then it says: In the event that site work and exterior building construction in the secondary zone is not completed during the nesting season, the Bald Eagle Monitoring Guidelines, September, 2002, should be initiated. Those are monitoring guidelines that we've already agreed to adhere to as part of our bald eagle management plans. It also goes on to say that we discourage heavy construction activity during the nesting period, which we've also agreed in our management plans, by deconstructing the existing buildings during the non-nesting, the use of auger cast pilings, restricting our pile driving activity, padding the lids of our dump trucks that will be utilizing the site. That concludes my presentation. I do have questions on the staff report, which we can either get into -- do it later? Okay. At this time I'll pass it on to Jo Tucker, who will be discussing some of the hazardous waste issues on the project. MS. TUCKER: Good morning, Council. I'm Jo Tucker with Page 23 February 2, 2005 Mactec Engineering. The Wiggins property was a full service marina for over 30 years. And this type of land use can and frequently does lead to some negative environmental impacts, from activities of concern, including boat repair and engine repair work, forklift maintenance and forklift use, the general use and storage of petroleum products and other chemicals, boat cleaning and painting, which occurred on this site, drips and leaks from boats that are stored both indoors and outdoors on pervious surfaces, and stormwater runoff from contaminated areas. A number of these activities did lead to contamination on the site. We have -- is that on ? Yeah. We have soil contamination by petroleum hydrocarbons and metals in the area of the boat painting, which was on this part of the site; in the areas within and around the boat barns, the three boat barns; in the area next to the existing shop, which was the building in the central part of the site; and in the areas that captured stormwater runoff from these other areas, which were down here along the marina basin. We have an area of groundwater contamination back here east of the existing shop where the groundwater's impacted by MTBE, which is a fuel additive. And we have some concentrations, relatively low but existing, in the sediment just adjacent to the seawalls. EcoGroup is proposing to remediate the site. The state defines the remediation goals in terms of the proposed land use of the site. There's a different goal for soil cleanup for residential land use than there is for commercial land use. And the standards are quite different for some of the compounds that we're dealing with at the site here. As an example, the standard for copper, if you are dealing with a residential site, is 150 parts per million in soil. If you have a commercial site, the standard jumps up to 89,000 parts per million in soil. The same kind of difference occurs for total petroleum Page 24 '" . _.-.._."'".~--_._--_. February 2, 2005 hydrocarbons, and there are differences, some more, some less for some of the other metals that we're dealing with at the site here. So depending on whether the project goes forward as a residential project or a commercial use, we will have different cleanup goals to apply to the site. Many of the on-site areas that are contaminated are in between the two sets of goals. So if we went forward as a commercial land use, the cleanup would not be as strict at the site as it will be if we go forward as a residential land use. So from an environmental point of view, the residential land use has some advantages in terms of the ultimate outcome of the site for remedial purposes. Thank you. MR. YOV ANOVICH: We did have a couple of comments to the staff recommendations, and I'll deal with the Page 8 of 10 on the residential staff report first. Comment number four would require us to go back and modify our biological opinion to address, you know, .8 acres of mangroves. What we're not proposing is -- in your staff report, we're no longer proposing to do those improvements. There is no need for us to go back and modify our biological opinion to delete that from our overall project. So we don't believe that that's an appropriate requirement for us to go forward with our residential project. And if you need more detail on that, Andy Woodruff can address that. Jumping over to the resort hotel staff report on Page 7, again, the first recommendation is that we go forward and modify our biological opinion to address the .82 acres that we're not going to create anymore. And again, we don't think that that's necessary. And then on stipulation No.5 that deals with the removal of the underground storage tanks, the last sentence says: Any required mitigation shall be completed prior to SDP approval. We don't think that's necessary. There are already regulations in effect on how we Page 25 ---.. February 2, 2005 need to remove this stuff. It makes no sense to tell us we can't go forward with some of our other work on the site while we're addressing these situations. There are already adequate safeguards in place and rules and regulations to address this issue. This requirement, from our perspective, makes absolutely no sense, and it's an onerous requirement, and further delays our ability to go forward with the project. So with those two modifications -- you got some more -- is that in there? I didn't see it. And Ken Humiston can probably handle this question better. The draft issues with the boat, we addressed that last time. We'll do appropriate notification as to what is appropriately dredged for and what size boat vessels can use the pass, and we'll comply with the design levels and make sure that people know about that. I'm not really sure what the goal of this draft restriction language was in the staff report. But we addressed that last time and we'll have appropriate signage for people to know what type vessels can safely navigate in that area, similar to the regulations that are in place for Pelican Isle Yacht Club, right next door. So with that, we're comfortable with your staff report. Your staff obviously is recommending approval of both projects. We're available to answer any questions, and obviously we'd like the ability to respond to any public comment that may come after our presentation and after the staffs presentation. CHAIRMAN GAL: I had a quick question. MR. YOV ANOVICH: Yes, sir. CHAIRMAN GAL: You had the two issues with the stipulations in the Coconilla staff report? MR. YOV ANOVICH: Correct. CHAIRMAN GAL: And then were there any in the -- I don't have Wiggins Pass. MR. YOV ANOVICH: They're the same. And when I talked Page 26 --"-'~----" -.,',- ------- February 2, 2005 about -- the second one, Mr. Gal, was when I was talking about the resort hotel. That's where the stipulation was that we couldn't go forward with our SDP until we had cleaned -- until we addressed all the storage tank issues. That doesn't appear in the residential, but it does appear in the hotel. But other than that, the comments I made apply to both staff reports. CHAIRMAN GAL: Any public comments? Questions? MS. HUSHON: I would like you all to address what happens if the Audubon observer says that the nest is being adversely affected at the time when you have decided to continue construction during the nesting season. MR. WOODRUFF: If I could direct your attention to the bald eagle management plan. You can pull either document out. They should be fairly identical. And I believe it's item 14 on that management plan. MS. HUSHON: Which appendix is that, please? MR. WOODRUFF: I can find that for you in one second. Exhibit F. I'm in the RPUD. Page F-3. Item 14, it states: If the U.S. Fish & Wildlife Service approved monitor observes any construction related activities that elicit an abnormal behavior of the adult eagles or their chicks, that construction activity shall immediately cease and will not reinitiate unless the construction activity is modified to the extent that it no longer elicits an abnormal behavioral response or the chicks are capable of fully sustained flight. MS. HUSHON: May I ask who that monitor reports to? MR. WOODRUFF: The monitor reports to the U.S. Fish & Wildlife Service. The monitoring reports, we've also agreed to provide copies of those to the Collier County chapter of the Audubon Society . CHAIRMAN GAL: I had a quick question while you're up there. There's a letter, a biological opinion from the Fish & WildlifeP Page 27 February 2, 2005 Service dated January 27th, 2004. And it had, under item called terms and conditions, it says: In accordance with the inter-agency cooperation regulations, these terms and conditions must be complied with to implement the reasonable and prudent measures. And it has as number two: The applicant must make every effort to conduct construction activities that are closest to the nest tree during the non-nesting season. I don't see that in the bald eagle management plan. MR. WOODRUFF: It's part of our permit that we have to get for the proj ect, so -- CHAIRMAN GAL: So construction activities will occur first closest -- MR. WOODRUFF: That's what they've requested that we do. CHAIRMAN GAL: -- during the non-nesting season __ MR. WOODRUFF: During the non-nesting season, correct. CHAIRMAN GAL: And then what happens when -- like, for example, on the residential, the Coconilla project, there were two buildings. There was a northern building. How long would that take to construct? MR. WOODRUFF: Twenty-four months, both buildings constructed at the same time. CHAIRMAN GAL: How long would it take for the outer shell of the buildings to be constructed? MR. OELSCHLAEGER: This is Ed Oelschlaeger, for the record. I'm not quite certain, but my estimate there would be that that would probably be about 12 to 14 months. MS. HUSHON: Would any activity on that outerior (sic) shell cease during nesting season, or are you not anticipating stopping it at all? MR.OELSCHLAEGER: We would not anticipate stopping, other than the activities that were previously described that we would Page 28 February 2, 2005 not do during nesting season. That would be the dredging activity and driving of pilings. But the construction activity, in terms of the rest of the activities would need to proceed unless we ended up with a disturbance, and then we would adhere to what the management plan said. One other thing, if I might comment. Some of the provisions of this eagle management plan are very unique in what we worked out with the Service. And that is, we are going to do things that have not been done before; most notably, working with the subcontractors and all the employees that will be on this job with an educational and training program to make them aware of the sensitivity of noise and what that does to the wildlife. The other thing that -- there was one other -- oh, the one other thing that is a major issue is dump truck tailgates. And we have __ because it sounds like a rifle shot, and that's what we're told by the biologist. But we have agreed to pad those tailgates to prevent that type of noise from occurring. So there's some unique things that are being done here in response to protecting the eagles. MS. HUSHON: Will you be attempting to have more of your loading, unloading, heavy construction type things occurring on the southeast portion of the site, which is furthest from the eagle's nest? Are you going to -- MR. OELSCHLAEGER: Yes, ma'am. MS. HUSHON: -- do a staging that will help you to protect the eagle in that way? MR. OELSCHLAEGER: Indeed we will. That's correct. CHAIRMAN GAL: Any questions? MR. SORRELL: I have a question. It was stated earlier that the normal nesting season runs from October to May? MR. WOODRUFF: That's correct. MR. SORRELL: Typically what months is the heavy use in the nesting season in this nest? Page 29 February 2, 2005 MR. WOODRUFF: Well, if you're talking about having birds actually on the nest? MR. SORRELL: Yeah. MR. WOODRUFF: Typically, they may be laying eggs end of November, into December. You may -- you have chicks hatching end of December, into January. And then you're three months with birds on the nest. MR. SORRELL: When do they start reconstruction of the nest? MR. WOODRUFF: Reconstruction can start -- typically, it starts any time after October 1 and through November, they can be reconstructing. MR. SORRELL: Were we going to finish with our questions? DR. LYNNE: What do you want -- I mean, I've got a whole list. Do you want to hear the public first? Do you want to have our questions? I can wait, but -- CHAIRMAN GAL: Then let's hear public comments first. DR. LYNNE: Okay. MS. MASON: Bill Eline. The next speaker will be Nicole Ryan. MR. ELINE: Commissioners, good morning. My name is Bill Eline. I'm a resident on Gulfshore Drive. I've been a citizen in this county since 1989. And I do operate and have operated a 30- foot boat with less than 36 inches of draft in the area that we're talking about. My comments today are just some thoughts that I hope you'll consider. I'm concerned about the eagle. And I'm concerned about nature. Now, this area we're talking about is one of only four entries into the Gulf of Mexico in Collier County. I trust you know that. I'm sure when folks in your position with gray hair like I have now, when they made the decision to zone this land commercial, it was so that they could build the marina and the public would have access to this beautiful area. I doubt very much if they ever thought what is happening in Collier County on development would have occurred. Because I was here and helped build the airport at Fort Page 30 February 2, 2005 - Myers. I stayed at the LaPlaya Hotel. It was me and the pelicans, a lot of bald eagles, and a lot of seals. None of us ever dreamed what was going to happen has happened. I wish you'd keep that in mind. Number two, this land is next to a historical waterway. It's history. It's a haven for manatees. We have oyster bars that feed our fish, mangroves where the young fish begin to develop. Now it is being proposed that there will be 40 to 50-foot boats anchored at these marinas. And I want to give you some numbers to think about. The Dunes is now petitioning for 40 slips for boats up to 45 feet. This development is 39 slips and they forgot to mention 40 to 50-foot boats. We have the LaPlaya making a petition for 30 to 40 slips, boats up to 50 feet. A 50-foot boat normally will have a five-foot draft. The plan by the Corps of Engineers for this waterway are slips that will hold boats of 10 meters. And the reason for 10 meters __ that's 33 feet, plus or minus -- and the reason for that, that is a design of a boat that is built almost by all boat makers. It also says that the draft for those boats should not be more than 36 inches. Now, I told you I had a 30-foot boat, and I had not more than 24 inches. At low tide I could drag that boat on the bottom. And if you think of two 50-foot boats passing between Pelican Isle on the east side and the oyster reefs on the west side, nothing will be saved. You'll lose your oyster beds. If there's a manatee there, no hope. So I think this whole program that they're proposing is an environmental disaster, and I would urge you to say no way. And the last point I'd like to remind you of, this is a hazard coastal area. And according to your own plans, four units per acre, not more. And after our summer here, I think we ought to start getting tough on that. It's a big problem. Thank you. MS. MASON: Nicole Ryan. The next speaker will be Joe Moreland. Page 31 February 2, 2005 MS. RYAN: Good morning. For the record, Nicole Ryan. And I am here on behalf of the Conservancy of Southwest Florida. The Conservancy has concerns with the proposed proj ect before you, because of its proximity to an active bald eagle's nest and the fact that the proposal would continue construction within the eagle's secondary zone throughout the nesting season. The Conservancy is not opposed to the development concept involved with residential or hotel, or commercial for that matter. Our opposition is due to the likely impacts on eagle nest CO-19. We ask that if you recommend approval of this proj ect, that you add the stipulation of no construction during the eagle nesting season. The Conservancy believes Collier County has the authority and the obligation under the Growth Management Plan to protect this nest, even though the Fish & Wildlife Service seems willing to sacrifice it. Authority is in the conservation and coastal management element, goal seven, which states: The county shall protect and conserve its fisheries and wildlife. Obj ective 7.1 goes on to state that the county shall direct incompatible land uses away from listed species and their habitats. Of course, this leads to the much debated policy of 7.1.2, paragraph 3. One sentence in paragraph three, the second sentence, states that whatever the agencies says will be deemed consistent with the growth plan. However, the first sentence, and the Conservancy believes the most important sentence, states that the county has to be consistent with applicable GMP policies. We believe the policy of directing incompatible land uses away from listed species and their habitats is an important and applicable GMP policy. You as a recommending body to the board may feel the same way, since you passed what was, I guess, a resolution last year stating that Collier County should have an active role in protecting listed species. And you furthermore reinforced this motion on January 21 st of this year when you voted to recommend that the county look at Page 32 --- February 2, 2005 criteria for when a take should maybe not be acceptable. Well, if you place your emphasis on the first sentence of Policy 7.1.2, paragraph 3, which deals with being consistent with diverting uses away from listed species and their habitat, then you do have the ability to look at whether a take is consistent with your growth plan. And there are many unanswered questions out there that should be factored into the examination of this take. For example, what's a minimum viable population of eagles for Collier County? How many nesting pairs do we need in order to have eagles in this region? Also, what behavioral changes might be expected as a result of this action? Will the home rage of these eagles change? What if these eagles leave their nest; will they then go into the territory of other nesting eagles in the area? Could it constitute a loss of both nests? Also the question of the Audubon monitor and the monitor looking at when stress may occur and stopping activity once stress has occurred. Well, how long is an eagle stressed before it exhibits that stress? And if it has exhibited the stress, is it too late then? These are some very important questions, and we believe that you really can't accept a take without knowing the true ramifications of these. And what we're looking at here is likely going to cause negative impacts to the eagles. The petitioner has offered to do a number of things, but regardless of this, according to the biological opinion, it states, and I quote: There are no known beneficial effects to the bald eagle from the proposed activity. It goes on to state: the bald eagles occupying the action area are likely to be adversely affected from the proposed action. It also states: The applicant has agreed to implement a variety of measures to avoid potential disturbance to the eagles during nesting season. But then it goes on to state that: However, the impacts may be sufficiently adverse as to result in nest site abandonment or loss of or reduced productivity. Page 33 February 2, 2005 So, to conclude, the Conservancy believes the county has both the authority and the obligation to deny rezones based upon the applicant's failure to direct incompatible land uses away from listed species and their habitat, and we ask that this petition before you be denied or approved only if construction is prohibited during the nesting season. And one last thought, because the density issue was brought up by the previous speaker, and I realize that there is the ability for commercial to residential conversion to receive up to 16 units per acre, but you do have the policy in CCME, 12.2.2, that does limit residential in the coastal high hazard to four dwelling units per acre, and I'm a little confused as to how these two policies really mesh together. Thank you. MS. MASON: Joe Moreland. The next speaker will be Jim Owens, Sr. MR. MORELAND: Good morning, Mr. Chairman. My name is Joe Moreland. I'm the current president of the Estuary Conservation Association. The mission of our charter and bylaws is to monitor, watch and urge improvements and maintenance of the Wiggins Pass estuary and the estuarial waters to include the flora and the fauna on both long and short-term bases. My organization in past testimony before this and other commissions has made the point for the most part, which Nicole has just briefed on behalf of the Conservancy. Our board of directors stands behind those positions, as previously expressed. But we distinguish that from the current situation in part. And that part is we do have new proposals to be entertained here. And we have not in the past expressed a view with respect to the isolated -- the new element in the decision to be made here, which is to zone or not to zone the change from commercial to residential. And that's a terribly important point. And it's the point to which I would Page 34 ~...,.. -.. _._"_._~>~.,_., February 2, 2005 like to address some very obvious short point comments. It is our view that between the proposals that you were briefed on this morning and that are the subject of your agenda, to choose between a conversion to residential, as proposed, or to commercial, as proposed, that there is very little room for reasonable doubt as to which of those two proposals would not only in the short term, but in the long term be most beneficial to the overall health, welfare of Wiggins Pass, its estuarial waters and the flora and the fauna in them. There are two critters living there, both of which are currently under the protection of various regulations. Both of them have been addressed. They're the manatees and they're the eagles. Now, one of those is much more contentious under the current state of affairs than is the other. The contentious one is the eagle. There is perhaps a legitimate position that only a court can decide what is the applicable law. There are those who would argue that you can't do a certain thing with respect to eagles, the others say you are (sic). They say there's flexibility, some say there isn't. I cannot adjudicate that in the role of the organization that I represent, other than to say we certainly want a full, honest and fair and balanced approach to that, and preservation of the eagles' health is of prime concern. The manatee. The manatee is more focused and currently under scrutiny for protection, I believe, than is the eagle itself. Those of us and those of my friends who live in the estuarial area there, since the closing of the Wiggins Pass Marina, have witnessed the increase in manatee life in and about the old marina, as well as that marina that is at the Pelican Isle facilities. Under a residential development, yes, there will be boats there. Yes, they are apparently of the 45, 50-foot potential. That's what the slips would have. But they're a great many less than were there previously, although those previous boats were smaller. Still, volume counts. Size is important also, but not as frequently. Page 35 ,- February 2, 2005 The end result is that under the residential approach, once construction is completed, I think is much more suitable for short and long-term health, welfare and return to nature of the pass. There have been observed the red -- I hope I have this right -- the red breasted hawk, which is a new arrival into that area, and is seen there now frequently since the marina itself closed and all of that kind of activity occurred. So to take a decision on residential is in no way to be construed as an abandonment of environmental expectations for the life of the flora and fauna there. It isn't Utopia, but we don't live in Utopia, and you're not going to create Utopia through administrative controls either. That's the reality of it. What are we dealing here with real? Well, what we're dealing with is an extraordinarily valuable piece of real estate, in the economic sense. Extraordinarily valuable. We're also dealing with a piece of real estate that is of extraordinary value which lies dormant and is deteriorating. It's an eyesore. It's unreasonable, some might say, to expect that that facility will lie that way indefinitely and let nature reclaim it. That's probably not a reasonable expectation. Probability is that something will be developed there. Consideration has to be of course at this point in time with the proposals you have before you. Not the ones that you -- some may hope and speculate might come before you, which might be better than what is there. That mayor may not never, ever happen, but one thing is certainly true, the cost, economics involved in the use of that land for highest and best use will be -- speak with a louder voice than anyone of us, in all probability. That may not be the desired outcome, but it's perhaps the reality of the marketplace. Hence, our position on the singular question of the highest, best and most friendly use to the environment is for a residential development, as proposed for the most part. Thank you. Page 36 February 2, 2005 CHAIRMAN GAL: Why don't we give the court reporter a break and take five minutes. (Brief recess.) CHAIRMAN GAL: The meeting is back to order. Can everybody please take their seats. Could everybody take their seats, please. My understanding is that there are -- people have just signed up to speak. If those people have not been sworn in, ask them to do that, to please stand up and raise their hand to be sworn in right now. (All speakers were duly sworn.) MS. MASON: Okay, the next speaker will be Jim Owens, Sr., followed by Bonnie Karkut. MR. OWENS: Hi. My name is Jim Owens, and I'm speaking for myself. I am a resident at Pelican Isle, which is just south of the proposed development property. And I would ask that the committee consider voting in favor of both projects, the residential and the hotel project. However, if it came down to my personal preference of the two, I certainly would prefer residential. And the main reason for residential is so that we can protect the estuarial water area from that garbage dump that's next door. Because obviously residential cleans it up much, much better than commercial. And that would be my main purpose. Thank you. MS. MASON: Bonnie Karkut. And the following speaker will be Richard Ryder. MS. KARKUT: Members of the Collier County Environmental Advisory Council, thank you for the opportunity to say a few words today. I am Bonnie Karkut. My husband, Dr. Joseph Karkut and I have been full-time residents of Collier County since 1985. We presently reside in Tarpon Cove. I am on the board of the North Bay Civic Association, which was organized in 2001. However, today I speak for myself, as well as many of the residents within the boundaries of Page 37 February 2, 2005 North Bay Civic Association. At present our boundaries are from 111 on the south, to Bonita Beach Road on the north, 41 on the east and the Gulf of Mexico on the west. Our volunteer work is dedicated to preserving our coastal Florida lifestyle for future generations. In 2003, I spoke to you, the EAC, on this very issue of the possibility of rezoning the Coconilla PUD Wiggins Marina Property from C-4 commercial to C-3 residential. Fortunately the property remained C-4 after hearings before the Collier County Planning Commission and the Board of County Commissioners. Now, we face the process again. The developer, Ed Oelschlaeger, CEO of EcoGroup, says, and I quote from the Naples Daily News: He is giving the EAC, the planning board and the BCC, the commissioners, another chance to get it right. Is he being diplomatic or is he insulting our intelligence? I mentioned speaking for many of the 3,000 residents within the NBCA area. We polled the residents last season with three petitions and sent letters this year asking for support of the present C-4 zoning of the Coconilla PUD. Petition one was on limiting density. The growth management policy 12.2.2 limits new residential to a maximum of four dwelling units per acre within the coastal high hazard area. Petition two was regarding saving our eagles. State and county ordinances do not allow for development to occur in areas where bald eagle nests are located. We must look to the state and local laws and not allow the taking of any of our North Bay eagles. Petition three, we oppose any residential use that would allow buildings to be constructed above the 75-foot C-4 commercial limit as the property is currently zoned. Signatures of residents on these petitions were approximately totaled 3,500. Petitions were submitted to the Board of County Commissioners in 2004. Page 38 February 2, 2005 Now the residents of North Bay Civic Association area face again a choice of rezoning the marina property from C-4 to C-3 residential. If the property remains C-4, EcoGroup plans to build an upscale (sic) hotel with boat slips, restaurants, ship's store and a few transient slips. We were told at a public meeting in January of 2005, and I quote: EcoGroup does not have to rebuild a marina on this property. This of course is true. But certainly very possible. However, with the closing of Boat Haven and the marina at Wind Star, more and more water access is lost to the public. I have thought all of the above is not a matter of life or death. Why am I speaking again and again on the Coconilla PUD? Well, because it is a matter of death. Death to our coastal Florida lifestyle. If a hotel is our only hope of rezoning for C-4 zoning to remain, then I must support the hotel. To lose the C-4 zoning would close any hope of public water access for future generations forever. Thank you. MR. HUGHES: Quick question. Ma'am, you're speaking on behalf of yourself? MS. KARKUT: And residents in reference to the petitions. It was in reference to the petitions, would be including residents within our area. The North Naples -- MR. HUGHES: You have -- officially have that position from your association? MS. KARKUT: Yes, I do. MR. HUGHES: Okay. MS. KARKUT: Thank you. MS. MASON: Richard Ryder. The following speaker will be Cam Gleason. MR. REDFIELD: Good morning, Commissioners. My name is Richard Ryder. I live in Cove Towers. The marina property is presently zoned C-4 for public and mixed use. It's one of the very few remaining mainland Collier County areas Page 39 February 2, 2005 so designated. A rezone at this time would further and forever deny future generations of citizens and visitors access to the shorelines and Gulf of Wiggins Pass. Condo density exceeding four units per acre in coastal high hazard areas, as requested for rezone, is illegal per the county and state statutes. Please advise against this rezone. Thank you. MS. MASON: Cam Gleason. The next speaker will be Carl Redfield. MS. GLEASON: Good morning. I'm Cam Gleason. I live at North Shore Lake Villas. Since I moved here five years ago, 12 high- rises have been approved for my area. The developer of this proj ect is asking the county to add yet another two high-rises in the last parcel, which would support a water dependent use. In return, he is not adhering to GMP policy 12.2.2 of four units per acre in the coastal high hazard area. He will not agree to suspend construction during the eagle-nesting season, even though that construction is predicted to take the neighborhood pair of eagles away. And I understand this morning from his environmental consultant that he would not decontaminate the land under 200 hotel residents to residential standards, just because he's not required to do so. I urge this board to realize that this project is environmentally insensitive both to people and to eagles. Thank you. MS. MASON: Carl Redfield. Followed by John Findley. MR. REDFIELD: Good morning. My name is Carl Redfield, and I just want to make it clear that I do support residential, but I also support doing anything it takes to clean up that eyesore, that environmentally unsound marina property that existed. It is awful there. If any of you walk it, you can smell the pollution. And I think it needs to be cleaned up. But I do prefer residential. And why do I prefer residential? Because a hotel is nothing but transients. Transients that come and go. They're not stakeholders in the neighborhood, they're not stakeholders even in the property. Page 40 February 2, 2005 You've all been at hotels. No matter how nice a hotel, whether it's the LaPlaya, as one gentleman mentioned, or the Ritz, you don't own any of that, you don't really care about that property. Residents do. And homeowners are the residents that I'd rather have as neighbors. I'd like pleasant neighbors. I'd like neighbors that won't get drunk, you know, by the shore and go out of the parking lot and hit me when I'm riding my bike or walking. And that's an area I do walk. I'm immediately next-door. My opinion and others like myself must weigh more than people who are half a mile away that are part of this so-called civic association that has never asked me for my opinion. Never. They do not represent me. Although I pay the money. I tried joining. But I do not get asked for an opinion. I get things just shoved down my throat. So I ask you to please allow my backyard to be cleaned up and nice neighbors to come in. One last thought about the eagles. When the marina existed, you know, I heard about -- when the marina existed, I moved in in about '97, '98, and I heard about the eagle. And I went to watch the eagle. And I was amazed at the noise coming from the operation, the day-to-day operation of that marina. The forklifts that were banging, the noise in general coming from people shouting at the docks and having a good time, and boats coming in and out, high volume of boats, not like Pelican Isle has today, where most boats don't move more than once a month, in some cases, you know, but -- including mIne. This noise never bothered the eagles. I was able to watch them through binoculars, with chicks or fledglings, whatever they're called, you know, and they were never perturbed. Maybe they're born deaf here, I don't know. They -- they don't get bothered by all this noise. And one last little comment. This notion of boats that are big having a lot of draft, that's an old-fashioned kind of attitude. I have a 44-foot boat. It draws 27 inches, which by the way is just a little over Page 41 February 2, 2005 my knee. It doesn't bother anything. So please approve -- either project is better than leaving it the way it is. But residential is far superior. Thank you. MR. HUGHES: Sir, quick question. You say you smell it? MR. REDFIELD: If you go around, you can still smell a little bit of the oil, the diesel, a diesel kind of smell. MR. HUGHES: So you smell hydrocarbons. MR. REDFIELD: Yes, hydrocarbons. Yes. MS. MASON: John Findley. The next speaker will be Doug Fee. MR. FINDLEY: Thank you. My name is John Findley, I'm a certified marina manager. I'm a Level 4 HAZMA T certified first responder under OSHA and the State of Florida. I've been managing, running marinas for 18 years in the State of Florida. And there's a lot of different options that you can go to. And from -- types of marinas, from transient, which a hotel would be, as far as what it could accommodate. I ran South Seas Resort and Yacht Harbor for 14 years on Captiva. At that facility we had over 14 -- actually, it was 120 groups a year, in excess, water-related groups coming in and out from power squadrons to cruise clubs to yacht clubs, that went in and out of that facility. As many as sometimes 100 boats plus a day in and out. Having a hotel with those types of docks will create these types of traffic. Huge numbers. The marina facility before only accommodated probably -- there was 450 boats there, but only about 300 of them happened to come from Collier as residents. Because the owner -- I spoke to the general manager, and that facility, only about 20 percent were from Bonita. They had members there, people that kept their boats there from Immokalee, Fort Myers Beach, Fort Myers, Marco, other areas. This project for the residential does offer mitigation to give more parking, which has been in the newspapers, one of the number one Page 42 ----- February 2, 2005 problems with the county that they cannot accommodate trailer boats. Another 50 spaces would -- if you do the math, 50 times 365 days a year will free up a lot of parking spaces and more than benefit the loss of those 300 spots that went to original upper class people that could afford a private facility. It was not a public facility, you did have to pay to keep your boat there. You had to be able to afford to keep your boats there. Commissioner Halas said at a conference that I was at, at South Seas on Captiva, boating and water access conference, he made the comments that went door to door fighting and lobbying for to save the marina. But he was amazed at how many people didn't know or even care that the marina was going away because they kept their boats in their yards. These are the people in the neighborhoods that would benefit from the expansion of the trailer. And if you've ever been in there on a holiday weekend and you see the policemen giving tickets up and down the road, it's going on. It's going around us. There's actually ramp rage, similar to road rage, that's going on on a regular basis. This maybe isn't an environmental issue, but it's a safety issue, and it does affect the people. This property in the Fifties was owned by Ben Hoag. It had five homes and cottages on it. And I've spoken to some of the original employees that worked there when they illegally tore these homes down and constructed the first barns that created the marina. A man mentioned the decision to make this commercial and what was on record. Well, I've done research, I can find nothing on record that this was ever permitted to become commercial. It was originally residential, and it was illegally made a marina at that time. And then it was just adopted later on. I don't know if they had to pay penalties down the road, but it was residential. Currently there's -- the residential project proposes 29 slips. The in-water slips that they did not mention that already exist with the current marina will accommodate more than 40 vessels there. So the Page 43 ,._.......,"-,..--.,~~._-_. ~ February 2,2005 actual -- this is a reduction from even the current marina's in-water, let alone what was in the storage barns. The Harbor Trace, which is to the north there, I believe, or the towers to the northwest is just on the edge of the secondary zone. Did not phase the eagles. But there's been a lot of talk about the eagles, but manatees is in my opinion much more endangered, higher on this -- that. There's a lot of different species in the water that should be concerned with the smaller vessels. There's a conference on February 8th in Tallahassee, urging people from the county levels and the marine industry to come to a workshop on saving the grass beds. The number one threat to the estuary system is our grass beds that feed thousands and thousands of creatures, including the oysters and the fish, and the fish that the eagles eat. And those are at threat. Those are being threatened by boats 26 feet and less. Unfortunately you can't say get rid of these boats. But this project bringing in some of the bigger boats that do not go up the inland waterways or on the inside up to Fort Myers Beach and travel out of the channel, because the channel has not been dredged, it is not at a safe standard, are not tearing up the grass beds. This is an ongoing problem that the county has to recommend. Lee County is dredging all their back bay channels and has permitted every one of them at this time to take them between five and six feet at a minimum of five feet, and they are calling it best management practices to protect their grass beds. We have not done that. And I urge this council at another time to promote the dredging of the channels and the back bays to protect our grass beds. I'll give you further feedback if I can make this conference on February 8th. The reduction I've heard at some of the past environmental meetings, they were talking about paints and things like that and Page 44 February 2, 2005 tribunal tins. Those are all illegal in the State of Florida now. Nothing goes on a boat that stays in the water that isn't approved by the State of Florida and the federal government. So you have a reduction of what is in the water. And having 29 slips versus the 50-some slips of the hotel, I feel has to be the best effort of the -- or the best interest of the -- of the estuary system. The -- as I said, the transient is a huge number of boats that you're going to produce, more so than the actual marina facility was that was there. The other thing I would just say is just think about the long-term consequences. Anything that goes in there is going to affect the eagles. It doesn't matter what is built there. Whether it's a shopping center, whether it's a hotel, whether it's a condominium project that goes in, they're going to all disrupt the eagles. So it doesn't matter, you're going to have to prove something. And the economics to allow nothing to go in there eventually could -- there could be some ramifications from that to do nothing. Thank you. MR. HUGHES: Quick question, if I may. MR. FINDLEY: Yes, sir. MR. HUGHES: You've managed marinas for an extended period of time. MR. FINDLEY: Yes, sir. MR. HUGHES: People that live in condominiums with a marina, how -- in your opinion, how often do they take them out? MR. FINDLEY: Well, the ones that are the snowbirds, which Pelican Isle is next door to this facility, I actually currently am the marina manager of Pelican Isle. I ran South Seas for 14 years then I ran Moss Marina on Fort Myers Beach, a full service marina. At all those facilities, you have a certain amount of snow birds that are only there probably 30 percent of the year. And you're talking, I guess the nesting season is when those boaters are around there, during the shorter time when the birds are there. But it is probably your January Page 45 February 2, 2005 through April time frame. Income tax time, they all disappear. Probably less than 25 percent of the boats go out even during the summer months at Pelican Isle. So going to that type of facility is a huge, huge reduction of traffic on a residential. Now, you have a hotel, it's year round and it will not stop. A full service marina, it's year round and the boats do not stop, they keep coming and going. And the other thing I think the developer spoke about, the truck lids. In some of the conferences and things I've heard, the truck beds dropping. Well, trunks of cars slamming is the same effect, it makes the same noise that goes through. You put a hotel with outside parking, people getting in and out of their trunks every day, in and out, in and out, in and out, it's going to be a constant sound that's going to go, you know, every day with a hotel. So that's something to think about. And shopping center, same thing. If that goes in down the road you're going to have trunks of cars opening and shutting all day that are going to constantly disrupt those eagles. MR. HUGHES: All right. So in your opinion, approximately 75 percent of the vessels stay in their slips all the time. MR. FINDLEY: All the time. There's no doubt about that. Thank you. MS. MASON: Doug Fee, and the next speaker will be B.J. Savard- Boyer. MR. FEE: First of all, I'd like to say I've given to Susan Mason some e-mails that came over the past few days, people who could not attend here. They're e-mails that came to North Bay Civic. They represent -- I didn't actually count, but there's obviously a great deal of opinion in those, and so we wanted to submit those into the county record. Good morning, Council. For the record, my name is Doug Fee, president of the North Bay Civic Association. I thank you for this Page 46 February 2,2005 opportunity to speak. In July, 2002, almost three years ago, it was announced that Wiggins Pass Marina would be sold and that a rezone from commercial to residential would take place. Over those three years, the North Bay Civic Association, with our members, collectively have spent hours, hundreds of hours, trying to be informed on all the issues surrounding this rezone. We have attended public meetings on this project. We have listened to all sides, and gathered as much information as we could in deciding where we stand. We have respected the process that citizens are afforded. We certainly understand the differing opinions in the neighborhood on the matter. But having said this and with the law in mind, I'm here asking you to say no to the residential rezone before you, and I have three maIn reasons. First of all, I've handed each of you the motion that was made and forwarded to the BCC by the planning commission on November 6th, 2003. The reason I believe the current proposal for residential is very similar to what was heard on that date, there are a few changes, and certainly the height has changed. In this motion, the planning commission singles out GMP policy CCME 12.2.2, which clearly limits residential density in the coastal high hazard to four units per acre. The petition before you today is asking for approximately 9.48 units, over twice the stated limit in this policy. The developer is relying on a density bonus for commercial conversion and asking for this amount of density. The bonus is discretionary and not an entitlement, as the staff report points out. The North Bay Civic has sought legal advice on this matter, and those opinions given clearly feel the more specific policy of four units per acre controls over the more general policy. The second reason we feel you should vote to deny this rezone and accept the residential conditional use has to do with the question Page 47 February 2, 2005 of what is better for the neighborhood, residential or commercial. You have heard from some of the audience who urge you to vote residential. I'm here to tell you that this is a mixed use neighborhood. And I have here a zoning map, which is on Page 6 of what I've handed out, of the general vicinity of Wiggins Pass Road and Vanderbilt Drive. And I'll put this on the monitor. Obviously I'm not working the lectern very well. But you can see here that you have RT zoning at this very corner. You will see here that we have of course the marina property, which is commercial. You have a parcel across the street, which is commercial. You have a golf course and a public park, which has thousands coming to this area to launch their boats. And most importantly, I point out to you that we have three parcels that are zoned residential tourist. Many in the audience who will want to rezone this property of residential actually live in zoning that allows a hotel and a motel, which that is on Page 7 of what I handed out. As you know, scheduled behind this petition is a second petition for a conditional use for a resort hotel. We believe the petitioner has made his own case that a resort hotel would be appropriate to the neighborhood. Finally, the question of the environment, which is primary to the discussion today. The North Bay Civic Association has collected names on a petition that are in the rezone matter records. We know the two sentences in GMP policy 7.1.23 almost by heart and have been involved with the stakeholder meetings since they began. As an association, we support the county having a sayar possibly final say on the projects that affect known listed species, like the pairs of eagles that are located in the North Bay area. In your handout I have some transcript from some of the hearings in regards to the glitch amendment. And Marti Chumbler, in one of the proceedings -- Marti Chumbler is the outside counsel for the county. And she stated on the record that due to the two sentences, Page 48 February 2, 2005 staff doesn't actually know what that means. In other words, there's inconsistency; therefore, the glitch amendment was needed. You voted earlier for a resolution urging the commissioners to support the county's role in listed species matters. We also have a concern about the permits. Obviously you have before you a biological opinion, and I think in this rezone matter, I'm not sure if the applicant actually has the Army Corps permit, but we would also have a concern that we do feel the state should be involved in this. There -- you know, there should be permits from the state. There are permits on the gopher tortoises, so I believe that there should be permits on the eagle. I'm not an expert on that, but I just want to raise that issue. I encourage you to stipulate that the boats that are used on either proj ect should be limited to a three-foot draft or less, as stipulated in the county's Manatee Protection Plan. And possibly use lifts. We also encourage you to stipulate that the cleanup of the marina property be to the highest target levels possible so that when the state issues its final order, that -- the way I understand it is there can be deed restrictions. And maybe Ms. Tucker can address that. And that is my comments. Thank you very much. MS. MASON: B. 1. Savard-Boyer, and the following speaker will be Gary Edson. MS. SAVARD-BOYER: Good morning. B. 1. Savard-Boyer. I live at Vanderbilt Beach. Most of what has been said about keeping the property commercial, I agree with. What Cam Gleason said and Bonnie Karkut. I agree that we need to have a safety of the eagles and the manatees. However, what about the people? In recent years, the citizens of Naples have lived with the privatization of our beaches and access to the Gulf through the building of condominiums, reducing public access. It would seem to me that the public has a right to retain these uses. Why continue to Page 49 February 2, 2005 vote for use to a select few? Your vote is very important to the commissioners, and they will have the final say. I'd like to talk about the difference between residential and commercial and a hotel. I live on the last canal street in Vanderbilt Beach, and several years ago, on the comer of Vanderbilt Drive and Vanderbilt Beach Road, when I first became a member of the association, they were talking about a hotel on that comer. I don't know if any of you remember that piece of -- parcel of land. A hotel seemed like they've painted it today, as a very commercial, lot of traffic, lot of busy, busy, busy. So it was said, well, let's go to condominiums. Well, we have condominiums on that comer called Regatta. Now, the Regatta condominiums are not housed by one resident in each condominium. They're rentals. And they are rented weekly. I didn't come here to talk about Regatta, because I didn't think I'd have to. But when I hear all of the negative about hotel, these people that are living in Pelican Isle have no idea how much noise is going to come from a hotel condominium. Now, it depends on the bylaws of these condominiums. If they're going to say that they can only rent these units 30 days three times a year or four times a year, that makes a big difference. But if they're going to rent them like the Regatta rents theirs, by the week -- they also have boats. Now you can't use the slips unless the boat slip is owned by a unit owner (sic) -- I mean, an owner uner (sic). Sorry about that. You still have boats coming and going. Because if the unit owner rents to somebody that has a boat, I believe they can use the boat slip. These units are rented year round. Now, they bring their pets. Have you ever lived across a bay of water and listened to pets that are left on the lanai during the day while the people go to the beach ? We've called code enforcement, Page 50 February 2, 2005 we've called police, we've called everybody. Now, I know this has nothing to do with you and the environment. But what it has to do with your idea of the difference between a hotel and a residential condominium. I would like it to be left commercial, let's have a hotel. It's a lot easier to live with. Thank you. MS. MASON: Gary Edson. The next speaker will be Brad Cornell. MR. EDSON: Good morning. My name's Gary Edson. I'm a five-year resident, full-time here in Glen Eden, which is catty-comer from the proposed development. We're talking about eagles, access, density and cleanup. Over and over and over again. Your tolerance is remarkable. And we've done it twice now. I'd like to speak first to the question of density. We've talked about 12.2.2.2 which is a new residential site. I'd like to quote to you one of the nation's preeminent experts on land development, which -- Tom Pelham. He's spoken here before in December, 2003. I was sufficiently impressed with his presentation to obtain a transcript. And here's part of what he had to say regarding the density issue: Quite frankly, I think this county has a ticking time bomb here with regard to the densities permitted in your coastal high hazard area. It, in quotation marks, meaning the Growth Management Plan, indicates that it is limited to four acres per unit. We've heard this before. But Mr. Pelham continues to remind the commission that it's not legally tenable for county staff to ignore an expressed density limitation, because the applicable rule of interpretation is, and once again, I'm going to quote: A specific provision controls over a general prOVISIon. The specific provision here is the provision in your coastal high hazard element that says the maximum density in your area is four units per acre. Page 51 February 2, 2005 The density rating system that you find in your future land use element is a more general provision. So with regard to coastal high hazard area, that specific provision in the coastal element controls as a matter of law. Counties are required -- and I'm out of quotations here -- counties are required by state regulation to limit coastal density. Now, the GMP policy 12.2.2 is in response to that requirement. Having said that, I'd like to speak to two other issues. The hotel could potentially be the best of both worlds. We've heard two things by the developer. One is that if you get -- if you get the hotel, I'm going to give you -- if you get the residence, the condo, I'm going to give you a place to put trailers. Well, why not put the hotel up and give a place to put trailers? That would be a nice compromise. It's a matter of economics. But I wonder. The economics have changed significantly . We originally looked at 22 stories and we were told that was the only way it could be built. But all of a sudden it can come down. And we went from hundreds of units down to 90 units. Now I'm -- and we can't even do 90, if you follow the code. But there's a possibility there for some compromise. We've talked about constant noise. Hotels produce noise in blocks of time. We've been told that by various people. I'm sorry, I can't quote those people, but I think a little analysis will find that the noise level in a hotel comes and goes. My hope is that if we have to have something on there, I would like to maintain as much public access as I can. If it means that we have to have a hotel, then so be it. But I want to be able to go down there like I at one time could go down to the Vanderbilt Inn. I would like to be able to have dinner. I would like to be able to walk along the water's edge. I would like to be able to have my mother come over and stay near my home -- it's a selfish request. But it would be a nice thing. I'm going to be denied that, like I'm denied being able to see the Page 52 February 2, 2005 water as these high-rises go higher and higher. We've got to remember what we had here and hope to preserve what little we have left. The clock is ticking. The clock is ticking on our ability to be residents in the paradise that we have come to know and love. Thank you so much for your time. And I hope that you will consider the hotel as your primary consideration. MS. MASON: Brad Cornell, followed by John W. Lawrence. MR. CORNELL: Good morning, council members. Brad Cornell, on behalf of the Collier County Audubon Society. I want to say first that we object to any activities which will harm the Wiggins Pass eagles. However, I also want to say that we are opposed to any activities which will threaten the continued existence of eagles in Collier County in general. And I will point to a lack of comprehensive habitat conservation policies in this county that is the cause of the second of these situations. We're concerned -- Collier County Audubon Society is concerned about opposing the Fish and Wildlife Service's biological opinions on CO-19 -- the eagle nest CO-19, because it may threaten the Board of County Commissioners' support of comprehensive policies to protect the eagles in Collier County. And this is a political problem, but we recognize it as something that we need to consider in looking at these individual project-permitting issues. Another issue that weighs heavily on us is that whether or not this -- these projects or other projects in the Wiggins Pass area and along the coast all the way up to Angler's Paradise are built now or in the future, when this nest is gone, or after this nest is gone, naturally, the impact is going to be the same. And we still have the larger problem of how are we going to keep eagles in habitat in Collier County. This -- we are not going to address that in what we're discussing today. And that's the unfortunate circumstance that I want to raise to your attention and say we've got to do something about that Page 53 February 2, 2005 now. And I call upon you, as the Environmental Advisory Council, to lead, along with the county and for the county, an effort promptly to develop effective local listed species policies, including incentives, regulations, and mitigation county-wide. These may likely take the form of a federal habitat conservation plan for multiple species, but without such policies comprehensively, the current project-by-project permitting that we're doing right now in looking at these projects and any other proj ects that come before you is going to doom our listed species in general and even specifically. So I appeal to you to look beyond the project-by-project approach that we're now ensconced in and find a way to lead, as your charge is as an Environmental Advisory Council, to lead in the policy development that this county needs comprehensively. Thank you. MR. HUMISTON: Question, Brad. Have you seen this letter from the Fish & Wildlife dated December 15th that basically seems to relax the restrictions on activities in the secondary zone over the restrictions that are in the 1987 guidelines? MR. CORNELL: I have seen the relaxation of those guidelines, yes. MR. HUMISTON: The question I have is, is it says in here in recent years we found that certain exceptions are -- exceptions to the '87 guidelines are acceptable. And that's the basis for relaxing the restrictions in the secondary zone. Is -- being with the Audubon, are you aware of any case histories or any basis for them making that decision? MR. CORNELL: Well, there's a sense in the Service, and in general amongst ornithologists, that there may be some type of mechanism in eagles of urbanization, where they become acclimated to human activities in the proximity of their nests. I think this is a highly individual case, and it's not something Page 54 February 2, 2005 that's very predictable or even well understood in any particular pair of eagles, including this nest here. So we don't know what's going to happen if we allow encroachment in the primary zone, or even the secondary zone. And therein lies a problem. We're not really able to protect these eagles in permitting relaxation of those guidelines. So we're not supportive of that while that nest is there. At the same time, we recognize if we hone in on just this specific nest and give up the effort politically and scientifically to support comprehensive policies, then we've done a disservice to both these eagles and eagles in general in Collier County. So if that answers your question. MS. HUSHON: Do you know of any levels, decibel levels which in the vicinity of an eagle's nest would be considered negative? In other words, is there a -- has anyone studied noise as a function of eagle happiness? MR. CORNELL: I'm not a scientist, and I'm not aware of the literature relative to specific decibel level in disturbance of eagles. I do know that anecdotally sharp, loud noises such as the gates of dump trucks banging are problematic. And I would distinguish those from the trunks of cars slamming. But nevertheless, it's sudden, loud, surprising noises that would be a disturbance to eagles on a repeated basis. And that would be something that would perhaps elicit disturbance behavior from an eagle pair and perhaps abandonment of a nest during a particular period of time. But no, I'm not aware of what the specific decibel levels would be. And so if you're driving toward can we put a decibel level restriction -- MS. HUSHON: Right. MR. CORNELL: -- on a project, I think that what the developer has proposed in the way of monitoring is about as good as we can get if we're going to have a project in a primary or secondary zone. Page 55 February 2, 2005 MS. HUSH ON: And are you all-- is Audubon ready to supply those monitors? MR. CORNELL: They're -- we are not able to. The Collier County Audubon Society -- well, we have had a lot of discussions with this developer about this -- well, actually the previous iteration of this proj ect. And ultimately we are not -- we have not been supportive of the project. However, they've also been talking with Audubon of Florida. There is a program called Eagle Watch that is currently in effect and does monitor this nest, as well as other folks who monitor it, but we would not be in a position to supply that monitor on a professional basis. And that's what you need. You need a professional biologist who can monitor, has been certified to monitor eagle behavior, recognizes what disturbance behavior is and could be and what activities might elicit that. So they have to be pretty alert. We're not ready -- we can't do that and we have not committed to do that, but -- MR. HUMISTON: But you think this person needed to be on-site full-time? Is this a full-time type position? MR. CORNELL: They would at least need to be there when routine disturbance activities would be taking place. Typically when trucks are unloading, when there would be some type of construction activity like pile driving or -- they've said that they're not going to do that during nesting season, so that's good. But, you know, the expected disturbance activity, somebody's got to be there. And my understanding is in construction projects, that's kind of periodic. It may not be the whole day through. But if it were, they'd have to be there all day long, yes. MR. SORRELL: Brad, I have a question. Where do these eagles go during the time it's not October to May, not the nesting season? MR. CORNELL: Well, again, I'm not a biologist, and I'm not an expert. Some eagles are migratory and actually leave the area, may Page 56 _._--~-,-^_., ~ ,'.-.."", February 2, 2005 even leave the state. Others just hang around in the area and they just -- they feed in the local waters and roost in the local, typically, pine trees or snags or whatever the tallest structure is so they can keep an eye on things. For instance, the pair of eagles that's nested at CO-19 for a long time likes to roost or used to like to roost in a tall Norfolk pine that was right near the marina. That Norfolk pine was cut down last summer. But they would find another tall tree. So some are migratory, some are not. I'm not sure where this pair goes. And I'm not sure anybody knows, because they're not banded, I don't believe, and they don't have any radio transmitter on them, so -- but studies show that some of them migrate to other places and some stay local. Thank you. MS. MASON: John W. Lawrence, followed by Gary Mullennix. MR. LAWRENCE: Good morning, ladies and gentlemen. I'm John Lawrence. My wife and I have a part-time owner -- a full-time ownership or part-time residence at Pelican Isle, here five months out of the year. We love this place as a neighborhood for the last eight or nIne years. First of all, yes, we support both of the petitions today. If this were the final approval authority, I guess we -- I'm sure we would go with the condominium for the reasons cited. Let me mention one other brief comment. Since we do live on the eighth floor of a building in Pelican Isle, we look right out at the beautiful scene in front of us and we see this being ruptured regularly by boats, small boats, going through the oyster pad. It just happens. It happens all the time. And the county should do more on signage, and -- in my opinion, and buoy markers in that area. What I really wanted to talk to you about was this eagle thing. I served in the business end of a forestry company that owns over 200,000 acres in South Georgia, right along the Okefenokee Swamp. It's obviously a very environmentally sensitive area. Page 57 -.... February 2, 2005 I am not a forester, but I've worked and become friends with foresters in that South Georgia area. I've talked with them a long and many times about the question of the red-cockaded woodpecker, the eagles that we're talking about here today. When I've explained the concerns that were voiced very well here today, and I respect that, they shake their heads in wonderment about what's so different about the bald eagles here than the bald eagles up there. We have to watch what we're doing, and all of these people I'm talking about are rural; they live, work and play right in the woods. They love the nature around them. But they don't see this disruption that has been cited on the bald eagles, when very loud logging equipment comes nearby. We don't cut down trees, we don't -- we're not rapists of the forest, none of that. But we simply don't understand. And admittedly it's a very remote area. We don't have any high-rises, but we do have logging operations making considerably more, higher levels of decibels than anything that I usually associate with construction. I'd urge that you go ahead with the approval of this. Thank you. MS. MASON: Gary Mullennix, followed by Linda Roosa. MR. MULLENNIX: Thank you very much. And good morning, Commissioners. Just a couple of anecdotal comments on my part. I am Gary Mullennix. My wife and I live at Pelican Isle on the eighth floor, looking west. And we've been there for six years now. I have some experience. I have a 34 -- I mean I have 33-foot boat with a 34-inch draft, so I'm safe under some of these restrictions. But I don't use mine very much. In fact, almost always when I look out, none of us have moved our boat from the slip, hardly at all. I didn't know that as a novice moving into Florida that if I bought a boat, I wouldn't be using it during the winter months, because they're the winter months. And even here it's winter. It's cold, it's windy. My wife doesn't like waves. Anything over three feet is just Page 58 , - ,_.--- -'''-'--~._~_. February 2, 2005 absolutely forbidden. And so mainly we don't go out. I use the Wiggins Pass Marina as a place to store my boat. I had the bottom painted there. I would pick up my boat there. I had the engine replaced there. It was a filthy place, reeking of hydrocarbons. And all of that would of course run off. When I filled up my gas -- my tank with gasoline, myself and others habitually watched large pools of gas floating throughout the marina area from overflows from gas and diesel being filled up. That thankfully has stopped, since nobody seems to be doing that much of anymore. Then as we sat out there and watched the activity, we normally would see daily, especially during the warmer months, the rapacious use of the land by the small boats, those that either got them out and moved them out of the barns or the people that came in and dropped them down the ramp. And I want to tell you that jet skis and small boats exploding through those mangroves and over those oyster beds at high speeds, the noise that's with them is extraordinary. The larger boats go out very naturally and very slowly, non-wake out in the manner in which they're supposed to go out. I am convinced they cause substantially less damage than the small boats that the public uses. The public does not adhere to boating laws worth a damn, from my own perspective, at 1 east. If it were me, I would hope that we would go with the residences, because the logically -- it seems that me that that is the best choice for the following reason: It offers the best cleanup there. The tolerances you've heard are substantially less. And that ought to be done. It promises by far the least use of the land by the residences. And it promises the most amount of real estate taxes to be gained by the county for the support of all the other infrastructure needs of the county. Thank you. MS. MASON: Linda Roosa, followed by the final speaker on Page 59 February 2, 2005 these items, Peter Franck. MS. ROOSA: It's still morning. Hi, how are you? My name is Linda Roosa, and I live at Barefoot Beach, which is an Ed Oelschlaeger EcoGroup project that I'm very proud of. They did a beautiful job. My husband and I boat from Pelican Isle Yacht Club. We do own a slip there. And we have a larger boat, plus a jet ski. We realize at this point that there is going to be development on the property. And we use Vanderbilt Road, we use the pass. And again, we're associated with Pelican Isle Yacht Club, another excellent project by the developer. Since it's getting down to residential versus commercial, and I do hope you approve both of the projects, I, like many other people, definitely support the residential. I have been a member of the North Bay Civic Association. Sometimes I get e-mails from them. Most times I don't. I've never been polled by the North Bay Civic Association as far as my opinion, so I'm speaking for myself. And I hope North Bay Civic Association is listening, that not all of their members are in agreement with what they are proposing. With the residential, of course that would be my preference. I just think it would be a better selection, since we already have approval adjacent to that property for Signature, which will be residential. I do believe that Ed Oelschlaeger and EcoGroup have demonstrated here in our county, as well as other counties in Florida, that they do upscale building, they do take in consideration environmental impact. It sounds like from what I've heard today that the U.S. Fish & Wildlife have submitted a new ruling out. Ed has said that he would already demonstrate doing different and special building rules that have not been used anywhere else. Because of his reputation and because of what he has already been able to fulfill for Collier County, I think we can rely on EcoGroup to do an outstanding job. So thank you very much. Page 60 "___ __.,__,M,_..,_.,..,.......____,~_ February 2, 2005 MS. MASON: Peter Franck. He's the final speaker. MR. FRANCK: Thank you very much. Good morning. My name is Peter Franck, and I live on Pelican Isle. Been there for about seven years. And I am an endangered specie. I'm being endangered by the fact that the pollution that still leaks out at the old marina building is not going to be cleaned up properly if you only approve the commercial aspect and go ahead with the hotel. What we need for the short and the long term is a cleanup to the extremest standards it could possibly apply to get rid of the pollutants that are surrounding us. We don't want to lose the residential nature of our neighborhood. We don't want a hotel. And I'm also being endangered by the fact that the North Bay Association, through its board of directors, is telling you that they're speaking for me. That is not the case. I have not been polled, and as Linda said also, she hasn't been polled either. So I urge you to go to the residential side, because I live there and I don't want a hotel. Thank you. MS. MASON: Excuse me, it was just brought to my attention, there's one more speaker. A.K. Brown. MS. BROWN: Good morning. My name is Anita Brown. Thank you for giving me the opportunity to say something. I don't belong to any association, I speak for myself. I'm living here since 1989, so -- I need my glasses. I don't want to admit it, but I have to. And I'm a very strong opponent against the Coconilla proj ect, as well as the Signature project. The reason is the following: We all know, I don't need to repeat this again, it's a very sensitive, environmental sensitive area. And it is the last property on the Gulf in our area. We are, let us say, framed with high-rises. Unfortunately not the nicest looking high-rises. I feel already being in the second Miami where careless, reckless developer buy everything they can get, develop it, make the money, don't care and go. This will happen here, Page 61 .-^-.---,,----~ .."....."".~_.~ -,_.., """_~_"_"_'__"~'C","_"~__ February 2, 2005 too. It's a piece of land you cannot replace. You cannot replace bald eagles or other creatures depending on the paths and on this area. It's not a car, it's not a furniture. And also, you cannot replace the rights of the people to have access, the last access to the Gulf. Let us become leader again. We are leader in many things, sir and madam. We are leader in abortion, we are leading in poisoning our coastal and other water resources. We are leader in, let us say, all negative parts you can't hardly imagine. I don't want to put them up now because it's so frightening, some people would maybe leave this room. It's time to be a leader in a positive sense again. Make them an end. You have the power, you have the strength to make a change. You have the public behind you. But not all the public can fit in this little room. You know that most people by heart, and I know and I'm sure about it, you too, by heart and later, maybe by facts, know that this is wrong to say yes to either/or because the public has no, no access, no enjoyment anymore of this paradise. People came here, when I came, for paradise. Where is the paradise? All the environmental, the subtropical environmental is disappearing on a daily basis. I cannot count the species which are gone on a daily basis, I'm not a biologist, I don't know all the names. But I know sooner or later that manatees will be gone, the eagle will go very soon, and on the end of this chain, we will go. At least the people who can afford to go, what do we then? We have concrete left. Can you restore it? No, you cannot. Because my generation, the following generation and the other generations don't want to pay the price for the mistake knowingly, knowingly done. We know it better. We feel it. We have the knowledge, we have the technology, we have the facts. We know it is wrong. And don't say I don't, and turn the back on the public, I'm sorry, I didn't know better. We try now to flood an area which is dried out from the states Page 62 "-"~--""'''-''''-''-----~_._- February 2, 2005 which belong to Barron Collier to make room for development. It will not replace what we have lost already. It will create problems. And we cannot print the money so fast to try to replace what is lost. Because you cannot buy it. There is not another space. We have only one planet. Yes, we go to Mars, we have seen there is helium, wonderful. Maybe in some million years we are able to breathe there. But at the moment, we are here on this planet, this only one. And we all have the right to enjoy what the Creator has given us. And we have -- we have the absolute must to protect this from people who think money can buy everything. When the last tree is fallen, the last fish is caught, you cannot eat money. And Mr. Oelschlaeger, your residential buildings are nice from the outside, but with all the money you have, when everything is destroyed, you will not survive a week. Like all other people here, too, we have responsibilities. And the responsibility starts now from this moment on. And in my opinion, please, I can only urge you, say no to both. Buy the property, you have the money, we are taxpayers, most taxpayers are willing to pay for it. I'm sure, you should only ask them. Nobody has asked them this yet until now, this question. Sorry, German and English is coming a little bit in confusion here. I'm willing to do it. I'm willing to pay an entrance and drive with a, let us say, pontoon boat, enjoy the sunset. I could enjoy the sunset last week still. But in few months, it will not be able. I will not be able to see the sunset anymore when the high-rises are up. Like many other people, too. Don't make the mistake again. You know it. The eagle cannot talk. The eagle cannot read the construction or instructions to fly to the artificial tree what they have offered in previous hearings. No, it's an animal. And there is a little bit what is a difference between humans and animals. We can read. They don't. We have to protect Page 63 February 2, 2005 them. They need us. And they have the right to live here, as well as we have. Thank you very much. CHAIRMAN GAL: Go ahead. I guess you have some comments too? MR. YOV ANOVICH: Oh, just a few. I'll just try to hit the highlights. First of all, the last speaker made a comment about an artificial tree. That's associated with another petition, which you'll be hearing about shortly. I just want to -- there are a lot of points and comments raised about our -- the county comprehensive plan. I want to start with first of all, let us all not forget that this is private property. Nobody in this room has the right to go onto that property unless you're invited to go onto the property. So nobody has the right to enjoy that property today without the property owner's consent. It is not public property. So we have to go from that as a basis. We have C-4 zoning on the property today. That allows for a myriad of uses. Not -- and most of those uses will not include the public's enjoyment of the waterfront. So you have to go from that basis first. What's the existing zoning and how are the people going to get to the water that they so -- that they claim they want to get to and enjoy, which they have no right to enjoy right now. Look at the two alternatives that you have. You have the residential alternative and you have a hotel alternative, both of which provide public access to the water. Now, which one of those provides more public access to the water? If you look at the residential, and I don't know if you were provided a copy of the entire PUD document, but the PUD document talks about a public-private partnership in addressing needs for the public to access the water. One of the public private-partnerships is a contribution of a million dollars to assist in obtaining property for trailer parking for Page 64 February 2, 2005 people to use the adj acent park. It also includes the reconfiguration of the park parking lot to provide additional parking. So as one gentleman pointed out, just those 50 spaces that we can create, forgetting the additional parking that can be purchased with a million dollars, will provide -- if everybody used it 50 times, 50 times 365, it's a big number. That is a lot of public access to the water that isn't enjoyed today, even if the marina were up and running. That's only 450 people would enjoy the waterfront if you brought back the old marina. We're providing other people an opportunity to get to the water. There's also another contribution of a million dollars towards beach access. Again, those are two critical things that the public claims they want: Access to the beach, access to the water for boating. The residential alternative addresses that need. It more, more than compensates for the impact that this project will have on both of those, I'll call them level of services, but they're really not truly level of services. The Pelican Isle Yacht Club, if you saw on the R T map I think that Mr. Fee has up there right now, if you'll look at the zoning, it says R T and in parentheses 11. Well, that 11 stands for 11 units per acre. We're right next door to that piece of property. We're asking for nine-and-a-halfunits per acre. That is what your staff has said is consistent with the comprehensive plan. Now, they've gone over the glitches and all that other stuff, and the gentleman brought up that the Policy 12.2.2 limits density to three units per acre. Well, let me read you Policy 12.2.2: The calculated needs for public facilities will be based on the adopted level of service standards and future growth projections within the coastal high hazard area. The future land use element limits new residential development, and then in parentheses, thus obligation to infrastructure expenditures, end of parentheses, to a maximum of four dwelling units per acre within the coastal high hazard area. Page 65 ~___.,~..c..~._=.~..'__ __.""__.' ,. ... February 2, 2005 Someone find for me where in the future land use element it says you can't have more than four units per acre in the coastal high hazard area. If you can find it, show it to me. It doesn't exist. So that policy incorrectly references a limitation in the quote, future land use element. So you have to go back to the future land use element to figure out what density exists on this piece of property. There is no limitation on that conversion of commercial paragraph in the future land use element, the density -- the density calculation provisions in the future land use element. There is no limitation in the future land use element that supports that policy. You've got to go and you've got to rely on the future land use element. And I will point out, since we're going to bring up history about the discussions that occurred the last go round when we were talking about a 21-story building, when we got to the Board of County Commissioners, four out of five of them, not one of them mentioned the concern with the density provision we were asking for of nine-and-a-halfunits per acre. Not one of them, four out of the five never said that's inconsistent with our comprehensive plan. So I know that's not binding, we'll go back up, but that at least ought to give you some indication of what the board was thinking at the time, that that was not an issue for them. Now, the Conservancy says they want you to read the first sentence in Policy 7.1.2(3). They want you to just read the first sentence and ignore the second sentence. Well, you can't legally do that. You have to read all the sentences. And the second sentence reads: It is recognized that these agency recommendations on a case-by-case basis may change the requirements contained within these wildlife protection policies, and any such change shall be deemed consistent with the Growth Management Plan. They specifically -- your comprehensive plan specifically recognizes that the agencies may come up with different permit conditions to change Page 66 February 2, 2005 their general regulations, and that is deemed consistent with the comprehensive plan. That is in fact what happened here today. We have a biological opinion that addresses this particular pair of eagles and how we are to go forward with constructing our project. It is 100 percent consistent with your comprehensive plan. Your staff reporter even acknowledges that. You can't just pick and choose the sentences you want to enforce. And the Conservancy is talking about policy level decisions. These are future changes to the comprehensive plan. You're not allowed to apply policies that don't exist yet. There may be better policies within the comprehensive plan that the stakeholders group is coming up with. Those are for future projects. You have to apply the laws that exist today. And again, we are 100 percent consistent with the conservation element of the comprehensive plan. Florida Audubon appeared at the previous hearing. Florida Audubon preferred residential over commercial. Florida Audubon was actually the author of padding the dump trucks to help avoid that impact, which was the gunshot, as they described it, that would potentially scare off the eagles. That is -- that was -- we've been working with Florida Audubon to come up with appropriate measures. They will provide the monitor. We have agreed there's issues with the eagle and if the monitor says we need to stop, we will stop. That's in our eagle management plan. We have gone above and beyond to address every one of those issues. I need to point out that, you know, C-4 zoning, this is really the public's last opportunity to have some say-so in what's going to happen on this property. We have C-4 zoning as a matter of right. If these two proposals are not acceptable to the public, then we'll have to go forward with something else, and they'll have no say-so in what that something else is. We have come forward with two -- and we're proud of both Page 67 February 2, 2005 projects -- two very sensitive projects to the environment, as well as to our neighbors. And they're residential neighbors. We prefer the residential alternative. We believe that that is in the best interest of the people who live there, it's the best interest of the public, because of the public-private partnership, and in the best interest of the environment. That's our first priority. That's what we really would like to see happen. If that's not approved, we would like to build this nice hotel. This nice hotel is also compatible with the neighborhood. People who are saying that this hotel is not being designed to be compatible with the neighborhood, well, that's just not true. The hotel is sensitive to the neighborhood. It's not as sensitive to the neighborhood as the residential. The two-neighborhood -- I'm sorry, we had one neighborhood information meeting. And my -- when I came away from that meeting, because I was the first back when we were doing a 21-story building and these two 10-story buildings -- I thought the public viewed both of our petitions very well. They liked both the residential and the hotel. I think the preference, the clear preference, was for the residential alternative to go forward to being developed. The public would be fine with the hotel, but it was clear from that neighborhood information meeting that they wanted the residential to be developed. I think I've addressed all the major points I wanted to address from the public. The developer has proven himself in Collier County, he's proven himself with the project right next door. This is going to be essentially just like the Pelican Isle project. The Pelican Isle project is 10 stories, we're 10 stories. Weare requesting that you follow your staffs recommendations with a couple of changes I've made, pass this on to the Board of County Commissioners with the -- both petitions on to the Board of County Commissioners with a recommendation of approval. And I'm Page 68 February 2, 2005 here to answer any questions, and so are all the other consultants, if you have any questions. CHAIRMAN GAL: What are the uses in C-4 as it currently is right now? It's commercial- MR. YOV ANOVICH: Well it's as highest, well there's C-5 which is almost -- it's just below industrial. The C-4 is the most intense commercial you can have, that's the shopping centers -- the most intense commercial uses you can have. (Court reporters changed.) MR. YOV ANOVICH: Recently we made a presentation to the North Bay Civic Association, and I forgot to tell you the results of the vote. The first vote, there were 37 people who voted, 20 were in favor of the residential and 17 were in favor of the hotel. They took another vote after some people voted and the vote flip-flopped, and it became 20 for the hotel and 15 for the residential. Keep in mind that included the directors of the association in that vote. So you can see there's not this unami -- I could have said that word until B.J. Said it. Unam-- un ami -- whatever, there was unanimous support for doing nothing and leaving as it is. It's an issue that it has been divided, and it's not that clear-cut as, you know, maybe North Bay Civic Association is representing that the commercial alternative of the hotel is the better of the two choices. CHAIRMAN GAL: The question has been raised whether we take a break or not; if we do, how long a break? Any response one way or the other down there? MS. HUSHON: I'd like to get through the questions. MR. HUGHES: You want to throw one out so if they do take a break, they have time to prepare for it. CHAIRMAN GAL: Let's talk about this first. I think the questions are probably going to take a while to get through every question. Can we take a short break and skip lunch? Is that acceptable with everybody? Page 69 February 2, 2005 MS. LYNNE: How short is short? CHAIRMAN GAL: What do you mean? Ten minutes? What we're going to do is, we're going -- MR. HUGHES: Just one thing, if while we're on break, the county -- our staff could look into how the zoning was originally set, because 30 years ago, there were questions on zoning and how they were properly done. MR. MASON: We can see what we can find out. CHAIRMAN GAL: We're going to take a IS-minute break, we'll reconvene here at 12: 15 and then we'll start up with our questions. (Whereupon, a short recess was taken.) CHAIRMAN GAL: We'll call the meeting to order. I neglected to say prior, that the public hearing is closed and now we will take council member comments and they will ask questions. And are you from -- you're from the staff, correct? MR. BOSI: Mike Bosi, from Zoning Land Development Review. I just was going to address Council Member Hughes' question. This property -- MS. HUSH ON: Would you repeat the question? MR. BOSI: When the zoning of the property was designated commercial -- and to the answer of that question, I do not know. During the 1982 into 1974 (sic) zoning reevaluation programs initiated by the county, this was commercial. At those times before that date, I'm not sure when the actual designation of commercial before '74 was placed upon the property. I don't have an answer to that, but I know for over the past 31 years, it has been designated commercial. CHAIRMAN GAL: One additional housekeeping measure. What we're going to do is finish up with these two petitions, we're going to take a lunch break, and then we will -- after the lunch, we'll hear the Cocohatchee Bay petition. Are there any other questions? MS. HUSHON : Yes, I have one. I would like a little more Page 70 February 2, 2005 description on the hotel. We saw a brief picture, which is really the only thing we have seen, except for a footprint on the hotel. We saw a footprint. How many stories? How many rooms? Could you give us a little bit of background on the hotel plan? MR. MULHERE: For the record, Bob Mulhere. I think I indicated 230 rooms. The C-4 district limits height to 75 feet, measured in the same way it would be measured for any other building, from the FEMA elevation. And this hotel would utilize all of that 75 feet in height. MS. HUSH ON: And that's about half of the height of the two -- MR. MULHERE: 45 feet -- there's a 45-foot difference. The residential structures are limited to 120 feet, also measured from FEMA. 75-, 120-, 45-foot difference in height. Just a little bit more description. Am I right? Was my math wrong? CHAIRMAN GAL: No. MR. MULHERE: As I said, up to 47 slips. Obviously, the marina basin is configured differently. This portion of the property -- there's really more property available for the marina configuration in the hotel plan than the residential because of the two buildings. And again, the separation to two buildings was a direct response to issues of concern relative to the original height in the previous petition, which was 22 stories. Twenty-one over parking. That was in a single building at the time with some town homes. So, again, the two ten-story buildings, mid-rise buildings, were designed to address concerns over that height. Again, a typical hotel, resort hotel, in terms of the other kinds of ancillary uses that you would find here, you know, you have an entry feature here. And under the building, as I said, the majority of the parking will be located. There's a little bit of parking down here. And I think that there is some room for some additional service parking over here, although it's not shown on this plan. But, you know, your amenities. Sort of a swimming pool with a couple of spas and some sunning areas and some function Page 71 February 2, 2005 areas for hotel functions that would occur through their, I guess, banquet facility-type things, whether it be a wedding or meeting facility, or something along those lines. And the hotel will include a spa, and, again restaurant. One or two restaurants, a lounge, and some retail space. There's not a whole lot of retail space. MS. HUSHON: It looks like a lot of your hotel activity is not facing the eagles' nest. You're actually facing away from that -- for most of your parties or luaus or whatever we're talking about. MR. MULHERE: You know, that's correct. And I'd have to be honest to say, that's really a function of a couple of things. There was actual consideration to directing that away from that. But also, obviously, there's an amenity here in terms of the marina function and the water. So the more that the public viewing space could be directed towards that, really I think the better it is in terms of the aesthetics of the hotel and the reason why people would come there. MR. SORRELL: Question. Why not include the private/public involvement here as well as in the residential? MR. OELSCHLAEGER: For the record, Ed Oelschlaeger. The economics of a hotel are substantially different than the economics of a condominium project. And consequently, it's just not available. It's not financially feasible to do so. MR. SORRELL: Any transient slips, and is the boat store open to the public in the hotel as well as -- MR. OELSCHLAEGER: In the hotel there will be -- we've designated three transient slips, but I can tell you, as the case in most marinas, when it will be set up on this basis that when other boaters that have those slips are gone, they will be available for transient, for people to come in, either overnight. If they're gone overnight or for lunch, or whatever it might be. There will be a host of transient slips. MR. SORRELL: The fielding station on both will be public? MR. OELSCHLAEGER: That's correct, sir. MR. SORRELL: Ship store? Page 72 ....._- February 2, 2005 MR. OELSCHLAEGER: Ship store is also open to the public. MR. SORRELL: When we're talking about the cleanup, the previous owner, didn't he have environmental damage insurance as part of a marina? MR. OELSCHLAEGER: Environmental damage insurance? MR. SORRELL: Right, that would help in the cleanup? MR. OELSCHLAEGER: To my knowledge, no, but I'm not the person to ask about that. I'm not familiar with that. I can tell you that in our cleanup activity, under the residential, it's going to be to the tune of $300 to $350,000. MS. HUSH ON: Since you have some contamination on site, which the state, obviously, would have some, you know, concern over, have they raised any concerns about the fact that you may have to clean up to fairly high levels because you are in a sensitive area where the likelihood of that contamination moving off your site is very high? MR. OELSCHLAEGER: I will ask Jo Tucker to respond to that. I have my opinions, but I'm not the expert. MS. TUCKER: The cleanup, whether it be to residential or commercial standards, whatever cleanup we do there, or whether it be to standards that protect the groundwater, which is another layer of standard, would be done under the auspices of Collier County Pollution Control and/or the DEP. And all of the programs under which the cleanup would be done do take into account health and risk factors to both the public and the environment. MS. HUSH ON: Because you have contaminated soil, it's sandy soil, and, in fact, with rainwater you are flushing -- MS. TUCKER: It can lead -- MS. HUSHON: -- contamination with a fairly high potential to flush to the marina area -- MS. TUCKER: Correct. MS. HUSHON: -- as you're going to develop it? Page 73 February 2, 2005 MS. TUCKER: Correct. MS. HUSHON: And you're increasing the marina frontage, which means that more -- there's a higher potential to reach flowing water. Because you have water deeper, nearer more of the property. MS. TUCKER: Yeah. I think in the scheme of things, the cleanup would be affected before -- MS. HUSHON: I understand, but you're talking about two different levels of cleanup, depending on two different uses. What I'm suggesting is that, in fact, your level of cleanup -- the state may look at this and say, your level of cleanup needs to be higher than the standard commercial because you are in a sensitive coastal area, where the potential for that contamination to reach the ocean, or the bay water, is very high. The gulf water. I mean, it's a very quick calculation to say, yes, it probably could reach there, and it will reach there in 20 years or ten years, or something. They may well find that to be an unacceptable level. It would be an environmental concern, not a human health concern. Your other standards for the on site are human health driven, in general, your residential for commercial? MS. TUCKER: Yes, correct. MS. HUSHON: It tends to be human health? MS. TUCKER: Uh-huh. MS. HUSHON: So, the only other area that you'd have concern over is if you have a tot lot or something. That level will have to be __ even if it's commercial, will have to be cleaned up to a level, a residential level ? MS. TUCKER: Correct. I understand what you're saying. And I think if the state or the county, you know, wants additional evaluation beyond what the current state target levels would mandate, then we would do such evaluation and work with them on that. MR. KRAUT: I have a question for Ms. Tucker. Irv Kraut, for the record. Looking within the -- deep within the documents, and probably items that are unknown to many of the people Page 74 '-".., .-.-.-,.,,-.---- February 2, 2005 that are here today, are some fairly high levels of metals such as arsenic, chromium, lead, and copper that are on site. What's your management, environmental management scheme to remove those, and how long of a period of time will it take, and do you plan to just meet state regulatory guidelines or to exceed them? MS. TUCKER: A remedial plan, work scope, hasn't really been finalized at this point, but, it is likely that we would excavate the contaminated soils, which are mostly surficial. They're in the upper one to two feet for the most part, and remove them from the site. From the laboratory data that we have at this point, if we removed the upper one to two feet of soils in the places that -- let's just say we're using the residential target level -- if we remove the upper one to two feet, we will be below the target level. So we would have met or exceeded the state target levels. MR. KRAUT: And that would be under residential, and so I guess the follow-up questions, perhaps for the developer more than you, since we're responsible for stewardship of the environment for the citizens of this county, I think it would be most appropriate that those most stringent residential levels also be applicable to the commercial development should this go hotel rather than residential. It should not be any less than that. And the question therefore, for the developer, is whether or not they, or he, would agree to those more strict levels of environmental cleanup, should it go commercial hotel versus residential. MR. OELSCHLAEGER: As a practical matter, the answer to that is yes, we would do that. It's an environment that we're all concerned about. I live right next door to it as well and that would be the standard. MS. LYNNE: So what happens, you remove the top couple feet of soil and then what do you do with it? MS. TUCKER: It can be land filled in a proper landfill. Sometimes it can be incinerated. We haven't made that choice yet, but Page 75 -~- ,. '.' -....,". "....,,<>~~._-, "",,~,--"----,~._,,_. February 2, 2005 there are various options. MS. LYNNE: And when you take the soil off -- and I'm having trouble seeing how you're going to dig more of the marina and not get contaminants into the estuary. If there's contamination on site, you're going to excavate the marina larger, how are you going to avoid getting those contaminants into the water when you're doing the excavation? MS. TUCKER: Well, some of the areas that are contaminated are not adjacent to the water. They're back on the interior of the property. But I think in general, the answer would be that, when you do an excavation that's going to impact the surface water adjacent to the land, you have safeguards to protect the surface water. That's standard with any construction at the water line. MS. HUSHON: Also, you're doing site remediation prior to any marina construction, correct? You'll do site remediation first? MS. TUCKER: I think that would be -- MS. HUSH ON: That's the normal-- MS. TUCKER: -- objective and the normal thing to do, yeah. MS. HUSH ON: You have to get a clean -- I want to say clean bill of health on the site before you can actually start developing, the state usually requires that, but I haven't worked in Florida to know whether that's their procedure. MS. TUCKER: I mean, I could see that some parts of the excavation of contaminated soil say it could be done immediately before other site work, so, you know, almost a sequential activity, but it would make complete sense to get rid of the contamination before you try to do other construction on the site. MS. LYNNE: Is that the plan then, that all of the contamination would be gone before the other construction starts? Could you put it on the record, please? MR. OELSCHLAEGER: Yes. And I would also, just before -- my understanding is yes, but I would also ask Ken Humiston, who is Page 76 -'--'-~~.,----,.,~. February 2, 2005 the consulting engineer on this, if that, in fact, is the case as it relates to dredging of the basin and the connect with the existing waterway. MR. HUMISTON: Yes, I think it is. I mean, I would agree entirely with what Jo has said. E In removing the contaminants from the upper couple of feet, you would not be down into the water table at that point. But that excavation could be the first step in actually excavating the basin, except that first step would be completed before any further evacuation of the basin took place. The sea wall would be left in place, so that the whole site would be contained until the final excavation was completed. So I don't think there would be any leeching of contaminants during construction. MS. TUCKER: May I add one caveat to that? We're talking soil contamination here. With groundwater contamination, it sometimes takes months and months to remediate it. MS. HUSHON: I understand that. MS. TUCKER: And it might not be necessary to wait for the other -- MS. HUSH ON: I'm not sure whether they will require you to do that remediation or not -- MS. TUCKER: We don't know how long it will take, if it does have to happen. And so, it's entirely possible, and it's done all the time, that construction occurs on a site that's being actively remediated for a groundwater issue. MR. HUGHES: You're assuming that the cap rock approximately three feet under the surface is impervious? MS. TUCKER: I don't think we have cap rock three feet under at this site. MR. HUGHES: You say the contamination runs to three feet. MS. TUCKER: I'm saying that we've tested at the surface, we've tested a couple feet down. The contamination levels diminish with depth, so it's mostly a surficial contamination. MR. HUGHES: Have you forged deeper than that? Page 77 --~'--~-"'.'~-="-~'~- ·,~__..___o._ February 2, 2005 MS. TUCKER: Yes. MR. HUGHES: How deep is your deepest pour? MS. TUCKER: Probably three or four feet. And at that depth we have -- we've met target levels. It's diminished to the point where it's really not there anymore. MR. HUGHES: And the geology is -- how is the structure? MS. TUCKER: It's sandy soils. I think we have some weathered limestone at 15 to 20 feet below the surface. MR. HUGHES: That far down? MS. TUCKER: Uh-huh. MR. HUGHES: We don't have a hard panel there? MS. TUCKER: I don't recall anything like that at this site. We've done some geotechnical borings there too, and to best of my recollection is, we didn't hitch anything until we got down 15 or 20 feet. MR. HUGHES: So if this is the case, and all contaminants are contained within, let's say, the first three feet of the surface, when you do the remediation, you will be removing all of the contaminants as a standard procedure, period. MS. TUCKER: Right. MR. HUGHES: You're going to box it up and haul it away. MS. HUSHON: And you'll be just testing after you've removed? MS. TUCKER: Right. We would test to confirm that we've met the target levels at the bottoms and sides of the excavations. MR. HUGHES: And you're going to contain and box and ship __ which I used to do so I'm quite familiar -- most of that $300,000 is going for the landfill to park it in. MS. HUSHON: That's right. MR. HUGHES: So, that's essentially what you're doing. You should leave the site clean, period; is that correct? MS. TUCKER: Yeah. And then the groundwater has to be addressed also. Page 78 -'-'''--''~--'---'''-''-''''-'-"''--~_..-.,.... February 2, 2005 MS. HUSHON: That's a separate issue. MS. TUCKER: That's a different matter. MR. HUGHES: That's my concern, how do you get groundwater contamination without some kind of perforation? MS. TUCKER: Groundwater, if there's -- there's a localized, we believe, zone of contaminated groundwater near the shop. And you can extract that from the ground with an extraction well and process it through a treatment system. And then either put it back or dispose it to the sanitary sewer. MR. HUGHES: What is the contaminant at that point? MS. TUCKER: MTBE. MR. HUGHES: Is that where the tank was buried? Is there a buried tank there? MS. TUCKER: No. MR. HUGHES: So to be that deep, there was some kind of construction that disturbed that area? MS. TUCKER: We don't know how it got there. MS. LYNNE: There are some buried tanks there, aren't there? MS. TUCKER: There are tanks. The existing -- the most recently operated fuel tanks are quite a ways from that spot. They're over near the shoreline. And it's my understanding they've recently been removed. There was a waste oil tank not too terribly far from this groundwater problem. It's been closed for some time. I guess it's a potential source, but we don't really know for certain. MR. SORRELL: How many samples were taken, soil samples, on the property? MS. TUCKER: I don't remember offhand without counting. Three or four dozen. Maybe more. MR. SORRELL: In ten acres? MS. TUCKER: What we do, when we do this kind of assessment, is go to the places most likely to be contaminated based on our research into how the site was used. So there were some areas Page 79 February 2, 2005 where there was no reason to think any kind of an environmental impact had occurred, and we wouldn't have sampled there. There were other areas we took numerous samples in because there was a probable source. MR. SORRELL: Fourteen? MS. HUSH ON: Fourteen. MS. TUCKER: I think it's probably more than that. There are two different -- MS. HUSHON: Table two. MS. TUCKER: Two different reports. MS. HUSHON: This is table two. There actually are more. It's a question whether the soils are set -- MS. TUCKER: There's a report -- there's a table. MS. HUSHON: Eight more. There are 14 plus eight, 22. MS. TUCKER: Okay. MS. HUSHON: I don't know which once. This table does not appear to have your sediments in it. MR. HUGHES: So if we go and remove the surface and we have deeper contamination, you're proposing to use extraction methods to do that? Flush it out, activated carbon and absorb __ MS. TUCKER: If it's a groundwater issue, we may have to do that. MR. HUGHES: And that would continue until the contaminants are low? MS. TUCKER: State target levels. MR. KRAUT: Ms. Tucker, will it be a requirement that you achieve from the State, or the Federal Government, a temporary hazardous waste generators permit during this operation? MS. TUCKER: I don't know if we will be doing anything that actually generates a hazardous waste. If we do then we'll have to have a temporary ID number. So far I haven't measured any levels that are hazardous waste levels. Page 80 >.,,".."-.._--~-" February 2, 2005 MR. KRAUT: In the act of providing the structure of the waste removal from the site, is that going to be done through your company, MACTEC, or will there be somebody charged with the responsibility for the environmental cleanup at the early stages? MS. TUCKER: I think the plan is that we would oversee it and do it. We might hire subcontractors to do part of it. MR. SORRELL: Where is the irrigation water going to come from when the project is finished? MR. MULHERE: There is water available at the site through county utilities. There is no ability to reuse water at that site, so -_ MR. SORRELL: Right, I didn't. You wouldn't be permitted to drill a well, so -- MR. MULHERE: No. MR. SORRELL: So no chance you're going to pull out the contaminants and irrigate the property with it? MR. MULHERE: Yeah, it would be-- MR. HUGHES: My next question is pertinent to the building itself, the architecture. The height of the residential would be approximately 100 -- MR. OELSCHLAEGER: 120 feet from FEMA. MR. HUGHES: Now you indicate you're going to put your parking garage below grade, is that what you're saying, or is that above grade? MR. OELSCHLAEGER: Part of it I think is below grade. Let me just check something. I stand corrected, it's at grade. MR. HUGHES: So it is a different -- current grade. So we don't run the risk, like several others that have been built, that they flood at high tide or when the first wind blows? MR. OELSCHLAEGER: Right, no, it's at grade. MR. HUGHES: That's good. CHAIRMAN GAL: I have a question about the building also. It goes back to that biological opinion of the Fish and Wildlife Service. Page 81 February 2, 2005 When they said that the applicant must make every effort to conduct construction activities that are closest to the nest tree during the non-nesting season, and you had said you're going to build as far-- this pertains to the residential project? MR. OELSCHLAEGER: Uh-huh. CHAIRMAN GAL: The two buildings at the same time. Couldn't under your -- seems to me if you're making every effort, as required by the permit, that you'd be building the building closest to the nest first, and then the one furthest away second. MR.OELSCHLAEGER: I think as a practical matter, to build them both at the same time, and as quickly to reduce the period of time of disturbance, probably makes the most environmental sense. CHAIRMAN GAL: Has anyone thought, or mentioned to you, about building the northern building first, working on the interior during the nesting season -- I guess you're going to overlap a little during the nesting season -- and then the next year building the southern building that's further away from the nest? MR. OELSCHLAEGER: No, we haven't had that discussion because we felt, again, that if we can build them both together, that is best for the neighborhood, it's best for the birds, it's best for everyone. Because again, the activity is reduced. The construction activity period is substantially reduced. CHAIRMAN GAL: In the two-year time frame that was given before I asked, is that for the shell of the building or is that from beginning to end? MR. OELSCHLAEGER: That's beginning to end. CHAIRMAN GAL: So, do you plan on constructing the shells of both buildings first at the same time and then you go into the interior? MR. OELSCHLAEGER: Correct. CHAIRMAN GAL: Okay. MS. LYNNE: I fail to see how building both of them at the Page 82 -", ...__.. '-"-""_,~-"",...__..,_..._. February 2, 2005 same time benefits the eagle. MR. OELSCHLAEGER: Only in -- you know, other experts can give their opinion -- and this is just my personal opinion -- is that that disturbance -- have one disturbance instead of two disturbances. In other words you run the risk -- what the incidental take permit says, what it really means is, in my opinion, is that they're running potential risk of missing a successful nesting season. So, to the extent that chicks do not get produced in that one season, that is in the long-term interest -- based on what the Fish and Wildlife Service is saying -- is that that is an acceptable risk, because of the long-term benefits. But if you were to do that in two stages, you would have run the risk of in two nesting seasons as opposed to a single nesting season. So, I can guarantee you that the Service would tell us one time is better than two times. MR. HUGHES: I have another one. This probably would go to Stan and the county staff. This is in a coastal hazard zone limited to four, that would wipe out their project, correct? That would wipe you out, number one? MR.OELSCHLAEGER: I'm sorry, sir. I didn't hear your question. MR. HUGHES: In the coastal hazard zone, if you really were limited by the intent of that law, that clause, this project would be done, wouldn't it? MR. OELSCHLAEGER: Yes. MR. HUGHES: There's no money. MR. OELSCHLAEGER: That's correct. MR. HUGHES: And that's the gamble you're still playing? MR. OELSCHLAEGER: That's correct. I can tell you on that point, we did meet with the Department of Community Affairs and have an opinion from them, that it is not, or is appropriate for the density transfer in the coastal high hazard area. I think I've stated that right, Rich? Page 83 -- February 2, 2005 MR. YOV ANOVICH: The Department of Community Affairs essentially said that, you know, it's staffed -- they don't disagree with staffs determination. They're to interpret their own document. It's not a violation of any state law to allow more than three units per acre in a coastal high hazard area, as far as DCA is concerned. MR. HUGHES: Right. It's just an intent to reduce our exposure and our risk in these coastal areas. MR. YOV ANOVICH: And if I can point out -- and, you know, this was brought up at the last go-round, the county zone emergency person, Dan Summers, said to the Board of County Commissioners, he's not concerned with hurricane evacuation for a couple of reasons. One, most of these people are not going to be here during hurricane season; and, two, we've become pretty sophisticated in the warnings that we have now that people can start to leave sooner. And we had a good example of that last season. I don't think we had any issues with evacuation. MR. HUGHES: Which brings up a question I have for the general welfare of everybody in this county. What is a building like that designed for in a wind speed; 135, 138 miles an hour? MR. MULHERE: I can't 100 percent attest to this. I believe the new statewide building code requires design to 150 mile an hour wind load. MR. HUGHES: ISO? MR. MULHERE: Yes. MR. HUGHES: So if this gets built, 150 mile an hour storm? MR. MULHERE: That's correct. MR. HUGHES: Perfect. CHAIRMAN GAL: Question, you had stated before that the staff s recommendations are consistent with the growth management plan as the policy states now. If the staff had decided that this project was not consistent with the growth management plan because of the construction in the secondary zone, under the existing policy still, Page 84 -- February 2, 2005 wouldn't that have been consistent because the policy, as it's written, is ambiguous? Doesn't the policy say that the staff can take and use those recommendations, but they could apply a stricter standard? MR. YOV ANOVICH: No, it doesn't say that. The words they use -- it says, that the -- consider and utilize the recommendation. The word utilize can only mean one thing. It can't mean ignore. It says to utilize them. And then it goes on to say these recommendations will be consistent with the comprehensive plan. I honestly don't see the ambiguity. CHAIRMAN GAL: Your position is that if, whatever the Fish and Wildlife Service says, then the county must -- MR. YOV ANOVICH: The county has -- CHAIRMAN GAL: -- follow those recommendations. MR. YOV ANOVICH: And you need to understand why. The county will tell you, they don't have the expertise. They don't have the scientific knowledge to really make these decisions. They've deferred to the agencies that have the scientific knowledge. If you want to bring the people onboard and pay the people you need to implement a county program, that's fine, but we don't have one right now and they've deferred to the people who know the business, and who's responsible for these listed species. That decision was made in the comprehensive plan. And there's discussion about maybe changing that, but there have been no changes at this point. MS. LYNNE: But we have some documents in here that indicate that Marti Chumbler, who is legal counsel-- outside legal counsel -- does see it as being ambiguous. MR. YOV ANOVICH: Right. And we just went to the Board of County Commissioners, and the Board of County Commissioners decided they didn't need to change the language. We went through that. The glitch amendment did not pass. I'm just telling you, we've already had the decision. The Board of County Commissioners made the decision to not change the language. Page 85 -_._~. ····_"...__,~'"M_...~"_,_.,__~..~_."__....__....,.._~" February 2, 2005 MS. LYNNE: That doesn't mean it's still not ambiguous. MR. YOV ANOVICH: The Board has basically said we're going to continue to delegate to the State and Federal agencies. CHAIRMAN GAL: Any other questions? MR. HORN: Sir, earlier you had said you were opposed to staff recommendation number four in reference to the .82 acres of mangroves? MR. YOV ANOVICH: Correct. MR. HORN: I was just curious as to the reason why. Was that a financial complaint or another reason? MR. WOODRUFF: The .82 acres of mangrove, that was never a part of a requirement of the biological opinion that was written by the U.S. Fish & Wildlife Service. That was a part of a site plan that included a 21-, 22-story building that was denied in the past petition. But it was never a requirement, it was just part of that particular site plan. And Ken Humiston can talk a little bit to you about why it was designed that way, but I can tell you that the mangroves themselves, the petitioner's reason for planting the mangroves had nothing to do with the creation of those basins. That was something that he took upon himself to do entirely separate from what they were actually designed to do. COMMISSIONER HUME: I've got comments on a couple of staff recommendations, and that was one of them. It's item number four under the environmental recommendation and the PUD rezone petition, and it's, I believe it's item number one in the conditional use. I just wanted to kind of clarify the reason that those mangroves were planted there. The dimensions of the basin in the original plan were such that the horizontal distance from the opening of the basin to the far back end of it was such that the natural tidal action would not flush it very efficiently. The .82 acres was actually part of the basin that was excavated only down to the main low water elevation. It was not actually part of the basin that boats would be in. What that did is, it Page 86 ~_. .. -----,--".,,- ..~.- "-" February 2, 2005 created a shelf in the far reaches of the basin that would be dry on a low tide, and then it would fill up with water on a high tide. So, what it essentially did, was create a flow through the basin to improve the flushing. The mangroves were simply added more as an aesthetic enhancement really. Putting some clusters of mangroves in that area would make it look more like the surrounding waterway, but it was not a requirement of a permit for mitigation. It was not a requirement of the Fish and Wildlife Service. And I believe the only reason it's in the biological opinion, is in the part of the biological opinion where they're describing the project. So I think it's -- I do think that's unnecessary as a requirement of either the PUD or the conditional use. MS. LYNNE: Can we have some staff comments on that? MS. MASON: It was staffs opinion that, since this was part of their original submittal to the Wildlife Service that there was no way we would know if this was taken into account when they issued their biological opinion, whether or not it would have influence. So, until it was modified, we would use the entire biological opinion that was issued and not just parts of it. MS. LYNNE: So they submitted a proposal that includes the mangroves? MS. MASON: Yes, they did. And that biological opinion, they didn't request a modification when they reduced the height of the building, or made the other changes to the site plan. So the only biological opinion we have, is the one that shows the mangroves. COMMISSIONER HUME: The situation with the -- particularly with the PUD rezone, the basin is quite a bit smaller, so it does not have the shelf in the back for the purposes of flushing, so there would actually not be a place to plant the mangroves. The mangrove planting really becomes irrelevant with this plan. I think with the conditional use plan that's -- the site plan actually shows a longer basin, and it does show part of that original flushing area there, although I don't think the square footage or acreage of that has been Page 87 ~..........._._--,--"._._----~.,,,.._..,~,-~_.. February 2, 2005 determined. It's something that would be resolved during the DEP permitting process. That's where this came out of, was the DEP water quality permitting process, rather than the biological opinion. Are we ready? CHAIRMAN GAL: I guess not quite yet. We're always asked, it seems like, to take an economic impact into account also, whether we voted no, whether this would be taking property rights issues here, future lawsuits. CHAIRMAN GAL: I'm just trying to think through ramifications of the no vote versus the yes vote, and the yes vote is, you know, residential or hotel and spa. And I guess my question is is, are you currently the owner or is the property under contract? If this project is denied by the Board of County Commissioners, is your contract void -- maybe it's not even --. MR.OELSCHLAEGER: Let me see if I can respond to that because that's a very important question as to what is going to happen in the event that both of these were to be denied by the Board of County Commissioners. I have it under contract. I have had it under contract for almost three years now. We're going to purchase this land one way or another. If both of these proposals are denied, what is going to happen to that property has not been finally determined, but something will happen. And it won't be anything that comes back through this process. It's going to be something under C5. And it's, in my view, it's either going to be a retail commercial center, or it is going to be a very large boat club concept, or something like that with much more intensity than either one of the two alternatives that we're trying to seek approval for. And that's not meant to be a threat at all. It's just a practical understanding of what uses are permitted on the property today that we're asking for permission to change it. CHAIRMAN GAL: Right. My thought, as it relates to the eagles' nest is, if under any scenario, it sounds like construction is going to happen in the secondary zone, and then the issue is, what sortl Page 88 February 2, 2005 of construction, how long is that construction. MR. OELSCHLAEGER: That is correct. And as a matter of fact, since the letter in December from the Fish and Wildlife Service, what they've really done -- and, again, this is layman's terms -- they've really deregulated the secondary zone. The secondary zone of protection used to be it wasn't prohibition of construction. It was regulating that construction activity. What they've done now is deregulate that activity. Statute hasn't changed so there is still some criminal penalties and so on with respect to harassing of eagles, and none of that changed, but the controls that we've agreed to from the biological opinion and the negotiations on the eagle management plan and manatee protection plan, those things would not be in place at all when we go forward with whatever the other alternatives may be on this property. So they've really deregulated the secondary zone. That's the practicality of it. MS. LYNNE: If you're still planning other uses for this property, why didn't you just duel it? Why are you still under contract? I mean, still being under contract implies that you __ MR. YOV ANOVICH: At this point it doesn't matter. MS. LYNNE: It does matter. MR. YOV ANOVICH: Well, actually, it doesn't. With all due respect, the economics of this and his contract negotiations, and when he's going to close on the property have no -- have nothing to do with the environmental concerns that you're charged with. Because he negotiated the ability to delay a closing, it has absolutely nothing to do with what this board is charged with. MS. LYNNE: It has to do with what he's saying he has plans to do with it and he's not going to bring it back for environmental review. MS. STUDENT: I just want to remind this Board that pursuant to the land code, there are certain duties and responsibilities outlined for the EAC, and they directly relate to preservation, conservation and environmental considerations. I just wanted to remind the Board of Page 89 February 2,2005 that. MS. LYNNE: Well, if something is not coming back before us, that's something we need to be aware of. MR. YOV ANOVICH: Well, you know, if you understand, we've been here a couple of times. Why would we want to come back, if these two are denied? You know. COMMISSIONER HUME: You're having fun, right? MR. YOV ANOVICH: Well, you know, I'm getting grayer. You know, we believe -- you know, in all sincerity, we believe we have worked with the neighbors around us to come up with two very attractive proposals. The residential is clearly what the people living nearest to this proj ect want. We worked hard to protect the environment and we think these projects are worthy of a recommendation of approval. CHAIRMAN GAL: Comments? COMMISSIONER HUME: I have one other comment on another one of the staff recommendations on the environmental area, which would be item number one under the PUD rezone, and item number two under the conditional use, which has to do with draft restrictions. It refers to the manatee protection plan. And someone else here referred to the inlet management plan and the three-foot draft restriction which, in fact, is not a restriction. Both of those documents, the manatee protection plan and the inlet management plan, refer to the Corps of Engineers design criteria. When the Corps did their original design for the waterway, the three-foot draft was simply one part of a criteria that they use, which included low tide plus a two-foot allowance for wave conditions. That would be two feet below the drop of the waves, so you're actually talking about a four- foot wave, which is a pretty rough condition for somebody to be navigating that inlet. In fact, those kinds of conditions only occur about three percent of the time. We've looked at this pretty carefully. The rest of the time there's plenty of water, even at low tide, there's Page 90 ,..^..",,---.,..".-,,-<~-..--.~~. February 2, 2005 water there for a five-foot draft boat, and I don't think there are any five- foot draft boats in there. You might consider the analogy to the question was raised before about what buildings are designed to withstand turns of wind velocity, and maybe it is 150 miles per hour. You know, that might be a storm that you would expect to occur here every 50 or 75 years or something like that. There is a possibility we could get a storm here with a 200-mile-an-hour wind. Probably wouldn't occur but every 100 or 200 years, but there is a possibility, so why not design the building to withstand the 200-mile-an-hour wind. It would be a lot more expensive, but it would not be justified cost wise. And that was the same consideration the Corps of Engineers looked at when they used the three-foot draft in their extreme design conditions. They knew that there were boats of four- foot draft, or even greater, in the waterway at that time, but it was not economical to try to maintain a waterway of a depth that would allow a greater draft boat to pass through there, when the majority of the boats were three- foot draft or less. But there never was any intent for it being a restriction to a three-foot draft. We have another inlet in Collier County, Gordon Pass, which is also a Corps-designed proj ect, and there's no draft restriction there. MS. HUSHON: My experience with the Corps and with these waterways is that what happens is, you dredge it and gradually it gets stretched every two years. I'm not sure what the cycle is for that pass, but towards the end of that two-year period, you're not going to get a five- foot draft boat through because it will of silted in to the point where that boat won't make it successfully. Maybe at very high tide kind of thing it might get in, but on a daily basis, you are not hopefully going to bring in and out a five-foot draft boat. COMMISSIONER HUME: That's correct. And that's true probably of any tidal inlet of a sandy coast, because the channel shifts around, the shore will shift around, and a certain amount of local knowledge is required, particularly when it gets toward the end of that Page 91 .----.........""...-----,,--.- .- ~. ...,.._._-,"."-~.~^.. February 2, 2005 two- foot dredging cycle. But I don't think that imposing a draft in a PUD document is appropriate. I think that it will be ill-advised. I don't know of any inlets that have an actual draft restriction. CHAIRMAN GAL: Any other comments? MS. HUSHON: Are you ready to accept changes to the staff recommendation? CHAIRMAN GAL: I'm sure you can make -- MS. HUSHON: I'd like to make two changes to the staff recommendations. This one I'm looking at, it says revised 12505 HEMVB. It's for Coconilla PUD -- PUDZ. And I would like to add to number two that we need to add a procedure to the Eagle Management Plan to cover actions to be taken if an eagle problem is suspected or observed. This is a specific set of actions. Who will be notified? What will happen? Who will reach a decision? What I'd like to be able to do is have this go into effect if a problem is suspected. Then it's time to diagnosis, is there a problem? But meanwhile you're not making it horribly worse. If it looks like they're not feeding their chicks, maybe we need to be quiet for a few days. It may not need to be quiet forever, but we -- you may benefit from a few days of relative quiet to let those eagles kind of settle back down again and restart feeding those chicks. So I would like to add -- it isn't a big deal to add this to your eagle management plan, but I think you need to think through from the beginning what you're going to do if there's a problem. You need to anticipate that there might be. We all say there could be. So let's just put in the specifics of who gets called. Who meets. Who goes out and inspects. You know, do you call in people from Audubon at that point and get a whole crew in there to observe? Maybe you do. I don't know. But this is -- we need that in the eagle management plan. MR. YOV ANOVICH: Is that a -- you're just asking to add the concept and we'll flesh out the details by the Board? I mean, right now, the way it's written. Is the monitor who's from Audubon will let Page 92 " . -__"~._'_._b~~ ..,...... ~._"_.._.._..,-,._---- February 2, 2005 us know if there's a problem. It's a question of who the us is. Obviously, he's going to tell us, the developer. You're saying add the county? MS. HUSHON: Add the county and add a procedure to it that you're going to follow. This may be six or eight lines. I'm not talking about a big deal, but the fact that work will stop immediately until you figure out if it really is a problem. What I'm trying to say, if you even suspect a problem, I don't want it to happen after they've stopped totally feeding these chicks. Then it is a real problem. I want it when they think there's -- when this observer thinks there may be a problem, I want that person to be able to stop you temporarily until we get multi heads observing the problem -- MR. YOV ANOVICH: Sure. MS. HUSHON: -- and get the county involved, yes, absolutely, no question about that. And potentially more, Audubon, the Audubon person may want to bring in more Audubon observers. CHAIRMAN GAL: Does the authority -- does the county have the authority to stop the project, or does the Fish & Wildlife Service, or who would have the authority to issue a stop work order? MS. MASON: If they violate their eagle management plan, the county could stop work, and we would rely on the monitor coordinating with the Wildlife service to come up with an acceptable way to remedy that. CHAIRMAN GAL: Who would the monitor call, in the event that there's a -- MS. HUSHON: That's what we're saying, we need that flushed. MR. YOV ANOVICH: So, you're saying right now it says that, you know, we basically stop it if we elicit abnormal behavior? You want it to say elicit or is suspected to? MS. HUSHON: I want a procedure that if we suspect something, I want a procedure -- specific procedure that will be followed. Who will be called? The county will be called, you'll meet, Page 93 -"~"""~""--""'-"""""-""- -" --.. ~---~'-->'-~" _._"_"~"'_'."'"'~'W' ",.." "'~""_"'._ ..",_~_~__."___. February 2, 2005 you'll observe and things will be shut down for a day or two until you figure out if there really is a problem. You may decide to shut down work for a week or two weeks during a very critical time for that eagle's nest. CHAIRMAN GAL: I think there needs to be someone outside from the developer that tells them to stop work. MR. YO V ANOVICH: Well, Audubon is independent of us. But Audubon will be monitoring the nest? CHAIRMAN GAL: Yes, they're monitoring, but if they said stop work now, they couldn't. MR. YOV ANOVICH: What they need to do is -- you're right -- and we can add that they'll notify the county and we'll stop. MS. HUSH ON: And I would like to add, if there is a problem is -- what did I say? Suspected or observed. MR. YOV ANOVICH: Okay. MS. HUSH ON: That's two additional words that makes it a little bit -- MR. HUGHES: May I interject more on that point, just because it's relative to my technology. And I've heard issues all day that not just affect this project, but other projects because these same issues. If you're going to be that close to this nest, and you have that kind of a site, a good high-definition zoning video camera head with a nice long lens, aim it at that nest, record the thing 24 hours a day. Not only can we have this alert that she's asking for, which I agree with, we might actually develop a precedence base as to what noise happens when something actually occurred. So that benefits not only you guys, it benefits the other developers. MR. YOV ANOVICH: And, of course, we don't have any problem with that. We're happy to put up whatever the best technology is to focus on that so you can see it and observe the behavior. We're fine with that. MR. HUGHES: We're helping each other at that point. Page 94 ---- .....-.."'"'.-.-.........-..-...-,,---.-.,---.. February 2, 2005 MR. CHRZANOWSKI: Just a quick question. I've known Mr. Oelschlaeger a long time and I trust him and I trust Rich and I trust Bob. But Margie, how easy is it for us to go out and just shut someone down? Real easy? MS. STUDENT: Well, there's procedures in the code for the county manager to be able to do that if there's a violation. And I have to review those procedures in the code, but there are procedures to do that. MR. CHRZANOWSKI: So it's not something where we can just go out and give them a red tag and say you're shut down. MS. STUDENT: Oh, it may be because code enforcement -- I'm just thinking of the example that we have about historical or archeological assets -- if you want to call them that -- on a site. And we always have specific provisions in the PUD that say, if one of those is found, the code enforcement is immediately contacted, and then whatever remedial actions. So I think it's something that can be done fairly easily. MR. YOV ANOVICH: I mean, you red tag people frequently in construction. It would be the same concept. You have to stop, then if you don't, then you've got problems with law enforcement. MR. CHRZANOWSKI: And a lot of times we're told to call the police. And the police don't want to come out and enforce a construction site. I'm just asking a question. I trust you guys more than most. I was just curious because everybody made it sound so easy, and it's not. MS. HUSHON: Okay. Let me give my second change. That was the first change. The second change was to number five. And I would like to add right at the beginning, that contaminant removal shall be performed to a residential standard due to the proximity to the gulf sensitive environment. MR. YOV ANOVICH: And that's for the commercial? I mean, Page 95 February 2, 2005 for the hotel alternative? MS. HUSH ON: Yes, sir. MR. YOV ANOVICH: Okay. MS. HUSHON: He agreed to that. MR. YOV ANOVICH: No, I'm with you. It's unstated obviously for the residential. I just wanted to make sure you were talking about that. MS. HUSHON: I just put that in there. MR. YOV ANOVICH: Okay. MS. HUSHON: Those are my changes. MR. YOV ANOVICH: And we had brought up the draft restriction language about deleting that. CHAIRMAN GAL: Is that in Coconilla? MR. YOV ANOVICH: That's in both. It's number two on the hotel, and number one on the residential. MS. LYNNE: The most recent letter from the Fish & Wildlife Service still states, even though they say that you can do your building, it still says, in all cases, we recommend that exterior construction activities and work site in the primary and secondary zones be conducted outside of the nesting season. So we're still, if we go through with this the way we have, we're still talking about approving something that is not recommended. They're saying okay, you can do it, we're de-regulating this, but it's not something that they recommend. MR. YOV ANOVICH: Well, if we can continue on with the letter. In the event the sidewalk and exterior building construction is secondary zoning is not completed during the non-nesting season, the bald eagle management guidelines, September 2002, should be initiated. So they recognize that there are going to be cases where we don't finish, and they're telling us what to do when we don't finish. So you have to read the entire letter to understand what they're saying. They're not saying you can't do anything exterior. They're saying Page 96 February 2, 2005 there are these guidelines that we need to follow, and our eagle management plan follows the guidelines. We shouldn't be treated any differently than anybody else. And that's with the draft restrictions as well. If you have a private home that uses that inlet, there's no draft restriction on you. There's no reason to put a draft restriction on us, if it's not going to be a draft restriction that applies to everybody who uses it. MS. LYNNE: The next paragraph does say that if it's not completed -- but one could also say that that's assuming -- I mean, you are intending, you already know. You're not planning something that you hope will be completed during that off season, you're planning something that you know is going to go into there. And I think it pretty clearly says that they would prefer that that not happen. I under -- you know. MR. YOV ANOVICH: I don't think that this language is saying if by accident you missed your construction schedule, you get to complete. I think it recognized that there are some construction activities that will go into the nesting season. And we have procedures to safeguard and address those situations. MS. HUSHON: I think this does, however, behoove the builder to plan and do very careful planning so that you are optimizing your time on site and having things staged and ready. You don't want to be worrying about where your concrete is coming from because there's a shortage of concrete, or the I -beams couldn't come in because something. You want to be really -- I don't know how you say -- up front and planned. And all we can do is encourage you to do that in this, is to do proper prior planning up the wazoo on this project. This project is more sensitive than probably anything else you've built. And that's why. There's a reason behind requesting it properly. Also, I think we would request that you complete the further building to the extent possible. You stage that and move this way as much as you can do so. That you do the closer building, to the extent that you Page 97 _,'-_'^' ",._...~~__~~·L_·,.,.m~" February 2, 2005 can do that one as the lead, the noisier one. Get that out of the way during the non-nesting season as you're moving down. MR. OELSCHLAEGER: As we're moving from south to north. MS. HUSH ON: North to south. North is more sensitive than south. So you would want to stage your activities, but I'm just saying, we would want you to stage your activities so that during your non-nesting season, you do as much work as you absolutely can on that north building and then move towards the southern one -- MR. OELSCHLAEGER: I understand. MS. HUSHON: -- as necessary. You're optimizing your work on the north building. MR. OELSCHLAEGER: Understood. MS. HUSHON: Lagging on the south -- if you have to lag on something, let it be the south building. MR. OELSCHLAEGER: We will do that. MR. HUGHES: And you're protecting yourself. Bottom line. MR. YOV ANOVICH: The last thing we want is -- this has got to be the most watched eagle in the county. There's no question. So, going to be -- there's hypersensitivity to this. And people are going to be watching, if we're doing anything to affect the behavior of that eagle. And we've got a provision in here that says, if we are, we've got to stop. Even if it's suspected, we've got to stop. MR. HUGHES: So the camera, it behooves you to have that camera as well for your own defense? MR. YOV ANOVICH: Oh, we agree. Oh, we agree. MR. KRAUT: As a suggestion to that camera is something that could be done that would really, I think, please the citizenship is something that's being done in the county now at Vanderbilt Beach and on Fifth Avenue. And that is, they have that camera on connected to the Internet so that anybody, any citizen can click right on that and observe. MR. YOV ANOVICH: If that's feasible, sure. Page 98 -_.~-,"",-_..-.".~.."."- February 2, 2005 MS. HUSH ON: May I? Is it time? MR. SORRELL: I have one more question. Did I understand correctly, when you were talking about the standards of the soil decontamination, that you were going to hold the residential -- the commercial up to the residential standards? You shook your head, but I don't think-- MR. YO V ANOVICH: Yes. And that was one of the revisions that was requested that, for the commercial, we meet the residential cleanup standards. MR. SORRELL: Okay. MR. HUGHES: For the sake of everyone here, these issues are terribly hard. This is the democracy. This country is formed on our freedoms, our individual freedoms, as long as we don't step in our neighbors' yards and make a mess in their house. Under the current laws that we live with, these gentlemen have every right to do what they propose to do. The question is, if they cause any damage to affecting the rest of us. All of us are concerned with the development in Collier County that we don't develop into a megalopolis city of all high-rises. It is up to us -- we the citizens of this county to be -- not only to be politically active, but financially active in order to create funds in order to buy projects such as this project site so that they don't ever become developed. Otherwise, under our current law, this gentleman has a great amount of money already spent, and a lot on the line within his legal right. So, we have no choice. I propose that we accept his plan for construction of a residential zone change, with the stipulations as stated previously. And if not, now the camera as well, because of the dual purpose of that camera, not only to highlight us to any problems occurring, but to develop a database in this county that allows us firsthand knowledge as to the effect on these animals. CHAIRMAN GAL: I just want everybody to remember, we're going to make two motions. One on Coconilla and then one on the Page 99 February 2, 2005 hotel. MR. SORRELL: We're going to do the residential first, correct? CHAIRMAN GAL: We're doing the residential first. Motion has been made. MS. HUSH ON: Second. MR. SORRELL: I second. MS. LYNNE: The property owner isn't entitled to the nine units per acre. You said property rights. That's not a guaranteed entitlement. He's only entitled to four units. MS. HUSH ON: That's true. MS. LYNNE: So-- MR. YOV ANOVICH: And that's a Board of County Commissioner decision. The density is not an issue for the EAC. CHAIRMAN GAL: I also just want to comment, that the way I vote on this particular petition isn't -- and I don't construe the vote of anybody to set precedent, or to -- I don't think you can form some sort of interpretation to policy 7.1.23 of the way we vote. MR. SORRELL: I didn't understand what you -- MS. HUSH ON: I agree with what you just said. CHAIRMAN GAL: There's been a question as to this policy of whether it's ambiguous, what it says. It's not ambiguous at all. And my vote, in particular, is not being interpreted as meaning one way or the other. There's a second to the motion on the floor. All those in favor of the motion say aye. MR. SORRELL: Aye. MS. HUSH ON: Aye. MR. HUGHES: Aye. CHAIRMAN GAL: Aye. MR. HORN: Aye. CHAIRMAN GAL: All those opposed say nay. MS. LYNNE: Nay. Page 100 -'--- ....&----~"..-_..._.._,-_.. February 2, 2005 MR. KRAUT: Nay. CHAIRMAN GAL: Let's take a roll so we know who voted and how. MS. MASON: Michael Sorrell. MR. SORRELL: I voted for it. MS. MASON: Judith Hushon. MS. HUSH ON: For. MS. MASON: William Hughes. MR. HUGHES: Aye. MS. MASON: Alfred Gal. CHAIRMAN GAL: Yes. MS. MASON: Erica Lynne. MS. LYNNE: Against. MS. MASON: Lee Horn. MR. HORN: Yes. MS. MASON: Ken -- oh, you're abstaining. MS. MASON: Irv Kraut. MR. KRAUT: Against. MS. HUSHON: Let's vote on the second one. MS. STUDENT: So what's the tally from staff? MS. MASON: It was six four and two against. CHAIRMAN GAL: So that is an agency action. MS. MASON: Sorry, five to two. Excuse me. Five to two. Still agency action. MS. HUSHON: Let's go ahead and do the second vote on the property, please. CHAIRMAN GAL: I need a motion on the hotel, please. MS. HUSHON: Which is going to have -- by the way -- some of the same restrictions in it, the one that I put in on the eagle, will also appear in that restriction, just maybe -- the suspected or observe in the _ camera will go in on that one as well. But that one will already have in it the assumption of meeting residential standards. Page 101 February 2, 2005 MR. YOV ANOVICH: Right. MS. HUSHON: Just for clarification. CHAIRMAN GAL: Is there a second to your motion? MR. SORRELL: That was her motion. MS. HUSHON: I'll move that we accept. MR. SORRELL: With your stipulations? MS. HUSHON: With those stipulations. MR. SORRELL: I'll second. MS. HUSHON: Which would be for the hotel. CHAIRMAN GAL: All those in favor of the motion -- why don't we just make a roll. MR. SORRELL: I'm for it. MS. HUSHON: For. MR. HUGHES: For. CHAIRMAN GAL: Against. MS. LYNNE: Against. MR. HORN: Against. MR. HUMISTON: Abstain. MR. KRAUT: For. MR. YOV ANOVICH: So that was five two two also? MS. LYNNE: Yes. MS. HUSHON: Different five two. MR. YOV ANOVICH: I just got to get the five. MS. MASON: Can I ask for some clarification. I know the stipulations were amended on the staff report, and there was some discussion about the draft restriction. My understanding it's to remain as stated? CHAIRMAN GAL: Yes. MS. MASON: Thank you. CHAIRMAN GAL: We're going to take a lunch break, half hour. Is that sufficient? Adjourned. CHAIRMAN GAL: I'm going to call the meeting back to order. Page 102 February 2, 2005 The next item on our agenda is the Cocohatchee Bay PUD. Are there -- have there been any ex parte communications by the board regarding this proj ect? (No response.) CHAIRMAN GAL: I have -- I had conversations with Nicole Ryan from the Conservancy and Joe Moreland from the Estuary Conservation Association. Are there any other -- MS. HUSH ON: I talked to Nicole. MR. KRAUT: I talked to Nicole as well. DR. LYNNE: I talked to Nicole and I signed a petition to save the bald eagle. CHAIRMAN GAL: Does anyone have a conflict of interest in this matter? MR. HUMISTON: On the advice of assistant county attorney, I'm going to excuse myself from this one as well, because the issues are so closely related to the previous one, which could affect my client. MS. STUDENT: It would impact his client. I would like to put another item on the record, if I could. And I've spoken with the applicant and the attorney for the applicant. And this is merely housekeeping. But in the PUD document under the environmental section in 6.9, and there's a reference to conservation areas, and that they have to be platted. Well, under our current procedure, if you just do a site plan, they're not platted, because it would be silly to make somebody do a plat when we can get a conservation easement and have the area designated on a site plan and then the easement would be conveying that interest, you know, to the county with no responsibility for maintenance. So all I want to do in the appropriate portions of 6.9, and I believe it's in Band C, include the reference to the conservation Page 103 February 2, 2005 easement, conveyance of a conservation easement to the county, or platting as the case may be, in the appropriate places. That's all, just housekeeping. CHAIRMAN GAL: Okay. MS. STUDENT: Thank you. CHAIRMAN GAL: For all those who are going to testify on this petition, if you'd please stand up and be sworn in. (All speakers were duly sworn.) MR. YOV ANOVICH: Are we ready? CHAIRMAN GAL: We're ready. MR. YOV ANOVICH: All righty. Good afternoon. For the record, for the record, Rich Y ovanovich, with the law firm of Goodlette, Coleman and Johnson, representing the petitioner. With me today also are Don Corace, who's a principal with the petitioner, and Steve Godly, who is our eagle expert. And you will hear in great detail from Steve about our permit and how we got to where we are and what our requirements are. I just want to start out with first of all, we believe that the existing PUD document required us to come back on an informational basis to advise you as to the changes to the eagle management plan. Staff has taken a different interpretation. We don't agree with that interpretation, but we're moving forward, nonetheless. Your staff report recommends approval of the -- of our proposed changes to the eagle management plan. And I just want to make sure it's clear on the record, we're not here to talk about what's been approved as far as the zoning standpoint goes. That decision's already been made. What we're here today to talk about is what amendments are to be made to the eagle management plan that was attached to the PUD document. We're not here to discuss whether we're going to move buildings, reduce density. None of that is part of to day's discussion. It's simply Page 104 February 2, 2005 to discuss and focus on the eagle management plan. You'll probably hear some historical comments from speakers, and we'll address those as they're made, and we'll do that later on. Just want to briefly take you through where we are. The original PUD on the visualizer, you can see the yellow boundaries. The property is located on Vanderbilt Beach -- not -- Vanderbilt Drive and Wiggins Pass. You can see the outlines. You can't tell from where I'm pointing, but Wiggins Pass is the east-west running road and Vanderbilt Drive is the north-south running road. We're on both sides of Vanderbilt Drive. From the graphic, you can see there's a golf course to be constructed on the east side of Vanderbilt Drive and residential community to be constructed on the west side, with a clubhouse for the golf course also on the west side. The original zoning allowed for 1,758 units. The current PUD allows -- and that was on 532 acres. The current zoning allows for 590 units, which is a reduction of 1,168 units. The project, it calls for five high-rise condominium towers. The condominium tower to the north is 15 stories, and the remaining four are 20 stories over parking. I already mentioned the golf course. That has already commenced construction. The clubhouse will be basically adjacent to the condominium buildings. The change we're making to the bald eagle management plan is to make it consistent with our Army Corps of Engineers' permit and our U.S. Fish & Wildlife biological opinion. We have discussed earlier today, and just for the record I'm going to discuss it briefly again, what the county's comprehensive plan says. And the county's comprehensive plan clearly states that the county is going to defer to U.S. Fish & Wildlife Service for the regulation of eagles in Collier County. I'm going to briefly go through what the Corps of Engineers Page 105 ~".,.~._-",.<.- February 2, 2005 permits us to do and what it does not permit us to do. And then I'm going to have Steve get into the greater details. First of all, we do not have any authorization to cut down that tree or take the eagles. The tree will remain -- when we're done, when we build our proj ect, that tree will remain. It will not be cut down. Prior to any construction, we're to obtain habitat for eagles in Southwest Florida. So we will have to mitigate for any potential impact prior to any construction. The sequencing of our construction is as follows: We can commence the clubhouse and the first high-rise building, which is -- Jim, we've got a better graphic that shows numbers, don't we? On this graphic, the most northern building is building number five. We can start the clubhouse and building number five in the first non-nesting season and can continue on with construction through the nesting season. We then go to building number four, which is the building just to the south of building number five and can commence construction of it during the next non-nesting season. We then move to building one, which is the building that is the most southern building, and can construct it during the third non-nesting season. And then we can choose whether to go with building two or three on the subsequent non-nesting seasons. We would anticipate that -- you know, obviously the market's going to dictate how quickly we move forward with the buildings, but we would anticipate that it would take four or five years to build out the entire project. Again, I mentioned we have mitigation that's required that we -- are suitable for eagles in Southwest Florida. There's also, and I need to point out, and Steve will I'm sure reiterate this, is that we volunteered to provide mitigation in the form of getting mitigation lands. It was not required, it was a volunteer -- voluntary effort on the behalf of the developer. Page 106 February 2, 2005 We also have the ability to construct an artificial tree, that Steve will get into greater detail, that will hopefully serve to attract the eagles into this area, and the eagle will relocate. And if not that pair of eagles, another pair of eagles. So we view this as an enhancement to the scientific study of the eagle and perhaps will lead to other efforts to provide artificial nesting areas for the eagle. We don't agree with one recommendation in the staff report, and that's the revision to Section E of the bald eagle management plan. I'm sure you have our proposed bald eagle management plan, so I'll just read into the record what we believe the appropriate language ought to be. With the sentence starting with should the current eagle pair or a second eagle pair build a new nest within the PUD boundary, any revisions to the above described terms and conditions required by the agencies listed above shall not require an amendment to this bald eagle management plan. Any such changes will be processed administratively by the planning director and shall become conditions of this bald eagle management plan. That's what we believe is consistent with the comprehensive plan. As we've stated, the comprehensive plan currently provides that the county will defer to the U.S. Fish & Wildlife to make decisions on the bald eagle in Collier County. There's no reason to go through this process again if we already have a bald eagle management plan that reflects the terms and conditions of the core permits. That's why we don't think we needed to be here in the first place, other than informational, to let you know what the Corps and U.S. Fish & Wildlife said. There -- it's their responsibilities to make those decisions. Your staff acknowledges that in the staff report. There's no reason to have to go through this again. If we modified our permit and it says you go forth under this structure of construction, there's really no reason to go through this again for us, for the public, for you all, when the Page 107 February 2, 2005 decision's basically been made to defer to the state and federal agencIes. I'm going to turn it over to Steve and let him get into the details of the bald eagle management plan and his credentials. After that, we'll open ourselves up to questions. Or if we do like we did the last time, we can let the public speak, and then that way we can rebut whatever the public says and then open ourselves up for questions. That would be fine for us. Again, at the end I'm going to request that you follow your staff recommendation, apply the comprehensive plan as it's currently written and make a recommendation to forward this petition to the Board of County Commissioners with a recommendation of approval. MR. GODLY: Good afternoon, council members. I'm Steve Godly, president of Biological Research Associates, and I'm headquartered out of Tampa, Florida. I'm going to talk to you today about the bald eagles on the Cocohatchee site. And before I talk to that issue, specifically, I'd like to give a background of me so that you know where I'm coming from as a biologist and my training and my experience in this matter. I was here for the previous petition, which all the questions were waited at the end. I would encourage you to ask me questions in the middle, because it will probably help you understand. If you don't understand something or you want to confirm what I said, I think that would be helpful for you. I've been a professional biologist for over 30 years. I have a Master's from the University of South Florida in wildlife ecology. I was a member of the original Florida Committee on Rare and Endangered Plants and Animals that formed the list that now is used in the State of Florida for those species considered endangered, threatened or of special concern. I've been a professional consulting ecologist over that entire period. I have a lot of experience with bald eagles in this state and Page 108 February 2, 2005 elsewhere. I've -- I developed or under my supervision have developed approximately 30 bald eagle management plans across the state. Myself and my staff are currently working on about 15, those are in 11 different counties in the State of Florida. In addition, I'm working on two in Mary land and one in Pennsylvania. I was invited also to do one in Idaho, but unfortunately that didn't work out. I was really looking forward to going to Idaho, I have to tell you, to the Snake River. Because of my experience with bald eagles, in 1997, I was appointed to the bald eagle recovery team for the southeastern United States, and I've served on that with my group since that time. But the purpose of the recovery team was several-fold: One, it was clear that the bald eagle likely was going to be de-listed at the federal level in the next couple years. Obviously that hasn't happened yet. But the charge of our group was to develop the criteria for de-listing, how many pairs of birds, what the productivity of them had to be, all that sort of stuff. What monitoring requirements would be to allow them to be federally de-listed, et cetera. In addition to that, on the Coconilla PUD that you heard earlier, you heard considerable discussion about the bald eagle monitoring guidelines and what they meant and how are they to be interpreted and all of that. Well, I wrote the bald eagle monitoring guidelines at the request of the Service. And if you look on the website, you'll see I'm the primary author, and there were others that assisted there. So I've done a lot of eagle work. I've been working on this particular project for approximately three years now. I was called in, interviewed by Mr. Corace. And because of my experience, he felt like I could give him the best advice as to how to deal with bald eagles on his particular site, and the challenges that he may face in terms of the permitting of the particular site and everything else. So I've been involved in this one for some time. I've also probably done 30, 40,50 seminars on endangered and Page 109 February 2, 2005 threatened species, and have spoken on bald eagles on a number of occaSIons. This particular nest, as you heard earlier under Coconilla, has been in existence for over a decade. It's been generally successful, as are most bald eagles. Let me just back up and give you some history of eagles in our state and in the nation. When I started out as a consulting ecologist in 1976, there were approximately 325 pairs of eagles in the state. There are now over 1,200 pairs, by best counts. The commission only says that there's 1,133 today that they've been able to register, but they fly them, and they typically are only flying sites where they know there are pairs or there's reports of a pair, so they've underestimated the population to some degree. Why has there been this tremendous increase in the eagle population? In fact over the last 15 years, it's been increasing at approximately 11.4 percent per year? It's really two reasons: One was the elimination of DDT. And as a result, and as a consequence of that, the eggshell thinning that had occurred is no longer a problem, so the birds are able to reproduce on a regular basis. And then the second point is that we've learned a lot about the management of bald eagles and about the biology of bald eagles over that period of time, where we -- and I say we, because I've been involved in the process -- but the Service and also the Florida Freshwater Conservation Commission have learned a lot about the biology of the animal, how it responds to humans and how to appropriately manage the bird. And it's been those two reasons probably that the eagle has increased. In the Seventies, there were four eagle pairs in Collier County. If you look at the maps that they had then, that's all that they knew about, at least in Collier County. Most of those were along the coast. But there's 20 something pairs now; 24, I think, by last count. It may be different this year. Probably will be different this year. It's Page 110 February 2, 2005 different almost each year. But it's a substantial increase. What we do know, based on the biology of the birds, which is interesting to me particularly as a conservation ecologist, is that the increase in Collier County most likely did not come necessarily from birds from Collier County, but in the vicinity. In the Seventies, and even before, there was no DDT applied in the Everglades, because it was a national park. One of the consequences of that is that was a stronghold for the eagle populations, particularly in the Everglades. And I'm talking about the mangrove portions of the Everglades. They typically nested on islands there. So there was always a population of 30 to 40 pairs there that formed a nucleus. The other thing that we've observed, as the eagle population has regrown, is that there are certain nuclei that form apparently the basis of a spread in eagle populations across the state. And the nuclei that probably contributed is the Everglades population I mentioned, it's really a Florida Bay population, and then it's the population in Lee County as well as Sarasota County. What we've seen particularly over the last 15 years is literally -- a literal explosion in the eagle populations in those areas, in particular, because of the nesting habitat and the foraging habitat. And it's also occurred elsewhere in the state. Polk County, I went to an eagle nest day before yesterday in Polk County. Its PO-0156. And so it's the 156th nest in Polk County, and it's not even the last one. Eagles are permanently territorial, permanently monogamous birds. That means they're not like people in a sense. They typically don't get divorced. And remain on a territory. The young -- there were questions asked earlier, what happens to bald eagles in the summertime? They're the reverse of the Florida tourists, in general. What happens is after the nesting season, a majority of the adults and essentially all the juveniles fly north and Page 111 .' ,--_._~-_.,_._._,. February 2, 2005 over-summer from Chesapeake Bay all the way up to Canada, there's a lot of radio telemetry work now done on that. Over-summer there, then they come back in the fall. Actually in September -- typically there's a pair about a quarter a mile away from my office. They actually appear at the very end of August, mess around, et cetera, and then begin the courtship, et cetera. Typically in October begin to rebuild the nest and all that. The average egg-laying date -- that was a question one of you had earlier -- in our state is the 16th day of December. That's the average egg-laying date. And then they -- if the chicks are -- if the chicks hatch and there's no predation, then they'll incubate them. They'll stay at the nest typically for eight weeks. It can be up to 14. Then they fledge. The adults will feed them for a month or so. They're like teenagers, they want handouts. Then they fly north and they repeat the cycle. So the point of that little exercise is to explain to you that the birds we have in Collier County today, we cannot -- or I can't view, as an ecologist, Collier County birds being only Collier County birds. What we do know about when the juveniles return, they typically return to the natal territory where they were born, and the adults, as they get ready for the next nesting season, kick them off the territory. They don't want any other birds in the territory while they're nesting. Eagles don't mature until the fourth or typically the fifth year. That's when they get the white heads and the white tails. And based on banding studies and our radio telemetry work, what we know is they typically will nest within perhaps 50 miles of the natal territory, but it can be up to several hundred miles away from the natal territory. And so we have to consider the eagle population in Florida to be a statewide population at a minimum, and most likely it's a southeastern U.S. population. So that gives you some basic understanding of the biology of the bird. The Service is moving forward at a snail's pace at de-listing. It's Page 112 February 2, 2005 going to happen. I just can't tell you when. I was in Washington in August about that meeting with the head of migratory birds and also the endangered species coordinator. It's a political issue, I will tell you that. The Bush Administration is involved in it. In fact, the Governor called his brother and talked to him about it because of the interest in eagles in our state. It will happen. And it's a wonderful conservation success story that we've been able to manage our birds and restore them. The best estimate that we have is that historically the eagle population in the state was approximately 1,000 pairs, maybe a little bit in excess. We're over 1,200 pairs now. And so it appears, based on all the available data, that the eagle population is as big as it ever was, and perhaps even slightly larger, most likely because of improved feeding supplies as a result, unfortunately, of fertilizers, et cetera, in our water, which increases the fish production. That's what they eat mostly. The more you have to eat, the more you're able to reproduce. It's that kind of thing. They, to date at least, do not appear to be limited necessarily by nesting availability, nest structures. Most eagles, 92 percent is the best estimate, are nesting in pine trees, either live or dead, and the rest nest in a variety of other structures and/or trees. Cypress; I've got one in a live oak I'm working on. Last year there were 30 pairs in artificial structures. The majority of artificial structures are cell phone towers. But they're also nest platforms for ospreys, they're the cross members on telephone wires and that sort of stuff. The number of pairs on artificial structures has been increasing. It's been essentially doubling every three years now for the last six or eight years. And it's because our eagle population is increasing. And in some cases, they may be running out of trees that are tall enough in the right locations by the appropriate food source. You've got to have a Publix or else you can't eat. Page 113 February 2, 2005 I am very encouraged about the increase in eagle populations in the state, and particularly of the number of birds that we're getting on artificial structures. It means, as you've heard earlier in the earlier case, that eagles are becoming acclimated to some degree to humans and to our presence and to our activities. There's a five-year study just recently completed by the Commission where they went in and actually climbed the trees, captured the eaglets, put on radio transmitters that are tracked by satellite and they're following those birds for a five-year period. One of the key issues that they're trying to understand and learn is do urban eagles beget urban eagles, which appears to be the case. In other words, if you're born in an urban situation, it's more likely that you're going to return and nest in an urban situation, which probably could be a response that we're seeing in terms of the number of pairs on artificial structures. So that's just some basic information. I put the -- I don't know how to operate this, so I'm going to let Vanna White do the honors here. MR. HUGHES: I have a couple of quick questions at this point. MR. GODLY: Sure. MR. HUGHES: The biggest, most significant reason for the redevelopment of the eagle population is the stopping of environmental pollution of chemistry? MR. GODLY: That's one. MR. HUGHES: Number one, right? Do you think that man's activities have done anything really to affect these birds? MR. GODLY: Yes. MR. HUGHES: Other than stopping the chemistry? MR. GODLY: Actually, I do believe it's a couple of things. One, I mentioned the increase in the fisheries productions, particularly in the freshwater lakes and the streams. It's the fertilizers from cows and row crops and everything. So the fish populations are increasing-- Page 114 February 2, 2005 MR. HUGHES: So food's there, they reproduce more. MR. GODLY: Right. MR. HUGHES: Next question. On setting up a precedence of, let's say, the artificial tree. Now, I may be wrong, you're the eagle expert, I'm just a farm boy. And when I was very young, these animals still existed naturally. These were not stupid animals, these are extremely smart -- MR. GODLY: And they still are. MR. HUGHES: -- territorial. When I hear people talk that are city kids, basically, talk about wildlife, I always wonder, where were they? Because these are not fragile little animals. These are extremely capable animals. So are we setting a bad precedence by putting up artificial growth areas, especially when you point out that they may be using -- like a fish does, smell its way back to where it was born? And these things are going to propagate more and more on artificial structures rather than natural structures; and are we not hurting them with that? MR. GODLY: No, I don't think we are. And I'll approach it from a couple of perspectives: One, as a biologist and a conservation ecologist, I think it's very important that we promote urban wildlife to the extent we can. I want to see kids interested in wild species and wildlife. And if eagles, as an example, can live in urban environments, it's going to increase the appreciation those kids have for things. MR. HUGHES: That's not really the point of my -- I understand an existing structure they use as a nest site, hey, great, they picked it. But if we pick one for them, such as an artificial tree, a fiberglass tree? MR. GODLY: Let me give you a better example that will hit a little bit closer to home. I mentioned earlier I live in Hillsborough County. I'm from Tampa. Two years ago Hillsborough County passed an ordinance that said all future cell towers have to be disguised, either as an artificial tree or as bells in a church or Page 115 February 2, 2005 something like that. Cell tower companies have a problem, because the eagles and ospreys are nesting on the platform. I've come to them and said okay, if you've got to build an artificial tree anyway in order to build a cell tower in Hillsborough County, why don't you build an additional platform up above all your instrumentation, above your instrumentation, where it's not going to affect what you need to do for your living, okay, for eagles, for birds of prey, have all of your work down below it, then get approval from the Service. If you have to go in in an emergency to maintain those structures, you'll be okay. Eagles, understand, we've banded hundreds of eagles in the State of Florida. We've climbed up hundreds of trees, either banded them, put transmitters on, we've hauled the eggs to Arkansas and essentially repopulated a good part of the Midwest now. They don't abandon the nest. They don't like it, but they don't abandon the nest. I mean, they raise hell, just as you would if anybody comes in your house. But they -- they go back to their -- my point to the cell tower companies is you're getting your butts kicked on TV and public hearings over we don't like nasty cell towers. If you can have a positive environmental effect, it's good PRo MR. HUGHES: That's really not where I'm going with that. That makes sense from a business point of view to protect your infrastructure investment, specifically a cell tower. I'm talking about sites like we have up on the screen right now where we're going to put a dead tree up for a bird, that's -- MR. GODLY: Actually, it won't be a dead tree, but I'll go into that in a bit more detail in a second. On the situation in Cocohatchee, I mentioned the birds have been over -- there over a decade. We know that in '97, I believe it was '97, the flat woods, as a result of a lightning strike, burned and killed the tree and killed a number of the other trees in the vicinity. Now this was here -- you can see the nest and the dead pine here. Page 116 February 2, 2005 And also all the rest of the dead pines. And there's some that lived and survived the fire. But a majority of the pines died. That tree got hit in '97, that would be seven years ago now. It doesn't -- in my opinion is not going to last that much longer as a nesting substrate. Jay, how do you do it? Okay, right here? Actually -- that last one, there you go. And that's awful dark. I apologize here. This is -- in -- on, I think it was the 16th, 15th, 14th of September, 2001, Tropical Storm Gabriel came through. And if you remember that, two days of rain. The nest blew down. A support branch fell off the tree. It's a huge nest. At the time it was a very big nest. It probably weighed, after all the rains, 10 or eight or -- eight or 10 inches of rain. It probably weighed in excess of a ton. All the rotting material in the bottom, it was like a mattress that just gets heavier and heavier and heavier. It fell down. What you can't see very well is this is the crotch of the tree. And here and here and here and all up and down here are beetle holes. After a tree dies, the beetles get in it, they burrow, they eat the wood, it deteriorates the tree. And -- I don't know when, it could be next year, if we would have gotten a hurricane here this year it probably would have toppled it. But that tree is not going to last long. So those birds, depending upon the timing of the toppling of the tree, the old tree where they're nesting, they're going to nest somewhere else. Almost assuredly. And understand, a hurricane or a lightning strike or something like that is a situation that eagles evolved in. Nest trees are not permanent structures, they're temporary structures. They will find another place to build. And if that pair doesn't and another pair builds the nest, their young are raised and therefore that's the future generation. So evolutionarily, it's to their advantage to build a new nest. What we are trying to do on the Cocohatchee proj ect is provide that pair of birds and other birds with other options for nesting.d Page 11 7 February 2, 2005 You've already heard the sequencing. I can go into more details of the sequencing of construction in order to minimize the adverse impact on the eagles, and I probably will, because you're going to ask me some more questions. I want to explain a bit more about the permit itself and how we got to where we are with that particular permit. I'm talking in particular the biological opinion, incidental take statement that's been incorporated into the U.S. Army Corps of Engineers permit. The Service has to follow the Endangered Species Act. That's the law to them. That law allows, under certain prescribed circumstances, the issuance of a biological opinion, incidental take statement. It does so for two reasons: One, it provides a lawful way for development to occur such that no illegal take, which can be the removal, the harm, the harassment of the pair of birds, the eagle's nest, et cetera, will occur. It provides a legal way for that to happen. It also requires, in doing so, that the applicant, not the developer -- it could be a county building a road or could be a condominium project like this one, it requires the applicant to minimize the adverse effects on the pair of birds, which is why we've done the sequencing and all the other things. It also says that the terms and conditions of the permit have to be reasonable and prudent. And what that means is they have to make good sense from all perspectives; from the perspective of the eagles as well as the project that the applicant is attempting to build. And in this case, it's done. It does not require any mitigation. I've been working with Mr. Corace now for three years. He volunteered to purchase a territory, another eagle territory in Southwest Florida. He could not build his project, i.e., the golf course and the five condominiums and maintain or be assured or assure the Service he would maintain that eagle pair. And by that I mean they would not abandon the -- he could not guarantee they wouldn't abandon the nest. And that's why they issued the incidental take Page 118 February 2, 2005 statement, to protect him against an illegal-- and it's actually called a Section 9 take. It provides him protection, it provides the county protection and it provides the eagle protection in terms of minimization. He's agreed to purchase a territory. There's a suite of conditions in terms of ideally it would have an existing eagle tree, it would be large enough and so there would be alternate trees, it would be adjacent to state lands where perhaps it could be incorporated, managed, et cetera. In addition, he agreed to build an artificial eagle tree. That was my idea. And the reason I did that is because of my experience with eagles on artificial structures. I felt there was a high likelihood that those birds would move onto an artificial tree, particularly if we did a good job with the tree. Mr. Corace is going to spend over a quarter million dollars building an artificial pine tree. We've been to Arizona. The people that did the Tree of Life at Disney are going to build it. It's going to use monopole technology in terms of the base. All the bark -- and I'll just give you an example of the details that are going into this. This is what the bark is going to look like after the tree is constructed. Now, the tree is on an island, away from people, over 1,000 feet away from any condominiums. It's going to be in the best location that he had available. The tree will be able to withstand up to 140 mile an hour winds. Pine needles are going to be exactly like a pine needle. You won't be able to tell it apart, I don't believe. I believe it's going to be successful. We also have incorporated lightning rods into the tree. I've worked on three different territories in which lightning hit the tree, fried the chicks and the mother. I don't want that happening here. So we have a good chance of protecting also against lightning. It will -- it will, as best we can tell, it's going to last a long, long time and longer than any normal pine tree would. Page 119 --.-......-...---- ^--....-..---.-..-.. February 2, 2005 We'll have to see if it works. All the evidence I have as a biologist and where I've seen birds build on artificial structures, it ought to be successful. They'll be able to find it. It's in their territory. It's in the right location. I think it's a good plan. I believe he's done everything he can in this case. MR. HUGHES: Again, are we going down the wrong path? Does this make sense? I'll give you an example. I actually get very upset. I've been out on the water and I see the research done on our manatees, I think they're doing more damage to the manatee than letting it just be a wild system, with the radio transponders and cables dragging off the back. They're doing a disservice to these animals in the guise of research. I don't agree with all the research. Do you think it's smart for any natural system to have man's input and change the natural system and then we're better off? MR. GODLY: I don't think we can learn to appropriately manage wildlife species without the research that's being done. I'm not arguing about manatees. I'll give you another example that -- it'll particularly hit home to Collier County. Red-cockaded woodpeckers. You've got RCWs in this county, they're a big issue. I don't remember the year when Hurricane Hugo came through the Carolinas, it hit Francis Marion State Forest that at the time had the largest RCW population in the nation. Over 50 percent of the cavity trees were destroyed, and the reason was simple, the birds would drill a whole and the trees snapped over at that point. Had we not done appropriate research, we couldn't have done anything about the situation. But what happened is within a two-week or so period, the biologists went out and drilled artificial cavity structures for the birds, as a result of the research that we had done on RCW s, and in particular that, only five to 10 percent of the adults were lost, where normally almost all of them would have died. And so that kind of research, in my mind, is extremely useful and valuable. Page 120 February 2, 2005 MR. HUGHES: Does that answer my question? MR. GODLY: Yes. MR. HUGHES: I don't think so. MR. GODLY: Okay. I believe the same kind of information applies here. Why should we lose our urban eagles and eagles in urban situations if we haven't done the appropriate research? That's one of the reasons why the Service and the Commission are particularly excited about this one, because it will give them a new management option and a new management option for cell towers and to deal with other kinds of situations. That's not to say they're going to increase the number of incidental take statements or anything else at issue, it will provide new management options, just like the research that has been conducted now to show that urban eagles in fact come back to urban environments. MR. HUGHES: So this tree is going to be constructed with cameras and sensors so that the research can be acquired without -- in a passive manner? MR. GODLY: I didn't bring up the camera. I'd be glad to talk about the camera, briefly. One of the other things we've come up with as another -- as another benefit, as I see it, is inside one of the artificial branches is going to be the lens of a camera that's going to be hooked up to solar panels, and it will be run by solar electricity . You'll be able to -- any resident in Collier County will be able to go to the website, watch a pair of eagles in Collier County raise their young. I think that has tremendous educational benefit, okay. So the question is will it harm the birds? The evidence would say no. The first of those was installed in Cape Canaveral in 1980, approximately. Audubon Society, Florida Audubon, at their Maitland Birds of Prey facility, has an eagle nest a half a mile away and they've got a camera installed there, and it hadn't affected the reproductive success or anything else with those -- of that pair of birds either. Page 121 February 2, 2005 What it does do is it provides a wonderful educational opportunity for kids and for everybody else. And so I think that's a benefit. MR. HUGHES: I agree with that part of the benefit. MR. GODLY: Two eagles. MR. HUGHES: Is that the purpose we're talking about this? No, this is part of the mitigation, correct? So we're really talking about mitigation, not research. This is a false tree, and I totally agree with you, a tree for the sake of the public's awareness and for the sake of research, okay. But to use this as a precedence for remedi -- and we just described that the eagles are smart birds. Matter of fact, your description of their behavior is very much like humans. Once the nest is full, move to the next one. All right, so -- I don't know that we do nature a service by creating a false nature. That's what I'm getting at. CHAIRMAN GAL: Has there been any research as to how long a nest is typically used by an eagle? For example, this one has been used for about 14 years now, I understand. Is there a life span of a nest? MR. GODLY: Yeah, there has been, and it depends on the territory, of course. And it depends on the vagaries of nature and everything else. I would suspect that the average live tree is under a decade, but it could be longer. And in individual cases, it could be much longer. I worked on one in Lee County, for example, that's 12 foot thick. It's been used ever since 1976. The oldest artificial nest has been used continually since 1983. And that's every year since '83. So, you know, they can be used for two, three, four decades. The tree sometimes collapses as a result of the nest. CHAIRMAN GAL: So was there an average there or -- you were saying 10 years to -- MR. GODLY: I don't have an average. I can't quote you. My-- 10.2 years, that would be my best guess. A fair amount of birds will Page 122 February 2, 2005 move pretty regularly. CHAIRMAN GAL: But they can -- a nest can last 30 years, 40 years? MR. GODLY: Oh, yes. Yes, it can. Now, in a dead tree, it's a different story. Particularly pines after they get -- after -- a decade would be a long, long time in a dead tree. And a majority of the birds just leave a dead tree. CHAIRMAN GAL: This tree's dead. MR. GODLY: Yes. CHAIRMAN GAL: It's already been 14 years. MR. GODLY: But it hasn't been dead for 14. CHAIRMAN GAL: It hasn't been dead for 14. MR. GODLY: That's correct. CHAIRMAN GAL: How long has it been dead for? MR. GODLY: '97. CHAIRMAN GAL: So we're on seven years. MR. GODLY: That's correct. CHAIRMAN GAL: So statistically, we're maybe another three years or so, right? MR. GODLY: It's getting near the end. CHAIRMAN GAL: Okay. MR. GODLY: In the hurricane season, this past one as an example, approximately -- and we'll know better at the end of the nesting season after they fly all the known nests, but the guess is, the estimate is, is upwards of perhaps 40 percent of the eagle trees in the state were damaged or gone. But those birds, again, will find -- they're going to find a new nest. They're going to build a new nest. They can build a nest in a week. That's not a big effort. MR. HUGHES: And that's a fact, correct? MR. GODLY: Yes. MR. HUGHES: That they are not stunted by these -- our activities. They don't care. They just do their thing. Page 123 February 2, 2005 MR. GODLY: I don't know that they don't care, but they're going to do their thing. I'd say that is a fair assessment. MR. HUGHES: One more question, because it was raised in the early section. A dump truck gate slamming shut. Now, I can understand, it's very loud. And yes, that's a sharp, not -- that's a square wave, it's a square wave sound. MR. GODLY: Yes. MR. HUGHES: That alarms these birds? MR. GODLY: That depends -- it depends entirely on the individual pair. Here's probably -- and I'll give you just a couple of examples, a couple of quick ones. At the end of the runway on MacDill Air Force Base is a pine tree, and in that pine tree is an eagle's nest. And it's not 200 feet over their tree on a regular basis, those jets and even bigger bombers are landing, especially with what's going on in Iran and Iraq now. And that's some serious noise. That's not any tailgate banging. I had a pair -- I had a pair that I worked in Collier County, and the Service was concerned. It was actually a mine pit, okay, they were mining the lime rock. And the lime rock pit was approximately 800 feet away from the nest. And the Service was concerned, okay, you got to blast the lime rock, drill holes, blast the lime rock. It falls in, then you excavate it out. You know what happens. I had to monitor the tree and the nest. When the drilling rig appeared on the site, those birds did not go to the Gulf. They sat and waited and would actually land on the drilling rig until the humans came down in order to operate it, wait till the dynamite was -- it was exploded, then come and catch the fish as they floated up to the top. I've got another pair that's on the comer of an eight-lane and a six -lane highway in a cell tower. And they're 200 feet up and they don't give a flip what's going on down below, and there's lots of noise. In the -- and I would say we probably mo -- I told you I wrote the guidelines. Now, we probably monitored -- under the guidelines, we Page 124 February 2, 2005 probably monitored now 15 territories across the state during construction. Our experience has been that the flapping of the tailgates is detectable. They'll turn their head and look at it. But after they're acclimated, and it doesn't take long, they get used to it. That's not to say you can't disturb the birds and you can't cause abandonment. Obviously you can cause abandonment of the nest. But under most conditions, the answer is no, based on all the observations that we have today. MR. HUMISTON: You said that you wrote the guidelines, the 1987 -- MR. GODLY: No, these are the 2002 -- September, 2002 bald eagle monitoring guidelines. You're talking about the habitat management guidelines in '86. MR. HUMISTON: Yeah, do you happen to know what the basis was for setting those -- the dimensions of the zones, the 750- foot primary zone and 1,500- foot secondary? MR. GODLY: Yeah, I was not part of the '87 committee. Obviously, I was part of the '97 committee. We actually redrafted those guidelines, but because Washington hadn't got off their duff, nothing's happened on it, I hate to say. The '87 guidelines, and I spent a lot of time -- almost all the members that wrote the '87 guidelines were also on the recovery team that did the '97 revisions. Even though they were published in '87, they were actually written in '85 and it took two years to get it through the system. At that time, understand that we only had in our state 400 and something pairs of eagles. A majority of them were in very rural situations. The bird appeared to be threatened. And so those recommendations were extraordinarily conservative, based on what we knew at the time. Had practically no experience with bald eagle development conflicts. Now we have an enormous amount of experience. And as an Page 125 February 2, 2005 example -- well, I'll give you two bits of data: In 1995, Steve Nesbitt and a couple other authors at the Gainesville Research Lab published a paper of the effectiveness of the '87 guidelines. What they found was two things: One is that what happened between 750 and 1,500 had no effect on the nesting success, the productivity or any other part of the biology of birds. In other words, after 750, it didn't matter. That's what they found. Wasn't any effect on a statistical basis. The other thing they observed is they didn't know where the actual cut-off is. Some pairs -- and by cut-off, I mean depending on the amount of disturbance and the timing and the frequency and the history of that pair of birds, it could be that you could get 400 feet away from the nest, 300, 200, et cetera, they didn't know the difference, or the cut-off. The second bit of data is last year the Jacksonville office of the Service went back and looked at the 213 consultations that they had done on bald eagles over about a IS-year time period. Of the 215 (sic) consultations they had done -- and I may have the numbers wrong, I think I might have it here, but I can -- I'll get awful close. As I recall, there were 97 cases where development occurred within 750 feet of the nest. And it was documented. And they either got an informal Section 7 consultation, or in some cases an incidental take statement. Out of the 97, there were six cases of abandonment of that particular nest. And they went back and looked at the birds, obviously, to know if they abandoned them. Of the six cases of abandonment, only two could potentially be attributed to the development activities that occurred. So the guidelines in '87 were extraordinarily conservative, we're learning. And that again -- it's the whole business of management and understanding of the birds. And we're learning that you can get a lot, lot closer than what we had been and not affect the birds. At the earlier case, you were asked and you had a number of questions about the recent letter that's published on the Service's Page 126 February 2, 2005 web site about construction in the nesting season with monitoring. You remember that. Okay, well that research, as a result of the research and experience with eagles, they have relaxed those guidelines because there's no biological basis for having today the 750, 1,500, that this is what you have to do in order to protect the birds, there's no biological basis to support that decision. And by law, they're required to use the best available scientific and commercial data. So what they did is they published this year, if you're at -- if you're going to construct and the construction has to occur in the nesting season, you've got to use the guidelines, monitoring guidelines. And those monitoring guidelines -- and again, I was the primary author, I went through all the literature for disturbance, what disturbance means, how a biologist that isn't an absolute expert on eagles could detect it, recognize it, and if they see disturbance, they are required, if they agree to be a monitor, to notify the Service and the developer and to say I'm detecting you've got disturbance, stop construction. Which was the answer to the Coconilla one, but they didn't know, because they hadn't read the guidelines in detail. CHAIRMAN GAL: That recent change that you're talking about is only for the secondary zone, though, right? MR. GODLY: Or in the primary zone. CHAIRMAN GAL: So construction can occur in the primary zone? MR. GODLY: Yes, it can. And I have a number of cases where we've constructed in the primary zone and used the guidelines. MR. SORRELL: Question. The reason for the artificial tree, are all the other trees burnt and in the same shape as this in that area? MR. GODLY: No, not all the trees. MR. SORRELL: Are there suitable natural trees adjoining this property that would be suitable? MR. GODLY: That's really hard to say, Mr. Sorrell. I have seen Page 127 February 2, 2005 birds nest in the most God-awful places you can imagine. And I'll just give you one short one. I had one that moved three times in Hillsborough County, and the third time they moved, it was on a lateral support branch of a pine tree. They were in two cypress and another pine that died. They moved on a lateral support branch of a pine, and they nested there and they raised a chick. And I watched the poor parents come up and bring the chick -- and by that time he was walking on the branch, you know. He would walk up -- I'm sorry, the adult would land on the branch, he would put the fish on the branch, and the branch would fall down in the palmettos. And all the eagles would look down below and then they'd look up. I mean, he nested but it didn't work. MS. STUDENT: Mr. Chairman, excuse me. There's a gentleman that has to leave, but he would like to speak before he could leave. And it's up to the Chair, and I don't know if the Chair would entertain listening to this gentleman so he can leave and go on to his other engagement. But he has been here, I think, most of the day. CHAIRMAN GAL: Sure. Keep it under five minutes, though. DR. DALY: Yes, I have been sworn in. My name is Robert Daly. Thank you ladies and gentlemen for allowing me to break protocol. I am a sensory neurophysiologist. I am especially interested in the development of hearing in young organisms, and I have had a long-time interest in the effects of environmental energy on the development of tissue. So I feel that I may be able to address some of the questions that the board has raised here. I did my work, by the way, in the departments of environmental medicine and biomedical engineering at the John's Hopkins medical institutions. I have a special concern about the artificial nest. I believe that the structure that Mr. Godly has described may embody certain problems for the progeny of the eagle. Specifically, I understand that Page 128 February 2, 2005 the core will be steel structure. It will be constructed something like a microwave tower. And then this will be shrouded in some sort of a petrochemical material, a synthetic bark, which we are told will be indistinguishable from the real thing. But of course the salient fact here is not whether we can distinguish it, but whether it's important to the eagle. I think that the bark is -- and steel combination are going to set up electrochemical fields that will accelerate the deterioration of this artificial external shrouding. And that's going to be manifested in the outgassing of the volatile compounds in the bark material. And it will result in emissions of gasses and sloughing of material that can certainly not be of any benefit to the eagles. I think also the random molecular structure of the materials; that is, the steel and the artificial bark, are going to provide a very different energy field than a natural material such as a tree or even a natural wood pylon. And I think that there is a body of evidence that indicates that this would be detrimental in the long run to young tissue. My laboratory did work in that regard, and we found that the beneficial energy fields are very low levels of ionic flux and not the sorts of disruptive positive energy emissions that would be created by this combination. There's a third element I think that's important that Mr. Godly, I think, did not quite get to at this point, and that would be the indwelling TV camera. In 1992, the International Symposium on Energy and the Environment had some very interesting papers regarding the effects of very low level electromagnetic fields on chick embryos. And it was found that indeed such as -- the fields such as these television cameras and perhaps the associated motors that might be required to move the lenses would cause genetic mutations. So there's, I think, another issue regarding the camera, too, and Page 129 February 2, 2005 that is this up close and personal viewing of this family in its habitat is a kind of voyeurism that I think would be very difficult to justify on a scientific basis. I think there's another element too, and that is an ethical one that I think is something that we as sentient individuals should be willing to address as well. So I would like to address also questions on the noise issue here, if I may do that, if I may have just another moment. The startle reaction that was described in response to, say, the slamming of a tailgate, is very often habituated, that is, extinguished in the individual's behavior. However, that does not mean that hearing loss will not ensue from that kind of exposure to noise. Now, there is a very different reaction set out to such a growing level of noise such as the take-off or landing of a jet plane where the organism can adapt by manipulating the middle ear muscles to accommodate that, versus a very sudden onset noise. And those are the things that would be most dangerous. So if you have any questions about that, I would be happy to answer. Otherwise, I thank you very much for your indulgence. MR. HUGHES: If I may -- thank you, Doctor, very much. And he's pointing out several things I myself would agree with, that we as, human beings, with all the technology we have, come nowhere near close yet to understanding the microsensitivities of organisms that are all around us. So you're absolutely right. My concern with the structure as well being metal is you have a focusing antenna, and you're definitely doing that, pertinent to a camera to observe the nest site. My suggestion in the morning session is a high definition camera with a long lens. You're nowhere near that nest. DR. DALY: Yeah. There -- I should add also that it has been known since the Second World War that microwave emissions cause cancers. Lymphomas, especially. It's been shown very early on in Page 130 --.- February 2, 2005 radar technicians during the Second Wodd War. And there is nothing in either our or certainly the eagles environmental history that would prepare it to deal with this. Because it likes to nest now on microwave towers doesn't mean that it's immune to these radiations. It simply means that it wants to be up high so that it can look around. So why not build a natural wood pylon that might be made of a laminated wood. You can make it as tall and as handsome as you wish. It would cost perhaps 10 or 15 percent of what you had planned to spend. The Division of Forestry wood technology division can tell you how to go about building such a structure. In fact, I can give you architect-designed plans for such a thing, if you wish me to do that. Yes, Mr. Godly. I'm finished. Did you have a question for me, sir? MR. GODLY: No, sir. DR. DALY: Thank you. DR. LYNNE: I have a question. Sir? Doctor? So what you're saying is, is that even though the eagles may like to nest on high structures like cell phone towers, that there could be emissions that would harm the chicks over generations -- DR. DALY: Oh, yes. DR. LYNNE: -- if they continue to do this. DR. DALY: Yes. I believe so. And a 25-year history of nesting in this environment is really not a very good basis for making a judgment about the next 25 years. DR. LYNNE: Thank you. DR. DALY: Thank you. CHAIRMAN GAL: Some questions. This photograph, it's pictured September 19th, 200 1. Was that taken by you? MR. GODLY: Yes. CHAIRMAN GAL: When was the first time you were on the site; do you recall? MR. GODLY: Probably in June of that year. Could have been Page 131 February 2, 2005 May. I don't remember. CHAIRMAN GAL: Well, so about from this time period, September, 2001 to the present, have any of the site conditions changed? I mean, I -- not -- generally. Are they the same as 2001? DR. DALY: Well, construction was initiated on the golf course, you're aware of that. Those are on the photographs. The Flatwoods haven't burned again since then. Those are probably the two major -- CHAIRMAN GAL: So then -- the reason I ask is that in the prior ordinance, it says the current site plan calls for development of a golf course, only with an option to conduct future residential constructions should the site conditions or management techniques change to allow it. So the site conditions are the same, I would imagine. We're saying that the management techniques are different? MR. GODLY: Well, Rich, do you want to comment? I think the site conditions are different from the original application in that the original application in the bald eagle management plan only included the golf course. And what is before you today is the condominiums. CHAIRMAN GAL: Physically the site condition is the same, except for the golf course construction. MR. GODLY: That's correct. They're generally the same. The other point, as I mentioned, the management techniques and the experience with dealing with eagles has increased over that period of time. CHAIRMAN GAL: Is there a certain perimeter around an eagle's nest that there should be no construction? MR. GODLY: Well, that would depend entirely on the pair, as I mentioned. There's considerable differences in the tolerance of each individual pair. As a general philosophy and as a general biological principle, those birds that are in very rural environments that rarely see humans or disturbance are going to be a lot more sensitive than those that are living in more urban environments. CHAIRMAN GAL: Does the Fish and Wildlife Service right Page 132 February 2, 2005 now, today, propose a construction moratorium in that primary zone on the eagle's nest? MR. GODLY: No. The Fish & Wildlife -- CHAIRMAN GAL: So it's on a case-by-case basis is what you're saying. MR. GODLY: The Service today has and does issue incidental take statements where they believe there is even a low probability of abandonment of the nest as a result of the activity. And that's what they did here. They believed there was -- there was a probability and a potential for abandonment of the CO-O 19 nest, and so therefore by law they issued an incidental take statement and biological opinion in this case. CHAIRMAN GAL: But their opinion is not because they think that there won't be harassment of eagle, but because the population statewide of the eagles are -- have risen to such an extent that they don't -- they're not concerned about this one eagle. Wasn't that the basis? MR. GODLY: Well, I don't think it's quite that simple. They obviously are trying to manage, as is the Commission, managing the species on a statewide basis, and as a nation we're doing it on a national basis, just like if you listened to NPR this morning about gray wolves, et cetera. We're managing -- we have to manage wide-ranging species such as eagles at a bigger than county basis. You cannot do it on a county basis. It just makes no biological sense at all. So they're managing them at either a statewide level or a southeastern region or a bigger region. CHAIRMAN GAL: The project, though, as it's proposed, will likely result in abandonment of the nest, won't it? MR. GODLY: Yes. CHAIRMAN GAL: And that would be caused by the construction of the buildings? MS. HUSHON: Yes. Page 133 February 2, 2005 MR. GODLY: If the birds leave, we will never know why they left, okay, and that's an important point. The probability that they nest as a result of the development, though, is high. And I want to make the other point, though, which is -- which I think is really critical: The incidental take statement is for abandonment of the nest. The probability of any harm to any individual eagle, or even the loss in productivity of the pair is low, in my opinion, based on my experience with the eagles. CHAIRMAN GAL: Sir, are you able at all to put some sort of footage around an eagle's nest where construction within that zone would cause abandonment, or would likely result in a high probability of abandonment? MR. GODLY: Not with any certainty. You know, not with any certainty. And again, it's so variable amongst the pairs that you can't do it with any certainty. CHAIRMAN GAL: Well, how did Fish & Wildlife Service develop those boundaries in the past? MR. GODLY: The 750, 1,500? CHAIRMAN GAL: Yes. MR. GODLY: It was a guess. It was their best guess. And I talked to the individuals that proposed it. They had very few examples of where development had occurred within either 750 or 1,500. It seemed to be reasonable, it seemed to fit in their minds as to what would be reasonable. It was not based, though, on but a smidgeon of empirical data. Now we have much, much more empirical data. And the new guidelines that come out of the Service, I've seen the drafts of those, they will be very different, and they win be less. MS. HUSHON: The December 15th letter that we have from the U.S. Department of Interior -- MR. GODLY: Yes. MS. HUSHON: -- Fish & Wildlife Service states that in fact the Page 134 February 2,2005 only thing that should occur potentially within a primary protection zone is a single-family home. And that, if you read down further, should not occur any closer than 330 feet. MR. GODLY: As a general recommendation, that's true. MS. HUSHON: This is their general recommendation. That sounds different from what you're saying. I'm just -- they're being very specific here. MR. GODLY: Right, and -- MS. HUSHON: They're not talking -- multi-families should be definitely kept outside of the 750, and that single-families might be allowed within, but not closer than 330, if at all possible is the way it reads. MR. GODLY: Understand the basis of that particular letter. And Candace Martino, who's the author of that letter, actually shared that letter with me before it was published because she wanted my input on it. MS. HUSHON: This is David Hanklin. I'm sorry. MR. GODLY: That's right. He's the field supervisor of the Jacksonville office. He has to sign all letters like that, okay, just so you understand. But the Service, Vero Beach office and the Jacksonville office was getting eaten up with eagle calls. And the Jacksonville office, as an example, they typically handle somewhere between eight and 15 calls per day about eagles' nests. And they are -- it is a -- it's draining their resources in terms of their ability to work on what they think are more important issues. And so what they did is to draft a blanket letter that would provide blanket approval for construction at certain distances, which are lower than the old guidelines, the '87 guidelines. It's essentially a relaxation of the '87 guidelines, based on the new information. And so, in other words, if you follow those, you don't have to call them up, and Collier County will not have to write them a letter and Page 135 February 2, 2005 say I want to confirm that this is appropriate, it's acceptable with the Service. It is acceptable to the Service, that's why they wrote that. At any time, though, based upon the particular circumstances of an individual territory, I or you or anybody else can write a letter and say here's my circumstances, I'm at 275 or there's a house at 150 feet away on the other side and I want to build one on the opposite side of the nest at the same distance; can I do that? They'll write you a letter, yes, you can, under those conditions, as an example. And so this was a -- it was a blanket approval to decrease the workload of the Service offices in cases where they were very confident no take was likely to occur. And if you follow those, you won't get prosecuted if the birds were to abandon the nest. That's the purpose of that letter. MR. HUMISTON: What was the name of the individual you said that wrote this letter? MR. GODLY: Candace Martino. M-A-R-T-I-N-O. Hernumber is (904) 323-2580, Extension 129. CHAIRMAN GAL: Can I hear public comments? Thank you. MR. GODLY: Thank you. MS. MASON: First speaker will be Nicole Ryan, followed by Richard Ryder. (Speaker was duly sworn.) MS. RYAN: Good afternoon, council members. For the record, Nicole Ryan, here on behalf of the Conservancy of Southwest Florida. The Conservancy is opposed to the proposed eagle management plan amendment. And we've had lots of good eagle discussion this afternoon, interesting information and facts and dialogue. But the issue before you today is not primarily about eagles. And it is not primarily about CCME Policy 7.1.2, paragraph 3. What you really need to focus on today is whether agreements made in a PUD approval process count for anything when a developer Page 136 ._~-_.,...,_.._,"- February 2, 2005 seeks to amend that PUD. The proposed amendment reverses an explicit agreement made by the applicant when the PUD was first approved. This agreement stated construction would not begin in the eagle primary protection zone until the eagles left the nest of their own accord. The approval for the five high-rise towers was clearly conditioned upon this agreement. While the inconvenient eagles are still there, but instead of modifying proposed development to avoid impacts to the nest, the applicant is seeking to move forward with the towers. When this PUD was approved, you and the public were given repeated assurances that the developer was not going to do anything until, I quote, Mr. Eagle decides to find a new place to live, end quote. And that was from Karen Bishop, representative for the developer at the December 12th, 2000 Board of County Commissioners hearing. Conditions to the rezone were included in the staff report and they were stated over and over again on the record by county staff and by representatives for the developer. In the November, 2000 EAC staff report, for instance, it states: As a requirement of the bald eagle management plan, there shall be protective covenants placed over the primary zone of the eagle's nest, and restrictive covenants placed over the secondary zone of the nest. Some other promises made at the December, 2000 EAC meeting, and I believe Mr. Gal was the only one of the EAC members that actually was there for that meeting, but Mr. Ron Nino, then working for Collier County, stated: The long and the short of it is, while we are approving 590 units of housing, in fact they won't be able to build any of those units until the eagle finds a new home. Chairman Sansbury at that time asked: Just to clarify, so potentially if he, meaning the eagle, didn't move, the high-rises don't happen. Mr. Nino for the staff: They are out of luck. Page 137 February 2, 2005 Similar assurances were given at the planning commission that year. Again, for the staff, Mr. Nino stating: There's an eagle there and the PUD, as structured, contains an eagle management plan. It basically says that until the eagle decides to find a new home, the development can't go forward. It just can't go forward. It's there and it will have to wait until the eagle finds a new home. Based on these assurances given by staff and promises made by the representative for the applicant, it's clear the recommendations for approval were based on the protection of this nest. The PUD process in general is characterized by negotiation and compromise. You engaged in some of that this morning when you negotiated with the developer and added some stipulations to the approval -- the recommendation of approval for the PUD and for the conditional use. And I'm sure that those were done in good faith on all sides. PUDs that are approved upon good faith negotiations should not be amended in the future to eliminate those commitments made. If developers can make any promise to secure approval of a PUD, only to discard those promises later with the approval of a more sympathetic commission, then really the PUD process becomes a mockery of land use decision-making. And there are also other -- two more important points. If, as Mr. Godly has said, that tree isn't going to last very long anyway, then why are we going through this whole battle to try to amend promises that were made? Also, the applicant still has use of the property. They can construct the project in accordance with the previous Master Plan B. The eagle management plan covers only a small portion of the project site. The developer can still work on the golf course and the housing units that are on the east side of Vanderbilt Drive. Now, those promises for whatever reason were not incorporated into the PUD document. Was it because they just simply weren't Page 138 February 2, 2005 important? Or maybe because they were stated so many times on the record and everyone that stood up, raised their right hand and swore that it was the truth that they were stating, that perhaps it just never made it into the PUD because nobody thought it should. But that's something that you really need to examine. Especially those of you who did vote on this issue the last go-around. And for the others, you need to look at the promises made on record and really take that into account when you make your decision on this item. The bottom line here is about the integrity and accountability of the planning process in Collier County. Therefore, we're asking that you recommend denial of the modification to the Cocohatchee Bay PUD eagle management plan and that you make the applicant stick to the agreement that was made previously. Thank you. MS. MASON: Richard Ryder, followed by Dick Macken. MR. RYDER: Good afternoon, councilors. Richard Ryder, MD, of Cove Towers, North Naples. A commitment is a commitment and a promise is a promise. Signature made commitments and promises to the county in 2000, re: not disturbing or altering the Eagle No. 19 habitat. This is documented in county records. Those undertakings should be honored and respected at the present time by Signature and the county. To do otherwise would send an inappropriate message to Signature, future developers and to our citizens regarding the integrity of Collier County. Thank you. MS. MASON: Dick Macken, followed by Rebecca Knowles. MR. MACKEN: I would like to thank the Environmental Advisory Council for allowing me to speak. My name is Dick Macken and I live at the Villages of Emerald Bay, a condominium development a short distance from the Cocohatchee Bay PUD site. I'm a member of Collier County Audubon, but I am not speaking on their behalf. I've been concerned about Florida eagles for some time. I have Page 139 February 2, 2005 met with Audubon's Florida Eagle Watch in Maitland, and I have also been in contact with U.S. Fish & Wildlife. Let's be perfectly clear about the request before you. In asking to amend the Cocohatchee Bay PUD eagle management plan, the developer is really calling for the removal of the eagles nesting on the site. Transcripts of hearings before the Environmental Advisory Council, the Planning Commission and the Board of County Commissioners at the time the PUD was approved in 2000 plainly show that no high-rises were to be constructed within 1,500 feet of the eagles' nest until the eagles had left the site of their own volition. This 1,500- foot radius includes all of the property's buildable land on the west side of Vanderbilt Drive. To facilitate the removal of the birds, the developer has asked the U. S. Army Corps of Engineers to issue an incidental take permit, which absolves the developer from penalties, should construction cause harm to an endangered species like the eagles. While the Corps of Engineers issues the incidental take permit, the biological opinion for the request is written by the U.S. Fish & Wildlife Service. Fish & Wildlife has to issue a take permit, unless the loss of a particular nest would negatively affect the survival of an entire species throughout the country. The issuing of the take permit for the Cocohatchee Bay site does not mean that the U.S. Fish & Wildlife Service is in favor of the loss of the nest or thinks it is a good idea that the eagles be driven from the property. It simply means that U.S. Fish & Wildlife Service had no choice but to issue the permit. And make no mistake, the eagles will abandon their nest if this eagle management plan amendment is approved and construction of the high-rises begins. The eagles will not tolerate high-rises as close as 35 feet from their nest. The provisions of the existing eagle management plan were put in place for a reason: To protect the eagles Page 140 February 2, 2005 and their nest. The developer needs to keep his pledge not to drive the eagles away. Promises don't come with an expiration date. I urge the Environmental Advisory Council to deny the amendment to the Cocohatchee Bay PUD eagle management plan. Thank you very much. MS. MASON: Rebecca Knowles, followed by Brad Cornell. MS. KNOWLES: Good afternoon, Councilors, and thank you very much for your endurance here today. I have -- I'm Rebecca Knowles, and I'm a resident of Cove Towers. I have kind of a rhetorical question for you here, which has been alluded to already. Do promises mean anything in Collier County? Brent Batten of the Naples Daily News wrote a column about this last September, and he concluded with these words, and I quote: There is a steady parade of developers coming before commissioners promising this and that in order to get their approvals. County Commissioners have an opportunity to send them a message. In Collier County, words do in fact mean something. I especially hope that you will take seriously the words of our Land Development Code, that in Section 10.05.03(L) says in part, and I quote: In cases where stipulations, restrictions or safeguards are attached, all representations of the owner or his agents at public hearings shall be deemed contractual and may be enforced by suit or injunction or other appropriate relief, end quote. And there is a stipulation attached to the Cocohatchee Bay PUD. The motion to approve at the BCC stipulated that all staff recommendations be incorporated. That staff report, the executive summary, recommended approval on the proviso that the eagles would never be harmed by the actions of man. Please let your vote today reflect your desire to make forever binding all promises intended to influence your decision. Thank you. MS. MASON: Brad Cornell, followed by Anita Brown. Page 141 February 2, 2005 MR. CORNELL: Good afternoon, council members. Brad Cornell, here on behalf of Collier County Audubon Society again. First I want to state that Collier County Audubon Society objects to any activities that will threaten the continued existence of eagles at Wiggins Pass and in Collier County. However, also, the issue of promises made is very problematic, as we've been just listening to. And I think that's troubling. However, I want to raise an issue that I think is even more troubling to me and to the Audubon Society here locally. And that is, to look at this situation with the big picture in mind, and that is whether this project is developed now with its residential component, or after the eagles nest CO-19 is gone naturally, the result is the same, the site is going to be developed with the residential units that have already been permitted in 2000. And the problem still remains, as I pointed out on the earlier discussion, we have not done anything to address comprehensive protection of eagles in Collier County or eagle habitat. So whatever the fate of this petition, the result is going to be the same. And we have a tall order in front of us to deal with the comprehensive issue of listed species habitat protection in Collier County. Collier County Audubon Society believes that it is a mistake to put all of the eagle protection eggs in this eagle management basket or nest. I don't mean to be flippant, but I do believe that we are -- we're pursuing a very large issue with a small petition in front of you right now. And I don't think it's going to work. And the reason I don't think it's going to work is because the project is already approved, and because it will be built at the latest when this nest is naturally gone. And I believe that the Board of County Commissioners may likely withhold their support for a process to comprehensively plan for protecting eagles and other listed species in all of Collier County if this nest CQ-19 is used to deny this petition. I'm afraid that's a political issue. But I'm here to stand in front of Page 142 February 2, 2005 you and say that we need to pay attention to that, because ultimately it's going to affect how we best protect listed species in all of Collier County, including eagles at Wiggins Pass. I want to reiterate that our -- we look to you as the environmental advisory council, not just as a project review council. Because one of your primary purposes is policy recommendations. And this is an area of policy that you need to take a leadership role. And I want to reiterate that I hope that you and the county can begin the development of an effective set of local listed species policies, which would include incentives, regulations and mitigation county-wide. I think this is what we really need. We cannot expect project-by-project and petition-by-petition examination of listed species habitat issues to give us what we're going to need, because I think that's going to doom us, doom the species that we're trying to protect. Thank you. CHAIRMAN GAL: Brad, I have a question for you. I don't understand why you say if we deny this petition that it's going to be used politically to prevent an eagle management plan in the future. Why would that happen? MR. CORNELL: Because I think that politically the board -- at least some of the Board of County Commissioners look upon this project as a vested project because it's already been approved in 2000. And if we in the -- what I think are our -- the best of intentions, trying to protect the eagles at Wiggins Pass, and this is our interest too as the Audubon Society -- if we pursue this particular petition of wanting to change the eagle management, this particular management plan, on a vested project, we're going to, I think, drive the County Commission away from their desire and political support of treating comprehensive policies or looking for comprehensive policies countywide. And we saw in the last glitch cycle the loss of support, the erosion of support for a policy that would clarify that Growth Management Plan policy that has already been read to you a couple of times. It's ambiguous, and it's admittedly ambiguous -- Page 143 February 2, 2005 CHAIRMAN GAL: I think that the replacement language was just as ambiguous. MR. CORNELL: Well, I guess that's-- CHAIRMAN GAL: I don't think it helped much, but -- MR. CORNELL: I think that's a matter of debate. But what -- you may recall that what was directed was a process to begin using a stakeholders group, which is meeting now, and is going through, and there will be on, I believe, February 15th, a workshop in front of the Board of County Commissioners to discuss this very issue, to discuss a likely recommendation for habitat conservation planning process for Collier County. Whether the County Commission supports this I think is a big question. We would surely like to see them support this because this is where we believe we're going to get the most bang for our buck in terms of habitat protection. We've got to do it on a regional basis, at least on a countywide basis. And if we don't get the support of the County Commission for that, I think we're going to really make our job much more difficult. Because I don't think that what we're talking about right now is ultimately going to make a big difference, or even a positive difference for eagles, because this project is already permitted. And what we're talking about is the amount of time of nest productivity in this particular site until it's gone, and it will be gone. And then what do we have? The project's already been approved. So what I'm saying to you is, politically let's not drive away our support on the County Commission, let's try and rally some support, recognizing that this is a problematic petition, I will grant you that. And I feel that it's -- you know, it's got some ethical issues around it that are aside from the eagle issue. But talking about eagles, I don't think we're going to help ourselves by ultimately denying this, because I think the damage is already done on this particular site. CHAIRMAN GAL: See, I'm still not sure that even if this Page 144 ,."-.,,"---. February 2, 2005 petition is denied that would maybe demonstrate to commissioners that a county-wide eagle management plan is required. MS. HUSHON: We in fact said in January that we requested one. Remember, we had a special meeting in January-- MR. CORNELL: Right. MS. HUSHON: -- on this very subject. MR. CORNELL: Right. I wish I could have come. It was -- MS. HUSHON: And it was forward -- I mean, at least put our comments in to staff for the incorporating before it went to the working group and finally to the commissioners. We met early so that they would have plenty of time to work on the inputs. MR. CORNELL: Right. And I appreciate your support. And I think that this is exactly what needs to happen. However, for this particular project, this one's out of the gate. And politically I feel that this is -- I feel bad about that. I feel like politically, though, we need to acknowledge what is past, and try and do better in the future. And the future, in my view, and I will strongly suggest this to you, is a broader comprehensive habitat conservation planning process. I don't think we're going to get there with this particular one. CHAIRMAN GAL: This decision was made in 2000, really, when this wasn't even in the horizon of anybody's thoughts. MR. CORNELL: That's correct. We've learned some things in the intervening years. CHAIRMAN GAL: But all we can do at this point is deal what we have before us today. MR. CORNELL: You're right. And I'm -- and you, I'm sure, will do your best. I'm suggesting to you as a public commenter that take into consideration the political ramifications of this particular issue. We're not going to gain a whole lot for eagles by denying it. We could do ourselves some political damage by doing that. And as an example, I will hold out to you the denial of the glitch amendment, which was intended to at least help us along the way Page 145 February 2, 2005 towards some interpretation of protection of listed species here, we don't have that now. We have ambiguity. You want to solve that, you're going to have to go to court. CHAIRMAN GAL: But was your sense -- what was the reasons for the denial of that glitch amendment? I mean, my sense was that it was still an ambiguous -- MR. CORNELL: No, I -- CHAIRMAN GAL: You think that there are commissioners that don't want to protect listed species? MR. CORNELL: I wouldn't put it quite that bluntly, but I think that in the prioritization of issues, maybe it's not at the top of everybody's list. Maybe that's the issue. I don't want to say that for any particular commissioner. But we did see in that discussion a backing away of wanting to consider a local role of any kind in species protection. At least the initial discussion was a big caution flag to all of us who want to see a local role and want to see these kinds of projects dealt with more comprehensively. We need to have mitigation, we need to have incentives to do better. And I think we're dangerously close to losing that opportunity. MR. HUGHES: If I may, essentially what the reality is of this procedure is, when this tree falls down next Tuesday night at 12:30 in the morning, there's no issue. Construction starts. Right? So that's really all we're talking about. The tree's near death now, anyway. MR. CORNELL: Well, it is dead. MR. HUGHES: It is dead, right. It's near falling down now. So I tend to agree with what he's saying, we're going in circles. MR. CORNELL: And we want to see eagles stay at Wiggins Pass. MR. HUGHES: Right. MR. CORNELL: And I think if we fight over this particular nest in this particular location, we're going to do ourselves harm. MR. HUGHES: Now, I have one more part to that. And I was Page 146 February 2,2005 glad the Doctor here earlier just spoke up. Putting up a steel-type tree to me is ludicrous. I just personally don't go for it. I think it makes no sense to create artificial habitat for wild animals. Makes really no sense to me. MR. CORNELL: I will reserve my comments and opinion about that except to say that in our world today, and in Florida in particular, we have -- and all you have to do is look at the Everglades restoration process, we have created a situation where we have no choice but to humanly manage natural systems. We have destroyed enough of our natural environment that we do not have a sufficient -- in many places, a sufficient ecosystem to sustain itself all by itself. We've got to manage it. That's our legacy now, unfortunately. MR. HUGHES: And again as a result of our tremendous depth of wisdom. MR. CORNELL: I think it's lack of forethought. MR. HUGHES: Right. MR. HUMISTON: A follow-up question. MR. CORNELL: Yes. MR. HUMISTON : Were you kind of suggesting that it might be better to approve this petition and accept the other eagle habitat that the applicant was going to purchase and put that in preservation? MR. CORNELL: That isn't what I'm suggesting. I think it's a political reality. It's not that I prefer to do this, it's that that project is already permitted. And I think it's being viewed by the County Commission as vested. And if we try to undo it through the back door, I think we're going to shoot ourselves in the foot. I know it's not -- well, we can't undo the permit. That's the reality of it. We can't undo it. They've permitted it. And that water is under the bridge. And whatever we all may feel about that, I'm certainly sorry that that's happened. But we are where we are. So yes, to answer your question. MS. MASON: Anita K. Brown, followed by Gary Edson. Page 147 February 2, 2005 MS. BROWN: Thank you for the second opportunity. We have met this morning already. We have heard many things about the danger of an artificial tree, which I agree to. I am from a medical background. I understood his comments completely, which was maybe a little different for the other party . We have already an approved plan here. Yes, we cannot backwards (sic) from this plan. But we can make it a little bit more difficult for them to start construction. I think it's ridiculous to start in 35 feet away from the tree. We know this bird is very sensitive and very intelligent. Better than we are. Never I have seen a report has shown so close to the bird's nest that it will work and the bird will not abandon the nest. We know this for sure. If we don't start now to make a point and make it clear that certain rules have to be met, we will never be able to control or at least manage certain requests of developers. They will get new ideas to make it possible to go around the back door and do what they want to do. Because we are not able to say it's enough. We have certain rules, we want to apply these rules, we gave this application, the permit, but don't start construction in 35 feet from the nest. Don't build this high. We lose every year 200,000 -- 200,000 migrating birds in the United States alone. Why? They fly against high-rises with big mirrors. Nobody's doing anything about it. We know this since 15 years, but nobody's doing anything about it. Isn't it time to do something finally, to stand up to what (sic) we are here? You are elected from the public to be their voice to say that's it, we have certain rules and we apply these rules now. Unless we don't do anything, we'll let everything build, it will be anyhow the last place we have still left. Then we are Miami Beach, we are not different than other cities, not even worth to be mentioned. And we will fit into a program that shows already a very common act. What we don't like, Page 148 February 2, 2005 we put by side. We don't need it. Destroy it. Weare in a society which is unfortunately God damn sick. We produce movies with -- where animals are killed for shock effect because we are so stunned against our instinct inside. The bird has one instinct. It doesn't matter if it's deaf or blind. The instinct tells them you have to build a nest in the highest tree available. It can be an artificial tree, can be a lamp post. It has to be high enough. You think the high-rise is shorter than the tree? No. You think this bird will survive? No, it will not survive. It will abandon this tree. They know it. They are afraid to take it because it's God damn good watched. I believe it's watched 24 hours every day. They are afraid to cut it down. It survived three hurricanes. It maybe will survive the next hurricane season which is coming up. We shall see. Maybe the bird finds another tree. But if we start with building high-rises, there will be no other tree. Have you seen this picture without the high-rises? It's a beautiful picture. Yes, they are dead trees, that's nature. Lightning, thunder, rain, fire, it's nature. Can you imagine to have five high-rises there, an artificial tree, no bird, no song, nothing? We getting into a poor, poor life. We are starting to kill whatever is in our way around us. It's a shame. And I think really we had a promise, Exxon, you know the problem involved in Exxon, the oil spill? They promised, it will never happen. They are still not finished with cleaning up from the accident which happened a century (sic) ago. And it takes approximately 25 to 35 years longer to clean their accident. The foreseen for nature, unpredictable. We don't know. And we think we can control or predict nature? We are a part of it. We should control ourself first. Thank you very much. MS. MASON: Gary Edson, followed by Doug Fee. MR. EDSON: One of our speakers, Diane Shandly, has to go and she'd like to speak in my place. Would that be acceptable? Page 149 February 2, 2005 MS. MASON: Sure. MR. EDSON: Thanks very much. Then I'll speak later. MS. SHANDL Y: I want to thank the council members for allowing us all to give our testament in this hearing, and also for their fortitude. There's been a lot of things that have been said today -- by the way, I'm Diane Shandly. I live in Collier's Reserve. I'm the head of the natural resources group there. But I am speaking as an individual and not for the Collier's Reserve Country Club. I was at a recent information meeting that Signature Communities held, and they provided mostly the same information that they've provided in front of this group. I've got a couple of comments to make based on what they said and based on what has been said this afternoon. The first thing is about this artificial tree. And I think there has been some question about it. It sounds like a good idea on the face of it. Let's build a tree, you know, they're nesting on artificial structures, let's do a good thing for the eagles. But they admitted in their meeting that I attended before and I think in this same forum that they have no proof, the operative word being proof, that these eagles will nest in this tree. It would be a great thing, a great experiment, and certainly, for what's happening in our world today and the habitat that's disappearing, it would be a great way to maybe increase the habitat. I don't know. But I don't want to see Collier County be the recipient of an experiment that we don't if it will work or not. Secondly, Signature has received an incidental take permit for these eagles. As a personal feeling, I don't like the federal government telling me what's going to happen to eagles in Collier County. And I think, and it goes back to I think what Brad was saying a bit, although I don't totally agree with him, that we need to have a larger, larger view of what's happening throughout our region, throughout our state, with wildlife protection. But I don't believe that this particular forum Page 150 February 2, 2005 by saying no to the amendment is going to have an adverse affect on our County Commissioners. I think that we can't keep on putting off decisions that we make to protect environment and animals because we feel like, well, we may offend somebody and they're going to vote against our other issue. I mean, we have to act now. Lastly, I think the larger issue here is what other people have said, and that is the fact that whether words mean what they say. This entire PUD was granted based on assurances given by the developer to the EAC and the County Commissioners that they would not start construction until the eagles vacated the nest on their own. This was probably predicated on the fact that the developer believed that the dead tree would fall down fairly soon after they received their permission for their PUD. I'm not saying that Signature Communities should not be permitted to build their property. What I am saying is that the commissioners gave their permission for the building site plan so close to the nest based on prior promises made. The developers should be denied their amendment and should come back with a plan that keeps the buildings out of the primary and secondary zones, as current government statutes provide. By allowing Signature Communities an amendment to their eagle management plan, the EAC, and eventually the Commissioners will establish a precedent for any developer to say whatever they need to say in order to bypass inconvenient wildlife within their proposed proj ects. If this amendment is to go forward, it effectively says to me as a constituent and as an American that my government cannot be believed. This amendment should be denied and Signature Communities should have to go back and rework their site plan to eliminate the threat to these eagles and to assure that they keep their original promises to the citizens of Collier County. Thank you. MS. MASON: Doug Fee, followed by Joe Moreland. Page 151 February 2, 2005 MR. FEE: Good afternoon. For the record, I'm Doug Fee. And before I read my prepared statement, a couple of comments. Just a couple of questions. Will the State of Florida have to issue a take permit on this development? What happens if the eagle leaves or moves, tree-wise or habitat-wise? I want to make sure that in the photos or the graphics there is some land that's north of the PUD. It was a different color. I believe it was pink. And I think this is where they've suggested putting up the artificial tree. And I just want to make sure that the council knows or we all know that that's not part of the PUD. That is land that -- I suppose they own it. They can state that on the record. But I just want to make sure that it's only the yellow part of the PUD that we're talking about. The staff report for this meeting talks about the Growth Management Plan consistency. And that's on Page 3 of9. And in the middle of the page it says: Therefore, the proposed amendment does not impact the approved density. Collier County comprehensive planning finds that the proposed amendment is consistent with the provisions of the future land use element. However, staff must defer to county environmental services department staff as to whether the proposed revisions to the bald eagle management plan are consistent with the proposed revisions -- I'm sorry, are consistent with the county provisions regarding the protection of listed species. And then below that it has conservation coastal management element. Staff is saying only those policies relating to the eagle as a listed species were evaluated for project consistency. And I think that's important for the citizens as we're here with a PUD amendment, that we must make sure that whatever does get approved or disapproved is consistent with the plan. And I'm not sure what those two statements -- whether this has actually been looked at comprehensively. It may have been looked at with certain policies, but I would question if it was entirely looked at from the compo plan. Page 152 February 2, 2005 Okay, having said that, I just repeated myself. Good afternoon, Councilors. My name is Doug Fee. I'm strongly opposed to the plan by Vanderbilt Partners, as known as Signature Properties, to amend their bald eagle managelllent plan. There was an explicit agreement by this applicant back in 2000 when this proposal came before this council that construction would not occur within 750 feet of the eagles' nest until the eagles left on their own accord. The approval of this PUD was conditioned on: Your county planning staff back in 2000 recommended approval of the PUD in the executive summary presented to you ahead of the hearing. But their recommendation was conditioned with the condition that the eagles would not be harmed by the actions of man. That staff report was later incorporated in the motion to approve at the Board of County Commission. The record of hearings is rife with references to the welfare of the eagles. Statements by Ms. Burgeson and Mr. Nino on the county staff and Ms. Karen Bishop, on behalf of the developer cannot be mistaken for anything other than solid reassurances that building on this project would never happen until, as Ms. Bishop says on the transcript on December 12, 2000, Mr. Eagle decides to find a new place to live. If such promises are allowed to drift into oblivion, the entire land development process will turn into little more than a ruse on the public. This hearing is not so much about eagles and wildlife protection as it is a test of the fundamental integrity of the planning and growth process in Collier County. I urge you to deny this petition. MS. MASON: Joe Moreland, followed by Gary Edson, the final speaker. MR. MORELAND: Good afternoon, Commissioners. With the comments that have been made, I'm just very proud to align myself to on behalf of the Estuary Conservation Commission, Page 153 February 2, 2005 particularly those made by the Conservancy, and the follow-up speakers who dwelled and amplified on the point of the governance issue that is in here. I think we can dispense with the environmental kinds of issues and what their control here was, if you would just think for a moment, what if indeed none of this had transpired until now and the developer was coming in with this petition to construct a very large set of high- rises 35 feet from an eagle and it was tantamount to a -- chopping the tree and kicking the eagle out, because that's exactly what is going to be the result. That's nonsense. Nobody can think that that would go through any of this county's advisory or governing bodies. It wouldn't happen. So don't be bluffed by it. What would have happened is a serious discussion on the take of the eagle, a change in the plans so that you certainly weren't entertaining a take within the primary zone, nor in the secondary zone. It's never, never land. Enough said on that. Controlling point however, this is not a case of first impression. This is a case of lasting impression. The lasting impression is the ones that my colleagues have focused on with respect to the integrity of governance and the responsibility of developers to represent reality that they're willing to live with when they first come before you to make application for the exercise of your advisory and legislative administrative powers. They didn't do that. To the contrary, that every step of the way, up until this hearing, their representations have been we're going to wait until the eagle leaves of its own volition. Period. End of it. The record is replete with the redundancy of that commitment. It makes no sense to formulate arguments that say now in the face of the fact that that eagle has not left, the tree has not fallen down, that we should now do this about face when I harken back to what I said just a moment ago, if this were a case of first impression, you Page 154 February 2, 2005 wouldn't consider it for 10 seconds, as proposed. It makes no sense, it's a juxtaposition, it's illogical, and it is really a very irresponsible act, in my opinion -- and I'm perhaps speaking for myself now, I wouldn't want to put my board in that position -- but an irresponsible act to allow a proposal to accomplish the results that are being asked here. I have nothing against Signature Property. I respect them, they're a good outfit and all. And they're caught up in a set of circumstances which mayor may not have been on their own. There's no maliciousness there, and I don't mean to infer that there is. But I do have a serious concern in being sure that our county government does the right thing. We don't have a great reputation, in case you might have read the papers over the past decade, and it is little opportunities like this when they present themselves where we can take a stand that is not only factually correct, but it is morally correct, ethically correct and, I would submit, politically correct. So I urge you to do the right thing. Thank you. MS. MASON: Your final speaker is Gary Edson. MR. EDSON: I'm Gary Edson. I'm from Glenn Eden, here representing myself. I don't know how to top that. That says it all. But I would like to put this down into some very simplistic -- simplistic basis, and Mr. Hughes reminded me of my being back on a dirt road when I was a boy growing up. If I was selling a piece of property and the person who brought that piece -- who was living in that piece of property said to me hey, I'd like to live here as long as I can until I get tired of it. And I said well, you can do that, because I'm going to get a good price, because it's 1990 and I can buy this property right cheap. And you say boy, that's a good deal for me, I'm buying this property cheap. I'm not wanting to build for maybe five, 10 years anyway. Well, 12 years go by, and all of a sudden I'm wanting to build because the prices are going up and the property wants to be sold. And Page 155 February 2, 2005 the person says to me, well, I don't want to move. Well, I got a new law here that says I can kick you out. Say, I don't want to move, you promised me I didn't have to. But then you say well, you know, I think I will move, but I'm just going to move to another room. Because that's what the eagle might do, he might move to another room, another tree on the lot. But I'm still not going to get rid of that. I can't get in there, because I made a promise to you that I didn't say you had to move out of the house. I didn't say you had to move at all. You want to move to another room, that's fine, too. So what happened here is that we got a person that made a promise to let me live in the house and then made me want to go to another room in that house, and all of a sudden I have to leave. Something wrong with that. That's the deal. These are good people. I mean, they got a lift, they put the chick back into the nest. They aren't out to hurt anybody. And I thought that was a noble gesture. But doggone it, this isn't right. It just plain ain't right. So I'm hoping you all will do the right thing. Thank you. CHAIRMAN GAL: Why don't we take a five-minute break, give the court reporter a little break, and then we'll let you respond. MR. YOV ANOVICH: That's fine. I'm going to have Mr. Godly do some scientific response and then I'm going to get into some of the points that were said on the record that absolutely need to be corrected. CHAIRMAN GAL: We're at the end of the day, so let's really keep it five minutes. (A recess was taken.) CHAIRMAN GAL: Okay, the meeting is back in order. If you have some comments to the public comments. MR. GODLY: Thank you. Steve Godly, again, for the record. I just wanted to clarify a couple of comments that you heard that Page 156 February 2, 2005 I don't think were correct or need some clarification. The bark. You heard discussions about the bark and the fact that it may be made of petrochemicals that could be damaging to the eaglets, the birds under some scenario. This is acrylic. It's no different, I don't think, from the stuff that's on your kitchen counter that you cut your vegetables on and eat off of every day practically. So I don't think this is going to harm the birds at all. There were comments about a steel -- a steel structure, why don't you make it out of wood, and then the potential reaction of a acrylic onto steel. We considered other options, and chose the monopole technology for two reasons: One is because the base and the engineering science behind the construction of the base is well known, well documented. We knew it would withstand the weather, the hurricanes, et cetera. The other obvious is that if it's made out of wood, it wouldn't necessarily withstand any hurricanes or -- and it certainly wouldn't necessarily withstand any termites or anything else. And so it was a long-term approach to solving a potential problem. Two other comments about where birds are likely to nest and would they move off to some other county or somewhere else. This is the biology of eagles. If they lose a nest tree, typically the nest is with -- an alternate nest is within sight of the old nest in almost all cases. Not always, but the vast majority of the cases, they are within sight of the old nest, and I think the same will occur here. And the final point is that one of the speakers mentioned do you need a state permit in the case of a bald eagle nest. The answer is no, you do not. In fact, under Section 6 of the Act, there's coordination required between the Service and the Commission. That coordination occurred, and Mr. Dan Sullivan, who's the endangered species coordinator, agreed with the biological opinion. In fact, he made some of the recommendations and the changes that were in it. So thank you. Unless you have any questions. Page 157 February 2, 2005 MR. YOV ANOVICH: Jerry? MR. SORRELL: No, for either one of you, it doesn't matter. MR. YOV ANOVICH: Let me -- can I do my rebuttal and we'll answer any other questions? I sat and I listened to your public speakers tell you statements about the public record and the public hearings that occurred four years ago. I think it's time that we set the record straight. Because, frankly, statements made by the people who spoke didn't tell you what the entire record contains, if you had read the entire transcripts at each of the hearings. I wasn't involved in the year 2000. I recently got involved. I did read the transcripts so I would understand and know what I was getting involved in, so I could come forward and in good conscience represent this client. Yes, Karen Bishop made the statements she made. No question about that. What the other people didn't tell you, either because they didn't read the record or because they chose not to tell you, was that Don Corace, their principal from Signature Communities, got up after Ms. Bishop's speaking and said we have a patient time frame. We can -- we're four to five years away from going with this project. Where are we today? Four to five years later. We're exactly where Don Corace said he would be. He had a patient time frame. He never said and was never asked the question, does that mean you're going to wait until the eagle leaves? That question was never posed to Mr. Corace. It would have been a very simple question to ask, it would have been a very simple provision to put into the PUD, it would have been a very simple provision to put into the bald eagle management plan. Those questions were not asked of Don Corace. He got up there and he corrected what Ms. Bishop said, we have a patient time frame. Do you think that Signature Communities would risk $45 million on the hope that eagles would leave? I don't know any developer, no Page 158 --- February 2, 2005 matter how much money they have, $45 million is a lot of money. I don't care if you're the Queen of England, whoever, you're going to miss $45 million. You're not going to put that on a pair of eagles leaving. It's ludicrous to even believe they would have done that. Had he been asked the question, and the question could have been asked by anybody, could have been asked by the Conservancy, it could have been asked by staff, it could have been asked by the Board of County Commissioners, we would have, I'm sure would have said no, we don't do that. We clarified the record, said we have a patient time frame. If you look at the PUD document, the PUD document has a provision that addresses amending the bald eagle management plan. Why would you have a provision in the PUD document itself that talks about how you go about amending a bald eagle management plan if it cannot be amended? It's a silly provision to have. Obviously the PUD document, which is the rules of the game for this piece of property, provides a process by which you can amend the bald eagle management plan. Obviously there could have been no commitment to never come back if there was a provision in the PUD document that tells you how you come back to address these situations. Also, as the chairman pointed out, the bald eagle management plan itself talked about changing site conditions or changing management techniques. Again, the bald eagle management plan could have been one line, we will not come forward until Mr. and Mrs. Eagle leave. That's not what the bald eagle management plan says. It addresses, again, changed site conditions or changed management techniques. A lot of statements were made that frankly call into question the integrity of my client. And that needs to be clarified. The entire record needs to be put in front of you before people make statements representing what was said. They didn't give you the whole Page 159 ...--.....--..-.,.,......-.-....,.-- February 2, 2005 document. I don't know why. I guess they chose to make their argument based upon what's most favorable to them and not include the entire document. I find it interesting that there was no scientific evidence -- scientific testimony, contrary to Mr. Godly, who admits he's an expert in eagles and the management of eagles. Everybody said this is an issue about what was promised or not promised when we went through the process the first time. Nobody has contradicted anything that he has said from a scientific standpoint regarding how the eagle will react, how the eagle will survive. No contrary evidence to what Mr. Godly said. This is a dead tree. It's been dead for seven years. Steve has told you that. Maybe it will last a couple more years, maybe it won't. When the tree -- let's say you deny the petition. When the tree goes, you'll have nothing. Now you have mitigation and you have an experiment; the artificial tree that may lead to something that helps us manage the eagle in Collier County. Without it, you have nothing. We're not obligated to do mitigation, as Steve pointed out, I pointed out. We offered that up because it was good. It was good. It was good for the eagle. We didn't have to do that. That is further evidence that the developer has concern about what's going to happen. Mr. Cornell pointed out that we don't have a comprehensive plan that addresses eagles in Collier County. There is nothing that says -- and we're working on that, that's what the stakeholder group is, is how do we modify the comprehensive plan to address species in Collier County? Right now we don't have that. The comprehensive plan talks about the process, it talks about permitting from U.S. Fish -- I'm sorry, the Army Corps of Engineers and biological opinions from the U.S. Fish & Wildlife. That's what the comprehensive plan talks about. It talks about the Endangered Species Act. It talks about globally how will the species survive. Until we change the code or the comprehensive plan to talk about Page 160 _..~.- February 2, 2005 what we're going to do here in Collier County, that's an irrelevant argument. We need to follow the comprehensive plan as it exists today. And you've heard this before, the comprehensive plan says that the county will utilize the recommendations of the U.S. Fish & Wildlife. Your staff has found our petition consistent with the comprehensive plan. That is what your job is, to focus on what is consistent with the comprehensive plan. All this extraneous discussion about what happened in the year 2000, when I guess only the chairman was on the board, not including all of the record, that's irrelevant to today's discussion. The PUD exists, it's in place. The question is do you amend the bald eagle management plan. The PUD document addresses amending the bald eagle management plan. The bald eagle management plan itself addresses amending the bald eagle management plan. To interpret this that we promised somehow that we would never come back and amend this bald eagle management (sic) is not supported by the testimony of Mr. Corace and it's not supported by the very documents that are in effect. And the only documents you look at is the PUD document. You don't go back and look at the record, because those were -- if it was a commitment that was important to be in the PUD document, it would have found its way into the PUD document, just like we did it earlier today. When we wanted to make some modifications to some of the guidelines, we very specifically did that and we incorporated that into the bald eagle management plan, which is part of the PUD document. None of that occurred in the year 2000. So you have to look to what does the PUD document say, and the PUD document allows us to come forward, allows us to do this, and our plan is 100 percent consistent with the comprehensive plan, and we request that you do the right thing, follow the comprehensive plan and recommend to the Board of County Commissioners approval of Page 161 February 2, 2005 this bald eagle management plan amendment. And with that we're available to answer any questions you have. CHAIRMAN GAL: Do you have the transcript that you're referring to where you said -- MR. YOV ANOVICH: I can send it to you, if you want it. I'd be happy to do it. CHAIRMAN GAL: Yeah, I know. But I've got to make a decision today, I think. I don't have to, but you probably want me to. MR. YOV ANOVICH: Well, frankly, I didn't know we were going to be getting into this extraneous stuff, and I just needed to clarify the record. MS. MASON: Excuse me, Mr. Chairman, staff did mention earlier that they wanted to have time before you close public comments to clarify some things that had come up in previous statements. MR. YOV ANOVICH: I think they have the complete transcripts. MR. HUGHES: We've got a display up right now. Specifically where is the nest that we're referring to here? MS. HUSH ON: By the pointer. MR. HUGHES: You're going to start this ground project all at once? MR. YOV ANOVICH: No, no, sir, we're starting the most northern building first. MR. HUGHES: And the distance from that site is? MR. YOV ANOVICH: That building is in the secondary zone, by the way. MR. HUGHES: Your roads will access how? MR. YOV ANOVICH: I'm sorry? MR. HUGHES: Your access roads will be how? Will they be near the nest again? MR. CORACE: No, they will not. Page 162 February 2, 2005 MR. SORRELL: You don't have a map like you had earlier that shows the zones? MR. YOV ANOVICH: The zones? You want to see the zones? MS. HUSH ON: You don't have this overlay on that? MR. SORRELL: With this project on it. This was from the preVIOUS -- MR. HUGHES: If I may, the tree is dead. It's just a matter of time, that thing just falls over. Probably next summer. If you were to start your proj ect and stay as far away from this site, how is that going to fit your time line? MR. YOV ANOVICH: If I may, and I probably went too quickly when I discussed this originally. Weare starting with building five, which is this building right here, which is in the secondary zone. MR. HUGHES: Furthest away. MR. YOV ANOVICH: Furthest away. Then we go to building four, then we go to building one. MR. HUGHES: Slow down. Time line? MS. HUSH ON: A year between. MR. YOV ANOVICH: Assuming the market will allow us to meet the schedule, the soonest we can get to building four would be one year after we do building five. MS. HUSH ON: You also had clubhouses, I remember, which is within the 750. MR. YOV ANOVICH: The clubhouse, which is right here, and that will be constructed -- we commence construction during the non-nesting season. MR. HUGHES: Now, your proposal today is also with mitigation, to actually relocate this nest site. MR. YOV ANOVICH: No we're not touching the nest. We're not touching the nest at all. That tree never gets touched by us. What we did in -- the pink, the pink area is not within the PUD boundaries, it's adjacent, it's owned by the same entity. That is 90 Page 163 February 2,2005 acres that will go into preserve, and that's the area on which the artificial tree would be constructed. And if you look at the entire PUD, you will see how much is actually in preserve -- MS. HUSHON: A lot. MR. YOV ANOVICH: -- of the entire -- I mean, hundreds of acres are in preserve as part of this PUD. MR. HUMISTON: Is that area that's colored in the area that would be purchased as eagle habitat? MR. YOV ANOVICH: No, no, we already own that. MR. GODLY: There would be a separate purchase of a territory, independent of anything that happens on this property, sir. MR. HUMISTON: Has there been any discussion of where or how large or what the character of that -- MR. GODLY: Yes. And there are conditions in the bald eagle management plan that's before you that describes the sequencing of how that territory would be selected. The first condition, I don't have it in front of me. The first condition, it would have a bald eagle nest on it that's active. It would ideally have a number of alternate nest sites. We would look in Collier County and use our absolute best efforts to locate and purchase a territory in Collier County. That would be a -- MR. HUMISTON: Do you know of any areas in Collier County that would be candidates that would fit that description? MR. GODLY : Yes, we do. We had hoped to schedule a flight, last week, Don and I, in order to go to every territory in the county, to fly it by helicopter, to confirm the nest is still active this year. Already had realtors involved. We know the owner of every bald eagle territory that is known in Collier County. And we're actively pursuing that, sir. MR. HUMISTON: Another question about this exhibit. You said that the area that's colored in where the relocated nest would go, Page 164 February 2, 2005 do you already own that property? MR. GODLY: Yes. MR. HUMISTON: Including the part that's under water? MR. YOV ANOVICH: It's already in a conservation easement. That's part of our Water Management District permit. MR. HUMISTON: And the other areas that are bounded by the yellow line that are water, that's not state owned submerged land, that's part of your parcel? MR. YOV ANOVICH: Yes, sir. And as I understand it, owned by the property owner and not the state. MR. GODLY: Up to the mean high water line, and of course you know that. MR. HUMISTON: That was my question. MR. GODLY: Yes, yes. MR. HUMISTON: So the part that's under water is owned by the state? MR. GODLY: It's my understand -- well, those are sovereign submerged lands. Now, he has the title to the whole boundary, but they're sovereign submerged lands. MR. HUMISTON: The only reason I asked is because the boundary line over here in the upper left comer, the western side goes right down close to where the channel is in the waterway there. MR. GODLY : Yes. The location of the proposed eagle -- the artificial eagle nest is above mean high water, and it clearly belongs to him. And there's no dispute over that. MR. HUMISTON: Do you have any photographs of that site, ground level photographs that would show a comparison between the character of that and where the existing nest is? MR. GODLY: I don't have them with me. It's a salt flat, and we chose this location, as I mentioned, I think earlier, because it in my view was the safest location, best protected for the birds with the least amount of impact in order to construct the artificial tree. We won't Page 165 February 2, 2005 have to remove any mangroves, as an example. It will be brought in by crane. Water Management District staff will be on-site during the entire construction of the tree. That's a requirement of our permit. And it's one that we suggested, quite frankly, to make sure that no one would have any concerns. MR. HUGHES: So if I may now, if we go ahead and approve this project, you start with the north tower at a reduced speed, by the time you get to the site that's adjacent, that thing's probably gone anyway. MR. YOV ANOVICH: You know, if we did it every year, that means we don't miss a year because the market tells us not to miss a year, the soonest we're going to get there is three years. MR. HUGHES: Right. MR. YOV ANOVICH: The soonest. MR. HUGHES: So the odds are with us. I personally don't like artificial trees for these animals. I think it's a waste of time and a waste of money. DR. LYNNE: The clubhouse, though, is in the primary zone, and that's starting right away. MR. HUGHES: You are starting the clubhouse right away? MR. YOV ANOVICH: Yes, the clubhouse is allowed to start during the first non-nesting season. MR. GODLY: Non-nesting season. MR. HUGHES: But if we were to approve this with the contingent that that's not allowed and you start your high-rise first, does that mean anything to you? MR. YOV ANOVICH: We have some timing issues with the Condominium Act that we'd have to address. MR. HUGHES: And you have contract on this -- MR. YOV ANOVICH: We need to make sure that the condominium amenities are available before we have the first C.O. in the first building. Page 166 February 2, 2005 MR. GODLY: And the discussions we had with the Service and the Commission, this was brought up in terms of the timing and the need to have the amenities there. The Service agreed and thought it was most prudent in this case to do the site clearing and the disturbance in the non-nesting season. Obviously you do that. And then have the construction -- the initial construction of the clubhouse and of condominium number five, it would be started in the non-nesting season. The -- condominium number five has a construction schedule of approximately 18 months. This way, by the time that condo is complete, the clubhouse also would be complete. MR. HUGHES: And the clubhouse is approximately 500 feet from the closest edge? MR. GODLY: I would suspect so. This is 925. That's 431. So yeah, it's probably 500 feet. It's single story, by the way. MR. HUGHES: It is a single -- no pylons, no pipe driving, just floating it? Are you floating that building, single story? MR. YOV ANOVICH: The clubhouse you're talking about? MR. HUGHES: Yes. MR. YOV ANOVICH: Okay, the clubhouse is two stories. We anticipate the shell will take six months to build. Then we'll be inside. MR. HUGHES: What support structure under the shell? Are you going to put pylons in there? I'm getting at how much noise are we actually -- MR. YOV ANOVICH: Right. And Mr. Hughes, we haven't designed it yet, so I can't tell you. So I don't know. But again, we'll have to do all of that. If we're doing pilings, it will have to be during the non-nesting season. We'll start that, obviously, first. MR. HUGHES: Two-story building. So no doubt of being able to throw that up in that time period. That's an easy one. It's the high- rises that really take the time. And it is site preparation that's going to take the most significant part of time; is that correct? Setting up the pilings, the infrastructure that's underneath before it really goes out of Page 167 February 2, 2005 the ground. MR. GODLY: There's 15 stories on that one, there's 20 stories on the other ones. And the problem is you can't -- well, you could stop construction, but it's not practical, as was mentioned earlier. You only have four and a half months, and -- when there isn't a non-nesting season and you've got to build as you go up, so it's just not practical to stop. MR. YOV ANOVICH: And just so you know, the staging area is actually building number one. That's where we'll be staging when we do building five and building four, which is the most southern building. MR. HUGHES: And why is that? MR. GODLY: That was specifically done in order to minimize impacts on the birds. MR. HUGHES: All right. Because I'm looking at this area adjacent to building five, I believe it is. MS. HUSHON: That's a driving range. MR. HUGHES: That's a driving range? MR. GODLY: Yeah, that's part of the driving range there. MR. HUGHES: Are you using it? It's not being used, is it? MR. GODLY: It will be. MR. HUGHES: So you could stage there for that first building, couldn't you? MR. GODLY: If we didn't construct the driving range. And there's not a lot of sense to have a clubhouse if you don't have a golf course. MR. HUGHES: Right. But the point is, for staging the first building, get out of the ground, you're out of the way, the clubhouse is up during the non-nesting season. So you basically got your first foothold in there in non-nesting, overlapping with building five there into the nesting season. And then we're pretty clear, giving us another two years to even really be concerned, aren't we? Page 168 February 2, 2005 MR. GODLY: The Service was in agreement with us. The staging area down here at building number one, that's where all the workers are going to park and everything else. There are going to be 200 people involved in the project. It's going to be probably the busiest activity center on the entire site in the sense that that's where the materials are going to be shuttled from and everything else. And so the desire again was to minimize the effect on the birds, particularly early on. And so building number five and one are the farthest away. That's how you minimize the impact. MR. HUGHES: My opinion would be, and it's my opinion, open for discussion, that you use the area adj acent to building five as your initial staging area. If it's going to be a driving range, it's, let's say, a matter of weeks the way it's done here, to all of a sudden be a golf course, because we just lay the sod. And then after that's all completed, the clubhouse is up, the building five is up. Now you pull out of that staging area and you move down to your building one, you're right where you want to end up with. MR. GODLY: The golf course from beginning to end is about a 14-month process, sir, because you've got to grow in the grass, you've got to do the earth work. It's not as though you can just lay down the sod and be done with it. MR. HUGHES: My point is, though, during construction, you're not going to even use that course until this is built. MR. GODLY: At the time the first condominium is available to be used and the clubhouse is available to be used, the golf course will also be open. MR. HUGHES: Yeah, they coincide, don't they? Again, back to my point. By doing that, you're minimizing any potential bird arguments, because you're totally out of the primary zone, operating -- other than a clubhouse, the clubhouse being a two-story simple construction, that's going to go up in a flash. MR. GODLY: I can only tell you that this is a permit condition Page 169 February 2, 2005 that the Service felt was best on behalf of the birds, and the Corps of Engineers agreed. And in this particular case, I agreed, too. MR. HUGHES: Well, we can disagree with you. MR. GODLY: Always. MR. YOV ANOVICH: Can agree to disagree. MR. HUGHES: What do you guys think from the project point, what I just said? MR. YOV ANOVICH: Well, that's an issue for us. Obviously we have a permit issue and we have bringing the amenities on line when we're going to bring in the C.O. It's tough to just pick up and move the stage. MR. HUGHES: Is it? Parking lot, trailer, job trailer? MR. YOV ANOVICH: We're going to have to go back and amend our bald eagle management plan with the U.S. Fish & Wildlife and the Army Corps of Engineers. So it's not as simple as it would -- MR. HUGHES: But you've already written the plan based on the staging of building one. MR. YOV ANOVICH: Correct. That's the plan that they like, and that's the one that they enforced through their permit. Plus, you know, instead of moving it twice, we'll just have, you know, one staging area for a period of two buildings and the golf club as well as the golf course, the clubhouse plus the golf course. MR. HUGHES: Let's get into it this way, then: At building one, exactly where -- on that map, exactly where will your staging area be on that photograph? MR. YOV ANOVICH: Are you circling -- it's the pad for building one. Steve is circling -- MR. HUGHES: Right on the pad? MR. YOVANOVICH: Yeah. DR. LYNNE: Staff had comments they wanted to make? MS. ROYS: Laura Roys, Collier County environmental services. I want to just make a few clarifications from the presentation and Page 170 February 2, 2005 comments. First of all, the mitigation lands, they mentioned that they volunteered to do that for the Service. That's probably true, I don't doubt that, but it is required by the incidental take statement. There does not have to be an active nest on the site. That is all information included in your packet. And it does not have to be in Collier County. Just to clarify that. My stipulation in the staff report talking about amendment to the bald eagle management plan, we actually discussed that in a staff meeting with the applicant in December. That was a comment on my first sufficiency review, and they agreed at that time to make that amendment. And that is acknowledged in their meeting minutes supplied to us and in their resubmittalletter for the PUD amendment also. And that statement that was in the first PUD about amending -- the ability to amend the bald eagle management plan was actually meant to protect those eagles on-site once they moved to a new tree on-site, to continue protection and modifying what was and wasn't permitted in the bald eagle management plan. And then regarding the abandonment of the nest, you probably just think of the adults in that matter, but I'd just like to read from the February 27th letter from the U.S. Fish & Wildlife Service to the Army Corps of Engineers, essentially the incidental take statement. Under the section on amount or extent of take anticipated: Incidental take in the form of harm or harassment is anticipated for the adult bald eagles, their eggs or their young at nest CO-19. Harm or harassment may result in the eagles abandoning the nest prior to egg laying, abandoning the nest while eggs are in the nest, which would result in embryo mortality, or abandoning the nest when chicks are in the nest, which would result in chick mortality. And that's all I have about that. CHAIRMAN GAL: Was the Policy 7.1.2(3) as it's worded now, Page 171 February 2, 2005 was it the same in 2000? MS. ROYS: I think that was modified since then. I would have to defer to Barbara. MR. HUGHES: What are you guys reading? MS. BURGESON: I'm sorry, I'm waiting for the tapes to be in place before I spoke because I didn't know if it was going to be actually recording. They were just switching out the tapes. F or the record, Barbara Burgeson with environmental services. The question was, was 7.1.2 of the conservation coastal management element, as it's written now, how does that differ from what it was at the time the original PUD was approved? CHAIRMAN GAL: Yes. The reason I ask is because in 2000, according to the -- MS. BURGESON: I can give you just a quick history. I've been with the county for 15 years, and it wasn't until about two years ago when the GMPs were amended that that language was changed to say that we shall request and utilize the technical assistance from the agencIes. Prior to that time county staff requested -- the language stated that we shall request and may utilize. And so whenever we would get technical assistance from the agencies, we were obligated to request that technical assistance to provide us with the additional information that we would need that we didn't have expertise on staff. And the language then stated that we may utilize it. Because there were cases when we felt that for one, sometimes there were obligations or requests from the agencies' staff to, for instance, have underpasses on like public or state roads where we had no authority to require the applicant to take into the cost of doing some of the things that were requested. So we wanted to have that "may" language in there for those times when we felt it was inappropriate for those things to be required. So that's only been changed in the past couple of years. Page 172 -- February 2, 2005 CHAIRMAN GAL: The only reason I asked, because there was a quote from you at that EAC meeting that said: At this point, the plans for the residential buildings are identified where the eagles' nest is and where the primary and secondary zones are and they are not consistent and could not be considered consistent until such time as that eagle relocates. So I'm trying to just figure out in my own head -- MS. BURGESON: That would have been the staffs position at that time. And that would have been consistent with the GMPs at the time. CHAIRMAN GAL: So the GMP has changed -- MS. BURGESON: Yes. CHAIRMAN GAL: -- by the addition of that first sentence. MS. BURGESON: By the addition of changing one word, from "may" to "shall." And making that an obligation of staffs to consider changes in the agency technical assistance as consistent with our GMP. CHAIRMAN GAL: You're obligated to consider, not follow what they say, correct? MS. BURGESON: I'm sorry? CHAIRMAN GAL: You're obligated to consider what Fish & Wildlife Service recommends, not -- MS. BURGESON: It used to be that we were obligated to request and we could use it. N ow we're obligated to request and we have to use it. CHAIRMAN GAL: When you say "use", I mean, use as in take it and review it and consider it, or use it as whatever they say -- MS. BURGESON: The way that last sentence is written, whatever they say. For instance, if that technical assistance stated that that tree had to remain in place for the next 20 years and other things that the developer might not be comfortable with or might not want, that would be something that would be an obligation of that technical assistance, as the current GMP language is written. So it goes both Page 1 73 February 2, 2005 ways. MR. YOV ANOVICH: If I may? CHAIRMAN GAL: This -- the ordinance that is being stricken was made applying that 2000 GMP -- MS. BURGESON: Yes. DR. LYNNE: I'm sorry, I've got questions for the county staff. Could we bring her back before we hear the next thing? I just wanted to clarify, because I wasn't sure that I heard you. You said that mitigation is required with the take permit? MS. ROYS: Yes, it is. DR. LYNNE: Okay. But it's not required that it be in Collier County . MS. ROYS: That's correct. DR. LYNNE: And it's not required to have an active nest on it. MS. ROYS: No. DR. LYNNE: Okay, so -- MS. ROYS: And also, one more thing I forgot. The artificial nest tree is not a requirement, it's entirely voluntary. DR. LYNNE: That's voluntary. MR. YOV ANOVICH: But we have committed today to the artificial tree. So it's no longer voluntary. We've committed to that. We've committed to providing habitat, acquiring habitat. And I think the discussion that the chairman had with Ms. Burgeson is very important. The county deliberately changed the word may to shall. That's huge. May is discretionary, shall is mandatory. And that's what we need to focus on. Now, to Mr. Hughes's comment, now this is -- you know, we have to -- we have to go back to talk to U.S. Fish & Wildlife about your concept. But we can commit to building the driving range last and try to use that as long as we possibly can, subject to getting approval from U.S. Fish & Wildlife to do that. And that hopefully will coincide -- what is it, it's about 12 months or so until the shell for Page 174 February 2, 2005 the high-rise would be done, ballpark. Nine months to get the shell done. So that would be just a few months into, you know, the eagle nesting season for that to occur. But again, we'll try to push off, subject to U.S. Fish & Wildlife approval, moving from there. MR. HUGHES: I think if we do that, we're trying to make a compromise. There's no doubt, you have the rights to build on your property once the environmental issue is done. The environmental issue is a time situation. Science, with these animals, I just -- leave them alone, I think they're better off. If you were to make this change, we're halfway and you're halfway, you know. Because you can see it's hot politics, you see that as well, so -- MR. YOV ANOVICH: And we'll go talk to U.S. Fish & Wildlife about making that change. MR. HUGHES: All right. I make a motion -- all right, go ahead. Shoot. DR. LYNNE: Can you -- aren't we allowed to terminate public comment and discuss this without -- MR. YOV ANOVICH: I can't hear a word she said. CHAIRMAN GAL: She asked whether we can terminate the discussion, basically, that we're having with you and then just have discussion amongst ourselves, is what I understand. MR. YOV ANOVICH: You're the council. You can decide you don't want to talk to us anymore. CHAIRMAN GAL: I mean, as long as people have questions from the petitioner, I'm going to allow you to ask the questions. If at some point if everyone is done asking their questions, we will terminate the questions and we'll start taking motions. MR. HUGHES: We can talk. Shoot. CHAIRMAN GAL: I'm sorry, are there any more questions for the petitioner? Page 175 ~. ....^~ ~_._.- February 2, 2005 Okay, that's -- MS. STUDENT: Mr. Chairman, are you closing the public hearing then? CHAIRMAN GAL: I'm closing the public hearing. DR. LYNNE: The public processes need to be clear and transparent. And when people come to meetings in good faith and express their opinions and when commitments are made on the record, that needs to be taken very seriously. Without that, we don't have any kind of faith in our government. I don't think anybody thought they had to ask Mr. Corace directly, because there were already so many statements on the record specifically stating that the tree wasn't going to come down or the bald eagles weren't -- construction wasn't going to start until the bald eagle left. Whether or not that actually fits into the PUD or whether or not Mr. Corace actually got up and made that promise, that was the perception by people on the board, people in the public. And it's important to maintain that trust. I just -- I just find it very difficult to listen to this when public trust is being disputed -- or public trust is being eroded. If the eagle is allowed to leave by -- the eagles are allowed to leave on their own accord, we're not going to lose a nesting season, we're not going to lose eggs, we're not going to lose chicks. It's more humane, it's more civilized. Everybody says the nest is coming down soon, then it will come down soon and we don't have this problem, we don't need to. If the nest is really going to come down soon, we don't need to start this right away. I don't see the point in accelerating the construction on this project after what were previously extended hearings and commitments on the part -- and agreements on the part of everybody. And I understand you don't agree with me, but I think -- I've Page 176 --> February 2, 2005 participated in a lot of public hearings as a member of the public and on the council, and I believe that it's important that people say things in good faith and stick to what they said. MR. SORRELL: I have a question for staff. Were the minutes ever found for that September, 2000? MS. MASON: The Chair has it. CHAIRMAN GAL: Yes. MR. SORRELL: My question, have you scanned them? CHAIRMAN GAL: Yes. MR. SORRELL: Was it stated that construction wouldn't start until the tree came down? CHAIRMAN GAL: This is my perception. His name is highlighted, what he says there. Maybe you want to read it out loud so everybody can hear. But I would agree-- MR. SORRELL: Let me scan it a little bit. CHAIRMAN GAL: -- that there are several statements made that there would be no construction in the primary and secondary zones until the eagle left. So there would be no reason to ask the question. Mr. Corace did say that they were on a patient time frame, they did not expect development within the next four, five years. But it -- you know, I don't -- that doesn't add to the statements that were already made previously. That doesn't change them. I mean, they're explicit statements that say there would be no construction in the primary and secondary zones until the eagle left. So the question I have in my mind is you always have the ability to make an agreement and go back and amend it and to ask for change. The issue I'm still mulling over in my head is what standard do you apply. If you're trying to amend something that was done in 2000 under a different sets of standards, what standards do you apply? And am I supposed to apply the 2000 GMP policy, the-- MS. STUDENT: Mr. Chairman, you would apply what exists now to the amendment that you have in front of you now. Just the Page 1 77 February 2, 2005 language that you have in front of you. Because-- CHAIRMAN GAL: You're saying that the amendment does not have to -- the amendment -- the 2000 GMP and the 2000 Fish & Wildlife Service policies have no bearing whatsoever now? MS. STUDENT: I'm talking about on the language you have in front of you, the change, the underlined language. That has to be consistent, that part -- that change has to be consistent with the compo plan. So you apply the existing compo plan, the relevant policies to the changed language that you have in front of you. Not the whole PUD, the changed language that you have in front of you now. CHAIRMAN GAL: Even if the changed language, though, was consistent with the Growth Management Plan as it is today, does that mean we're required to vote to approve it? MS. STUDENT: Well, the general rule on that is that under Schneider versus Board of County Commissioners of Brevard County is that if an applicant shows that they're consistent with the compo plan, then the burden shifts to the government to show that it isn't or there's a rational relation, you know, to the public health and safety and welfare as to why it shouldn't be done. But you make recommendations to the planning commission and the board and those recommendations ultimately, you know, go to the Board of County Commissioners. CHAIRMAN GAL: You know, another issue is just we're not here just to be a rubber stamp on what the staff says. We have some policy issues to deal with. MS. STUDENT: Well, a development order is quasi-judicial in nature. And so, you know, you look at that based upon what the guidelines or the standards are for the approval of an amendment, as well as limited by your duties and responsibilities set forth in the land development code. DR. LYNNE: But our purpose is to make environmental recommendations. Page 178 ...-'- February 2, 2005 MS. STUDENT: Yeah, that's correct. That's part of the duties and responsibilities that I alluded to referenced in the land development code. MS. HUSH ON: I have real problems taking our morning's discussion and reflecting it back on this discussion here. I think we have to do a little of that because we obviously have to keep things parallel. We can't say A in the morning and B in the afternoon. And well, the morning we made them stay outside, put monitors on, et cetera. It was a very different discussion. And it was a much less close discussion, actually. Much further away. MR. YOV ANOVICH: Can I address that? CHAIRMAN GAL: Yeah, go ahead. MR. YOV ANOVICH: Keeping in mind that this morning nothing involved the primary zone. We were 100 percent outside of the primary zone. MS. HUSHON: I understand. MR. YOV ANOVICH: So that discussion is relating to a specific project that didn't have the same issues you have today at this one. This one, totally different, the same compo plan amendment language applies, but you're talking about different facts. MS. HUSH ON: Well, but we're talking about the same opinion coming out of the Fish & Wildlife Service, so -- you know, if we can't stay outside the primary zone on that one and very heavily protect it with noise concerns, et cetera -- we haven't even discussed noise concerns today, for example, this afternoon. So I mean, they're not -- they're pretty different animals. We're -- but my concern is that we have to keep what we allow to happen in a certain way to happen in parallel. We can't say the north people have to have one set of rules and the south people another set. I think that's very bad on our part. MR. HUMISTON: I think there's another thing that sets us apart from this morning's discussion, too, and that is the fact that mitigation Page 1 79 February 2, 2005 is being offered here. I mean, this is definitely a difficult decision, but the thing that kind of stands out to me was Brad Cornell's comment that what's important to the Audubon Society is looking at the bigger issue and the long-term preservation of habitat for preservation of the specIes. My only concern there is that there's very little definition of what the mitigation area is going to look like or what the size of it will be. It could be maybe a one-acre lot with a nest on it or maybe it could be the size of a primary zone, which would probably be 30 acres or something like that. Do you have any conceptual ideal of what size parcel you'd be looking at? MR. GODLY: Let me pull up the condition, sir. Make it easier. CHAIRMAN GAL: While you're looking at it, I think even a larger issue, though, is besides this eagle and the mitigation plan for this eagle is the process where these petitions are approved and improprieties -- I'm not saying there were any -- and appearances. And that's, I think even more important than this one petition. MR. GODLY: To answer your question, sir, the first statement that says: The applicant has agreed to purchase and preserve an off-site bald eagle territory prior to the initiation of construction activities on the project. I've always interpreted the territory to mean that it would likely be the 1,500 feet. It would be normally what we would do there. That's not to say it would be exactly 1,500 feet. It may depend upon the location of the pair, if it was a road. If it had water on one side, it wouldn't matter. But it's going to be on the order -- I can't say this, because it depends on just what the territory's ultimately selected. But the Service has to agree to the ultimate purchase. That's a requirement of this. MR. HUMISTON: Have you been involved in other situations where this kind of mitigation has been done? Page 180 February 2, 2005 MR. GODLY: No permittee in the State of Florida to my knowledge has ever agreed or been required to purchase a territory as a result of any activity they've constructed in order to obtain these permits. This again is not a -- it's not a requirement under the Endangered Species Act or under state law. It was a voluntary action on this applicant's part because he felt it was the right thing to do. So the answer is no, because no one's ever agreed to go to the steps that he has. MR. HUMISTON: But conceptually, you're thinking it would be a parcel somewhere in the neighborhood of the 1,500- foot radius? MR. GODLY: Yeah, depending on what -- and again, you've got to have a willing buyer, willing seller. MR. HUMISTON: Probably over what, 100 some acres, 120 acres? MR. GODLY: Yeah, it would be on that order. We just don't know which territory it's going to be. It could be that you'd get an owner that says no, I want you to buy 300 acres. If you want it and it's -- I don't know yet. But that's why we couldn't specifically state any more than is already in here. All we could do is use what appeared to be logical, rational, biological justification and reasoning. It would be -- it would be either conservation easement or it would be fee simple. The applicant shall use best efforts to locate a -- and secure territory in Collier County. That's our first priority, it would be in Collier County. Selection criteria are as follows: Preference shall be given to selection of a parcel that presently supports active nesting. That's the number one priority, et cetera. And those are the guidelines that we are looking at. We're not looking at purchasing land with no territory right now, I can tell you that. All the effort is -- that we're focusing on is purchasing a territory that will be secure in perpetuity in Collier County. And it will be Page 181 February 2, 2005 large enough, as I said, it will have a nest, that's the number one priority. And as a biologist, I want enough alternate nest trees, if it gets hit by lightning, there will be other trees suitable. I've already told you, most eagles, if they have to go to an alternate nest, it's within view of the old nest. That's part of the reason why the 1,500 feet came about to begin with. And it is an outstanding effort on their part, I would agree with you there. DR. LYNNE: I'm confused. Staff told us mitigation was required. You're telling me it's not. MR. GODLY: I'll explain that, okay? You will find in the Corps permit actually two biological opinions. There's one dated the 27th of February, '04, and there's one dated the 14th of July of '04. The initial biological opinion did not require the purchase of a -- as a condition of the B.O., it was rather a description of the -- it was in the project description, it was in the beginning. We went back to Fish & Wildlife and to the Corps and said we've got to go to the county, we've got to amend the B.O., the biological opinion and the bald eagle management plan. We're going to have to come before you and before the B.O.C.C. We prefer it be a condition of the actual biological opinion. That's why they modified it on the 14th of July. DR. LYNNE: But right now it's required. MR. GODLY: It is required as of right now, that's correct. MR. HUGHES: I'd like to state again, as you were alluding to here, we have to be consistent. The other thing is I don't think that you gentlemen have been dishonorable or misrepresented your position. I think you've stated it quite clearly in the record, have done exactly what you said. I don't see that argument. However, as a concern -- and then the concern about the public's opinion about procedures and clear and transparent government, as Alfred had pointed out as well, anybody in any court of law, you Page 182 ._'- .._-~^- February 2, 2005 know, if there's due cause of recourse, you have the right to reopen an issue and talk about it at any time. I mean, I would hope so. We're a free and open society. Things change over time as well. So we -- as some of our laws that are still on the books for 100 years, you know, shouldn't even be there and tie up legalese time. I think they shouldn't even be on the books. In this case, I'm willing to go with you guys under the pretense that building five and the clubhouse are built; your staging area is out of the primary zone; your clubhouse is built in your non-nesting period, and that's done in that non-nesting period because of its proximity; you don't utilize the roads that are drawn on this map here until after the bird is gone. In other words, we're going to try and -- I would try to buy you another year and a half to two years before this . . IS an Issue anyway. So if you stay out of that primary zone, I'm with you. I don't think you frauded (sic) or defaulted any of the citizens of this county. I think you have the right to bring it up. DR. LYNNE: I think the problem is that if they had brought this up as it is in the year 2000, it wouldn't have gotten approved. That's the issue. The issue is if they had just come and said hey, we're just going to get rid of all the -- the eagle and we're going to start development now, it wouldn't have been approved. So it is -- in retrospect there's a problem with it. MR. HUGHES: All right. Now, the other -- in addressing that point, the information we received today from an expert, a technical expert, is that the eagle is not as endangered as people perceive it to be. So then the information that we have in 2005 is different than the information that we had in 2000. So that may be some of this deviation. DR. LYNNE: Yeah, there's a lot of neighborhood interest in this particular eagle. They've been involved -- people have been involved with these eagles for over a decade. There's a lot of public interest. Page 183 February 2, 2005 People that are in the area see the eagles. And so there was a lot of special interest. We aren't necessarily talking about the survival of the species in the United States, we're talking about Collier County and whether or not we're going to value our particular eagles here. MR. YOV ANOVICH: Mr. Hughes, can I ask for a clarification of what you said as far as the -- are you talking about during the first MR. HUGHES: I would be supportive of approving your requested change -- MR. YOV ANOVICH: Okay. MR. HUGHES: -- under the following conditions: Your staging area is adjacent to building five out of the primary zone. Number two, the clubhouse is constructed in non-nesting periods and would be completed in the non-nesting periods. Your highway to access your staging area in the construction of building number five would not be under the highway lines that are drawn on this plot that we have in front of us, it would come directly across your golf driving range. Do your construction, when you're done with that and you move to building one, then that's a new issue, because the eagle hopefully will be moved at that point. MR. YOV ANOVICH: So you're saying in the same sequence, but you're saying move the staging area to basically the driving range. MR. HUGHES: Out of the primary zone. MR. YOV ANOVICH: And start and complete the shell of the clubhouse during the non-nesting season? MR. HUGHES: Exactly. In order to minimize noise and disturbance to the bird. Which I think you can do. And yes, I agree, we already -- MS. HUSH ON: Same language we put in with the last one. MR. HUGHES: Yeah, with the monitoring of the bird. In other words, I'm trying to draw a compromise between the two Page 184 -'~- . ",..---'-'. February 2, 2005 ends' position. And on that one it seems to make sense. MS. STUDENT: Clarification. Is that a motion or -- MR. HUGHES: Well, we're just discussing at this point. MR. YOV ANOVICH: Can we explain to you the monitoring we already have to do? It may already address your comment about monitoring. MR. HUGHES: Well, if it's what was discussed earlier, I don't want to hear that again. The point is the tree with cameras, no. And bless his expertise, but there is more to chemistry and physics than just that it's made out of acrylate and steel. There are effects, especially only on the gestation periods of electron forces. Just an alignment of electrons on a nucleus, all right, it can be a subtle as that, make a significant change. So I mean, there's a lot heavier bit of information. MR. YOV ANOVICH: And I'm assuming this is the caveat that we discussed earlier about we would use our best efforts to convince the U.S. Fish & Wildlife to allow us to do that. MR. HUGHES: Yes. MR. GODLY: This is what we think is reasonable, and we're hoping you would agree. We'll do our best efforts to amend or get the agencies to agree that we could do the staging adjacent to building number one. What we -- obviously what we don't want to do is to amend the -- agree to this, have this go through and then have to amend the bald eagle management plan and go back through the entire process again just because we agreed to something that you wanted. That would be MR. HUGHES: I think you're facing in a situation like this a turndown because of the perceptions. I think the Fish & Wildlife will work with you. It's obvious to me under their own guidelines is that's where it should have been in the first place. MR. SORRELL: Yes. Page 185 <..~---- February 2, 2005 MR. HUGHES: All right? MR. YOV ANOVICH: And keeping in mind that this is in the spirit of compromise. If we don't get a successful vote, then we don't agree to those stipulations, obviously. MR. HUGHES: Open for discussion. MR. SORRELL: I would just like to make a statement while we're talking amongst ourselves here. I think if we knew in 2000, or the people that were on the board that approved this project, we wouldn't be in this situation today. I'm not saying that I disagree with their right to develop the property, but we're in a tough situation. Our vote this morning was a tough vote. This is a tough vote, too. I think it would have been a little different if we knew in 2000 what we know now. CHAIRMAN GAL: Start the ball rolling. I move to deny the petition. Is there a second? DR. LYNNE: I second. CHAIRMAN GAL: All those in favor? And we'll do a roll. MR. KRAUT: To deny the petition? CHAIRMAN GAL: Yes. MR. KRAUT: Yea. I approve it -- I agree. MR. HORN: Yea, I agree to deny. DR. LYNNE: Yea. CHAIRMAN GAL: Yes. MR. HUGHES: No. MS. HUSH ON: Yes. MR. SORRELL: No. We're back to 5 and 2 again. CHAIRMAN GAL: Five-two, magic number. MR. HUGHES: Thanks for your time. CHAIRMAN GAL: Let's -- under new business, outstanding advisory committee member nominations, is that something important that we have to do? Page 186 February 2, 2005 MS. MASON: We just keep that on every month. If anybody has a nomination, we can address it at that point. But if no one has a nomination, then we just move on. MR. SORRELL: Speaking ofthat, why is it only somebody that's active on the board now? MS. MASON: That wasn't our decision, that was the direction we were given by staff -- by other staff, saying that -- I believe that's the commissioners wanted it to be active members. MR. SORRELL: Is there anything in place that we could praise somebody for their past efforts? MS. MASON: Not that I know of. But I can try to get back with you next month if there's something we could do about previous members and honoring their service. MR. SORRELL: Okay, thanks. CHAIRMAN GAL: If there's no more comments from the board, we're adjourned. ***** There being no further business for the good of the County, the meeting was adjourned by order of the Chair at 5:28 p.m. COLLIER COUNTY ENVIRONMENTAL ADVISORY COMMITTEE ALFRED F. GAL, JR., Chairman Page 187 _..",,~- ..--.- --..'- ..' "---'~"-"'-'" '._- ..-.--