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CCPC Minutes 03/17/2005 R March 17, 2005 TRANSCRIPT OF THE MEETING OF THE COLLIER COUNTY PLANNING COMMISSION Naples, Florida, March 17, 2005 LET IT BE REMEMBERED, that the Collier County Planning Commission in and for the County of Collier, having conducted business herein, met on this date at 8:30 a.m. in REGULAR SESSION in Building "F" of the Government Complex, East Naples, Florida, with the following members present: CHAIRMAN: Russell Budd Kenneth Abernathy Lindy Adelstein Donna Reed Caron Paul Midney Robert Murray (Absent) Brad Schiffer Mark Strain Robert Vigliotti ALSO PRESENT: Ray Bellows, Zoning & Land Dev. Review Joseph Schmitt, Community Dev. & Env. Services Marjorie Student, Assistant County Attorney Mike Bosi, Zoning & Land Dev. Review Page 1 .- AGENDA COLLIER COUNTY PLANNING COMMISSION WILL MEET AT 8:30 A.M., THURSDAY, MARCH 17,2005, IN THE BOARD OF COUNTY COMMISSIONERS MEETING ROOM, ADMINISTRATION BUILDING, COUNTY GOVERNMENT CENTER, 3301 TAMIAMI TRAIL EAST, NAPLES, FLORIDA: NOTE: INDIVIDUAL SPEAKERS WILL BE LIMITED TO 5 MINUTES ON ANY ITEM. INDIVIDUALS SELECTED TO SPEAK ON BEHALF OF AN ORGANIZATION OR GROUP ARE ENCOURAGED AND MAYBE ALLOTTED 10 MINUTES TO SPEAK ON AN ITEM IF SO RECOGNIZED BY THE CHAIRMAN. PERSONS WISHING TO HAVE WRITTEN OR GRAPHIC MATERIALS INCLUDED IN THE CCPC AGENDA PACKETS MUST SUBMIT SAID MATERIAL A MINIMUM OF 10 DAYS PRIOR TO THE RESPECTIVE PUBLIC HEARING. IN ANY CASE, WRITTEN MATERIALS INTENDED TO BE CONSIDERED BY THE CCPC SHALL BE SUBMITTED TO THE APPROPRIATE COUNTY STAFF A MINIMUM OF SEVEN DAYS PRIOR TO THE PUBLIC HEARING. ALL MATERIAL USED IN PRESENTATIONS BEFORE THE CCPC WILL BECOME A PERMANENT PART OF THE RECORD AND WILL BE A V AILABLE FOR PRESENT A TION TO THE BOARD OF COUNTY COMMISSIONERS IF APPLICABLE. ANY PERSON WHO DECIDES TO APPEAL A DECISION OF THE CCPC WILL NEED A RECORD OF THE PROCEEDINGS PERTAINING THERETO, AND THEREFORE MAY NEED TO ENSURE THAT A VERBATIM RECORD OF THE PROCEEDINGS IS MADE, WHICH RECORD INCLUDES THE TESTIMONY AND EVIDENCE UPON WHICH THE APPEAL IS TO BE BASED. NOTE: The public should be advised that a member of the Collier County Planning Commission (Bob Murray) is also a member of the Community Character/Smart Growth Advisory Committee. In this regard, matters coming before the Collier County Planning Commission may come before the Community Character/Smart Growth Advisory Committee from time to time. 1. PLEDGE OF ALLEGIANCE 2. ROLL CALL BY CLERK 3. ADDENDA TO THE AGENDA 4. PLANNING COMMISSION ABSENCES 5. APPROVAL OF MINUTES - Not Available At This Time 6. BCC REPORT- RECAPS - FEBRUARY 22,2005, REGULAR MEETING 7. CHAIRMAN'S REPORT 8. ADVERTISED PUBLIC HEARINGS A. Petition: PUDA-2004-AR-6786. Vanderbilt Partners II, LLC, represented by Richard Yovanovich, of Good1ette, Coleman & Johnson, P.A., requesting to amend the Cocohatchee Bay PUD document for the limited purpose of amending the Bald Eagle Management Plan and related references in the PUD document. The subject property, consisting of 532 acres, is located in Sections 8, 16, 17 & 20, Township 48 South, Range 25 East, Collier County, Florida. (Coordinator: Mike Bosi) 1 B. Petition: CU-2004-AR-6090, Collier County Public Utilities Engineering Department represented by Brian Nelson, ASLA, of Agnoli, Barber and Brundage, Inc., requesting a conditional use pursuant to Section 2.01.13.G.1 of the Land Development Code for "Essential Services", more particularly identified as a master pump station in the "E" Estates Zoning district. The property is located south of Immokalee Road, less than Yz mile west of Wilson Boulevard on Tract 84, Unit 20, Golden Gate Estates, in Section 28, Township 48 South, Range 27 East, consisting of 1.65 acres. (Coordinator: Mike DeRuntz) C. Petition: CU-2004-AR-63 00, Bethel Assembly of God, Inc. represented by Frank Veasley, of Frank L. Veasley, II & Associates requesting Conditional Use in the RMF-6 Zoning District pursuant to Table 2 of Section 2.04.03 of the Collier County Land Development Code, to allow for the expansion of an existing church by adding a gymnasium. The property, consisting of 4.79 acres, is located at 1225 W. Main Street, Section 4, Township 47 South, Range 29 East, Immokalee, Florida. (Coordinator: Robin Meyer) CONTINUED FROM 2/17/05 D. Petition: CU-2004-AR-6671, Boca Bargoons of Naples, Inc., represented by Kelly Smith, of Davidson Engineering, Inc., requesting a Conditional Use for permitted personal services, video rental or retail uses with more than 5,000 square feet of gross floor area in the principal structures in the C-3, Commercial Intermediate Zoning District, pursuant to Table 2 of Section 2.04.03 of the Collier County Land Development Code (Ordinance No. 2004-41). The subject property, consisting of 2.53 acres, is located at 4403 Tamiami Trail East, in Section 13, Township 50 South, Range 25 East, Collier County, Florida. (Coordinator: Heidi Williams ) E. Petition: PUDZ-2003-AR-4493, Blue Bell-Meridian Partners, represented by D. Wayne Arnold, AICP, of Q. Grady Minor & Associates, and Richard D. Yovanovich, Esq., of Goodlette, Coleman & Johnson, are requesting a rezone from "RMF-6" to "RPUD" Residential Planned Unit Development to be known as the Santa Barbara Landings PUD to allow mixed residential dwelling unit types. At the time of the rezoning application, 248 multiple-family dwellings exist on the site. The subject rezoning will add a maximum of 43 additional dwelling units for a maximum total of 291 dwelling units with a project density of approximately 7.0 units per acre. The subject property, consisting of 41.6 acres, is located on Santa Clara Drive at the intersection of Santa Barbara Boulevard and Radio Road, in Section 4, Township 50 South, Range 26 East, Collier County, Florida. (Coordinator: Mike DeRuntz) CONTINUED FROM 3/3/05 9. OLD BUSINESS 10. NEW BUSINESS 11. PUBLIC COMMENT ITEM 12. DISCUSSION OF ADDENDA 13. ADJOURN 3/17/05 eepe AgendaJRB/sp 2 March 17, 2005 CHAIRMAN BUDD: Okay, we'll call this meeting of the Planning Commission to order. Please rise with me for the pledge of allegiance. (Pledge of Allegiance was recited in unison.) CHAIRMAN BUDD: Begin with our roll call. Ms. Caron? COMMISSIONER CARON: Present. CHAIRMAN BUDD: Mr. Vigliotti? COMMISSIONER VIGLIOTTI: Here. CHAIRMAN BUDD: Mr. Abernathy? COMMISSIONER ABERNATHY: Here. CHAIRMAN BUDD: Mr. Strain? COMMISSIONER STRAIN: Here. CHAIRMAN BUDD: Budd is here. Mr. Adelstein? COMMISSIONER ADELSTEIN: Here. CHAIRMAN BUDD: Mr. Midney? COMMISSIONER MIDNEY: Here. CHAIRMAN BUDD: Mr. Schiffer? COMMISSIONER SCHIFFER: Here. CHAIRMAN BUDD: And Mr. Murray is absent. Any addenda to the agenda today? COMMISSIONER STRAIN: Mr. Chairman, I would just like to add a quick comment on the AUIR responses at the end of the meeting today. MR. BELLOWS: I also have a change. I've been informed that Item 8(B) has to be continued because of advertising problems. COMMISSIONER ABERNATHY: B as in Bravo? MR. BELLOWS: Yes. COMMISSIONER ABERNATHY: Mr. Chairman, I want to resolve the invocation question this afternoon, if we might. CHAIRMAN BUDD: Okay, we'll add that on. Any other changes to the agenda? Page 2 March 17, 2005 (No response.) CHAIRMAN BUDD: Motion to modify the agenda? COMMISSIONER ABERNATHY: So moved. COMMISSIONER ADELSTEIN: So moved. CHAIRMAN BUDD: All those in favor, signify by saying aye. COMMISSIONER ADELSTEIN: Aye. COMMISSIONER CARON: Aye. COMMISSIONER ABERNATHY: Aye. COMMISSIONER MIDNEY: Aye. COMMISSIONER STRAIN: Aye. COMMISSIONER VIGLIOTTI: Aye. CHAIRMAN BUDD: Aye. That was a motion by Mr. Abernathy, second by Mr. Adelstein. Any Planning Commission absences? (No response.) COMMISSIONER STRAIN: Past or present or future? CHAIRMAN BUDD: Future. There appear to be done. Approval of minutes. We don't have any minutes. Board of County Commission update. Ray, do you have any information for us? MR. BELLOWS: Yes. At the last board meeting, they heard the variance for the Gutierrez property out in the Estates, and that was approved 4-0. That was the only petition that they heard. CHAIRMAN BUDD: Okay, thank you. We do not have a chairman's report; we'll move into our advertised public hearings. COMMISSIONER ABERNATHY: Let me ask, Mr. Chairman. CHAIRMAN BUDD: Yes, sir. COMMISSIONER ABERNATHY: Back on the 27th of February, Jeff Davidson's Southern Development Company rezone was withdrawn. What was that issue all about; do you remember? It Page 3 March 17, 2005 was a motion to deny, withdrawn by motion maker, motion to reopen. MR. SCHMITT: Oh, at the Board of County Commissioners -- COMMISSIONER ABERNATHY: Yes. MR. SCHMITT: For the record, Joe Schmitt, administrator, Community Development, Environmental Services Administrator. That was withdrawn during the public meeting when it became somewhat obvious to the petitioner that it was about to be denied by the Board of County Commissioners, and the petitioner chose to withdraw the petition at that time in order to review and assess the situation, bring it back at a later date, rather than have it denied -- COMMISSIONER ABERNATHY: What was the situation? What's the fact situation? I can't recognize the name of it here. MR. SCHMITT: That was the development on U. S. 41, just east of951, Marco-- COMMISSIONER ABERNATHY: Oh, the little fellow from-- MR. SCHMITT: -- Building Supply -- COMMISSIONER ABERNATHY: The little guy from Marco, yes, yes. Okay. MR. SCHMITT: That's the facility. COMMISSIONER ABERNATHY: Can't fault his enthusiasm. CHAIRMAN BUDD: Okay, any other questions? COMMISSIONER ABERNATHY: No, sir. Sorry. MR. BELLOWS: Mr. Chairman? CHAIRMAN BUDD: Sir. MR. BELLOWS: The petitioner has requested that due to traffic delay, their expert witness is going to be late. If they could move the first item second and have Item C go first? CHAIRMAN BUDD: Well, since I was late myself, I'm in a very poor position to deny that. Let's go ahead, and do we have a motion to modify the agenda and hear Item A? COMMISSIONER ADELSTEIN: Aye. Page 4 March 17, 2005 CHAIRMAN BUDD: Motion by Mr. Adelstein. Second? COMMISSIONER VIGLIOTTI: I'll second. CHAIRMAN BUDD: Excuse me, Mr. Abernathy, did you have a second? I'm sorry. COMMISSIONER ABERNATHY: I didn't. COMMISSIONER CARON: I'll second it. CHAIRMAN BUDD: Ms. Caron has a second. All those in favor of modifying the agenda, signify by saying aye. COMMISSIONER ADELSTEIN: Aye. CHAIRMAN BUDD: Aye. COMMISSIONER ABERNATHY: Aye. COMMISSIONER CARON: Aye. COMMISSIONER SCHIFFER: Aye. COMMISSIONER MIDNEY: Aye. COMMISSIONER STRAIN: Aye. COMMISSIONER VIGLIOTTI: Aye. CHAIRMAN BUDD: Those opposed? (No response.) CHAIRMAN BUDD: We will then not start with agenda Item A. B has been continued. We will move to Item C. That is Petition CU-2004-AR-6300, Bethel Assembly of God. All those wishing to present testimony on this item, please stand, raise your right hand to be sworn in. (Speakers were duly sworn.) CHAIRMAN BUDD: Are there any disclosures on this item by Planning Commissioners? (No response.) CHAIRMAN BUDD: There are not. COMMISSIONER ABERNATHY: Do we have any planner? Page 5 March 17, 2005 CHAIRMAN BUDD: Do we have the planner on this one, Ray? MR. BELLOWS: I don't see him just yet. COMMISSIONER ABERNATHY: Somebody -- really traffic, huh? Somebody's got to represent the county. MR. BELLOWS: I can represent. CHAIRMAN BUDD: You can handle that, Ray? That will be find. Very good. COMMISSIONER ABERNATHY: He needs to be sworn then. CHAIRMAN BUDD: Okay, we'll try again. (Speaker was duly sworn.) CHAIRMAN BUDD: Thank you, sir. If we could hear from petitioner, please. MR. VEASLEY: Good morning. My name is Frank Veasley-- CHAIRMAN BUDD: Sir, if you would move over closer to the microphone. Thank you. MR. VEASLEY: Good morning. My name is Frank Veasley, Frank Veasley and Associates. We have a 4.79-acre site in Immokalee, the Bethel Assembly of God Church, and they're requesting a conditional use for a secondary building on the site for a 8,700 square foot gymnasium. We've submitted all of our plans and documents and we are not requesting any variances. We do agree with the stipulations requirements from staff. CHAIRMAN BUDD: Okay, any questions for the petitioner? COMMISSIONER STRAIN: Didn't we already hear this and didn't we already recommend approval 8-0 -- COMMISSIONER ABERNATHY: Yes. COMMISSIONER STRAIN: -- and your reason for coming back here today is strictly an advertising matter? MR. VEASLEY: Yes, sir. COMMISSIONER STRAIN: Thank you. CHAIRMAN BUDD: No further questions? Page 6 March 17,2005 Staff presentation, please? MR. BELLOWS: Well, since this is a rehearing, I don't have anything new to add, other than it's consistent with the comprehensive plan, and I'd be happy to answer any questions. CHAIRMAN BUDD: Questions for staff? (No response.) CHAIRMAN BUDD: There are none. Any registered speakers on this item? MR. BELLOWS: No registered speakers. CHAIRMAN BUDD: There are none. We'll close the public hearing. Do we have a motion? COMMISSIONER MIDNEY: I would like to move that we forward CU-2004-AR-6300 to the Board of County Commissioners with a recommendation of approval. COMMISSIONER ABERNATHY: Second. COMMISSIONER ADELSTEIN: Second it. CHAIRMAN BUDD: Motion by Mr. Midney, second by Mr. Abernathy. Was that correct, Mr. Abernathy, I heard your voice? COMMISSIONER ABERNATHY: That's right. CHAIRMAN BUDD: Motion and seconded. Any discussion? (No response.) CHAIRMAN BUDD: All those in favor, signify by saying aye. COMMISSIONER ADELSTEIN: Aye. CHAIRMAN BUDD: Aye. COMMISSIONER ABERNATHY: Aye. COMMISSIONER CARON: Aye. COMMISSIONER SCHIFFER: Aye. COMMISSIONER MIDNEY: Aye. COMMISSIONER STRAIN: Aye. COMMISSIONER VIGLIOTTI: Aye. Page 7 March 17, 2005 CHAIRMAN BUDD: Those opposed? (N 0 response.) CHAIRMAN BUDD: Motion carries 8-0. Thank you, sir. COMMISSIONER ABERNATHY: That didn't kill much time. CHAIRMAN BUDD: Is your witness here? MR. YOVANOVICH: Yes. CHAIRMAN BUDD: Very good. Then we're back on schedule. COMMISSIONER ABERNATHY: Pass the sheets. CHAIRMAN BUDD: Good reminder. We need to fill out our findings of fact, pass them down to Mr. Adelstein. COMMISSIONER ABERNATHY: Having said that, I can't find the damn thing. CHAIRMAN BUDD: It will take a minute while everybody's filling out their finding of facts. We're still missing one finding of fact. Did one of the Planning Commissioners not turn it in? There it is. Okay, we're set. Our paperwork's up to date. We'll move on to the next advertised item. That is Petition PUDA-2004-AR-6786, Vanderbilt Partners, requesting to amend the Cocohatchee Bay PUD. All those wishing to present testimony on this item, please stand, raise your right hand to be sworn in. (Speakers were duly sworn.) CHAIRMAN BUDD: Disclosures by Planning Commissioners. On my own part, I met with counsel for the petitioner, Mr. Y ovanovich, and his client, as well as Nicole Ryan of the Conservancy regarding this issue. And I had a phone message from Mr. Fee which we unfortunately didn't connect. Other disclosures? COMMISSIONER SCHIFFER: I do. I talked to Nicole Ryan, I got the Doug Fee message and fax from Mary Lou and Hal Eaton. Page 8 March 17, 2005 COMMISSIONER MIDNEY: I talked to Ms. Ryan. COMMISSIONER ADELSTEIN: I received e-mail. Nothing else. CHAIRMAN BUDD: Okay, thank you. Mr. Strain? COMMISSIONER STRAIN: Yes, I spoke with Ms. Ryan about various elements of the Land Development Code and the minutes of the various meetings, and I spoke with Mr. Y ovanovich about similar things. And there was a couple of e-mails that came in. I didn't know I'd be here today, so I didn't pay a lot of attention to them, other than to see that they were negative in regards to the voting here today, and I forwarded those on to my county website. CHAIRMAN BUDD: Okay. Mr. Abernathy? COMMISSIONER ABERNATHY: I've had a couple of e-mails, Dwight Richardson and some other folks from up that end of town, so -- but I've not spoken to anyone about it, I don't believe. COMMISSIONER VIGLIOTTI: I've spoken to Nicole Ryan, Doug Fee, and received some e-mails also. CHAIRMAN BUDD: Ms. Caron? COMMISSIONER CARON: I have spoken to Nicole Ryan of the Conservancy on 3-15. I've met with Doug Fee of North Bay Civic Association. My meeting with Mr. Y ovanovich was canceled. I've read the staff report. I have e-mails from Cam Gleason and Mary Lou and Hal Eaton. I have attended Estuary Conservation Association meetings, North Bay Civic Association meetings, and neighborhood information meetings where this project has been discussed. COMMISSIONER ABERNATHY: Since you were a commissioner, or before? COMMISSIONER CARON: Since I've been a commissioner. Also -- I've also received a letter from Margaret Cooper of Jones, Foster, Johnson and Stubbs, asking that I recuse myself in the Cocohatchee Bay PUD amendment matter. Page 9 March 17, 2005 I've consulted with the county attorney's office and have no financial stake in this project at all. It is my intention to listen to everything that's presented here, as I would on all issues, and base any judgments based on facts presented and recommendations will go forward based on the GMP and the LDC. CHAIRMAN BUDD: Thank you. I'm reminded by other disclosures. I did receive an e-mail from Mr. Richardson. How could I ever forget that? All right, that concludes all of our disclosures. If we could hear from the petitioner, please. MR. YOV ANOVICH: Good morning. For the record, Rich Y ovanovich, on behalf of the petitioner. Also with me today are two people: Steve Godley will address you regarding the environmental issues for this petition. And Jay Westendorf, the engineer on the proj ect, is here to answer any questions. I wanted to start off with first of all noting for the record that we don't believe we're supposed to be in front of the Planning Commission, based upon the provisions within the PUD document. The PUD document says that we were -- if there's a change of the eagle management plan, we're to go to the EAC and then ultimately to the Board of County Commissioners. We find ourselves in a process that we didn't agree to but nonetheless have no choice but to go through in order to have our petition considered. I also want to make sure it's clear on the record the purpose of today's hearing. The purpose of to day's hearing is to consider an amendment to a Bald Eagle Management Plan. It is not to reconsider the zoning decision that was already made by the Board of County Commissioners at the end of 1999. I'm sure that you will hear a lot of testimony from people regarding previous hearings regarding the zoning decisions. The Page 10 March 17, 2005 zoning decisions have been made, the PUD documents says what the PUD document says, and the Board of County Commissioners voted to limit this process to an amendment to the Bald Eagle Management Plan. So the purpose of the hearing process we're going through before the EAC and now you all and ultimately the Board of County Commissioners is to determine whether or not our proposed amendment to the Bald Eagle Management Plan is consistent with the county's comprehensive plan. And that's the limited purpose for what we're here -- why we're here today. I will briefly -- because I guess I have to go through what's zoned on the property today and then we'll get into the teeth of the issue, which is the Bald Eagle s management plan, and that's where you'll hear from Mr. Godley in great detail. The original zoning on the property prior to the PUD zoning allowed 1,758 units on 532 acres. The current zoning allows 590 units, which was a reduction of 1,168 units from the previously approved zoning prior to the PUD. That's a density of 1.1 unit per acre. The project allows five high-rise condominiums, one of which is 15 stories over parking, and that's on the northern portion of the property. And if you look on your visualizer, you will see in yellow that's the PUD boundaries, and you'll see the five high-rise towers. The pink -- I think that's pink -- color is land that's not within the PUD boundaries but is subject to a conservation easement and is mitigation for the proposed PUD. We have an 18-hole golf course that's on the east side of Vanderbilt Drive. We have a clubhouse and amenities, which you can see on the visualizer. We have already made dedication of local rights-of-way at no cost to the county. The Bald Eagle Management Plan was an exhibit to the PUD document, but interestingly enough, it was never referenced in the Page 11 March 17, 2005 PUD document. It's just simply attached. We have spent $5 million to date on getting permits. If I can get you to the -- that's a slide of the property that lists all the permits. As you can see, we have permitted all of the property. All of the property -- all of the permits encompass all of the property. To date we have issued an Army Corps of Engineer permit, which includes the biological opinion from U.S. Fish & Wildlife. The permit allows for an incidental take. It does not allow for a take of the eagle. The eagle tree will not be touched. The eagle will not be touched. We will simply be allowed to construct our high-rise buildings in a sequence, which I will get into here in a second, that would allow for the construction of our project, which may result in the eagle leaving the tree and going somewhere else. We are required, prior to commencing construction, to secure habitat for the eagle in Southwest Florida. Our first look is going to be in Collier County. If we're not able to find habitat in Collier County, we are required to find it in Southwest Florida. It's important to note that this was a voluntary commitment by Signature Communities. It was not required originally. We asked that that be required as our permit, because we believed that was the right thing to do. And now since we have done this, other permitees have been required to include mitigation. The clubhouse and amenities must commence in the non-nesting season, which is May 15th to October 1, and can continue on through the non-nesting -- through the nesting season, if you will. I don't know if we have -- Jay, do we have an exhibit that shows numbers on the buildings? COMMISSIONER STRAIN: Richard, before you go further, you keep showing a pink area but no code as to what that means as far as this map rendering goes. What is that pink area? The previous slide had the same thing and again no reference to it. MR. YOV ANOVICH: I'm sorry, the pink area, Mr. Strain, I Page 12 --,._",. March 17, 2005 thought I mentioned that, is outside of the boundaries of the PUD document, but is in a conservation easement, as part of the mitigation for the permitting within the PUD document. COMMISSIONER STRAIN: Does your client own that pink area? MR. YOVANOVICH: Yes. And that will -- that is the location of the artificial tree that I'll mention briefly and also Mr. Godley will go into greater detail. On this exhibit you will see the construction schedule approved by the Army Corps of Engineers and U.S. Fish & Wildlife. During the first non-nesting season, we can construct Building No.5, which is the most northern building, and that building is in the secondary zone, not within the primary zone. We can also commence our clubhouse and amenities at that time. In the second non-nesting season -- or actually no sooner than the second non-nesting season; it will depend on marketing conditions when we move forward -- but no sooner than the second non-nesting season we can start commencement of construction of Building No.4, which is the most southern building on this plan. The third -- CHAIRMAN BUDD: No. 1 appears to be the most southern. MR. BELLOWS: I thought that was No.1. COMMISSIONER VIGLIOTTI: The second one. MR. YO V ANOVICH: I'm sorry, it's the second north building. CHAIRMAN BUDD: There's five, four, three two, one, north to south. MR. YOV ANOVICH: Gotcha. Thank you very much. I can't read that small print. I'm glad you can. COMMISSIONER VIGLIOTTI: North, south, east and west is a problem. MR. YOV ANOVICH: Always has been for me. North, south, east and west, I'm directionally challenged. Thanks for remembering Page 13 March 17, 2005 that. COMMISSIONER SCHIFFER: Richard, let me ask you a quick question. MR. YOV ANOVICH: Sure. COMMISSIONER SCHIFFER: The shape of the building is the black outline and then there's like a yellow rectangle within that. The shape of the tower is going to be the black outline? MR. YOVANOVICH: Yes. COMMISSIONER SCHIPPER: Okay. MR. YOV ANOVICH: The third non-nesting season we go to Building 1, which now is the most southern building on our exhibit. In the fourth non-nesting season we can go to either Building 2 or No.3, our choice. And then in the fifth non-nesting season, whichever building is left we're allowed to construct. We have agreed at the EAC to construct an artificial tree that was a voluntary mitigation option for the property. As you can see on this exhibit, the tree is located within the pink area, away from any development, and also within an existing conservation easement. And Mr. Godley will get into great details. The project has received all the required permits to go forward. We received all the federal and state permits. As you know, they __ the comprehensive plan says and it's the county's policy to defer decisions regarding listed species to the experts, the state and federal agencies. The state and federal agencies have spoken. We have received the required permits. Weare going through the process now to amend the Bald Eagle Management Plan to be consistent with the permits and to be consistent with the comprehensive plan. Your environmental staff has recommended approval, because we are consistent with the comprehensive plan. Your planning staff has recommended approval because we are consistent with the comprehensive plan. We are requesting that the Planning Commission Page 14 "---, March 17,2005 forward our petition to the Board of County Commissioners with a recommendation of approval, because we are consistent with the comprehensive plan. At that, I'm going to turn it over to Mr. Godley to go into the details about the Bald Eagle Management Plan, and after that, if you want to ask questions of us, fine; otherwise, we'll let the public speak and we'll go ahead and rebut comments that we believe will be said, but I'm not going to go through and try to anticipate what people might say. CHAIRMAN BUDD: Okay. Before you go further, I have a question of the county attorney regarding your earlier testimony. Mr. Y ovanovich commented that we are limited in our conversation today to an amendment to the Bald Eagle plan. Under what circumstances, if any, would we be allowed to consider other aspects of this PUD? Or is that a strict and absolute limitation to the Bald Eagle plan? MS. STUDENT: We have discussed this within the last year with our outside counsel and been advised by the outside counsel that -- you know, to open up the PUD, if you want to call it that, could be fraught with legal issues and legal problems, if that were done. She also counseled that to do something like that, there has to be a rational nexus between what's been applied for and what, you know, might be changed. And that means an immediate and -- rational nexus is legal mumbo-jumbo for an immediate and direct connection. So what I can advise is that if that were done, we believe that it could cause legal problems down the road for the county. We also have the Porpoise Pointe case, which tells us -- and that case was a little different than this. That was where local government actually wrote a PUD and imposed it on an individual's property that had another zoning classification. But were the county to rewrite a PUD document over the applicant's objection and apply it, the courts might say that -- and Page 15 March 17, 2005 again, we can only predict what a court might do. I can't tell you in black and white what the court would find. But a court may say that there was -- under Porpoise Pointe there was no authority to do that. So those are some of the issues and legal can of WOffilS, if you would, that would be opened by up by doing that. COMMISSIONER ABERNATHY: Mr. Chaiffilan? CHAIRMAN BUDD: Thank you. With that, I just want to go a little bit further and say it would be my intention then, based upon the petitioner's statement, reinforced by the county attorney, that anybody presenting testimony on any other aspect of the PUD, I would request that first they attempt to establish that rational nexus, would probably get an opinion from the county attorney, and upon their success and failure on that would then decide on whether we would consider any further testimony on any other aspects of the PUD. MS. STUDENT: Mr. Budd? CHAIRMAN BUDD: Yes, ma'am. MS. STUDENT: I believe that that deteffilination as to direct connection or rational nexus, yes, that's a legal test. But legal staff -- I believe that would require an analysis by planning staff, because that has to be supported by facts. And the legal staff gives you the law, but our experts are the planning staff and environmental staff. And I believe that decision or that interpretation would have to be made by them. And I need to, if I may, take this opportunity. I need to clean up two things in the record that were mentioned by Mr. Y ovanovich. First he said that there was only a need to go to the EAC and not to the Planning Commission. I don't believe the minutes of the December 6th, 2000 EAC meeting support that, because there was some discussion about the need to -- or not the need, but there was discussion about a possible PUD amendment some day, and Mr. Corace mentioned that it would have to go back -- he said so by virtue Page 16 -.------..- March 17, 2005 of us having to make an amendment to the PUD, we would have to come back before the Planning Commission and the board as well. The EAC, as I understand, concern was that for an original PUD, all of that would go to them. But just for an amendment, Barbara Burgeson advised that any amendment would only go to the Planning Commission and the Board of County Commissioners. So their concern was of not seeing what might happen down the road, and I wanted to clarify that for the record. I also want to clarify for the record Mr. Y ovanovich stated that the master plan is only attached to the PUD document and there isn't a reference to it. There is a reference in the PUD document under the list of exhibits and tables and it's referenced in there, it's appended to it. And our Land Development Code also, in discussing what a PUD document consists of, refers to management plans. So I wanted to clarify that for the record. CHAIRMAN BUDD: Okay. So with that, I'll modify my previous position that should we be requested to consider testimony on other aspects of the PUD, we'll look to planning staff to try and make a reasonable determination of a rational nexus before moving into other aspects of the PUD. Mr. Yovanovich? MR. YOV ANOVICH: Just before we get into -- after Mr __ before Mr. Godley speaks, but since I think it's time we talked about limiting public comment, to avoid my having to get up here every time some from the public speaks to object to anything or to have to at rebuttal go through each person and point out where I believe their testimony has gone beyond the record, we are stating for the record that we object to any testimony that does not address the Bald Eagle Management Plan solely. That's what we're here for today, to address the Bald Eagle Management Plan. If they go beyond that, I just want a standing objection on the record that that's inappropriate. And I have to bring up some history on the other comment about Page 1 7 .>;----.. March 17, 2005 the reference to an exhibit simply as in the table of contents of a PUD. I went through an official interpretation hearing, oh, a few years ago, at which the county attorney's office opined that if it were important enough to be in a standard for the PUD, it would be in the text of the PUD and not be referenced in an exhibit to the PUD. I just wanted to notice that that was an interpretation that came out of the county attorney's office three, four years ago. And again, this is an exhibit to a PUD that is not referenced at all in the text of the PUD other than in the table of contents. CHAIRMAN BUDD: Okay, Mr. Abernathy, you had a question? COMMISSIONER ABERNATHY: Yes. Marjorie, let me ask you a hypothetical before I ask it and be told I can't. What would be your opinion about questioning the petitioner about the possibility of rearranging the location of the five buildings to be more accommodative to the nest? That would seem to me to have a rational nexus to any eagle management plan. MS. STUDENT: Well, I don't believe the PUD itself speaks to the actual location of the buildings, because that's something that comes at site development plan. And I'm going to defer to staff on that. CHAIRMAN BUDD: Mr. Schmitt? MR. SCHMITT: Yes, I think it's clear, and we've been through this before, we've addressed this issue. I think that debate whether or not we need even be here is moot. We've already addressed this many months ago, both in front of the board, and it is clearly referenced in the PUD, reference to the eagle management plan. We've been down this road. If Mr. Bosi can step up and correct the record. I think if Mr. Y ovanovich wants to pursue this line of questioning in regards to the legitimacy of being here, I think it's somewhat of a waste of time, because it's clear that the record does shows that the Page 18 March 17, 2005 PUD references the eagle management plan. Mike, if you would? MR. YOV ANOVICH: If I may, I just noted an objection for the record. I obviously disagree with what county has said the record says. I don't think we need to belabor the point. I've stated for the record I disagree. I don't know that we need to continue on with this discussion. If I may address Mr. Abernathy's question. Mr. Abernathy, there's a PUD master plan that's attached to the document, and it does not permit those towers to be located anywhere but in the area that they're shown on the PUD master plan, and that is not before you to change the PUD master plan. COMMISSIONER ABERNATHY: Okay. All right. CHAIRMAN BUDD: Okay, Mr. Strain, you had some questions for Mr. Y ovanovich? COMMISSIONER STRAIN: Richard, I know you said that the reference to the eagle management plan only occurs in the table of contents. It occurs also in 6.9E and 6.9F. The reason I'm pointing that out __ COMMISSIONER ABERNATHY: Marjorie's-- MS. STUDENT: And if I may, I also want to quote again from the December 6th, 2000 EAC meeting where Barbara Burgeson stated, also for the EAC's comfort, there's requirement that the Bald Eagle Management Plan in its entirety be attached to the PUD document as an exhibit -- which happened -- so that it becomes part of the formal legal document that the board approves. And I would add that as an amendment -- or exhibit to the PUD document, it would be my legal opinion that it is text and part of the PUD document. I think Mr. White might want to add something to that as well. MR. WHITE: Well, on a matter that Mr. Yovanovich referred to -- Assistant County Attorney Patrick White -- about an interpretation Page 19 March 17, 2005 of our office, I think it's more accurate to say that it was the expression of an oral opinion as part of the board zoning appeals consideration of an appeal of an official interpretation involving a project for the development known as White Lake. And it was an oral statement made by me. And I don't know to what degree one or more of the commissioners may have relied upon that statement when they ultimately upheld the planning services director's interpretation in that particular matter. So I'm not sure to what degree and for what purpose that statement was put on the record by Mr. Y ovanovich, but it is not any written interpretation of our office, it was simply a statement made that is certainly often referred to by Mr. Y ovanovich from time to time, but I wanted to make sure that it was explicitly clear in this record what the sum and substance of that statement was by me. CHAIRMAN BUDD: Okay, thank you. Mr. Strain, you were trying to make a point or ask a question? COMMISSIONER STRAIN: Yes. Now that we've acknowledged the Bald Eagle Management Plan is in the text of the PUD, my question was that I understand from legal comments made that the BCC has the right to delegate authority. Just as they have the right to delegate authority of this commission to be the final say on boat dock extensions and other pieces of issues, they also seem to have delegated their authority on this ordinance originally by saying the Bald Eagle Management Plan shall require review of the EAC or any successor body to be amended. You went to the EAC. You lost at the EAC. I am still puzzled as to why you are here today. Because if this is an amendment to the PUD, it either has to be substantial or insubstantial. And if it's changing a preserve area or anything else, if it's a substantial amendment, it would seem to me it opens up more of the PUD. That's not really where I want to go. I don't even want to be here today. I think this should have ended at the EAC. So I'm still puzzled as to Page 20 ,~~._.,.,-,."~.-,,.....,~,,-- March 17, 2005 why it's come this far and it's going to go further when the delegation of authority was posted in this PUD. MR. YOV ANOVICH: Is that a question to me? COMMISSIONER STRAIN: Yeah, what's-- MR. YOV ANOVICH: Well, first of all, again, Mr. Strain, I don't agree that they delegated to the EAC final authority. I do agree that it needed to go to the EAC. I don't believe it needed to come here. That's the reason I noted for the objection. We discussed the issue to the Board of -- we went to the Board of County Commissioners specifically to address what were the rules of the game going to be when we came forward to amend our Bald Eagle Management Plan. And your staff report points out that the Board of County Commissioners said we are going to amend the Bald Eagle Management Plan only. We are not opening up the entire PUD for review. That's the rules of the game. We have no choice but to play by those rules and exhaust our remedies. Hopefully the Board of County Commissioners will, and hopefully you will, apply the comprehensive plan to the Bald Eagle Management Plan. And as I pointed out, the comprehensive plan says you delegate to state and federal agencies. We're hoping that that will go through the -- it will go through you all, you'll make a recommendation of approval and ultimately the Board of County Commissioners will approve it, because that is consistent with the comprehensive plan. We're in a process we didn't choose to be in, but we have no choice but to follow through with it. MS. STUDENT: Mr. Strain __ COMMISSIONER STRAIN: In your response, Margie, could you tell us if this is a substantial or insubstantial change to the PUD? MS. STUDENT: Mr. Strain, this is a text change to the PUD document. And as a text change, the code requires that any text change has to go through the amendment process. And it's a text Page 21 March 17, 2005 change. COMMISSIONER STRAIN: Do you know -- you're saying there's specific text that's going to be underlined -- crossed out and rewritten? MS. STUDENT: If you look at the ordinance, it's there that way. COMMISSIONER STRAIN: I have, I've read it. MS. STUDENT: It's there in a strike-through and underlined format. And I want to also state for the record, I have read the record of the EAC meeting I can't tell you how many times or in how many states, but it is my opinion that it was never the intent to bypass the Planning Commission. The PUD does not say that the Planning Commission is to be bypassed. It says that an amendment to the eagle management plan will go to the EAC. And I don't think we can read that to mean that that means it's the EAC and not the Planning Commission. In my reading of the EAC record of December 6th, 2000, was the EAC was an augmentation to the already existing process of any amendment having to go to the Planning Commission and the Board of County Commissioners. MR. BELLOWS: For the record, I'd also like to add that this petition was -- set the impetus to -- for county staff to change our procedures in dealing with amendments to PUD's. As you recall, we previously recalled a PUD to PUD rezone, which opened up the entire PUD. This project, we sought Board of County Commissioner direction, and we implemented a PUD amendment process only where the specific change is the only thing that staff would review. In this case the Bald Eagle Management Plan. So this required to go to the Planning Commission and to the Board of County Commissioners. COMMISSIONER STRAIN: When staff makes a presentation, could you at that time show me where the cross-out and changes are in Page 22 March 17, 2005 the text in the PUD? Because I have my copy, I can't find it. But we can wait until you make your presentation. Thank you. CHAIRMAN BUDD: Any other questions, Mr. Strain? COMMISSIONER STRAIN: No. CHAIRMAN BUDD: Mr. Adelstein? COMMISSIONER ADELSTEIN: I'm going to wait to hear where he's coming from. CHAIRMAN BUDD: If there's no questions at this time, not to limit any at a future time, if we could continue with the petitioner's presentation. MR. GODLEY: Good morning, Commissioners. I'm Steve Godley, president of Biological Research Associates, an environmental consulting firm in Tampa, Florida. I won't be speaking about legal issues, per se. I want to speak about the Bald Eagle Management Plan and the amendment that's being sought here. By way of background, I'm a professional biologist with a Master's Degree from USF. I've been a consultant for over 30 years. In 1997, I was appointed to the Bald Eagle recovery team in the southeastern U.S. I am the only non-governmental member of the recovery team. I was appointed because of my experience at Bald Eagle and development conflicts in Florida and elsewhere. In my career I've prepared approximately 35 Bald Eagle Management Plans across Florida. I'm working on two in Delaware, one in Pennsylvania as well. In 2001, I believe it was, I also wrote the Bald Eagle monitoring guidelines that are currently published on the Fish & Wildlife website in order to guide consultants as well as service employees as to how eagles should be monitored in the event the construction occurs within the 750 feet of the nest. And those are there as well. CHAIRMAN BUDD: Excuse me for just a second. Marjorie, normally our microphones don't do a good job, but it's Page 23 March 17,2005 really attuned this morning. So if you'd pull your microphone away, because I know you have sidebar that you need to discuss. Thank you. MS. STUDENT: Sorry. CHAIRMAN BUDD: Continue, sir. MR. GODLEY: Given that background, I've been working with Signature Communities on this particular Bald Eagle nest. It's called CO-019. All nests in the state are given a county designation that's a CO, for Collier, as an example, and 019 is the number of the nest, the specific nest number. But I've been working with Signature now for about three-and-a-half years in developing the Bald Eagle Management Plan that was approved by the Service and by the Florida Fish & Wildlife conservation commission. All of you probably are aware of the wondrous -- of the wonderful success story of the Bald Eagle in the U.S. They were of course at one time endangered in the lower 48 states, largely as a result of DDT and eggshell thinning. When we stopped the use of DDT in the Seventies, the population began to increase. When I was a consultant -- or when I was in graduate school, I should say -- in the Seventies, there were about 325 pairs of eagles in the State of Florida, and we had more pairs of eagles than any other state in the lower 48. The count isn't in for this year yet, but we're probably approaching the 1,200 pairs in the state. It was 1,133 last year. There's so many pairs that the commission's not able to find them all. And -- but close to 1,200 pairs over the last 15 years. The eagles have been increasing at approximately 11 percent a year, which is a phenomenal increase for any species. It's a testament to us as a people doing the right thing in terms of eliminating the DDT, as well as biologists, and as a conservationist, the ability to manage a species and to get it off the list, off the endangered species list. Page 24 ""--."-'" March 17, 2005 Also, you're probably aware that the bird is currently proposed to be down-listed -- or actually de-listed at the federal level. It hasn't happened yet. It's the snafus of government. But clearly it's met its recovery goals. That's one of the things that I was involved in in terms of the recovery team. And it's met all of the recovery goals in the U.S. It will likely be de-listed at the federal level within a year. But there's also a petition to de-list it at the state level, because the animal has clearly recovered and we know how to manage the bird. So that's a very -- that's a very good thing, because we don't have a lot of species that are recovering and have recovered to the extent that eagles have. This particular pair, CO-O 19, as you can see on the screen here, is located in a dead pine tree. In, as I recall, 1996 or so, maybe '97, there was a lightning strike fire in this particular patch of flat woods. Killed the tree but the -- but the birds have continued to nest in it. Note that this photo was taken by me on the 6th of September. On, as I recall, the 18th, 16th, 14th, somewhere, of September of that year, Hurricane Gabriel came through, blew down the nest. The birds actually rebuilt. The tree now has been dead for seven or eight or so years. This is a close-up of the crotch of the tree. And as you can see, the __ the bark of the support branches is beginning to fall off and the holes that you see in the exposed portion of the major portion of the nest structure are from beetle damage. This is expected in the normal progression of a dead pine. But don't know how long the tree will last. Had this portion of the state also received the hurricane damage that Charley brought and others have brought, either from Charlotte harbor to the north, it likely would have -- it would have been knocked down before then or then. So this particular nest tree is unlikely to be in existence for very long. I don't know how many years, but perhaps only a couple more. Page 25 ._.."~.." March 17,2005 It's certainly going to go. This pair of eagles has been relatively successful in terms of its nesting history, and the reason is really pretty simple. It's near a good food source. What we've learned about eagles over the last quarter century in particular is they need two basic things: They need a structure on which to nest and they need an adequate food supply. And they eat primarily fish, as I'm sure most of you know. In the case of the eagle population, I've indicated it is increasing in the state. They are increasing in a number of ways as well. One of the most fascinating ways that they're increasing is the number of pairs that are actually nesting on artificial structures. I'm going to talk about an artificial tree in a bit. What we know is that the number of pairs that are nesting on artificial structures -- and in particular I mean cell towers, telephone poles, osprey platforms, that sort of stuff -- has been doubling about every three years. And so the year before last -- I don't have a more recent count -- there were over 30 pairs actually nesting on artificial structures. At least in my experience, those pairs often have higher productivity than pairs that are nesting in a normal pine tree. That's not intuitive necessarily until you realize that in most cases they're nesting along the coast in artificial structures, often where there are no live pine trees that are suitable, and the food sources that they're depending on are often very rich and so they're able to rear young each year and often up to two or three young. Normally they would either rear one or two young a year. This is encouraging and is an important component of the particular management plan that we've developed here. Signature proposes to build the five condominiums, as you've heard earlier. Two of those condominiums are relatively close to this particular pair of eagles, where they're nesting. The pair -- and the Page 26 March 17, 2005 tree, as I mentioned, is obviously dead. It will have a limited future existence, and the birds will eventually move anyway. But they will have to. This is something that they've evolved in response to because hurricanes are a normal event in our state, for example. Lightning strikes occur, just as it occurred here. The trees get blown down. Even though they often reuse a nest, if anything happens to that particular tree, they will build another nest. They can build a nest in a week or less. So this is a normal part of their biology and ecology and certainly their evolutionary history. In this case it is not possible to build the condominiums on the part of the property that is zoned for condominiums and expect that the birds will remain. The Endangered Species Act has a provision in it that allows construction where there may be incidental take, and it's called an Incidental Take Statement. An Incidental Take Statement does not mean again that the birds are going to die or any young are going to die or anything like that. It is a mechanism, a legal mechanism, to protect the property owner and the county and other government agencies to authorize activities in or near the vicinity of a listed species. That's what we have here. We worked for about a year and a half with the Fish & Wildlife Service and the Florida Fish & Wildlife Conservation Commission and designed the project to minimize the effects of take, or potential take of the tree. And by take, I mean the ultimate abandonment of the tree in the event that it doesn't fall down before the condominiums are built themselves. Mr. Y ovanovich has described the sequencing of the condominiums. That's why we start at the farthest away in condominium No.5. The construction staging area, as it is on the pad of condominium No.1. And again, it's the two furthest places away. All construction will be initiated in the non-nesting season, and eventually move closer development. The Service has issued approximately 35 or 40 other such Page 27 March 17, 2005 incidental take statements for Bald Eagle s in Florida alone and, of course, throughout the range. Because it does not affect the survival potential of the bird. Clearly, they continue to increase in numbers. I feel confident as a biologist that this pair will nest elsewhere. In developing the permit conditions, we proposed, in addition to minimizing the effects of take, to purchase either conservation easement or by fee simple a territory, ideally in Collier County, but certainly in Southwest Florida, that would actually mitigate the effects of the take. It is not a requirement under Section 7 of the Endangered Species Act to mitigate, only to minimize impacts. In addition -- and I should point out that that purchase will occur prior to the initiation of construction. In addition, we have proposed to construct an artificial nest tree on a mangrove island, actually in a salt flat on a mangrove island, insulated and well away from any future development. I had to get up awful early to travel from Tampa this morning in the rain. I didn't bring the bark or anything else. I can tell you a little bit about the tree. It will be approximately 60 feet in height. It will look identical to a pine tree. The bark on it is remarkably similar. The needles, everything about this thing is -- it will be a good nesting substrate for eagles. The people that are going -- or actually designing the tree right now also did the Tree of Life at Disney and a lot of others. They've got a lot of experience with this. It will be able to withstand the 140- mile an hour hurricane winds, and also will be lightning protected. I thought that was important. I can tell you that I've -- in the number of pairs that I've monitored, I've had two pairs where lightning hit the tree while the eagle was there with young in it. It fried the female, as well as the chicks. I don't want that to happen in this particular case as well, so it will be lightning protected. I can't guarantee you that the eagles will move to the artificial Page 28 March 17,2005 tree. I would tell you that as a biologist, I think that is the most likely occurrence. And it is a good -- it is a good measure to minimize the impacts. The other advantage of this is that given the increase in the number of -- the pairs that are nesting on artificial structures, it will give us important research information as to how to do this more perfectly. In a lot of counties in our state now, it's a requirement that you camouflage cell towers. For example, in Hillsborough County where I live, all the cell towers are either bell towers on churches or they're artificial trees. One possibility is that we can increase the number of pairs of eagles in urban areas in particular by designing these cell towers into trees and have the components important for the cell tower be isolated away from the actual nest so there won't be conflicts between a pair of birds that are nesting there and the maintenance of the equipment. The Service in particular and the commission are interested in this as a potential way of assisting the management of the species in the future. As a biologist, I think it's also a very good idea. I think I'm going to stop and I'll be glad to answer any questions. CHAIRMAN BUDD: Are there questions -- COMMISSIONER SCHIFFER: I have. CHAIRMAN BUDD: -- of this gentleman? Yes, Mr. Schiffer? COMMISSIONER SCHIFFER: Yes, just for some history, do you think the eagles that are coming back, are they the same pair every year? MR. GODLEY: Well, we don't know, but we suspect so. You have to appreciate that the Bald Eagle s are long-lived, they're relatively long-lived. The reason I say we don't know, we don't have any bands on the birds. What we do know is that the oldest eagle in captivity lived to be Page 29 "~__n March 17, 2005 27 years of age, and it was an adult when it came into captivity. But the mortality rate information that we do have suggests that adult mortality is approximately 14 percent a year for adults. In most cases, even if an adult is killed by whatever means, there's enough available partners, so to speak, in the vicinity that they pair up, and you'd never know that the pair was injured or anything happened to one individual, because they'll pair up with another one. COMMISSIONER SCHIFFER: The other question is, are they a territorial bird? MR. GODLEY: Yes, they certainly are. If you look at distribution of pairs across the state, or in any region -- Collier County is a good example -- they're about a mile apart. And they're protective of their food resources, in particular for their nesting young, and so they'll fight each other. They can be narrower, but in general it's about a mile apart in Florida. COMMISSIONER SCHIFFER: Okay. So if you built the artificial nest, another pair probably would not arrive and abandon it? MR. GODLEY: That would be correct. The location of this pair is within the territory of that pair of birds. We know that. COMMISSIONER SCHIFFER: Okay. Done. CHAIRMAN BUDD: Mr. Adelstein? COMMISSIONER ADELSTEIN: What is a safe distance for building a building near a nest? MR. GODLEY: That depends entirely on the pair. As you might expect, there are large number of pairs now in very close proximity to development. I have -- I have a pair that's a half a mile from my house, up to this last year. The tree got hit by lightning and fell over in the storm. It was in the backyard of a four-unit per acre subdivision. COMMISSIONER ADELSTEIN: I'm talking about developing a building. When that building is being built, what is a safe distance for those eagles to be away from that building? Structure. Page 30 March 17, 2005 MR. GODLEY: Well, I understand that. What I'm saying is it depends on the pair. Some pairs -- most pairs in urbanized areas are relatively tolerant of people. And also new structures. But that's not to say every paIr IS. COMMISSIONER ADELSTEIN: Can you give me a number by feet or yards? MR. GODLEY: No. There are guidelines. There are guidelines that the Service published in 1987. And I'm trying to get at your answer, but I'm -- I want you to understand that it's not a simple -- COMMISSIONER ADELSTEIN: I realize that. But I'm looking for the minimum yardage or footage that a building should be built upon while a nest of eagles is there. MR. GODLEY: I have one in St. Petersburg where a building was constructed 20 feet away from the nest and the birds are there still. COMMISSIONER ABERNATHY: Those are anecdotal. MR. GODLEY: There's a pair -- COMMISSIONER ABERNATHY: Those are anecdotal. Aren't there some standards like primary zones and secondary zones? MR. GODLEY: There are primary and there are secondary zones that the Service adopted in 1987. COMMISSIONER ADELSTEIN: Could we have those numbers, possibly? MR. GODLEY: Those distances are 750 feet and 1,500 feet. COMMISSIONER ADELSTEIN: Thank you. CHAIRMAN BUDD: Mr. Midney? COMMISSIONER MIDNEY: Do you have any success rates for artificial trees? MR. GODLEY: There aren't any published success rates in terms of artificial trees. As I mentioned, all the anecdotal information that I have available of the pairs that we've followed in artificial trees or structures suggest that it equals or exceeds the productivity in the Page 31 '"-- March 17, 2005 natural trees. And again, it's because of the food sources. There also is information about urban pairs versus rural pairs. And by urban pairs, we're talking about pairs where development occurs within 1,500 feet of the nest tree. The actual productivity, and by that I mean the number of young produced a year, is higher in urban pairs than it is rural pairs. Most likely because of in most cases they're near the coast, it has -- not subject to droughts, et cetera, so the food resources are higher. COMMISSIONER MIDNEY: In terms of the mitigation, how many acres would be bought if you do do mitigation for this? MR. GODLEY: I suspect that it's going to -- it's going to be over 100 acres. We haven't purchased it yet and so it's going to depend upon the configuration of the land, obviously, and the owner, what he's willing to sell. That's what I suspect it will be, on the order of 100 acres. It may be more. COMMISSIONER MIDNEY: Thank you. CHAIRMAN BUDD: Mr. Vigliotti? COMMISSIONER VIGLIOTTI: You had stated there's 30 pairs living in artificial trees? MR. GODLEY: In artificial structures, yes, as of two years ago. COMMISSIONER VIGLIOTTI: Is that in Florida or is throughout the country? MR. GODLEY: No, that's only in Florida. COMMISSIONER VIGLIOTTI: And how many pairs are living in natural environments, natural trees in Florida? MR. GODLEY: It would be the reminder, so that would be 1,100 and something. COMMISSIONER VIGLIOTTI: So then the 30 is a very small percentage. MR. GODLEY: Yes. COMMISSIONER VIGLIOTTI: Thank you. CHAIRMAN BUDD: Ms. Caron? Page 32 March 17, 2005 COMMISSIONER CARON: Yeah, I have a question. If the eagle pair left today, if the nest fell down or whatever and they left, how long would it be before you could start construction? MR. GODLEY: Well, the truth of it is, if the Planning Commission, Board of County Commissioners approves it, they'll be able to start construction almost immediately. COMMISSIONER CARON: So there's not a waiting period, if a nest falls or if -- MR. GODLEY: If the tree is lost, what they call lost, that means it falls down, or there's no sticks in the tree anymore, it's a two-year wait period. Now, again, those are guidelines. If you apply for an Incidental Take Statement, those don't apply. COMMISSIONER CARON: So you're not bound by any waiting period is what you're telling me. MR. GODLEY: That's correct. CHAIRMAN BUDD: Mr. Abernathy? COMMISSIONER ABERNATHY: What is supposed to not take place in the primary zone? We had this 750-foot primary zone. What does that establish or prohibit? MR. GODLEY: Well, it doesn't establish or prohibit anything. Those are merely guidelines, sir. They're not any regulation or anything like that. In fact, the Service recently amended those 87 -- the guidelines. It's on the website right now. And it essentially says that based on the experience of the Service, in particular in the last 15 or so years, they've eliminated the secondary zone altogether as a requirement. In other words, you can develop in the secondary zone. You have to monitor, but -- in the primary zone, you do not have to contact the Service if there's an existing structure at an equal distance COMMISSIONER ABERNATHY: From the one you want to build. Page 33 March 17,2005 MR. GODLEY: That's correct. And again, it's because of the enormous amount of information that we now have in relation to development eagle conflicts. There have been consultations on over 350 pairs of eagles in the last decade alone, and what we've found in -- after the development has occurred and it gets at your 750 as though this is some hallowed distance. The Jacksonville office reviewed, as I recalled, 135 or so instances where they allowed development within 750 feet, as close as down to 25 feet. And they went back and they looked at the productivity of those pairs, or what happened over time of the hundred and something pairs. Of all those pairs, there were only two instances where they had any evidence that abandonment of the nest tree occurred as a potential likely event of development. A hundred something pairs within the 750, only two cases of actual abandonment of the tree. Which gets at the point I was asked earlier, well, what's the magic distance. There is no magic distance, it's entirely dependent upon the pair. And history teaches in most cases they don't abandon. However, in order to avoid an illegal action, i.e., causing the bears -- the pair to abandon or in any way believing that as a result of their actions it was abandoned, this developer had to apply for the approvals that he sought, just like any other developer that seeks development within the 750 has to apply for. Otherwise, he has no legal protection. COMMISSIONER ABERNATHY: I have one more question. You've talked about the recovery of the Bald Eagle as a species, particularly in Florida. Has -- statistically speaking, has the increase in the coastal area been the same as interior or undeveloped areas or greater or lesser? MR. GODLEY: That's a good question. When we looked at the recovery of the eagles in Florida, what we Page 34 March 17, 2005 found is that there were certain nuclei where the number of pairs increased much more rapidly than other areas. One of those nuclei was the Sarasota County area. That expansion there was very rapid and high. But there were other nuclei. As for example in Polk County, because of the number of lakes there, Polk County now has 170 something pairs of eagles in that county alone. So there appears to be certain areas, as a result of food sources, et cetera, that expanded disproportionately more than others. In the case of Collier County, that did not occur. I suspect the reason is again is it's food related. The estuarine systems that you have here do not have a lot of freshwater going into them, and they're relatively poor. And I don't mean that in a negative way, just in the food sources that are available near shore, particularly fish. So the marine productivity isn't as high. Your water's very clear, for example. And if you look at the distribution of eagles along the coast in Collier, it's -- in the available habitat, it's about a mile apart. In other areas in certain places, in Polk County and Hillsboro County where you have a large estuarine area, you can have a much more densely packed pairs because of the food sources available for them. COMMISSIONER ABERNATHY: Okay. CHAIRMAN BUDD: Anything else, Mr. Abernathy? COMMISSIONER ABERNATHY: No, sir, thank you. CHAIRMAN BUDD: Mr. Schiffer, you have a question? COMMISSIONER SCHIFFER: Yes. Since you've been working on this thing for it looks like four years or so, is there any reason why you didn't put in the artificial tree and try to attract the eagle away from the development zone already? MR. GODLEY: Well, we had to get a permit for the artificial tree as well. And we got the permit for the artificial tree just within the last six months or so. COMMISSIONER SCHIFFER: So that took four years to get? Page 35 March 17, 2005 MR. GODLEY: Well, it was one component of the permit. COMMISSIONER SCHIFFER: All right. CHAIRMAN BUDD: Anything else, Mr. Schiffer? COMMISSIONER SCHIFFER: No, thank you. CHAIRMAN BUDD: Ms. Caron? COMMISSIONER CARON: Yeah, you were talking about the -- that they had tracked 135 construction projects? MR. GODLEY: Yes. COMMISSIONER CARON: Were those single-family home projects, or were they a combination of -- MR. GODLEY: All kinds. COMMISSIONER CARON: All kinds. MR. GODLEY: All kinds. It was roadway projects, single-family homes, multi story. It's the whole diversity -- COMMISSIONER CARON: Okay, thank you. MR. GODLEY: -- of projects in the state. COMMISSIONER CARON: In the pink area where you're going to put the fake tree? MR. GODLEY: Yes. COMMISSIONER CARON: Is that in the territory of another eagle? MR. GODLEY: No. COMMISSIONER CARON: That is not in the territory of the Audubon eagle? MR. GODLEY: I don't think so. Now, based on the observations we have of this pair, I have seen them in that portion of the -- COMMISSIONER CARON: Primarily the eagle CO-019, from what I've been told and read in information I have, fly to the south. MR. GODLEY: They do a good bit of -- I suspect that a lot of that -- COMMISSIONER CARON: I think that's primarily because Page 36 March 17, 2005 there's another pair of eagles at Audubon, which is just north of -- MR. GODLEY: Right, and I've been to the Audubon pair as well as. But I have seen this pair, or individuals flying over the areas where this artificial tree would go. I mean, it's just not that far away, ma'am. COMMISSIONER CARON: Oh, I understand it's not that far away. I'm talking about territory, though. And you had been talking about how territorial they were. CHAIRMAN BUDD: Anything else, Ms. Caron? COMMISSIONER CARON: No, not right now. CHAIRMAN BUDD: Mr. Midney? COMMISSIONER MIDNEY: Why do you need permission to do an artificial tree? MR. GODLEY: You need permission because this one happens to be located on a mangrove island. And we've got to be able to access it. The structure itself, I should mention, is cell tower technology in terms of the base. It's got to be -- has to be directionally drilled into the lime rock in order to hold it up and all that other stuff. I should also mention that as a permit condition, Southwest Florida Water Management District staff will be in the field with us during construction in order to ensure that we minimize the effects on the environment. COMMISSIONER SCHIFFER: Are you putting a cell tower in this? MR. GODLEY: No, no, no, no. CHAIRMAN BUDD: Any other questions for this gentleman? MR. GODLEY: We just had to use the technology that was appropriate. COMMISSIONER SCHIFFER: It just keeps coming up. I didn't know ifit was walking in the back door. MR. GODLEY: No, no, no. CHAIRMAN BUDD: Okay, sir, thank you. Page 37 March 17, 2005 MR. GODLEY: Thank you. CHAIRMAN BUDD: More representatives on the petitioner's team? MR. YOV ANOVICH: We can answer more questions, or if you want to go to public comment. CHAIRMAN BUDD: Any questions of the petitioner, not to preclude any of -- COMMISSIONER SCHIFFER: I have a couple of questions. Rich, could you put the site plan back up? MR. YOV ANOVICH: Sure. COMMISSIONER SCHIFFER: I just want to make sure I understand. MR. YOV ANOVICH: That one? COMMISSIONER SCHIFFER: Yeah. The buildings -- are Buildings 3 and 4 -- how tall are they? I mean, because you have a requirement in your thing that separation between buildings is half the combined height, or essentially the height of one of the buildings. But these look like they're like 35 feet apart. So these buildings are taller than 35, 40 feet, right? MR. WESTENDORF: For the record, my name is Jay Westendorf with Vanasse-Daylor. As currently planned, Buildings 3 and 4, actually 1 through 4, are permitted to be up to 20 stories in height, and Building 5 is permitted to be up to 15 stories in height. That's in accordance with the PUD. The line work that's shown on this plan, keep in mind, is conceptual at this time without final design. But the black outline is actually the garage structure of the building. And the yellow highlighted area is the actual proposed tower. And the PUD has provisions with certain architectural elements that those setbacks can be reduced. COMMISSIONER SCHIFFER: So those four buildings are almost going to be looking like a wall. You don't have that much Page 38 March 17, 2005 distance between them. But that's not the issue today. MR. WESTENDORF: Correct. CHAIRMAN BUDD: Other questions of the petitioner? COMMISSIONER ABERNATHY: Yes, sir. CHAIRMAN BUDD: Yes, Mr. Abernathy. COMMISSIONER ABERNATHY: Richard, are you going to comment about the commitments made by Karen Bishop on many occasions about waiting until the Mr. and Mr. Eagle left? MR. YOV ANOVICH: Am I going to comment on them? COMMISSIONER ABERNATHY: Yes, sir. MR. YOV ANOVICH: I don't believe that that's relevant to today's hearing. Today we're here to discuss about an amendment to the Bald Eagle Management Plan, we're not here to discuss whether the PUD was -- how the PUD was adopted. I'm happy to -- I think that's beyond the scope of to day's hearing. We're not here to revisit history, we're here to discuss an amendment to the Bald Eagle Management Plan. COMMISSIONER SCHIFFER: But Richard, one thing you're saying, Richard, is that this plan is consistent with the comprehensive management plan. You've repeated that -- MR. YOV ANOVICH: With the comprehensive plan, absolutely. COMMISSIONER SCHIFFER: But at the time of the original hearing, were there commitments made that were in excess of the comprehensive plan? MR. YOV ANOVICH: No. You show me where in writing there is a commitment that we would not amend the Bald Eagle Management Plan, show me where in the PUD document there is a written stipulation and a written requirement, and I'll address that. I mean, I go back to, you know -- you know, what Mr. White said earlier, you know, that we had a previous hearing and Mr. White made some oral statements to the Board of County Commissioners, and he doesn't know whether or not they relied on those oral Page 39 March 17, 2005 statements or not. And his opinion wasn't in writing, so, you know, I shouldn't be able to rely on it in today's hearing. I would argue the same thing. There were statements made. There is nothing where a commissioner along the way said that's important enough to me to put it in writing and make it a condition of the PUD. It doesn't show up. The PUD document is the PUD document. It's got to be in the text of the PUD document and it simply does not exist. I know people want to say that's the law, but it is not the law. The law is the PUD document. And the PUD document itself specifically addresses amending the Bald Eagle Management Plan -- CHAIRMAN BUDD: Mr. Strain? MR. YOV ANOVICH: -- and that's what we're doing. COMMISSIONER STRAIN: Richard, first of all I agree, you can amend the Bald Eagle Management Plan, but the text of documents that I've read, and that was November 16th and December 12th clearly indicate that you weren't going to harm this eagle. MR. YOV ANOVICH: I don't think you're referring to a PUD -- you're talking about a PUD document. You're talking about minutes. COMMISSIONER STRAIN: Yes, I am. MR. YOV ANOVICH: Okay. Show me where in the written form of the PUD document it says -- we don't know. Just like Mr. White said, there were statements made. We don't know if they were relied upon or not by the Board of County Commissioners. And if it was important enough for them to put the stipulation in the PUD document, it would have shown up. There are also other statements from the petitioner himself, Mr. Corace, that said we had a four to five-year time period to construct our towers. We're here today, four to five years later. COMMISSIONER STRAIN: I'm hearing today that the Bald "_ Eagle Management Plan is part of the PUD document. That's why we're here looking at an amendment to the PUD document, because in Page 40 March 17, 2005 essence I think what we're doing -- I'm sure Mr. Bosi will tell me this -- that we're going to be amending the eagle bald management plan, not the text within the PUD. At least I can't see any. The Bald Eagle Management Plan clearly protects the eagle. Now, if that plan wasn't attached to the PUD for protection of the eagle, what was it there for? And if that was the intent of -- the passage of the PUD was to protect the eagle through the bald (sic) management plan, how could you possibly construe that today that you changed that so it didn't mean you wouldn't be able to change the eagle management plan to take away the eagle? Because that's what you're doing. MR. YOV ANOVICH: And Mr. Strain, do you see anything in the Bald Eagle Management Plan that says we wouldn't come forward and permit the project and make an amendment to the Bald Eagle Management Plan? It doesn't exist in the Bald Eagle Management Plan. And in fact, there's a provision in the Bald Eagle Management Plan that says if site conditions change or management techniques change, the plan will be amended. And I submit to you, over the past four or five years the management techniques have changed for the eagle. COMMISSIONER STRAIN: If you -- MR. YOV ANOVICH: Now, you want to get into a particular pair of eagles? That is not the purpose of the Endangered Species Act, it's not the purpose of the county's comprehensive plan. We're talking about prospective legislation to maybe change that. Maybe not. We don't know what the Board of County Commissioners is going to do. But today the comprehensive plan says that you will delegate to state and federal agencies. We have done that. We have gotten the permit from state and federal agencies. We're coming back and requesting that the Bald Eagle Management Plan be amended to be consistent with those permits. COMMISSIONER STRAIN: If you had a take permit originally Page 41 March 17, 2005 four or five years ago, in the year 2000, would you need a Bald Eagle Management Plan? MR. GODLEY: That was the Bald Eagle Management Plan originally. CHAIRMAN BUDD: Sir, please come forward to the microphone to answer on the record, please. MR. GODLEY: Thank you. Steve Godley. That was a Bald Eagle Management Plan as well then. COMMISSIONER STRAIN: I know what you have attached to the PUD as a Bald Eagle Management Plan. The take -- MR. GODLEY: And the original one was also a Bald Eagle Management Plan. COMMISSIONER STRAIN: Okay. Original one. I'm not there. You're not going where I'm going. I just want to ask you a question. You have a take permit today that apparently you feel empowers you in a certain way. If you had that take permit before you came in to get your PUD in the year 2000, would you still have had to done a Bald Eagle Management Plan for an eagle that you had a take permit on? MR. GODLEY: Yes. MR. YOV ANOVICH: Just like we have to have one today. The comprehensive plan says you have got to have a management plan for a listed species. COMMISSIONER STRAIN: But if you have a take permit and the listed species is -- MR. YOV ANOVICH: But that would be the management plan, Mr. Strain. COMMISSIONER STRAIN: Oh, okay, so -- MR. YOV ANOVICH: That's exactly what we're doing today. COMMISSIONER STRAIN: Okay. MR. YOV ANOVICH: You have to address the listed species on your property, and we're addressing them through the permitting Page 42 March 17, 2005 process. COMMISSIONER STRAIN: The difference is in the year 2000, your take permit -- your Bald Eagle Management Plan was not taking the eagle, it was preserving the eagle. Today your Bald Eagle Management Plan is to take the eagle. Is that the essence of what we're talking about? MR. YOV ANOVICH: At the time the initial -- at the time the initial development contemplated construction of the golf course, and four to five years later we're going to address the towers. We had another project, which we're all familiar with, The Dunes. We were not going to compete with ourselves. We were going to finish The Dunes project before we started the towers. The Bald Eagle Management Plan said at that time the golf course will be first. And Mr. Corace stated that the towers would come between a four and five-year period. That's exactly where we are today. COMMISSIONER STRAIN: Well, the characterization of the Bald Eagle Management Plan that you submitted in 2000 certainly is different than the one you're submitting today, and I think it would have had different conclusions. MR. YOV ANOVICH: I don't know. It's speculation whether it would or would not have had a different conclusion. No question that it's different than today or else we wouldn't be here. If it were the same one, we wouldn't need to amend it. COMMISSIONER CARON: Have you done the golf course? You said -- MR. YOV ANOVICH: We started some work. COMMISSIONER CARON: -- the golf course was going to be first. MR. YOV ANOVICH: That was the plan, to start the golf course. And if you'll remember, we had an event that occurred on, you Page 43 ,~,~_..._. March 17, 2005 know, 9/11, and the golf course market went in the tank. Private golf courses at that time were very popular, there was a change in the economics in the country and golf courses weren't as popular after 9/11 as they were before 9/11. COMMISSIONER CARON: Still the same today? MR. YOV ANOVICH: You go -- it depends. Some golf courses are doing great and some golf courses are struggling. Read -- I don't know if you read the sports section -- that's the only section of the paper I read because I know most of the time it's accurate information -- but I look at -- if you look in that section all the time, if you look in that section, you will see golf courses competing with each other to try to get members. That market is a tough market right now for private golf clubs. CHAIRMAN BUDD: Any other questions of the petitioner at this time? MR. WHITE: Just one. CHAIRMAN BUDD: Mr. White? MR. WHITE: Mr. Chairman, if I may, to point out what may not be a very great distinction, but certainly one that's relevant to the way that I viewed what Mr. Y ovanovich commented about as far as the notion of what I had said and how it may compare to other individuals making statements on the record. When I speak as an assistant county attorney and render what is in essence a legal opinion, I believe that it is distinctly different from a factual opinion that may be rendered by an applicant's agent. Now, we all know that the deliberations of any commission or board are something that it is difficult to determine ultimately how they balanced and weighed either fact or legal opinions. But in my mind and in my professional opinion, there is a distinction between the two, and I do not want to let that be blurred in your deliberations today. MR. YOV ANOVICH: Well, and let's go to a recent occurrence Page 44 --.,.., March 17, 2005 that happened with the Board of County Commissioners and advice that the county attorney gave to the Board of County Commissioners. The Buckley mixed use project that recently went through, someone brought up the fact that the petitioner's applicant during the comprehensive plan amendment process stated there would be an affordable housing element in that project. It didn't appear anywhere in the comprehensive plan language. The county attorney advised the Board of County Commissioners essentially if it's not in the text of the comprehensive plan amendment, it is not a requirement of the developer. That's recent history. It's the same situation. CHAIRMAN BUDD: Any questions of the petitioner's team? (N 0 response.) CHAIRMAN BUDD: Before we move on to the staff presentation, it's 10:00, it's time for a break, give our court reporter some relief, we'll take 10 minutes. (Recess. ) CHAIRMAN BUDD: Ifwe can recover our Planning Commissioners and regain our quorum, we can resume the hearing. Okay, we have regained our quorum and we will resume with the petition now and hearing, beginning with our staff presentation. Mr. Bosi. MR. BOSI: Thank you, Chairman Budd. Good morning, Planning Commissioners. I'm going to try to be concise because I know there are a number of public speakers. There are a couple of things I do want to point out. Since Monday I have received 19 e-mails, basically all of them uniformly in opposition to the project. They are -- I have them available in case the Planning Commission would like to review them. They will be part of the package that's going to be forwarded to the Board of County Commissioners. Which is a good segue to the September 21 st Board of County Commissioners hearing. The contemplation with how we deal with a Page 45 March 17, 2005 PUD amendment in the nature of can it be limited to one specific component of the PUD was contemplated. It was contemplated in pretty great detail by staff and by the Board of County Commissioners. Ultimately the Board of County Commissioners directed staff to process this as a limited amendment to the PUD to specifically only address the Bald Eagle Management Plan. So kind of hitting on their earlier point as to what we can and cannot speak about or what issues are relevant to this petition, we were specifically directed by the Board of County Commissioners that this was going to be for the limited purpose of amending the Bald Eagle Management Plan. The next point would be to Commissioner Strain's question, what are we amending in the PUD document? The PUD document is being amended starting with Exhibit B, which is the Cocohatchee Bay PUD master plan with the eagle zoned overlay and the subsequent following Bald Eagle Management Plan within the staff report. It was labeled proposed -- COMMISSIONER STRAIN: Mike, I have it, to save you the trouble. I think what I was getting at and now I understand from further testimony after I had asked the question, that basically the amended -- the text changes are to that portion of the PUD that was called the Bald Eagle Management Plan. There are no other text changes other than what's in there. MR. BOSI: Correct. COMMISSIONER STRAIN: Thank you. MR. BOSI: Another point I guess Commissioner Abernathy, you were questioning the existing Bald Eagle Management Plan and what can be done within the primary zone. Currently the existing Bald Eagle Management Plan prohibits any sort of development in the master plan -- or in the primary protection zone. The next point would be how staff -- the environmental staff and Page 46 March 17, 2005 staff in general reviewed this petition, how we arrived upon recommendation of approval. Within the PUD master plan, there is specific -- or within the PUD, there is contemplation of amendment to the Bald Eagle Management Plan contained within section -- environmental Section 6.9(F) where they talk about any amendments to the Bald Eagle Management Plan has to go before the EAC. Within the actual Bald Eagle Management Plan, the existing, it contemplates changes to it in the event of management practices changing. Based upon the regulations and the groundwork that this PUD document sets forth, it clearly states that you can amend the Bald Eagle Management Plan. Then staff relied upon the guidance of the Growth Management Plan and the Land Development Code. And that's sections -- or at least the Land Development Code section which mirrors the Growth Management Plan is contained on Page 8 of the staff report where it basically says we defer to the state and federal permitting agencies in regards to endangered species. Staff does not and did not attempt and will not attempt to contemplate what was the intent and what -- of the Board of County Commissioners when they granted approval. All we could contemplate was the regulations that were before us, and based upon that, we arrived upon a recommendation of approval. One other thing that I did not contain in my staff report and I do need to place, and it's an additional modification to the recommendation of approval. The environmental staff wanted one change to the Bald Eagle Management Plan, and that's in Section E of the Bald Eagle Management Plan. And the change states that should the current eagle pair or a second eagle pair build a new nest within the PUD boundary, an amendment to this Bald Eagle Management Plan shall be required. Page 47 March 17, 2005 Currently the Bald Eagle Management Plan states that in the event that that would happen, the Bald Eagle Management Plan would not be required to be amendment. And the environmental staff and staff in general are supporting this amendment that we believe that we would need to amend the Bald Eagle Management Plan if there's changing conditions, based upon those two circumstances. MS. STUDENT: And Mr. Chair? CHAIRMAN BUDD: Yes, ma'am, Ms. Student. MS. STUDENT: I just wanted to add a couple of things about Exhibit B as attached. It's not entirely clear, at least in the document I have, I think it was cleared up on the record but not in the text, about when Buildings 2 and 3, which nesting season they were to be started -- or excuse me, non-nesting season they were to be started in. And also, it seems to talk about you do this in this nesting season and then the next one and then the next one, and if that could just be clarified, perhaps, maybe even in a tabular form, you know, nesting season one, or non-nesting season one, non-nesting season two, so it's clear what's done in each one of those non-nesting seasons, I think that would be helpful. Because the way the document's worded, you know, it says the next one and so forth. And I think that would be beneficial to every -- all concerned. That's the only point I wanted to say. CHAIRMAN BUDD: All right. Thank you. Mr. Bosi? MR. BOSI: That concluded my points. I would open myself up to questions to the commissioners. CHAIRMAN BUDD: Mr. Adelstein? COMMISSIONER ADELSTEIN: I want to understand this, and I want you to be absolutely technical on it. Are you saying to us that the County Commissioners will not let us attempt to open this PUD? MR. BOSI: That was the specific instruction that was provided on September 21 st, 2004 by the Board of County Commissioners Page 48 March 17, 2005 when they directed staff to process this as a limited amendment only to process changes to the Bald Eagle Management Plan. COMMISSIONER ADELSTEIN: Under those circumstances, is there any way I can possibly make an amendment to it, or do I have to leave it alone? I'm asking the legal department now. MS. STUDENT: Thank you. I want to read the motion. I have the record here of the proceedings. Chairman Henning: I'm going to make a motion that we direct staff to bring it back, that being the management plan, Mr. Schmitt's recommendation to amend the habitat management plan in Exhibit B of our packet. And then Commissioner Fiala asked the question: For the LDC? I'm not sure why she would ask that. But he reiterated: No, for this item that we're discussing today. And make sure it goes through the EAC and the Planning Commission before it comes to the Board of County Commissioners. Then Chairman Fiala said: Okay, would you restate your motion one more time, please. Commissioner Henning: Direct staff to bring it back to the Board of Commissioners through the EAC and the Planning Commission to amend the eagle management plan. That's what the motion -- and it was voted on and the vote was 4-1 in favor. So what you have is a specific motion to amend the eagle management plan, and it's certainly arguable that if this were to go to a court of law, the court could conclude that the Board of County Commissioners could have limited the authority of the Planning Commission to look at that item, based on this motion. That's I think a strong argument. COMMISSIONER ADELSTEIN: Would it possibly mean if we're trying to do this amendment and that possibly the moving of the buildings that are there on that plot would make that possible to us, Page 49 March 17, 2005 now could we still make this amendment? MS. STUDENT: I don't believe that the PUD really -- you know, the master plan is conceptual. And you have an alternative master plan that shows, as I recall, the designation being the R-2 areas. But the actual location is dictated, you know, at the time of site development plan. So I don't believe the PUD really addresses the location of the buildings as it's presently written. MR. SCHMITT: Marjorie, if I could -- I want to go back to a time when we presented this. This was presented during a period when we were going back to what we call the PUDA or PUD amendment process. We were going PUD to PUD, which meant we were basically -- Margie, is the word revoking or basically -- MS. STUDENT: It was adopting really an entirely new -- MR. SCHMITT: New zoning. MS. STUDENT: -- PUD document. MR. SCHMITT: We had advice from outside counsel that that was wrought with some legal pitfalls. We came back to the Board of County Commissioners, asked the board on this and other occasions to go to what we call the PUD -- back to the PUD process, which simply is strike through and underline. You saw one here just recently, it was the Arrowhead proj ect. All it was was going through and making minor modifications. When we presented this issue to the board, we wanted clarification from the board in regards to how to deal with this as a PUD amendment. What Ms. Student read was in fact that yes, we would deal strictly with the amending of the Bald Eagle Management Plan because that was the piece that needed to be amended in regards to the dealings with the language associated with the permit from the U.S. Anny Corps of Engineers. The zoning is in place, the zoning that exists, and as defined. The applicant has already undergone and is undergoing right now and in compliance with that zoning SDP approval processes. In fact, there Page 50 "_u..,,..._ March 17, 2005 are three SDP's in-house going through review. If this body wants to make some kind of a recommendation in regards to the existing zoning in the PUD as to location or other activity, it's certainly, I would argue -- I would look to the county attorney. I mean, you can do so. Your job is to do -- make a recommendation to the board. But I've got to tell you what, the board will probably not consider it, because it's somewhat moot in what they already decided to do. So I guess I'm not saying to you -- and maybe the county attorney can answer -- are you limited? This document came to you under a limited scope, which is strictly the Bald Eagle Management Plan. If you want to go beyond that, I'm going to look to the county attorney as to whether you can. But then again I would say will the Board of County Commissioners even consider it? Most likely not. COMMISSIONER ADELSTEIN: I would like to say then for the record that I am opposed to that restriction, and that I think that it has the right to be looked at on its merits. However, under these circumstances and the way it was sent to us, I will live with what we've got. CHAIRMAN BUDD: Mr. Strain, you had a question? COMMISSIONER STRAIN: First of all, Joe, thank you, that explanation does clarify my original questions of Richard, so now I understand now why we're here today. I appreciate that. Michael, there's one sentence in the fourth paragraph of Page 3 of your report that I wanted to ask you how you -- I mean, I think I know but I'd like to hear it for the record -- how you came to your conclusion. The last sentence of paragraph four says, on Page 3, Exhibit A is applicable only when the Bald Eagle nesting tree is deemed no longer active. Now, could you just tell me how you came to that conclusion? MR. BOSI: The Exhibit A is the master plan. It's the master Page 51 March 17, 2005 plan without an eagle issue -- without the eagle issue present. This is how this development would go forward if there was no eagle present on-site. That's how I arrived at that statement. COMMISSIONER STRAIN: Because the reason you believed that it meant that no eagle would go -- you couldn't go until there was no eagle present on-site is because that's the context of what the Bald Eagle Management Plan portrayed? MR. BOSI: The -- exactly. The next exhibit, Exhibit B, indicates that with the presence of an eagle, the development cannot go forward unimpeded. COMMISSIONER STRAIN: Thank you. That's what I was trying to understand. Thank you. CHAIRMAN BUDD: Ms. Caron? COMMISSIONER CARON: What does a 35-foot slip marina have to do with the Bald Eagle Management Plan? MR. BOSI: I believe when they originally may have contemplated their federal permitting, that a marina use was a use that was included. COMMISSIONER CARON: But why is it in the Bald Eagle Management Plan? Why isn't it in a marina management plan? MR. BOSI: I would probably have to defer to the applicant upon that. CHAIRMAN BUDD: Mr. Schiffer? COMMISSIONER SCHIFFER: That was my question. CHAIRMAN BUDD: Any other questions of staff? (No response.) CHAIRMAN BUDD: We've concluded the staff presentation. COMMISSIONER ABERNATHY: Well, let me ask one. CHAIRMAN BUDD: Yes, sir. COMMISSIONER ABERNATHY: Now that they're all here. If we can't do anything with the PUD, Marjorie, could we include a provision in the Bald Eagle Management Plan that said no tower Page 52 March 17, 2005 would be built within 750 feet of the active nest? COMMISSIONER ADELSTEIN: Why not? MS. STUDENT: Gentlemen, I'm going to -- this issue has -- I was just made aware of it this morning, minutes before this meeting started, and it's very difficult for me and my office to try to shoot from the hip on something like this without being alerted in advance as to this issue. COMMISSIONER ABERNATHY: Well, we wouldn't be taken out and shot if we did that, so we could do it, for whatever it's worth. MS. STUDENT: I think I would have to ask, really, to get an opinion from Mr. Lorenz or one of the environmental folks as to the propriety of including such a thing. I am not an expert on eagle management plans. Attorneys give opinions. And a court will not consider attorney testimony, because it's not -- we're not an expert in the area. So I would have to probably defer to Mr. Lorenz from the environmental department so see if such a thing were appropriate in light of the recommendations of the agency and so forth, as appended to this. COMMISSIONER ABERNATHY: Well, a primary zone is an environmental issue, I think. MS. STUDENT: Yes. And that's why I want to defer to Mr. Lorenz, to see if -- as to the propriety of -- CHAIRMAN BUDD: Mr. Lorenz? MR. LORENZO: Yes, for the record, Bill Lorenz, environmental services director. The issue, quite frankly, is the Growth Management Plan policy that says that the county will utilize the technical assistance and recommendations from the state agencies. The technical recommendations and assistance from the various agencies is stated within the biological opinion, which is basically the basis of the Bald Eagle Management Plan. So to that degree, we are accepting those recommendations from the agencies that essentially negates the Page 53 '-'--"'"" March 17, 2005 typical Bald Eagle guidelines that we have referenced in our Growth Management Plan. The Growth Management Plan policy, 7.1.2(3), which is of the -- the policy addresses this issue, is -- allows for the county to apply the guidelines for a variety of listed species that we have adopted, such as the 1987 Bald Eagle management guidelines, as, if you will, our default position. When we have a technical assistance recommendations from the agencies, however, those recommendations will essentially negate those guidelines or customize those guidelines, however the agency recommendations are stated. In the Bald Eagle Management Plan that's in front of you, it's based upon the recommendations from the Federal-- from the U.S. Fish & Wildlife Service biological opinion, and that's what's structured within this PUD amendment. Therefore, from an environmental services staff, we are utilizing those recommendations as the Bald Eagle Management Plan. CHAIRMAN BUDD: Any fu~her questions of the staff presentation? Yes, Mr. Bosi? MR. BOSI: Mr. Schmitt had pointed out one clarification that I do believe I need to make. And the amended Bald Eagle Management Plan under the title, Exhibit B, they reference the Army Corp. of Engineers. It's the U.S. Army Corps of Engineers. And the acronym that they used, ACOE is actually the USACE. And I wanted to make those modifications. CHAIRMAN BUDD: Thank you. Before we move on into the public testimony, I'd like to hear from petitioner, comments relative to the staff presentation. MR. YOV ANOVICH: Yes, and they're very brief. The comment that Mike brought up about amending the Bald Eagle Management Plan, if you look at the language that we have included in the ordinance, there's no question that if there is a -- the eagles move or they leave, go to another location or another pair Page 54 -----.-.'-......".- March 17, 2005 comes to the property, that the Bald Eagle Management Plan has to be amended. Our language says that. What is says is that it would be done administratively to be consistent with the permits issued. So we don't need to go through this process again, since the board has already delegated to the state and federal agencies that we'll utilize their recommendation. So when a new paper shows up, whatever their recommendations are, are binding on us. And there was no need to go through this process again. And we thought that the management plan could be changed administratively to be consistent with the permit. So we would -- for our language, rather than go through this process again. And that was the only comment. CHAIRMAN BUDD: Mr. Strain? COMMISSIONER STRAIN: Richard, you mentioned that the Bald Eagle Management Plan addresses what would happen if the eagle left. How does it address what would happen if the eagle did not leave? MR. YOV ANOVICH: Ifhe doesn't leave? COMMISSIONER STRAIN: Right. MR. YO V ANOVICH: Great. He stays. It's wonderful. That's the ultimate result is that the eagle doesn't leave. We love the eagles. COMMISSIONER STRAIN: No, no, no. The way the Bald Eagle Management Plan is written now, if the eagle doesn't leave, you don't build close to the nest. MR. YOV ANOVICH: Not the new plan. COMMISSIONER STRAIN: The plan that's in effect today. MR. YOV ANOVICH: No, no, the plan in front of you that we are proposing, we are amending the plan to go forward with the construction schedule approved by the Corps of Engineers and U.S. Fish & Wildlife. That's what we're requesting. COMMISSIONER STRAIN: I know you are. But the plan that's in effect today -- MR. YOV ANOVICH: Correct. Page 55 March 17,2005 COMMISSIONER STRAIN: -- never anticipated the eagle leaving. Never anticipated what you would do if the eagle left. It only anticipated what you were going to do while the eagle was there. Is that -- that's all I'm trying to ask. MR. YOV ANOVICH: At that stage and plan, it addressed the construction of a golf course. COMMISSIONER STRAIN: That's what I'm getting at. Thank you. CHAIRMAN BUDD: Mr. Vigliotti. MR. SCHMITT: But I just need to add, because staffs understand -- and I want to ask Mr. Strain, because there are two master plans in the current eagle management plan. The existing one, not the amended one. One master plan indicating if the eagle stays and the other was the master plan that would be implemented if and when the eagle left. So there was -- there are two master plans. COMMISSIONER STRAIN: Right, but there was no Bald Eagle Management Plan based on the eagle leaving. The only Bald Eagle Management Plan was based on the eagle -- MR. SCHMITT: I would have to ask staff or Bill, but if the eagle left, certainly there would be a certain requirement, as was explained to Ms. Caron, but-- MR. YOV ANOVICH: Let me just read into the record what it says. Section 4.3 of the existing management plan says, the current site plan, which I'm assuming we're talking about as Exhibit B, calls for development of a golf course only with an option to conduct future residential construction, should the site conditions or management techniques change to allow it. That's where we are. Management techniques have changed to allow it. We've been through the process with the Corps. So it did contemplate that there could be future residential development. CHAIRMAN BUDD: Mr. Vigliotti? COMMISSIONER VIGLIOTTI: I have a question, Rich, Page 56 0____·_ March 17, 2005 regarding the marina. MR. YOV ANOVICH: And that is not part of -- let's clarify that. That was part of our Corps permit. We still have to go through our process to get our docks. We don't -- we're not asking for docks as part of this eagle management plan. That was the description of our project to the Corps. And that's how that is being reflected in the Bald Eagle Management Plan. COMMISSIONER CARON: It's in the Bald Eagle Management Plan. MR. YOV ANOVICH: Correct. And that's in the description of what went into the Corps. COMMISSIONER STRAIN: But the eagle management -- MR. YOV ANOVICH: If you need to clarify that you're not authorizing the construction of the docks today, we understand that and we're happy to make that clarification, if that is something that's important to the Planning Commission and finds its way into the motion. COMMISSIONER ABERNATHY: I say, it better find its way into something. CHAIRMAN BUDD: Okay, any other questions of the staff presentation or the petitioner's presentation? (No response.) CHAIRMAN BUDD: Before we move into the public speakers, Ms. Student, I've got a question for you. You had a recent handout, an interoffice memorandum. And in the process of trying to do my job and play traffic cop to these proceedings, I haven't read one word of it. Could you recap this for me, please? MS. STUDENT: Yeah. It basically, you know, talks about this issue of things that were said on the record about the eagle and, you know, if it left and where -- and so on. And so my conclusion basically was that that found its way into the existing PUD and the eagle management plan that says basically you can go forward with Page 57 March 17, 2005 the golf course but you can't do anything else unless the site condition or management techniques have changed. And you have the two master plans, the one with the Bald Eagle Management Plan and then I think the other one, Exhibit A, is called the future conditions, contemplating that the eagle would leave. And I talked about how in the habitat management plan and in the way the three hearings went, based on my analysis of it, it looked like everybody thought the eagles' departure was imminent and that we're not going to do anything until it goes. And even there's some testimony I think at the EAC by a Mr. Hall who was the environmental consultant at the time, thinking that the eagle was going to relocate soon. And again, it's also in the Bald Eagle Management Plan, in the introductory. So basically it's saying all of that found its way into the PUD document that exists today. But four years and a few months have elapsed since it was approved, and what folks thought would happen, the eagle imminent relocation didn't happen. At none of these hearings was it ever discussed what would happen if the eagle would not relocate and if it stayed where it presently is. That wasn't discussed by anybody. So our conclusion is that the existing PUD document reflects what happened in the record, and now because it didn't leave, as everyone thought it might, and the time, there's been a period of time that elapsed, they've come back in to amend the Bald Eagle Management Plan to do something else, and that those amendments -- or the amendment will be processed consistent with the requirements, you know, the LDC and the criteria therein. That's basically what I said. CHAIRMAN BUDD: Okay. MS. STUDENT: And I'm going to -- I wrote this at a distance, out of the office on a family emergency, so I'm getting it from Mr. Pettit's nod. But I worked very closely with Mr. Pettit and Mr. Weigel Page 58 March 17, 2005 on this, and I will let the record reflect that he's nodding, if that -- if my summary is a correct -- and let the record reflect that Mr. Pettit is nodding his accord that what I've stated is -- CHAIRMAN BUDD: Okay, thank you. Well, with that, we're at the point of hearing our registered public speakers. I believe we have over a dozen speakers. I would remind individuals that they're limited to five minutes of testimony. If you're representing an association or group, you can have up to 10 minutes. The Chair has a history of being flexible in allowing people a little bit more time, if the speakers exercise due care and not be redundant. But if you're introducing a fresh and new perspective, we're very interested in hearing that. Mr. Bellows? MR. BELLOWS: First speaker is Lora Jean Young, followed by Chris Straton. MS. YOUNG: I am Lora Jean Young, 752 Eagle Creek Road, in Naples, here to urge consistency and integrity in our planning process. As a former member of this county Planning Commission who was here when this matter was approved, I can attest to our careful and detailed questioning of the developer's representatives regarding the need to preserve the eagle habitat. I remember clearly Karen Bishop's word, her commitment on behalf of the developer, that they would not develop the property as long as the eagles were there in their nest. And I can assure you that if we had not had that commitment, which I considered binding, that I would have voted against this project. So members of the board, to preserve our public trust in the process, please do the same and vote against it. CHAIRMAN BUDD: Thank you, ma'am. Next speaker, please? MS. STRATON: Thank you. My name is Chris Straton, I'm Page 59 .,"""---..-..--..- March 17, 2005 representing the League of W omen Voters of Collier County. I serve as the chair of their government committee. The mission of the League of Women Voters is to promote political responsibility through informed and active participation of all citizens in their government. It takes action after in-depth study on government issues and policies in the public interest. And we are here today in the public interest. First of all, I have for you all copies of our most recent voters guide. I'll distribute that. And secondly, I have a letter here that was written to Chairman Budd from Sheila Crowley, who's the president of the League of Women Voters, and I'll pass that on. But for purposes of the audience, let me briefly read the letter. The League of Women Voters of Collier County request that you deny the request to amend Cocohatchee Bay PUD for the limited purpose of amending the Bald Eagle Management Plan. While we are sympathetic to the Bald Eagle s, the issue before you is one of faith in the public process. It is imperative that statements made by the applicant's representative and county staff when the PUD was first approved in 2000, which became part of the public record, be adhered to by the applicant. If applicants are allowed to agree to one thing as part of the initial approval process and then permitted to change those agreements at a later date, the integrity of the planning process in Collier County is diminished. Additionally, the public should not be placed in the position of having to constantly monitor PUD's for something called take-backs. The League of Women Voters has a long tradition of promoting an open governmental system that is representative, accountable and responsible. We ask you to ensure that the PUD process continues to be accountable to the people of Collier County, and that you deny the applicant's request. Sincerely, Sheila Crowley, president, League of Women Voters of Collier County. Page 60 -~"~"._'<"'~-"'" March 17, 2005 Today's meeting has been very enlightening to me. The League in the past has had something called observer corps, where members of the league would sit in on various meetings, taking notes based on what the discussion was during the public meeting. Based on what Mr. Y ovanovich was suggesting, if I understood him properly, if the public observes a meeting and there are oral promises made and statements are made and questions are presented by the Planning Commission or other commissioners, and that is not put in writing, then it has no legal basis. My concern is that we have a process where the public may be led to believe that decisions are being made on the basis of information shared with the public in the sunshine but that for the public to really know and monitor and to ensure that actions are being consistent, we now need to review all PUD documents and make sure that information shared in a public meeting is also put in writing. And I find that that is -- excuse me, for some reason I'm nervous and I'm losing my sweat. Please don't put that that in the public record. Let me assure you, reading the minutes, you know, there's some very awful things that people end up having in there. But the concern is that the public can be led to believe that decisions are made on one set of information and then failure to get that into the written document, you know, allows the petitioner at a later date to say it's not in writing, therefore, we didn't agree to it. CHAIRMAN BUDD: Okay, thank you, ma'am. Ray, our next speaker, and who's on deck? MR. BOSI: Next speaker is Dwight Richardson, followed by "JA" Rautio. CHAIRMAN BUDD: Thank you, Mr. Bosi. MR. RICHARDSON: Good morning. My name's Dwight Richardson. I live in Naples Park, 725 101st Avenue North. Chairman Budd, lady and gentlemen of the Planning Commission, it's a pleasure to be in front of you at this time. Page 61 March 17, 2005 I want to speak to you on some first person terms. The applicant came forward some years ago with this plan for The Dunes and he held a public information meeting at St. John, which I attended, along with many other interested parties. And at that time, in response to questions from the audience and interested observers, the applicant and his representatives did say, in response to concerns about the eagle -- which I find out has a name now, 019, I didn't know that was the case -- that that eagle would in fact be permitted to stay. In fact, that became a rather central point to the discussion that night. And there was concern about heights and distances and that sort of thing, but it certainly was important. Now, that commitment, if you will, made publicly, then carried forward to the public hearings in front of the county Planning Commission and then subsequently to the Board of County Commissioners. And I was -- I'm heartened today to really understand it a little better as to what we decided at that time and its importance. I'm heartened that there really is a nexus between the commitment that was made at St. John's at public information meeting through to the meetings we had, the information we had in front of us at the Board of County Commissioners and the Planning Commission, and that is that an eagle management plan was in fact put together that did just what he committed to do, that is, to protect that eagle and not allow any building, whether it be in the 750-foot zone or otherwise, to occur until or unless that eagle voluntarily chose to leave. That information got documented, was memorialized in the eagle management plan, and as we've heard today from rulings from the attorney, that in fact is part of the PUD by its inclusion as the exhibit. So I don't think there's any question about the facts. A commitment was made, it was memorialized in the eagle management plan, and the eagle management plan, as part of the PUD, and now the applicant is back saying King's X, I really didn't mean that, I didn't Page 62 March 17, 2005 think the eagle was going to be there that long. And I suppose in truth many of us thought that tree would fall down, too. But the facts are, the eagle management plan contemplates not building in the primary zone as long as that eagle is there. You have the opportunity to modify that, based on the applicant coming forward and saying well, let's change that plan. That's something he can ask for. But he doesn't have an entitlement to have that change that he's trying to suggest that he does. So I would ask that you follow through on this nexus that I've described, keep the eagle management plan that we have in place intact and, therefore, not modify this at this time. Thank you. CHAIRMAN BUDD: Thank you, Mr. Richardson. Mr. Strain, you had a question? COMMISSIONER STRAIN: Yeah. Dwight, were you sworn in? MR. RICHARDSON: Yes. COMMISSIONER STRAIN: Okay. And under oath, you've testified that there was a public meeting -- MR. RICHARDSON: Yes. COMMISSIONER STRAIN: -- an informational meeting and commitments were made at that meeting? MR. RICHARDSON: Absolutely. COMMISSIONER STRAIN: Okay. And they were brought forward. MR. RICHARDSON: And I frankly don't think there's any debate about those facts from the developer himself. They made those commitments. They're trying now I think to make a rather disingenuous argument that there was a commitment but since it in their view wasn't in the PUD, it doesn't hold water. But now that we've demonstrated that it is in the PUD, I don't think you can back out of it. COMMISSIONER STRAIN: Thank you. Page 63 .---,~ March 17, 2005 CHAIRMAN BUDD: Thank you, sir. Next speaker, and who's up following Ms. Rautio? MR. BOSI: Following Ms. Rautio is Nicole Ryan. MS. RAUTIO: Good morning. My name is Joyceanna "JA" Rautio. I live at 10261 Windsor Way, and that's in North Naples. I'm here for probably three reasons. An eagle's nest, promises and process. I'm a former Planning Commissioner from District 2 where this eagle, Mr. and Mrs. Eagle, do live. They've never moved out of my district. And I believe that we were there to protect when this came to us in November of2000. I'm not really sure what happened, but of course I listened very carefully to all of the presentations that were made. And I was told that nothing would be done until Mr. and Mrs. Eagle did depart. Now, of course that brings us to promises and the process. There's an issue of integrity here. I'm a former commissioner who relied on a promise, I relied on representations made at public meetings, and now I'm the public, so I still have that right to rely upon those representations. And I'm beginning to wonder if perhaps the promises were made just to get approval of the process and they'd come back later and say okay, we're going to do something different, which is what this Bald Eagle Management Plan is actually doing, it's something different. They said very clearly that the tree was dead and the eagle would take off. That was important. But how long does a dead tree live? It's been, you know, over four years now that we still have this tree and this lovely eagle who apparently likes that particular tree itself, whatever is so attractive to it. I'm concerned too that -- I reviewed the record. I reviewed what I said. Because I did remember asking very clearly and making it part of the public record, well, is this a stipulation, i.e., is this eagle -- I mean, are you going to actually say to us you're not going to build if Page 64 March 17,2005 this eagle doesn't leave? So I kind of thought, well, it's not a stipulation, so I got that clarified on the record. And I also asked a location question, where are you going to build the golf course, that type of thing, and that was clarified for me. So I felt that I had done my duty as a Planning Commissioner to clarify what this petitioner was asking about and what they were promising. So I feel very comfortable that it became part of the Bald Eagle Management Plan and it became part of the PUD. So now where are we? When you try to figure out what a law means, there's three things you can do: First you can read it, good luck in some cases; the second is you check your court cases to see what happens; and the third thing is you look for legislative intent or legislative history. And I'm standing here as a person who says I relied upon what was presented to me and I'm legislative history. Although Mr. Y ovanovich would probably say I shouldn't be up here speaking, but I am. And I feel very confident that what we did was correct and that I made every effort to understand what the petitioner was asking us. Because I still do wonder why they made those promises. But I'm beginning to think it was because we can come back later and change the process. And that effects -- even though they have the right to do that, but I believe there's a real connection here. And I just want to say that if I were on your side today, I'd have a little trouble, because there is a criteria issue about the Land Development Code and the Growth Management Plan. But you know what? I believe that you should go ahead and deny the approval of this. Keep the plan the way it is. If that's not possible, can you make some compromises? Can you craft something that makes sense about this Bald Eagle and the protection of it, rather than the taking of it? I sort of heard that it's possible that you're just going to have to accept it because our Land Development Code indicates that you are going to look at other agencies and other information provided to you. Page 65 ".---,." March 17, 2005 But if I were sitting on your side, I'd listen to the rest of the public comment, and as a public person right now, I would suggest that you deny this change to the Bald Eagle Management Plan. Thank you. CHAIRMAN BUDD: Thank you. Next speaker and following that? MR. BOSI: Nicole Ryan, followed by Joe Moreland. MS. RYAN: Good morning. For the record, Nicole Ryan here on behalf of the Conservancy of Southwest Florida. The Conservancy asks that you deny this PUD amendment. The issue today is not primarily about Bald Eagle s and it isn't about Collier County's role in protecting listed species and Bald Eagle s. The issue today is about promises and assurances made and whether those promises and assurances that are made are going to be kept. It's about public trust and it's about the integrity of the planning process in Collier County. Were assurances given on record specifically that stated no high- rises until the eagles left? Yes, there were. I'm not going to read all those instances, because they were numerous and it would take quite a while to read every one of them into the record, and I'm sure you've already read those. Where those assurances made by and agent representing the developer, and did she at that time say that she was here representing the developer? Yes, I don't believe anyone is arguing that. Did the developer stand up and clarify for the record that they had no intention of waiting until the eagles left? Well, that's something that you need to look at when you read those transcripts. And we don't believe that that clarification was really made very well. And hopefully you have reviewed both the BCC and the Planning Commission minutes from 2000. And just as an example of that, I want to refer to the November 16th, 2000 Planning Commission meeting. Because I think this is a very telling example. Presentation was given and the developer's Page 66 "'-'~-"-"-' , --".,-~~-...~"--- March 17, 2005 agent stated numerous times, no high-rises until the eagles left. There was a woman from Arbor Trace during public comment that stood up and was concerned about the developers truly waiting until the eagles left. So at the end of public comment then Planning Commissioner Rautio specifically asked the petitioner's agent to stand up and again clarify for the record. At that point Karen Bishop stood up and talked about the eagle in some detail and she ended with the statement, quote, we would not be able to build any building, you know, within those -- anything above two stories in a secondary zone, nothing in his primary zone, end quote. And then Commissioner Rautio said, okay, I just wanted that on the record for sure. Shortly thereafter a vote was taken and it was to recommend approval of the PUD. At no time after Ms. Bishop's clarification was made did the developer stand up and state that perhaps her statement did not truly represent the developer's intentions. So statements were made on the record. What does that mean? Well, the Conservancy believes it should mean that advisory bodies and the Board of County Commissioners and the public should be able to feel confident in what they're being told. Today everyone who spoke was sworn in. Why bother having people swear to tell the truth, the whole truth and nothing but the truth if you can't rely on those words that are being said, especially by people that are here asking for approval for something. Beyond that, there is the connection between what is stated on record and agreements that have been made and referenced in the PUD itself. For example, in Section 2.2 of the PUD it states, all conditions imposed and all graphic materials presented depicting restrictions for the development of the Cocohatchee Bay PUD shall become part of the regulations which govern the manner in which the PUD site may be developed. Well, the conditions that were imposed include the promises Page 67 <,._._.~._-- March 17, 2005 made, and they also include those two master plans; one where the eagles are there and there are no high-rises, and you can only get to that second one after the eagles have left and the high-rises are then allowed. In addition, in PUD Section 6.2, it states, the developer, his successor or assignee shall follow the master plan and the regulations of the PUD as adopted and any other conditions or modifications as may be agreed to in the rezoning of the property. The Conservancy believes that the clearly stated and often repeated eagle promises constitutes such an agreement and are therefore a basis for denial of this PUD amendment. So you have the statements on the record, you have the connection to the PUD. There's also a connection to the Land Development Code. LDC Section 10.3.5.J contains restrictions, stipulations and safeguards. It states, in cases where stipulations, restrictions or safeguards are attached, all representations of the owner or his agent at public hearing shall be deemed contractual and may be enforced by suit for injunction or other appropriate relief. We believe that this says if you make a promise on record, then you should keep it. And notice, it states all representations of the owner or his agent. Or his agent, that's important. Because the agent made these commitments over and over again. In addition, in the BCC transcripts, Commissioner Mac'Kie, in her December, 2000 motion to approve the Cocohatchee Bay PUD, included all staff recommendations. In the staff EAC recommendations from December of 2000, it states remove the residential high-rise tract designation on the parcel where there is currently an active Bald Eagle nest. As a requirement of the Bald Eagle Management Plan, there shall be protective covenants placed over the primary zone of the eagles' nest and restrictive covenants placed over the secondary zone of the eagles' nest. So this was part of the motion and part of the approval. Page 68 ".~'-~ ._..~.-- March 17, 2005 Now, this isn't to say that a petitioner can't come forward and ask to have an amendment to their PUD. They certainly can. However, we believe that promises made, the connection to the PUD and the authority in the LDC give you ample reason to recommend denial. Beyond that it's an issue of public trust. I think the Planning Commission transcripts, which I referenced, where assurances were made, someone from the public was concerned about it and so occurrences were again given and a vote taken, that's very telling. The proposed amendment before you reverses an explicit agreement made by the applicant. Our concern is that if the developer is able to modify the eagle management plan, a precedent will be set that will impair public trust in county government. As a matter of policy, it would do great harm to the PUD process, which is always characterized by negotiations throughout, if PUD's were approved upon good faith negotiations but then amended in the future to eliminate those commitments made. So I'd also like to point out, denial of the eagle management plan doesn't mean that the property can't be used. There's the golf course, there's also some housing that was planned closer to 41 which the developer could begin. And that comes along with that affordable housing component which Commissioner Coletta was so interested in at the BCC meeting. So it doesn't take away the use of the land. And also, some parts of this proposed eagle management plan are a bit disturbing. The mention of the 35-foot slip marina, I'm not quite sure why that's in there, and I don't understand if the number of 35 slips -- I know that that's in the Corps of Engineers permit application, but has Collier County addressed that they do indeed have the ability to have 35 slips? And if this is put into the eagle management plan, does that some entitle the 35 slips? I just don't believe it's appropriate to have a marina reference in the eagle management plan. So maybe staff could clarify that. Also, there is a brief mention of gopher tortoises in the staff Page 69 .~--"" March 17, 2005 report and the fact that there are tortoises that are in these eagle zones and something will have to be done with them, and I'm wondering what that something is. The developer also was supposed to relocate all tortoises to an on-site preserve, and so with the relocation of these tortoises in the eagle zone, is the tortoise preserve site of sufficient size and food and so how that works. Also, there were statements made that the guidelines have officially been amended for the eagles' zones, and I don't believe that the guidelines have been officially amended. There was a memo that came out of the North Florida Fish & Wildlife Service office, and it talked about single-family homes, not necessarily large developments, and it also stated, I believe, that it still was recommended not to build in the primary zone. I don't have that memo in front of me, but I'm sure that staff has that, so maybe they can discuss it. So just to conclude before I get a third buzzer, the Conservancy asks that you recommend denial of this eagle management plan. We believe that this is about the integrity and accountability of the planning process in Collier County. Thank you. CHAIRMAN BUDD: Thank you. And just to point out for future speakers, there was leeway given to this speaker in the context that it was a non-redundant focused presentation, which we appreciate very much. Next speaker followed by whom, Mr. Bosi? MR. BOSI: Joe Moreland, followed by Richard Ryder. CHAIRMAN BUDD: Thank you. Yes, sir? MR. MORELAND: Thank you. I've said once before when I was in law school, my professor once complimented my bombastic redundancy being the epitome of my servitorial elegance. Recognizing that, my name is Joe Moreland and I am the president of the Estuary Conservation Association. And I would keep my comments -- I'm happy to turn my time back for the very excellent Page 70 March 17, 2005 presentations of both the League of Women Voters and the Conservancy put forth. I am proud for our organization to let it go for the most part as simply saying we totally subscribe and support and adopt as if we had presented that ourselves. I think it's clear that the moral compass of the community is pointing very steadily to the correct course of action by our govemmentalleadership. And that would be to deny this petition. The eagle is there. Beyond most jury's question of reasonable doubt, the commitment was made that that eagle would -- no construction would be taken to jeopardize that eagle until it left. And I think without going into it, we can also, if we were pushed to it, show where in the original plan indeed it can and should be construed to have clearly made that promise through the context of legal construction. I'll leave that alone. I want to go back, though, to the question that Nicole raised about the unanswered question of the propriety of the slips being included in this as part of the marina. While it may well be beyond your concern at this time, I think it's important to put on the record right now is that we do -- the ECA has a concern with that, at least from the standpoint of its being as designed within the permit they submitted, as constituting a hazard to navigation, given the boat traffic and other slips located in that arrangement. Gentlemen, thank you very much. Appreciate it. CHAIRMAN BUDD: Thank you. Next speaker, please, followed by? MR. BOSI: Richard Ryder, followed by Dianne Shanley. MR. RYDER: Thank you. Richard Ryder, MD, Cove Towers, North Naples. I'll be very brief. I'd like to second the comments that Nicole Ryan just made. During Signature's attempts and justification to break promises made in 2000 to the county and the citizens of the county, I've seen very Page 71 "-., March 17, 2005 little presented regarding the architectural appearance of the five proposed buildings north of the marina property. I can only assume that they would look like The Dunes. In my opinion, a huge concrete wall. Please do not set a precedent for this and other developers to break previous agreements. For the greater public good, and in the future, please consider a moratorium until serious initiatives are made for mass transit in Collier County. Thank you. CHAIRMAN BUDD: Thank you, sir. Next speaker, Mr. Bosi? MR. BOSI: Dianne Shanley, followed by Mimi Wolok. MS. SHANLEY: Good morning, Commissioners. My name is Dianne Shanley. I live at and represent Colliers Reserve, a community of approximately 220 single-family homes in the northwest section of Collier County. And while I will reiterate a few things that other people have said, since I have been asked to speak on behalf of the directors of our homeowners association, I would like to make them. Our community, which contains Audubon International's first Signature sanctuary golf course is based on living in concert with nature. The eagles that would be affected by your granting of the developer's request for amendment to their Bald Eagle Management Plan are possibly those that are viewed often roosting on our property by residents and the members of our country club. These Wiggins Pass eagles are a pair of four within a six-mile radius, those being those at Germain, Audubon Community and Angler's Paradise, on the Imperial River. As one of these eagle pair moves, it affects the others. We love these eagles and we would not like to see them moved. However, it is not just about eagles that I wish to speak. I also want to speak about trust. Trust in the system and trust in our government officials. Page 72 March 17, 2005 In the past Naples was not known as a place where much trust could be placed in government. But that has changed, and I thank you very much for your part in it. When the county commissioners granted the Cocohatchee Bay PUD in the year 2000, it was grant in good faith, based on the promise by the developer, of which much documented testimony exists, that they would not move ahead on their project until Mr. Eagle left his nest on his own. Now that Signature Communities is ready to proceed with development, they want to amend their Bald Eagle Management Plan. What they really want to do is change their minds. If the shoe was on the other foot and it was the government bodies that wanted to change their minds, Signature would be talking lawsuit. But that's not the case here. Signature just doesn't think that they should be held accountable for promises made in the past. Well, we do hold them accountable. Without this accountability there can be no trust in the system, and thus the integrity that the Collier County government officials have built up over the past few years would be worthless. While the hearing is about the meaning of words, I wanted to emphasize that your decision here is not just about one pair of eagles, it affects all the eagles in our neighborhood and the wonderful environment that we have around us. The environmental advisory council saw fit to not approve this request for exactly the same reason, and I ask that the Planning Commissioners do likewise. Thank you. CHAIRMAN BUDD: Thank you. Next speaker, please? MR. BOSI: Mimi Wolok, followed by Doug Fee. MS. WOLOK: Good morning, Commissioners. Mimi Wolok. I am representing myself today and I have not been sworn in. (Speaker was duly sworn.) MS. WOLOK: I would just like to bring to the commission's Page 73 ,~_.~ March 17, 2005 attention one or two points. The petitioner says that you will and you must delegate your authority to the state and federal agencies. But that is not what the GMP text says. So let's go through what the GMP text says just very briefly. Objective 7.1 requires the petitioner to direct incompatible uses away from listed species and their habitats. Policy 7.1.2, Section 2(A) requires the petitioner to use the habitat management guidelines for the Bald Eagle in the southeast region. And this is the 1987 version that's specifically referenced in the Growth Management Plan. We have heard testimony that the Bald Eagle management guidelines have probably not been modified, but even if they were, the GMP specifically mentions the 1987 guidelines. The guidelines state that construction activities within 1,500 feet of a Bald Eagle nest during the nesting season may cause nest abandonment and are likely to cause disturbance. And as far as activities within 750 feet of a Bald Eagle nest, I'd like to specifically read into the record what the Bald Eagle management guidelines do say. It's very short. The recommended restrictions: Close proximity of the following activities to Bald Eagle nests are likely to have detrimental impacts on eagle nesting and therefore should not occur within the primary management zone at any time. And any time is underlined in the original. And of course residential development is one of those things. Policy 7.1.2, Section 3, and you know it very well, requires the county -- and please be careful with the language -- requires the county, consistent with applicable GMP policies, to consider and utilize recommendations and letters of technical assistance from the Fish & Wildlife Service. To follow this biological opinion by the Fish & Wildlife Service and the new amended Bald Eagle Management Plan of the petitioner would not be consistent with GMP Policy 7.1.22(A), requiring the use Page 74 u·,_.w..·.·_ _'_--,,^-~_.,. ,._-,,~"-- March 17, 2005 of the 1987 Bald Eagle management guidelines, and would not be consistent with Policy 7.1 to direct incompatible uses away from listed species. Please deny the petition. CHAIRMAN BUDD: Thank you. Next speaker, please? MR. BOSI: Doug Fee, followed by Dick Macken. MR. PEE: Good morning. For the record, my name is Doug Fee, president of the North Bay Civic Association. I appreciate being able to speak to you. The North Bay Civic Association is strongly opposed to the PUD amendment before you today. The Cocohatchee Bay PUD was approved by the Board of County Commissioners in December, 2000 as a residential and golf course community with a maximum of 590 dwelling units, attainable only upon the abandonment of an active Bald Eagle nest on-site, according to the written documents and oral testimony given. North Bay must ask a fundamental question: Why are we here today if the eagles in question have not abandoned the nest? The December 12th, 2000 executive summary and the attached staff reports for that hearing had a definitive statement which the applicant, Vanderbilt Partners, the commissioners, the staff and the public must have read and is part of the records and should be held to have meaning in this process. And on the screen, regulations provided within the PUD speaks to the existing presence of a Bald Eagle nest and establishes a management plan to ensure that the viability of the nest is unaffected by the actions of man. The result of this measure is that a major portion of the residential development potential will not be able to go forward until such time as the eagle nest is abandoned or otherwise altered by natural conditions. The PUD master plan, which is an integral part of the ordinance and of course is part of Ordinance 2000-88, staff under number nine of Page 75 March 17, 2005 the environmental conditions of the EAC staff report, which again is a part of the executive summary material, was made to, quote, remove the residential high-rise tracts designation on the parcel where there is currently an active Bald Eagle's nest. As a requirement of the Bald Eagle Management Plan, there shall be protective covenants placed over the primary zone of the eagles' nest and restrictive covenants over the secondary zone of the eagles' nest. The applicant today is saying that his statements made -- or their statements made during these hearings of a four to five-year time horizon is what should be relied on. In LDC 10.5.03, 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 for injunction or other appropriate relief. I ask the question, did the applicant read the executive summary presented to each of the commissioners and became part of the proceedings records? Why did the applicant not correct his agent as she made statements which agreed to the executive summary restriction. Ms. Bishop: I want you to know that we're not going to do anything until Mr. Eagle decides to find a new place. Why didn't the applicant come to the podium and correct staff when staff reassured the commissioners and the public not to worry because the eagles will be protected? Mr. Nino: It basically says that until the eagle decides to find a new home, that developments can't go forward. They're out of luck. And the last question: Would it have mattered and would it have changed the decisions of the commissioners in granting the approval of Ordinance 2000-88 if they had? I believe it would not have been consistent with our Growth Management Plan. Having personally attended all three public hearings back in 2000, I know what was said, and I'm asking each of you to consider this important statement and denying the amendment. Page 76 March 17, 2005 Each meeting you are given staff reports for each agenda item you hear. These reports are written so that you know what is before you in making your final decision. Are we to say that these written documents presented by staff and to the public have no meaning or importance? In the process they are key to understanding the position of staff with analysis and the specifics to a project before you. I'll be very brief here. In terms of the GMP consistency, which that is what is -- I believe as a body you are ruling on, you obviously know that there have been much discussion on the glitch amendments, and outside counsel for Collier County, Marti Chumbler, has stated in the record a few times that there is an inconsistency between those two sentences. And she actually quoted saying she doesn't know how staff can interpret these, those two sentences. I want to enter into the record of this proceeding -- I'll be very quick here -- some policies that are in the GMP that I feel must be considered in granting this application. I won't go into them, I just want to submit them into the record. The last thing is there is some land that's indicated at a different color on the screen, and I want to make sure that in these proceedings that that land is separate and apart, has nothing to do with the 600 acres or the 590 acres. They're not including that in the PUD. I believe it's by reference. And I also want to make sure that there isn't something attached to the current PUD that would change, based on this land, in your deliberations. And I thank you very much for your time. CHAIRMAN BUDD: Thank you, sir. COMMISSIONER STRAIN: Doug, just for the record, the LDC section you're referencing, I think you're trying to reference the same one Nicole talked about earlier, and that is Section 10.03.05.J. MR. FEE: It I put L there and it should be J? COMMISSIONER STRAIN: Well, you put L there, but the 05 Page 77 March 17, 2005 and 03 were circum -- transposed. It's 03.05. MR. FEE: I apologize and thank you for that-- COMMISSIONER STRAIN: I think you want the record __ MR. FEE: -- clarification, yes. CHAIRMAN BUDD: Thank you. Next speaker, please? MR. BOSI: Dick Macken, followed by B. J. Savard-Boyer. MR. MACKEN: My name is Dick Macken and I live at the Villages of Emerald Bay, a community near the Cocohatchee PUD site. I would like to thank the Planning Commission for allowing me to speak today. In December, 2000, when Vanderbilt Partners was granted a PUD called Cocohatchee Bay, a Bald Eagle Management Plan, intending to protect the eagles nesting on the site was an integral part of the approval. During the hearings on the proposed project, various representatives of the developer gave the county assurances that no high-rises would be constructed within 1,500 feet of the eagles' nest until the eagles had left of their own volition. At that time the county was obviously concerned about the welfare of the eagles. Now it's four years later and the eagles are still there. They like the site and raised two fledglings at their nest this winter. The developer is tired of waiting for them to leave and wants them out. He has obtained a permit from the U.S. Army Corps of Engineers. And this is something which I think is very important for everyone to understand: The U.S. Army Corps of Engineers is obligated, obligated to issue a permit, a take permit, unless the loss of a particular nest would negatively affect the survival of the entire species throughout the country. And as eagles are thriving in many places in the country, obviously the loss of this single nest or the approximately 25 nests in Collier County will have no effect on the survival of the species and, therefore, the U.S. Army Corps of Page 78 "--_.-~ March 17, 2005 Engineers has to issue this permit. This -- the issuing of this permit to Cocohatchee Bay does not mean that the Corps of Engineers is in favor of the loss of the nest and thinks that it is a good idea that the eagles be driven from the property. The biological opinions are actually prepared by the U.S. Fish & Wildlife Service. I have talked to people at U.S. Fish & Wildlife, and they would love to turn down some of these permits but they cannot. So when we say that we are deferring to the federal government, there is zero protection for any of our eagles, and that needs to be understood. This is not something they are in favor of, they simply have no choice. If the county wants to protect its eagles, it will have to do so itself. The petition raises an important ethical issue. Can a developer come before the county, make promises in order to get a PUD approved, and then walk away from his obligations when they prove to be inconvenient to him? What sort of chaos would that cause to the integrity of the planning process in Collier County? A promise should be a promise and the county should hold developers to what they agreed to do. To grant this petition would send a signal to developers that anything goes in Collier County. We still bear the scars from the time when that was indeed county policy. How do we move forward? You'll notice that no one from the community is stepping forward to demand the removal of the eagles so that five high-rise towers can be built. People want development that is in harmony with nature and protects the environment. The developer can build high-end, extremely profitable housing on this site that will also allow the eagles to remain. It has been done elsewhere in Florida. I suggest he revisit his plans for the property. You heard earlier where there has been construction near eagles' nests and the eagles have remained. I have gotten that information from U.S. Fish & Wildlife, and in almost every single instance, we are Page 79 . -~ ,. ---~--~ March 17, 2005 talking about one to two-story residential homes. I have not seen anything that suggests that a high-rise can be built near an eagle's nest and that the eagles will stay there. The eagles need to be above their surroundings; otherwise they're very uncomfortable in that location, and they will leave, which indeed is the conclusion of the take pennit that they received at the -- the most likely outcome is the departure of the eagles. Another point was mentioned about the recovery of eagles in Florida. Well, we had four hurricanes last year, and of course that had a tremendous impact on the eagles. And Polk County, which was also mentioned, was a place that was impacted by several hurricanes. And so while the eagles indeed have come back very well, there has been considerable loss of nests, and it's not quite clear how many there was. In conclusion, I strongly urge the Planning Commission to deny this petition in order to preserve the integrity of the planning process and to show the citizens of Collier County that developers are now being held to their word. Thank you very much. CHAIRMAN BUDD: Thank you, sir. Next speaker, please? MR. BOSI: B. 1. Savard-Boyer, followed by the final speaker, Tom Reynolds. MS. SAVARD-BOYER: For the record, B. J. Savard-Boyer. I live on Palm Court in Vanderbilt Beach. I will not be redundant, because I agree with everything that has been said by the public before me. I went to all the meetings at St. John's and here, and we trusted. We trusted the voting of the Planning Commission, we trusted what the petitioner had to say. Maybe the urgency now is because we're in such a hot real estate market. I know they're just about finished with building in The Dunes and they thought they could go forth. Of course it was thought that the eagle would flyaway, which he hasn't. So if they were patient to Page 80 March 17, 2005 wait for four or five years, I think anything that's worth waiting for, they can wait another five years and maybe Mr. Eagle will go away. I urge you to deny this petition today. Thank you. CHAIRMAN BUDD: Thank you. Next speaker? MR. BOSI: Final speaker, Tom Reynolds. MR. REYNOLDS: I was not sworn in. My name is Tom Reynolds. (Speaker was duly sworn.) MR. REYNOLDS: Well, I couldn't possibly say anything as a fisherman, which I currently am, that would be new or in addition to what's already been said, but I'm going to. I have fished and launched out of Wiggins Pass 1,000 times, plus or minus, so I feel like that that eagle and I come close to being on a first name basis. And I am speaking not as a statistic. I don't think eagles are statistics. I think each individual needs to be -- eagle needs to have its privilege in life. So that eagle stole a fish from me off the cleaning station when I stepped away from it a few years back. So as I say, that's just a -- to add to the credibility of what -- following Gabrielle, on Friday night, I drove by the nest on Saturday on my way out to dinner. And those eagles were totally -- they were ballistic. They were flying and screaming and saying, what happened to my -- that's what I thought they were saying, now that I'm an expert on eagles, what happened to my nest? My nest is gone. And they rebuilt. And they're part of the community. I live in the Village of Emerald Bay, like Dick Macken, and they are part of the community. So -- and I'm going to switch hats now. I'm a retired professional engineer. I want to bring in to question this artificial tree and its location. My map says that the location of that tree, as proposed, is within a half a mile of the Audubon nest. My understanding is that Page 81 -_.", March 17,2005 that will bring in to playa fight to the death. I strongly urge, from all -- everything everybody said, being a friend of the eagle and if an artificial tree is whatever, that you deny the petition. Thank you. CHAIRMAN BUDD: Thank you, sir. That concludes our public speakers. With that, any summary comments by the petitioner? MR. YOV ANOVICH: Just a few. I want to put up for the Planning Commission -- and Ray, how do I do this, just go back to the laptop? What Mr. Corace said to you all when this came through, this was after Ms. Bishop spoke: For the record, my name is Don Corace with Signature Communities. With regard to the eagle, first of all, it should be understood that the potential high-rise component of this project more than likely will not be developed within the next four to five years. We're completing our Dunes project, as you're well aware of, and obviously we'd be competing with ourselves. So we have a fairly patient time line. The bottom line is at best there are conflicting statements between the agent and the applicant. I would have believed that the applicant's statement would prevail over a statement of their agent. That only makes sense, when the principal comes up and says something, it would have more weight than the agent. At best there's a contradiction in the record. And I bring that up for a very important point. That's why you rely on the text in the PUD document. Because there are statements that happen in a hearing that mayor may not be important to the actual ordinance that's adopted. We don't know. We have a PUD document that says what it says. It does not say that the applicant will wait until Mr. Eagle leaves. It doesn't say that in the document. It says in the document itself that if site conditions change or management techniques change, there will be an amendment to the Page 82 "--~._.,- .'. ·"~·,""_'·."",v.·..~__~,,.~~_,.. _._^--_."._,._~"._- March 17, 2005 document. The document itself contradicts what everybody's trying to tell you was, quote, important to the public. I will also point out that that was a very nice quote from Mr. Nino. The provision that both Nicole and Mr. Fee are relying on talks about statements made by the agent. Mr. Nino was not our agent. So let's make that clear. What Mr. Nino says is not binding on me pursuant to that provision. We did get up and state on the record that we had an intention to go forward in four to five years. That's clear. A PUD document is equivalent to a contract. A contract is a written document between the parties. You go to the contract to figure out what the contract says. You don't go to any oral representations, you go to the contract. The contract is clear. I'd venture to say, and I've been a victim of this, if the county transmits a PUD document, that is not 100 percent accurate from what occurs at the Planning Commission or the Board of County Commissioners' hearing. And it goes to the -- it gets adopted and transmitted, and it doesn't say what we were told it was saying. And I'm talking from the developer's perspective right now. What do we have to do? We have to go get the document amended. We can't rely on oral statements from staff. We can't rely on motions from the Planning Commission. What do we have to do? We have to go back and we have to amend the document to make it consistent with the record. Apply the same rules, if you question whether or not the PUD is an accurate document. Venture to say that if we were here saying okay, there were oral promises made by staff, oral statements by the Planning Commission, oral statements by the Board of County Commissioners that didn't find their way into the motion, we would not be allowed to rely on those statements. We need to have some -- we need to apply some common sense to what occurred. Everybody knew at the time Signature Communities had the property under contract. They did not own the Page 83 "-,.- March 17, 2005 property. What developer in their right mind would put $32 million at risk to bet on a pair of eagles leaving? I venture to say, I don't care how much money you have, $32 million is a lot of money. You're not going to bet on a pair of eagles leaving. All that had to be done, if there was an issue, if there was a question, there needed to be one question asked to Mr. Corace: Mr. Corace, is Signature Communities stating that it will not go forward with this project until the eagles leave? Mr. Corace was never asked that question, and I venture to tell you, he didn't think he needed to be. He thought he said the four to five-year time frame made it clear. Ifhe were asked that question, I'm sure he would have said no way, we're not going to bet on the eagle leaving. We're not going to risk $32 million. COMMISSIONER SCHIFFER: Richard, was he in the room when the question was asked to Karen Bishop? MR. YOV ANOVICH: Were you, Don? Yes, he was. COMMISSIONER SCHIFFER: Then why didn't he jump up when Karen said that they weren't going to develop until the eagle moved? MR. YOV ANOVICH: He also was at the Board of County Commissioners and made the same statements, and the question was never put to him or her at the Board of County Commissioners' hearing. He didn't think he needed to deal with the issue. Now, I'm asked -- I made the statement, we have an entitlement, and we do have an entitlement. We have an entitlement to have the comprehensive plan applied to our project. Mr. Lorenz stated that the comprehensive plan requires that you utilize technical assistance from the U.S. Fish & Wildlife. They're the experts. Your county staffhas told you on numerous occasions they're not the experts. U.S. Fish & Wildlife has ruled on that issue. Interestingly enough, there were -- you know, we've been going Page 84 ---- March 17, 2005 through this process for a while and then the hurricanes came along, and your county staff wrote to you as Fish & Wildlife and said hey, we've had four hurricanes; you stand by your biological opinion. And their response was they're not changing their biological opinion, because the very reason that the eagles will rebuild their nests. We know that. Everybody's trying to paint this picture like we're trying to hurt this eagle. We are not going to touch the tree, we are not going to touch the eagle. This pair of eagles will not be hurt by our development. What will more than likely happen? They will relocate. They will relocate within a territory close to their nest. Weare proposing mitigation to acquire some additional habitat, and we're proposing to construct a test tree. If the test tree's an issue, we won't build the test tree. It's not a cheap venture. It's over $250,000 to build this tree. It's a test. And the U.S. Fish & Wildlife believes it's an important test, because it may lead to the additional __ additional science to where maybe we can do some things to help the eagle along. It's no different than any other drug that comes on the market, you test these things. You don't know when the drug first comes on whether it's going to do or not do what you're testing it for. You go through the process. This is a dead tree. It's not a question of if, it's a matter of when will the tree fall. U.S. Fish & Wildlife believe they were getting something that was valuable to this eagle and to the eagle population by issuing this biological opinion. COMMISSIONER SCHIPPER: Richard, one question. I mean, if the commission fails to approve this application, wouldn't you do that anyway to lure the eagle away from the building sites? MR. YOV ANOVICH: Well, I don't believe we're going to go forward with that if the board does not apply its comprehensive plan correctly . We're not going to go forward and build a tree. Page 85 March 17, 2005 COMMISSIONER SCHIFFER: Because I think if I was a developer, the day after they got the PUD approval, I'd be building that tree. MR. YOV ANOVICH: Well, again, Mr. Schiffer, I'm sure you've been involved in federal permitting process and __ COMMISSIONER SCHIFFER: No, no. MR. YOV ANOVICH: I mean, you've heard about it enough that nothing in federal government happens overnight, and the permitting process takes quite a while. We've been in that process for quite a while. COMMISSIONER STRAIN: Richard? MR. YOVANOVICH: Yes, sir. COMMISSIONER STRAIN: Before you move on, I was waiting for you to get done. I want to make sure I don't forget. Keep the record straight, which I know you like to do: The excerpt of the CCPC meeting that you have on the board occurred on Page 60. And Mrs. Rautio was up here talking about a time that she wanted something on the record from Ms. Bishop? That occurred on Page 85. MR. YO V ANOVICH: There's no question __ COMMISSIONER STRAIN: Mr. Corace did not get up again after the record was cleared on Page 85. MR. YOV ANOVICH: And I think that was Mr. Schiffer's point. COMMISSIONER STRAIN: Well, I'm just telling you the numbers so that it's on the record properly. MR. YOV ANOVICH: I understand that. And Mr. Strain, again I point out that in the motion that was made to approve this proj ect, there was never a stipulation that the project had to wait until the eagle left. COMMISSIONER STRAIN: I think there was in the form of a Bald Eagle Management Plan. MR. YOV ANOVICH: And I would -- you know, we can agree Page 86 .'--,. March 17, 2005 to disagree. You've got to look at the terms of the Bald Eagle Management Plan. I would submit, there would be a provision in there that would talk about changed site conditions or management techniques allowing an amendment to the Bald Eagle Management Plan if it were not to be allowed to be amended until the eagles left. It would have said that simply. There would have been a very simple statement that doesn't appear anywhere in the Bald Eagle Management Plan or the PUD document. And with that, we request that the Planning Commission recommend to the Board of County Commissioners approval of a requested change to the Bald Eagle Management Plan because it's consistent with the comprehensive plan. And again, that's what you're here to do, determine whether or not the Bald Eagle Management Plan is consistent with the comprehensive plan. CHAIRMAN BUDD: Any questions of the petitioner? Mr. Schiffer? COMMISSIONER SCHIFFER: I have one. Rich, in the PUD there's two master plans: One with the eagle and one without the eagle. Wouldn't that be evidenced that it was -- it's part of the master plan? I mean, Exhibit B shows where the eagle nest is, it shows the radius and it shows no R-1, which is the high-rise development. MR. YOV ANOVICH: There's no question about that. COMMISSIONER SCHIFFER: Exhibit 1, which is even called future condition. MR. YOV ANOVICH: Right. But Mr. Schiffer, you have to read that Exhibit B in context with paragraph 4.3 of the eagle management plan. And that says, the current site plan calls for development of a golf course only with an option to conduct future - residential construction, should the site conditions or management techniques change to allow it. Page 87 >._-~,~ "<~,.,."'h"~'.______.,,_. _._--,...'"'."-".._.~~-~"--- March 17, 2005 Exhibit B reflected exactly what the management plan said, until site conditions change or management techniques change, no construction in the R -1 area that shows up on Exhibit A. They're not inconsistent. That's why we're here to amend the document. The management techniques have changed. COMMISSIONER SCHIFFER: But couldn't Exhibit B also __ Exhibit B doesn't discuss anything, even in the eagle plan, except for about golf courses, because Exhibit B doesn't have any high-rise development shown. MR. YOV ANOVICH: You have to understand that Exhibit B is the clarification of the text of the eagle management plan. It is a reflection of what the text says. The text is what matters. COMMISSIONER SCHIFFER: Then taking that, the absence of the R -1 development speaks to me that the eagle management plan has no high-rise development in it. MR. YOV ANOVICH: Until or unless site conditions change or management techniques change for us to come through with an amendment. The point was is everybody's trying to say Signature Communities promised it would never go through this permitting process and would never try to get an incidental take permit. It would never come forward and amend its Bald Eagle Management Plan. It's simply not true. COMMISSIONER SCHIFFER: No, you're doing it now. MR. YOV ANOVICH: And it's not reflected in the documents. COMMISSIONER SCHIPPER: Right. MR. YOV ANOVICH: It's not reflected in the documents. COMMISSIONER SCHIFFER: Right. You had the option to do that. MR. YOV ANOVICH: And the doc -- but everybody's saying we somehow promised we would never do that. COMMISSIONER SCHIFFER: But because you have that Page 88 ",_.~-",. March 17, 2005 option doesn't guarantee success either. MR. YOV ANOVICH: You're right, we have to go through a process that -- CHAIRMAN BUDD: Brad. MR. YOV ANOVICH: -- goes with the comprehensive plan. CHAIRMAN BUDD: -- do you have a question rather than dialogue? COMMISSIONER SCHIFFER: The only other question I had is the EAC report, do you have -- I mean, they failed to recommend. Do you have any problem or why do you think they did that? MR. YOV ANOVICH: Why? I think frank -- you want me -- I think this has become nothing more than a political issue. I think that's what it is. It's a battle over what was said and what does that mean in the PUD process. CHAIRMAN BUDD: Anything else, Mr. Schiffer? COMMISSIONER SCHIFFER: No, I'm done. CHAIRMAN BUDD: Other questions? (No response.) CHAIRMAN BUDD: No other questions of the petitioner, okay, that being said, we'll close the public hearing. COMMISSIONER ABERNATHY: Mr. Chairman? CHAIRMAN BUDD: Yes, sir. COMMISSIONER ABERNATHY: I'd like to make a motion -- COMMISSIONER ADELSTEIN: So would I. COMMISSIONER ABERNATHY: -- to -- that we forward Petition PUDA-04-AR-6786 to the Board of County Commissioners or the BZA, whichever it is, with a recommendation of disapproval. COMMISSIONER ADELSTEIN: Could I make a -- COMMISSIONER ABERNATHY: And my reasons are manifest and manifold in all of the testimony that we've had and the evidence that's before us. COMMISSIONER ADELSTEIN: Could I make an amendment Page 89 March 17,2005 to that motion? CHAIRMAN BUDD: Well, let's go for a second first. COMMISSIONER ADELSTEIN: Okay. I'll second it. CHAIRMAN BUDD: We have a motion by Mr. Abernathy, second by Mr. Adelstein. Mr. Adelstein, the suggestion for the motion maker? COMMISSIONER ADELSTEIN: Yes. And deny the one presented to us today. CHAIRMAN BUDD: I think that's the motion. COMMISSIONER ADELSTEIN: No, the motion is made to -- to maintain the present Bald Eagle Management Plan is what we're doing and deny the one presented to us today. CHAIRMAN BUDD: Does that restate the intent of your motion, Mr. Abernathy? COMMISSIONER ABERNATHY: Well, I don't know if I want to get -- he's requesting that we amend the Bald Eagle Management Plan, and my motion is that we forward recommending disapproval of that request. COMMISSIONER ADELSTEIN: And I'm saying, and we're denying the one that they brought for us today. Just to make sure it's clear. COMMISSIONER ABERNATHY: Well, I'm not prepared to go down that path, I don't think, because I'm not sure what it means. CHAIRMAN BUDD: Ms. Student? MS. STUDENT: Yes, I just wanted to state for the record that we need to have a reason that's listed in the criteria. Now, staff has done an analysis of the PUD rezoning criteria, but there are other rezoning criteria. And admittedly this is not a rezone, but the county has historically, because many years ago we used to do amendments just to PUD's without doing the PUD to PUD rezone, and _. the county historically had used the PUD rezone criteria that apply to the situation for that, as well as the general rezoning criteria. Again, Page 90 March 17, 2005 the ones that apply. And I have those here to pass out, and I'm going to pass them out to you. You should be familiar with them already from other -- there should be plenty. And the board should be well familiar with these for the number of rezone petitions that the board has handled. But we need to have a reason stated that relates to one of those -- one or more of those criteria that apply to this change, to this amendment. CHAIRMAN BUDD: Okay. I was hoping or thinking that you were going to provide some clarification in the semantics that we were in between our motion-maker and the second. MS. STUDENT: Well, I also wanted to do that. What's before you is an amendment to the PUD in the form of a new habitat management plan, so the motion should be either for approval of it or denial of it. CHAIRMAN BUDD: So you would suggest the proper language would be a motion for approval or a motion for denial. MS. STUDENT: That's correct. CHAIRMAN BUDD: Mr. Abernathy, you're making a motion for denial? COMMISSIONER ABERNATHY: I thought that's what I said. CHAIRMAN BUDD: Well, we're-- MS. STUDENT: That's what I thought you said. CHAIRMAN BUDD: -- just getting all on the same page. And our second is comfortable with that language? COMMISSIONER ADELSTEIN: Yes. CHAIRMAN BUDD: Okay, we have a motion and second for denial. Further discussion on the motion? Mr. Strain? COMMISSIONER STRAIN: Yes. I am going to support the motion. I want to state the reasons why I'm going to support it. I do not feel it's consistent with LDC Section 3.04.01.C, (3-a); 3.04.01.D, (l-b, e and f); 3.04.02.D; 10.03.05.E (2); 10.03.05.J; 4.07.02.D (3-d Page 91 March 17,2005 and g); GMP Section CCME 7.1 and FLUE Section 5.4. CHAIRMAN BUDD: Further discussion on the motion? MR. WHITE: Mr. Chairman, I understand that that may be Mr. Strain's position, but if it's possible that either the motion-maker or second would have an opinion about it so that it becomes in fact not just that opinion of Mr. Strain -- COMMISSIONER ADELSTEIN: I agree with what was just said. CHAIRMAN BUDD: And our second, Mr. Adelstein, is in agreement with that. Mr. Abernathy? COMMISSIONER ABERNATHY: I'm in agreement. CHAIRMAN BUDD: He is in agreement with that. Further discussion on the motion? (No response.) CHAIRMAN BUDD: I'm going to take a minority opinion on this. I think the petitioners did clearly make a commitment in the testimony presented. I think the verbal testimony counts. I think they committed to not disturb this eagle and not for any limited amount of time. And I think that commitment was expressed in the form of a Bald Eagle Management Plan which also within that commitment mechanism contains a mechanism in order to modify it. And in my mind that's what they're doing is coming forward to modify that, and the context of management techniques have changed. So I totally disagree with the petitioner that they never made any assurance. I think they did. However, I do think they have the right to come back and modify that in the context of this Bald Eagle Management Plan. And in that sense, I would be in agreement with their request and in opposition to the motion. Further discussion? (No response.) CHAIRMAN BUDD: There is none. We will call the question. Page 92 March 17, 2005 All those in favor of the motion, signify by saying aye. COMMISSIONER ADELSTEIN: Aye. COMMISSIONER ABERNATHY: Aye. COMMISSIONER CARON: Aye. COMMISSIONER SCHIFFER: Aye. COMMISSIONER MIDNEY: Aye. COMMISSIONER STRAIN: Aye. COMMISSIONER VIGLIOTTI: Aye. CHAIRMAN BUDD: Those opposed? Aye. Motion carries 7-1. With that, it is 10 minutes to 12:00, which is not a good time to start into new business. We will break for one hour for lunch. (Luncheon recess.) (Commissioner Schiffer not present.) CHAIRMAN BUDD: Now we're on the record. We will reconvene the Collier County Planning Commission. We have a quorum. Move on to our next agenda item. That is Petition CU-2004-AR-6671, Boca Bargoons of Naples, requesting a conditional use. All those wishing to present testimony on this item, please stand, raise your right hand to be sworn in. (All speakers were duly sworn.) CHAIRMAN BUDD: Any disclosures on this item? (N 0 response.) CHAIRMAN BUDD: There are none. If we could hear from the petitioner, please. MS. SMITH: Good afternoon. For the record, my name is Kelly Smith, I'm with Davidson Engineering, and I'm here today representing the petitioner. The subject property is located at 4403 Tamiami Trail East, and it's approximately two and a half acres in size. The property is Page 93 -".~.,._- March 17, 2005 currently vacant but was previously developed with the Ryan Homes Model Center and is zoned C- 3. The adjacent property to the northwest and the southeast are both developed commercial properties. The adjacent property at the rear is Lakewood Villas, which is a multi-family development. The request before you is to allow for greater square footage per tenant, specifically square footage greater than 5,000 square feet, for personal services, video rental or retail, excluding drug stores. These uses are otherwise permitted by right within the C-3 zoning district. Our request is simply to allow for individual tenants to utilize more than 5,000 square feet of building space. This project is currently in site development plan review and consists of three buildings. As you can see on the visualizer, there is one building that is approximately 11,000 square feet, and that is intended to be up to seven retail units. The other two buildings are both approximately 7,500 square feet. One may be used for up to three units, the other is intended to be used solely for the anchor, who is also the owner of the property, and that is Boca Bargoons, which is a decorative fabric and home accessory store. And again, all of our intended uses at this point are retail. The proj ect meets all the land development codes that are applicable, including buffering, building height and parking. And we agree with the stipulation put forth by your staff. I'd be happy to answer any questions. CHAIRMAN BUDD: Thank you. Any questions of the petitioner? (No response.) CHAIRMAN BUDD: None at this time. Have the staff presentation, please. MS. WILLIAMS: Good afternoon. For the record, Heidi Williams with Zoning and Land Development review. As Kelly stated, this property is zoned C-3, and all the uses Page 94 March 17, 2005 proposed are in compliance with the Land Development Code, as is the site development plan currently under review. The conditional use requested would permit the buildings that are already going -- under review to be combined into uses that are larger than 5,000 square feet. Upon staff review, it is found to be in compliance with the Land Development Code. And the only stipulation proposed at this point would be that the site development comply with all other regulations contained in the Land Development Code. And I'd be happy to answer any questions for you. CHAIRMAN BUDD: Any questions of the staff report? COMMISSIONER STRAIN: I have one. CHAIRMAN BUDD: Mr. Strain? COMMISSIONER STRAIN: If the applicant hadn't come in and asked for this amendment today, by combining and making greater than 5,000 square feet, how many square feet could that site support? MS. WILLIAMS: There is no limitation on C-3, the coverage of impervious surface on that C-3 site. So as is shown and as is being reviewed under the site development in-house, these buildings aren't permitted in that layout. COMMISSIONER STRAIN: So basically if they don't get this square footage, they could actually have come in with some plan that could have given them more square footage than they're getting today? MS. WILLIAMS: That is probably true. They have to meet all other -- COMMISSIONER STRAIN: Setbacks. MS. WILLIAMS: -- code requirements; setbacks, parking provisions and everything like that. COMMISSIONER STRAIN: I just want to make sure they're not gaining any increased density as a result of today's actions. It doesn't sound like they are. Page 95 _.",--- March 17, 2005 MS. WILLIAMS: No, this request does not grant any more intensity on this site, it just allows a recombination of the units that are permitted. COMMISSIONER STRAIN: And I know you had an informational meeting. MS. WILLIAMS: Yes. COMMISSIONER STRAIN: I guess the people were in favor? Is that what I read? MS. WILLIAMS: There were three people who attended our information meeting, and all three were in favor. COMMISSIONER STRAIN: And is this your first time to -- MS. WILLIAMS: Second. COMMISSIONER STRAIN: Oh, okay. Someone's been very nice to give you something as nice -- this is pretty simple. MS. WILLIAMS: Thank you. CHAIRMAN BUDD: Mr. Adelstein? COMMISSIONER ADELSTEIN: No, nothing. CHAIRMAN BUDD: Any other questions of staff? COMMISSIONER CARON: Not of staff, but I do have for the petitioner just one question. CHAIRMAN BUDD: That would be fine. COMMISSIONER CARON: You said that the intended uses were retail? MS. SMITH: Yes. COMMISSIONER CARON: And just based on this morning's hearing, I want you to be specific. They are retail? MS. SMITH: I will be specific in saying that they are uses that are allowed within the C-3 zoning district. My client is not here today, so I cannot ask them to state -- they have not to my knowledge signed any leases, so I think I would be out of line to suggest that they are going to be retail, but they obviously will be uses allowed within the C-3 zoning district and consistent with the conditional use Page 96 March 17, 2005 requested. COMMISSIONER STRAIN: Got no eagles nests or anything on this -- MS. SMITH: No eagle's nests, no gopher tortoises. We're good. CHAIRMAN BUDD: Okay. Any registered speakers? MR. BELLOWS: Yeah, we have one registered speaker. Janet Cenedella. CHAIRMAN BUDD: Okay. MS. CENEDELLA: Good afternoon. My name is Janet Cenedella. Do you want me to spell it for you? I am a resident right behind these units. It's 3664 Boca Ciega Drive. And I'm also the vice president of the Lakewood Villas homeowners association, which is the properties immediately affected. I guess I really only have two questions, and maybe one of you could answer them for me, we had talked about at the public information meeting. We have a problem with drainage from this site, not created by the current owners. There was a berm that was created when they were planting the median. They used that lot for storage of trees and plants and things, and when they were all done they created a berm at the back that has created severe runoff problems with the Boca Ciega owners right along the back of that site. And my other question is we also talked at that public information meeting about perhaps more greenery, better decorating than the two commercial abutters on either side of them. The two commercial abutters, I know they're only required to do so much. I haven't heard anything more back about that, if there could be more done than the bare minimum. That's it. CHAIRMAN BUDD: Okay, we'll hear from the petitioner regarding those items. MS. SMITH: In the rear and the side of the property, we are propose -- that's where we're proposing our drainage, our water Page 97 .,....-""--.---.....-- March 17, 2005 retention areas. I believe that the proposed development will satisfy the concerns with the current drainage system. Obviously we will be proposing improvements to the property and will be required to make sure that the property drains properly. And I think that some of the existing drainage issues were, as she said, created by some of the right-of-way work. And obviously we'll -- our client will need to correct those in order to develop the property correctly. With regard to the buffer we are proposing, the code required-- the Land Development Code required landscape buffers in the rear that requires a IS-foot type B buffer, which will include a six-foot wall. COMMISSIONER STRAIN: A wall or the -- what's the composition of the wall? What are you going to make it out of? MS. SMITH: The plan doesn't indicate that, but it will comply with the Land Development Code requirement for that type B buffer. COMMISSIONER STRAIN: Well, let's -- on your first issue, the drainage that you've shown on this plan, does it retain all of the on-site water within the site so that the runoff problem that this lady was speaking of, you're not going to have any more runoff from this property? MS. SMITH: That's correct. COMMISSIONER STRAIN: Okay. So that issue will be taken care of. MS. SMITH: Correct. COMMISSIONER STRAIN: And the next thing is the -- she was suggesting more greenery, but you are going to put the buffers in the LDC requires? MS. SMITH: Correct. COMMISSIONER STRAIN: The project on both sides, are they older than the current commercial criteria in the LDC, or were they Page 98 --.-.......-..,-.---.- March 17, 2005 built pursuant to the current commercial criteria? Because there will be a difference in the way the proj ect will be developed, based on the new commercial criteria that may resolve the issues that the lady earlier was talking about. MS. SMITH: I think your staff could probably answer that better than I can, except for the knowledge that I have -- the northwest project is the Perkins, which has been in existence for quite some time. The other adjacent property is Morningstar Music, which was recently redeveloped, but I think as part of a site development amendment and not a new site development plan. COMMISSIONER STRAIN: Maybe staff could help us with that question. MS. WILLIAMS: It is my understanding that both of the existing uses that border this petition property were held to a different standard. This I believe is required to have a six-foot masonry wall, and -- in addition to the landscape buffer. COMMISSIONER STRAIN: That's what I was looking for. Thank you. CHAIRMAN BUDD: Okay, any further questions? (N 0 response.) CHAIRMAN BUDD: Is there any further speakers? MR. BELLOWS: (Shakes head negatively.) CHAIRMAN BUDD: No other speakers, we'll close the public hearing. Discussion? Possibly a motion? COMMISSIONER ADELSTEIN: I move that AR-6671 be forwarded to the Board of County Commissioners with a recommendation of approval -- COMMISSIONER ABERNATHY: Second. COMMISSIONER ADELSTEIN: -- subject to staff recommendations. COMMISSIONER ABERNATHY: Second. Page 99 March 17, 2005 CHAIRMAN BUDD: And who was the second? Mr. Abernathy. Motion by Mr. Adelstein, second by Mr. Abernathy. Any discussion? (No response.) CHAIRMAN BUDD: There is none. All those in favor of the motion, signify by saying aye. COMMISSIONER ADELSTEIN: Aye. COMMISSIONER ABERNATHY: Aye. COMMISSIONER CARON: Aye. COMMISSIONER MIDNEY: Aye. COMMISSIONER STRAIN: Aye. COMMISSIONER VIGLIOTTI: Aye. CHAIRMAN BUDD: Aye. Those opposed? (N 0 response.) CHAIRMAN BUDD: It is unanimous, 7-0. COMMISSIONER ABERNATHY: Mr. Adelstein makes the approval motions, and I make the denial. CHAIRMAN BUDD: Okay. COMMISSIONER ADELSTEIN: It's team work. CHAIRMAN BUDD: So is this next petition your turn? We've got findings of fact. MR. YOV ANOVICH: Mr. Abernathy, would you mind leaving? COMMISSIONER ABERNATHY: Just getting warmed up. CHAIRMAN BUDD: He saves himself for you, Rich. Okay, our paperwork in order? We will then hear the next item. That will be Petition PUDZ-2003-AR-4493, Blue Bell-Meridian Partners. All those wishing to present testimony in this item, please stand, raise your right hand to be sworn in. (Commissioner Schiffer enters boardroom.) (All speakers were duly sworn.) Page 100 March 17,2005 CHAIRMAN BUDD: Any disclosures on this item? There are COMMISSIONER STRAIN: Yes. CHAIRMAN BUDD: Oh, Mr. Strain? COMMISSIONER STRAIN: Well, I spoke to Mr. Arnold, but I hadn't read this at the time and I told him I didn't know if I'd be here today. So things I'm going to bring up today, unfortunately I didn't have time to talk about. CHAIRMAN BUDD: Okay. No other disclosures, we will hear from the petitioner, please. MR. YOV ANOVICH: Good afternoon. For the record, Rich Y ovanovich, on behalf of the petitioner. I'm just going to briefly go through the packet. You've had a long day and most of it was -- it's very well described by your staff. This is an existing apartment complex located on Santa Barbara Boulevard and Radio Road. The current zoning is RMF -6 and it's developed with 248 apartments. We're requesting to rezone the property to PUD at seven units per acre, adding a total of 43 units to the project. The property is within activity center number six's residential density band, and under the comprehensive plan you can ask for an additional three units to the four units of base density, which gets us to the seven units per acre we're requesting in the PUD petition. Originally this proj ect was going to be an affordable housing project to request the additional density. We met with the -- we had our neighborhood information meeting and we met with the residents of Plantation, and they had a concern about affordable housing and also had a concern about our putting a wall between our proj ect and their project. As you know, typically you don't have to have a wall between residential and residential. So we agreed to construct an eight - foot wall between our proj ect and their proj ect. We need to clarify in the PUD document that we'll go ahead and Page 101 March 17, 2005 construct that wall when the project on track to be is constructed, and that's acceptable to the residents of Plantation. We also agreed to drop the affordable housing request, since we're already in the residential density band. There was really no need for additional bonuses. We also need to modify footnote number five in table one to reflect that that limitation of four units per building applies to tract B, because the other buildings already exist. So that footnote really applies to the new development on tract B. We're consistent with your comprehensive plan. Your staffs recommending approval. And we're also requesting approval. I forgot to introduce Wayne Arnold, the planner on the project, who can also address any questions you may have with the proj ect. Other than that, we'll turn it over to staff, unless you have any specific questions of us. COMMISSIONER ABERNATHY: I have a question, Rich. MR. YOVANOVICH: Yes, sir. COMMISSIONER ABERNATHY: Is there somebody ahead of me, Mr. Chairman? CHAIRMAN BUDD: You're it, Mr. Abernathy. COMMISSIONER ABERNATHY: You've got enough deviations here that one could almost conclude that there's an LDC for the county and an LDC for Y ovanovich. The first one, you're supposed to have a 10- foot wide sidewalk on one side, six-foot wide on both -- one or the other, six-foot wide on both -- oh, one or the other, six foot on both or lOon one side. You want to go to five on one. How about making it six? After all -- MR. YOV ANOVICH: Does it fit? COMMISSIONER ABERNATHY: I don't know why you reduce it. MR. YOV ANOVICH: Mr. Abernathy? COMMISSIONER ABERNATHY: You've gotten rid of one Page 102 March 17, 2005 whole side. MR. YO V ANOVICH: You understand that this is an existing development, so going back and trying to retrofit the old portion of the. COMMISSIONER ABERNATHY: No, I'm talking about the -- MR. YOV ANOVICH: Six foot on one side? I think we could probably accommodate that. COMMISSIONER ABERNATHY: I don't mean -- not the old part -- MR. YOV ANOVICH: I understood, the new part. COMMISSIONER ABERNATHY: -- the new part. MR. YOV ANOVICH: Only on the new part. Six-foot on one side? COMMISSIONER ABERNATHY: Yeah. MR. YOV ANOVICH: We think we can make that work. COMMISSIONER ADELSTEIN: We think or we-- COMMISSIONER SCHIFFER: We think we can? COMMISSIONER STRAIN: No, it will be in a stipulation. MR. YOV ANOVICH: I assume it's going to show up in the motion. COMMISSIONER STRAIN: You've made that very clear. COMMISSIONER SCHIFFER: Everything will. MR. YOV ANOVICH: That's what I'm counting on. CHAIRMAN BUDD: Any other questions for the petitioner? Mr. Schiffer? COMMISSIONER SCHIFFER: Rich, what is the site? I mean, the plan we have here includes the right-of-way easements. So is this -- there's no -- this property essentially goes to the center line of -- MR. YOV ANOVICH: Yes, it does. Yes, that's an easement on our property for the right-of-way. This is the -- I wanted to say I'm sorry, there was one other modification. We met with the residents of Plantation over the last couple of Page 103 March 17, 2005 days and they asked us to relocate one of our buildings, which we did. If you look at the old master plan, there was a building I guess -- there was a building right about here. We've moved that so it is now hidden by the preserve. They wanted us to move it away so that they would actually not see the building. So that's one other change we made to the master plan to work with our neighbors. Thanks, Ray. COMMISSIONER SCHIFFER: But Ray, then are they allowed to take that area for the gross area if there's a street right-of-way across it, or in this case a street easement? MR. YOV ANOVICH: Weare. It's an easement. It's not a platted right-of-way, it's an easement that's on our property. MR. BELLOWS: That's correct. For the record, Ray Bellows. Easements do not take away from the ownership. COMMISSIONER SCHIFFER: Okay, good. Then deviation number two, which is the buffer requirement. In the area you're building, would that be difficult to put the full buffer in? I can understand on pieces that have been built already, but -- MR. ARNOLD: For the record, Wayne Arnold. I'll try to address that comment, Mr. Schiffer. The reason that deviation was written is that the 20 feet can be gained in some areas and it cannot in others. And we have encroachments such as a tennis court. But we agreed that it could be the 15 feet. And with respect to the new area, the challenge we had was trying to marry and connect the road, site the units to try to get a reasonable amount of -- trying to put the largest contiguous preserve next to our neighbors of Plantation as they've desired. And our desire to try to retain as much of that native preservation area as we have. So we've provided 15 feet across that portion. Is it impossible? No, it's not impossible. It would alter our plan. And I would have to tell you that I would probably need to shift Page 104 _ ,···~c_,__._·" March 17, 2005 everything just another five feet to the north to accommodate that change, based on the plan you have before you, which would encroach into some of that preservation area. COMMISSIONER SCHIFFER: Deviation three, I'm -- essentially what you're saying there is you want 40- foot right-of-ways. And what is the NFP A standard? I mean, I couldn't find a standard that would match these numbers. MR. ARNOLD: The 40 feet in essence is one that for a private road will have a sidewalk easement most likely outside of that platted right-of-way, if you will. Everything internal to the existing project is a driveway. There are essentially 24- foot drive aisles. They're not platted roadways. What we envisioned, since this component was a for sale product, as we had committed to our neighbors, and Rich noted the modification we needed to make to the table, was we would go ahead and put in a road that would be a 40-foot right-of-way. It limits our right-of-way, but again, we're serving 43 units. It doesn't require that necessarily to have a 60- foot easement to take care of those 43 units. COMMISSIONER SCHIFFER: Okay, then the NFPA criteria, what are you referring to there? MR. ARNOLD: Let me look at your language. I don't think there is a specific criteria. I think we have to make sure we meet those NFP A requirements for turning radius, et cetera. COMMISSIONER SCHIFFER: Okay. Why don't you just say the Florida Fire Prevention Code? MR. ARNOLD: Florida Fire Prevention Code. COMMISSIONER SCHIFFER: And that would absorb NFPA one, which would have -- I think what you're trying -- but there is no references that you -- there is no 13522 and 101 -- MR. ARNOLD: Could you repeat that, Florida Fire Prevention Code; is that correct? COMMISSIONER STRAIN: But isn't -- as far as the building Page 105 March 17, 2005 permit process goes, aren't we subj ected to whatever the current codes are in Collier County for building permits, and those include the fire prevention code and other elements? So why are we being redundant in restating it here in the PUD, as it may change in the future anyway? Is there a need to do that? COMMISSIONER SCHIFFER: Well, I think what they're doing is they want to reduce the right-of-way, but they want to assure us that they won't violate the fire prevention code. MR. ARNOLD: That was our intent -- COMMISSIONER STRAIN: They can't. MR. ARNOLD: -- that whatever we do, we can't -- COMMISSIONER SCHIFFER: They can't violate it anyway. COMMISSIONER STRAIN: Right. So, I mean, why don't we say they can't build upside down and they can't do this? I mean, how many non-things can we say in the same document? It goes back to this redundancy we have in our PUD documents that we don't really need to have. MR. BELLOWS: I agree. COMMISSIONER SCHIFFER: I mean, I would have -- I'd rather take it out than reference stuff that isn't there. MR. ARNOLD: Okay. That's perfectly fine with us. And I guess I would just mention, if you're headed that direction, the other deviation was with respect to cul-de-sac lane. Because at one point in time we were debating whether or not we would have a completely connected loop road system, as opposed to maybe terminating a cul-de-sac, and I'd like to keep that option in there. I don't think it's going to exceed 1,000 feet, but our concern was that the staff might look at the entrance on Radio Road and the entire road system as being a cul-de-sac; therefore, we would have more than 1,000 feet. COMMISSIONER SCHIFFER: But you do have turnarounds in between them. Page 106 March 17, 2005 MR. ARNOLD: That's correct. CHAIRMAN BUDD: Anything else, Mr. Schiffer? COMMISSIONER SCHIFFER: No, I'm done. CHAIRMAN BUDD: Mr. Strain? COMMISSIONER STRAIN: Wayne, are you aware that this proj ect on the Internet is up for sale? MR. ARNOLD: Yes. My client informed us that he is potentially selling this property. COMMISSIONER STRAIN: Is he selling 248 units, as shown on the Internet, or is he selling a new number that's going to come out of today's meeting if it were to pass? MR. YOV ANOVICH: My understanding, and I don't represent him in the transaction, is that he's selling the existing apartment complex at this time and keeping the remaining units and potentially selling the units to be built. He might sell those as well. But right - now it's for 248. COMMISSIONER STRAIN: Okay. So the sale doesn't include what we're talking about today; is that what you're telling me? MR. YOV ANOVICH: I understand there may be an option, that the purchaser who's buying the 248 may have an option to buy the additional 43. COMMISSIONER STRAIN: Are these the apartments that are still owned by -- it's no longer the UDRT, it's Epoch, E-P-O-C-H, is that the manager of the property? MR. YOV ANOVICH: I don't know, Mr. Strain. COMMISSIONER STRAIN: There was a TIS required with this project, according to the staff report, or the staff checklist. I didn't receive a TIS. Is there a TIS out there somewhere? MR. DeRUNTZ: For the record, Mike DeRuntz, principal planner with the zoning, land development review. There was one, and I apologize if you didn't get a copy. COMMISSIONER STRAIN: Did any planner commissioner get Page 107 March 17, 2005 the TIS? No? Because we always get those and I thoroughly read those and I would have appreciated one on this one. The property that you're talking about as tract B is previously shown as a vegetated area. Why was it left vegetated when the project was originally built? What caused it not to be developed? MR. YOV ANOVICH: Mr. Strain, we don't know. We've not found any permit condition that required that it stay vegetated. COMMISSIONER STRAIN: Well, it's just straight RMF-6 zoning, right? MR. YOV ANOVICH: Right. Right. And at the time if you did the math, six times 41 or approximately 42 got us to all the units, so -- COMMISSIONER STRAIN: I realize that. It's, you know, a-- yeah, a contiguous preserve area, or it looks like it could have been. N ow you're putting lots there. I'm just wondering if it was left that way for a reason. MR. YO V ANOVICH: Not that we're aware of. COMMISSIONER STRAIN: Okay. Did this go through any EAC review at the time that it was originally built under the current zoning? MR. YO V ANOVICH: This was in 1984, 1985, and we're not sure that there was an EAC back then that would have reviewed this project. COMMISSIONER STRAIN: Because you're exempting yourself from the EAC because the parcel B is less than the 10-acre mInImum -- MR. YOV ANOVICH: Correct. COMMISSIONER STRAIN: -- but the whole project is 41 acres, so is the EAC exemption tailored to the amount of land within each project that you're trying to disrupt, or is it tailored to the size of the project that has to be brought in? Because you're bringing in a 41-acre proj ect. MR. YOV ANOVICH: You know, I'll defer that to the county. Page 108 March 17,2005 When we went through the process, they agreed that we were focusing just on tract B when looking at the exemption. COMMISSIONER STRAIN: Well, I would take exception to the fact, you're not focusing on tract B, because you're asking for a PUD for the entire project. MR. YOV ANOVICH: Right, as far as the impacts I'm talking about. COMMISSIONER STRAIN: Okay. But based on a 41-acre PUD, is that required to go before the EAC or not? Can the county attorney -- based on a 41-acre PUD, can the county attorney tell me if that's supposed to go before the EAC or not. MS. STUDENT: I can tell you generally, and Mr. White might wish to chime in, but if there are environmental concerns, it's my understanding that they usually do go to the EAC. Now, staff may wish to explain why it didn't or why it didn't need to go, and I would allow Mr. DeRuntz that opportunity. MR. DeRUNTZ: It was the environmental staff that said that because of the size of the remaining portion that was undisturbed where the PUD is being created for at an additional 43 units, that it did not need to go before the EAC. COMMISSIONER STRAIN: My concern was not what staff wanted to do with it but what the code required of it. And I know this issue came up in response to Coconilla when it was figured around 10 acres and they weren't going to go to the EAC first, and then they ended up having to go back through the process because someone determined it was required to go before the EAC. Now, is this one, being 41 acres, exempt because of its size of the overall proj ect or exempt because of the disturbed area that is being -- MR. DeRUNTZ: It was because of the disturbed area. COMMISSIONER STRAIN: So from now on if projects come before us and they're going to disturb less than 10 acres, no matter how big they are, they don't have to go before the EAC, is that -- Page 109 March 17, 2005 MR. BELLOWS: For the record, Ray Bellows, zoning manager. The staff, when reviewing at the pre-application process, time of pre-application meeting, works out a process of determination of what the application is, and they can determine whether certain portions of the project are preexisting and developed or have been previously reviewed through an EIS, and they make a determination whether the entire project or a portion of the project needs to go. If a portion of the proj ect meets their criteria, then they will take the petition to the EAC. This did not meet that criteria. It was less than their minimum acreage requirements. They don't include all of a PUD if the preexisting part of that PUD was previously developed and approved under previous ordinances and was found consistent at that time. COMMISSIONER STRAIN: Okay. So that rule is written somewhere in our Land Development Code, so when I get time I can find it -- MR. BELLOWS: I'm not sure it's a policy in the LDC. I'll have to verify that. COMMISSIONER STRAIN: Well, I can check it. I just didn't know. I didn't have time to do that, the little bit of time I knew I was going to be reviewing this. I have questions specific to the PUD. Is it appropriate to ask them now, Mr. Chairman? CHAIRMAN BUDD: Sure. COMMISSIONER STRAIN: On 2.10 of your PUD, you have an item called common area maintenance. And it says, one or more property owners associations will provide most common area maintenance. Who's going to do the rest? 2.10 on Page 2-3. MR. YOV ANOVICH: I believe that probably the word most needs to come out. MR. WHITE: I'd suggest also that a review of Section 2.4(B) Page 110 March 17, 2005 may be pertinent, where it talks about the developer or assignee shall be responsible for maintaining roads, streets, drainage, common areas, water and sewer improvements that were not dedicated to the county. COMMISSIONER SCHIFFER: So does that include Santa Barbara then? It's not dedicated to the county. MR. YOV ANOVICH: Santa Barbara is a county road. COMMISSIONER SCHIFFER: It's an easement, though, it's not MR. YOV ANOVICH: It's an easement in which they constructed their road. Okay, we didn't construct the road and then dedicate it. It's an area that we allowed the county to construct on our property. I think that's different. COMMISSIONER STRAIN: What I'd like to know is -- to clarify what Mr. White just said so we know it's stipulated, so maybe Pat, whatever you were referring to, you could try that again? MR. YOV ANOVICH: Tell me what you want. MR. WHITE: The reference was to 2.4, capital letter B, and the second sentence therein on page Roman numeral II - 2. MR. YOV ANOVICH: Okay, what do you suggest, Mr. White? I mean, this is the first -- what does the county attorney's office want to see this provision say? MR. WHITE: Well, certainly we'll defer to the staffs position on it and in whatever would otherwise be lawful. But I think the notion is you'd have to harmonize the point at which the maintenance functions would evolve from those of the developer to those of any association which typically would be consistent with the requirements of the restrictive covenants for turnover. So-- MR. YOV ANOVICH: I'm assuming the word assigns would address the situation when we do turnover. We would assign it to the property owners association. That's my understanding of how that would work. Until we do assign that responsibility, it is ours. And I think that Page 111 "".,"-~,. March 17,2005 works fine with 2.10 that basically says that we anticipate that there will be one or more property owners associations taking care of the common areas. MR. WHITE: Well, I think the distinction is between things that are easements or tracts that may as ownership interest be dedicated, and those things that are otherwise facilities that would be owned. Now, I'm not looking to split hairs, but I think we have processes that solve -- MR. YOV ANOVICH: Is this something that we can address outside of the -- you know, we'll clean it up however the county attorney's office wants -- MR. WHITE: That's agreeable to me, Mr. Chairman. In fact, there was a point in these proceedings where I was going to have to ask that certain other housekeeping type matters pertaining to LDC sites, code of law sites and a specific provision that I had talked with the staff about that I think Mr. Arnold may be in agreement with that we've asked for in other PUD's as part of their general development commitments pertaining specifically to restrictive covenants, enforcement of them by lot owners, pre or post turnover, all be added into the PUD document. And if that is acceptable to Mr. Y ovanovich, certainly we can work that out before the BCC and have it exactly stated. MR. YOV ANOVICH: I would hate to put the Planning Commission through that at this point. So yes, we can work through that outside of -- CHAIRMAN BUDD: That will be fine. Other questions, Mr. Strain? COMMISSIONER STRAIN: Oh, yeah. 3.4, you have A-I, 2 and 3. I think you mean A-I, then you need to suballocate 2 and 3, because they're subcategories of A-I. It's just confusing the way it's written. So you may want to -- MR. YOV ANOVICH: We'll work on the formatting. Page 112 March 17, 2005 COMMISSIONER STRAIN: On table one, Santa Barbara Landings, you have your setback at 20 feet. I think previously we've always used 23 feet. Do you have a -- MR. YOV ANOVICH: I understand that's with relationship to the -- that's typically from a sidewalk. MR. ARNOLD: If I might, Mr. Strain, address that. There are two things. I think there's an understanding on our part that the new component of this project that's meant to be a for sale project, these 43 units, the 23 feet for the garage to sidewalk works. There may be an option for us to have a differing structure where the garage is actually recessed back. So we would like to keep the 20 feet. But I think it was important to note the 20 feet, because I believe when we did some of the math, some of the existing structures were served by parking that was not more than 20 feet from -- COMMISSIONER STRAIN: And my clarification would really be to the new. I can't -- it's not practical to go back and do the old, but I think the new structures ought to be to 23 feet that we've held everybody else to. MR. ARNOLD: Can we make that garage? COMMISSIONER STRAIN: As long as it's a front entry garage. If it's a side entry, it doesn't matter. But a front entry -- MR. YOV ANOVICH: Okay. So we'll clarify that, sure. COMMISSIONER STRAIN: -- garage would be 23 feet for any new structures. Your side yard setbacks, you notice you have the footnote one? Well, footnote one is for front yard setbacks. So what did you mean in that? MR. YOV ANOVICH: Looks like it's a typo, Mr. Strain. COMMISSIONER STRAIN: So that would be eliminated? MR. YOV ANOVICH: Looks like it should. COMMISSIONER STRAIN: Okay. Under your maximum building height, you have two stories or 30 feet. Now, a story in a Page 113 March 17, 2005 residential structure generally is anywhere from eight to 10 feet. You're asking for a maximum of 30. So is that your actual height or is that your zoned height? You only need 20 feet in the actual height of it, using 10- foot ceilings, which you probably won't use, in the price structure you'd be having here. So do you want 30 feet actual or do you want 30 -- MR. YOV ANOVICH: Well, Mr. Strain, don't forget, this also deals with our existing buildings, so -- COMMISSIONER STRAIN: Well, then let's just talk about the new buildings. Because when the existing ones were built, we didn't have actual and zoned. MR. WHITE: Mr. Chairman? CHAIRMAN BUDD: Sir? MR. WHITE: If I may interrupt, before Mr. Y ovanovich answers, he may want to take a look at the provision in 4.3(B) 3, last sentence, that's Roman numeral IV -1, that says maximum height for any structure shall be 35 feet. I know that's in the preserve areas, but again, I think the issue is whether -- COMMISSIONER STRAIN: We're getting there. MR. WHITE: -- actual or zoned. COMMISSIONER STRAIN: I have that one circled, too. MR. WHITE: Sorry, didn't mean to interrupt. COMMISSIONER STRAIN: No, that's fine. I appreciate it. MR. YO V ANOVICH: What do you want to do? CHAIRMAN BUDD: Okay, we'll count that as a side bar to your client. You need to represent on the record -- MR. YOV ANOVICH: I understand. CHAIRMAN BUDD: -- to the microphone. MR. YOV ANOVICH: I'm trying to understand as far as Mr. Strain's height. I don't know the issue, Mr. Strain, with saying 30 feet zoned height. I mean, is there a problem with 30 feet zoned height with two Page 114 March 17, 2005 stories? COMMISSIONER STRAIN: I'm just asking you what it is, the question -- MR. YOV ANOVICH: It was. It was 30 feet zoned height. If there's an issue with that, we'll -- we'd like to address it. COMMISSIONER STRAIN: That's going to segue into Mr. White's comments. MR. YOV ANOVICH: On the preserve? COMMISSIONER STRAIN: 4.3(B) 3, two things: You're going to allow the development services director to determine what's compatible with the preserve area? I think in previous PUD documents, we've always elected to strike that kind of language. MR. YOV ANOVICH: Okay. COMMISSIONER STRAIN: And no building setbacks shall be applicable for any permitted structure? I'm not -- so that means setbacks from what? Obviously not setbacks from preserve, because you're proposing it to be in the preserve. But what about your perimeter boundary line, since you are against two or three of those on the south side of this project? MR. ARNOLD: You're correct, Mr. Strain. This is Wayne Arnold for the record. The way that staff has asked us to structure these, it's very confusing for those of us who have to use it as well. But the setback was meant to be applicable to the preserve boundary itself. But I understand your part. At this point we don't have -- COMMISSIONER STRAIN: It will get clarified? MR. ARNOLD: We certainly can. I mean, I have no problem establishing the minimum setback from PUD boundary in a preserve, if that's something we need to do. And I would make it consistent, hopefully with something we have in the residential section. COMMISSIONER STRAIN: Well, I think would. After all we've learned today, I think we need to make this as explicit as we Page 115 March 17, 2005 possibly can. The maximum height for any structure shall be 35 feet. That's higher than your -- the residential buildings you want. Why would you want 35 feet in a preserve? MR. ARNOLD: A viewing tower to the preserve. COMMISSIONER STRAIN: Of what, to the -- MR. ARNOLD: I'm kidding. COMMISSIONER STRAIN: -- Emergency Services Center to the south or Santa Barbara to the west? MR. ARNOLD: Yeah, we go back to that. I said that in gest. MR. YOV ANOVICH: You know, it may be an ideal location for, you know, an artificial tree. COMMISSIONER STRAIN: Or the hundred acres, huh? COMMISSIONER CARON: There's mitigation right there. COMMISSIONER STRAIN: But I think 35 feet -- MR. YO V ANOVICH: We understand your point. COMMISSIONER STRAIN: Well, understanding it is not clear enough for the record. MR. YOV ANOVICH: Do you want it to say 30 feet? COMMISSIONER STRAIN: I'd say 20 feet. MR. YO V ANOVICH: That's fine with me. COMMISSIONER STRAIN: That's consistent with what other people have received, so -- and Ray, are you making notes on all this? MR. BELLOWS: Yes. We have two people taking the notes. MR. YOV ANOVICH: We're counting on you for the motion. COMMISSIONER STRAIN: 5.6(B), lakes shall be designed in accordance with cross sections as shown on surface water management plan, Exhibit B. Why would we have that? Why don't they design pursuant to Land Development Code? MR. ARNOLD: Wayne Arnold. Part of that lies in the fact that those lakes were constructed many, many LDC's ago, so we've shown essentially the cross-section Page 116 March 17, 2005 that was what we've determined to be there. Whether or not it complies with today's code, I don't know, but it wasn't our intent to go back and have to reshape, recreate and re-dig the water management lakes that are fully functioning and permitted. COMMISSIONER STRAIN: Are you digging any new lakes? MR. ARNOLD: No, we're not. COMMISSIONER STRAIN: Okay, well, then if you're not going to go in for an excavation permit, where would you be in violation? MR. ARNOLD: I don't know that we would be in violation of anything under the LDC, because I don't know that they comply with today's LDC requirements for those existing lakes. COMMISSIONER STRAIN: Well, Ray, if they have existing lakes, that obviously had to be approved at some point in time. MR. BELLOWS: Yeah, it did. COMMISSIONER STRAIN: If they turn this into a PUD from an RMF -6, does that mean you're going to go in and re-measure or recheck all those lakes and make them conform to -- MR. BELLOWS: No. I think one of the reasons they may wanted to have some language in there is for future potential redevelopment of the site. If they have standards in the PUD that are similar to what was approved under an old order but no longer currently deemed to meet current code requirements, that this would give them that sort of vesting to what was previously done. But now the code no longer permits but you would have a PUD document that would permit those development standards. COMMISSIONER STRAIN: Basically then your -- this document wants to preserve the lakes as currently constructed. MR. BELLOWS: That's correct. COMMISSIONER STRAIN: Okay. So you're not cutting anymore lakes, you're just going to -- the lakes that are there -- MR. BELLOWS: Yeah, maybe that's a better way of stating it. Page 117 March 17, 2005 COMMISSIONER STRAIN: Okay. Well, I would hope that we get to that point then. Under the utility section, you're getting into sizing of pipes and all other elements into this utility section. Now, I don't know if the utility department's reviewed this, but why are we doing that when the utility ordinance is pretty clear on what you've got to have? MR. YOV ANOVICH: That's the question you're going to have to ask your staff. These are provisions they gave to us to put in the PUD document. COMMISSIONER STRAIN: Okay. Because you're getting into private lift systems, reclaimed water distribution systems and everything else. And Ray, why is all this in here? I mean, we've got ordinances that say they've got to do it, so why are we saying it again? MR. BELLOWS: Again, we're dealing with different departments that are out of my control. My staff has been directed not to put in redundant stipulations, but when we're dealing with interdepartmental stipulations, we have to defer to their recommendations. We've tried to coordinate with them to explain the need not to contain redundant stipulations, but in the end, as was previously mentioned during the past Planning Commission, staff will be presenting to you within the next few months a modified version of creating a PUD document where basically we'll just have an ordinance that states what the permitted uses are, what the development standards are, what the deviations from the code are, and they won't have any semblance to previous code requirements. COMMISSIONER STRAIN: Because that not only occurs in the utilities, but it occurs as well in the traffic and in the environmental sections. MR. BELLOWS: Those are different departments. COMMISSIONER ABERNATHY: It could get awfully Page 118 March 17, 2005 burdensome. COMMISSIONER STRAIN: 5.10(D). I have a question about your reference to Florida statutes. It says that your protective covenants will be per or similar to Section 704.06. The statutes allow you to be similar to or are you supposed to be pursuant to? MR. WHITE: If I may, Mr. Chairman? CHAIRMAN BUDD: Yes, sir. MR. WHITE: I apologize for not having a jacket. I got drenched at lunch. In regards to that particular provision, there are some processes newly developed that this would have to dovetail with. And they recognize distinction between dedicating certain tracts or easements on the plat or the conveyance of easements for conservation purposes in a situation where you have only a site development plan. And in both of those instances, either through the nature of a dedicated conservation tract or easement on a final subdivision plat or in the instance of a conservation easement burdening a site development plan, whether on-site or off-site relative to a particular plat or SDP, those conservation provisions and easements are intended to comply with the requirements of 704.06 as they may otherwise apply for the purposes of creating conservation easements. That is a statutory reference to the conservation easement section of the Florida statutes. And I understand the nature of your question is to say well, do they have to be exactly in conformity with or somehow similar to, such that there's some degree of elasticity. I think you have to apply this provision and understand it to mean that it will be as the particular facts may apply. There is no specific text in 704.06 that says this is the way you write one of these conservation easements, but we have successfully been able to work with the staff and through other folks in our office to create a process to review these to assure that the intent of 704.06 is Page 119 March 17, 2005 fully realized in all of the dedications and/or easements that are made to the county or other agencies that we rely on, such as south Florida. COMMISSIONER STRAIN: So if you meet the intent of 704.06, then you're really going to be pursuit to 704.06, right? MR. WHITE: I'd say the pursuant to would be perhaps the most well balanced choice of words, yeah. COMMISSIONER STRAIN: And the word similar can be struck and the word pursuant to can be used. Is that acceptable? COMMISSIONER ADELSTEIN: Yes. COMMISSIONER STRAIN: Then Mr. Scott, I know you've sat there all day dying to say something. CHAIRMAN BUDD: Now is your chance. COMMISSIONER STRAIN: I want to apologize, I didn't mean to miss your entertainment on Monday, but I did get your packet and I did review it. So my question is since we did not get a TIS, I did read where they believe they have a diminimous -- less than a diminimous impact, like below one percent. But one of the hand-outs that you provided on Monday showed an existing deficiency on Radio Road where this project is, essentially the deficiency in '05 on Santa Barbara in two locations, deficiency on Golden Gate Parkway, and an '09 deficiency on Davis Boulevard and a current deficiency on Davis and 951. So with all those deficiencies -- and by the way, I did do some more research and found that this Radio Road is a hurricane evacuation route, according to DR-7. Then I read Florida Statutes, section 163 .3180( 6), and it says further, no impact will be diminimous if it would exceed the adopted level of service standard of any affected designated hurricane evacuation route. So with all that being said, how does that all fit together with this project's application? MR. SCOTT: Don Scott, transportation planning. Page 120 March 17, 2005 Radio Road, Santa Barbara are programmed for next year. Radio's program is part of Santa Barbara. It's not really as noticeable when you go through those documents, but I think it says there's a note that it's part of Santa Barbara project. So that is within the two-year time frame we're talking about. Some of the other ones. Let's see, Davis is programmed five years out, which is about the 2008-2009 time frame, at 951. Essentially from Davis Boulevard over to 951. Let's see, what other sections you note? COMMISSIONER STRAIN: Santa Barbara. MR. SCOTT: Santa Barbara from Golden Gate down. And of course Golden Gate Parkway's been one of the ones we talked about a lot earlier in the week and previously. This area is within the TCMA. As long as 85 percent of those lane miles stays above level of service, then we're all right. And at the moment we are with those program projects. COMMISSIONER STRAIN: When are you expecting completion of the six-laning of Santa Barbara up to Golden Gate Parkway and the six -laning of Radio Road to Davis Boulevard? MR. SCOTT: It starts early next year. It would be two years later, so it would be 200 -- say early 2008. COMMISSIONER STRAIN: To be completed? MR. SCOTT: Yes. COMMISSIONER STRAIN: Open for business? MR. SCOTT: Yes. COMMISSIONER STRAIN: Okay. Thank you, sir. Oh, as far as the hurricane evacuation, have you ever looked into that issue? MR. SCOTT: Yes, we've had some discussions. COMMISSIONER STRAIN: Probably the wrong timing to bring it up, but it's -- MR. SCOTT: No, and actually that would have been a good Page 121 March 17, 2005 topic to discussion earlier this week. COMMISSIONER STRAIN: I had brought it. I was going to discuss it, but I wasn't there. MR. SCOTT: Yeah. And maybe we can talk about that before the board. That has been addressed with our outside legal counsel previously. It's not something that any -- from what I can understand from conversations wasn't anything that at different areas that were applying. Of course, if you look at -- for instance, 1-75 is our number one hurricane evacuation route, which is not part of our concurrency system. But the same -- if you applied that to it, everything would be shut down. But it would probably be better to get them to respond specifically to that, but I have had some discussions about that. COMMISSIONER STRAIN: Thank you, sir. That's all the questions I had. CHAIRMAN BUDD: Any other questions? (No response.) CHAIRMAN BUDD: There are none. COMMISSIONER STRAIN: I have one of the applicants then. CHAIRMAN BUDD: Okay. COMMISSIONER STRAIN: Do you have any objection to waiting to improve your -- to apply for site development plans after the road improvements are completed in the year 2008? MR. YOV ANOVICH: Excuse me a second, I don't want to you hear the side bar. Mr. Strain, we would prefer not to have that requirement as part of our application. Weare a diminimous impact, which means we're less than one percent. I don't see why we would need that requirement on our project. COMMISSIONER STRAIN: You add them all up. MR. YOV ANOVICH: Add all what up? COMMISSIONER STRAIN: All the diminimous impacts that Page 122 March 17,2005 have been approved throughout this county, you have one big impact. And we experience that every day. So that's why I asked. MR. YOV ANOVICH: I understand. And again, you know, we have a concurrency management system in place, and-- COMMISSIONER STRAIN: And you have a request that's discretionary here today. MR. YOV ANOVICH: Well, I don't want to get into that debate. I don't necessarily believe it's discretionary. I think that once we prove we're consistent with the comprehensive plan, the burden then shifts to the government to show why for a legitimate health, public and safety reason to turn it down. I think we're -- we're talking about a project that is a diminimous impact on the roadway system. Otherwise, we're fully consistent with the comprehensive plan, and we would like the concurrency management system to be applied to us like it would any other project. It might be an issue when we come for a site plan, who knows. But at zoning, it's not an issue at this time. COMMISSIONER STRAIN: Thank you. CHAIRMAN BUDD: Any other questions of the petitioner or staff? (No response.) CHAIRMAN BUDD: Are there any registered public speakers? MR. BELLOWS: No one's registered. CHAIRMAN BUDD: Any summary comments by the petitioner? MR. ARNOLD: No, thank you. CHAIRMAN BUDD: We'll close the public hearing. Discussion and/or a motion on this matter, please. Anybody have any feelings whatsoever on the petition before us? COMMISSIONER STRAIN: The applicant does not want to delay construction. That's the only way I could see a way to make a motion to approve it. So unless somebody else wants to make a Page 123 ""...._.._.....,~ March 17, 2005 motion -- CHAIRMAN BUDD: Well, I'll make a motion to forward with a recommendation of approval Petition PUDZ-03-AR-4493, subject to the conditions of approval incorporated in the PUD document. I understand Ray -- and actually I understand both of you were keeping notes on the verbal commitments. Do we need to read those in or-- MR. BELLOWS: It would be helpful if you went over them one more time, just to make sure we got them correctly. CHAIRMAN BUDD: Well, I wasn't taking notes, so do you have the notes on those commitments that were made? MR. WHITE: Either that, or if we could all just agree that between the county attorney's office, the staff and Mr. Y ovanovich and Mr. Arnold, we have captured them, and certainly we'll provide a copy for Mr. Strain for his review, to assure that we've captured them all. Because I'm afraid if we miss one now and don't agree on it, that it still ought to be in there. CHAIRMAN BUDD: Okay, I'm comfortable with that in the motion. Do we have a second? COMMISSIONER SCHIFFER: 1'11-- COMMISSIONER ABERNATHY: Second. COMMISSIONER SCHIFFER: -- second. CHAIRMAN BUDD: Second by Mr. Schiffer. Motion and second. Discussion? COMMISSIONER STRAIN: Yes. There were three or four other stipulations that the applicant brought up. One is an eight-foot wall, the construction of which won't occur until Tract B is developed. Two is that the limitation Tract B. Three, that the six-foot sidewalk will be on one side in lieu of the five-foot sidewalk. And then lastly, we're going to be -- I guess it dovetails with what Pat White just said, we're going to strike a lot of the redundant language, where necessary. CHAIRMAN BUDD: I'm in agreement with all of those items. Page 124 March 17, 2005 COMMISSIONER SCHIFFER: As am I. CHAIRMAN BUDD: The second also in agreement. Further discussion? (N 0 response.) CHAIRMAN BUDD: There is none. We'll call the question. All those in favor of the motion, please signify by saying aye. COMMISSIONER ADELSTEIN: Aye. COMMISSIONER ABERNATHY: Aye. COMMISSIONER SCHIFFER: Aye. COMMISSIONER MIDNEY: Aye. COMMISSIONER VIGLIOTTI: Aye. CHAIRMAN BUDD: Aye. Those opposed? COMMISSIONER STRAIN: Opposed. CHAIRMAN BUDD: The motion carries 8-1 -- I'm sorry, Ms. Caron? Two opposed? COMMISSIONER CARON: I said -- yes, I am opposed. CHAIRMAN BUDD: Oh, two opposed. Then motion carries 6-2. Is that right? Because we're missing one. Eight total commissioners present. Okay. That is that item of businesses. That concludes the public hearings. Either under old or new business, Mr. Strain wanted to discuss the AUIR information he has received. COMMISSIONER STRAIN: I just wanted to make it clear for the record that we did -- I did get a response to the questions that were poise had at the AUIR. I've read them all. With the exception of No. 6, parks and recreation, they all make sense. Number six was kind of blurry, and so it would be good reading if one wants to laugh at how government creates numbers, so -- CHAIRMAN BUDD: Are copies of that available to us? COMMISSIONER STRAIN: They were all e-mailed to you all. Page 125 March 17, 2005 CHAIRMAN BUDD: Okay. I didn't check my e-mail then. Okay, very good. Anything else on that report, Mr. Strain? COMMISSIONER STRAIN: No, sir. CHAIRMAN BUDD: Okay, then moving on to our next item. Mr. Abernathy wanted to revisit the request by Mr. Vigliotti that we have a prayer or invocation at the beginning of our meetings. So with that, would Mr. Vigliotti like to make some comments about what you're -- the nature of your request? COMMISSIONER VIGLIOTTI: Yeah. I brought up a few meetings ago that I'd like to start within vocation. And we spoke about it and everyone seems to be in agreement. So what I did is I wrote up a little invocation. Everybody has a copy of it. I'd be willing to say it before each meeting. The BCC does it, the state legislature does it, so I can't see why we can't do it, unless anybody or everybody is opposed. CHAIRMAN BUDD: Okay. Other thoughts on that item? COMMISSIONER CARON: Does the BCC do a prayer before every meeting? COMMISSIONER ABERNATHY: Well, I'm not convinced that what these other elected legislative bodies, or just elected bodies, what they do to fulfill what they see as their responsibility to their constituents should lead us as an advisory committee or the EAC or the code enforcement or any other advisory board to adopt this ritual. I'm just opposed to rituals. You know, we got along for years without reciting the pledge of allegiance. Along came 9/11 and we're told to recite the pledge. Well, I don't feel any more patriotic as a result of having done that. And I don't think any of us are going to feel any closer to God for getting somebody to get up and read through a four-line prayer. I don't know what exactly Mr. Vigliotti's religious a affiliation is, but I doubt very seriously from what I've heard that the tenets of his Page 126 March 17, 2005 religion are the same as mine, although I'm a Christian as well. We may have people in this room who are agnostic or Jewish or what -- I don't suspect is any Muslim here, but it's just -- it's not anything that we need to get ourselves into. I've got two or three clippings here where this whole thing is being litigated. Here's a letter to the editor about the school board, another letter to the editor. Here's a school boards can't hold prayers before meetings, federal judge says. Why do we want to get ourselves into this? We don't have any electorate that we are responsible to. So what's the point? I mean, make Mr. Vigliotti feel better or it's consistent with the tenets of his religion, if he's an evangelistic or whatever. That to me is not enough reason to burden the other eight of us with this ritual. We're the custodians of the Planning Commission for the years that we're on it and I don't think we ought to start fiddling around and grafting things that traditionally have never been a part of it. CHAIRMAN BUDD: Other comments or thoughts on this item? Mr. Midney? COMMISSIONER MIDNEY: I know where I live in Immokalee there used to be a time where everyone was in the Christian religion, but lately we've been having some people of the Muslim faith move in. And, you know, things are not now what they were. And to me I think it would be better for us to be -- to error on the side of being inclusive and not to inject things into our proceedings that are not really relevant. COMMISSIONER ADELSTEIN: I tend to go along with what you just said. CHAIRMAN BUDD: Other comments? COMMISSIONER ABERNATHY: What did you say, Lindy? CHAIRMAN BUDD: Mr. Adelstein was in agreement with you, Mr. Abernathy and Mr. Midney. Any other comments? I'm also in agreement with the comments made by Mr. Abernathy. Page 127 March 17, 2005 COMMISSIONER STRAIN: For my part of it, I don't have any feelings one way or the other. All I know is Mr. Vigliotti said if anybody was opposed to it, then obviously he would withdraw it. And I think we've seen there's some opposition, although I don't include myself in the matter. I would assume that it's withdrawn. COMMISSIONER SCHIFFER: I kind of feel the same way as Mark. CHAIRMAN BUDD: Okay. Very good. So with that, we have some sentiment not desiring to move forward. And we'll -- barring a motion or some formal structure, we'll take that as an idea that it isn't going anywhere and -- with respect to the all of the opinions that everybody has expressed today. Next item of business, public comments. There appears to be none. Discussion of addenda. Adjourned. Thank you. ***** There being no further business for the good of the County, the meeting was adjourned by order of the Chair at 1 :52 p.m. COLLIER COUNTY PLANNING COMMISSION RUSSELL A. BUDD, Chairman Page 128