CCPC Minutes 08/29/2006 S
August 29, 2006
TRANSCRIPT OF THE LDC MEETING OF THE
COLLIER COUNTY PLANNING COMMISSION
Naples, Florida August 29, 2006
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 SPECIAL SESSION
in Building "F" of the Government Complex, East Naples, Florida,
with the following members present:
CHAIRMAN:
Mark Strain (Absent at roll call)
Lindy Adelstein
Donna Reed Caron
Tor Kolflat
Paul Midney (Absent)
Robert Murray
Brad Schiffer
Russell Tuff (Absent)
Robert Vigliotti
ALSO PRESENT:
Ray Bellows, Zoning & Land Dev. Review
Joseph Schmitt, Community Dev. & Env. Services
Marjorie Student-Stirling, Assistant County Attorney
Don Scott, Transportation Planning
Mike Bosi, Comprehensive Planning
Catherine Fabacher, Zoning & Land Dev. Review
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August 29, 2006
VICE CHAIRMAN ADELSTEIN: Would we all rise for the
pledge of allegiance.
(Pledge of Allegiance was recited in unison.)
VICE CHAIRMAN ADELSTEIN: Commissioner Caron, would
you please read the roll.
COMMISSIONER CARON: Mr. Kolflat?
COMMISSIONER KOLFLAT: Here.
COMMISSIONER CARON: Mr. Schiffer?
COMMISSIONER SCHIFFER: Here.
COMMISSIONER CARON: Mr. Midney is absent.
Commissioner Strain is absent.
Mr. Adelstein?
VICE CHAIRMAN ADELSTEIN: Here.
COMMISSIONER CARON: Mr. Murray?
COMMISSIONER MURRAY: Here.
COMMISSIONER CARON: Mr. Vigliotti?
COMMISSIONER VIGLIOTTI: Here.
COMMISSIONER CARON: And Mr. Tuff is absent.
Thank you.
VICE CHAIRMAN ADELSTEIN: Okay. I want to welcome all
of you back. Weare still in the second reading of the LDC, smart
growth, Page 31.
Is Jean Jourdan coming?
MR. BOSI: No.
VICE CHAIRMAN ADELSTEIN: And Mike Bosi, Principal
Planner.
The LDC Supplement, one, adds language addressing the design
criteria and standards to incorporate commercial mixed use proj ects by
right in existing C-1, C-2 and C-3 Zoning Districts.
As a result, the committee is requesting to incorporate language
into the LDC to provide regulations for the two existing mixed district
- subdistricts, pardon me -- mixed uses for the subdistricts.
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August 29, 2006
Let's bring it on.
MR. BOSI: Morning, Commissioners. Mike Bosi,
Comprehensive Planning. I would like to apologize for my casual
appearance. I was preoccupied with other things and I forgot about
this morning's meeting. But I will assure you there's nothing casual
about the way that I approach your commission. I take this very
senous.
We're here to talk about the commercial mixed use proposed
amendments. At the last hearing we had heard the residential mixed
use components which the board had forwarded to the Board of
County Commissioners with a recommendation of approval.
The changes that were requested to be made to the residential,
because this language basically mirrors the residential, will be
incorporated within this document as well.
The primary change that we had from the first time that we
presented to the commission was -- could be found throughout the
text. And it basically refers to the street design criteria.
And what -- the changes that we've incorporated were basically
to say that this design criteria, and you can see it's on Page 40, I
believe would be the page within your text. And the statement says
this design criteria is only applicable to streets internal to commercial
mixed use projects. It is not applicable to project portions fronting on
existing collector or arterial roads.
As the commission had pointed out, some problematic areas with
existing right-of-ways and where these properties sit throughout
Collier County. And further conversations with transportation
department, we found that having these types of streetscapes on a
collector arterial would be problematic and would be out of character
with the other surrounding properties. We've taken those
requirements and put them to the interior streets. If a project was to
go forward, whatever streets are going to be created internally, that's
where the focus in the street activity and the sense of place that the
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August 29, 2006
smart growth advisory committee was looking to create. That's where
the -- that aspect has been displaced.
Other than that specific change, there hasn't been -- there hasn't
been that many other modifications other than the ones that we've
already discussed with the residential mixed use.
And with that, I'd open myself to any questions that the
commission may have regarding these proposed amendments.
And I would like to say, these are ones that apply to the existing
C-1, C-2 and C-3. This isn't the PUD zoning, this is the one for the
existing properties that had those zoning categories upon them.
COMMISSIONER MURRAY: Mike, there is some talk about
making these a conditional use, just to verify. That's what we've
determined to do?
MR. BOSI: We haven't had -- staff has spoken about that, and
we're aware that the commission was contemplating that move. And
we've had internal discussions between comprehensive planning staff,
the zoning staff and the various other departments within the county.
And as we thought about it more, we thought that that statement -- or
that change would make sense.
And it relates a little bit back to the point that Chairman Strain
had made at the first meeting when he had questioned bringing
another amendment where it's density by right. Because the density
was going to be prescribed as a permitted use to go forward straight
with just administrative review. And if we would take it to the
conditional use process, what that means is your -- the planning
commission and the Board of County Commissioners would both --
would both have the opportunity to evaluate the proposal, make
modifications, place conditions upon the proposal as they see that was
warranted, and it would go forward that way. It wouldn't stop the
implementing language, it would just make the process more vetted
through the public hearing process.
COMMISSIONER MURRAY: I recall having conversation via
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August 29, 2006
e-mail with Jean, who had posed the question, and I -- I agreed, I
thought that's what we should be doing, so I expected that to be
included. So if it's not already clear in here, then I think we ought to
make it clear, if my fellows agree, that it should be a conditional use
activity.
VICE CHAIRMAN ADELSTEIN: You want to make a motion
to that respect?
COMMISSIONER MURRAY: I think he can change the
language and we can have that as part of the record, and then when the
motion is passed, if it's passed, that that be included in that.
COMMISSIONER CARON: I had also expected that to be a
part of this language --
COMMISSIONER MURRAY: Yeah, I did too.
COMMISSIONER CARON: -- this time around.
COMMISSIONER MURRAY: You may have lost sight of that.
I think we --
MR. BOSI: And I apologize, because I didn't get to actually
speak on the commercial. And I know that Chairman Strain had
mentioned introducing conditional use. I just didn't -- I was unclear of
the specific direction. But now with that direction, I'll take it back.
And the amendments that we take before the Planning Commission
will have that modification, making this a conditional use process.
COMMISSIONER MURRAY: To the BCC.
MR. BOSI: Yes.
COMMISSIONER MURRAY: Thank you. That would be my
only question. The rest of it I thought was well done. But then I
would have.
COMMISSIONER SCHIFFER: Mr. Chairman?
COMMISSIONER CARON: Lindy?
VICE CHAIRMAN ADELSTEIN: I'm sorry, I didn't--
COMMISSIONER SCHIFFER: That's okay.
Mike, how would you do that then? You would go through and
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change these p's to C's?
MR. BOSI: It would -- residential use right now in C-1, C-2 and
C-3 isn't permitted, but it's permitted straight residential. I would go
back, I would change the permitted use table and conditional use table
to eliminate the permitted use and change it to a conditional use with
the modifications, still referencing back to 402.38, which has the
design criteria for that.
And within the affordable housing -- or the affordable housing
density bonus provision, that section will also have to be changed
because we had made it where if you had an Affordable Housing
Density Bonus Agreement, that it was going to be administratively
reviewed because this was not going to be a conditional use process,
that would be modified as well to reflect that any affordable housing
bonus agreement that goes along with a project like this would still
have to be a companion item to the conditional use process.
COMMISSIONER SCHIFFER: Okay. Another question is, we
had discussed maybe bringing C-4 into this. Whatever happened to
that?
COMMISSIONER CARON: We decided not--
COMMISSIONER MURRAY: I can relate to that, because bed
and breakfast, for instance, is C-4, and I missed that. That needs to be
in the GMP before it can be in the LDC. We'll be seeking an
amendment to the GMP to allow that. And I think that change will be
subject to vetting process.
MR. BOSI: And the specific language within the Growth
Management Plan restricts the commercial uses to C-1, C-2 and C-3
because of bed and breakfast, that type of use, which would be
appropriate for this type of district. But because that is above what the
GMP allows, we can't -- we can't add that without modifying the
Growth Management Plan.
COMMISSIONER SCHIFFER: But doesn't C-4 inherit C-3,
which inherits C-2, which inherits C-1 ?
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MR. BOSI: Yes.
COMMISSIONER SCHIFFER: So essentially doesn't C-4 have
that right, or are you precluding this from C-4?
MR. BOSI: C-4 is precluded by the Growth Management Plan.
And that's why you can't take a use that's only allocated within the C-4
and bring it to this proposed amendment, because the GMP says only
uses that are listed in C-1, C- 2 and C- 3 can go forward underneath the
commercial mixed use.
COMMISSIONER SCHIFFER: All right.
MR. BOSI: You can't -- the GMP doesn't allow you to go higher
-- the GMP does not allow you to go higher than C-3. The use of a
bed and breakfast is a C-4 use. So this proposed language, because
the GMP places that restriction, we can't pick one use that is provided
for in a higher tier and bring it down to the lower tier and not be in
disagreement with the Growth Management Plan.
COMMISSIONER SCHIFFER: I'm still not sure. I mean, so the
bed and breakfast, which is allowed in C-4, would not be allowed
within this proj ect?
MR. BOSI: No.
COMMISSIONER SCHIFFER: So C-4 is the higher here?
MR. BOSI: Yes. C-4 is a higher intensity of a commercial
zoning designation.
COMMISSIONER SCHIFFER: But can you bring things up to a
higher tier?
MR. BOSI: Yes, you can.
COMMISSIONER SCHIFFER: So wouldn't building this in a
C-4 be bringing something up from C- 3?
MR. BOSI: You couldn't build it. This is only applicable to
projects in C-1, C-2, and C-3 commercial zoning districts.
COMMISSIONER SCHIFFER: All right.
COMMISSIONER MURRAY: No matter -- if I may be
recognized?
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August 29, 2006
VICE CHAIRMAN ADELSTEIN: Go ahead.
COMMISSIONER MURRAY: No matter how -- the simple fact
is that we did not -- we lost sight of that in the process. We
recognized it when it was rather late, and we intend to have a GMP
amendment so that will become inclusive in such a project in the
future. And then we can do the Land Development Code as
necessary. So that's the only think I can say on that. It's unfortunate
that it's missed, because it would have been a very helpful inclusion.
COMMISSIONER SCHIFFER: All right, thank you.
VICE CHAIRMAN ADELSTEIN: Anymore discussion?
(No response.)
VICE CHAIRMAN ADELSTEIN: Go ahead.
MS. F ABACHER: Mr. Chairman, we have no speakers.
VICE CHAIRMAN ADELSTEIN: None at all?
MS. FABACHER: Not on this issue.
VICE CHAIRMAN ADELSTEIN: Where do you want to go
next?
MS. FABACHER: Entertain a motion?
COMMISSIONER MURRAY: I would make a motion. Let me
get the page.
I would make a motion that the Land Development Code
amendment to Section 1.08.02, 2.04.03, 2.06.01 and 4.02.38 be made
to include smart growth as outlined in the proposition on pages -- want
to fill in the pages for me? Because I'm not sure anymore, my pages
are wrong here. I think it's 47, but I'm not sure. Yes. Actually, it
could go up to 48-A. 48-A -- from 31 to 48-A in the current document.
Is that sufficient for the recognition?
MR. BOSI: Conditional use.
COMMISSIONER MURRAY: Oh, yes. And that the matter be
modified as -- from permitted to a conditional use with all changes
necessary, as applicable.
VICE CHAIRMAN ADELSTEIN: Is there a second?
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COMMISSIONER VIGLIOTTI: I'll second.
VICE CHAIRMAN ADELSTEIN: Okay. All in favor of the
motion?
COMMISSIONER KOLFLA T: Aye.
COMMISSIONER CARON: Aye.
COMMISSIONER MURRAY: Aye.
COMMISSIONER SCHIFFER: Aye.
COMMISSIONER VIGLIOTTI: Aye.
VICE CHAIRMAN ADELSTEIN: Aye.
All opposed?
(No response.)
VICE CHAIRMAN ADELSTEIN: Motion carries.
MS. FABACHER: Mr. Chair, I believe we have the
environmental issues now that Mr. Strain had indicated that we had
wanted to proceed with, so I think Barbara is -- or maybe Bill Lorenz.
COMMISSIONER CARON: Catherine, the pages?
MS. F ABACHER: Well, let's see which ones -- they would be --
I sent you -- it's in the -- let's see.
COMMISSIONER MURRAY: Are you referring to the
goldenrod now?
MS. FABACHER: Yes, yes, goldenrod.
Barbara, did you want to start with the exemptions from the
requirements for vegetative protection and preservation?
MS. BURGESON: I think we probably should start with the
stormwater since that's where we have most of the --
MS. FABACHER: Okay. Good point, good point.
MS. BURGESON: We've got several handouts.
COMMISSIONER MURRAY: Barbara, are these different than
the ones we have here?
MS. BURGESON: Let me put that on the record.
MR. LORENZ: For the record, Bill Lorenz, Environment
Services Director.
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What Barbara's handing you out is a color coded version, so that
when we track the changes from your previous draft to the current
draft, you can see where we made the changes. Because it's the same
COMMISSIONER VIGLIOTTI: It's the same?
MR. LORENZ: Correct. It shows the progression from your--
July 19th to the present. So I wanted to make sure that everybody saw
that progression and then that the public also, who's been providing us
comments, can easily see that. And so I made some extra copies for
the public as well.
MS. BURGESON: For the record, Barbara Burgeson,
Environmental Services.
The other two documents that are handed out are documents from
The Conservancy and from Ray Ashton with Gopher Tortoise. I'm not
sure the -- the Gopher Tortoise Council, I believe.
VICE CHAIRMAN ADELSTEIN: As far as I can see, though,
we're not going through these now, are we, these two that just came
in? Because they're not consistent with what I'm reading here.
COMMISSIONER MURRAY: I think they're intended to be so
that you can make a comparison.
MR. LORENZ: Right, right.
VICE CHAIRMAN ADELSTEIN: Okay. Okay. Go ahead.
MR. LORENZ: Yes. For the record, Bill Lorenz, Environment
Services Director.
As I noted to you, the color coded versions are just for your
comparison purposes. The yellow is the comparison.
Now, they're working with some of the stakeholders. Some of
the stakeholders have suggested some changes. And I put those
suggestions in the gray highlighting. They would want to put that on
the record. That's -- those would be some points of clarification. But
as we're going through the process, there has been some suggestions
there. And I know that they are here to speak.
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I'd just like to cover this, the overview, just a little bit. I want to
make sure that it's understood that these amendments do allow for
stormwater to go into preserves where there are wetlands within the
preserves.
They would allow for stormwater to go into preserves, where
there's also -- they're upland habitats, like PineFlatwoods or Palmetto
Prairie. These are typically habitats, vegetative communities that
many times are associated with wetlands. In some cases they may
have been at one particular point perhaps a jurisdictional wetland, but
because of hydrology, lack of water, lowering groundwater tables,
now they're dryer and they do not -- or do not become a jurisdictional
wetland. But many times they are somewhat imbedded with some of
the other wetlands and they work together with the wetland systems.
The proposal does allow for certain very much upland habitats or
xeric habitats that are listed in the bulleted form in your amendments,
such as Sand Pine, xeric oak. Only to the degree that when those
habitats are within a preserve boundary and that preserve boundary
has other types of, let's say, closer -- other types of lower in elevation
habitats, like wetlands or the Pine Flatwoods, that when they are a part
of that total preserve area, stormwater can go into the total preserve
area. But the amendments do not allow for the water to directly go
into these xeric habitats.
So the only way the stormwater can get into these habitats is
within the preserve area that's accepting stormwater after it goes
through some minimal treatment, the water level rises to some degree,
and then it will rise up to the level within these habitats. Typically
this would be in a return type of event. It's not going to be a routine
seasonal type of storm.
So the point of it is, is that when these habitats exist within a
preserve, that they can receive stormwater subj ect to the criteria that
we have in here. No direct discharge, and it's basically rising water
level to take care of storage concerns.
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The -- and one of the reasons we went that direction, because
when we create a largest contiguous area preserve, we want to be able
to have a variety of different habitats. If the site has a mixture of some
of the xeric habitats grading into the wetland habitats, it's best to have
those all in one preserve area. That would be your largest contiguous
area that would be mapped out.
If we put all of that in one area, and we want to be able to hydrate
the wetlands, then if we don't allow the stormwater to go in the
preserves containing the uplands, then we'll have to put a berm around
the uplands to separate it from the, quote, wetland preserve. That's
what we're trying to avoid with these regulations.
I think the largest issue is the listed species issue. And from the
previous draft that you have seen in terms of your formal submittal,
we have gone from a direct prohibition to -- a direct prohibition of
stormwater in preserves that contain listed species to a prohibition
unless we receive technical assistance from the wildlife agencies.
VICE CHAIRMAN ADELSTEIN: Commissioner Caron?
COMMISSIONER CARON: Yeah, I guess my first question is
how are you dealing with this issue right now?
MR. LORENZ: Well, that's -- it's a mixed bag, quite frankly.
When we worked through -- it was about a year and a half ago, several
applicants came to us and said the Growth Management Plan does not
have a strict prohibition of stormwater in preserves. Previously staff
would allow stormwater to go in preserves where there was a wetland
system, a jurisdictional wetland, and the Water Management District
was permitting that to go into that wetland preserve.
The current Growth Management Plan talks about passive
recreational uses are what's allowed in preserves. So we get into a
little bit of an unclear position as to if the Growth Management Plan
does not explicitly allow for stormwater preserves but yet we were
allowing stormwater to go into the wetland preserves, there was no
clear guidance for even staff to go that far.
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So we were then getting pressure from the development
community to say well, what about these areas that are not
jurisdictional wetlands but are technically upland habitats but
probably in the past could receive some water, such as Pine
Flatwoods, Palmetto Prairies? And along those lines, we took the
position no, only stormwater -- passive recreational uses are allowed
in the preserves.
So we had -- on the one hand we couldn't say explicitly that we
could allow stormwater in preserves with wetlands because the
language doesn't allow for that. At the same time, we're saying if it's
not wetlands then we're not going to allow for stormwater. So we had
some -- quite frankly, we have not clarifying language.
The intent of these amendments is to define those situations
where it would be appropriate for stormwater to go in the preserves.
And we've also, if you recall, we have proposed in the
EAR-based amendments the amendment to allow for stormwater to go
in a preserve as long as there's no adverse impacts that could be
demonstrated. And those would be defined by the Land Development
Code.
So what we're trying to do is we're trying to provide for clarity
through the Growth Management Plan, through the Land
Development Code so that staff can apply the policy that ultimately
the Board of County Commissioners will adopt, consistently with
every situation with which we review.
COMMISSIONER CARON: How do you intend to monitor all
of this?
MR. LORENZ: Well, there is a monitoring requirement. It's
self-monitoring.
COMMISSIONER CARON: It's a self-monitoring --
MR. LORENZ: That's correct.
COMMISSIONER CARON: -- situation, though. Okay, let's
leave the fox in charge of the hen house, I guess.
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VICE CHAIRMAN ADELSTEIN: Mr. Murray?
MR. LORENZ: Well, let me add to that. It's self-monitoring in
that they have to provide the reports, monitoring reports to the county
staff.
COMMISSIONER CARON: Precisely, yeah.
COMMISSIONER MURRAY: Bill, the issue is an adverse use.
You said that would be defined in the Land Development Code. In
fact, though, it's really defined by the critters that live there. They'll
be able to determine if it's an adverse use because they'll be unhappy
with water crawling -- you know, coming into their burrows and
whatever else.
As I was visualizing or attempting to visualize the various
potential gradients of land and so forth where these things can happen,
in a preserve there's an expectation there will be a certain amount of
rainwater and a certain amount of events, and the water will slope off,
and any tortoises will burrow into upper lands.
If we inj ect water into that, do we not change the conditions? Do
we not change the preserve ultimately? And do we not cause the
tortoise to then seek to leave?
Are we disturbing it to such a point that it no longer really serves
as a true preserve? We can call it that, but it won't function as a true
preserve. It will function in a manner that might be acceptable in
name, but I see it -- if we consider the land as it exists as being
undisturbable -- and maybe that's my problem, maybe I need to
understand that we have this reason to disturb it. If we disturb it and
change it, do we have a preserve?
And I guess you could make the argument that yeah, we had a
dry preserve, now we have a wet preserve or we had a wet preserve,
now we have a dry preserve. But I'm not sure what we're doing there.
And if you could help me with that, I would appreciate that very
much.
MR. LORENZ: Well, let's parse out the listed species concern
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for the moment. And let's look at the individual habitats that we have
on-site.
In Collier County, I think it's a fair -- it's fair to say that
development in the past, not current development, but development in
the past has lowered our groundwater tables. Where before we had
large amount of wetland systems are no longer wetland systems
because the hydrology is not there. In fact, that's even when you read
some of the --
(At this time, Chairman Strain enters the boardroom.)
MR. LORENZ: -- comments from The Conservancy, when
you're talking about adding water into some of these wetlands systems
that have dried out, that water then becomes a benefit to those wetland
systems, a true wetland system. And of course as you add water to
that wetland system, you're going to change the character of the
vegetation in it.
We're saying that's a positive -- the presumption is that's a
positive benefit, to rehydrate those wetlands.
So let's go from a jurisdictional wetland now up to a different
kind of vegetative community, which would be pine, Palmetto or Pine
Flatwood. Palmetto Prairie or Pine Flatwood.
Now, those systems in the past are, to some degree, with better
hydrology could be a jurisdictional wetland. They have suffered from
lowering groundwater tables. And what you see right now is
reflecting of a dryer condition. Many times those areas are mapped
out and could be very close, in close proximity to the jurisdictional
wetlands.
So there is some opportunity for beneficial use -- for those to
have a beneficial -- there's a beneficial objective there to providing
some additional water into a preserve that has some of those systems.
But the criteria we put in the code talks about we want to make
sure that the elevation of those systems are set appropriately so that
we're not going to inundate them with too much water.
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August 29, 2006
COMMISSIONER MURRAY: Yeah.
MR. LORENZ: And that's the criteria that we have, which is the
one- foot separation to control elevation, or hydrobiological indicators
that would indicate that those plant communities in the past have
experienced a wetter condition, a wetter hydrology.
So those are somewhat in the middle. And the criteria we have
for those aren't as rigorous as the next set of vegetative communities,
which is -- let's call them the true uplands, the xeric type communities,
the communities that we would see Gopher Tortoises in. Although
you can have Gopher Tortoises even moving from those communities
to a Pine Flatwood, to a wetland. They're going to be moving back
and forth.
But in the upland system, those true upland habitats, we have
established criteria that if they're part of a preserve -- now this is what
you have to think about. If we have a large preserve and we have a
portion of these systems that are in that big preserve boundary that's a
mixture of these systems and the other wetland type of systems, that's
where we're allowing stormwater to go into the preserve area. And the
stormwater is going to go into those lower systems, the wetland type
systems, raise up and -- stage up and down, and be in contact with the
upland systems as the water level is going up. Remember, those set
higher.
The criteria we placed in there is that they can't be part of the
preserve unless their average ground elevation is three foot above
control elevation.
Now, the control elevation for a project is set to determine what
the seasonal high groundwater table will be. That's the design. It's
established -- it's established to try to ensure there's protection of the
habitats, is one of the reasons for protection of the habitats.
So the stormwater engineer, the designer is designing against that
control elevation. That control elevation has been established as a
result of field work or other off-site projects, and it's going to maintain
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August 29, 2006
a groundwater elevation, a seasonal high groundwater elevation
essentially at that level.
Our requirements require that the average habitat for those xeric
communities are three foot above that control elevation, or you can't
have them as part -- they can't be any lower than that, unless you can
demonstrate that a 10-year storm is going to drain within 24 hours. A
10-year storm is about seven or eight inches of rain in Collier County.
So those are fairly rigorous criteria to try to protect those upland
habitats. And remember, there's no direct discharge into those upland
habitats. In other words, in your -- the water that those habitats will
see will be the direct rainfall that falls directly on them. No runoff
from surrounding development. And then when water stage is up in
the stormwater preserve, that water can then come up into them
through the groundwater table. So that's the mechanisms that are
occurrIng.
And what we tried to do was, again, try to protect those habitats
from eliminating direct discharge into them and also ensuring that
their elevation is high enough above control that we would not expect
to see that they would be inundated very frequently with your yearly
or annual events.
COMMISSIONER MURRAY: Okay, thank you.
CHAIRMAN STRAIN: Mr. Lorenz, I'm assuming we're starting
on Page 93?
COMMISSIONER MURRAY: Eighty-three. Well, maybe not.
MR. LORENZ: Correct.
CHAIRMAN STRAIN: Okay. And the sheet that we're working
off of is the golden sheets that were given out to us by packet?
MS. FABACHER: Yes, sir.
CHAIRMAN STRAIN: What was the purpose of this handout
that we have here?
MR. LORENZ: Just to illustrate the differences between your
July 19th public hearing draft and the -- your current one that you
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August 29, 2006
have.
CHAIRMAN STRAIN: Okay. Are these changes highlighted in
yellow already incorporated into the golden sheets?
MR. LORENZ: That's correct.
CHAIRMAN STRAIN: So if we read those, we don't need to
worry about reading this. Good. Thank you.
Good morning. Sorry I'm late. I was at the dentist. I told him to
numb me up real good so I could get through today. Seems the easiest
to get through these kinds of meetings.
With that, we'll start on Page 93. And Bill, are you making a -- is
your presentation over with? I came in late, so I wasn't sure if you
were responding to a question or if you were continuing or finishing
your presentation.
MR. LORENZ: Well, I was -- I'm pretty much finished with my
overvIew.
The only other point, Mr. Chair, is that that yellow sheet also
shows some gray highlighting of some proposed or suggested changes
that we have heard from the -- some stakeholders. And we've got that
in there. I believe that they're going to be speaking to some of those.
Those would be changes that we would be comfortable with, if so
directed.
CHAIRMAN STRAIN: Okay. Well, let's start as we normally
do, page by page with questions from the commissioners. And let me
remind everybody, you need to be recognized in order to speak, and
don't talk over one another. Please, try to retain a slow form of
conversation so the young lady can patiently take our words. I will
hopefully be a little slower today myself.
Mr. Vigliotti, did you have anything?
COMMISSIONER VIGLIOTTI: Yes, I have a question, Bill.
Bill, you had said that the increased water levels will actually
change the vegetation and it will be an advantage with the new
vegetation. How will that affect the animals with the higher water
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August 29, 2006
levels?
MR. LORENZ: Well, I had said that there's a good chance that,
let's say in a wetland system, if it's hydric, if it's a wetland that has
been somewhat starved of water, you're going to get some additional
wetland plants within that wetland system. So you will see a change
in that wetland system.
COMMISSIONER VIGLIOTTI: And that's a good positive
thing is what you're saying?
MR. LORENZ: And that's considered to be good and positive.
Now, there's no guarantees, you know. I want to make it very
clear that as we put this through, these proposals are to try to minimize
any adverse impacts.
But certainly if you say you're going to have no changes, there's
some places where we would expect a positive change. That's why
you'd want to rehydrate some of the wetland systems.
What we want to try to minimize is adverse changes. For
instance, if we were to inundate a Pine Flatwood with too much water
for too long a period of time, that's where you may run into problems
where you may kill the pine trees. And we certainly don't want to do
that. And we have established the criteria so that we think that that
will be minimized to an acceptable level.
But I don't want to sugar coat any of this to say that we would not
expect changes. I mean, we would expect changes. We try to
establish the criteria so that the adverse changes are minimized and
any positive changes are taken. That's our opportunity.
COMMISSIONER VIGLIOTTI: Thank you.
CHAIRMAN STRAIN: Bill, could you explain to us what the
current code provides in regards to use of preservations?
MR. LORENZ: Sure. The current code simply says that passive
recreational uses are allowed in preserves.
CHAIRMAN STRAIN: How about water management?
MR. LORENZ: It does not speak to water management.
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August 29, 2006
CHAIRMAN STRAIN: So basically the position has been that
no water management is allowed in preserves currently. Is that the
way we --
MR. LORENZ: Well, as I said earlier, there has been -- staffhas
allowed stormwater to go into preserves where there are wetlands, and
the Water Management District has allowed for that.
And I noted earlier that that becomes a -- I mean, staff considers
that a benefit, but there's no clear language to allow for that.
MS. BURGESON: But it may help to understand that as staff is
accepting stormwater into wetland preserves as a benefit to those
wetlands, that we didn't specially state that it was acceptable to put
stormwater in those wetlands. What we required was that the
applicant restore or rehydrate or enhance the wetlands to improve the
hydrology so that those wetlands would flourish and become more
sustainable as wetlands.
If the applicant accomplished that through pre-treated, fully
pre-treated stormwater, that's how they accomplished it. But we didn't
specifically state that it was stormwater that was allowed in wetlands.
It was just that we were requesting or supporting the enhancement or
the restoration or the improvement of the hydrology of those wetlands.
CHAIRMAN STRAIN: And the way this new language reads,
you would be allowing stormwater not only in wetlands but in various
levels of uplands as well; is that correct?
MS. BURGESON: Yes.
MR. LORENZ: Yeah.
CHAIRMAN STRAIN: So the difference is quite dramatic.
Has the county in the past allowed any stormwater in upland
areas that were designated preserves on sites that you know of?
MS. BURGESON: Only on a case-by-case basis when they
brought data and analysis of that site to the staff to provide evidence.
And we would usually meet with them back and forth a few times so
that we felt assured that there wasn't going to be any negative impact
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August 29, 2006
to that area.
The issue there would be that if there was too much stormwater
placed in those areas, most of the sites are very maxed out. So you
really don't have an option to move that stormwater out of those areas,
should the vegetation start to die off.
So then you would accept that you would be changing the
vegetation in the preserves. And then what you would need to do is
identify what's the appropriate vegetation to plant in maybe a soil
classification that may not exactly match the hydrology. So you'd
have to do a little research to determine what was appropriate to
restore the preserve area.
CHAIRMAN STRAIN: So there is a mechanism currently then.
In those cases that are extreme, there was a mechanism to allow --
MS. BURGESON: We've been working with a few cases like
that.
MR. LORENZ: And may I add that that's sort of an ad hoc type
of approach, and that's why I wanted to establish the criteria in the
code very specifically so that we all know what we'd be requiring of
the applicant and how staff would review them.
CHAIRMAN STRAIN: By establishing them in the code such as
you have, is that more of an invitation to allow it than a
discouragement? And then being a discouragement, it's only on an
exceptional basis? I wonder if you're opening the door in a different
direction, is all, for a need that may not have been proven.
And if I'm not mistaken, doesn't the fact that these preserves can
be used for stormwater reduce the amount of open space, green space
and increase the amount of pervious space potentially on a site?
MR. LORENZ: Two questions. The first one --
CHAIRMAN STRAIN: Impervious space, I'm sorry.
MR. LORENZ: In terms of opening the door? Possibly. I mean,
that's possible.
To allow the net effect of these systems being -- your second --
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August 29, 2006
I'm sorry, your second question again is increase the impervious --
CHAIRMAN STRAIN: Yeah, you're going to allow more
developable surface area.
MR. LORENZ: To the degree that you're using the preserve area
to satisfy your storage requirements, your volumetric storage
requirements, yes.
CHAIRMAN STRAIN: Currently when you plan a site, I mean,
it's very common to set aside 15 percent of your acreage for water
management. Then you've got various preserve requirements and
certain percentages, depending on where you're at.
The way this is written, could that -- let's just for argument, we're
not getting into debating the numbers, but let's say 15 percent, could
that then be utilized entirely with preserves as for stormwater
management?
MR. LORENZ: I wouldn't think so, because you can't utilize the
preserves to satisfy your water quality treatment requirements from
the district.
CHAIRMAN STRAIN: Just discharge.
MR. LORENZ: Just the -- well, when you say discharge, just the
-- they would be available for storage for some higher return events
after you satisfy your water quality treatment requirement.
CHAIRMAN STRAIN: Okay. Barbara, did you want to throw
something in?
MS. BURGESON: The only circumstance that I think might be
-- and I would need Bill's help to explain -- if you've got a small site
where they don't have lakes and they don't have that other system that
usually identifies or works as a stormwater system, you've got just a
small 20 or 30-acre site, would then the preserve take up probably
most of the stormwater management?
MR. LORENZ: Well, again, it would be -- you would have to
less out the water quality requirements. Which, you know, is the
formula to make the calculation, so -- but there's no question, it can be
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August 29, 2006
used as a dual purpose with regard to the preserve requirement and
your storage requirement.
CHAIRMAN STRAIN: Okay. What I'd like to do is just in case
commissioners have any specific questions, to just run through the
pages real quick and then we could listen to public comment and go
from there.
Is that okay with everyone?
COMMISSIONER ADELSTEIN: Yes.
CHAIRMAN STRAIN: Any questions on Page 93 or 94?
(N 0 response.)
CHAIRMAN STRAIN: And we have 94-A and B.
(No response.)
CHAIRMAN STRAIN: Ninety-four C and D.
I'm sure we may have questions inspired by public comment. So
if there's none right now, then we'll go strictly into public speakers.
Catherine?
MS. FABACHER: Yes, we have Dr. Judith Hushon.
MS. HUSHON: Hello. I'm back to see you again.
CHAIRMAN STRAIN: This is beginning to be a habit of yours.
MS. HUSHON: I know, I know. Well, I was also the person on
the EAC who was working with the LDC amendments, chairing that
sub-committee.
And what I --
CHAIRMAN STRAIN: You might want to state your name for
the record.
MS. HUSHON: My name is Judith Hushon, and I'm on the
EAC, and that's who I'm representing here today.
CHAIRMAN STRAIN: Thank you.
MS. HUSHON: My concerns, and I think those of the EAC are
that these rules have changed significantly since we last saw them and
voted on them, voted to pass them along.
Is has been -- as you know, it's an ongoing and iterative process
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August 29, 2006
to get these things out. And in the interim, the language has changed.
Our belief is that stormwater should not regularly be allowed in
areas that do not have hydric soils and concordant biota. And that this
water that we're allowing to go in right now is untreated. And in
general, when we look at a piece of property and allow stormwater to
enter an area, it has to be -- or to leave an area, it has to be treated.
This is not treated. The only thing that happens -- it says there is
some treatment, I will take that back. There is some treatment. It's a
minimal treatment for oil and debris that might be floating on its
surface. So it's really almost a sieving and a little bit of oil catching.
We're not talking about real treatment.
And we're putting this into preserve areas, which are the areas
that we try to protect, preserve and protect. And we're allowing this to
go in, when under any other circumstances we wouldn't be allowing
that because that's just not the way the rules are set up.
We do have concern with the Gopher Tortoises and the indigo
snakes on the higher ground in the areas. I mean, that is always a
concern, because they are not as able, to some extent, to get away. It's
true that the Gopher Tortoises do not mind a little bit of wet feet.
Over their noses, I think they mind.
So that's -- we don't -- at least I don't think these rules as stated
right now adequately protect them because of the water allowances.
I think we may also end up with a gradual loss of upland habitat.
It's one thing to have water allowed in -- if water gets in regularly and
very regularly -- you know, it's supposed to be a 10-year storm. But if
water keeps -- if we keep having -- if you get a five-inch rain storm, a
seven-inch rain storm, that is pushing the limit of the 10 years. We get
those. We sometimes get them one a year, two a year. This can
happen. We've had years that look like that.
And sometimes the water doesn't go down in a day. We can't say
-- you can stand there and look at it and say go down, go down, go
down, it has to be down in 24 hours. It doesn't. Especially if you
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August 29, 2006
have a storm that is continuing to put rain on over a two or three-day
period. That water's not going down. Not until that ends. So you
may have a week of water under those circumstances.
The EAC did not want to -- did really not want to allow the water
into preserves to meet the volumetric requirements. This is sort of a
supposed to be a separate set-aside in most cases. There's another area
that works for stormwater treatment. It's either a dry or a wet retention
area. We didn't want this area to count for that. This is a preserve
area, it's not a stormwater treatment area. And it shouldn't be allowed
to be that.
I should say that the builders and their consultants have had
heavy input into this since the EAC voted on it. And some of those
changes are reflected here. So this is now a changed set of language.
I have a stack about this high of versions right now.
CHAIRMAN STRAIN: So do we.
MS. HUSHON: So do you, okay. And versions.
And you'll note a gradual shift, because they keep putting
language in.
And so my recommendation now is that this go back to the EAC,
since it has now been several versions that the EAC has not discussed.
We've gotten copies in the mail, or on e-mail, but we haven't churned
it over.
CHAIRMAN STRAIN: You're heading in the direction I was
going to ask you about. Two things.
First of all, I want to thank you for the second time coming
before us. And I would hope that when the EAC sees things that
bothers them, whether it's something you've seen or something you've
not seen that you should have, you can come to this meeting and talk
to us about it. Because this board has the discretion to send anything
back to you.
MS. HUSHON: Okay.
CHAIRMAN STRAIN: And there are times when that should be
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August 29,2006
done, and this may be one of those times.
And that was my next question I was going to ask of the county
attorney to see if this entire environmental package went back to the
EAC for review. Say we finished our review today, we provide what
recommendations we can and let the EAC have a second look at it
before it goes to the BCC. I believe that on remand from this board
that we can remand it back to them to look at it a second time.
Is that correct, Mr. Klatzkow?
MR. KLATZKOW: Yeah, I think that probably would be a good
idea, if we have the time to do it.
MS. HUSHON: We have a meeting next Wednesday--
CHAIRMAN STRAIN: Well, I think advertising--
MS. HUSHON: -- to defer that out.
COMMISSIONER MIDNEY: Is the advertising going to work
for a meeting that --
MS. HUSHON: I believe it is. Because I believe it's on the
agenda. Prescient over here. Prescient staff.
CHAIRMAN STRAIN: Okay. And I'm -- when I've said all the
environmental issues, Barbara has several on today's agenda. I'd
rather get them all to you for a second look before they go to the BCC.
And then we would go through them among ourselves today, if that
works with your board. Barbara? Bill?
MS. BURGESON: We had listed LDC amendments for the EAC
meeting more as an informative just to provide them with an update as
to how they have been changed. And I don't know that we had sent --
I think just the one amendment --
MR. LORENZ: Just the stormwater.
MS. BURGESON: -- for stormwater.
MR. LORENZ: Just the stormwater.
I mean, my suggestion, respectfully, would be the stormwater I
think would definitely -- could come back to the EAC. You may want
to take a look at the other one and --
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August 29, 2006
MS. HUSHON: I think the EAC -- I don't think the preserves--
shape of preserves hasn't changed, has it, since we voted on it?
MR. LORENZ: That's been withdrawn.
MS. HUSHON: Oh, that's been withdrawn, okay.
That was the only other one that was causing quite serious
question.
CHAIRMAN STRAIN: Okay. Well, if it's already on their
agenda, which means it's been advertised, then we're consistent with
the time frames we need, Mr. Klatzkow, I would think?
MR. KLATZKOW: I think we're fine. We're even giving the
public additional opportunity to participate in the process.
CHAIRMAN STRAIN: Well, let's hear the rest of the public
speakers and as we make our recommendations today, hopefully one
of those will be to -- well, let's put it this way: One of those will be to
remand it back to you, because that can be done.
MS. HUSHON: That's my request for your option.
CHAIRMAN STRAIN: That will happen.
MS. HUSHON: Please make suggestions, though.
CHAIRMAN STRAIN: We intend to. We want to finish with
this today to get it out of our lap --
MS. HUSHON: I understand.
CHAIRMAN STRAIN: -- and back to you.
Barbara?
MS. BURGESON: Just a question on process. It was going to
go back to the EAC in an informative manner for them to just take a
look at and see how it's changed. Being remanded back by the
planning commission gives them the authority to re-vote on this and to
provide a change?
CHAIRMAN STRAIN: I would think so.
MR. KLATZKOW: I would think so, yes. Wouldn't be the first
time we changed something on an agenda there. And so I think we're
okay.
Page 27
August 29, 2006
Just as another point -- and Catherine, this is to be reviewed by
the Development Services Advisory Committee as well next week,
correct?
MS. FABACHER: Yes, on the 6th.
CHAIRMAN STRAIN: Well, I'm more concerned about the
EAC's review of this, since it has changed so much. And the
Development Services Advisory Committee or other members of the
business community have certainly had their time and share of input
into this.
And I'm real pleased that the EAC recognized that there's a
concern here and stepped forward to talk to us today. So we will
certainly be sending it back to you. Thank you, ma'am.
Next speaker, please?
MS. FABACHER: Mr. Chairman, our next speaker is Nicole
Ryan.
MS. RYAN: Good morning. For the record, Nicole Ryan, here
on behalf of the Conservancy of Southwest Florida.
The Conservancy is opposed to the LDC language that is before
you today. This started out many, many months ago as a way for the
county to clarify in those certain circumstances where a little bit of
extra water would benefit a wetland preserve area, to codify that and
allow that to happen.
And as staff has said today, that really was the rub. How do we
get that into the language? It seems pretty easy; could probably be
done with a couple sentences.
But what you have before you today drastically modifies the way
that the county allows or doesn't allow stormwater in preserves today.
We believe it drastically modifies the intent of what should or should
not happen within native vegetation preserves. And it has really
devolved into a set of extremely permissive criteria that will allow
stormwater into completely inappropriate habitats.
These habitats include our Upland Sand Pine, Xeric Oak, the
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August 29, 2006
Sand Live Oak, the Upland Scrub Habitats, these upland sandy soil
areas that really do not need stormwater, do not need excess water,
and are oftentimes used by listed species, including the Gopher
Tortoise.
We believe that the proposed amendments are inconsistent with
Growth Management Plan and with the Land Development Code.
And in order to truly implement this, an annual monitoring report that
the developer submits simply isn't enough. This will require a whole
new regulatory layer on the part of the county, which we don't believe
the county has the staff to do and we don't believe truly is needed if
we don't move forward with these amendments.
That's why we're asking that if any change be made it is to allow
the stormwater into the preserves when they're wetland soils, the
hydric soils, and if it will provide some benefit to those preserves. We
believe that was consistent with what the EAC directed and also with
how this really started out.
Looking at the areas of inconsistency with the growth plan and
the Land Development Code, there are really two primary areas: the
listed species, which has been discussed a little bit; and also with the
vegetation types that the county is trying to protect.
If you look at the EAR-based amendments and what the county is
requiring or prioritizing for the native species -- or I'm sorry, the
native habitats, first of all, it's the wetlands or uplands utilized by
listed species.
Second of all, are these rare upland scrub habitats? The county
in the EAR-based amendments says these are apriority, so why would
we want to do something that could potentially have negative impacts
on these areas? It makes no sense; it's inconsistent.
CHAIRMAN STRAIN: You better slow down a little bit.
MS. RYAN: I'm sorry.
CHAIRMAN STRAIN: I think she's missing a lot of what you're
saying, and I know it's important.
Page 29
August 29, 2006
MS. RYAN: I apologize. Usually I'm over there and she can
look back and tell me to slow down.
So it's inconsistent with the EAR-based amendments. It's
inconsistent with what is in the Growth Management Plan to date.
Also, looking at what could happen to these areas, and it was
admitted, there could be some changes in the different habitats and
plant species of the preserve areas once the stormwater is allowed in
there.
There's language that talks about if 20 percent the vegetation
dies, there will be an assessment. Nothing that says who is going to
monitor for that 20 percent that will then trigger the assessment. And
then the language goes on to indicate that if there is a vegetation
die-off, then the replanting should be something that is more suited to
that new hydroperiod. Again, that's inconsistent with if we're trying to
preserve those upland habitats, if that's a priority, why would we want
to then replant with some type of more wetland species vegetation?
In looking at the listed species component, it talks about technical
assistance and if there are concerns, Gopher Tortoises, other species,
get some technical assistance. The Conservancy is very concerned
that the agency staff that will be giving technical assistance have their
area of expertise in wildlife, in biology. Are they truly going to be the
ones that can assess a stormwater management plan to check on that
compatibility. I'm very concerned that that simply can't happen.
However, playing the devil's advocate, if we do want to look at
technical assistance, I passed out an e-mail, part of an e-mail chain,
with the last part being from William Smith from the Fish & Wildlife
Conservation Commission. And his thoughts on stormwater in
preserves say, I agree stormwater should not be allowed, permitted to
outfall within preserve areas. Goes on to discuss further. And the last
sentence is, preserve areas are simply excluded from the areas
permitted for impacts, i.e. stormwater. That looks like technical
assistance to me. They're saying not such a good idea.
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August 29, 2006
In regard to Gopher Tortoises, you can't expect the agencies to
fully implement Collier County's LDC and GMP requirements. For
Gopher Tortoises, we are more strict than the agencies. So we are the
ones that are going to have to do that implementation.
It seems like today Collier County has survived and grown and
we've been thriving with the LDC and GMP the way it is. I'm not
quite sure what the tremendous problem is. But I do understand if
we're allowing stormwater into some wetland preserves, maybe we
need to get the language down on that. And we agree that that is
something that could be a good thing.
I'm just not sure that the county wants to do the monitoring to
truly implement these LDC Amendments. What we would like is for
the county to look big picture on how can we improve site design. If
the concern is there's not enough space to put in buildings, parking
lots, stormwater preserves, maybe the county should look at some new
design standards that will decrease the impervious surface.
It's something the county probably is going to have to be looking
at because the DCA's ORC report is saying that watershed
management plans done in 2010, that's fine, but you need to have
some interim standards. So I think the county is going to have to look
at some nonstructural best management practices.
So to wrap up, just again, the bottom line is there are appropriate
places for stormwater and there are inappropriate places. And upland
scrub habitats with non-wetland soils containing potentially listed
species, these are inappropriate areas, and we ask that you not
recommend adoption of the language in front of you. If you
recommend anything, it would be to allow some language where
stormwater goes into wetland preserves with hydric soils where it is
appropriate and beneficial. Thank you.
CHAIRMAN STRAIN: Thank you, Nicole.
Are there any other speakers?
MS. FABACHER: Yes, sir.
Page 3 1
August 29, 2006
CHAIRMAN STRAIN: How many do we have, just out of
curiosity?
MS. FABACHER: One, two, three, four, five -- seven more, sir.
MS. BURGESON: And actually, we do have one letter that
came in yesterday that I wanted to bring to your attention, from Ray
Ashton. You received a first letter, but the second one that came
yesterday you may not have been able to take a look at yet.
CHAIRMAN STRAIN: I read it last night, but thank you.
We will go through the speakers, then we'll address the letter.
Okay, next speaker then?
MS. FABACHER: Okay. I hope I don't murder this. Joslin
Nageon De Lestang?
CHAIRMAN STRAIN: You'll need to spell your name for the
young lady here trying to take the court reporting.
MR. NAGEON de LESTANG: I always have to spell my name.
Yes, my name is Joslin Nageon De Lestang, and it's spelled last name
-- first name just Josh is good. Last name is N - A -G- E-O- N space D- E
space L-E-S-T-A-N-G. I'm an engineer with Gulfshore Engineering,
and yes, we have to say a few words today.
I've heard plenty of talk about water management areas and how
they are a range and how preserves fit into there. And really, I think
there are some misconceptions, I believe, that as engineers, we feel
maybe we should try to clear up. And in many cases we are also, I
might say, in agreement, actually. It's just that I think there are some
misunderstandings about how the systems work.
Water management systems are quite simple, really. You know,
we design them all the time. And they work on certain models, and
they are based on certain criteria which we obtain from existing
conditions, from environmental people, a whole host of other staff
who look at what the systems looked like before we showed up, in
order that we create a system that at the end sort of mirrors or mimics
the system we had before we were there.
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August 29, 2006
And the primary way we do this is to select the proper control
elevation for a site. As Bill explained, the control elevation is just the
base level at which we think the water management system needs to
be maintained. In other words, if you have a lake, that's where the
level needs to be. After the rainfall stage is up, it goes up and comes
back down to that level.
And that level pretty much assures that the groundwater
conditions would remain the same in a previous as post condition.
And that's important. Because the areas immediately around the water
management system treatment areas will have a lot of fluctuations.
Water will enter a lake after a rain and stage up or go up. Levels go
up, but come back down rather fast, depending on how long, how
prolonged the rain is and these conditions. But in typical cases, it will
go back and forth above that elevation. And these areas are designed
to have water fluctuate.
However, other areas of the site that are removed from that will
really feel -- should be hydrologically neutral. There really should not
be a felt increase in your water table. Your fluctuation should
basically average in the end what they were before, as long as you
have selected the proper control elevation to do your design. And of
course we all know there are non-performing systems. There's plenty
of them. But that doesn't mean that the rules are wrong. It just means
the systems were designed incorrectly. And I think we need to make
that distinction.
Now, as far as gopher preserves or natural preserves and putting
stormwater in, we are not -- we don't put stormwater in those
preserves. Stormwater comes in from the sky. It enters, water,
everywhere where you have open space. These areas are simply areas
of open space, and they are not by definition and by the rules which
we are trying to put on the books now, they are not going to be part of
water -- of the water treatment areas, because these are designated
areas. They are either lakes in water detention cases or dry detention
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August 29, 2006
swales, and these areas cannot by definition be used for preserves.
And they comprise the 15 percent I think that you mentioned earlier
on.
We are left to the 85 percent of the site, which will include
parking lots, open space and so on, so forth. These areas that we are
discussing will be part of the 85 percent, generally part of the open
space.
And what simply would happen in this case is that after you have
satisfied your water quality requirements, which means that the first
stage in the storm is that the water would fill your lakes. After that, if
you have a storm of sufficient intensity, you would have water
migrating in other parts of the site. But at that time you are now
starting to have a scenario that pretty much mimics what would have
happened before you showed up. Because if you had that level of
storm, which is five years, 10-year storm, with these intensity storms,
the site would see the level of flooding that you are seeing now.
The only issue you can say is well, how long will it remain
flooded. Well, we have definite criteria according to the Water
Management District about how long a site can remain flooded. And
it has to pass that test. Within 12 days you have to recover, back
down through either control elevation or to an elevation where your
environment is sustained, as in a predevelopment condition. So it's
very specific.
And I think that it should be understood that there is really no
intention, and we really can't do it and there's no intention of putting
gopher preserves or areas, specific areas for habitat as part of wet
detention systems or as part of designated detention areas. There's a
big difference. These areas are not what would be used for that.
What would happen in these areas of open space, which would
also include preserves, is that you may have water intruding in there
during periods of higher rain intensity. And it would simply be used
for water attenuation, and not really to satisfy your stormwater
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requirement, per se.
CHAIRMAN STRAIN: Josh, just so you know, we do have a
time limit. And I'm giving discretion to go a little longer, so you need
to just start wrapping up a little bit, okay?
MR. NAGEON de LESTANG: Well, I think I've said my major
point, which is that there is a distinction. And we really need to make
sure that we understand the distinction, because that's how we operate
and that's how we would be -- as engineers, that's how we would be
designing the system. Thank you.
CHAIRMAN STRAIN: Thank you, sir.
Next speaker, Catherine?
MS. FABACHER: Andy Woodruff.
MR. WOODRUFF: Good morning. For the record, Andy
Woodruff, with Passarella and Associates.
I had a couple of concerns and comments that I'd like to make
with regard to this provision. And I don't have your page numbering,
so help me if --
CHAIRMAN STRAIN: Starts at Page 93 and goes to 94.
MR. WOODRUFF: Well, mine starts on 95. I'm not quite sure
where you're at. But I can start, if I may, on -- I'm on Item B
regarding the three-foot control elevation for stormwater systems. It's
a threshold condition for the xeric habitat.
CHAIRMAN STRAIN: That would be 94-A. Gold sheet 94-A.
We have four colors, too.
COMMISSIONER VIGLIOTTI: Mine are white.
CHAIRMAN STRAIN: You've got a book that's pretty well
outdated, Mr. Vigliotti. It's been replaced four times.
COMMISSIONER VIGLIOTTI: I just got one this morning.
This is the updated one here.
MS. F ABACHER: It's in the smaller book you have.
COMMISSIONER VIGLIOTTI: That's the up-to-date.
CHAIRMAN STRAIN: Wait a minute, we're all reading gold
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sheets, have we been -- he's got a white sheet.
MS. FABACHER: Well, I think he left his binder at home so he
had to use some of our auxilliary packets.
CHAIRMAN STRAIN: Okay. Thank you. Sorry.
MR. WOODRUFF: There's this three-foot threshold that's been
put in here for certain habitat types that are xeric: Xeric scrub, Sand
Pine, Sand Live Oak and Oakland Scrub. There are plenty of
instances where we may have those habitat types on a project site, and
their seasonal high water table is well within three-foot of the ground
surface.
Satellite sand is one example of a sand type that we have here
that's frequently covered by rosemary and scrub oak where you may
have water within 18 inches of the ground surface for those habitat
types.
So I'm not sure where the three-foot average came from, but you
can look in the NRCS soils book, Natural Resources Conservation
Service. They do all the soils mapping for the county. And you can
read the descriptions. I've got some here if you want to take a look at
them for some of these habitat types. But 18 inches is certainly normal
for some of these community types.
The other comment I'll make, and I think Josh alluded to this,
was the changes that are being proposed. I think a lot of these may
actually be scale dependent. I mean, we may have a project here --
that I have on the visualizer that I may have a 50-acre preserve and
I've got maybe a half an acre of xeric oak, and it's that satellite sand, it
typically gets seasonal high 18 inches of the surface, and now I can't
use this area as a stormwater and my native vegetation preserve, so
I've got 50 acres here of land that essentially is off the table unless I
want to get a berm around some of these habitat types. And I don't
think that benefits anybody to go in there and start ripping these
preserves up and putting features in there that aren't natural or would
probably serve no purpose or maybe serve even a worse purpose than
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August 29, 2006
might be intended for some of these areas.
A quick comment about the receipt of technical assistance for the
listed species. These proposed provisions for receiving technical
assistance from all agencies with jurisdiction over those species and
asking the agencies to provide evidence so there won't be any negative
impacts, I think it's simply unobtainable to ask an agency who's not set
up to evaluate stormwater in preserves to make those kind of calls.
I mean, I certainly don't understand all the aspects of stormwater
and preserves, and I know I point to an engineer to tell me what the
water table is going to do under those conditions.
But we do -- when we work with engineers on setting these
systems up, we establish appropriate controls within those systems
such that the effect that we're having on those preserve areas is
absolutely minimized and we're trying to maintain what was there, and
many cases pre-project or in some cases we're trying to rehydrate
some of these areas that we are trying to preserve.
And that's certainly the case for a lot of our projects where we do
have drainage effects that are evident in many of the preserves that we
are providing on project sites. They typically are not receiving
enough water than what's historically the norm for those areas.
I'm on F -2 regarding the provision of a UMAM threshold of 0.7
that would require additional treatment for habitat types. I just would
like to get some clarification that that UMAM score of .7 is an average
UMAM score that would be applied.
We can certainly have cases on a small project site with a small
preserve, you may have a single wetland habitat type. We score those
wetland habitat types by polygon, by FLUCCS unit. So if it's all a
cypress area, we give it one score, a UMAM score. So in this case we
may have a score of .5 on a project site.
Typically most of our larger preserves we're going to have a
multitude of wetland habitat types, and a multitude of UMAM scores
that we assign to each of those different polygons. So on our
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FLUCCS maps we break out all of the different habitats, wetland
habitats we have. They all have an acreage assigned to them. They're
all scored separately on the UMAM tables. So I may have an area that
scores a .7 --
CHAIRMAN STRAIN: Mr. Passarella, you need to start
wrapping it up a little bit.
MR. WOODRUFF: So I may have an area that scores a .7, but it
may be less than one percent of my actual total preserve area, and yet
this additional provision would apply.
But I think if you just clarify that that was an average UMAM
score for the wetland, that would take care of that issue.
CHAIRMAN STRAIN: Okay, thank you.
Barbara, one question I'd like to ask as a follow-up? Barbara?
Mr. Passarella noted that --
MR. WOODRUFF: Woodruff.
CHAIRMAN STRAIN: Woodward?
MR. WOODRUFF: Woodruff.
CHAIRMAN STRAIN: From Passarella and Associates. How
about Andy?
MR. WOODRUFF: Andy's fine.
CHAIRMAN STRAIN: The other gentleman's, name, I couldn't
even say his last name, so Josh was a lot easier.
Andy brought up a point about berms being a feature that would
damage your preserve. If they have to berm a preserve, is the berm on
the outside of the preserve or the inside of a preserve?
MS. BURGESON: The way that we're permitting that right now,
berms are not permitted within preserves. However, there's
amendment language in here to allow up to 20 foot of cleared area to
create a berm in a preserve. So that's new language.
CHAIRMAN STRAIN: Okay. But the current language, berms
are outside preserves anyway.
MS. BURGESON: Correct.
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August 29, 2006
CHAIRMAN STRAIN: Okay, thank you.
Thank you, Andy.
Next speaker, Catherine?
MS. FABACHER: Bruce Layman.
CHAIRMAN STRAIN: By the way, while Mr. Layman's
walking up here, the sheets that we have in front of us labeled
allowable uses in preserves that were passed out with the yellow
highlighting, start at Page 95, but the corresponding allowable uses in
preserves that were given to us in our book, and I have four copies,
four renditions of them, all start on Page 93.
Ninety-five started preserves standards in our first book and the
amendments to the first book. So I'm assuming these are
misnumbered.
MS. BURGESON: I think the reason for that is if you'll look at
the first -- we took this off of the document that you had in your
original submittal for your meeting on the 19th. And if you'll
remember, I think that document had two duplicate pages, which is
why you probably see that difference in the numbering there.
CHAIRMAN STRAIN: Well, I'm not -- it's not critical to debate
it, I just want to make sure that we're all voting on the right pages.
The original document that I had, had on Page 95 Section
3.05.07H preserve standards. The original document I had on Page
93, Section 05.07H(1 )(D), allowable uses in preserves.
So I'm assuming then that this should be -- as far as we're
concerned, this handout is really Page 93 starting, not Page 95.
MS. BURGESON: Yes.
CHAIRMAN STRAIN: For clarification. Thank you.
Okay, sir, please start.
MR. LAYMAN: Okay. My name is Bruce Layman. I am a
senior ecologist at Wilson-Miller. I'm not here representing any
particular development interest this morning. I've been involved
through the LDC amendment process with the EAC sub-committee
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August 29, 2006
meetings, the EAC hearing, DSAC meetings, and then subsequent
meetings, e-mails, phone calls with county staff. So I've been
involved from essentially the get-go from when it became, you know,
with public input.
Right now as I see the way the amendment's drafted, there's three
essential kind of parts to the amendment. One is, as was stated
previously, I believe county legal staff has made the determination
that stormwater is not an allowed use, identified use within the current
code. And we've been, as an industry, putting stormwater into
preserves, whether it be through calling it enhancement or hydration
or whatever for over the past 20 years.
So I think including the appropriate language in the proposed
code to allow stormwater as an allowed use in the preserve is probably
a minimum that would need to happen to bring the code up to snuff, so
to speak.
A second part of the code is in regards to water quality treatment
before the stormwater would enter a preserve. And as I said, and Bill
illustrated earlier, too, was that if we have wetland preserves, probably
more often than not we're putting stormwater into it to at least
maintain the hydrology or potentially enhance the hydrology based on
past I guess replumbing of the county that may have dried the system
out. So these wetland systems often need a little more water so we've
put more water in them.
And at this point, given the way the current -- code's currently
written, it does not appear that the current version seems to have very
much opposition as far as the water quality protection measures that
are currently in the code. So I mean, discuss them as you may, but I
believe that through the process they've been fairly well ironed out.
And the last part of the code that seems to be the most
contentious is putting water quantity into preserves. As I said, more
often than not we're putting water quantity into preserves when they're
typically wetland preserves. But under the county code that requires
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the largest most contiguous preserve area, I foresee seeing wetland
preserves regulated by the ERP process with the Water Management
District now being physically tied to transitional and upland preserves
that could have tortoises, could have indigo snakes, other listed
species. And if we're going to be hydrating them or enhancing the
hydrology in the wetland areas, it will affect to some degree the water
elevation in the upland areas.
The idea is not to make these tortoises do backstroke; the idea is
to rehydrate the wetlands without simply having a prohibition on
putting stormwater in the preserves for fear of drowning out tortoises.
Now, this process, the LDC review process, has been going on
since April. And as of two weeks ago we started -- I say we, the
group that's been working on it on kind of on and off has received a lot
of input from technical experts for tortoises, both at the Game
Commission and privately.
And a lot of questions have been asked. They've been
questioning the way the code's been written. There's a lot of
unresolved issues with the listed species aspect of the code.
Not only that, the Game Commission's currently in the process of
restructuring the way they process technical assistance requests.
They're no longer going to do e-mails, they're no longer going to do
phone calls. From the way I see it, and grant it, it's in draft form, is
that it will be on written letterhead from the Game Commission, and
I'm sure there's going to be probably a written request requirement.
But I guess we'll see how that plays out, because it's currently in draft
form. But that's happening.
Also, too, with the Gopher Tortoise being uplisted to threatened,
the regulatory process is being refined by the state and they're
generating the statewide Gopher Tortoise management plan.
All that stuffs in the progress, it's not yet done. This obviously
ties directly into it, because there's been a lot of discussion with
tortoises and a lot of questions raised by the technical experts.
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August 29, 2006
I would strongly, strongly recommend that the listed species
aspect of this -- because it's really not time critical right now. We
don't have a whole bunch of tortoises doing backstroke out in our
preserves. It's -- I think it's something, given the uncertainty with
those different components of it and to better integrate the state and
county regulation, I would strongly defer or request that the species
aspects of the code be deferred to the next LDC cycle so that it can be
integrated with the state regulation when it comes on line.
Anyway, that's my input. I did have a couple of other things, as
Bill and I had discussed earlier. This is not in the draft that you have
currently. What I have in yellow is essentially -- it's a very brief
sentence that I think would be worthy of putting at the front end of the
code that basically is a grandfathering clause, that basically says if the
state and federal wetland permits have been received for the project
before this code actually gets amended and online, that that language
be incorporated so that those projects don't need to go back into their
-- back into the Corps and the ERP to revise their permits to reflect the
code as it might get amended. So it's basically a grandfathering
clause.
CHAIRMAN STRAIN: Bruce, if the current code doesn't allow
any of this to begin with, what do you need the grandfathering clause
for? Because you couldn't do it anyway. So what is it you're
protecting yourself against?
MR. LAYMAN: I think it's more of the way things have been
done on the ground currently. Right now -- and we have, as I said, for
the last 20 years, on a case-by-case basis, as the system requires, been
introducing stormwater into wetland preserves to rehydrate them, et
cetera.
It's been a recent determination by legal staff at the county that in
fact stormwater is not an allowed use in the preserve. So it's that
recent determination by legal staff that has prompted the need to put
stormwater of some way into the code. And all this other code that
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you see before you is in one way or the other attached to it.
So that's why I'm thinking if a project currently has gone through
the ERP process, the Corps of Engineers process, they've got their
permits in hand, now they're going to the county to get their final
development order type approvals, if this thing got amended today,
you know, approved today, it goes before the county commission next
month, and it gets approved there, then it's possible that this project, a
given project today may not -- would have to go back through the
ERP process and through their -- the Corps process to amend their
permits in order to reflect potential criteria that are specified here in
the proposed code. That's what I'm trying to protect against.
CHAIRMAN STRAIN: So basically you would protect -- you
would want projects that have fallen under the old code to be
protected by the old code, which means that this new code then is a
threat.
I thought the new code, from the development aspects I've seen
speak here today seems to be an advantage. Now seems like you're
trying to say no, you want to stay with the old code for those projects
that are qualified by it.
MR. LAYMAN: I think that depends partially, because the code
as it's drafted now with the technical assistance requirement from all
interested agencies and whatnot, there's been a lot of questions raised
as far as whether stormwater should be allowed in preserves that have
tortoises, for instance.
Whereas, in the past we may very well have had a preserve that
had a wetland system with a tortoise preserve contiguous with it, and
we put water in the wetland system and we weren't flooding out the
uplands. The Game Commission, you know, they've reviewed the
tortoise permit that was applied for and said okay, you're good to go.
There are some technical experts out there that say no, no change in
hydrology and tortoise preserves whatsoever. Well, conceivably that
could get somehow written here into the code.
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August 29, 2006
CHAIRMAN STRAIN: Well, your point is interesting. Thank
you. I'll certainly -- we'll go forward.
Is there -- are you finished with your comments, sir?
MR. LAYMAN: I believe so.
CHAIRMAN STRAIN: Because you're running out of time
anyway.
MR. LAYMAN: Yeah, I'm running out of time. Long-winded.
Yes, that's it. Thank you.
CHAIRMAN STRAIN: Thank you, Bruce.
Catherine?
MS. F ABACHER: Mr. Strain, our friend Mr. Doug Lewis would
like to speak.
CHAIRMAN STRAIN: Good morning.
MR. LEWIS: Good morning. My name is Doug Lewis. I'm an
attorney with the law firm of Roetzel and Andress. I appreciate the
opportunity to be here this morning.
I have just a few general comments and a few just specific text
comments.
Just generally, the purpose as I understand behind the proposed
amendment to the Land Development Code is to develop standards
and criteria for direction of stormwater into upland. So I think what
we're talking about here is an amendment geared towards establishing
in a criteria sense standards for discharge or direction of water to
upland.
Currently we've heard testimony from staff it's occurring on an
ad hoc basis in the upland, it's occurring per district requirements in
the wetland.
I don't think the intent here is to prohibit discharge of stormwater
into wetlands; however, given some of the text questions, it may have
the intended impact of limiting or impacting discharge into wetland
preserve.
Secondly, just in terms of a general question or overview is that
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August 29, 2006
the amendment may regulate the wetlands specifically relative to the
five percent of preserve area requirement. Where you have five
percent that are Pine Flatwoods, you could envision a wetland that
would have that criteria that would be a preserve area that could be
caught up in the requirement that they would either meet the deviation
or they wouldn't be able to discharge. That could create conflicts with
district permit requirements.
Also, just to note that from a development perspective, I think
we're trying to work to balance environmental concerns with
development concerns. And we seem to have a little less flexibility,
increasingly less flexibility as to where the preserve areas can be
established and where they can be placed.
This inflexibility, given the largest contiguous preserve area
requirement, other requirements under the GMP and Land
Development Code in terms of species protection, increasingly limit
where these preserve areas can go, and that can create conflicts in
terms of flexibility for development.
Specifically I had a few text comments. I think we made some
progress in clarifying initially under H. The purpose of the section is
in terms of when we talk about preserve area, we're referring to only
those preserve areas that fulfill the county native vegetation retention
standards under the Section 3.05.07. I think that's helpful.
There are places that still, and I've discussed this with staff, that
reference preserve area in both lower case and upper case. It does
create a little bit of ambiguity, and we would request that we would
maintain continuity, for example, under H, Roman numeral II,
preserve areas in capital letters. Just for purposes of clarity, I think we
should either have it not capitalized or lower case.
Secondly, in terms of specific text questions, under H, Roman 2B
and C, it might be helpful if again the purpose -- and again, this is a
Planning Commission decision, or more of a policy decision. But if
we're intending to regulate the -- or establish criteria and standards,w
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August 29, 2006
instead of doing it on, a quote, unquote ad hoc basis, to allow
stormwater to be deviated into these upland areas, it may be helpful,
and I would suggest under H, Roman 2B and C, that we -- it would
read that stormwater may be allowed into the upland portion of the
preserve area. Because again, preserve area would include or could
include a wetland area. And I think we're really concerned with the
issue of hydrology in these upland areas.
Number three, and this is in terms ofH, Roman 2C, we provided
for a deviation, and again the standard is this five percent where you
have a five percent habitat of Palmetto prairie or Pine Flatwoods. I
think as a practical matter, this is where we're going to really see most
of the developments in the county impacted.
And I've talked to staff about why we came up with this five
percent number, you know, especially in the context of exiting habitat.
Staffs position is that the deviation is there to allow admittedly most
of the developments that are caught up in this five percent requirement
to obtain a deviation. However, this deviation from this one-foot
threshold is tied to these hydrobiological indicators that would suggest
a wetter base hydrology.
In speaking with our environmental consultants and staff, this
standard, this criteria is somewhat ambiguous, and can create
admittedly more business for the work that we do. But it does create
some confusion as to what a wetter base hydrology would be.
I would suggest that, given the uncertainly as to the criteria in the
standard, that we either increase the five percent to maybe a 50
percent or more realistic 60 percent so that we don't include a wetland
that really had minimal Pine Flatwood habitat. And -- or that we
clearly define or establish a better standard for the deviations so that
we can have some certainty in terms of the development, so we can
work together to preserve the habitat and to allow the developments to
proceed.
Fourth, as to the technical assistance, I think we're making some
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progress here. I know that there are some real scientific questions
about species, and clearly the county's required under the Growth
Management Plan to protect species.
My only comment, I think I defer to the experts to actually deal
with getting these technical advisements. But I think whatever we end
up with, we need to have a mechanism that certainly complies with the
GMP but also allows for some timely assurance that these items can
be addressed in a timely manner that we can resolve.
In speaking with staff, I understand currently that as to questions
of species protection, they do currently look to the state or the federal
government in determining whether or not the development would
have an impact on species. So this really isn't anything different than
what they currently do. But again, I think we do need to have some
certainty that these can be timely addressed in a fair way to both the
public and the county.
Finally, in connection with the monitoring requirements, these
are fairly new, and I think we've made some progress there. I think
the intent here is that from a mechanical point of view that we're
trying to essentially allow developers who are currently required to
provide monitoring reports to the South Florida Water Management
District to basically provide those reports.
Now, the standard in the text requires that these reports conform
with the minimum requirements contained in this amendment. The
minimum requirements involve monthly ground and surface water
levels, monthly monitoring of those. That's currently not required as a
blanket matter for the South Florida Water Management permit, so we
would really be adding some additional obligations or burdens on the
development community.
And there's some questions in my mind, and again, it's a policy
decision for the planning commission to make, but from a clarity point
of view, we're asking for a baseline report and annual reports.
I'm not clear in terms of when we talk about baseline reports, I
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August 29, 2006
just -- from a clarification point, what -- I understand what those
reports are, but we don't really define the frequency of these baseline
reports. So is this an initial baseline report or are these monthly
baseline reports that are to be provided in addition to the annual
reports?
And if the intention is that the South Florida Water Management
District reporting requirements are sufficient to meet the monitoring
requirements, where are the South Florida Water Management -- if the
intention behind allowing the South Florida Water Management
District monitoring reports to be submitted is to allow compliance and
to avoid redundancy in the monitoring, then I think we may want to
simply state that the South Florida Water Management reports, as
they're submitted, that those are sufficient to meet the monitoring
requirements of the Land Development Code, if that's the intention. I
just think there's some ambiguity there. And I think from a certainty
point of view I think it would be helpful to understand where this
goes.
I think these monitoring reports do provide some teeth --
CHAIRMAN STRAIN: You need to start wrapping it up here,
okay?
MR. LEWIS: And I will end my time. If you have any
questions, thank you.
CHAIRMAN STRAIN: Barbara, one question, the baseline
report that was just being referred to, is that basically the initial
circumstances of the site, so it's a one-time report?
MS. BURGESON: Yes, the baseline report is.
CHAIRMAN STRAIN: That's what I was assuming. Okay, that
might help clarify it.
With the court reporter's suggestion, we can take a break now for
15 minutes or we can go through the rest of the public speakers, which
may take a half an hour or more.
So why don't we just take a break for 15 minutes and give your
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fingers a rest. We'll be back here at 10:20.
(Recess. )
CHAIRMAN STRAIN: Okay, if everybody will take their seats,
we'll get back in order.
Since I missed the first part of to day's meeting, I know there was
discussion of agendas for today as far as schedules for today. So I'd
like to get that resolved real quick so everybody, including the court
reporter, so they can schedule accordingly, know what's going to
happen.
And it's my understanding that the Board of County
Commissioners are holding an emergency meeting here at 1 :00. And
with that in mind, we are sitting in their office, more or less. So I
would like to leave it clean and respectable for them. That means all
of our stuff needs to go and be taken with us.
And I was hoping if the board would agree, about a quarter to
1:00 we'll take a lunch break till a quarter of2:00. We'll take our
paperwork and everything with us and bring it back in at a quarter to
2:00. And then if they're still in session we can sit here and be
entertained while we finish our lunch and then resume when they end
until 4:00, assuming that the board doesn't disallow that for this
afternoon.
And I don't know what tomorrow's going to bring until in the
board meets today, I guess.
Does that sound okay to the rest of the members of the planning
commission?
COMMISSIONER VIGLIOTTI: Fine with that.
CHAIRMAN STRAIN: Ms. Court Reporter? So that means
we're going to try to resume from a quarter to 2:00 to at least 4:00,
assuming everything goes well at the emergency meeting today.
And as far as a break between now and a quarter of 1 :00, we'll
take another little bit shorter break, a 10-minute break about midway
in between, to give you another finger rest.
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And with that, where's Catherine? Who is in charge of the public
speakers?
That's not Catherine.
MR. KLATZKOW: No. Well, we do have a Mr. Tim Durham
here, I believe, who would like to speak.
CHAIRMAN STRAIN: Okay, Mr. Durham.
Oh, one other thing, we will not -- today because of the
abbreviated meeting, I expect we can get through the environmental
issues and into the transportation issues possibly after that
Bayshore/Gateway. But I don't even know if we'll get to that today.
We certainly will not be getting to the emergency services issue. Mr.
Page, I told him he could best show up at next meeting and be more
effective than this one. Thank you.
Mr. Durham, go ahead.
MR. DURHAM: Good morning. My name is Tim Durham.
I'm with Wilson-Miller. I head up the ecological and water resource
group in the company. And I'm not representing a particular client. I
hadn't even intended to speak when I came today, but sitting here
listening I ended up jotting down a few notes.
I think it's real important here to note a couple of things. One is
defining the real objectives. I think everybody's agreed that upland
habitats need protection and we don't want to the flood them out and
change the vegetation composition. And I will tell you, there's some
large projects over the years where some of the preserve areas become
the lowest point in the landscape because development pushes up, you
know, to be up out of flood zone.
So I think it's a worthwhile effort to try and protect those upland
areas, and we need to be thinking about that. However, I think
unintended consequences of the language as we have it now could be
very counterproductive. And I'll give a few examples why in a
moment.
The other thing I think needs clarification is we use stormwater,
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and I think it's kind ofa nasty word, you know. When you hear the
word stormwater I think a lot of people picture pollutants, oils and
greases floating around and everything.
Recognize here we're talking about treated stormwater and
untreated stormwater, and they're two very different things. So just
bear that in mind. Somebody made a comment earlier today that was
mixing the two and had me a little bit concerned. Make sure
everybody keeps that clear in their mind.
If you want to keep stormwater out of preserves in a development
setting, you would have to build a berm around the preserve and let no
water go into it, even though historically it may have, you know,
natural runoff coming into the site. So in a development setting, to put
no stormwater in a preserve; you berm it off, you starve it for water.
Ray Miller, one of the founders of our firm used to say you can love a
wetland to death by overprotection.
So again, we need to be putting water in preserves. Now, the fact
that an upland may also be contained in that preserve shouldn't be the
thing that stops any water from getting in that preserve.
Historically we regulated wetlands and so we end protecting
them in these development settings. You have a minuscule -- you
know, in the past there was no buffer around it. N ow we've got a
small upland buffer around wetlands. But it's still not what you really
want to get to ultimately for big preserves.
The best -- ecologically the best kind of preserve you could have
would be one that had a mixture of habitats types, and you would like
to see a wetland area. You'd like to see an upland nearby, some
transition zones. You really want a mixture of things.
The way this thing is written right now, you have an uphill battle.
You have to get extra permission to be able to do what's ecologically
the right thing. So again, the unintended consequences of this.
When we talk about certain communities needing three foot
above the control elevation of a project, well, you almost have to go to
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Collier County landfill to find a three-foot elevation in Collier County.
I'm being a little facetious, but it is -- that three foot is a bit much.
Likewise, hydric Pine Flatwoods in a natural setting, you know,
the requirement that, you know, you have to have a one-foot
separation between your control elevation and the hydric Pine
Flatwoods. Well, it doesn't -- you don't have to walk around a whole
lot in Collier County to figure out the hydric Pine Flatwoods, the
natural control, it's essentially pretty much more near the surface.
Yes, there's an exemption allowed. You can prove that the one
foot doesn't apply. But you've got a situation, you have a rule that
prohibits something, provides an exemption, the exemption is what's
going to be the real reality 99 percent of the time. So again I think the
language is a bit misguided.
So I think this thing needs some work. I think we need to be
careful about unintended consequences. I think we need some more
rational thought into some of these numbers.
I also had one other little comment, or maybe it's a gripe. The
technical assistance issue. It's been a pattern in Collier County for the
development community to be presented with something that the
agency said either conversationally or maybe in e-mail without ever
being told what the question was that was asked of those agencies.
If the county is having discussions with these agencies, we'd like
to know what those discussions are, not just what the final answer is.
It's kind of like playing Jeopardy from my side of the table at times.
I'm given the answer, I have to guess what the question was. And all
too often the clock's running. These things come in at the very end.
This stuff about the Gopher Tortoises. I can frame a question just
about any way I want and get an answer that I like. So it's like polls, I
don't put much faith in polls because I don't know exactly what the
question was that was asked of the person being surveyed. So I think
that's very important.
We would like to contribute more to the language of this. I don't
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think we have an imminent disaster that needs to be fixed tomorrow
with this, you know, the need to rush this through. There is some
constructive dialogue that could still go on. And I recommend that this
go back to the EAC, that there be an opportunity for more input. And,
you know, let's craft something that's going to work better, going to
preserve our uplands, preserve the character of our uplands, preserve
the listed species but not with a whole bunch of unintended
consequences that aren't really necessary. Thank you.
CHAIRMAN STRAIN: Mr. Murray?
COMMISSIONER MURRAY: Sir?
MR. DURHAM: Yes.
COMMISSIONER MURRAY: I thank you for that. As I
struggle with this in trying to appreciate so many diverse opinions
about what is the natural state, the state that's created as a result of
engineering to emulate a semi-natural or natural state, when the land
was clear or, so to speak, it was unimproved, when an inundation
would occur, water would flow in a natural-- to the area that would
foster the life of what do you call -- wetland life, okay?
MR. DURHAM: Yes.
COMMISSIONER MURRAY: The upland would be
temporarily inundated and it would flow down. So there'd be recovery
or potential for recovery for any critters that live up there, the biology
that's there.
MR. DURHAM: Correct.
COMMISSIONER MURRAY: When -- in an effort to improve
a property and put some more structure on it, we create a lot of
impervious area. And so we actually now are diverting -- we want to
divert, it would appear, we want to divert all of that water or some of
that water and shift it into an area where my concern is, and maybe
you can help me with this, is that an inundation in a dry area might
last for a relatively short period. But if you're shifting a whole lot of
water into a wet area that's going to force it up, aren't you going to
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impact rather significantly on the dry area?
Now, what further tickles my mind is Mr. Lorenz had said before
about these lands were very often hydrated, and they now -- because
the water table has gone down, we now have a different set of scales
to work with.
MR. DURHAM: Right.
COMMISSIONER MURRAY: So is there any way you could
help me to appreciate more about what the engineering implications
are and what the dangers are of that kind of --
MR. DURHAM: Sure. And let me tell you, I cut my teeth
designing part of Bonita Bay. I don't know if anybody's been in there,
but we were very successful with water elevations and preservation of
all kind of habitats, so this is an issue that's near and dear to me.
In the example you were giving, the one piece that's missing is
the stormwater treatment element. And typically that's going to be
done in lakes here, all right? So we require that the water have water
quality treatment prior to getting into the preserves. What we're really
saying is let's shove all that water that you're worried about into lakes
and other systems, and then part of that bleeds over into the wetland,
okay? So a lot of the shock absorbing is handled in the lakes.
The Water Management District requires us to set control
elevations based on what an adjacent or nearby wetland is, oftentimes.
So there is that desire to make sure in the water management system
design that South Florida Water approves that we really use the
hydrobiological indicators of the wetland system. And that's really
driven by the desire to protect exactly what you're talking about. You
know, you don't just take water that used to fall in a big area, package
it real tight and drop it in a wetland so you can stack it real deep.
That's not what happens here.
COMMISSIONER MURRAY: Your engineering then changes
relative to the intent to preserve. So the engineering consideration
may be a deeper lake or a wider lake in anticipation of that shock load
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of water; is that correct?
MR. DURHAM: That's correct. And to be fair about it, I think
the biggest likelihood for negative impact would be in how long it
takes that system to recover, to bleed down. And I think somebody
made the comment earlier --
COMMISSIONER MURRAY: Twelve days.
MR. DURHAM: -- that that's a concern. And that is correct. It's
often that bleed-down that's a bigger issue than how much water you
put into it, for example.
COMMISSIONER MURRAY: And volumetrically, if your
concern is for more development opportunity, we can create a lake
that's deeper rather than wider, I presume, although I know that there's
a certain -- I think it's 20 feet that's maximum, that presumably then
would allow for more structure so that there's that -- that basically the
-- if we want to call it that, the winner, or winners hopefully are the
preserve and more development, as opposed to more open space.
MR. DURHAM: You know, typically when you're designing a
project, you've got -- it's always interesting, you get in a room, you
have the engineers who are fighting for more lake area or the site, you
have planners that are fighting for more units, and then you've got my
group fighting for bigger preserves, you know. So everybody's kind
of competing for how the property's used.
If you don't use these wetlands to put some water into, for one
thing it's a detriment to the wetland. The other thing is it forces you to
dig more lake area, which you lose some ground on them.
COMMISSIONER MURRAY: Interesting problem. Thank you,
I appreciate your helping.
CHAIRMAN STRAIN: Thank you.
MR. DURHAM: If I could, Mr. Strain, just one last comment.
One of the biggest areas I get heartburn on as we get out in the
rural lands where we're really trying to do ecosystem restoration and
management, for example. When we talk about preserves, you know,
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we're talking about some big areas out there that have a lot of uplands
in them. And again, this is an unintended consequence where I think
we may be visualizing an urban development setting and thinking how
this might apply. But we really need to look at that. I think the rural
lands where we're talking about huge landscapes in terms of
restoration or putting in preserve status, nobody's talked about that or
looked at that that I'm aware of. And I've been kind of watching
e-mail trails for the most part on this issue, relying on Bruce Layman
for input. So I'll be happy to be corrected on that one.
CHAIRMAN STRAIN: Thank you.
Catherine?
MS. FABACHER: Unless Mr. Yovanovich wants to speak, he
would be the last speaker I have.
CHAIRMAN STRAIN: Unless he wants to speak? I've never
known him to miss an opportunity.
MR. YOV ANOVICH: Thank you. Good morning. For the
record, Rich Y ovanovich here on behalf of Collier Enterprises.
I want to start out by saying we agree with a lot of what Nicole
from The Conservancy said regarding the comments here. Weare not
here advocating a policy that will be detrimental to the environment.
We're also in agreement that the current Collier County staff
doesn't have the expertise nor the time to implement a lot of this, and a
lot of this is already implemented by the Water Management District
in their review of Water Management District permits.
So my first comment is, if you look at the fiscal and operational
impacts, again, we have this, you know, very generic statement that
really doesn't say what it's going to cost the county to implement this
program, how many more people does the county need, and why do
they need to provide the same function that the Water Management
District is already providing when they're looking at, you know, how
the water is pretreated before it goes into a preserve, for instance, if it
scores better than a .7. They want to re-review what the district does,
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but if it scores less than a .7, they're happy with how the district
permitting process goes.
So the first question we would have is what are the true fiscal
impacts to Collier County to attempt to implement this program.
Second, and, you know, this is a lawyer trying to understand the
provisions, but I don't believe that there's a 12-day bleed-down for the
water that's going into the preserve areas. I think what the criteria is is
the water's got to be out of the preserve area within 24 hours. You've
got to get back into control within 12 days, but as far as getting the
water out of the upland preserve area, it's got to be gone within a day,
as I read these provisions. So the water is not sitting in there for 12
days, as it may have been implied through the comments.
Also, we need to remember that the Growth Management Plan
does in fact provide that the county will defer to the agencies with
expertise in dealing with listed species and other issues. So that's the
beginning point of what we need to be looking at. So I think if we get
the appropriate permits and go through the permitting process, we
should in fact be allowed to utilize either wetland preserves or upland
preserves for part of the water management system.
In addition, I don't think that your code currently prohibits the
use of either wetlands or uplands. The Board of County
Commissioners has interpreted its Growth Management Plan to allow
the use of both uplands and wetland preserve areas as part of the water
management system. So obviously they're the interpreter of the
Growth Management Plan. They have interpreted to me you're
allowed to do that. I think what we're trying to do is we're trying to
clarify and put a little bit more I guess meat on the bones as to when
you can or cannot use wetland and upland preserves for part your
water management system.
I envision that although this will apply to a lot of bigger projects,
it really will apply to some smaller projects as well. And those are the
10 and 20-acre sites where the county continues to regulate, regulate
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and regulate to where you have very little property left to actually
develop on these smaller sites.
So you're utilizing some of your open space area, you've still got
to maintain the open space requirements and the native preservation
requirements. You're using some of those areas, when appropriate, as
part of your water management system. And I submit to you there's
nothing wrong with that. I don't know why you shouldn't be allowed
to -- I think Nicole referred to that as double dipping. I look at that as
more actually being able to use the property without unnecessary
regulation.
I have some concerns about whether this applies to the rural land
stewardship area. I think Tim brought that up. But there are water
retention areas that are in big areas in the rural land stewardship area
that in fact have both upland and wetland areas. And my
understanding of the comprehensive plan is it specifically says you
can use those areas as part of your water management system. Are we
now creating -- are we creating new regulations that were never
intended to apply in the first place to those areas?
I also wanted to confirm on the record, because I can't find it in
the text anywhere, Mr. Lorenz, when we talked, I think you confirmed
that on any 25-year storm event the whole property is going to flood,
so there won't be anything in there. But that's understood that this
doesn't apply to that type of storm event.
Make sure I hit all my highlights on this one. I know we have a
lot of other comments on the other areas, but I think I hit -- I think I hit
all the highlights of what we wanted to talk about on this, and we echo
the comments of many of the technical experts in the area.
I don't want to see this process kicked back to the EAC for
purposes of trying to delay the provisions. They're already scheduled
to give their input and will give their input to the Board of County
Commissioners before these are finally considered. They were
included in part of the process, so I'd like to see these things move
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forward, because we do think that a lot of the provisions here have
merit and can be worked with.
And the only issue we really have is the technical assistance,
because I don't think you're ever going to get that technical assistance,
and we don't know what question you're asking.
But as far as the framework of the criteria here and the three-foot
in certain, one-foot in others, we would like to see the three-foot come
down, but I think we could work with those on an interim basis until
we have a little bit more, I guess, in the field experience with how
these are implemented. But we think it's a good start in moving
forward and we would like to see it continue to go forward.
Now, on a totally unrelated -- not unrelated, but again, I've
mentioned this before, it seems like we can't get copies of the exact
documents you're reviewing, so I have different page numbers, I don't
know if we're even reviewing the same provisions. There's got to be a
way that when your packet goes out to you that that very same packet
is available to all of us in the public so we at least know we're reading
from the same document.
We've asked, and we've gone onto the Internet and asked is
what's on the Internet the same thing that the planning commission is
using. And the response back to my assistant was we're not sure. So
we've got to find a way. Now, Bill has been very good. Bill sends us
updates on the EAC stuff. But there's got to be a way that we at least
are reading from the same document so I'm not commenting, as I have
in the past, from a version that's old.
So if there -- and let us know what we can do to make that
happen. I'm happy to come pay for whatever copies we need to. But
at least we're asking when it becomes public to you all, we at least
have the ability to know exactly what you're reviewing.
CHAIRMAN STRAIN: Well, if there wasn't such a hurry by
some people to make this happen quickly, then we could sit back and
wait for the revisions to be distributed fairly to everybody and then
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wait for the meeting to occur after they were appropriately received
within a time frame. We received some of our comments as recently
as yesterday. I don't like that. But to get through this system in a
timely manner, which seems to be one of your objectives, we have to
wait until we -- if we have to wait until everybody gets this
information disseminated -- which I have no objection to, but then you
guys need to support it.
MR. YOV ANOVICH: What we've been saying, Commissioner
Strain is when you get your packet of information, there's no reason
that we shouldn't be able to have the same packet of information.
Therefore, I'm only having to look at a few pieces of new information
that are handed out instead of maybe getting a book today, comparing
it real quickly to what I've pulled off the Internet to see if it's correct.
I know that it's an evolving process, but it should be available to the
public in the same format that it's available to you all. And that's all
I'm asking for.
CHAIRMAN STRAIN: I did get a packet, I think, on Friday.
Were you down at development services requesting a packet on Friday
and did you get refused?
MR. YOV ANOVICH: We have been calling and asking for
when can we get a copy of what went out to you. And I think you got
it more than -- how long ago did you get your original book?
CHAIRMAN STRAIN: The gold copy, it was late last week.
MR. YOV ANOVICH: I understand that. But I don't even have
the earlier version of those documents.
CHAIRMAN STRAIN: Well, I think we certainly need to look
at that because you should have been afforded that.
One of your other comments I wanted to make clear, too. You
said that this opportunity to go back, to remand it back to the EAC for
a delay. It is not a delay tactic. I wasn't even thinking of delay. I was
thinking of getting a better product for this county, whether it be the
development industry or the citizens.
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I think the EAC is an important review authority and this thing
has changed so much it's like night and day from the time they saw it.
So it is going back to the EAC. It is not going back to delay it. It's
simply going back to get it done better and make sure all the eyes that
need to look at it have seen it. I just wanted you for the record to
know that. Thank you.
And Catherine, if someone -- if you distribute at book to us on a
Thursday or Friday, if someone were to walk into your office and
request a copy of that book, can they not get it, or what's the issue?
MS. FABACHER: That's the way it normally happens, but
you'll know that between the last few meetings we've had, there's been
a three or four day turnaround just getting the information, the correct
revisions back and getting it to you. But the day that your packet went
out, all the environmental revisions were placed on the Internet.
But perhaps it's just a quick turnaround thing. We may want to
look the next cycle. It's, you know, setting -- staff just can't do it in
next three days and get everybody accommodated and make extra
packets.
CHAIRMAN STRAIN: I would prefer that this stuff get done
correctly. And if it takes more time between the first and second
hearings, from now on, why don't we schedule that time.
MS. FABACHER: I think that's a good idea.
CHAIRMAN STRAIN: Right. Okay.
Are there any other public speakers?
MS. FABACHER: No. I'm sorry, I don't have any.
CHAIRMAN STRAIN: Okay. Barbara, were there any
comments you want to make as a follow-up to any of the presentations
that were -- or discussions that just occurred?
MS. BURGESON: Yes, I would, thank you.
I made some notes as some of the speakers were commenting.
Just, I'll try to hit a couple of them very briefly.
One of the issues was the question about 12 days to recover a
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system versus a 24-hour period for the drawdown. I just want to point
out that that 24 hours is just so that that drawdown comes back to the
point where it doesn't exceed ground elevation. It still would allow for
that system to be flooded, for instance, listed species burrows, Gopher
Tortoise burrows could still be flooded.
And the other issue directly related to that is with the technical
assistance that we got from Ray Ashton, even the additional hours that
eggs are flooded can cause them to die, and the additional the day that
the hatchlings are flooded can cause them to die. So even that 24-hour
period in accordance with what Ray has provided us with comments is
not acceptable in terms of going beyond the natural systems.
So any time you're adding more than the natural system, you're
risking the hatchlings and the young, and the eggs. So that's just the
first quick comment.
COMMISSIONER MURRAY: Could I ask a question relative to
that?
CHAIRMAN STRAIN: Sure, go ahead.
COMMISSIONER MURRAY: This is very distressing to hear
this. The three-foot issue, which the gentlemen made a comment --
one of the gentlemen made a comment about it being up at the dump
as being the elevation that would be appropriate. And I was trying to
figure that too. And I'm thinking if we have this water just pouring in,
it's done its proper thing at the lake, but it's overflowing, now it's
discharging in, and we have these tortoises, are they able -- I mean, I
realize they have feet, obviously, but are they able to be reactive? Is
that a common -- is that something that is within the species' ability to
discern that and get out and get to a safe place, or if it's flooded, where
is a safe place?
MS. BURGESON: I think if you look at the two letters
particularly from Mr. Ashton, it identifies that tortoises will survive in
a habitat that gets flooded from time to time, and will survive in
burrows that get flooded. But the more often and more frequently you
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flood them, in this particular proposal, unfortunately that additional
flooding comes during the summer, and during the summer is when
the Gopher Tortoises are laying their eggs and the hatchlings are
coming to fruition--
COMMISSIONER MURRAY: Birth.
MS. BURGESON: Thank you. The -- you're adding the
additional stress to the system that's on top of what they naturally
would see, during the most stressful and potentially most harmful time
of the season.
COMMISSIONER MURRAY: I hear you. So is the three feet
then a described height in order to secure that?
MR. LORENZ: Just recognize that your current draft would not
allow that to occur if that preserve is functioning as a Gopher Tortoise
Preserve.
COMMISSIONER MURRAY: So if it were part of a preserve
contiguous and there's low water here and there's the preserve here, so
that wouldn't -- what we're talking about wouldn't be allowed? I'm
confused.
This amendment that you're attempting --
MR. LORENZ: If it's an upland community that does not have
listed species, then you would be able to -- you would be able to have
that as part of your preserve where stormwater is going into it, as long
as it's either three feet higher than the control elevation or you can
demonstrate that water levels will go down below ground elevation
within 24 hours.
But that's -- that would not be the case if it has Gopher Tortoises.
If it has Gopher Tortoises or any other listed species in that preserve
we'll defer to technical assistance.
COMMISSIONER MURRAY: I lost sight of that. But it also --
probably because I realized that we would never ever have Gopher
Tortoises in that area. If that would be the case they would not find it
hospitable, correct? If that land were subject to rehydration on a fairly
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frequent basis because of a discharge of water. They simply wouldn't
be able to live there, would they? They wouldn't choose to live there.
MS. BURGESON: They might. But the elevation or the depth
to which the burrow would be dug would be a little bit different. It
would be --
COMMISSIONER MURRAY: I feel like we're talking about
angels on a pin.
MS. BURGESON: The issue on the stormwater, Andy had
commented about the three-foot above control elevation being a
concern, and he said that 18 inches is normal for some of these
systems.
The language that we have in here right now identifies three feet
because our data identified one-and-a-half feet to three-and-a-half feet
as the appropriate range of elevations there. So one-and-a-half feet is
appropriate at a very low end of that range. But since we're allowing
for that deviation and not saying that you may have that deviation, it
may be permitted, but we're saying that it shall be permitted if that
deviation occurs, we're actually allowing for a three-foot deviation to
be obligatory, even though we know that the high end of that range is
three-and -a - half feet.
So we're using the three feet as sort of a high average to -- the
language that was in there before said may be used. But we changed
that to be a little bit more restrictive on staff, maybe.
One of the other comments made on the .7 wetlands, which are
currently secondary in our descending order of habitat criteria, it
really wouldn't change the request for some grandfathering here, really
wouldn't change anything that we're currently permitting. We've had
discussions with Ed Cronin from South Florida Water Management
District. He said that the state's criteria as it should be applied for
those high quality wetlands of greater than. 7 should not be any
different than what the language is that we're proposing here in that
they should be obligating all of the applicants, the property owners
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that are developing those wetland systems to come to that highest
threshold of protection for those wetlands.
So there shouldn't be a reason or concern for grandfathering for
those higher quality wetlands. Possibly for the lower quality wetlands,
which would be near our -- near the end of our criteria, so it would be
one of the last habitats we would protect, and maybe not likely to be
under Collier County preservation anyway.
On the technical assistance, one of the statements made was that
we're currently getting technical assistance anyway, so that paragraph
isn't any different than what we're currently seeking. However, our
technical assistance right now is only for listed species protection
technical assistance, and we do not ask the biologists at the state
agencies to provide us technical assistance in reference to stormwater
in those preserve areas.
So even though we have requested technical assistance in the
past, this is completely different than what we normally would ask or
what we do ask them right now. So there is a little bit of a difference
there.
And then the only other issue that I wanted to bring up is when
this amendment was originally created, we prohibited stormwater in
listed species preserves. So we weren't concerned about monitoring
for the negative impact to listed species. The very last paragraph of
this amendment identifies a monitoring program to look at when the
vegetation on-site is being negatively impacted. But we've missed a
critical point here, and if we're going to allow stormwater in any area
with listed species, we need to identify that we need to monitor the
listed species as well. Because if you're having any negative impact to
listed species that's going to be deemed to be a take.
CHAIRMAN STRAIN: Barbara, if you do the monitoring -- I
may have missed it, so you can refresh my memory, the reports are
going to be submitted. How are they going to be reacted to? And then
what's the implementation of a negative reaction? How does someone
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-- what do you do?
MS. BURGESON: Right now the way it's written, we wouldn't
-- we wouldn't provide for any required response from the property
owner unless they've lost 20 percent of the vegetation of the preserve
area.
CHAIRMAN STRAIN: But say they did. What does that mean?
How is it enforced then to correct the situation?
MS. BURGESON: Depending on where the project is in terms
of completion of the PUD, if it's -- if the entire PUD is not completely
developed, then it would go to the engineering inspectors to put the
next phase on hold, the COs on hold. And if the proj ect was complete,
it would go to code enforcement.
CHAIRMAN STRAIN: An example like the mangrove damages
up in Pelican Bay. That's a big preserve area I believe in the Pelican
Bay DR! PUD. In the backwaters, remember years ago they had all
that damage. If it exceeded 20 percent then, would the outcome of the
staffs analysis be any different than the outcome that occurred out
there? Because the county basically jumped in, I think, and helped get
that corrected.
Do you know how that -- I mean, is that the kind of a situation
that would be monitored, and if there was a die-off like in those
mangroves they would then have an issue to deal with? Because I
don't believe that that die-off was ever proven to be the fault of
development or the fault of nature. I'm just wondering how you
differentiate those issues in regards to your monitoring reports that
would require a reaction in 20 percent die-off.
MS. BURGESON: I'm not really sure. In terms of whether or
not we're differentiating whether it was a natural die-off or whether it
would be something caused by that stormwater, hoping that the
consultant would be able to provide that evidence and defend one
position versus a second.
If staff reviewed that data that came in and could -- had some
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evidence that it was as a result of the developer providing too much
stormwater in that system, then because the preserve area really has to
be 100 percent vegetated, we'd require that they replant that.
CHAIRMAN STRAIN: Okay. Are there any other questions?
Mr. Schiffer.
COMMISSIONER SCHIFFER: And I guess this is to Bill or
Barbara. When you refer to wetlands and preserve, do you mean the
wetland and preserve on the site, or does that affect also wetlands that
are contiguous to these? Because I assume most wetlands in even any
sketches would go onto adjoining sites. So are those sites analyzed
also, or how is that handled?
MS. BURGESON: We don't have any component in here right
now to analyze impacts to off-site areas.
COMMISSIONER SCHIFFER: So when you use the word
wetland or preserve you mean solely on the site of the project, not the
adjoining sites.
MS. BURGESON: Yes, impacts, anything off-site we're not
taking that into consideration here.
COMMISSIONER SCHIFFER: Or off-site could be impacting
these sites.
MS. BURGESON: Correct. But if the consultant is analyzing
why there's a die-off, essentially it's to their benefit to evaluate
anything that might be a cause that came from off-site. We wouldn't
stop them from putting that information and responding to that in the
report.
COMMISSIONER SCHIFFER: All right, thank you.
CHAIRMAN STRAIN: Any other questions of staff?
Okay, I think we're looking to consider a recommendation to the
BCC. I'd just like to make a comment.
Based on everything we heard from the public, I think we're
dealing with more of a clarification needed to the existing language
than we are needing a rewrite of the LDC in this regard. We had one
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member of the public tell us that they believe currently these uses are
allowed by the GMP and the LDC. We had another one suggest that
these uses, they want to protect themselves from them by
grandfathering in the language of the old code.
I'm not sure that the old code is that bad. And I think that staffs
predicament has been maybe the ad hoc use of wetlands for receiving
stormwater, manage stormwater of any kind. Maybe that's the
limitation or the clarification that's needed in this language and we
don't need to go forward with anymore than that. Those are my
thoughts.
Ms. Caron.
COMMISSIONER CARON: Yeah, I'd just like to say that in
reviewing it and listening to everything today, I mean, I really believe
that this is unnecessary. I think it's unenforceable. And I think it's
inconsistent language.
Again, as Commissioner Strain just said, perhaps we need to
clarify what's there right now. But all of this new language, I think it's
promoting the gradual loss of upland habitat, and I don't really think
that that's what we want to do. I mean, and that's only one of the
issues and problems that I made a laundry list of.
I'd also like to comment that sort of the dirty little secret of the
South Florida Water Management District is that they don't even
review projects that aren't over 40 acres. So all of these small projects
won't even be reviewed.
MS. BURGESON: They don't review projects that are under 40
acres. Unless there's wetlands on the site. And if there are wetlands
on-site, they do review them. But that stormwater management
review is deferred to -- or relinquished to Collier County's engineering
staff for the smaller than 40 acre sites.
CHAIRMAN STRAIN: Any other comments from the
commissioners?
Well, then we need a recommendation for a consensus. I'd
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recommend that we forward this to the BCC with a recommendation
that this is not needed to the extent that it's written and that it be
limited to allowing discharges into existing wetlands as shown by
hydric soils and corresponding biology, and that those discharges will
prove to be a benefit to those preserves. Other than that, we don't
need to change the existing code.
And that as another issue too, this will be remanded back to the
EAC for their additional comments to go straight to the BCC.
Anybody care to second that?
COMMISSIONER MURRAY: I have a question.
CHAIRMAN STRAIN: Let's go to a second if there is one. If
not, I made that formal recommendation.
COMMISSIONER CARON: I'll second.
CHAIRMAN STRAIN: Seconded by Ms. Caron.
Now discussion. Mr. Murray.
COMMISSIONER MURRAY: Let me ask a dumb question
here. These folks worked hard to try to produce a document that they
felt was necessary. So by returning it to -- which I'm not disagreeing
with our chair -- by returning it or suggesting that it's not necessary,
what are the implication to you? What is it that happens to you or you
feel you lose? Because you brought this forward either because you
felt something was needed or because you were directed by the BCC.
Which it is true?
MR. LORENZ: The first question that you asked was what
position would we be in? And as I understand the motion from the
chair is the recommendation would be to rewrite it to simply allow the
discharge of stormwater into wetland systems if hydric soils and
existing hydrology would support it.
CHAIRMAN STRAIN: That's right.
MR. LORENZ: If that's the option and that's the alternative, that
gives staff a clear direction in terms of a policy direction as to what
we are supposed to review for and allow in that review process.
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So that would -- the answer to your second question, that would
give us the direction to have the standards to apply in our review
process.
Now, you asked the question, well, what would we lose? The
one concern that I have, and when we were working through this and
it came up through the development end of the stakeholders group, is
when we have that system where we have a preserve and we're trying
to get that largest contiguous area possible, and we have a mixture of
upland and wetland habitat types and they're all part of that one big
preserve and we want to make it as contiguous and work together and
have it integrated, now the question comes if the wetland portion of
that preserve needs to be -- is beneficial to be rehydrated and the
treated stormwater pops off into that wetland system, raises up in
elevation, now it's going to spill over into, quote, the upland portion of
the preserve.
Now we've just precluded that from happening. And the way then
we'd have to analyze that system is then you'd have to put in some
type of berm or some hydraulic separation between the upland portion
of the system and the wetland portion of the system. And that's a
concept that I think we lose some opportunity there.
The standards that we proposed here tried to allow for that in a
reasonable fashion to protect the upland system.
So the answer to my question, that would be the place where I
would see as somewhat -- we would lose that opportunity.
COMMISSIONER MURRAY: Thank you, Bill.
CHAIRMAN STRAIN: Bill, you had said, though, earlier, you
were already in an ad hoc basis utilizing this process. So I'm now
wondering why you made that prior statement, or Barbara made the
statement.
MR. LORENZ: Barbara can certainly correct me if I'm wrong.
As I understand it, the situations that we were involved with
previously was where we had solely a wetland system. I mean, excuse
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me, what staff was evaluating previously was on a wetland system.
There have been situations that have come in where we may have
-- where we do have proposals of Pine Flatwoods and those types of
systems that were not typically jurisdictional wetlands, and we were
looking at that on an ad hoc basis.
So that is correct, we were looking at that, trying to understand
the amount of water going into those systems and their ability to
withstand a certain amount of water depth and duration.
CHAIRMAN STRAIN: Don't wetland systems that you
currently allow discharges into have a bleed off at some elevation that
protects the -- that takes the volume so that it's retained at a certain
level and bleeds off and discharges to another appropriate source at
that point?
MR. LORENZ: Correct. The water--
CHAIRMAN STRAIN: It's controlled.
MR. LORENZ: The control elevation is what controls the water
levels on the site. And the bleed down mechanism then allows for a
certain recovery by the district rules and requirements.
MS. BURGESON: I also understand there are some discussions
with some of the engineers and maybe environmental staff from south
Florida, that there's an ability to create phasing of those stormwater
control elevations within a larger system as well. It might be a little bit
more expensive, but --
CHAIRMAN STRAIN: The objective to the motion that I'm
suggesting is that you have a system now that you're working with, it
hasn't proven to be that greatly broken. At least at couple people
eluded to that fact in their discussions today. But you indicated there
was a problem with it in regards to the way you handled discharge into
wetland preserves. And it wasn't really clear you did it on an ad hoc
basis.
And I was thinking if that's the issue that staff is having a
problem with, and I certainly wouldn't want to see staff in a position
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where they're making an arbitrary choice to do something that's isn't
spelled out clearly in the code, why don't we clarify that point in the
code, then we've got a better case scenario for both staff and the
public. And yes, maybe the development community doesn't get to
use uplands for stormwater discharges, but they can't do that today
without special exceptions.
And if they really feel it's necessary and a special exception is
warranted, as they have in the past, then go through the process to get
that approval. And the process, the last one, I understand, is the one
that went to the Board of County Commissioners in regarding the site
on Pine Ridge Road for Kraft Construction.
I don't see that process as being that difficult. It's in the
exception to the norm. The norm's proven to work pretty well. Hence
the objective of my motion was simply to clarify what language you
need for staff to function better.
Is it not -- Bill, are you saying in response to Mr. Murray's
question that you don't see that working now, that you actually are
going to have a problem?
MR. LORENZ: No, I can follow -- we can follow that direction
that you've just outlined.
CHAIRMAN STRAIN: That was the intent.
MR. LORENZ: Commissioner Murray asked me the question,
where would I see, and I took it as an opportunity. Where would I see
some change, some opportunities that could be lost. And again, my
focus is on the whole idea of that contiguous preserve where you have
a series of upland and wetlands in it and what the criteria could be to
allow stormwater to be in that system.
But that's not -- and that's what we have been looking at
somewhat as an ad hoc basis. But I think that the intent would be for
the discharge to be in a true wetland preserve. That if there's any
upland preserves, the direction I'm understanding from the chair, from
your motion would be that that go through a -- let's call it an
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exceptional process, and that process could either be administrative or
going to the Board of County Commissioners. You mentioned the
example of going to the Board of County Commissioners.
CHAIRMAN STRAIN: Right, I'd see it as an exceptional
process, not something that would need to be implemented in the
code.
Barbara.
MS. BURGESON: I think we could probably create some
language that would fall prior to the exception for when, for instance,
you may have a very large preserve, if you have a
couple-hundred-acre preserve and you're discharging initially into that
wetland and then you've got a transitional system to an upland system
adjacent to that. If we're looking at Collier County's -- let's just say
Collier County's required portion of that preserve being just the
wetland, this amendment won't affect us at all.
But if the Collier County required preserve is going to be that
wetland and then, let's just say there may be some listed species in the
far end of the upland portion, it may not be adjacent to, because it
doesn't have to be contiguous adjacent if the highest quality habitat is
not, but maybe we could create some language to say that when you
have a very large contiguous preserve and you're discharging
stormwater into the wetland that you make sure that you are not
changing the historic flow into the upland areas or causing any
additional negative impact by that flow.
So it would -- I would expect that we would want to be able to
allow that continued sheet flow as long as it's not going to be to a
greater extent. I think we --
CHAIRMAN STRAIN: More ofa frequency, I think was the
way we could --
MS. BURGESON: Correct. And we don't want the additional
inundation to last longer.
CHAIRMAN STRAIN: I would agree, that is where I was trying
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to go. That is the intent that I was trying to relay.
Is that the same feeling of the second?
COMMISSIONER CARON: Absolutely.
CHAIRMAN STRAIN: Is there any other discussion of this
issue with any of the members?
Hearing none, we'll all vote on the motion. There's a motion to
approve. All in favor, please signify by saying aye.
COMMISSIONER KOLFLAT: Aye.
COMMISSIONER CARON: Aye.
COMMISSIONER MURRAY: Aye.
COMMISSIONER SCHIFFER: Aye.
COMMISSIONER VIGLIOTTI: Aye.
COMMISSIONER ADELSTEIN: Aye.
CHAIRMAN STRAIN: Aye.
Anybody opposed --
MR. KLATZKOW: Just points of clarification. Are we going to
get a new draft done on this that nobody has a chance to review first,
based on this, that would go directly to the BCC?
CHAIRMAN STRAIN: I thought it would be going back to the
EAC for review before it goes to the BCC. As far as this panel
reviewing it, I mean, if we're making changes on the second hearing.
Are you suggesting we have a third hearing on it?
MR. KLATZKOW: I'm suggesting that the public doesn't have
an opportunity to really participate in this process if we're going to get
a brand new amendment coming forward. This board won't have the
opportunity to look at it to make sure that it's comfortable with it. I'm
not sure they'll have it in time for the EAC or not the EAC review.
Bill is nodding his head no.
And so I don't know if the BCC's going to have any
recommendation whatsoever on this from any board?
CHAIRMAN STRAIN: Okay, then, if we disagree with
language on a second hearing of a particular LDC amendment, and
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we've got a whole stack of them here in front of us today, and we
recommend alternative language as we did on the boat canopy issue
last week, what do you see the process then?
If we're not allowed to do this or if this isn't going to be the
ability for us to do it in a final hearing, then do we need other
hearings? If we do, tell us.
MR. KLATZKOW: Well, I don't mind a minor tweak, but it
sounds like this is going to be a major rewrite at this point in time.
CHAIRMAN STRAIN: So was the boat canopy one.
And Jeff, I'm not against -- if we want to have a third hearing,
that's fine, but someone needs to say that's what we need.
Ms. Caron?
COMMISSIONER CARON: For example, on the boat canopy
issue, boat canopies and boat houses and all of that ends with us
anyway. So whatever recommendation we were going to make at that
point would go directly from here to the BCC. Is that not correct?
COMMISSIONER ADELSTEIN: Right.
COMMISSIONER CARON: It doesn't go to anybody else.
Where this, we're sending it back to the EAC, which I think is a really
critical and important step. And I think Mr. Klatzkow may have a
point at that. Whether it's part of a regular meeting that we get that
language back, I think probably we would all like to review it.
CHAIRMAN STRAIN: I have no problem with that. I think it
would be great if we could review it. And basically if legal tells us we
can and they'll defer the BCC hearing until we get time to hear it
again, that's great with me. We'll do it a third time, fourth and fifth, if
needed.
MR. KLATZKOW: Well, do we have time to simply defer it at
this time until your next meeting until you get the language back to
the board?
CHAIRMAN STRAIN: To the planning commission?
MR. LORENZ: The next planning meeting would be when?
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CHAIRMAN STRAIN: Tomorrow. Can you guys stay up all
night and write this? It may not be tomorrow but we've got one on the
5th of September right now scheduled, and we may have to schedule
another one after that.
MS. BURGESON: I think what you're suggesting should be a
very simple -- well, maybe that's not the right word. I think what
you're suggesting would be a short paragraph, maybe not simple to
write, but I think it would be a short paragraph to write. We would
intend on writing it to get it to the EAC for their meeting on the first
Wednesday. If so, it would be ready for you.
CHAIRMAN STRAIN: I think all you're going to do is take the
old paragraph and put it back in and then clarify the issue that we
spoke about. And then that's it.
Then what happens is, if you could have that to the EAC, which
is -- when's our next meeting, do you know the date?
MS. BURGESON: September 6th.
MR. LORENZ: Next Wednesday.
CHAIRMAN STRAIN: That means next Tuesday is our next
meeting.
MS. BURGESON: We certainly could have that EAC draft
prepared prior to Tuesday. And hopefully maybe by 1 :00 this
afternoon I could have it.
CHAIRMAN STRAIN: As Mr. Jeff Klatzkow has suggested,
why don't we go ahead and continue this until next Tuesday's, not the
meeting but this issue, and to realize, look at the new language you
produced at next Tuesday's meeting.
Does that work for everybody?
COMMISSIONER KOLFLAT: What is Tuesday, is that
September 5th?
CHAIRMAN STRAIN: Yes, that was one of the alternative
dates staff asked us to approve.
COMMISSIONER KOLFLAT: Isn't that election day?
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CHAIRMAN STRAIN: If you haven't voted already it is.
COMMISSIONER KOLFLAT: Some of us are poll workers.
I'm talking now about a quorum.
CHAIRMAN STRAIN: Well, if we have a quorum--
COMMISSIONER VIGLIOTTI: I'm not a poll worker.
CHAIRMAN STRAIN: Mr. Vigliotti, will you be here?
COMMISSIONER VIGLIOTTI: Yes, I will.
CHAIRMAN STRAIN: Mr. Murray?
COMMISSIONER MURRAY: Yes.
CHAIRMAN STRAIN: Mr. Adelstein?
COMMISSIONER ADELSTEIN: Yes.
CHAIRMAN STRAIN: Ms. Caron?
COMMISSIONER CARON: No.
CHAIRMAN STRAIN: Mr. Schiffer?
COMMISSIONER SCHIFFER: I was going to be actually a poll
watcher, but I'll be here instead.
CHAIRMAN STRAIN: How many people go to watch this stuff
when everybody voted ahead of time?
COMMISSIONER SCHIFFER: This is democracy in action,
Mark.
CHAIRMAN STRAIN: I'm not sure we'll have a quorum. It's
going to be close.
Catherine, you're going to have to -- because we have Mr.
Midney gone and Mr. Tuff as well. You might have to poll the CCPC
after today's meeting.
Yes, ma'am.
COMMISSIONER CARON: I'm pretty sure that we brought up
this issue before and that's why we had picked today and tomorrow
was because the issue with the 5th came up and we said okay, we will
not do the 5th.
CHAIRMAN STRAIN: Okay. We're not going to finish today
or tomorrow, based on all the things that are happening, so Catherine
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you need to pick some additional days for us to meet and suggest
those to us bye-mail and poll us on when we can be there. And
whenever those dates are is apparently going to be after the EAC
meeting so then we can take the benefit of the EAS's
recommendations and staffs rewrite of this issue.
And based on that, is it then appropriate to continue with this
motion or withdraw the motion until such time that we finish hearing
it?
MR. KLATZKOW: I think you withdraw the motion and wait
till it comes back to you.
CHAIRMAN STRAIN: Ms. Caron?
COMMISSIONER CARON: Yeah, we meet in a regular
meeting on the 7th. Do we know what our agenda is for the 7th? I
mean, is it an outrageous one, or could we do this as part of the
meeting on the 7th?
CHAIRMAN STRAIN: It's only one item. It's a shopping center
in Golden Gate Estates, so --
COMMISSIONER CARON: So why not do it on that day? I
mean we're going to be here, everybody's going to have to be there on
that day. It doesn't conflict with election, it doesn't -- you know,
whatever.
MS. BURGESON: The only concern is that we have the EAC on
the day before and the DSAC meeting that afternoon.
CHAIRMAN STRAIN: Okay. But you could report those to us
on the 7th, couldn't you?
MS. BURGESON : Yes. But I would clearly like to try to get
how complicated this is to present to you orally versus getting some
language written that you can work with. Clearly we'd like to have
the time to write and draft language as a result of the EAC meeting
and maybe DSAC comments.
CHAIRMAN STRAIN: Barbara, let me tell you something. I
have a feeling that on the 7th we aren't going to get through -- we
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wouldn't get to the third reading of this on the 7th. We're not going to
get through most everything today. Tomorrow most likely will be
canceled. The 5th is now out. The 7th is only a half a day because
we've got a hearing in the morning anyway, which means after the 7th
we're going to at least need one or two more days.
So I would bet that if we scheduled you for the last thing to be
reheard again, that would give you more time after the EAC meeting.
MS. BURGESON: That would be great, thank you.
CHAIRMAN STRAIN: Catherine?
MS. F ABACHER: The only problem with that is it would
impossible to give the BCC any time to look at these packets. Packets
have to get out, the meeting is on the 20th, Wednesday, the 20th.
CHAIRMAN STRAIN: Can we delay the BCC hearing on this?
MS. F ABACHER: Delay it? No, we'd have to cancel it and
we'd have to go into November for the next one, probably.
CHAIRMAN STRAIN: Okay. I mean, I don't know how to give
everybody everything. That's the problem. We have -- everybody
was talking more time. The development community has already
argued they've not had enough time to read these things.
It's obvious we need more time. I can't schedule it, so who can?
We're willing to meet whenever we can meet. We're willing. But
staff needs more time in between the other meetings to write this stuff.
It still needs to be distributed to the public to be open and fair. I
would love to see this issue resolved amicably between all parties.
How do we do that if we're under a gun with BCC to have a certain
date by them that is not set in a manner that's realistic for our review?
MS. F ABACHER: Well, once we get into the holidays, they
don't have as many meetings, so this might carry it over into the next
year like the last cycle, when we finished on March 3rd.
Staffs being working really -- LDC staffs been working really
hard having all these extra meetings and trying to turn things around
in three or four days, which is why we can't get it adequately
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distributed to try and stick with the September and October meetings.
We might possibly be able to get a November BCC meeting.
CHAIRMAN STRAIN: The only thing I think we can do is
plow ahead the best we can. If that doesn't work for the schedule, then
the BCC is going to get whatever they have on the date that we can
get it. We can't do any better than that.
We're going to keep reviewing this, we'll keep meeting on it and
we'll keep beating it to death. If the BCC doesn't get the benefit of that
there's nothing we can do at this point. So why don't we schedule it
for the 7th and whenever we get to a point we have to continue, we'll
continue to the 7th. This will be the last thing we hear after we go
through the second hearing on all the rest of the stuff. So that will
give you more time than probably the 7th to get done with it. Then
we'll go in -- we'll see whatever date that brings. And do the best we
can. I can't think of any other way to do it.
Mr. Klatzkow, thank you for suggesting it. I appreciate that
because that's a better opportunity for the public.
MR. KLA TZKOW: It's an important issue for the public.
CHAIRMAN STRAIN: Now, as far as our motion goes. Mr.
Klatzkow, we made a motion, it was voted and recommended, subject
-- then you brought up this issue. We would definitely now want to
defer to hear to the revised language.
Do we let this motion stand and then take another motion on the
revised language for simplicity?
COMMISSIONER ADELSTEIN: Mr. Chairman?
CHAIRMAN STRAIN: Let Mr. Klatzkow finish and then you.
Mr. Klatzkow.
MR. KLA TZKOW: You could do it that way or you could vote
to withdraw the motion. Either way I think would work.
CHAIRMAN STRAIN: Okay. Mr. Adelstein.
COMMISSIONER ADELSTEIN: It's still my motion that the
motion was good, it should be kept. If we want to change it, let us
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change it now. But right now it's in place and I think it should stay in
place.
CHAIRMAN STRAIN: Well, as far as the board goes, ifit
doesn't hurt to vote either way, we could just leave that motion stand
until we come up -- until we vote on this again and that, the second
vote will nullify the first. W e'lllet it go then.
THE COURT REPORTER: Mr. Strain, you were halfway
through your question are there any objections, and I wanted to give
you that opportunity through the motion. You said all in favor and
then you said --
CHAIRMAN STRAIN: All in favor of the motion, everybody
raised their hand, or said yes. Is there anybody objected to the
motion?
COMMISSIONER MURRAY: Actually, I was probably had a
face, because I was still functioning and thinking.
CHAIRMAN STRAIN: Mr. Murray, do you object to the
motion?
COMMISSIONER MURRAY: No. No.
CHAIRMAN STRAIN: Does that mean you're in favor of the
motion.
COMMISSIONER MURRAY: I'm in favor of the motion
because I got the clarification I needed, that was the whole point.
CHAIRMAN STRAIN: Ms. Fabacher.
MS. F ABACHER: Staff needs clarification again on what the
motion was.
CHAIRMAN STRAIN: Oh, I love this. The motion was simply
to take the existing language of the code, leave it and then add to it
some clarifying language to allow discharges into wetlands in the
manner that we discussed with Barbara and Bill. And that was the
motion. That's what was voted on.
That is going to come back to us, the clarified language now
anyway. So the motion's going to be moot by the time we review the
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third round of this language to begin with. So that what actually goes
to the BCC will be the motion that will come in the future after we
hear the revised language.
MS. FABACHER: Thank you.
CHAIRMAN STRAIN: Barbara, that takes care of Pages 93
through 94. I'm assuming we're going to go to Page 95? I'd like to get
all the environmental through at least one time. Is that -- at least done
today as much as we can.
MS. BURGESON: That would be great. We could go back to
Page 6 and start --
CHAIRMAN STRAIN: You have environmental issues on Page
6?
MS. BURGESON: Yes, we do. Some of these should be quick.
This is just the passive recreation definition.
CHAIRMAN STRAIN: Okay, we're going to go back to Page 6,
and let's start from the beginning of the book, and all your
environmental issues, let's clear up today with the exception of what
we're just going to hear again.
MS. BURGESON: Correct.
CHAIRMAN STRAIN: Okay. Good.
MS. BURGESON: If you look on Page 7, you'll see the
definition Section 1.08.02. We took the recommendation from the last
meeting and clarified what passive recreation definition is. And on the
following couple of pages where it pertains to the Conservation
Collier lands, we just clarified that to state that where allowed by the
individual approved land management plans. We wanted to make sure
that if the individual specific management plans permitted for that,
they could do that, not just broad management plans. So this is just --
CHAIRMAN STRAIN: Okay, we're on Page 6, seven, eight,
nine and ten. Any questions on Page 6? Page 7?
Barbara, on Page 7 you added a word de minimus. And before it
was no negative impacts. And de minimus is a little bit more flexible,
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that's fine, but we're used to using that word in transportation, it means
less than one percent. There's been a request by transportation to
clarify that in regards to cumulative de minimus impacts, because
when you accumulate them over periods of time on the same project
they get to be greater than one percent. So how is de minimus going
to work here?
MS. BURGESON: Probably need -- Bill?
CHAIRMAN STRAIN: Bill? Mr. Lorenz.
MS. BURGESON: He wants to quantify de minimus.
Transportation allows only one percent.
CHAIRMAN STRAIN: Bill, de minimus has been a problem for
transportation in regards to concurrency impacts because projects
would come in with incrementals just below the de minimus impact,
but if you total them up over a period of time they would exceed the
de minimus impact.
I'm just curious now that you're using the same word. And I'm
sure you want to follow the Nick as God amendment, maybe you
could clarify how you're going to handle de minimus under your
department's provisions.
MR. LORENZ: Well, kind of looking around here. This --
CHAIRMAN STRAIN: Looking for help?
MR. LORENZ: This actual definition is -- the definition itself is
being proposed by the comprehensive planning department. They're
the ones that are going to -- they're the ones that are going to evaluate
the definition in the GMP and the LDC. The environmental is -- part
of this is the essential services with the Conservation Collier lands.
CHAIRMAN STRAIN : You realize that under the de minimus
impact, you could have half a dozen different functions come in at .9
each because they're below one percent. They can be accepted. But if
you accumulate those six times that you're at five to six percent
impacts. Is that your intent compared to the original language that
said no negative impact?
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MR. LORENZ: Well, there's -- I think you had mentioned
before, there needs to be some flexibility in the definition, quite
frankly, how do you actually quantity the impact on natural resources?
There's a whole host of natural resource functions. This requires some
judgment, an interpretation by a staff member. I don't know how else
you can evaluate that.
The term no negative impacts would be -- I don't think that you
can ever get to no negative impacts. So there has to be some top
toleration and some judgment of some impact.
But again, this is a definition that we may have -- environmental
had some working through with the comprehensive planning staff, but
this is a comprehensive planning staff definition.
MS. BURGESON: What we're looking to do is make sure that if
we're going to allow, as we do right now, we allow for pathways to go
through preserves and areas that we would hope would be utilized for
passive recreation, actually clearing native vegetation even to put in
those minimal pathways, even in a circumstance where you have
greater than the required native vegetation required. And so you're not
reducing that required acreage, but you're still clearing native
vegetation. It would be a negative impact. So we wanted to make
sure that we could allow for that de minimus. But I'm not sure that we
intended that to be tied to a one percent number.
So if it does tie us to the one percent number, and if you're saying
there is another definition that's defining the word de minimus, then
we would be concerned with this.
CHAIRMAN STRAIN: Barbara, let's take a site of about five
acres. Say somebody wanted to impact the five acres with a footprint
of about 3,000 square feet, say it maybe was a clubhouse on a barrier
island somewhere.
Now, that person's going to argue that that little 3,000 square feet
over a five-acre tract is de minimus. Under this language, if you don't
feel it is, or that -- or other concerns may feel it's not de minimus, how
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August 29, 2006
would you stop it?
MS. BURGESON: If our interpretation of de minimus in that
example, I can't imagine where a building would be considered a de
minimus impact of that size on that lot. If we differed with the
applicant, then the EAC would be the venue to dispute those concerns
or those differences.
CHAIRMAN STRAIN: Mr. Klatzkow's position, he'd be
challenged by the applicant's attorneys by simply saying wait a
minute, code says we can do it, we're less than the percentages you've
allowed of damaged footprint on other projects in the county in your
very own Conservation Collier program.
I'm just concerned that de minimus is too arbitrary of a term.
And if Mr. Klatzkow is comfortable with it, then I will be, because
he's the one that's going to have to defend it.
MS. BURGESON: Unless we can expand the no negative
impact to say no negative impact --
CHAIRMAN STRAIN: Use a measurable quantity, we might be
better off.
MS. BURGESON: Or a descriptive quantity. Not just a size, but
no negative impacts excepting what would be expected utilization --
expected to be able to utilize the site.
CHAIRMAN STRAIN: Bill?
MR. LORENZ: Yes, I'd like to make sure that we understand
that when we're talking about passive recreation, we're talking about
activities. We're not talking about the footprint of a building, which
can be very measurable. We're not talking about the length of a
walking trail that can be measurable in understanding what that is.
We're actually talking about the activities themselves, which is just a
lot more -- a lot tougher to evaluate those activities and those impacts
on the natural resources.
CHAIRMAN STRAIN: Well, that makes it even harder to
understand how de minimus can apply to that.
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Mr. Klatzkow, if you don't have a problem with this, I don't. I'm
more concerned about how it's going to be interpreted by--
MR. KLA TZKOW: I'm reading the version we had as of June
7th, and then I'm reading this and they're different. And I kind of like
the June 7th version better. And I'm not sure why the change was
made, the major change being to add the de minimus. But I tend to
agree with you. And I preferred the earlier version.
CHAIRMAN STRAIN: Is there a form of recreation in a natural
resource environment that could have no negative impacts? And if
that's the case, are those then the passive recreation issues you're
trying to get to? And if that's the case, the other version works.
MS. BURGESON: I'm just worried about the requirement to
clear for pathways, for instance, for just passive impervious pathways
through a preserve. Ifwe could deem that that wasn't a negative
impact, because it's not a negative impact on the preserve as a whole.
If we could interpret it that way, then the no negative impact would be
better language.
CHAIRMAN STRAIN: Isn't staff the interpreters of this code?
So it's your department that's going to interpret it. You've just got to
be consistent in the way you do it, that's all.
MR. LORENZ: Actually, the interpreter of the code is the
zoning director.
The way staff would handle this, and Barbara's example would
be for instance, if we have a preserve, which we would have, we have
Land Development Code to say passive recreational activities are
allowed in the preserve, and we've established in the Land
Development Code very specifically the standards for which we'll
allow those facilities that facilitate the activity to go in the preserve.
So in that particular example, we already have code language that
specifies the extent of the facility within a preserve area.
But this definition, and one word I used before, unintended
consequences, is going to be applied everywhere in the code you have
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the term passive definition (sic). And everywhere in the term you
have GMP you have the term passive recreation, you may run into
some of those types of unintended consequences that now a definition
is going to preclude something that is currently allowed today, but
when the definition kicks in, it won't be allowed later on. And I think
what we tried to do is we tried to show that there is a minimal impact,
a judgment call that somebody's going to have to make, whether it's a
David Weeks for compo planning, or a Susan Murray for zoning,
ultimately as to how that will apply once we establish this as a
definition. We currently do not have a passive recreation as a
definition.
CHAIRMAN STRAIN: Neither does the state. And the attorney
general is waiting on that as well.
Go ahead, Ms. Caron.
COMMISSIONER CARON: Since we do not have it already
defined, why don't you just say that this did definition is for passive
recreation in Conservation Collier lands only. Because you have
criteria for Conservation Collier lands. Why don't you limit it? And
that way it wouldn't be a problem, correct?
MR. KLA TZKOW: I'm not sure we're making this better by
putting a definition in. I mean, if we've got more questions now with
this definition than we had without the definition, I'm not sure that this
is particularly helpful.
CHAIRMAN STRAIN: Catherine, did you have something to
say, or did Mr. Klatzkow say what you were going to --
MS. F ABACHER: No, I just wanted to -- well, I did, thank you.
Catherine Fabacher for the record.
The thing is -- the problem is is that we do want to have a -- any
definition, contiguous, passive should mean the same throughout the
whole book. And you can't really say that this is the definition of
passive recreation for this section only.
We're trying to stay away from that in the code where we
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redefine a word for every section. And I have a problem with saying
that this is for Conservation Collier lands only, passive recreation, just
as the code writer.
CHAIRMAN STRAIN: Mr. Lorenz?
MR. LORENZ: Yes. I was going to just note that from an
environmental services standpoint, when we saw the passive
recreation definition come in, we recognized that it would limit certain
activities the way we had written in the code in the last cycle for
Conservation Collier lands. So we were reacting -- environmental
services was reacting to the definition to ensure that Conservation
Collier lands can accommodate the Conservation Collier objectives in
the permitted -- in the essential services section. So that's why it kind
of got linked with environmental services.
CHAIRMAN STRAIN: I think Mr. Klatzkow's idea of leaving
the definition as it was in the previous version is better than the one
that's now come back. So I don't have -- I think the definition for
passive recreation, based on some of the other activities that are going
on in the county is probably a good thing to have. But the older
definition based on the new language that you suggested is probably
better.
MS. BURGESON: Okay. And then again, passive recreation as
a definition could be just part of a preserve management plan, for
instance, so you could say that acceptable in this preserve area is
passive recreation, trails, which would insinuate the potential slight
clearing for them. So passive recreation wouldn't limit that.
CHAIRMAN STRAIN: Well, there's one change you might
make to the old language, and it says in the old one, second line,
second sentence, in addition, these activities are deemed to have no
negative impacts on the natural reserves, and there's a semicolon on
the word and, are consistent with preservation, enhancement,
restoration and maintenance goals for the purpose of habitat
conservation.
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August 29, 2006
Why don't you take the semicolon out and take the word and out
and just put natural resources -- have no negative impacts on the
natural resources or are consistent with the preservation, so that if
something is consistent with those, it's considered to have no negative
impacts and it's a done deal. Would that work better?
MS. BURGESON: I think so.
CHAIRMAN STRAIN: Mr. Klatzkow?
MR. KLATZKOW: Yeah, it's better.
MS. BURGESON: We'll look at going back to that definition.
One thing that we -- so we'll strike the word typically from that, I
think in that definition that you had from your first package.
CHAIRMAN STRAIN: Yeah, just go back to the first package.
It's a green sheet.
MS. F ABACHER: Barbara, that's the -- excuse me.
CHAIRMAN STRAIN: Oh, that's the second package? I'm
sorry .
MS. FABACHER: That's the 08/09 version.
MS. BURGESON: Can I read to you what I think could
accomplish this?
CHAIRMAN STRAIN: Yes. Or you can put it on the overhead,
either way.
MS. BURGESON: A couple different things. The first package,
that activity is typically characterized by natural resource --
CHAIRMAN STRAIN: You've got to slow down.
MS. BURGESON: Sorry. Activities typically characterized by
natural resource emphasis, minimal site impact and non-motorized
activities, actually -- if we rewrite that sentence to say activities
characterized by a natural resource emphasis and non-motorized
activities. These activities are deemed to have no negative impact on
natural resources or are consistent with preservation, enhancement,
restoration and maintenance goals for the purpose of habitat
conservation, and leave the last sentence as it is.
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CHAIRMAN STRAIN: I like it. Yeah, I think that's a good
idea. That will clean it up nice.
Okay, that's Page 7.
Let's try Page 8.
(No response.)
CHAIRMAN STRAIN: Page 9?
MS. F ABACHER: We're going to vote in bulk on this?
CHAIRMAN STRAIN: We're going to vote on this section.
That's just one paragraph of a four-page section. I figure we'd get done
with the four pages and vote on them together.
MS. FABACHER: Thank you.
CHAIRMAN STRAIN: Page 8 and Page 9. Last page is 10.
(No response.)
CHAIRMAN STRAIN: Any public speakers on this one?
MS. FABACHER: Yes. Mr. Wayne Arnold wanted to speak,
and I haven't queried our other --
CHAIRMAN STRAIN: And Mr. Bob Mulhere by the raise of
his hand.
MS. F ABACHER: Yes. And possibly Mr. Lewis.
MR. ARNOLD: Hi, I'm Wayne Arnold, and I just wanted to
comment on the passive recreation definition.
CHAIRMAN STRAIN: It's physically impossible for him to be
shorter than you.
MR. ARNOLD: That is correct.
My comment on this one is really I think internal consistency
more than anything. Because you've made some provisions in the
Growth Management Plan relating to passive recreational uses and
sending lands and things of that nature.
And one of the questions I have is whether or not camping would
be a permitted use. For instance, we have Boy Scout camp, Junior
Deputy camp and other very minimal activities in those lands. And
those are permitted uses on conservation lands presently.
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And I didn't know if this definition was trying to be restrictive to
just areas that are within conservation easements, so to speak, or these
larger conservation preserve lands.
And I would hate to preclude some of the other conservation
issues that are deemed permittable throughout the county by adding a
definition that didn't contemplate the full range of conservation uses.
CHAIRMAN STRAIN: I mean, I'm not sure what it means by
not contemplating the full range. I know that they provided some
examples but it says very clear they're not limited to.
Barbara, can you respond to Wayne in some manner?
MS. BURGESON: If the property is strictly limited by code or
by overlay to only passive recreation, are you saying it wouldn't say
passive recreation, comma, camping? Because if you have public
camping, that would require a site improvement plan, it would require
review and a process. I mean, that would be -- that's commercial
development. It wouldn't be --
MR. ARNOLD: It's permitted use right now in your
conservation zoning designation. And that's what I'm getting at. You
allow a range of passive recreational uses, plus some other uses that
mayor may not be passive, per see But there can be very limited
primitive camping that occurs even on publicly held lands that this
also addresses.
MS. BURGESON: Right. But this doesn't limit a management
plan for property, this just provides a definition. So if you need to add
to that management plan, if your management plan says you are
permitted to have passive recreation, comma, primitive camping,
comma, other uses, this is just a definition for passive recreation.
MR. ARNOLD: Okay. I'm only concerned, we're dealing with
the Land Development Code, but I think there are references in the
Growth Management Plan under your rural land stewardship and the
rural fringe that addresses passive recreation.
MS. BURGESON: Again, again, this being really a GMP
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amendment, I'm sorry that I simply can't answer specific to that --
MR. ARNOLD: I guess all I'm trying to get at is that there's no
intent to limit uses that are otherwise permitted presently under the
Growth Management Plan.
CHAIRMAN STRAIN: I don't think the LDC can override the
Growth Management Plan, it's there to implement it.
MR. ARNOLD: I'll look at that, too. And if this comes back
again, or at the BCC level, I guess we could deal with it.
CHAIRMAN STRAIN: Mr. Murray?
COMMISSIONER MURRAY: To engage in that dialogue,
because -- and he brings up a good one about say Boy Scouts, Girl
Scouts. Boy Scouts in particular, they have merit badges, they're
supposed to dig latrines, they're supposed to create monkey bridges
and all kinds of things. And that does -- that would have more, I
suspect, of a -- more than a de minimus effect on property.
I wouldn't want to see it outlawed, and I don't think a site
development plan would be something that would be appropriate for
that kind of camping. So it's kind of like in between. But what Duane
(sic) is raising is a very important and significant issue. That doesn't
appear to be so. So for the protection of the property as well as for the
right of use.
MS. BURGESON: Right. And there are some zoning issues too
sort of intermingled with this, in that you can't have a Boy Scout camp
necessarily on a piece of property without some review and zoning
process. So we're clearly not trying to preclude any of those uses,
we're just trying to define what passive recreation would be and other
things that could be utilized on, say, a Boy Scout property or Girl
Scout property.
MR. ARNOLD: Thank you.
CHAIRMAN STRAIN: Thank you, Wayne.
Mr. Mulhere?
MR. MULHERE: Good morning. Bob Mulhere.
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My comments to a large degree echo Wayne's. I was a little bit
concerned about unintended consequences associated with the creation
of this definition. You can probably go on municipal code, look at the
LDC and do a global search for the words passive recreation and pick
up every instance in a relatively short period of time and determine if
you have any potential conflicts.
You know, the DSAC heard this and I think the presentation was
done based on Conservation Collier having concerns about creating a
definition. And, you know, those lands as I understand it are being
required to preserve open space, but usable open space for the public.
And so you obviously want to allow certain uses on those lands that
are being purchased with, you know, taxpayer dollars.
So I think the addition of camping, you know, either at -- it needs
to expressly be added or it could be understood that under certain
circumstances -- because part of the DSAC's recommendation was to
be flexible in that last sentence.
The original version that I remember was less flexible and didn't
say examples including but not limited to. And that's the whole
purpose of providing that is because we can avoid some unintended
consequences by creating that flexibility.
I like Bill's comment. Unfortunately sometimes we have to use
judgment. You can't, you know, write rules for every single
circumstance that's going to occur.
And I think the other condition that concerns me just a little bit is
-- and perhaps there's a resolution -- if we're talking about -- passive
recreation is used in a lot of different locations. If we're talking about
the conservation zoning district, certain uses are permitted. And I
assume they're permitted in the Growth Management Plan. And so this
would not, you know, have an impact on those uses, camping being
one of them.
If we're talking about passive recreation as it might be allowed
within a preserve within a project, then I think you can limit the
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August 29, 2006
undesirable uses through the instrument of the conservation easement
itself, which I think Barbara alluded to.
So I think on site specific cases within a proj ect, if you only want
to allow, for example, unimproved pathways or impervious pathways,
then that can be done with this definition utilizing the instrument of
the conservation easement having certain regulations, or the
management plan being a part of the conservation easement.
But I don't think we really have that much of a problem. The
only thing that concerns me is I haven't done a thorough search of the
LDC and where the term passive recreation comes up now being
defined whether or not there's going to be any conflicts. But it really
isn't that much of an exercise to do that.
CHAIRMAN STRAIN: Good, then you'll be able to do it before
our second hearings are over and come back if there's a problem.
MR. MULHERE: I could do that.
CHAIRMAN STRAIN: You could have done it for your role in
the DSAC meeting.
MR. MULHERE: Before the what?
CHAIRMAN STRAIN: You could have done it since you're on
DSAC any. I mean, if you're not concerned about it--
MR. MULHERE: Well, no, no, the language changed from what
we recommended. And that's where the issue arises. The language
that we originally recommended, there's no problem.
CHAIRMAN STRAIN: I'm saying the look-up of it in the LDC
MR. MULHERE: Didn't need to. There wasn't a problem with
what was originally proposed.
CHAIRMAN STRAIN: Okay. Well, if you see anything, Bob,
would you come back and let us know?
MR. MULHERE: I will.
CHAIRMAN STRAIN: Thank you.
Any there other speakers on this issue?
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MS. FABACHER: Let's see, Mr. Yovanovich, Mr. --
CHAIRMAN STRAIN: Well, you don't have to encourage them
now, if they don't have anything to say. I asked the question, you
don't need to call names out. If no one stands up --
MS. FABACHER: They have generically written environmental
issues and transportation issues on their speaker slip, so I don't know
exactly which amendments they're interested in.
CHAIRMAN STRAIN: I'll just ask, anybody else want to speak
on this?
(No response.)
CHAIRMAN STRAIN: Good. Okay, we have another section
with a change to the definition as recommended by Barbara's language
that she read into the record. Is there a motion for recommendation to
move this forward?
COMMISSIONER ADELSTEIN: So moved.
CHAIRMAN STRAIN: Motion made my Commissioner
Adelstein to move this forward with the changes as recommended by
staff.
COMMISSIONER VIGLIOTTI: I second.
CHAIRMAN STRAIN: And seconded by Commissioner
Vigliotti.
Any discussion?
(No response.)
CHAIRMAN STRAIN: All those in favor, signify by saying
aye.
COMMISSIONER SCHIFFER: Aye.
COMMISSIONER MURRAY: Aye.
COMMISSIONER ADELSTEIN: Aye.
COMMISSIONER VIGLIOTTI: Aye.
COMMISSIONER CARON: Aye.
CHAIRMAN STRAIN: Aye.
COMMISSIONER KOLFLAT: Aye.
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August 29, 2006
Anyone opposed?
(No response.)
CHAIRMAN STRAIN: Motion carries.
Ms. Court Reporter, in about an hour we're going to break for
lunch. We normally we -- every hour and a half I try to break for a
few minutes want about a 10-minute break now?
THE COURT REPORTER: I would, thank you.
CHAIRMAN STRAIN: Okay, we'll take a 10-minute break and
we'll be back here at five minutes till 12:00.
(Recess. )
CHAIRMAN STRAIN: Okay, if everybody will resume their
seats, we're going to continue for about 54 minutes or no -- yeah,
something like that.
And with that, Barbara, what's the next page that we're moving to
under the environmental issues?
MS. BURGESON: The next amendment would be on Page 83.
And that's to Section 3.05.02, which is exemptions from requirement
for vegetation protection and preservation.
And as a result of your last meeting, I rewrote language on Page
86 to clarify the exemptions for right-of-way for public utility and
transmission and for public road right-of-ways.
COMMISSIONER MURRAY: Seems better.
CHAIRMAN STRAIN: Okay. Are there any comments on
Pages 83, 84, 85 or 86?
(No response.)
CHAIRMAN STRAIN: Is there a recommendation to--
COMMISSIONER MURRAY: Motion to approve.
CHAIRMAN STRAIN: -- move that section forward to the BCC
with a recommendation of approval?
COMMISSIONER MURRAY: I move.
CHAIRMAN STRAIN: Motion made by Mr. Murray--
COMMISSIONER ADELSTEIN: Second.
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August 29, 2006
CHAIRMAN STRAIN: -- seconded by Commissioner
Adelstein.
Any discussion?
(No response.)
CHAIRMAN STRAIN: All in favor, signify by saying aye.
COMMISSIONER SCHIFFER: Aye.
COMMISSIONER MURRAY: Aye.
COMMISSIONER ADELSTEIN: Aye.
COMMISSIONER VIGLIOTTI: Aye.
COMMISSIONER CARON: Aye.
COMMISSIONER KOLFLAT: Aye.
CHAIRMAN STRAIN: Aye.
Anybody opposed?
(No response.)
CHAIRMAN STRAIN: Motion carries.
Next one, Barbara?
MS. BURGESON: I apologize, I don't have the -- maybe the
pages for the next amendment.
CHAIRMAN STRAIN: Well, you do have some on Page 87,
which is right after 86. You want to take them in order?
MS. BURGESON: The next one should be the 95 percent native
vegetation requirement.
MS. FABACHER: Ninety-five. Page 95 on the green sheets.
CHAIRMAN STRAIN: Has Page 87 been withdrawn?
MS. F ABACHER: That's been withdrawn, yes, sir. And page --
and the one on Page 89 has been withdrawn. So the next page would
be 95. And I believe you have green sheets for that.
CHAIRMAN STRAIN: Yes. Preservation standards.
MS. BURGESON: And as a result of the last meeting, we struck
the language to allow for an administrative change to the entire
preserve area, if it was consistent, because that was too much of an
impact without a public hearing or a public meeting.
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And we looked at connecting the current language in the code to
allow for an insubstantial change to a master plan which allows you to
have a five percent change with that insubstantial change. We looked
at utilizing that 95 percent figure here to say that for a PUD, that 95
percent of the preserve area should be identified up front and the five
percent flexibility would be allowed at a later stage.
CHAIRMAN STRAIN: Right now it's 75 percent up front and
25 percent --
MS. BURGESON: Right now the language says that you should
identify the preserve up front. However, if you cannot, then you need
to identify a minimum of75 percent. So even in the language as it's
written right now, it still intends to require that you identify all the
preserves up front, but it says that a minimum of 75 percent. So we're
looking at changing that minimum from 75 percent to 95 percent.
CHAIRMAN STRAIN: Okay.
MS. BURGESON: We have a number of legal problems with
PUDs where we can't even get multiple property owners, after the
PUD is approved, to permit each other on each others property for
remaining EIS evaluations.
And let's just say that you've got a project that comes in, they've
only identified 75 percent up front. And after the PUD is approved, a
few years go by, somebody submits plat and plans for review. Now
whoever submits that for review, even if it's a small portion of the
PUD is responsible for reevaluating the entire PUD for the remainder
of the 25 percent. And the entire 25 percent may be on their property.
And it's going to encumber their use. We want as much of the
preserve area identified up front so that when subsequent owners and
people that live adjacent to this have the expectations of where those
preserves will be, and we can legally require that they be identified at
the next development order.
CHAIRMAN STRAIN: Any questions from the commission?
(No response.)
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August 29, 2006
CHAIRMAN STRAIN: Barbara, I have one. And since the
acquisition of land and handling it is something I've been doing for a
long time, I know that the cost to fine line and fine tune preservation
areas up front means you have to go through extensive amount of
studies to do that. Jurisdictional lines, wetland determination lines and
things like that, from the Corps, from South Florida, from every other
agency.
At 75 percent you can do that and be assured that -- you can
tweak the lines enough so that you're still consistent with your PUD
master plan.
At 95 percent, my concern would be that if you don't do all that
heavy expenditure up front to make sure that your master plan is as
absolute as it needs to be and you only have a five percent standard of
error, then you're going to have to come back and change your PUD
through the public process to amend the changes to your preserves if
you have a new say some more refinement come out later on.
So I'm wondering, did anybody think that out?
MS. BURGESON: A couple of issues. One, we're asking
absolutely no additional information than we already ask. No
additional cost whatsoever. The applicant is providing us with an EIS
and we utilize the EIS to determine where the preserves should be.
CHAIRMAN STRAIN: I didn't say you were asking for the cost.
You're asking for a fine tuning of a line. That may not be something
you were asking a cost to be injected into, but to meet that demand so
that the applicant knows he's not going to be showing up here every
five years or every two years for changes to his PUD because of
refinements in his lines. He has to go -- or she; I want to be
generically correct -- they will have to go through that process to
make sure their lines are that accurate at that early stage, which is a
stage that maybe a lot of people are still trying to see if they can just
simply get the zoning, not a matter of how to spend $100,000 on
studies to get there.
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That's where my -- I know you're not asking for it, but you're
asking for something that's going to require that inadvertently of the
applicant, I would think, so --
MS. BURGESON: Again, every application that comes in right
now has enough information for us to make the determination on the
100 percent and enough information for the consultants to make that
determination, because the GMPs are so specific to identify where the
highest quality habitat for requirement for that site is.
The only time where it would be -- you would have the flexibility
that that 75 percent might make sense is if the entire site were one
FLUCCS code map and then it wouldn't matter where you put that
preserve in terms of environmental. But if you identified that preserve
up front because it was the same, and you identified where the largest
contiguous area should be, you would just exclude that and it wouldn't
need to be amended unless you had a site plan change requirement.
CHAIRMAN STRAIN: Is the fact that staff is -- basically can't
keep track of the preserve quantities through the multiple number of
development orders that appear after the PUD the problem, or part of
the problem?
MS. BURGESON: The biggest problem is not that we can't keep
track, although that becomes difficult when that happens. The biggest
problem is we don't know that we have any legal way to require
property owner number one to encumber property owner number
three's property with a preserve area when they submit their SDP or
their plat and plans.
CHAIRMAN STRAIN: Aren't they all-- when they come in for
a PUD, don't they have to show joint consent ownership? I mean, I
don't understand why you have multiple property owners you've got to
deal with.
MS. BURGESON: Yes, but that doesn't -- I mean, we've got a
number of different projects right now. Two off of 951 where the
school board owns a piece of property. There's a residential
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August 29, 2006
development, condominiums or apartments, and then there's a
commercial component. And there's different ownership.
And there's a challenge to where the preserves should be. Even
though with that first development order submittal they identified
where the preserves should be, we're being challenged on that.
CHAIRMAN STRAIN: You're saying one project, one PUD has
apparently three separate owners now on a commercial tract, a
residential tract and a school board all in the same PUD?
MS. BURGESON: Yes.
CHAIRMAN STRAIN: That wouldn't be Pebblebrook, would
it?
MS. BURGESON: No.
And the property to the south has two separate owners, different
PUD, where one owner precluded the other owner from getting on
their property. And so we had to make special arrangements with the
next development order submittal to work with two different
consultants to try to get two separate EIS's to attempt to review them
together.
But if one -- the first development order that comes in identifies
that all the preserves have to be on the other property, we don't have
any legal ability to get a conservation easement on a --
CHAIRMAN STRAIN: Okay, your examples were well
founded. Thank you, I appreciate that. Because I couldn't understand
where the problem was, but your examples certainly reflect --
MS. BURGESON: There are a number more like that. And it
just continues to escalate.
CHAIRMAN STRAIN: That's too bad that we have to deal with
so many things like that.
COMMISSIONER MURRAY: Can I get a little more
clarification for this brain here? When a PUD is submitted, there's
supposed to be unified control, right?
MS. BURGESON: That's a legal question that--
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COMMISSIONER MURRAY: Okay, it's supposed to be unified
control?
MR. KLATZKOW: But they then sell it off.
COMMISSIONER MURRAY: I'm sorry, what?
MR. KLATZKOW: They then sell it off.
COMMISSIONER MURRAY: Well, I understand. But at what
point are the preserves declared and determined?
CHAIRMAN STRAIN: Platting.
COMMISSIONER MURRAY: That's when. So the process
does have a weakness in it, doesn't it?
MR. KLATZKOW: Yeah. And one approach, by the way,
would be as long as there's a single unified ownership, you can
maintain the 75 percent, because it's just one owner, and he can find
out later, or she, where to put the others and work around it. It's only
when they start bifurcating or trifurcating the property this becomes an
issue. And maybe that's when this should kick in.
CHAIRMAN STRAIN: That's one solution. Let's -- if there are
no other questions from the panel, let's see if there's any concerns by
the public and then we can see if there's any tweaking --
MS. F ABACHER: I don't have any slips. We'll just have to --
CHAIRMAN STRAIN: Anybody wish to speak on this? I don't
see Mr. Y ovanovich -- oh, yeah, there he is. Boy, when you compare
him to Bob Mulhere, it's hard to -- anyway.
MR. YOV ANOVICH: Much taller.
CHAIRMAN STRAIN: Yeah. Go ahead, Richard.
MR. YOV ANOVICH: I start out the day at six-five and by the
end of the day I'm about five-six.
F or the record, Rich Y ovanovich.
First of all, I think, Mr. Strain, you brought up a very good point
as far as when in the process are we being required to come up with
our complete engineering detail for what your project's going to be?
Because the only way to identify 100 percent of your preserve area is
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to get through your final engineering drawings, sit down with the
Corps of Engineers and the Water Management District, work it all
out, and then you know where they're going to tell you your preserve
areas are going to be from their perspective.
And then you've got to sit down and work with the county to see
if they jive, because they may not. But that, for a small proj ect, is
probably 150, 200, $250,000 issue before you even know whether you
have any zoning rights.
Now, the simple fix is, remember, we have to come in on every
PUD and show unified control. In the PUD document you say at the
time of the first development order you have to identify 100 percent of
your preserve areas. Everybody who buys property in that PUD
knows they're subject to the conditions of that zoning document.
Now, if there's a dispute amongst the various property owners,
that's not the county's issue. The county simply says, guys, and gals,
until you work this out we're not going to talk to you. You can't -- you
don't have the ability through your plat to now say that, you know, say
for instance Jeff and I own a PUD, I come in to plat my lands and I
show all of the preserves on his property, the county simply says wait
a minute, the guy whose property you're putting the preserves on here
needs to sign off and say that's okay. That's not that difficult to do.
We're legislating for an example that sure, it happened, but, you
know, that doesn't mean that you change the entire procedure for that
to happen.
Also, as I read the reason for this, it says the original 75 percent
preserve requirement was because we didn't have a hierarchy in the
compo plan as to what you protect. We now have a hierarchy. So I -- I
think the original basis for the 75 percent is because the compo plan
wasn't clear as to what takes priority.
Well, now that we know what takes priority, you probably don't
even need the 75 percent at the PUD master plan stage. But now
we're going to make it more onerous on the property owner and say
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effectively you've got to have 100 percent of your preserve area
identified. And that just doesn't make any sense for a couple of odd
ball examples that all the county had to say was sorry, until you show
us that the other property owner has consented to this preserve
arrangement, we're just not going to deal with it.
In addition, you're talking about on most of these PUDs we hire
an environmental consultant, they prepare an EIS, they're skilled in
doing this, they know what they're doing. Your staff goes out also and
verifies the information they're provided. We're going to identify 75
percent of the preserve and your staff is going to have already
reviewed that and say yeah, that makes sense, it looks like.
There's always the risk that the Water Management District or
the Corps may totally disagree, and we as the applicant may have to
come back and amend our master plan anyway, based upon the 75
percent, if there's enough change.
That's the property owner's risk. They're willing to take that
because they hire good competent environmental consultants. Your
staff is out there also ground truthing it.
It was a lot simpler to do what they were requesting when the
Water Management District and the Corps would just come out on
your property and say, hey, here's where your jurisdictional lines are.
But that day is gone. They now require you to actually submit a
permit. It's a lot more expensive process and a much more
burdensome process, before you know in today's climate whether or
not you have a project. And I don't think that's an appropriate expense
to put a property owner through when there is a safeguard, and that is
with the first development order within that property, they have to
identify 100 percent of the preserves, which they can do because they
will have been through the permitting process at that point.
And we would request that if you can't come off the 75 percent
number and make it lower, stick with the 75 percent number and not
raise it to a 95 percent.
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CHAIRMAN STRAIN: Richard, before you move past that
thought, Ms. Caron had a question, and then I do.
COMMISSIONER CARON: Well, I was just going to ask Mr.
Klatzkow, what happens if we do refuse to go forward? If you and
Mr. Y ovanovich own this property and he comes in and says I want to
go forward but he's got all the preserves on there and he doesn't have
you signed off, and so as the county we say then forget it, until you
get Mr. Klatzkow's, you know, signature, then your project just sits
here.
MR. KLATZKOW: I think that's a fair approach. It protects all
parties.
COMMISSIONER CARON: So we have no legal problems
doing it that way. You're not suddenly going to get Mr. Y ovanovich
saying, you know, well, now my rights are -- no, I'm very serious here.
This is not a simple thing here that we're talking about.
MR. KLATZKOW: Ifwe amend the code to provide that, just
what you're saying, all right, then all property owners know when
they're buying into this, what the deal is, county doesn't have an
exposure.
MR. YOV ANOVICH: And we have done that in the past in
PUD documents where we've said your EIS, for instance, will be
required at the next development order. And you buy that property
with the zoning in place. Remember, PUDs are stronger because
they're more of a negotiation, so the property owner buys knowing
that condition.
COMMISSIONER VIGLIOTTI: I have a question. Is the
county getting involved in some of these now where they shouldn't be
and they're wasting dollars just chasing something they shouldn't be
involved in?
MR. KLATZKOW: I think the argument would be the county
should have been involved and hasn't been. And I only say that
because the school board is having a problem with a piece of their
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property because Noah's Landing came in and pushed all the preserves
onto the school board property and now the school board doesn't have
enough property to put a school on. And, you know, maybe they
should have done a little more due diligence during this process, but
it's a real problem.
MR. YOV ANOVICH: And I know a little bit about that one. I
wasn't involved in it, but I know a little bit about that one, only
because --
COMMISSIONER CARON: For the record, he wasn't involved.
MR. YOV ANOVICH: That's an older PUD before you had the
75 percent requirement, I believe. And for whatever reason, when that
plat came in for Noah's Landing, there wasn't an insistence on
pinpointing and identifying all the preserves. And that did happen. It
clearly did happen. But there was one owner originally, and for
whatever reason -- it could have been caught at that point before the
different sales occurred.
CHAIRMAN STRAIN: Richard, your suggestion is that
basically the preserves get placed on the plan after the first
development order is applied for once the PUD's approved; is that
what you're suggesting?
MR. YOVANOVICH: Yes.
CHAIRMAN STRAIN: Okay. The issue, from what I
understand, has not been the timing of when the application and
development orders have been submitted, it's more when the sale of
the land gets accomplished. So you could sell something before you
apply for a D.O.
So say you have a PUD, you got your entitlement. As soon as
you do that, your land is 10 times more valuable in this county. Now
you've got your zoning. You walk out and you split it up and you sell
it off in pieces. Then those pieces come in for their individual DO's.
MR. YOV ANOVICH: Correct.
CHAIRMAN STRAIN: Okay. But then you've got ten
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individual DO's, how do you get --
MR. YOV ANOVICH: As you know, when you do your due
diligence and you're a buyer, you're going to hopefully hire competent
people to advise you as to where we are in the status of the permitting
process. And that person's going to read the PUD document and
they're going to say you've got a PUD approved but you don't have
your preserve areas approved yet. You've got to resolve that with the
person you're buying the land from. You're going to say to the seller
of that land go get the preserves identified 100 percent so I know what
I'm buying. That's what a good, diligent buyer is going to do.
CHAIRMAN STRAIN: You're assuming there's competence in
all these people involved and you're assuming there's honesty. I can
tell you that is not the case in this county. There are deals made day
and night where people are just trying to make a deal for a quick buck
and competency and honesty go out the window.
MR. YOV ANOVICH: Well, that -- you know, I can't protect a
buyer who doesn't want to do their homework and look and find out
what is or isn't permitted.
At the same time you know what happens? That buyer comes in
and they submit and the county says sorry, your PUD said this is the
way -- these are what the rules of the game are. I'm sorry you're in
that situation, go work it out with the guy you bought the land from.
You know, why would you put someone through the expense of
identifying basically 100 percent of their preserve area because they
didn't do their homework?
CHAIRMAN STRAIN: Mr. Klatzkow, did you have any -- is
there any way that the county can control a sale in regards to
triggering the allocation of the preserves? I'm not comfortable with
the buyers being at fault, because honestly, when buyers come into
this county, very few of them know the extremities our codes go to.
They're used to what it's like back in Tennessee or Arkansas or
Oklahoma. And boy, I'll tell you what, it's a whole different world
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here when you buy a piece of property. You've got a know a lot more
due diligence, you've got to understand the market a whole heck of a
lot better than you do in other states in this country.
So I'm still -- I understand when staff made the clarification to
the issue, it did hit home. I understand exactly what their concern is.
But is there another trigger besides a development order that could be
instituted that would force someone to allocate their preserve areas in
a more definitive manner prior to a sale or during a sale?
MR. KLATZKOW: I think, Chairman, that this amendment is
really here to protect developers from themselves, really. And I would
prefer to see the development community come up with a mechanism
to protect themselves from themselves and bring that forward.
CHAIRMAN STRAIN: I mean, they haven't done it through--
what we're hearing from Richard right now is a solution that I
originally thought might be a good idea. But it doesn't solve the
problem that Barbara and Bill related to me, which is the early sale of
pieces of property within the --
MR. YOV ANOVICH: So what you're saying -- I think what Mr.
Klatzkow just said was they're trying to protect developers from
themselves. That's the purpose of this.
What I'm saying is we don't need that protection. The 75 percent
requirement is enough at the PUD master plan stage.
Add a requirement that before you get your first development
order you have to identify the remaining 25 percent, and then if
someone doesn't know the code, I'm sorry. I don't go buy land in
Tennessee. I would hire someone who is familiar with the regulations
in whatever jurisdiction in Tennessee to tell me what do I need to
know about the rules up there, just like they should do as they're
coming down here. You know, just because they assumed something
doesn't mean that we should now add all this next level of regulation
to the process when they had -- that early in the process. It doesn't
make sense.
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MS. BURGESON: Rich had suggested that we add language to
require -- that the remainder be set aside. Well, it already is. That's
exactly how it's written right now. You identify the 75 percent up
front.
And the current requirement is at the time of the development
order submittal, the remainder of the 25 percent be identified.
If there were some way of precluding the sale of any property
prior to that first subsequent development order submittal --
CHAIRMAN STRAIN: Or prior to 95 percent of the preserves
being set aside.
MS. BURGESON: But there would -- it would take some
process to do that. I mean, we would need some development order to
lock that down, whether it would be plat and plans or conservation
easement or site plan or if it precludes the subdivision of any property
until that's done.
CHAIRMAN STRAIN: But see, Richard, your comment was
that they need to do this before the first development order's put
through. What mechanism triggers that?
MR. YOV ANOVICH: Well, first of all, I don't -- let's just use
the big project as -- you know, and I don't want to step on anybody's
toes, so I'm just going to call it Pelican -- let's do Pelican Bay. It's
done --
CHAIRMAN STRAIN: That's a good neutral--
MR. YOV ANOVICH: -- I don't think I'm stepping on anybody's
toes here on that one.
When that proj ect was done, I don't think you had any issues with
having to meet -- you know, whoever owned it originally probably
sold off some parcels. But the buyer said we have to resolve these
Issues.
Are you saying that you're not going to allow any parcel sales
until all the entire permitting is done for a Pelican Bay type project
because you're worried that the buyer hasn't adequately protected
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themselves?
CHAIRMAN STRAIN: No, we're trying to figure at what stage
the preserves get locked in. So that when those parcels are sold, one
buyer -- one subsequent developer isn't stuck with the whole package.
MR. YOV ANOVICH: I'm with you. But what I'm saying is
that's something between the buyer and the seller to worry about. You
have to just say you're not going to approve the plat unless 100
percent of the preserve area is identified.
MS. BURGESON: But it could be an SDP. The next
development order submittal --
MR. YOV ANOVICH: It could be --
MS. BURGESON: -- could be an SDP.
CHAIRMAN STRAIN: One at a time.
MS. BURGESON: Sorry.
And there would be a staff administrative review of the site
development plan.
MR. YOV ANOVICH: And you'll check the box, have we
identified 100 percent of the preserve area, and if the answer's no,
you're going to stop the SDP.
MS. BURGESON: It's not just to identify. I mean, we need to
get some commitment that -- because we identified it with Noah's
Landing. With that SDP, they provided us a site plan that showed
where the preserve areas will be. Then they sold it and we have
different owners. Now the different owners are saying even though
that site plan was identified, when I come in for my development
order, that's not an appropriate amount. We need to make sure that
there's -- because that site plan wasn't a plat and plans, it wasn't a
conservation easement, it --
CHAIRMAN STRAIN: But Barbara, are you saying that the
school board bought that property knowing it was on an SD -- they
bought it while there was an SDP in place showing it was all preserve
area?
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MS. BURGESON: But it was an SDP for a different piece of
property that just had a drawing in that SDP file for the remainder of
the PUD, not for the other parcels. It was attached to that SDP.
So obviously, yes, it would be due diligence of each property
owner that purchased the land. But it -- you'd only find it if you
searched that SDP file for the site --
CHAIRMAN STRAIN: Right. But what it sounds like to me
now is -- I understood your example when you gave it to me, it was a
good example. But the example failed, not on the part of the county
for not catching it, it failed on the part of the buyer, which actually
looks like a political body who didn't do their due diligence. That's
what it sounds like now.
MS. BURGESON: It failed on the part of -- well, I'm not sure --
CHAIRMAN STRAIN: And I'm not sure that if you've got a
system in place right now that requires 75 percent and the balance
upon the next development order, which is what it says right now,
then we've already got a system that apparently is working except for
the incompetence of some people doing due diligence. That's what it
sounds like.
MS. BURGESON: And the legal ability to link the remainder of
the preserves to property you might not own.
CHAIRMAN STRAIN: Well, wouldn't a good buyer say take
their piece of property they're buying and know that they've got to
allocate "X" amount and they can put that in their contract?
MS. BURGESON: The issue is more complicated. I don't think
that the property owner in this example owned the remainder at the
time where they identified the preserve to be. And it's very
complicated, but --
MR. YOV ANOVICH: That's a perfect example. I've got other
instances where the buyer -- it's a PUD where we only had to identify
"X" percent. The buyer said to the seller, here's how we're going to go
ahead and allocate the remainder. And there's a contract in place that
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said -- the buyer said I will put five of the 10 acres I'm buying from
you go into preserve. So if the buyer becomes obstinate, I can at least
show the county the contract that says these five acres they've
committed to being in the preserves. So that's the situation where the
buyer and the seller address the situation to where staff would not be
in that uncomfortable position.
MS. BURGESON: But when it comes in--
CHAIRMAN STRAIN: Excuse me, Ms. Caron had a question,
then Mr. Schiffer.
COMMISSIONER CARON: Well, not a question, but I'm just
trying to work this through.
So if everything were left in place the way it is now, but we
added an additional phrase that says that when you come in with that
next development order we will refuse to go forward unless all parties
have signed off, does that solve the --
MS. BURGESON: Maybe we can simplify it and say at the time
of the next development order submittal the remainder of the preserve
areas have to be platted or placed under a conservation easement.
COMMISSIONER CARON: Right? I mean --
MR. YOV ANOVICH: First of all, right now you're asking for
identification on the master plan. So I can identify 100 percent. That
doesn't mean I'm giving you the conservation easement or I'm platting
the entire lands. Right now you just want identification. Your
concern is they going to try to develop in an area that should be a
preserve. You'll review it for consistency with the master plan.
If I'm trying to develop in that 75 percent area, you're going to
say no, you can't do that, that's inconsistent with the master plan, I'm
not giving you a conservation easement at platting -- at PUD. I don't
give you a conservation easement until way down the road.
MS. BURGESON: No, I'm not asking for that at that point--
MR. YOV ANOVICH: You just did.
CHAIRMAN STRAIN: Hey guys--
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MS. BURGESON: No, I did at the --
CHAIRMAN STRAIN: -- this is not a debate between staff and
public speaker. The planning commission is the one you should be
addressing your comments to.
MR. YOV ANOVICH: Sorry.
CHAIRMAN STRAIN: So let's not get into it any further.
Mr. Schiffer, you had a comment?
COMMISSIONER SCHIFFER: Yeah. And I'm a little
confused. Wouldn't they have to subdivide a PUD before they'd be
selling pieces of it off? Wouldn't there be a platting of the PUD,
platting of the area, showing right-of-way, showing --
MS. BURGESON: Not necessarily. The first development order
can be an SDP, a site development plan. If you just split that into two
parcels, you don't need to do plat and construction plans for that.
COMMISSIONER SCHIFFER: Okay. But at that time there's
one owner. Maybe they split it in two and there's two owners.
MS. BURGESON: Correct.
COMMISSIONER SCHIFFER: So wouldn't you require them to
be signing off on everything so they're aware of what's going on?
CHAIRMAN STRAIN: You could sell a piece of property in
any number of ways without even going to the county, once you get
your SDP.
COMMISSIONER SCHIFFER: The metes and bounds?
MS. BURGESON: Ifwe--
COMMISSIONER SCHIFFER: Can you develop it, though? I
mean, can I -- can you sell me a piece of your land by metes and
bounds and I come in and build on it?
CHAIRMAN STRAIN: You've got to get permits for it. You
have to come in for -- then you'd come in for an SDP or a plat,
depending on what type of product you're putting on there.
MS. BURGESON: The question is how does staff, when you
have 100-acre PUD and somebody sells off 10 acres and that person
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has the expectation of developing the 10 acres, because the property
owner said I need 25 acres of preserve. I'm going to tell you the
remainder of the preserve areas will be identified on my property.
But when that SDP comes in for the 10 acres, we identify that the
highest habitat quality is on that site. And we need to identify part of
the preserve there and the remainder of the preserve on the other
property owner's property.
How do we get a commitment from that second property owner
to evaluate the entire 100 acres to show where the remainder of the --
COMMISSIONER SCHIFFER: No, and I understand the
problem you're trying to solve. But quickly, though, if you had that
100-acre PUD, it goes before the board, it's approved by the board. Is
the first thing you're going to see somebody with a piece of property
in an SDP, a portion of it?
MS. BURGESON: Sometimes, yes, because they're looking--
COMMISSIONER SCHIFFER: But what about -- I mean, so
nobody plats out the road systems ahead of time?
MS. BURGESON: No.
COMMISSIONER SCHIFFER: So some guy's off in the corner
building his little --
CHAIRMAN STRAIN: That's right.
MS. BURGESON: Yes.
CHAIRMAN STRAIN: That's how it happens, Brad. I can tell
you, because I'm doing it.
COMMISSIONER SCHIFFER: Oh, okay. There's the problem.
Because that's how it happens.
CHAIRMAN STRAIN: Right.
COMMISSIONER SCHIFFER: Ifit didn't happen that way, that
wouldn't happen.
MR. YOV ANOVICH: Well, on some of the projects, the
Jeannie's already out of the bottle and you're not going to be able to
put it in.
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But from this point forward, it's very simple: The first
development order you say show me 100 percent of the preserves.
And that's what the code already says, if you enforce what you ready
have there, you don't have an issue.
MS. BURGESON: Then does that development order -- I'm
sorry .
CHAIRMAN STRAIN: Let's just move on to the next -- let's get
through the public speakers and we can wrap it up.
Mr. Mulhere?
MR. MULHERE: I'll be brief. I agree with everything that Rich
just indicated. You have -- the current provisions provide for the
safeguards. And look, if I am a property owner and I cannot get a
development order because I haven't identified the remaining amount
of the preservation, nor can anybody that I sell it to, I figure I got a
lawsuit on my hands.
I mean, the protection is there. We're over complicating the
issue. Thank you.
CHAIRMAN STRAIN: Thank you, Bob.
Mr. Lewis? You didn't even have to -- I knew you were going to
come up here, Mr. Lewis.
MR. LEWIS: I could sit back down if you'd like, Mr. Strain.
CHAIRMAN STRAIN: No, that's okay. I have a feeling I know
what you're going to say. But that's great.
MR. LEWIS: Hopefully we can add some -- first of all, I
appreciate the opportunity that Barbara and Bill and I have had to
discuss this particular amendment. I think that they're trying to
address some issues that I think we can all see potentially may be
there; admittedly issues that should be addressed in the due diligence
process.
Currently staff is looking to require that 95 percent in terms of
what they're getting at in terms of the text. 95 percent of the native
preserve be identified at the time the PUD is approved on the PUD
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master plan.
And the issue or the concern is that as to the remaining five
percent or currently, the 25 percent, you may have an owner who
unwittingly purchased his property within the PUD, and the developer
identifies their parcel as the 25 percent parcel. And there's no real
protection for those parties.
One thought that I have, again, we're talking about an
amendment that addresses the issue of identification of the preserve,
not putting these preserves in the conservation easements or other
requirements. We're talking about the identification requirement.
To the extent that we were to have the 25 -- at the time the 25
percent, which they're proposing be five percent, but to the extent that
we have 25 percent identified at the development order, the SDP or
plat, if we had the consent of the landowner upon which the 25
percent would be identified within the PUD, now the parties have the
certainty -- that's required in the PUD ordinance. The parties now
have the certainty by way of contract, in terms of sales it allows the
flexibility to transfer properties within the PUD.
But the identification is not permitted unless and in terms of
suggestion, unless the landowner upon which the land, this remaining
25 percent, would occur would consent to that identification. I think
that is an alternative.
Now, there are many other different ways we can nip and tuck
this, but in terms of a specific text proposal, I would suggest that we
leave it as is and that we require that at the time that the remaining 25
percent is identified that we do it with the consent of the landowner
within the PUD. If there's been no division of ownership in the PUD
under unified control, we could then -- we wouldn't really have an
issue. We would address the issue that Barbara and Bill are concerned
about where you have land that's being conveyed within a PUD, and
the un-due diligent buyer is identified, their lands are identified for
this preserve.
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CHAIRMAN STRAIN: Barbara, in regards to the issue that
brought this forward -- and this is in response to Mr. Lewis's
suggestion -- this Noah's Landing, the one that seems to be one of the
problems, was that one subject to this current language in the PUD, or
was that prior to the current language in the PUD?
MS. BURGESON: This was prior to.
CHAIRMAN STRAIN: Do you have anyone that has failed in
response to the current language of the PUD?
MS. BURGESON: We have a couple under review right now
that we're having problems with.
CHAIRMAN STRAIN: Are they ones that -- did they originate
as a PUD prior to this language so you're suggesting to this language,
the 75 and 25?
MS. BURGESON: No, subsequent to this language being in
here, they've come --
CHAIRMAN STRAIN: After the language?
MS. BURGESON: Yes.
CHAIRMAN STRAIN: You say you're having a challenge with
them or what is the issue? I mean, is it an issue that you're going to be
able to resolve based on the current language, or do you actually need
language to resolve that issue?
MS. BURGESON: Without giving names --
CHAIRMAN STRAIN: That's fine, I don't care. I mean, it's
public record, right?
MS. BURGESON: Yes, but I'd prefer not to.
CHAIRMAN STRAIN: I don't care if you have names. I just
want to see how widespread this problem is. And if it is really fixed
by the language we currently have and it just happens to be these older
cases that are problematic.
MS. BURGESON: This one has -- I don't even think it's come to
the planning commission. I think it got to the EAC and was pulled.
They identified 75 percent of the preserves up front and we asked
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August 29, 2006
them to identify the remainder of those at the time of the next
development order submittal. The discussions that have gone on with
some of the consultants or applicants is that there are several property
owners in this unified ownership, and each has been promised some --
in a development rights and a fair share of preserves on their parcels.
So there's just an expectation when it comes in that it's going to
be difficult with the next development order submittal to get the
remainder of the 25 percent allocated.
CHAIRMAN STRAIN: But the language says the remaining 25
percent. Maybe we need to strengthen it. I mean, instead of just
saying identified at the time of the next development order, it reads
shall be identified at the next development order. Maybe that's all
you've got to do. I mean, if you've got that kind of control, you don't
have to issue the development order until you know what you're
getting. I'm wondering where your problem now is.
MS. BURGESON: It's getting people to -- I mean, we really do
have people that sue each other for no access. It's just a staff --
CHAIRMAN STRAIN: It's not the county's issue then, it's
theirs. I mean, I -- Ms. Caron?
COMMISSIONER CARON: But I think if we go back to what I
was saying and you just add a line that says that at that next
development order submittal the county will refuse to go forward
unless everybody who owns property there has signed off, doesn't that
solve --
MS. BURGESON: A site -- separate site clearing plan signed by
all the property owners identifying the remainder of the preserve area.
COMMISSIONER CARON: There you go.
CHAIRMAN STRAIN: Well, I -- thank you.
MR. LEWIS: Yeah. And I would just caveat that I think we
need to -- in the interest of making sure that we don't unduly involve
parties that -- I think we're talking about the parties that are the owners
of the lands in which the 25 percent are being identified.
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CHAIRMAN STRAIN: Mr. Lewis, I'm getting awfully tired in
this LDC cycle of rewriting language from this podium. It's simpler to
say no and let it come back with a cleaner version next cycle.
We've done this repeatedly time and time again since this cycle
started. It's getting ridiculous. And this one's not done well enough, as
far as I'm concerned, to move it forward.
And with that, I would make a recommendation that we just
recommend to deny this one and leave it as is. And if staff wants it
changed in the future, let them do so.
Mr. Kolflat?
COMMISSIONER KOLFLA T: Second.
CHAIRMAN STRAIN: That was quick.
Motion made and seconded. Any discussion?
(No response.)
CHAIRMAN STRAIN: Thank you, Mr. Lewis.
All those in favor of the motion to deny, signify by saying aye.
COMMISSIONER SCHIFFER: Aye.
COMMISSIONER MURRAY: Aye.
COMMISSIONER ADELSTEIN: Aye.
COMMISSIONER VIGLIOTTI: Aye.
COMMISSIONER CARON: Aye.
COMMISSIONER KOLFLA T: Aye.
CHAIRMAN STRAIN: Aye.
Any opposed?
(No response.)
CHAIRMAN STRAIN: None. Okay.
That ends that. And it's just about 20 minutes of. I don't think it
would be a very good thing to move into a new one and have to break
it up in five or 10 minutes. So why don't we break for lunch, we'll
come back at 1 :30 or when the BCC finishes their meeting, whichever
time is later. Okay?
CHAIRMAN STRAIN: Okay. The Planning Commission will
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now reconvene back in order. I think now we need to make a decision
whether or not to declare a state of emergency in Collier County. No,
I'm just kidding.
Based on the action just taken by the BCC, we probable ought to
discuss our agenda for tomorrow. The recommendation was -- and
obviously this building will be closed until one o'clock tomorrow, and
it's up to this board, I guess, whether or not we want to reconvene
tomorrow at today's meeting.
COMMISSIONER SCHIFFER: Is it closed till one?
CHAIRMAN STRAIN: Yes. They just got done saying that.
COMMISSIONER MURRAY: I thought that was the landfill
was one o'clock. I didn't hear that.
CHAIRMAN STRAIN: Or at the--
COMMISSIONER ADELSTEIN: No, neither did 1.
CHAIRMAN STRAIN: Well, this building -- I think when they
said that the county commission offices will be closed and that they're
going to make a decision today at five -- and you can let staff stay
home for at least possibly half the day --
COMMISSIONER MURRAY: No. I didn't hear that.
CHAIRMAN STRAIN: -- and the sheriffs department said that
we should stay off the streets unless absolutely necessary, I doubt if
many of the public we're trying to serve would show up in the
morning tomorrow.
COMMISSIONER MURRAY: I agree.
CHAIRMAN STRAIN: So I think we probably ought to follow
suit and not come in in the morning.
COMMISSIONER SCHIFFER: Cut it for the day.
COMMISSIONER ADELSTEIN: I don't think you could get in.
CHAIRMAN STRAIN: Well, it's up to you guys. I mean, I can
come here at one o'clock if there's a quorum. If you all want to
postpone the whole thing until the 7th after the next -- we've got about
two and a half hours left today, and then we're done until whenever we
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decide --
COMMISSIONER CARON: I'm fine with the afternoon.
COMMISSIONER MURRAY: As long as staffs okay with it,
I'm okay with it.
COMMISSIONER VIGLIOTTI: I'm good to come back for
tomorrow at one o'clock.
COMMISSIONER ADELSTEIN: Yeah. Ifwe can get into the
building, we should come back.
COMMISSIONER SCHIFFER: I'll be here.
CHAIRMAN STRAIN: Okay. One, two, three, four, five.
Tor, if we could come in tomorrow, would you be here?
COMMISSIONER KOLFLAT: Fine.
CHAIRMAN STRAIN: Let's figure on being here one o'clock
tomorrow unless we're told otherwise between now and then.
COMMISSIONER VIGLIOTTI: Yeah. I was going to say, we
don't know what's going to happen. If this happens to stall once it's
out, maybe we won't -- how are we going to -- is staff going to contact
us by email?
CHAIRMAN STRAIN: Well, if someone contacts me, I've got
the phone number of everybody on this board. I'll just call everybody
up.
COMMISSIONER VIGLIOTTI: So if I don't get a phone call,
we'll be here at one o'clock?
CHAIRMAN STRAIN: That's correct.
COMMISSIONER VIGLIOTTI: Okay. Thank you.
CHAIRMAN STRAIN: Assuming we continue, which we will
do officially at four.
With that, Barbara, Bill, we need to know what page you want to
take us to now.
MS. BURGESON: We have two remaining amendments.
CHAIRMAN STRAIN: Okay.
MS. BURGESON: First one is on page 193, and that's the EAC
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alternates and minor change language in that amendment.
As a result of the last meeting, if you look on page 194, we've
collapsed and simplified the language --
COMMISSIONER MURRAY: Oh, good.
MS. BURGESON: -- and made it very clear that the alternate
members will be requested to attend meetings when regular members
have notified staff they'd be absent and that those alternate members
will participate in discussions and vote when replacing a regular
member.
CHAIRMAN STRAIN: Well, I think that's a lot better.
MS. BURGESON: I do, too.
CHAIRMAN STRAIN: You do, too? Good. Well, anybody
have any comments on it?
(No response.)
CHAIRMAN STRAIN: Is there any public speakers?
MS. F ABACHER: Yes. I believe -- my list is gone. Did you
want to speak, Mr. Lewis? It's the EAC members.
MR. LEWIS: Yes.
MS. FABACHER: Thank you. They took my slips.
CHAIRMAN STRAIN: Well, that's okay. I'll ask. No problem.
We'll wade through it.
MR. LEWIS: Good afternoon. For the record, Doug Lewis with
the law firm of Roetzel and Andress. One of the other changes that
appeared -- I don't know if we're there yet -- are the appeal provisions,
8.06.10.
CHAIRMAN STRAIN: We're on page 193,194.
MR. LEWIS: Okay. I don't have the new paginations, so--
CHAIRMAN STRAIN: The page numbers have been the same.
But is that the pages you're working from?
MR. LEWIS: No.
MS. BURGESON: Excuse me. It would be 194A.
CHAIRMAN STRAIN: 194A and 194B. Let me see if there's
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any of them -- one -- yeah, okay. That is the appeal process is on
194B.
COMMISSIONER MURRAY: On mine it's A.
MS. BURGESON: They're duplicate pages.
CHAIRMAN STRAIN: On the gold it's--
MS. BURGESON: B.
COMMISSIONER MURRAY: It's got appeal on both sides.
CHAIRMAN STRAIN: There's two of them.
Catherine, we have on page 194 A appeal, and 194 B appeal, but
maybe they're both the same.
MS. FABACHER: It appears to be exactly the same.
CHAIRMAN STRAIN: Okay. Mr. Lewis, if you're complaining
about duplication of language in the proposed LDC amendment,
you're absolutely right.
MR. LEWIS: Okay. Well, very good. I appreciate your
patience.
My comments relate to 8.06.10. It's the new text relating to the
appeal mechanism. The text reads that any person aggrieved by a
decision of the county administrator regarding any section of division
8.06, and 8.06 in the Land Development Code is the EAC section. So
I'm not sure if what we're asking or providing is a mechanism to
appeal a decision by the EAC to the EAC. So I'm just trying to get
some clarification in terms of when -- the scope of when this would
apply. That's my initial comment and question.
CHAIRMAN STRAIN: Good question. The EAC will decide
whether the EAC did the right thing.
Maybe legal counsel could -- or whoever wrote this.
MS. BURGESON: Well, I can explain what -- where this came
from.
CHAIRMAN STRAIN: Okay.
MS. BURGESON: This paragraph is exactly out of the
precodified LDC. And when we recodified the code, I guess now
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about three years ago, this section was deleted, and the sentence that's
struck on the very top of page 194 was put in as an appeal process to
just one of the powers and duties.
CHAIRMAN STRAIN: First of all, Barbara, could you bring
that speaker (sic) closer to you.
MS. BURGESON: Yeah. Sorry.
CHAIRMAN STRAIN: Okay. Second of all, on the top of page
194, there's a -- okay.
MS. BURGESON: Very, very top of that page, number one.
COMMISSIONER MURRAY: It says appeal to the BZA.
MS. BURGESON: Staff has no knowledge of how that appeals
process or why that paragraph was deleted nor why that one sentence,
which isn't the proper process, was placed in subset to one of the
powers and duties of the EAC.
And we were attempting to recreate the appropriate appeals
process by only replacing the paragraph that used to be in the LDC. If
there's some legal insufficiency in the exact verbiage of it, we clearly
need to make sure that we make sense of that. But this was verbatim
from the code as it's been in there for many years, and we just wanted
to put the proper appeals process back in the LDC.
CHAIRMAN STRAIN: Mr. Klatzkow, I know you weren't
around when all this was done possibly. But that first sentence, based
on Mr. Lewis's reading, may have some concerns, if you could take a
look at it and advise.
MR. KLATZKOW: I briefly chatted with Mr. Lewis earlier.
My understanding is we're simply putting back into the code
what was dropped out of the code. My guess is that we need to
change 8.06 to what it originally conformed to. Eight point oh six
appears to be the wrong section here.
MS. BURGESON: Eight point oh six is as close to the original
language that I could put in this paragraph. It is according to the -- so
what we -- I can sit down with the County Attorney's Office and find
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out what maybe a more appropriate specific citation would be there.
CHAIRMAN STRAIN: I think that would be necessary to clean
this up. If the --
MS. BURGESON: Yep. Be more than happy to.
CHAIRMAN STRAIN: Thank you, Mr. Lewis. Did you have
anything else?
MR. LEWIS: Just a couple other questions and comments.
CHAIRMAN STRAIN: Certainly.
MR. LEWIS: The mechanism for the appeal affords the
appellant 10 days, or the requirement that 10 days prior to the hearing
that they submit to the EAC and the county any data or information
they need to use in the appeal.
It would be helpful in preparing to ensure that the -- all the
information that would be needed to be addressed at that hearing, it
would be helpful if the applicant could also receive in that same
10-day window any information that would be presented in opposition
to application within that same 10-day window. In terms --
CHAIRMAN STRAIN : Would you point out any suggested
language change to where it would fit best? Why don't you help us
with this.
MR. LEWIS: Where it reads 10 days prior to the hearing the
aggrieved person shall submit to the EAC and the county
administrator copies of the data and information he intends to use on
the appeal.
CHAIRMAN STRAIN: Maybe after the county administrator,
and -- and put, and the -- whatever party you're speaking of now.
MR. LEWIS : Yeah. That -- any other -- to the extent that the
county administrator had -- or their delegees had information or
materials they were going to present at that hearing, it would be
helpful in preparing for that hearing if we could see that information
as well.
CHAIRMAN STRAIN: Okay. This is our second hearing on
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this issue. It isn't going to come back to us. If you don't put any
language in here that's clear, it won't change. So you need to be a
little more definitive in what you're suggesting so we can understand
and help us get to a conclusion that works.
I'm not saying you're wrong in your suggestion. I actually think
you're right. If two parties are going before somebody for an appeal,
they both better have the same documentation.
MR. LEWIS: Right. We could suggest where it reads, 10 days
prior to the hearing, the aggrieved person and the county administrator
or its delegee shall submit to the EAC and to all parties to the appeal
copies of the data and information intended to be used in the appeal.
CHAIRMAN STRAIN: Okay. So that would read, again, the
appeal will be heard by the EAC within 60 days of the submission of
the appeal. Ten days prior to the hearing, the aggrieved person and
the county manager or his designee shall submit to the EAC and to all
parties to the appeal copies of the data and information he intends to
use in his appeal. Does that hit the nail?
MR. LEWIS : Yeah, county administrator.
CHAIRMAN STRAIN: Okay. Mr. Klatzkow, do you hear any
-- is there any objections from legal on that language change?
MR. KLATZKOW: No. I think it's fair.
CHAIRMAN STRAIN: Okay. Does staff have that down okay?
MS. BURGESON: Yes.
CHAIRMAN STRAIN: Okay.
COMMISSIONER MURRAY: I need to understand something.
CHAIRMAN STRAIN: Go ahead, Mr. Murray.
COMMISSIONER MURRAY: So we're going with an appeal to
the EAC?
CHAIRMAN STRAIN: You mean the first sentence?
COMMISSIONER MURRAY: Yeah, well, sentence or not. I
mean, the question is is that the original one here spoke to the BZA.
Here we're going to go to the EAC.
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August 29, 2006
CHAIRMAN STRAIN: No, no. The first sentence is going to
changed to coincide with the proper reference in the code. That
reference in the code will take it to the right direction.
COMMISSIONER MURRAY: Thank you. That's good enough
for me.
CHAIRMAN STRAIN: Okay. Mr. Lewis, did you have
anything else?
MR. LEWIS: Just trying to understand the mechanics. I think,
you know, it would be helpful to see the rework on the mechanics of
what exactly will be taken to the EAC for appeal. We'll wait to see
that.
CHAIRMAN STRAIN: Thank you, sir.
Are there any other public speakers, Mrs. Fabacher?
MS. FABACHER: Not that I know of.
CHAIRMAN STRAIN: Okay. Anybody in the audience?
(No response.)
CHAIRMAN STRAIN: Nope. We lost our submission slips, so
I will be asking you all.
And Richard, you can jump up anytime you feel like.
Okay. Anything other -- any other comments from the Planning
Commissioners?
(No response.)
CHAIRMAN STRAIN: Is there a motion?
COMMISSIONER ADELSTEIN: So moved.
COMMISSIONER MURRAY: Second.
CHAIRMAN STRAIN: Okay. Well, let's clarify the motion.
COMMISSIONER VIGLIOTTI: That was so moved.
CHAIRMAN STRAIN: I'm assuming the motion -- the emotion.
I'm assuming the motion is made to accept the section 8.06.03,
8.06.04, as provided, then 8.06.10 with the -- which is the appeal
section with the rewriting that was suggested during the discussion. Is
that what the motion was based upon --
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August 29, 2006
COMMISSIONER ADELSTEIN: Correct.
COMMISSIONER MURRAY: I understand it.
CHAIRMAN STRAIN: -- and seconded upon? Yes, it was.
Any discussion?
(No response.)
CHAIRMAN STRAIN: All those in favor, signify by saying
aye.
COMMISSIONER KOLFLAT: Aye.
COMMISSIONER SCHIFFER: Aye.
COMMISSIONER CARON: Aye.
CHAIRMAN STRAIN: Aye.
COMMISSIONER ADELSTEIN: Aye.
COMMISSIONER MURRAY: Aye.
COMMISSIONER VIGLIOTTI: Aye.
CHAIRMAN STRAIN: Motion carries.
Anybody opposed?
(No response.)
CHAIRMAN STRAIN: Nope.
CHAIRMAN STRAIN: Okay, Barbara, we're--
MS. BURGESON: And the last amendment is on page 201, and
that's the EIS section of the code. And the paragraph that was changed
since your last meeting that I would like to bring to your attention is
the very last paragraph of the amendment on page 204 A.
And it wasn't actually until one of the amendments in this
package, which was the Copeland overlay came to our attention, that
we recognized that we needed to do this.
We're saying that an EIS fault -- and this is under the section in
the EIS section of -- called exemptions, that a conventional rezone
with no site plan or proposed development plan is exempt from doing
an EIS. But this exemption does not apply to lands that include any of
the following.
And what we realized was that we were, without putting this
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language in, permitting anybody to rezone environmentally sensitive
lands without an EIS.
So this is to prevent that from slipping through the cracks
because you really do need an EIS to rezone any of these sensitive
lands.
CHAIRMAN STRAIN: And if you produce an EIS, you have to
go before the EAC then; is that correct?
MS. BURGESON: Yes.
CHAIRMAN STRAIN: Okay.
MS. BURGESON: If you're proposing to impact listed species
or wetlands. But if you're just doing a straight rezone --
CHAIRMAN STRAIN: Well, if you have an EIS, aren't you
required to go to the EAC?
MS. BURGESON: Well, an EIS is required to go to the EAC
unless you qualify under the section in the EAC to not have to go
there to a hearing. I'm sorry. I'm not feeling well so I'm leaning back.
CHAIRMAN STRAIN: Okay. You can pull that closer to you,
can't you?
MS. BURGESON: In the EAC section of the code, there's an
exemption section also that says that if you're not impacting wetlands
by that proposal or if you're not impacting listed species, staff would
do the administrative review of the EIS basically, and it doesn't have
to go to the EAC.
CHAIRMAN STRAIN: Okay.
MS. BURGESON: So we may be able to deem in some of these
cases, if it's just a straight rezone, that we would evaluate the EIS and
that it might not need to go to the EAC.
CHAIRMAN STRAIN: Got ya. Thank you.
Is there anybody in the public wishing to speak on this issue?
Are there any -- oh, Mr. Yovanovich. I knew if I asked that enough
times, he would come forward.
COMMISSIONER ADELSTEIN: You invited him. That's the
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problem.
COMMISSIONER CARON: That's your fault.
MR. YOV ANOVICH: Good afternoon. For the record, Rich
Y ovanovich.
I have a comment to page 202 -- and I think we have the same
page numbers -- which would be section 10.02.02.A.2.D, Roman
numeral IV. How I understand the -- and first I kind of have a
question, and then the comment.
When we get to the point where we identify 100 percent of the
preserves, which now would be at first development order, my
question is, once I've done that, am I done with the process or --
because at that point, you know, the developers are going to go
forward, they're going to have their approved master plan with their
identified environmental areas and preserve areas.
And the way I read this new provision it says, if there's a change,
and it could be the day after we identified the preserves, myoid EIS is
no longer valid. I've got to have a new EIS because I will no longer be
consistent with either the LDC that changed or the Growth
Management Plan that changed.
And let's give an example. Let's just say under today's criteria,
lands where listed species are located is a top priority. So I will have
identified, I have 100-acre parcel, and I've got to have 25 percent of
that in preserve, I've identified the 25 acres of listed species habitat
that will now be preserve, I get that approved, I'm ready to go, I've got
my plats approved, I come in with another SDP on one of the parcels
that's approved by plat, and in the meantime, the hierarchy flip-flops
back to the way it used to be where wetlands are first and areas
utilized by listed species are second. MyoId EIS would have been--
is now inconsistent with the new hierarchy. Is my project starting all
over? Because that's the way -- the way that reads is, I start all over.
CHAIRMAN STRAIN: Well, you know the--
COMMISSIONER CARON: Just your projects.
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August 29, 2006
MR. YOV ANOVICH: Just mine, okay.
CHAIRMAN STRAIN: That's a good resolution. Can we put
your name in there?
COMMISSIONER CARON: That's the easiest way to deal with
that one.
COMMISSIONER MURRAY: That was a good one.
CHAIRMAN STRAIN: And number two, Richard, on top it
says, applicability. Environmental impact statements required without
first obtaining approval of an EIS. So if you don't have an approved
EIS, well, then the following things would seem to apply. But if you
have an approved EIS, then you don't. And wouldn't you be okay
then?
MR. YOV ANOVICH: You're exempt unless you meet one of
the five. And I have an approved EIS, and it now -- now I no longer
have a consistent EIS. I've got to do it over again. And the previous
one, number four says, if I have a previous EIS that's more than five
years old, then the preserve areas were not previously approved, so --
CHAIRMAN STRAIN: Yeah. But that wouldn't happen,
because if you did an EIS and you got a rezone, you'd have to do
something with the rezone within the five years, or you couldn't --
MR. YOV ANOVICH: That's my -- my point is, you should
never lose your preserve areas that have been identified as long as
you're meeting the sunsetting provisions in the code. If you're moving
forward with your development, once you've identified 100 percent of
the preserve areas, the project should be left alone from a preserve
area analysis.
And this doesn't say that. I think what this says is, if there's any
change to the comprehensive plan or LDC, your EIS is no good.
CHAIRMAN STRAIN: Or if you go past five years, your EIS --
MR. YOV ANOVICH: Even then I don't think that should be
applicable, because I think it's -- the previous one is supposed to say,
it's okay as long as -- it could be more than five years old as long as
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the preserve areas were identified. If they weren't identified, then I
think you've got to do another one if it's more than five years old.
CHAIRMAN STRAIN: Mr. Vigliotti?
COMMISSIONER VIGLIOTTI: Yeah. I have a question. Why
was this put in? And was this put in for any certain reason, any
specific cases?
CHAIRMAN STRAIN: She moved the microphone to Bill.
COMMISSIONER VIGLIOTTI: Should I withdraw the
question?
CHAIRMAN STRAIN: I'm assuming someone's going to
respond from staff?
MR. LORENZ: Well, just -- I'm just trying -- Barbara is feeling
a little bit ill right now. This is her amendment, so let --
CHAIRMAN STRAIN: Do you want to delay this until another
date and we can finish this?
MR. LORENZ: That would be -- that would be best, please.
CHAIRMAN STRAIN: Okay. Then why don't we do that. I'd
rather have Barbara's input when she's feeling better. So why don't we
take this section of the LDC, not go further with it today, and the rest
of the environmental issues, then come back on this one next week or
tomorrow.
MR. YOV ANOVICH: Are you meeting tomorrow?
COMMISSIONER ADELSTEIN: Yeah. We're going to try to
meet --
CHAIRMAN STRAIN: Try to meet at one o'clock tomorrow.
MR. YOV ANOVICH: In the afternoon?
CHAIRMAN STRAIN: Yes, one o'clock.
COMMISSIONER ADELSTEIN: Ifwe can get in the building.
MR. YOV ANOVICH: I didn't get in here quick enough to hear
that.
CHAIRMAN STRAIN: Okay. So Bill, we'll just have that one
remaining environmental issue then of yours.
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August 29, 2006
MR. LORENZ: Great.
CHAIRMAN STRAIN: I hope Barbara feels better. We'll do
that tomorrow. If she's not going to feel better tomorrow, just let
Catherine know so she can tell us, and we can continue it until the 7th
meeting.
MR. LORENZ: Will do.
CHAIRMAN STRAIN: That might work better.
MR. LORENZ: Will do. Thank you.
COMMISSIONER VIGLIOTTI: I feel bad for asking that
question now. I chased her away.
CHAIRMAN STRAIN: Thank you, Bill.
We're done with the environmental with the exception of the one.
Just so everybody knows, because of the timing today, the
Bayshore/Gateway issue is not going to be discussed today. We'll put
that off for a little while longer, maybe tomorrow afternoon, that way
we haven't got to worry about more people waiting during that
hurricane situation or storm situation.
The -- Jeff -- Chief Page was here earlier. I told him that with the
circumstances, we sure don't need to be having the fire departments
show up today to discuss their issue, so that's going to be put off at
least until tomorrow, if not the 7th.
COMMISSIONER SCHIFFER: I think we told him the 7th.
MS. FABACHER: Excuse me.
CHAIRMAN STRAIN: The 7th.
MS. FABACHER: I believe he said tomorrow was off too.
COMMISSIONER SCHIFFER: Right after lunch we told him.
CHAIRMAN STRAIN: Yeah. It will be the 7th.
CHAIRMAN STRAIN: So with that, let's go into transportation.
Then after transportation, if we still have time today, we'll do any
cleanup issues that we can with the people that are available.
COMMISSIONER SCHIFFER: Mr. Chairman?
CHAIRMAN STRAIN: Thank you, Bill. Yes, sir.
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August 29, 2006
COMMISSIONER SCHIFFER: Before the day's over, too,
could we go through the index and kind of note down where we are? I
haven't been keeping good enough tab on that.
CHAIRMAN STRAIN: I was hoping -- about quarter of--
COMMISSIONER SCHIFFER: Okay.
CHAIRMAN STRAIN: About quarter of four I was going to
break and start -- well, not break. I was going to stop our discussions
and go through that with Catherine.
COMMISSIONER SCHIFFER: Thank you.
CHAIRMAN STRAIN: And get a list. And by the way, for the
court reporter, we'll give you a break around three o'clock, little before
three.
Okay. I don't know which is the first transportation item to
discuss. So transportation's going to have to guide us to the first one.
Maybe it's the "Nick is God one," I don't know.
CHAIRMAN STRAIN: Nick, I did discover something, and I
told Norm this. The failing roads in Collier County are not because of
your department. It's because of the drivers we have in Collier County
with that new disease they have. It's one that causes their shoulder and
head to be like this with a mechanism stuck between the two of them
while they're driving down the road in the left lane doing 15 miles an
hour under the speed limit, but --
MR. CASALANGUIDA: No comment, sir.
CHAIRMAN STRAIN: Yeah.
MR. CASALANGUIDA: That could be me sometimes.
For the record, Nick Casalanguida, Transportation Planning. I'm
on page 127.
We have a different court reporter. I know the last court reporter
had a little button she could shock me if I talked too fast, so I'm going
to try and go really slow. And feel free to use the same button she
had.
CHAIRMAN STRAIN: She's going to throw something at you.c
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MR. CASALANGUIDA: I believe the last time we met,
Commissioners we were fairly okay with the amendment. I think your
concern was limiting it and removing some of the language. We have
done so as addressed.
We've used the section where it's limited it to 10 percent of the
project cost because there was a situation that was brought to our
attention where, if a person was coming in with an SDP amendment,
that they were doing a minor change, and the intersection was very
cost prohibitive, we wanted to have a little bit of leeway there to not
force that cost of interconnection on there.
Also, I believe one of the commissioners expressed concern
about the parking -- I believe it was Commissioner Murray -- they
shouldn't be penalized if they do the interconnection for parking. We
put that in there as well too.
COMMISSIONER MURRAY: Fixed it.
CHAIRMAN STRAIN: Questions from the Planning
Commission?
COMMISSIONER MURRAY: Yeah. Not a question. On page
127, your managers, you just need to put an A in there.
MR. CASALANGUIDA: An A or an L.
COMMISSIONER MURRAY: Well--
MR. CASALANGUIDA: We'll do so. Thank you.
COMMISSIONER MURRAY: He'll discuss that with you.
CHAIRMAN STRAIN: Okay. Nick, on page 128, the top of the
page, you crossed out the first sentence, left in the second. Cost
associated with shared access or interconnection is unreasonable. And
you went down to describe what is reasonable, basically, not
exceeding 10 percent of the value of the improvements to be made to
the development.
Well, if you're in a billion dollar development, as many of them
are in Collier County, you're telling us it's not unreasonable to have
$10 million in expenditure for an interconnection?
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MR. CASALANGUIDA: I think that it's important that we have
that.
COMMISSIONER MURRAY: A hundred million.
MR. CASALANGUIDA: The cap was more put in there to stop
the smaller projects that came forward, not the larger projects.
CHAIRMAN STRAIN: But how do we -- I mean, you -- if you
go by 10 percent -- and I'm -- Mr. Murray was right, it's 100 million,
not 10 million.
MR. CASALANGUIDA: Right.
CHAIRMAN STRAIN: But you had $100 million cost on big
projects, that doesn't equate. I mean, you still think that's reasonable?
MR. CASALANGUIDA: No, sir. That wouldn't be reasonable,
and I don't think, you know, we would look at it that way. I mean,
these are guidelines. I think that we'll have to -- you know, county
staff would have to use some sort of judgment.
But interconnection and joint access is a priority for us. To
quantify that with financial amounts is difficult because of the
multiple possibilities that arise from these situations.
The 10 percent was meant to limit the smaller end of the project.
I think we'd have to use some judgment, and I think there'd be some
oversight from the various departments and zoning director, and
transportation administrator would have to come into play with these
amendments.
CHAIRMAN STRAIN: Ms. Caron?
COMMISSIONER CARON: Yeah, just to comment. In order to
connect a billion dollar project, it does not cost more than it would
cost some small proj ect.
So it's really for the little projects that the 10 percent comes into
play. It's not for the big projects. Whatever the engine connection
costs, fine, that's what it's going to cost. Ten percent is for, you know,
small proj ects that -- where 10 percent becomes, you know, more than
the -- whatever project they're trying to do. I mean, isn't that the --
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CHAIRMAN STRAIN: I understand where the intent is. My
concern was, it's not -- the intent is not --
COMMISSIONER CARON: I mean, it's not just charge--
CHAIRMAN STRAIN: The intent is understood, but the intent
is not written down so that -- there's too much discretion the way it's
written. That was my only concern. Someone -- you said a small
project. Well, is a small project the Buckley Plaza, say, that's going to
Airport Road, or a small project a 10-unit residential structure going in
an infill piece of parcel? That's the only concern I had.
COMMISSIONER CARON: Well, I think the key is, is it more
than the value of the improvements being made to the development.
CHAIRMAN STRAIN: Right.
MR. CASALANGUIDA: We have the, or the typical road
section or typical road connection. If it included, you know, bridging
or, you know, something that was outrageous.
CHAIRMAN STRAIN: Well, I'll move on. Everybody seems to
be comfortable with it. If they become uncomfortable, then I can't say
I didn't tell you so.
The location of environmentally sensitive lands precludes it and
mitigation is not possible. Is there -- mitigation is not possible. Well,
mitigation is just about always possible.
MR. CASALANGUIDA: If there was environmentally sensitive
land, there was some sort of conservation easement or some easement
that we couldn't remove, that would be where mitigation wouldn't be
possible, I believe.
CHAIRMAN STRAIN: Okay. That kind of obstacle. I thought
you meant just raw land being mitigated.
The last one, the abutting use is found to be compatible with the
existing or proposed use. Now, the standards for finding it
incompatible would be?
MR. CASALANGUIDA: I think they would be up to the zoning
director or the county manager in a professional judgment as stated
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above. I mean, there are times where I think we're going to propose
an interconnection and you may have two uses where the county
manager may step in and say, I don't think that's a compatible use to
be connecting. And we've come into situations where you may have
-- and I'm going off of memory here.
You may have a day care center and the other side may be a
restaurant slash drinking place, and maybe that's something you don't
want to interconnect at that time.
CHAIRMAN STRAIN: Okay.
COMMISSIONER SCHIFFER: Mark?
CHAIRMAN STRAIN: Those are my questions.
Mr. Schiffer?
COMMISSIONER SCHIFFER: Nick, is there anything we
should be doing with the neighbor to get his approval or acceptance of
this? In other words, we're running a road over to a neighboring
property, the neighboring guy might not want it. He might think these
people are going to steal his parking.
MR. CASALANGUIDA: Well, and we can only -- when we
pursue this amendment in the practical sense, we can only pursue it up
to our property line.
If the neighboring person didn't want to connect at that time, we
couldn't force any work outside the property line. It sets it up to be
done where the neighbor agreed to develop as well, too.
COMMISSIONER SCHIFFER: All right. Well, then how does
it work in control? Let's say a use didn't have much parking or are
under what they really should have and they did start to flow over
onto the neighbor; what happens then?
MR. CASALANGUIDA: I believe it would be in the normal
context of what happens now with shared parking lots. It would be a
dispute between two property owners, but there are many parking lots
that are shared right now or are interconnected.
COMMISSIONER SCHIFFER: Voluntarily,
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MR. CASALANGUIDA: Voluntarily.
COMMISSIONER SCHIFFER: But you're making them.
MR. CASALANGUIDA: There are many projects that have
been connected because we required them to be as part of a PUD.
COMMISSIONER MURRAY: Agreement.
MR. CASALANGUIDA: Yeah, an agreement. So they're out
there right now, and I think if a particular landowner was being taken
advantage of from the abutting property owner, there would have to be
something that would take care of between them.
But interconnection is required right now when we do PUDs and
when we review projects. Sometimes it's done voluntarily and they put
two proj ects together because they realize the traffic benefits of
having a shared access or an interconnection. I know smart growth is
working with us on Pioneer Lakes.
COMMISSIONER SCHIFFER: Well, I'm not against it, but I
mean, what would happen here is somebody, let's say they wanted to
put in a walk-in cooler. They're going to be required to have an SDP,
you know. I'm a veteran of that. So you would then automatically
make this restaurant trigger connection to the neighboring property.
MR. CASALANGUIDA: If that walk-in cooler is a
$20-thousand walk-in cooler, I don't think for $2,000 they could make
that connection. I would ask that. I mean, anytime when we review a
project, we try and use our best judgment to see if it makes sense to
connect to another property. But if someone's putting in a small
addition, an awning, you know, something with limited value, I think
we're capped and I think we have to use reasonable judgment to ask
that.
COMMISSIONER SCHIFFER: Okay.
CHAIRMAN STRAIN: Any other questions of the commission?
(No response.)
CHAIRMAN STRAIN: Are there any questions from the
audience?
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Mr. Lewis?
MR. LEWIS: For the record, my name's Doug Lewis with the
law firm of Roetzel and Andress. And I just have a few questions
relative to the implementation and the text. I've discussed a few of
these with Nick.
The -- I guess the first question in terms of the application of the
new language as it relates to other developments, I think we're talking
about improvements in terms of the redevelopment on site.
We're not, I don't believe, asking a property owner to enter into
negotiations with an abutting land owner to provide for cross access
easement agreements or requiring them to actually make off-site
improvements to an abutting property owner.
It's in that context I would suggest under E where we talk about
that a shared access interconnect shall be required. I think when we
talk about shared access interconnection, it's really two sides of the
equation. It's both sides of the property.
I would suggest that we would revise it to read, during the
development or redevelopment of commercial or residential projects
and all rezone petitions, improvements within such development shall
allow for shared access, interconnection, and then remove the shall be
required portion to clarify that we're talking about the improvements
within the particular development and that there's no real obligation to
enter into agreements with abutting landowners. That was suggestion
one.
CHAIRMAN STRAIN: Well, before you go past that, let's just
take each one of them.
MR. LEWIS: Sure.
CHAIRMAN STRAIN: Ms. Caron?
COMMISSIONER CARON: Would you just read your sentence
one more time.
MR. LEWIS: Sure. After where it reads during the development
or development of commercial or residential projects and all rezone
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petitions, improvements within such development shall allow for
shared access and interconnection, period.
CHAIRMAN STRAIN: Nick, I'm -- the only question -- and
maybe it's either one of you. You're saying shall allow for. That's
different. Is that different legally than shall be required?
MR. LEWIS: Yeah, that is probably -- yeah. Either language
would be acceptable, I think the key I'm trying to get at is the
improvements with the development, limiting it to the improvements
within the development.
CHAIRMAN STRAIN: So basically if you said improvements
within such development for shared access, an interconnection shall be
required, does that do the same thing? Then we're not -- then we have
the word shall be required in there and then shall allow.
MR. LEWIS: Yeah. As long as we have the "within the
development," I think it limits the obligation to construct
improvements within the development.
CHAIRMAN STRAIN: Well, my concern is shall-- by saying
shall allow, that means you can provide the space but not necessarily
provide the improvement.
Mr. Vigliotti, did you have a question? Then Mr. Murray.
COMMISSIONER VIGLIOTTI: Nick, does this go back to what
you said, only the property line you can --
MR. CASALANGUIDA: That's correct. It's only --
COMMISSIONER VIGLIOTTI: This is the same thing?
MR. CASALANGUIDA: It is. Ifhe said within the
development, I'm fine with that, but I would prefer that we word it,
shall require, not allow. Allow means that you're just providing
easement or location for it but wouldn't physically build that
connection if they could.
CHAIRMAN STRAIN: Right.
Mr. Murray, and then Mr. Schiffer,
COMMISSIONER MURRAY: Yeah. I just want to be -- with
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Mr. Lewis, I know this is not directly appropriate, but I know the
school system doesn't allow interconnection in their activities. Shall
require -- there may be other situations where it's completely not
feasible to have an interconnection. So are you boxing us in or boxing
it in by doing this, by putting shall require in such a stringent form?
CHAIRMAN STRAIN: It's already in there, Mr. Murray.
COMMISSIONER MURRAY: I thought what he was saying
was -- he just added to it. Improvements and such developments shall
be required.
MR. CASALANGUIDA: In the second page at the bottom, it
says the abutting uses found to be incompatible with the existing or
proposed use.
CHAIRMAN STRAIN: Well, that answers his concern about the
use.
MR. CASALANGUIDA: School.
CHAIRMAN STRAIN: Yeah.
MR. CASALANGUIDA: Right.
CHAIRMAN STRAIN: So both answers to your question can be
provided, the second part of your question. Nick just answered the
first part. The first sentence on page 127 says, shall be required in our
definition as it currently exists. This gentleman was suggesting it be
changed to shall allow.
COMMISSIONER MURRAY: Shall allow, and I understood.
CHAIRMAN STRAIN: That's not -- are you--
COMMISSIONER MURRAY: Go ahead, sir.
CHAIRMAN STRAIN: Okay. Is that okay?
COMMISSIONER MURRAY: Yeah, I guess. I guess I'm not
hearing as well as I'd like to. I understood the transaction going on
between shall and allowed, but now you're telling me that it's already
in there, and I was focusing on that. So that's fine, okay.
CHAIRMAN STRAIN: Mr. Schiffer?
COMMISSIONER SCHIFFER: Yeah. I mean, I just didn't
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understand what you were getting at.
MR. LEWIS: Just looking to clarify that the obligation with
respect to the interconnection is an obligation that runs with the
particular development, that they're not going to be required, as part of
their development approval, to pursue negotiations with or -- with
abutting property owners.
COMMISSIONER SCHIFFER: Okay.
MR. LEWIS: To pursue that.
CHAIRMAN STRAIN: Just so we understand then, the way this
sentence would read is, during the development or redevelopment of
commercial or residential proj ects and all rezone petitions, the
improvements within such development, shared access and
interconnection shall be required. Does that work?
MR. CASALANGUIDA: That's fair.
CHAIRMAN STRAIN: Okay. Good.
Mr. Lewis, let's go on then.
MR. LEWIS: The other question relates to physical site
constraints, and I know item one indicates that it's not where a
deviation -- an exception to this can be granted where the county
manager or their designee determine that it's not physically or legally
possible to provide shared access or interconnection.
And I'm thinking in particular about sites that may have canals
that may run along the entire length of the property boundary or, you
know, preserve areas or items that -- lakes, streams, items that would
make it difficult and burdensome from a time point of view, cost point
of view. I'm just looking for some clarification in terms of where we
would get physically or legally, where we would have a legal or
physical possibility to provide that access.
CHAIRMAN STRAIN: Well, the next page, the second
unmarked -- I mean the second sentence, it's written in, it says, for this
application, unreasonable will be considered when the costs exceed
the costs of a typical local road section or is above 10 percent of the
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value of the improvements. And a bridge would not be a typical local
road section, I believe; is that right, Nick?
MR. CASALANGUIDA: That's correct. And also, I spoke with
Mr. Lewis about this. The 10 percent cap, he understood that. I think
if it was environmentally sensitive land and we couldn't cross it and
there was an easement there, we'd -- you know, again, that sentence is
in there.
With all of these, I've noticed, we have to be careful. It's almost
impossible to determine every situation where this will come forward.
I think until -- it's not the intent of staff -- and as Mr. Lewis pointed
out in the hallway, you don't know who's going to be here next year
reviewing this thing or reading this thing. It's the intent of staff to use
this thing where it's appropriate to offer traffic circulation, safety, and
improve the network, not to just randomly require this thing every
time we see two proj ects come in.
CHAIRMAN STRAIN: Anything else, Mr. Lewis?
MR. LEWIS: Yep. The factor that you mentioned, the cost
factor, again, equates, you know, some degree of reasonability, and it's
tied to cost.
As I mentioned, there may be other factors that are not cost
questions. That's obviously certainly an important factor, but there are
-- irrespective of cost, there are some real time and physical constraint
issues that I don't know that we've adequately addressed. But that
being said, I just wanted to make sure that's out for the record.
In terms of the 10 percent of the value of the improvements being
made to the development, I'm not sure, just from a clarification,
mechanically, are we talking about -- how are we valuing the 10
percent? Is that the construction contract, the let price for the
improvements? Is that what staff would use to do that measurement?
MR. CASALANGUIDA: I believe we included as a guideline
everything involved with making that improvement; permitting,
design, construction.
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MR. LEWIS: Right. And so as we talked about, the -- in
addition to the cost improvements, we would like to see language that
would include, you know, again, the permitting fees involved,
permitting cost, any additional fees --
COMMISSIONER MURRAY: Costs.
MR. LEWIS: Well, we're equating in terms of 10 percent. It's
10 percent of the improvements.
CHAIRMAN STRAIN: Oh, it's the value of the improvements.
And the value, I think, would be based on all it takes to get there.
MR. LEWIS : Well, that would be great, and I just don't know if
there's at least questions in terms of how do you value the
improvements. Is it the physical improvements relative to the contract
price, does that include the permitting fee to get there, the fees for --
any other fees, any of the mitigation costs?
CHAIRMAN STRAIN: Well, I would imagine they would go
through what their permitting costs were inclusive of -- I mean, like
the tax assessor does for the value of a piece of property.
COMMISSIONER MURRAY: All inclusive costs.
CHAIRMAN STRAIN: You know, you could argue any number
of ways like that.
MR. CASALANGUIDA: I'm sure staff would review that as--
MR. LEWIS: Right.
MR. CASALANGUIDA: -- if someone came to us and
presented all their costs.
MR. LEWIS: So in terms of specific text for today, that's the
legal question is, in terms of this specific text recommendation, if we
could see something along the lines of 10 percent of the costs of the
improvements of -- all of the cost of the improvements, including,
without limitation, permitting, cost of mitigation, other fees.
CHAIRMAN STRAIN: Well, I think by 10 percent of the
improvements, honestly, you're going to catch all you're going to need
by that. I don't know if you really need to go that far to get into those
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specifics.
Value of the improvements seems to be a way that is generic
enough. I think you're going to catch enough requirements that way.
You're only going to -- what you're describing is going to make it --
make the feasibility of interconnections greater because you're going
to throw more costs into it, of which 10 percent will be a higher
number.
MR. LEWIS: Right. That's true, and that's why Nick and I have
talked about the 10 percent number, because I understand that. There
is an ambiguity, and I think those are the real costs to the development
that need to be considered. In that respect, we've had some discussion
about the 10 percent number, which mayor may not be an adequate
protection.
CHAIRMAN STRAIN : Well, for this exercise, myself, I'm
comfortable with the words that are written there.
Anybody else?
COMMISSIONER MURRAY: If you wanted to change
anything, you might just use the term, all inclusive costs of the
improvement, and I don't know. That may be superfluous.
MR. LEWIS: But -- and those are -- those are real costs for the
development. So with that, the 10 percent number becomes a bigger
number, so --
CHAIRMAN STRAIN: Mark?
CHAIRMAN STRAIN: Go ahead. Mr. Schiffer?
COMMISSIONER SCHIFFER: Yeah. I mean, it's a similar
thing we have with handicapped. If we do renovations, we have to
make a certain percentage of the upgrade.
But if you put all your soft costs and everything in that, it's all
blended together. I mean, wouldn't these improvements be on the
same drawings as the other improvements, and the permit would be
included, and -- so, I mean, I think actually the cost of construction
would be the better barometer, not including soft costs. Because
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remember, if you include it on one side, you've got to include it on the
other side, too.
MR. LEWIS: So with that proposal, if we could at least clarify
what we're getting at, and maybe, you know, limit it to the actual hard
cost of construction.
MR. CASALANGUIDA: Just a --
COMMISSIONER MURRAY: Would the intent of that on your
part be --
CHAIRMAN STRAIN: Mr. Murray, the two of you were
talking at once.
MR. CASALANGUIDA: -- clarification. If you raise it, aren't
you raising the limit by adding all your costs?
COMMISSIONER SCHIFFER: Yes.
MR. LEWIS: Right. That was what Mr. Schiffer was indicating.
And so if we -- there's some ambiguity in the language. So if we
were to clarify hard costs, or if we were going to include these other
soft costs, we're now talking about a bigger number, which, in terms
of reasonability, may not come into the realm of reasonable. And, you
know, we have some concerns about the 10 percent number which
we've discussed, but --
CHAIRMAN STRAIN: I think we're getting to a point where
we're mincing over too much here. My feeling is, leave it like it is and
let staff work it out. If we have a problem over the next six months to
a year, they can always come back and get it corrected.
COMMISSIONER VIGLIOTTI: I agree.
CHAIRMAN STRAIN: Anything else, Mr. Lewis?
Mr. Lewis, I've got a question for you. Are you here representing
any particular client?
MR. LEWIS: Yes, I am, but I'm not able to divulge that.
CHAIRMAN STRAIN: Okay. I was just curious, because
you're commenting on an awful lot of LDC amendments, and I'm
trying to figure out why you were doing so many . You must have one
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huge project coming up.
Okay. Thank you, Mr. Lewis.
Are there any other questions from the audience?
MR. YOV ANOVICH: I'm trying to understand the change.
N ow we're not talking about external interconnection; we're only
talking about internal interconnection within uses of the project.
CHAIRMAN STRAIN: No.
MR. YOV ANOVICH: I think that's what Mr. Lewis was talking
about, is that he didn't want -- and let me give you an example. On
Pine Ridge Road you have a lot of long, narrow commercial PUDs,
and each of those were set up with an internal -- or not -- each one of
those was set up with a connection point so you'd have a reverse
frontage road system so there wouldn't be a whole lot of access points
on Pine Ridge Road.
I think the change that was just made would say that in one of
these PUDs, I've got to make sure that each of the internal projects
interconnect, but I don't have to make sure that I provide for
interconnection to my neighbors on either side, and I think that's the
language that was just changed. Am I missing --
CHAIRMAN STRAIN: Well, no. Well, you can look at us. We
were the ones that are discussing this.
If you don't have an interconnection to your neighbor, then you
don't have an interconnection. It can't be called that. I'm a little
puzzled by what you're trying to say.
MR. YOV ANOVICH: We -- I think what this provision was
intended to implement is that if you have an XYZ PUD and ABC
PUD right next door to each other, there's supposed to be
interconnection between those two PUD documents -- two PUDs.
Now, I think you need to work through some of the issues, if
they're private roads. I think each PUD should work out an agreement
as to who's sharing the cost of maintenance and things like that. And
there needs to be the outs for incompatibility when you have
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environmental issues, and we've gone through that.
I mean, several PUDs come in front of you, and the question is,
can you interconnect with the project next to you. Under appropriate
circumstances, yes; under some circumstances, no.
And I think that's what the purpose of this amendment was, to
make sure that interconnection of proj ects occurs, not internal
interconnection. And I think the changes you just made were to
internal interconnections. You're requiring internal -- you're requiring
the Publix shopping center to interconnect with the residential portion
of the project, not --
CHAIRMAN STRAIN: Oh, I see what you're saying. Not PUD
to PUD. And that's not what we were thinking.
MR. CASALANGUIDA: No. We're thinking all projects.
CHAIRMAN STRAIN: It would only take an attorney's mind to
figure that out, so --
MR. YOV ANOVICH: And I think -- and we've had examples
where, on Davis Boulevard, you didn't want more accesses, so you
had to interconnect with a residential development and had to
interconnect with a developer of a Wal-Mart parcel, and it was
because of the interconnection provisions that you dealt with that.
CHAIRMAN STRAIN: I think the intent of this board was that
the interconnections for each property be built up to the property line,
but you wouldn't go beyond that to build someone --
MR. YOV ANOVICH: I'm not saying you -- right. I'm saying
you'd have to provide for the interconnection to occur. You're not
forcing someone to go onto someone else's property, but you have to
provide for the ability.
MR. CASALANGUIDA: And we addressed that when we said
limited within the project development or application. We're not
going outside of that.
COMMISSIONER CARON: But--
CHAIRMAN STRAIN: Mr. Schiffer and Ms. Caron.
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COMMISSIONER SCHIFFER: Which is right. I mean, if we
change the wording as requested, essentially that would read that only
within the development, because that's what you said, which is why
the question is, within the development shared parking. That's not
what we want to do here.
MR. CASALANGUIDA: No, I -- well, within a development --
COMMISSIONER SCHIFFER: You don't want to --
MR. CASALANGUIDA: -- or within the application, is what
you're saying? So within the specific application; is that your
concern?
COMMISSIONER SCHIFFER: I mean, he proposed that we
have no control over what goes on on the other side of the property
line, but the words say, it's only required if it's within the property
lines, meaning within the development -- development area, which
would be multiple uses in one development.
What we want is we want to run it up to the property line and
stop it there. And you've got to word that clear. And I think the
words that were proposed are not -- are dangerous.
MR. CASALANGUIDA: During the development or
redevelopment of a commercial/residential project and all rezones.
We can add language that said within that -- within that specific
application for a development or redevelopment. And we can see
within the boundary of that application if that's --
COMMISSIONER SCHIFFER: That would be safer.
MR. CASALANGUIDA: Okay.
COMMISSIONER SCHIFFER: But make -- just make sure the
interconnection doesn't occur within it. The interconnection is
actually occurring external to it. If you use the words within the
development, somebody could easily think, oh, I've got everything
inside my development connected.
MR. CASALANGUIDA: Well, we can make the language that
specifies during that application review, or during the review of an
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application for development or redevelopment within that product's
boundaries.
CHAIRMAN STRAIN: Slow down.
MR. CASALANGUIDA: I'm sorry.
CHAIRMAN STRAIN: She's got to write everything you're
saying, Nick.
Nick, I want to make sure though that we work the -- you can't
tell us today that you're going to write this in because this is the last
hearing. So we're going to have to work our way through this.
Might I suggest, instead of that last sentence being changed as
earlier discussed, and now be considered during the development or
redevelopment of commercial or residential projects and all rezone
petitions, shared access and interconnection shall be required within
the boundaries of that application? Does that fit the need?
COMMISSIONER SCHIFFER: That's good. That's better.
MR. CASALANGUIDA: That's fair.
COMMISSIONER SCHIFFER: You could even say within and
to the boundary just so somebody doesn't claim that, again, the same
thing.
CHAIRMAN STRAIN: I agree. Within and to the boundary of
that application, that way we've covered all components.
Any other speakers?
(No response.)
CHAIRMAN STRAIN: Okay. Mr. Lewis, you can't get up
twice on the same subj ect now.
Any comments from the panel? If not, is there a motion to
recommend approval as written with the change to the first sentence
basically?
COMMISSIONER ADELSTEIN: So moved.
COMMISSIONER VIGLIOTTI: I'll make it.
CHAIRMAN STRAIN: Mr. Adelstein made a motion.
COMMISSIONER VIGLIOTTI: Second.
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CHAIRMAN STRAIN: Seconded by Mr. Vigliotti, that the
section 4.04.01 will be recommended for approval with the change to
the first sentence as read into the record.
All those in favor, signify by saying aye.
COMMISSIONER KOLFLAT: Aye.
COMMISSIONER SCHIFFER: Aye.
COMMISSIONER CARON: Aye.
CHAIRMAN STRAIN: Aye.
COMMISSIONER ADELSTEIN: Aye.
COMMISSIONER MURRAY: Aye.
COMMISSIONER VIGLIOTTI: Aye.
CHAIRMAN STRAIN: Anybody opposed?
(No response.)
CHAIRMAN STRAIN: Motion carries.
Nick, let's go on to the next one.
MR. CASALANGUIDA: Commissioners, I believe Trinity's
going to hold the halo over my head on this one. Page 185. And this
is referred to by the development community as the "Nick is God
amendment" .
MS. FABACHER: One eight-five.
CHAIRMAN STRAIN: One eight-five?
MR. CASALANGUIDA: One eight-five and 186.
We made the changes that were requested with regard to striking
out the local development order referring specifically to the site
development plan or plat application.
And I understand their concerns. And you as a board during
Planning Commission hearings and the Board of County
Commissioners, when these projects go after the rezone portion and
when they come in for SDP and plat review, where you no longer
have control over these projects during the Land Development Code
section review, if I was working on the other side, this is the only way
I would be stopped from providing various smaller projects to reserve
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capacity for larger proj ects on different links in the area to have this
kind of language in there.
And we are extremely concerned that someone -- as capacity gets
tight, someone will submit projects that are 2.9 percent, .9 percent, and
continue to do so in smaller packages and will use capacity only up in
that particular link, coming from the same proj ect, same master proj ect
or development, and the only way to do that is to have something like
it in there.
So if I was on the other side, I would be unhappy with this. And
I work for the defense now where I like to see the offense, and I'm
trying to put up a good screen or protection point, and I think this is
the only way we can do it. So I entertain your questions.
CHAIRMAN STRAIN: Any questions? Mr. Schiffer?
COMMISSIONER SCHIFFER: And Nick, how would this
apply to projects in current state? In other words, if they've got a
permit, development order ready, they're safe, people that are in the
process of getting development orders when this -- when the board
accepts this, they would have to start complying with that or --
MR. CASALANGUIDA: Yes.
COMMISSIONER SCHIFFER: So if they had a prior order and
they still haven't pulled all their permits, you're going to start viewing
all their permits from the effective date of this?
MR. CASALANGUIDA: It's not permits. It would be the SDP
or plat. So as they come in for SDP or plat, when this became
effective, we would have them look back six months.
COMMISSIONER SCHIFFER: Okay. So it's only at the SDP
level; it's not at the permit level?
MR. CASALANGUIDA: Right. It's when we actually bank the
trips or allocate capacity on our particular segments and links.
COMMISSIONER SCHIFFER: And then you're going to run a
cumulative six-month period?
MR. CASALANGUIDA: We'd look back six months, and we
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would add that project traffic to that. We'd look cumulatively out with
that.
COMMISSIONER SCHIFFER: Okay. And why just six months
as opposed to a year,
MR. CASALANGUIDA: Good question. And you know, I
think --
COMMISSIONER SCHIFFER: Because in building code land,
we do that within a year. We -- for example, any addition you make,
you can only -- you know, it adds up within a year to hit a percentage.
MR. CASALANGUIDA: That would be a more stringent view
of this, I think, from -- I spent 20 years on the outside, and I think
every three to six months you're submitting an application keeping
your development going. The idea is not to submit one day after day
after day, five days in a row that are small.
A year might be a long time to look back, and so as developers
are developing their project, they might come in with a I DO-unit plat,
and then three to four to five months later, another IOO-unit, and a
normal phasing. Six months is something that we've seen on the
review side as being a time frame that would make sense.
COMMISSIONER SCHIFFER: So how quick are people doing
SDPs? I mean, you're getting like an SDP a week from some projects
or --
MR. CASALANGUIDA: You could get -- a 400-unit plat, you
could get, you know, plats of 10 lots every two hours coming in if you
wanted to. There's nothing to stop them.
COMMISSIONER SCHIFFER: Well, 45, yeah. I mean, your
call. Thank you.
CHAIRMAN STRAIN: Any other questions?
(No response.)
CHAIRMAN STRAIN: Are there any speakers on this?
Mr. Yovanovich?
MR. YOV ANOVICH: I want to make sure we're talking about
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the right section.
I look at the language and I try to figure out, how do I advise my
clients that they will or will not have this applied to them because it
seems that it can be -- it's on a case-by-case basis. And I think that
projects can be of a different number of units in phases, and it may be
the perfectly logical sequence of development.
You're going to have multiple developers in a proj ect coming in
with different -- different SDPs or plats to move forward, and I don't
know why -- I mean, I understand that there can be an abuse of the
system. And if someone has got a lOa-unit or lOa-unit plat and
they're trying to break it down into 10-unit increments because they
want to stay under the threshold of tripping concurrency, that there's
got to be a way to address that situation, but there are also other
perfectly legitimate reasons why you break your project up into these
different sequences of development.
And I think we may have gone a little bit too far in this language
by saying, you know, you're bringing more than -- basically bringing
more than one project in in six months within this -- within an overall
master development, that's by -- you're going to aggregate them -- to
use a different term, you know. To use a D RI term, you're going
starting to aggregate these projects, and I don't know why you need to
do that.
I do think Nick's right, there are some that have broken it up, and
they came in day after day after day after day. So, I mean, I think we
need to come up with a little bit better definition than just assumption,
if you have more than one -- more than one submittal within a
six -month period, you, by de facto, are trying to get around
concurrency.
And I think that's what Nick's trying to get to is the guy who -- or
the developer who's trying to somehow get around it, beat the system,
if you will. But there's a lot of -- that's not always the case, and I think
this has gone too -- way too -- way too far by only allowing two
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projects within six months.
You know, I don't have any suggestion. It needs to be a lot less
than -- it needs to be more than two in six months. That makes sense.
But right now it's just kind of -- it's kind of vague. I don't know
whether to go in and say, hey, Nick, I'm okay on this one, but I'm not
okay on that one, why, is the answer I would look to Nick to explain
to me or my client.
CHAIRMAN STRAIN: Well, Richard--
MR. YOV ANOVICH: That scenario.
CHAIRMAN STRAIN: -- you asked the questions as to would
does -- why would transportation see the need to aggregate these?
Well, because cumulatively they exceed the concurrency thresholds
we've been trying to retain. But on the same question, I ought to ask,
why, if someone got a 200-unit plat, do they see the need to keep
splitting it up in little pieces to get under the threshold?
MR. YOV ANOVICH: No. And I'm not -- I understand the
problem. And that one, I think -- it's kind of like the -- you know, the
definition of pornography. I mean, when the Supreme Court says, I
really can't define it but I know it when I see it. You know, that's --
it's kind of -- I understand what Nick is saying, and that one, I see it. I
see when you can see that someone's broken up a normal 200-unit
subdivision into little, tiny increments to get under the threshold.
But I don't see it when a normal-- a normal condominium project
comes in with 50 units, because that makes sense on this part of the
development, and then on this other part of the development a totally
different builder comes in with a single-family platted subdivision of
25 units because she's got a small little piece and that's all you really
have because you've got environmental constraints.
I don't see why those two are lumped together and it's assumed
that there was an evil intent. On the other one, I see it. I mean, I'm
not saying I don't see what Nick is saying. I'm just looking for some
better crafting of language to --
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MR. CASALANGUIDA: Maybe just as a comment. You can
submit five different projects at one time. If there's adequate road
capacity, we'll take all five at the same time.
MR. yaV ANOVICH: But there could be five different builders.
CHAIRMAN STRAIN: But see, I don't think the issue is an evil
intent, maybe, necessarily on the part of the builders or the developer.
It's simply that the intent of the concurrency is to catch the traffic
before it goes on the road and to do it aggregatively in a whole group
instead of these little pieces. I don't think -- I don't know any other
way they could do that. I don't know how they could catch all these
people without aggregating them over some period of time.
MR. CASALANGUIDA: If you look at the example of how a
project is approved, it comes before you as a zoning petition for a
I aD-acre PUD. The developer comes in, he zones the property, and
sells out 10 outparcels to 10 different builders. They use the same
driveway or two different driveways.
They all come in at the same time. If we don't look at them in
aggregative, they all submit at the same time, those trips that were
looked at as a whole PUD will get looked at in a micro view and never
be expanded out.
And in the six-month time frame, one could argue, should go to a
year. And staff backed down to six months with discussions with the
development community saying that's more of a reasonable time
frame. You could look back and aggregate a year out and say, that's
about the time it takes to get a development order, build a project, and
let that become background traffic. So you could become more
conservative and go longer.
MR. YOV ANOVICH: Well, I would assume if you have the
same applicant, same product type, and they're right next door to each
other, that I can see. But if you have a -- either multiple applicants or
you have different product types, why would the -- why would the two
be lumped together in that particular case?
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CHAIRMAN STRAIN: Brad, did you -- or was it Tor, one of
you guys had a question?
COMMISSIONER SCHIFFER: I do.
COMMISSIONER KOLFLAT: No.
COMMISSIONER SCHIFFER: No. I mean -- and I kind of
agree with Nick, what you're doing here, because I think with the
checkbook concurrency, what you're saying is we can let in a little bit
to -- you know, a little bit of bounced checks, I guess, without causing
a big problem, and this is one way to control it.
Rich, what would be the problem -- because actually what you
were describing was exactly what we're trying to prevent.
MR. YOV ANOVICH: Which one?
COMMISSIONER SCHIFFER: The guy who was bringing in
more product than the road could carry at one time, rather than
spreading it out. Wouldn't this cause the builders to spread the
product, the buildings out?
MR. YOV ANOVICH: Well, I guess the question is, is it the
intent of this provision for a big project like Pelican Bay -- let's go
back to that one, because I know it's done -- someone -- developer X
brings in a condominium project with 50 units in it, bought the
property from Westinghouse at the time, and developer B also bought
some property from Westinghouse and brings in a single-family
platted subdivision of 25 units, to say that developers A and B should
be viewed the same in that big -- viewed together? Because this
doesn't say -- it doesn't tie it to one particular developer. I mean, I
read this to say, it could be developer A and developer Bare
aggregated.
COMMISSIONER SCHIFFER: But wouldn't they have two
independent SDPs?
MR. CASALANGUIDA: They would have independent SDPs.
COMMISSIONER SCHIFFER: And therefore they wouldn't --
they'd be looked at individually?
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MR. YOV ANOVICH: No. He wants to be able to lump them
together.
MR. CASALANGUIDA: They would be looked at -- if they're
submitted at the same time -- remember, you saw this as a PUD when
it came before you.
COMMISSIONER SCHIFFER: Okay. And don't we first have
to assume that there's -- the roads are below the level of services.
MR. CASALANGUIDA: Correct, or approaching the lower
level of service.
What you're going to get -- and keep this in mind. If our
threshold is 3 percent to get to the next link, to bank trips on the next
link, you will never see an application come in above 2.99.
COMMISSIONER SCHIFFER: Right.
MR. CASALANGUIDA: Because they just won't do it.
COMMISSIONER SCHIFFER: That's smart strategy.
MR. CASALANGUIDA: I would do that if I was on the other
end.
COMMISSIONER SCHIFFER: Right.
MR. CASALANGUIDA: My next project on the next link will
have adequate capacity, and I'll never put those trips -- even though
when you saw the zoning request, you anticipated those impacts to be
spaced out on the links that were brought to you before when you
sought a zoning request, so --
COMMISSIONER SCHIFFER: Right. So I support that.
There's another point I'd like to make, too, is that, could we
exempt affordable and gap housing from this? We certainly wouldn't
want this to be restricting people from building that product.
COMMISSIONER MURRAY: I don't think that's right.
MR. CASALANGUIDA: I would say you'd -- it'd be difficult to
do that only because you'd have to -- you'd have to exempt them from
the concurrency requirements.
COMMISSIONER SCHIFFER: But it's -- but we're in a need. I
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mean, you know --
MR. CASALANGUIDA: I don't disagree, believe me. I've tried
to bring people down here to work and they couldn't find places to
live so--
,
COMMISSIONER SCHIFFER: I would still favor an exemption
for that kind of project, residential housing, if it's at least gap or below.
CHAIRMAN STRAIN: Mr. Murray?
COMMISSIONER MURRAY: In the example that Mr.
Y ovanovich gave where he said, you know -- you said, if five of them
come in and there was capacity, you'd grant them. Well, let's say
there were six builders, five of them come in and you grant them. The
sixth came in, you couldn't grant them. They couldn't proceed. Why?
Because of concurrency.
MR. CASALANGUIDA: That's correct.
COMMISSIONER MURRAY: So I think the argument there
then is weakened in terms of that because there has to be some point
where you have to stop the traffic from getting on the road.
MR. CASALANGUIDA: That's correct.
COMMISSIONER MURRAY: And I don't know that you could
find -- maybe Mr. Y ovanovich can come up with good language on
that, but I think you've done a good job of trying to establish the
language and the baseline for it.
And I appreciate his arguments, but I -- you know, it occurred to
me that you have -- you've got to stop the traffic from coming on, and
I think you've tried to do it. Thank you.
CHAIRMAN STRAIN: Nick, if someone came in and found
that they couldn't, because of aggregation -- let's call it that -- they hit
the threshold because it's within six months. Couldn't they just park
their SDP somewhere in their office, and then as soon as six months
and a day hits, they'd submit it then and you don't have any way of
aggregating it?
MR. CASALANGUIDA: That wouldn't have any --
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CHAIRMAN STRAIN: The biggest thing this is is a few-month
delay to somebody, which --
COMMISSIONER MURRAY: That's what I see.
CHAIRMAN STRAIN: -- you know, when you buy into this
stuff, nowadays you expect those kind of delays, so --
MR. CASALANGUIDA: Correct.
CHAIRMAN STRAIN: I don't have any problem with it.
Any other comment from the commission?
(No response.)
CHAIRMAN STRAIN: Any other comments from the public?
(No response.)
CHAIRMAN STRAIN: Hearing none, is there a motion to
recommend approval of section 6.02.02.A as submitted?
COMMISSIONER MURRAY: I would -- I would make that
motion.
CHAIRMAN STRAIN: Motion made by Mr. Murray. Is there a
second?
COMMISSIONER CARON: Second.
CHAIRMAN STRAIN: Seconded by Ms. Caron.
Any discussion?
COMMISSIONER SCHIFFER: Yes.
CHAIRMAN STRAIN: Mr. Schiffer?
COMMISSIONER SCHIFFER: What again is -- maybe I'm
missing -- there's a problem bringing affordable -- exempting the
affordable or gap housing from this? Essentially what it is, this is
approved housing that would only not be built because of the
concurrency system. In other words, and we're not -- we're saying --
all's we're doing is allowing those guys to play the trick that is now
being played, correct?
MR. CASALANGUIDA: Sir, I don't have an objection to that.
If that --
COMMISSIONER SCHIFFER: So why would we hold --
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MR. CASALANGUIDA: If the legal -- our legal staff finds that
to be defensible and the board supported that, I don't have an
objection.
CHAIRMAN STRAIN: How do you turn around and issue
COAs to an affordable housing project but not issue to a regular
proj ect? Is there provisions in the code for that?
MR. CASALANGUIDA: I don't think there is.
CHAIRMAN STRAIN: No. I don't think there is either.
MR. YOV ANOVICH: Well--
MR. CASALANGUIDA: I think we'd have to change another
section of the code to make it possible.
CHAIRMAN STRAIN: Mr. Scott?
MR. SCOTT: I was just going to say that the board --
CHAIRMAN STRAIN: Don Scott, for the record.
MR. SCOTT: Yeah, Don Scott.
The board has touched on it before whether affordable housing
should be exempt from concurrency, but at the moment, we're treating
them the same as everybody else. And I'm not sure that would be the
way to even deal with it with this specific item, but --
COMMISSIONER SCHIFFER: But, I mean, I'm not saying they
shouldn't meet concurrency, but they should be allowed, what's
happening today, to just be exempt from this tightening of the
concurrency. Because I think if these are approved units, if we do
something that holds up the building of these approved units, then
we're not -- we're saying the right words, but we're not taking the right
actions. Enough said.
CHAIRMAN STRAIN: And I understand what you're saying,
Brad. I just don't think this is the venue that will give you that result.
I think if you want to do that, we need to go to a higher level of fix,
and that is exempting affordable housing from the COA certificate
process in some manner rather than trying to backdoor it here where I
think all you're going to do is get a challenge by somebody else who
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feels they weren't treated fairly.
COMMISSIONER SCHIFFER: Then let me say that a no-vote,
which would be mine on this, is a no-vote not because it's not a good
idea -- I support it -- it's because it will impede the building of
affordable housing, and therefore, we shouldn't have anything that
would do that.
MR. CASALANGUIDA: Just one more follow-up comment. A
lot of the affordable housing that's built now is built with the market.
It's included in the market applications, or required to be. So it's
almost impossible -- in other words, if -- three or four projects that
we're reviewing right now, their affordable housing component is part
of their regular application. They're supposed to -- they're supposed to
mix them in with the rest of the development.
So even if you were to do that, I don't know if I could -- if out of
100 platted lots, they were supposed to have 10 percent affordable
housing mixed in with the general population, how could I allow those
10 platted lots to go and not the other 90?
COMMISSIONER SCHIFFER: Well, how do we know which
ones are affordable, which ones aren't?
MR. CASALANGUIDA: They're not --
COMMISSIONER SCHIFFER: They're not going to be built
identical. Don't try to kid me there.
MR. CASALANGUIDA: Well, they're not supposed to be. I
think the idea and intent --
COMMISSIONER SCHIFFER: It may look like it from the
outside.
MR. CASALANGUIDA: Right. I just wouldn't have a
mechanism, even if I was to proceed with that. If they came in as a
unified multi-family project, I couldn't tell you which ones were or
weren't.
COMMISSIONER SCHIFFER: Okay. But let me ask you this
question. Yes or no; could this slow down or in any way impede the
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development of affordable housing units?
MR. CASALANGUIDA: It could.
COMMISSIONER SCHIFFER: Yeah. There's my no-vote. So
let's take a vote then.
CHAIRMAN STRAIN: Okay. Any other discussion?
(N 0 response.)
CHAIRMAN STRAIN: All those in favor of the motion to
recommend approval, signify by saying aye.
COMMISSIONER KOLFLAT: Aye.
COMMISSIONER CARON: Aye.
CHAIRMAN STRAIN: Aye.
COMMISSIONER ADELSTEIN: Aye.
COMMISSIONER MURRAY: Aye.
COMMISSIONER VIGLIOTTI: Aye.
CHAIRMAN STRAIN: Anybody opposed?
COMMISSIONER SCHIFFER: Yeah, me.
CHAIRMAN STRAIN: Motion carries; one, two, three, four,
five, six, seven, to one. Thank you.
Now, let's go on to --
MS. FABACHER: Six.
CHAIRMAN STRAIN: Six to one, I'm sorry. I counted wrong.
Boy, I'm not doing good with numbers today.
Next section, please.
MS. CAUDILL-SCOTT: The next section -- for the record,
Trinity Caudill-Scott, project manager, pathways -- is page 187,
section 6.06.02.
I have made all of the revisions that were requested at the last
hearing and have a few additions that have been brought up since that
time period, the first of which is on page 190.
Number 45 reads, all sidewalks and bike lanes must be
constructed in accordance with design specifications identified in
subsection E. Due to relettering, subsection E does not pertain to that.
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It had to be revised to read subsection F.
CHAIRMAN STRAIN: Just so you know, the gold sheets that
we have reflected that change.
MS. CAUDILL-SCOTT: Okay. And then in subsection F,
previously it did not state --
CHAIRMAN STRAIN: It's page 19 --
MS. CAUDILL-SCOTT: I'm sorry, page 191 --
CHAIRMAN STRAIN: Thank you.
MS. CAUDILL-SCOTT: -- Fl, previously did not say that all
sidewalks needed to be constructed to FDOT standards, which is the
industry standard, what we've done all along; however, the Land
Development Code never said that.
And then on page 192, in that same section, previously it said,
FDOT standard specifications for road and bridge construction,
section 522, which is the sidewalk section; however, FDOT just
recently changed it to be a 300 number. So what we've chosen to do is
just strike that section and say it's just as per the FDOT road and
bridge construction.
CHAIRMAN STRAIN: Thank you, Trinity.
Mr. Schiffer?
COMMISSIONER SCHIFFER: Where do we get these FDOT
standards? Because one problem I have, there's some Land
Development Code things that reference a standard. We never looked
at the standard. And then in the standard there's requirements that end
up biting us, or at least the development community gets bit.
MS. CAUDILL-SCOTT: Currently we are building to that, and
it's also referenced in our right-of-way permitting handbook, and you
can get all of those on-line now. They are available on-line.
COMMISSIONER SCHIFFER: Within our -- and you've
checked them out, Mark?
CHAIRMAN STRAIN: Yeah. They're all on-line. I use them
frequently. In fact, I have them in hard copy. There's quite a few of
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them, so yeah. You go to the FDOT site. I can send you a link.
They've got a whole pile of good stuff on-line.
COMMISSIONER SCHIFFER: Yeah, do that.
CHAIRMAN STRAIN: We'll start with the front and see if
there's any questions on -- let's do two pages at a time. 188 -- 187 and
188. Any questions from the commissioners?
(No response.)
CHAIRMAN STRAIN: Hearing none, we'll go to page 189, 190.
Trinity, I have a few questions on page 189. Little number six.
MS. CAUDILL-SCOTT: Yes.
CHAIRMAN STRAIN: Second sentence. Well, I'm not sure it's
a sentence. It says -- second line, subdivision plat, site improvement
or site development plan, all sidewalks and bike lanes shall be
constructed unless otherwise determined by the county manager or
designee. That's prior to issuance of75 percent of the COso
Now, you're making the assumption then that -- say you have a
project that has 4,000 units and it's building 3,000 of those units. At
the point it hits 3,000, which is 75 percent, it's going to have to have
all of its roads for its other remaining 1,000 units and walks in place;
is that what it says?
MS. CAUDILL-SCOTT: No. The intent of this was per plat, per
site development plan. So that 4,000-unit development probably came
in with a 500-unit plat. So when that plat is -- that 500-unit plat is 75
percent built out, they would have all of the infrastructure in for that
plat only.
CHAIRMAN STRAIN: Good. Okay. And then the following
number 3, it talks about required pathways as identified in Collier
County Comprehensive Plan, must be constructed a minimum of 12
feet in width with public and private right-of-way or easements which
are adjacent to the internal -- or internal to the site.
Now, the word adj acent allows something to be separated, if I'm
not mistaken, by like a roadway or something like that, which means
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this could be on the other side of the street. Don't you mean abutting?
MS. CAUDILL-SCOTT: In many cases it's on the other side of a
canal but still considered adjacent to the site. And I'll defer to legal
staff on this. This was the identical language that it says for the
sidewalks as well, so --
COMMISSIONER MURRAY: Can it not read, which are
adjacent or abutting?
CHAIRMAN STRAIN: Well, the only concern I have is if
adjacent applies to something separated by a roadway, could this issue
have meant to provide pathways, sidewalks or bike lanes on the
opposite side of the roadway? The intent, I'm sure, is to be on the side
of the roadway adjacent to the project. Maybe that's the clarification
that we need to make.
MS. CAUDILL-SCOTT: I would -- I could accept that, yes.
CHAIRMAN STRAIN: Okay.
COMMISSIONER MURRAY: Well, what about the example
you gave of the canal? Isn't that the same kind of separation a
roadway would be?
MS. CAUDILL-SCOTT: Actually, I'm thinking back to our
comprehensive pathway plan and what pathways have been identified.
Adjacent to would actually mean adjacent to. They would not go on
the other side of the canal, for the most part, unless that's how we
opted to design it.
So the canal could separate. It would still be on their side of the,
quote-unquote, road that they would front.
CHAIRMAN STRAIN: Okay. I just want to make sure we use
the right word. And adjacent, when I -- I thought there was -- and if
I'm mistaken in my understanding of the word adjacent, please let me
know, but I thought abutting is the one that's right up against
something. Adjacent could be separated by the thing.
So do you have a suggested way to clarify this if you think it's
needed? If you don't just say so and we'll move on. I was just
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throwing it out because I wasn't sure how clear it needed to be.
MS. CAUDILL-SCOTT: Jeff, do you have any suggestions?
MR. KLATZKOW: I'm not sure there's a practical issue here. I
understand the concern. I'm more concerned with the internal -- the
internal pathway. I'm not sure what you're getting at there. I mean, if
it's a gated community, can they put in an internal pathway, and how
would people get to use it?
MS. CAUDILL-SCOTT: They have opted to put it internal to
their property and not do it adjacent. 951, Verona Walk actually, the
sidewalk that is along that area right there is actually internal to their
site. Now, it doesn't go beyond their boundaries, but it is actually
internal to their site. That is not adjacent to their site. It falls within
their property.
MR. KLATZKOW: Well, could they put it within their walls?
MS. CAUDILL-SCOTT: As long as they provided a perpetual
public use easement, yes.
CHAIRMAN STRAIN: Then I guess we're okay.
COMMISSIONER MURRAY: Does it serve the public purpose
intended? I don't see that. I don't -- I think --
CHAIRMAN STRAIN: What do you mean?
COMMISSIONER MURRAY: Cross--
CHAIRMAN STRAIN: Why, what would be wrong?
COMMISSIONER MURRAY: Well, I mean, if it's internal --
CHAIRMAN STRAIN: But if it's internal with a perpetual
public easement, what difference does it make?
COMMISSIONER MURRAY: But if it's internal -- like Verona
Walk, it's not accessible to persons who don't live there.
CHAIRMAN STRAIN: If it's got a perpetual public easement, it
would have to be.
COMMISSIONER ADELSTEIN: Public easement is public
easement.
CHAIRMAN STRAIN: Yeah.
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August 29, 2006
COMMISSIONER MURRAY: Well, okay. That's what it seems
to be, okay.
MS. CAUDILL-SCOTT: We also don't allow them to gate them
off and things of that nature either. We --
CHAIRMAN STRAIN: I think Mr. Murray might be thinking --
the DiV osta communities, if I'm not mistaken, have an internal ring
pathway around the core of their property.
COMMISSIONER MURRAY: They do.
CHAIRMAN STRAIN: She's talking about the pathway along
951, the one that's underwater periodically?
COMMISSIONER MURRAY: Yes.
CHAIRMAN STRAIN: That one. The public gets the one that's
underwater.
COMMISSIONER MURRAY: But he used the example -- and
it's what threw me -- inside Verona Walk.
CHAIRMAN STRAIN: It is. It's inside the boundaries --
COMMISSIONER MURRAY: But not with -- inside the wall?
CHAIRMAN STRAIN: That's correct.
COMMISSIONER MURRAY: That's where the difference was.
Okay. Now I'm clear. Thank you very much.
CHAIRMAN STRAIN: Okay. The last part of that same
number 3 talks about having the pathways, shall be provided at the
time of first permanent certificate of occupancy. Now, you're talking
about the -- since these pathways are regional systems, you're talking
about the piece of the pathway that is abutting or adjacent to the
property?
MS. CAUDILL-SCOTT: Yes.
CHAIRMAN STRAIN: They just put the piece in.
MS. CAUDILL-SCOTT: Yes. Normally they would not put the
piece in unless there was -- unless we had plans to connect to that.
And in a majority of these -- we do have people putting in pieces, but
we have construction plans programmed to go and connect those
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August 29, 2006
pIeces.
CHAIRMAN STRAIN: Okay. If they were required to put the
piece in but they made their payment in lieu, then how do they meet
the intent of that --
MS. CAUDILL-SCOTT: They can opt to do the payment in
lieu, which is a provision later on in here. So they could opt to do pay
in lieu if we had a construction product, and -- but many time --
Tuscany Cove comes to mind on 951. They opted to build their
section knowing that we were going to come in and build as well, but
they opted to build their own section because they felt that it was
cheaper in the long run.
CHAIRMAN STRAIN: Okay. Any other questions on
pathways, this page 189 and 190?
(No response.)
CHAIRMAN STRAIN: The next pages are 191 and 192. Any
questions on either of those pages?
(No response.)
CHAIRMAN STRAIN: Hearing none. Are there any members
of the public that wish to speak on this particular section of the LDC
amendments?
Ms. Payton?
MS. PAYTON: Please. Nancy Payton with the Florida Wildlife
Federation. I've been watching you comfortably at home, but there
was an exchange that happened maybe a half, three-quarters of an
hour ago, that gave me some discomfort, and that was when Mr.
Lewis was asked who he represents. He is a registered lobbyist. He is
to list who he represents upstairs with the clerk.
And I question, County Attorney, if he can withhold information
as to who he is representing when he's up here influencing public
policy. I was shocked that you let that go by.
CHAIRMAN STRAIN: Well, we're not talking about specific
projects here today, so I wasn't that concerned about it. I just -- what
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-- let me tell you where I was going to go. I thought his firm had sent
him to read the LDC out of the goodness of their hearts because he
was being -- standing up for about everything that we talked about
today. So I couldn't imagine someone hiring somebody specifically
for an issue that had so many issues, so obviously there's a bigger--
MS. PAYTON: I can't believe he's not here being paid -- he's
here and not being paid.
CHAIRMAN STRAIN: Well, I was hoping he was, so maybe I
was wrong. But anyway, do you know who --
MS. PAYTON: Well, I went upstairs to the clerk's office and
asked for a list, and it's eight pages. The latest is 2005/2006, so he
may be representing one or many of these folks.
But I, again, am questioning whether he has the right under our
lobbyist law to withhold that information, particularly since on his
application he has to list who he represents. And what's the point of
having this whole lobbying effort and registration if you can come up
and say, I'm getting paid to be here, but I'm not going to tell you who
I'm influencing policy for.
CHAIRMAN STRAIN: Okay. Ms. Payton, you may have an
issue. I suggest you take it up with the County Attorney's Office, but
this is an LDC hearing, and that's all I want to stick to is the LDC
amendments. And if -- we have what's provided by the clerk's office.
Mr. Lewis is a registered lobbyist. They don't provide us with
the information of who he's registered for. We haven't asked for it
from them.
At this point I think if you want to get into it, you can raise your
concern with the county attorney. We need to move on with our Land
Development --
MS . PAYTON : Well, actually I have requested this from the
county attorney in the spring, and I have not yet gotten an answer
because I think that people ought to be revealing who they represent.
And I'll just submit this for the record so that it will show that he
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represents one or many of these 42 different clients.
CHAIRMAN STRAIN: Okay.
MS. PAYTON: And just be noted that, public doesn't like that
type of response from registered lobbyists.
CHAIRMAN STRAIN: Thank you. Did you have an issue on
this LDC amendment that you --
MS. PAYTON: No, I had an issue about Mr. Lewis.
CHAIRMAN STRAIN: Thank you very much.
MS. PAYTON: Thank you.
CHAIRMAN STRAIN: Okay. Are there any other comments
on LDC section -- well, let's read it so we make sure we get the
motion right -- 6.06.02, sidewalk and bike lane requirements. Ifnot, is
there a motion to recommend approval?
COMMISSIONER ADELSTEIN: So moved.
COMMISSIONER KOLFLAT: So moved.
CHAIRMAN STRAIN: Motion made by Commissioner
Adelstein, seconded by Commissioner Kolflat.
CHAIRMAN STRAIN: Any discussion?
(No response.)
CHAIRMAN STRAIN: All those in favor, signify by saying
aye.
COMMISSIONER KOLFLAT: Aye.
COMMISSIONER SCHIFFER: Aye.
COMMISSIONER CARON: Aye.
CHAIRMAN STRAIN: Aye.
COMMISSIONER ADELSTEIN: Aye.
COMMISSIONER MURRAY: Aye.
COMMISSIONER VIGLIOTTI: Aye.
CHAIRMAN STRAIN: Anybody opposed?
(No response.)
CHAIRMAN STRAIN: Motion carries.
MS. CAUDILL-SCOTT: Thank you.
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August 29, 2006
CHAIRMAN STRAIN: Trinity, thank you. It got through this
time.
Do we have another one --
MR. CASALANGUIDA: On behalf -- we have several more.
On behalf of our --
CHAIRMAN STRAIN: You know, before we go further, let's
take a 10-minute break for the court reporter because I told her I
would around three o'clock, and it is three o'clock.
COMMISSIONER ADELSTEIN: Right on the nose.
CHAIRMAN STRAIN: Three-ten we'll be back.
(A brief recess was had.)
CHAIRMAN STRAIN: We're going to resume.
Just so everybody understands where we're going this afternoon.
At 3 :45 we will have discussions on LDC amendments and talk about
the schedule and remaining amendments left off the schedule that we
were handed. And at four o'clock, we will continue the meeting to
another day and another time.
Nick, I don't know who's next, but let's move -- give us a page
number to start with.
MS. FABACHER: I believe that's page 215, the stormwater.
MR. TINDALL: That's correct. Mr. Chairman, on page 215 is
the stormwater item. It was initially submitted by Steve Preston from
the stormwater department. He's not here, but if you have any
questions on the item, I'll be happy to answer them for you.
My name's Phil Tindall from transportation planning.
COMMISSIONER ADELSTEIN: Could you put your mike
closer to you?
MR. TINDALL: Yes, sir.
COMMISSIONER MURRAY: I'm trying to remember what our
problem was with this.
MR. TINDALL: The only thing that was asked for was that we
address one typo, which we did, and add the term NGVD, which was
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August 29, 2006
done.
COMMISSIONER MURRAY: Oh, okay. Now I remember.
CHAIRMAN STRAIN: And I -- you start on page 215,216 --
MR. TINDALL: The correction was on 217.
CHAIRMAN STRAIN: Right.
COMMISSIONER MURRAY: Yes, '88,1988.
CHAIRMAN STRAIN: Okay. This is a complicated one.
COMMISSIONER ADELSTEIN: Congratulations.
CHAIRMAN STRAIN: Is there any discussion from the
Planning Commission? And let's just be dangerous here and go to all
the pages all at one time.
COMMISSIONER MURRAY: Well, I don't see the 1988 thing
on here. Where is it? It was in xi.
CHAIRMAN STRAIN: Well, interestingly enough, I got -- my
golden sheets are 216, then it goes to 218, and 21 7, the page that the
corrections are on wasn't provided to us in the golden sheets.
COMMISSIONER MURRAY: Yeah, that's what I'm saying.
COMMISSIONER VIGLIOTTI: I've got 217 in white.
CHAIRMAN STRAIN: Right. The white ones seem to be
correct. So with that, is there any public speakers on stormwater
management?
Everybody's rushing to come up.
COMMISSIONER MURRAY: That should be 1988.
CHAIRMAN STRAIN: You guys, one at a time.
MR. TINDALL: The term NA YD. Is spelled out there with
1988. The term NGVD is actually in the abbreviations list in the code,
so that's why we didn't spell it out and put the year, but we can do that
if you'd like us to add it.
CHAIRMAN STRAIN: I don't -- if it's in the abbreviations list,
that should be enough.
Are there any -- no other comments?
(N 0 response.)
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CHAIRMAN STRAIN: Is there a motion to recommend
approval of 10.02.03 .B.l.B.ii point paren B?
COMMISSIONER MURRAY: So moved.
COMMISSIONER VIGLIOTTI: So moved.
CHAIRMAN STRAIN: Motion made by Mr. Murray, seconded
by Mr. Vigliotti to approve. All those -- is there any discussion?
(No response.)
CHAIRMAN STRAIN: All in favor, signify by saying aye.
COMMISSIONER KOLFLAT: Aye.
COMMISSIONER SCHIFFER: Aye.
COMMISSIONER CARON: Aye.
CHAIRMAN STRAIN: Aye.
COMMISSIONER ADELSTEIN: Aye.
COMMISSIONER MURRAY: Aye.
COMMISSIONER VIGLIOTTI: Aye.
CHAIRMAN STRAIN: Anybody opposed?
(No response.)
CHAIRMAN STRAIN: Motion carries, 7-0.
Okay. That's a tough one. Do you have any more like that we
could go through?
MR. TINDALL: Hopefully.
MR. CASALANGUIDA: Fingers are crossed.
MR. CASALANGUIDA: Page 221, Commissioners. We are in
an environment in the transportation division where we are asking for
more detailed analysis in response to both the Planning Commission
and the board in response to both SB-360 and the future proportionate
share that's coming up.
It's been brought to my attention in the development community
discussions that staff should be able to handle all these reviews. I
have to tell you, we don't have a professional modeler on staff. We
don't have a PTOE running synchroanalysis at intersections on staff.
We could have gone through the budget hearings and asked for
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additional positions. We also recognize the environment changes in
real estate, and things are slowing down in residential, picking up in
commercial.
We thought it would be more appropriate to charge a review fee
for the detailed TIS, bring in a consultant as needed. So the
environment picked up and we had many submittals for detailed TIS.
We could farm out those detailed analyses with the consultant, and if
it slowed down, we would not collect the fees and not farm out those
reVIews.
At this point in time, we've gone through the DSAC and
subcommittee and full committee, and they've approved it. And if you
have any questions, we've made the changes that you've asked for on
page 222.
CHAIRMAN STRAIN: Okay. Any questions? Mr. Schiffer?
COMMISSIONER SCHIFFER: Nick, I know we talked about it
last time in part of his job description. Could you put that he
standardizes the input? Because I think if you did standardize all of
the reports coming in, you could -- first of all, I think somebody at the
computer model would read it, but --
CHAIRMAN STRAIN: Whose job description?
COMMISSIONER SCHIFFER: Well, isn't he going outside the
-- your staff to get somebody to review the TISs?
MR. CASALANGUIDA: We are going -- you will see in the
next month and a half the proportionate share ordinance come
through, which will update our TIS guidelines and procedures to look
at things like a.m. analysis. And we will have in there something you
requested last time. We will have examples of how we want the TIS
submitted, exactly in the format we would like it, almost standardized.
So you will see that coming up.
It's much more comprehensive than this fee amendment, but I
don't think I would do it here. You're going to get a much more
detailed explanation when you get it through that review.
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August 29, 2006
COMMISSIONER SCHIFFER: Okay, okay.
CHAIRMAN STRAIN: Ms. Caron?
COMMISSIONER CARON: I have a question on page 222, iii,
where it says, a.m. or p.m. Above we said a.m. and p.m. Should it be
"and" there as well?
MS. FABACHER: No.
MR. CASALANGUIDA: No.
COMMISSIONER CARON: It should not,
MR. CASALANGUIDA: One is we want to see analysis in both
time frames.
COMMISSIONER CARON: Right.
MR. CASALANGUIDA: And one is a trigger.
COMMISSIONER CARON: Oh, I'm sorry, yes, yep. Okay.
Thank you.
CHAIRMAN STRAIN: Okay. Any other questions from the
commissioners?
COMMISSIONER CARON: I'm getting tired.
CHAIRMAN STRAIN: Any comments or questions or concerns
from the public?
(No response.)
CHAIRMAN STRAIN: That's acknowledgement from the
development community they liked this idea. No, no.
Okay. Hearing no further discussion, do I have a
recommendation for approval for section 10.02.02?
COMMISSIONER CARON: So moved.
COMMISSIONER ADELSTEIN: So moved.
CHAIRMAN STRAIN: Motion made by Commissioner Caron,
second by Commissioner Adelstein.
Any discussion?
(No response.)
CHAIRMAN STRAIN: All those in favor, signify by saying
aye.
Page 1 77
August 29, 2006
COMMISSIONER KOLFLAT: Aye.
COMMISSIONER SCHIFFER: Aye.
COMMISSIONER CARON: Aye.
CHAIRMAN STRAIN: Aye.
COMMISSIONER ADELSTEIN: Aye.
COMMISSIONER MURRAY: Aye.
COMMISSIONER VIGLIOTTI: Aye.
CHAIRMAN STRAIN: Anybody opposed?
(N 0 response.)
CHAIRMAN STRAIN: Motion, 7-0.
MR. CASALANGUIDA: Thank you, commissioners,
MR. CASALANGUIDA: Moving on to page 223, and then 224.
This was the annual traffic count. And you had some good input on
that. We've made some changes. I've also brought something I'd like
to pass out to you. It's just analysis. I could put it on the viewer, but it
might be too small.
CHAIRMAN STRAIN: Sure.
MR. CASALANGUIDA: On page 224, we've changed it that
they must report with traffic counts up until they're 100 percent build
out. During the recent PUD audit, the board directed us, staff, to
provide some leeway that we would, you know, waive the traffic
counts at a certain threshold.
What I've put in front of you is, you know, look at 25 and 50 in
the first column and 100 in the column going down the left-hand side.
Those are the dwelling units. To the right of those are the
corresponding p.m. peak trips that they generate.
In the amendment I've put 25, which is top analysis, and then it
goes down to 50 and then 100, to give you an idea of what those
thresholds mean in terms of p.m. peak trips.
I've gone with the lowest amount as a threshold. For analysis
you just get a feel for what they are in terms of p.m. peak trips.
What this does is allows the county manager or designee to
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waive the annual traffic counts if they fall below that threshold. That's
something the board directed staff to do.
On the bottom of this change, we have put in there that if they do
not want to waive -- if they want us to waive these things and they still
have additional trips above and beyond the 25 p.m. peak trips or
additional intensity or density above that, they could come to the
board and relinquish those units and therefore be considered built out.
We don't have a real process for that, but I'm sure that's something
we'll bring forward.
And I think the idea was to say that if you're going to maintain
those development rights, provide the annual traffic counts annually.
And it did give us some leeway. So I give you those three options, the
25, 50 and 100, to give you a feel for what it's like. And I picked the
lower one, the 25, being the most conservative threshold.
CHAIRMAN STRAIN: Okay. Are there any questions? Mr.
Schiffer?
COMMISSIONER SCHIFFER: Just one.
And, Nick, do they own the units that they can give you the
rights to relieve from? In other words, we've had developers who
have sold out, built out, and still pocket the units and claim that's an
asset.
MR. CASALANGUIDA: Well, in the last sentence that's one of
the things. The traffic reporting requirements are the responsibility of
the entity that retains the remaining development rights to the unbuilt
units or intensity.
That was one of the things we put in the last sentence to say, if
the developer wants to keep those units, then he shall be responsible
for the traffic counts every year for those units, not the homeowners.
So if there is some private agreement, we will ask the developer to
provide the traffic counts, therefore, not burden the homeowner, but
the developer himself.
COMMISSIONER SCHIFFER: But my concern is that these
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August 29, 2006
kind of notes are in the LDC, that they exist, and that might not be the
case, I guess. Jeff, that might be -- Jeff, my concern is, what they're
saying is that a built out project has unbuilt units, who owns them?
What -- the sentence he read states that they actually are something
that's tangible and --
MR. CASALANGUIDA: I think they are tangible.
COMMISSIONER SCHIFFER: Are they?
CHAIRMAN STRAIN: Pelican Bay proved that.
MR. CASALANGUIDA: I think we've seen that in the past.
COMMISSIONER SCHIFFER: Pelican Bay enjoyed that. I
mean, is that really the case that they exist? They traded them.
MR. KLATZKOW: It's a vested right.
CHAIRMAN STRAIN: Well, and I think you'll see that the
Windstar development, they came through here and most likely picked
up, what was it, 90 units from the existing Windstar PUD to move to
that addition of Fisherman's Cove?
COMMISSIONER ADELSTEIN: Right.
CHAIRMAN STRAIN: I'm wondering, you know, they -- I bet
they had to negotiate something to get those 90 units.
COMMISSIONER SCHIFFER: What they wanted to do, they
became part of the PUD, and thus they could absorb the balance then.
I think if a PUD has unbuilt units, it gets greater land that gets joined
to the PUD, then obviously those units -- it's not an unbuilt PUD at
that point because it has that additional land.
But anyways, so you think these are a tangible --
MR. KLATZKOW: I think the developers would fight you tooth
and nail on that point, yeah. I mean, to me it's a vested right.
COMMISSIONER SCHIFFER: That runs with the land or runs
MR. KLATZKOW: Runs with the land.
COMMISSIONER SCHIFFER: -- in the pocket of the
developer?
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August 29, 2006
MR. KLATZKOW: No. It runs with the land, the development.
COMMISSIONER SCHIFFER: If -- but the developer's sold out
everything, owns nothing on the ground.
MR. KLATZKOW: Well, the problem is when you're approved
for 150 units and they only build 120 --
COMMISSIONER SCHIFFER: Right.
MR. KLATZKOW: -- what happens to the other 30? I think the
homeowners' associations, in your example, might say, hey, look, 20
years from now, 30 years from now, we may want to redevelop this--
COMMISSIONER SCHIFFER: Right.
MR. KLATZKOW: -- and use those additional units. I mean,
they have value to us.
COMMISSIONER SCHIFFER: But the case -- the Pelican Bay,
the developer held them. They weren't running with the land; they
were running with his wallet.
MR. CASALANGUIDA: In Pelican Bay, there was
undeveloped land or outparcels, so I think he attached those units to
the undeveloped outparcels.
COMMISSIONER SCHIFFER: Anyway, you believe they have
them. They have them, but this is the first time in the code we
actually discuss them as something that's tangible, marked tradable.
MR. CASALANGUIDA: I think we've seen legally that there
are -- there are units out there owned by somebody, and I --
MR. KLA TZKOW: Lely sold, I think, 1,000 units at one point
in time --
MR. CASALANGUIDA: Correct.
MR. KLATZKOW: -- to another developer.
CHAIRMAN STRAIN : You might want to get closer to your
mike. Thank you.
MR. KLATZKOW: Yeah. I mean, my recollection is Lely sold
approximately 1,000 units to another developer at one point in time.
COMMISSIONER SCHIFFER: So when we approve a PUD, we
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can expect that that guy, the density we give him, he could -- it's a
marketable commodity? He could give it to another piece of land? I
don't think so.
MR. KLATZKOW: Well, we approved the transaction, the
board did, because it took 1,000 units, and we reduced them down
somewhat to maybe 800, or whatever the number was, and said, sure,
you can do it this way.
COMMISSIONER SCHIFFER: I mean, if you believe -- but I'm
just afraid, are we legitimizing something that may not be legitimate?
If you say it is, it is. I'm not going to --
MR. CASALANGUIDA: If there was an outparcel retained by
an owner of a lOa-plat lot subdivision and he retained one outparcel
thinking someday maybe he could go vertical, put condos on it, I think
it's unfair to make the homeowners do the traffic counts. I think
whoever retains any development rights should be responsible to
provide those traffic counts. And I -- that's fair, I think.
CHAIRMAN STRAIN: Mr. Murray?
COMMISSIONER MURRAY: I would agree with that. I'm not
sure that's enforceable. I remember reading in the documents for Lely
that the -- the residue or rights remain forever with the developer and
all kinds of opportunities. So, you know, that's -- the mystery or the
ghost units are going to be around for a long time until that case is
issued -- is dealt with. But in this case, have we -- do you think we've
pinned it down pretty much? Do you think it's enforceable? I guess
that's really a legal question.
MR. CASALANGUIDA: I think it's enforceable to go after the
entity that owns them. And Jeff will have to answer that one.
MR. KLATZKOW: Nick and I had discussions on this over the
last two years, we have to do something about these units.
COMMISSIONER MURRAY: Yeah.
MR. KLATZKOW: They're eating up the roads without actually
being there.
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August 29, 2006
COMMISSIONER MURRAY: Yep.
MR. KLATZKOW: So, you know, at the end of the day, this is
the best thing we could think of.
COMMISSIONER MURRAY: Cool.
CHAIRMAN STRAIN: Nick, you made a statement, you don't
think it would be fair if the homeowners' association had to file these
reports. I think it is, because they're the ones -- if they retain units, just
like Windstar did, by God, they can pay for those units for as long as
they want to retain them.
MR. CASALANGUIDA: That's right.
CHAIRMAN STRAIN: Because at some point they'll make a
windfall from them.
MR. CASALANGUIDA: Right. And my comment was, if the
homeowners don't have any of those units --
CHAIRMAN STRAIN: Right.
MR. CASALANGUIDA: -- then they should not be responsible.
Therefore, whatever entities wants to claim those units should be
made to pay for those traffic counts.
CHAIRMAN STRAIN: Right. I would agree with you there.
COMMISSIONER MURRAY: I would give --
CHAIRMAN STRAIN: Mr. Murray, did you have something to
say?
COMMISSIONER MURRAY: Excuse me?
CHAIRMAN STRAIN: Did you have a question.
COMMISSIONER MURRAY: I wanted to point something out,
one other thing to add to the conversation.
In the event of a bankruptcy by the developer, they walk away, it
doesn't really -- he could still assert or he can still assert rights,
presumably, but the association inherits the property or doesn't it, you
know? And that's a very dicey type of question to deal with, so --
MR. KLATZKOW: Well, as the roads are getting crowded,
we're running into problems we never had before.
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August 29, 2006
COMMISSIONER MURRAY: I fully agree with the intent.
MR. KLATZKOW: It's just --
COMMISSIONER MURRAY: Okay.
CHAIRMAN STRAIN: Mr. Schiffer?
COMMISSIONER SCHIFFER: And Jeff, I never -- the phantom
units never got in my way. I mean, I've never seen them on the road,
so they're not the crowd.
But Nick, here's my concern, and I'm not sure I said it carefully.
This is the first time that we've actually said that those phantom units
which you've been providing phantom traffic counts for, exist as a
tangible commodity that can be essentially marketed by relieving
rights to do traffic studies.
Is there anyplace else in the code that recognizes those units, or is
this the first time? Because I think what -- my point is, if this is the
first time, wouldn't we be better looking at other ways to get rid of
them than to recognize them? Because once we recognize them here,
then we are, in fact, saying to a developer that they are tangible.
MR. CASALANGUIDA: Well, as Jeffpointed out, we've seen
through the board that they've recognized that Lely had 1,000 units to
give away. And I think we, in our PUD documentation and
monitoring, we recognize those units on the record on our tables as
units, approved units by the board.
COMMISSIONER SCHIFFER: Is Lely a built out PUD? I
don't think so.
MR. CASALANGUIDA: Not yet.
COMMISSIONER ADELSTEIN: No, they're not close yet.
COMMISSIONER SCHIFFER: So I don't think they're exactly
what I'm describing.
MR. CASALANGUIDA: Well, they're all -- in all of our
ordinances -- most of our ordinances, we specifically specify an
amount, whether it be units per acre, a fixed amount of units, or for
square footage. It's in that ordinance as recognized.
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COMMISSIONER SCHIFFER: Correct.
MR. CASALANGUIDA: What happens is, as they develop,
there's nothing that would stop someone -- for instance, the golf course
that was going to be affordable housing where they talked about
getting rid of the --
COMMISSIONER MURRAY: Riveria.
MR. CASALANGUIDA: -- coming in and taking those units
and building those projects, and it's right there, so they're not
necessarily phantom. They're there. It's been shown that they exist.
I think that was another project that would prove that there are
units that were available for someone to develop that would not
require zoning, but just a development order.
COMMISSIONER SCHIFFER: But this a -- this is 100 percent
built-out situation. In other words, there is no place to use these units.
We gave them a density that they decided, via market or whatever
judgment, that they don't need. They've completely built out the unit.
You're carrying them as phantom. But the point is, don't they
disappear? It's like somebody building on conventional zoning.
MR. CASALANGUIDA: They could get rid of a golf course,
they could -- they could replat if they -- if at some point in time
someone allows off-site mitigation for preserves and easements, a
developer could come back and say, I prefer to purchase off-site
mitigation. I want to replat this preserve and buy a bank someplace
else. If that's allowed in the future, that would give them the
opportunity to come back without going in front of this board or the
Board of County Commissioners.
COMMISSIONER SCHIFFER: But if it's built out, the owner
doesn't own -- let's say he doesn't own anything unless he obviously, I
guess in this case, would be enough to maintain some piece of land.
CHAIRMAN STRAIN: Is there -- do you have a suggestion on
how to change this language, Brad?
COMMISSIONER SCHIFFER: My fear is --
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CHAIRMAN STRAIN: This land debate that you're getting into
is way above us. The Supreme Court and others may want to debate
it, but right now I can tell you that there are units all over the county
that aren't built out that people have a great value in. If nothing else,
to negotiate other things with.
We -- we. I know people that use them all the time.
COMMISSIONER SCHIFFER: But, I mean, my concern is --
yeah, all right. I mean, the thing is, that once this -- we let this out the
gate, then we are endorsing in the LDC that those units are tangible
entities. I've never seen that before, that's all.
CHAIRMAN STRAIN: I just think the law already provides for
it, so we're not endorsing anything. We're just -- we're being
consistent.
MR. KLATZKOW: I think the horse is out of that barn, quite
frankly.
COMMISSIONER SCHIFFER: Okay. And this isn't the debate
for it. I don't agree with it, but --
CHAIRMAN STRAIN: Mr. Adelstein?
COMMISSIONER ADELSTEIN: Mr. Jones has 10 extra lots
that he bought 15 years ago, and those were left from the things he had
designed and got -- and sold.
Now, he bought them. He was told he could have them, and
nobody said there was any things he had to do about it. N ow all of a
sudden because there are a lot of Mr. Joneses, they want to make
something happen.
I don't see how they can change the contract that he purchased
the first time. He bought the land, he paid for it, he did what they had
to do now, and now he has 10 left. Maybe if we -- with people who
are starting today to do it, a law could change. But how do you
change a person's rights when he had them 10 years ago, has done
nothing wrong, he just has the right to keep it, and now you're going to
tell him it's going to cost him to do it? I don't think that law will go
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through clearly, at least I know it will take a whole lot of years to get
it through.
CHAIRMAN STRAIN: Any questions from the commission?
COMMISSIONER SCHIFFER: I just --
CHAIRMAN STRAIN: Mr. Schiffer?
COMMISSIONER SCHIFFER: No. I just feel bad doing this
for some reason, but let's move. I feel dirty.
CHAIRMAN STRAIN: Well, I've felt kind of numb since I left
the dentist this morning, but we've still continued. So is there any
comments from the --
COMMISSIONER ADELSTEIN: Numb and number.
CHAIRMAN STRAIN: -- from the citizens?
(No response.)
CHAIRMAN STRAIN: This is another endorsement by the
development community? Okay.
Hearing no other comments, is there a recommendation,
assuming of approval, for section 10.02.07 .C.l.B?
COMMISSIONER MURRAY: I'll move it.
COMMISSIONER VIGLIOTTI: (Raises hand.)
CHAIRMAN STRAIN: Motion made by Mr. Murray, seconded
by Mr. Vigliotti.
Is there any discussion?
(No response.)
CHAIRMAN STRAIN: Hearing none, all those in favor of the
motion, signify by saying aye.
COMMISSIONER KOLFLAT: Aye.
COMMISSIONER CARON: Aye.
CHAIRMAN STRAIN: Aye.
COMMISSIONER MURRAY: Aye.
COMMISSIONER VIGLIOTTI: Aye.
CHAIRMAN STRAIN: Those opposed to the motion?
COMMISSIONER ADELSTEIN: Aye.
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COMMISSIONER SCHIFFER: I'm opposed, so two.
CHAIRMAN STRAIN: Okay. So -- boy, this is getting to be
complicated math. It's 5-2. Motion carries.
CHAIRMAN STRAIN: Next issue, Nick?
MR. TINDALL: On page 226 -- I'm sorry. It starts on page 225;
my mistake.
This -- our concurrency management system took effect March
2004, so we've got about two and a half years of actual practical
experience with it.
These particular provisions that we're trying to amend have to do
with timing criteria for processing of certificates of public facility
adequacy when applied for by applicants for development orders.
We were -- generally speaking, the Planning Commission had no
major problems with doing this. We were asked to tweak a few items,
which we have done, and they're basically inter -- indicated in the
double underlines on page 226, 227 and 228. I could go through each
one individually, or whatever's your pleasure.
CHAIRMAN STRAIN: Oh, I think we can ask questions if we
have any.
MR. TINDALL: That would be great.
CHAIRMAN STRAIN: We're on page 226. Actually 225,226
and 227. Do the commissioners have any questions? There have been
changes made since our last meeting.
COMMISSIONER MURRAY: Yes.
CHAIRMAN STRAIN: Mr. Murray.
COMMISSIONER MURRAY: Not so much a question, a
comment. The community development/environmental services
division administrator. I thought we were going to be consistent with
the county manager or designee.
CHAIRMAN STRAIN: We're supposed to be.
MR. TINDALL: That being the case, that was my mistake, and
we can certainly change that in all those cases.
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COMMISSIONER MURRAY: I can't -- I didn't see --
MR. TINDALL: I did add the term "or designee," but I failed to
change the administrator's title to county manager, so we could
certainly make that correction.
COMMISSIONER MURRAY: That's the only thing I saw in
there that was meaningful to me.
CHAIRMAN STRAIN: Okay. Are there any other comments?
Mrs. Fabacher?
MS. F ABACHER: Sorry. Catherine Fabacher, for the record.
We need a clarification. Is he to change community
development/environmental services division administrator and the
transportation services division administrator both to the county
manager or designee throughout the provision?
CHAIRMAN STRAIN: Well, since this is a transportation
planning issue, my thought was that you'd want to leave the
transportation division administrator in the position that you've got it
in, but the one for community development/environmental services
changed to county manager or designee.
MS. F ABACHER: Thank you. I just needed clarification.
Thank you.
CHAIRMAN STRAIN: That's what I thought.
Okay. If there's no other questions or comments. Anything from
the -- oh, the public has already -- no, we did the last one.
Any comments from the public?
(No response.)
CHAIRMAN STRAIN: None.
Is there a recommendation to approve LDC sections
10.02.07.C.l.E and 10.02.07.C.4.C--
COMMISSIONER ADELSTEIN: So moved.
CHAIRMAN STRAIN: -- as submitted?
COMMISSIONER ADELSTEIN: So moved.
CHAIRMAN STRAIN: Motion made by Commissioner
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Adelstein. Is there a second?
COMMISSIONER VIGLIOTTI: (Waves hand.)
CHAIRMAN STRAIN: Commissioner Vigliotti is waving his
hand, so that means a second.
COMMISSIONER VIGLIOTTI: Yes.
CHAIRMAN STRAIN: Any discussion?
(No response.)
CHAIRMAN STRAIN: All those in favor, signify by saying
aye.
COMMISSIONER KOLFLA T: Aye.
COMMISSIONER SCHIFFER: Aye.
COMMISSIONER CARON: Aye.
CHAIRMAN STRAIN: Aye.
COMMISSIONER ADELSTEIN: Aye.
COMMISSIONER MURRAY: Aye.
COMMISSIONER VIGLIOTTI: Aye.
CHAIRMAN STRAIN: Anybody opposed?
(No response.)
CHAIRMAN STRAIN: Motion carries 7-0.
CHAIRMAN STRAIN: Next one?
MR. CASALANGUIDA: Last one, Commissioners, from
transportation, page 237.
I believe we've met with the development community, and they
appear to be satisfied what we have done. We've put in the safeguards
that they've asked for.
This addressed Mr. Schiffer's comments, Commissioner Schiffer,
from -- regarding having these units disappear on a certain time frame.
We can't retroactive, go back to the prior approvals through PUDs,
but we can go forward to say that when the PUDs are approved, you
give us a TIS and a timeline.
We expect you to follow that timeline. We understand that there
should be a little leeway . We provided two years for that leeway. And
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we've also said, through either action or inaction of a regulatory
agency, something happens along the way and through no fault of
your own, you cannot meet that time line, the time will be tolled.
And we've put that all in there, and I think they are satisfied.
And if you have any questions --
CHAIRMAN STRAIN: That starts on page 237, 238, 239, 240,
241 and 242. Are there any questions?
(No response.)
CHAIRMAN STRAIN: Nick, this is too easy for you today.
You should have done environmental.
Any questions or comments from the audience? And, yes, there
IS.
COMMISSIONER VIGLIOTTI: Two of them.
MR. CASALANGUIDA: My nemesis.
MR. YOV ANOVICH: For the record, Rich Y ovanovich on
behalf of Collier Enterprises.
CHAIRMAN STRAIN: Mr. Lewis, I think somebody's setting
you up.
MR. LEWIS: Appreciate that. Thanks, Rich.
MR. YOV ANOVICH: Just having a little fun. Sorry.
Page 239, I believe. It would be under section 10.02.13.D.2.C,
and it currently reads, in the event of any moratorium or other action
of the government that prevents the approval of the final -- of the local
development order. I think we should add, action or inaction to that
section because again, what happens if roads are not built, and you
know, you have a developer who can't go forward and his three-year
period runs out? So I think we need to add the words action and
inaction to that section.
MR. YOV ANOVICH: Nick showed me the revisions. I don't
have them in front of me, but I believe he also added inaction to 3A; is
that right, Nick?
MR. CASALANGUIDA: That's correct, middle of the page.
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August 29, 2006
MR. YOV ANOVICH: That's in the event of any action or
inaction by regulatory agency or legal action; is that correct?
COMMISSIONER VIGLIOTTI: Action or inaction.
MR. YOV ANOVICH: One clarification, because I don't want
there to be any ambiguity. I think you probably want to say action or
inaction by the county or any other regulatory agency. I don't want
the county to say, we're not a regulatory agency. I don't want to get
into the hangup of what is or is not a regulatory agency. And again,
the same comment applies about building roads, not building sewers,
whatever -- whatever the issue may be.
CHAIRMAN STRAIN: Before you go on, let's talk about the
two suggestions you made so we don't lose track, Richard, okay?
MR. YOV ANOVICH: Okay.
CHAIRMAN STRAIN: The first one is on page 329, paragraph
C. The suggestion was, in the event of a moratorium or other action,
to also add the words, or in the event of a moratorium or inaction or
other action of a government.
Does anybody have any obj ections to that?
COMMISSIONER ADELSTEIN: No.
COMMISSIONER SCHIFFER: No.
CHAIRMAN STRAIN: Okay. Number 3A, where Nick had
added the words, in the middle of the paragraph, in the event that
action or inaction by a regulatory agency, the suggestion is, in the
event that action or inaction by the county or any other regulatory
agency be added.
Does anybody have any objection to that language?
COMMISSIONER ADELSTEIN: No.
CHAIRMAN STRAIN: Okay. Richard, continue.
MR. YOV ANOVICH: B is the -- I guess where you sunset --
you sunset the density that you don't build within two years after the
TIS. I think two years is a little short. I think it should be three years
based upon what we have now seen is the economic times. You might
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want to have a little bit more leeway to three years instead of two
years to go forward and have to use up or plat or submit an SDP to
save your units. So we would request that that change -- be changed to
three years. And then--
CHAIRMAN STRAIN: Richard, where's that -- where's the ref
-- okay.
MR. YOV ANOVICH: It says, for non-residential portions of a
PUD, subsection A above --
CHAIRMAN STRAIN: Oh. You're on actually page 240, okay.
MR. YOV ANOVICH: Am I? No. That's also on 239.
MR. CASALANGUIDA: It's in 239A in the beginning, and then
it's in B, referencing back to A, the two years.
MR. CASALANGUIDA: If you'll look on page 240, it says, you
know, allows for two additional years to amend the site development
plans in order to apply section A above, and then A, it's the second
sentence, two years after the build-out year. So Rich would like to
have that be three years --
MR. YOV ANOVICH: Actually for A and B, be a three-year
period to go ahead and -- go ahead and do your units.
COMMISSIONER ADELSTEIN: Rich?
MR. YOV ANOVICH: Yes, sir.
CHAIRMAN STRAIN: Commissioner Adelstein, did you want
to be recognized?
COMMISSIONER ADELSTEIN: Yes, I did, but you don't say
anything.
CHAIRMAN STRAIN: I do, Mr. Adelstein. I'm looking on both
sides, and I catch most everybody. I'm sorry. But Mr. Adelstein?
COMMISSIONER ADELSTEIN: Your statement regarding the
two years, we're talking about a situation like now, and you said three.
I don't think two or three are going to be outdoing themselves. I think
something like five years, when they have a situation in this
development area now where they may have that length of time before
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they can get to use it. I don't think two or three is the situation under
all this time.
If it can be done or if you can make the change to make it go five
years, at least we know that the situation will come to an end at that
time and it will probably be a very fair way to do it.
MR. YOV ANOVICH: I'm with you. I'd like to see that happen.
I'd like to see -- I'd like to see none of this in here, but I recognize that
that -- I recognize that I've got no chance on that one.
CHAIRMAN STRAIN: Guys, we've got to be careful--
COMMISSIONER MURRAY: He's made a friend.
CHAIRMAN STRAIN: Bob--
COMMISSIONER ADELSTEIN: I've made one before I had
you for one.
CHAIRMAN STRAIN: This young lady's trying to write all this
down and, it's hard, so --
MR. CASALANGUIDA: Commissioners, I beg your indulgence
here. I have a lot of respect for Mr. Yovanovich, but I couldn't
disagree more with his request.
The developer is the one in this application who sets his build-out
year. He tells you, based on the economy when he comes in front of
you for a PUD, he says, I anticipate the build-out year to be 20 II, and
we've given them two years. Personally, I think the board will knock it
down to one, because you are defining the build-out year when you
ask the board for zoning.
MR. YOV ANOVICH: Yeah, you know, and I appreciate that
but in this -- you know, and the economic times have changed and the
regulatory times have changed.
You don't get through the process as -- you may not get through
the process of the Corps, the water management district, the county, as
you originally anticipated. I don't think two years leeway from a
build-out period is enough.
MR. CASALANGUIDA: Well, you're setting -- two things.
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You're setting the benchmark yourself from the two years -- your
anniversary date. You're telling us the build-out year.
CHAIRMAN STRAIN: Nick, I hate to remind you, but this is
the board that's going to make the decision. The debate needs to be
between you and us and us asking the questions, and then you guys
having your debate after we concur that -- with the questions and
answers. So let's pay attention to who's in charge here today.
Ms. Caron's got the floor.
COMMISSIONER CARON: Well, first of all, I think that Nick
is correct. The developer gets to set the timeline. And secondly, if the
economics change next year, Mr. Y ovanovich and his clients are not
going to be rushing in here to say, well, we can back off of this now
because everything's gung ho again.
So I think we're being more than fair with the two years beyond
whatever date they've set established in the beginning.
CHAIRMAN STRAIN: Okay. Mr. Vigliotti, did you have a
comment?
COMMISSIONER VIGLIOTTI: Yeah, I tend to agree with
Commissioner Adelstein. I don't know if we're going to come up with
five, but I think three for a minimum. The real estate climate has
changed. And to try and guess is sort of like reading a crystal ball
now --
MR. YOV ANOVICH: What you're going to do -- if I may.
CHAIRMAN STRAIN: No. Let me finish something.
Mr. Vigliotti, I think the issue is that a developer comes and says,
I need five years to build my project. Here's my phasing schedule. He
starts his project, certain circumstances occur. The project drags out to
seven years.
At that point is when this would trigger. So he's really got what
he says he wanted. If he's more than -- I mean, two years on a
five-year project, he's already almost 50 percent in error. Ifhe can't
judge his time frames better than that, he shouldn't be in the business
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because he's going to lose money with his interest carry and
everything else with his banks before he ever gets to worrying about a
traffic report.
So I don't -- I think that two years on top of their own schedule is
generous because if -- like I said, they've got -- their schedules --
they've got to meet their schedule or their bankers are going to shut
them down.
So I don't know if everybody understands this is two years on top
of the schedule they give out. If they didn't give it out, that would be a
different thing. If the county said, here's your schedule. You've got to
live with this, then I agree, they need more latitude. But my God,
they're setting the schedule, not us. If they set a schedule and they
can't meet it, that isn't our fault.
But anyway, I just wanted to make sure everybody understood --
COMMISSIONER VIGLIOTTI: I realize that.
CHAIRMAN STRAIN: Okay. Nick?
MR. CASALANGUIDA: Commissioners, we also acquiesced in
the sense that we recognize that environmental factors, permitting
factors, come in. We've put that language in it to also cover them.
This isn't something we've taken a hard line against. We've said, what
works for you? Make sure we cover you because we understand as a
developer you want to cause problems (sic).
Setting the timeline and providing an additional two years -- and
I believe the board has asked us to be even more strict. So we're
asking them to set the timeline. We're not dictating the timeline to
them.
CHAIRMAN STRAIN: Mr. Schiffer?
COMMISSIONER SCHIFFER: Nick, do you think this would
be appropriate to do this with different scale projects, something like
-- Rich loves Pelican Bay. It's different than some guy with 40 acres.
In other words, Pelican Bay could, you know -- I guess they could
give a 30-year time frame, and then the two years doesn't mean
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anything, but --
MR. CASALANGUIDA: Correct. They set the time. What
could also happen, I would imagine, is if -- they're more than welcome
to come back and do a PUD amendment if --
COMMISSIONER SCHIFFER: And we'd --
MR. CASALANGUIDA: -- and come back in front of the board.
CHAIRMAN STRAIN: I would love to carry this conversation
on for the rest of the afternoon, but we need to start expediting it.
They need to start setting this room up for the next meeting.
It's 3:45 and we're going to stop. Now, I'd like to get past this
issue, but if Mr. Yovanovich and Mr. Lewis are going to take another
half an hour, we may have to defer this to another day.
MR. YOV ANOVICH: I didn't intend to, but I had one editorial
comment. First of all, before I get to the editorial comment, all you're
going to do is you're going to force the developer to come in and
submit an SDP for -- or a plat to chew up the units, they'll spend
needless money, and then they'll go ahead and come in and amend it
later to deal with that issue.
I was trying to say, does it really make any sense to put a
developer through that when there's permitting issues that may have
slowed the developer down? I think a three-year window's better than
a two-year window.
Going back -- going to the discussion, if I can, just real briefly,
and then I'll sit down -- about the, quote, phantom units, this obviously
can't be applied retroactively, but I do think that the county needs to
take a more realistic approach on phantom units when they are
counting units.
If a proj ect is 100 percent built out -- and I'll say that means that
they've come in with an SDP for 100 percent of the land, yes,
theoretically at some point they could come in and maybe make some
changes to add units, but realistically they're not. To simply keep
those units in the concurrency management system makes no sense.
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It's a contingent liability that is probably never going to happen. I
think they should come out of the system. Even though you can't take
that right away from the developer, they should come out -- they
should come out of the calculation because it makes -- it makes no
sense to sit there and assume that these units are going to occur.
CHAIRMAN STRAIN: Thank you, Richard. Before we go on to
Mr. Lewis, who I hope is going to be short, let's discuss -- let's get
finished with this one recommendation that Richard wanted, which is
go from two years to three years. There's a division on the board
obviously. How many are in favor of three years?
COMMISSIONER SCHIFFER: (Raises hand.)
COMMISSIONER ADELSTEIN: (Raises hand.)
COMMISSIONER VIGLIOTTI: (Raises hand.)
CHAIRMAN STRAIN: Three. How many are in favor of
leaving it as two years?
COMMISSIONER KOLFLAT: (Raises hand.)
COMMISSIONER CARON: (Raises hand.)
COMMISSIONER MURRAY: (Raises hand.)
CHAIRMAN STRAIN: Okay. So when we get down to making
final approval, it looks like four in favor of two years and three are in
favor of three years.
So with that, let's go on to Mr. Lewis.
COMMISSIONER KOLFLAT: What did you say the count was,
Mark?
CHAIRMAN STRAIN: Four to three. You're on the winning
side.
COMMISSIONER KOLFLAT: Yeah, two years, right?
CHAIRMAN STRAIN: Yes, sir.
COMMISSIONER KOLFLAT: That's all I wanted to know.
MR. LEWIS: Thank you, Mr. Chairman. My name's Doug
Lewis. I'm with the firm of Roetzel and Andress. For the record, I am
a registered lobbyist, and in my registration I have disclosed who the
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clients are that we represent generally and appear for in lobbying
matters.
During the break I did contact our client, and our client has asked
me to disclose that Bonita Bay is the party that we've been
representing here today.
So with that, in connection with the language on page 239, in
addition to the comments by Richard Y ovanovich --
CHAIRMAN STRAIN: Actually that will help you. They're
pretty -- rather responsible group of people, so --
MR. LEWIS: Sure. The -- in terms of the three-year period, one
of the things that I think is very helpful that Nick has done is he
acknowledged that in terms of the suspension of the two-year period
that -- where we have issues in terms of permitting or moratorium,
other factors that would prevent a developer from submitting a Site
Development Plan, that there is a -- really, essentially, an ability to
suspend that two-year window, which I think is very helpful.
My specific comment is giving direction of the board to -- the
Planning Commission to retain the two-year window. Specifically
when we talk about the permitting issue, the language that I would
suggest that we add, where it reads in 3A, that any -- in the event of
any action or interaction by regulatory agency or legal action that
prevents approval of a local development order, I think we're also
talking about, not in addition to a local development order or any
local, state or federal development permit where we are unable to be
an ERC or other permit approval.
It's precisely the inability to obtain permit approval that prevents
a developer from submitting an SDP or, in the context of a
moratorium, preventing the development from proceeding to an SDP,
and that's the concurrency management system working.
If there's a moratorium that would prohibit development, we
wouldn't want SDPs being submitted. That relates to the second
question I have, and that is, this exception is allowed, or this tolling, if
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you will, is allowed contingent upon the applicant having diligently
pursued a local development order.
And I'm not sure what we're trying to encourage here. Are we
trying to encourage the SDP being filed prior to the permitting
approvals, the agency approvals? Are we asking that to happen in the
event of a moratorium that we're encouraging these SDPs to be
submitted to county?
I would request that that contingency be removed. I think what
we're looking for is the ability for the development to go forward if
there aren't any regulatory hurdles that would prevent them from
going forward, but I'm not sure that language where it says contingent
upon the applicant having diligently pursued local development orders
is helpful. I'd like -- we'd like to have that removed.
CHAIRMAN STRAIN: Thank you, Mr. Lewis.
Nick, do you have any responses?
MR. CASALANGUIDA: I would think that just -- they have to
show that they were trying to get a permit. I think --
CHAIRMAN STRAIN: And I would agree with you. Based on
the action -- I think there was one PUD that just occurred off of 951,
south of 41 where the commission was concerned about extending a
PUD, and they quizzed the applicant pretty heavily on, did you even
try to get your permits or something to that effect.
MR. CASALANGUIDA: Correct. I think that's important.
MR. LEWIS: Permits are different though, Chairman, than
development approvals. And so to the extent that we're proceeding
with our permits and our permit applications, that's certainly helpful.
You'll note in the tolling provision above, in the moratorium
context, that language isn't there. It's precisely the -- if you look under
-- in general moratorium, it's not conditioned upon submission of an
SDP. So I'd like to clarify the language.
MR. CASALANGUIDA: I'd be okay with adding the language,
development order or any necessary permit required to receive that
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development order, adding that if that makes him feel more
comfortable. I'm okay -- I mean, ifhe's trying to get a Corps permit,
which is not a local permit, we can add that language simply because
he's diligently pursuing his permit applications. If the Commission
feels comfortable, we would be happy to add that language.
CHAIRMAN STRAIN: Or what was the -- or any?
MR. CASALANGUIDA: Or any permit application required to
secure a development order.
CHAIRMAN STRAIN: I think that works. Thank you.
Mr. Lewis, any other comments from the Planning
Commissioners?
(N 0 response.)
CHAIRMAN STRAIN: Okay. Let me take a stab at this. I'm
looking to recommend approval of section 10.02.13.D. with the
language changes that we've gone over with staff and that the
two-year build-out requirement stay as stated today as presented to us
and not be changed.
Does that sum it up mostly?
MR. CASALANGUIDA: Yes, sir.
CHAIRMAN STRAIN: Okay. Is there a motion from the
Planning Commission for that recommendation of approval?
COMMISSIONER KOLFLAT: So moved.
CHAIRMAN STRAIN: Mr. Kolflat made that.
MR. YOV ANOVICH: The change to C as well, Mr. Chairman?
CHAIRMAN STRAIN: All the changes that were -- that you --
that we talked through that you came --
MR. YOV ANOVICH: C and D?
CHAIRMAN STRAIN : Yes. Those are the staff changes we've
already gone over. Those are the language changes we already
finished with. The only disputed language change that we didn't go
forward with was the one changing from two years to three years, and
so that would be the only one that we're not recommending for a
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change going forward.
Mr. Kolflat has recommended -- made a motion to recommend
approval as suggested. Is there a second?
COMMISSIONER ADELSTEIN: I'll second that.
CHAIRMAN STRAIN: Motion made by Mr. Kolflat, seconded
by Commissioner Adelstein.
Discussion?
(No response.)
CHAIRMAN STRAIN: Any discussion? All those in favor,
signify by saying aye.
COMMISSIONER KOLFLAT: Aye.
COMMISSIONER SCHIFFER: Aye.
COMMISSIONER CARON: Aye.
CHAIRMAN STRAIN: Aye.
COMMISSIONER ADELSTEIN: Aye.
COMMISSIONER MURRAY: Aye.
COMMISSIONER VIGLIOTTI: Aye.
CHAIRMAN STRAIN: Anybody opposed?
(No response.)
CHAIRMAN STRAIN: Okay. Motion carries, 7-0.
Ms. Fabacher?
MS. FABACHER: Yes, excuse me. I'd like to beg the
indulgence of the commission. Mary Devanes, staff with engineering
services, has come over because she, you know -- and she has that one
CHAIRMAN STRAIN: I know.
MS. FABACHER: -- PUD procedure with just the text change as
you requested.
CHAIRMAN STRAIN: I said at 3:45 that we would go into the
schedule. We're going to do that first. If this panel wants to continue
to listen to another issue after that, we will, but I said at 3:45 we'd go
into that. It's now 3:53, so I want to get into this other issue first.
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MS. FABACHER: All right.
MR. CASALANGUIDA: Thank you, Commissioners.
CHAIRMAN STRAIN: Thank you, Nick.
CHAIRMAN STRAIN: I'm assuming, Catherine, we'll start with
our brown sheets, and the first -- and we start with the little i. And I'd
like to go through these pages and find out exactly what's left for us to
discuss at our hearing that we're probably going to continue till
tomorrow at one o'clock. We may get to Ms. Devanes' thing today if
we still want to continue after we get this discussion done.
MS. FABACHER: Thank you.
CHAIRMAN STRAIN: Okay. The abbreviations, I'm assuming,
we're going to continue.
MS. FABACHER: Yes.
CHAIRMAN STRAIN: That's on pages I and 2.
Definitions? We've still got to do those, right?
MS. F ABACHER: Correct. Well, we dealt with passive, but we
still -- recreation, but we still have the lot width, the commercial
vehicles and the dock facilities to do.
CHAIRMAN STRAIN: And so passive recreation, which is on
little triple i, that one's done?
MS. F ABACHER: That's done.
CHAIRMAN STRAIN: How about iv? We've got to go
forward, but we've got to still do both of those, right?
MS. F ABACHER: Correct.
CHAIRMAN STRAIN: How about v? We've got to still do both
of those.
MS. FABACHER: No, actually we did them both already.
CHAIRMAN STRAIN: Oh, we did?
MS. FABACHER: Yes.
CHAIRMAN STRAIN: Hold on a second. Where am I at?
MS. FABACHER: Yes, with the residenc--
CHAIRMAN STRAIN: Oh, this was the--
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MS. FABACHER: Oh, you were on iv, I'm sorry. I turned to v.
I missed it. IV, yes -- well, we already said that. We have to do the
signs and we have to do the citation correction, but, yes, we've done
both of them on v.
CHAIRMAN STRAIN: Okay.
MS. F ABACHER: We still have the law enforcement, fire and
emergency management with Chief Page.
COMMISSIONER CARON: Which we said we'd do on the 7th.
MS. FABACHER: Correct, thank you. Thank you, Mrs. Caron.
CHAIRMAN STRAIN: Now, Bayshore?
MS. FABACHER: We were going to try and do that tomorrow;
do you think?
CHAIRMAN STRAIN: Well, I want to ask you about that.
MS. FABACHER: Oh.
CHAIRMAN STRAIN: Since these changes were submitted,
and there are only two pages of them, has anybody in county staff
reviewed those?
MS. FABACHER: Actually I had spoken to Susan Murray
Istenes, and she suggested we carry that one to September 7th. We
haven't -- staff really hadn't had time to -- they're major -- it's a
massive rewrite, and she just --
CHAIRMAN STRAIN: Well, it's two pages. But if you want to
continue it to --
MS. FABACHER: The 7th.
CHAIRMAN STRAIN: -- the 7th, I think that would give you
time to get together with the applicant --
MS. FABACHER: Exactly.
CHAIRMAN STRAIN: -- so we can get any -- I'd hate to have
you come here in total disagreement --
MS. FABACHER: Exactly.
CHAIRMAN STRAIN: -- and have to have us try to rewrite
something --
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MS. FABACHER: Exactly.
CHAIRMAN STRAIN: -- from this bench again.
MS. FABACHER: I agree. Thank you.
CHAIRMAN STRAIN: Okay. So the 7th will be for the -- will
you advise the people in Bayshore overlay that it will be the 7th?
MS. FABACHER: I've already spoken to Mr. Jackson.
CHAIRMAN STRAIN: Well, there's more people involved than
just him. Will you notify Mr. White and Mr. Fernandez?
MS. FABACHER: Oh. Well, yes, yes.
CHAIRMAN STRAIN: Okay. Number vii, the same way, that
will be the 7th.
MS. FABACHER: Right, correct.
And then the top of page, viii, 8, that's part of the Bayshore.
That's the administrative deviation that Mr. White and Mr. Fernandez
will be here for, so that will be the 7th.
CHAIRMAN STRAIN: Okay. And then Michelle Mosca's
issue?
MS. F ABACHER: Yeah. That's just that tiny little map change.
We haven't done that yet.
CHAIRMAN STRAIN: Okay.
MS. FABACHER: The zoning overlay, Mike DeRuntz and
Wayne Arnold. We need to do that.
CHAIRMAN STRAIN: Right.
MS. FABACHER: Inclusionary zoning amendment's been
withdrawn.
We approved the exotic veget -- or the permits to work in the
right-of-way . We did that on number II -- page II.
We've withdrawn, on page -- what's on page 87.
I'm now on page 12, xii, and we have withdrawn page 89.
CHAIRMAN STRAIN: Hold on -- yeah. Okay.
MS. FABACHER: Okay. All right. And I think we --
CHAIRMAN STRAIN: Okay.
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MS. FABACHER: -- have decided on page 8, Roman numeral
viii to come back with those --
CHAIRMAN STRAIN: Roman numeral 13, you mean, right?
MS. FABACHER: Yes. You're right, thank you. Well, you'll be
happy to know I've changed them to A, B, C, D, E and F.
CHAIRMAN STRAIN: That's very helpful. Thank you.
Okay. On Roman numeral 13, is that we -- is that the one -- we
have one of these we're coming back with. Is that -- I don't remember
which one.
MS. FABACHER: We said we were going to bring this item
back on the 7th. This is, once again, the stormwater. And we're still --
remember we referred that one to the EAC?
CHAIRMAN STRAIN: Yes.
COMMISSIONER MURRAY: Yeah. I thought you didn't have
enough time for the 7th.
CHAIRMAN STRAIN: No, no. It was going to the EAC on the
6th, and Barbara and Bill didn't think they could have it rewritten
based on any EAC recommendations by the 7th, so we suggested to
them that we would make sure this was the last one of our hearing for
the cycle, and that may be sometime after the 7th.
MS. FABACHER: Okay, all right.
CHAIRMAN STRAIN: We just have to make sure this is last.
MS. F ABACHER: Okay. All right. And then we finished page
95. I'm on xiv, page 95; we finished that one.
Then there's Mr. Stan Chrzanowski's -- haven't heard any of
those.
On the next page, we haven't heard any of those. May I ask a
question, Mr. Strain?
CHAIRMAN STRAIN: Sure.
MS. FABACHER: Did we say that if there were not going to be
-- if there were no questions before, I mean, does Stan need to come
back for this?
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CHAIRMAN STRAIN: I would hate to see him have to come
back. I know I've read it. I don't have any more questions. But I
mean, if he isn't here and there is a question, I don't know what to do
at that point. I guess we could postpone it till later in the day and ask
him to come down from developmental services.
MS. FABACHER: Okay. Because he's pretty busy. There was
one question from last time, I think, and it was unresolved, the
definition of house pad, and he has provided that for me when we hear
it.
CHAIRMAN STRAIN: Okay.
MS. FABACHER: Okay. So--
CHAIRMAN STRAIN: I would suggest he just watch it, and if
we have an issue that has got to be answered by him, we can wait on
that one issue and ask him to come down later in the day.
MS. FABACHER: Okay, great. Thank you. Same thing xvi,
page 101. Same thing on the next page, xvii, that's Chrzanowski.
Page xviii, that was withdrawn twice.
CHAIRMAN STRAIN: Okay.
MS. FABACHER: XIX on page 119, that's Mr. Pickworth.
CHAIRMAN STRAIN: Right.
MS. FABACHER: We still have him to do.
On the next page, 20, Roman numeral 20, the amendment on
page 123 has been withdrawn. And, of course, we've done the one on
page 127. You've recommended approval of that.
On the next page, x -- 21, page 129's been withdrawn.
Page 129 is Mike Sawyer. We haven't heard that a second time.
Same thing on the next page, 138, Mike Sawyer. And that was
the only one that there was really any questions on, the building
foundations, if you'll recall. And then Bruce McNall, that was the
palm trees around the wellsite. We haven't done that a second time.
Mr. Sawyer has withdrawn on page 147, or staff has withdrawn.
COMMISSIONER MURRAY: Wait. What happened to 12 --
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-43?
MS. FABACHER: One forty-three, that was the one that we still
have to hear. That was the one about spacing of palm trees around
wellsites.
COMMISSIONER MURRAY: Okay. That's what you just said,
I'm sorry.
MS. FABACHER: Right.
COMMISSIONER MURRAY: I'm sorry. It's a little too fast for
me.
MS. FABACHER: All right. So the one on page 147's been
withdrawn. The one by Mr. Sawyer on page 149 still needs to be
heard, and that's just relocating some requirements.
We still have not heard -- I'm on page xxiv, page 151, dock
facilities. Well, no. We approved that. I have to get that corrected
language back to you to review.
We have not heard the dock facilities.
CHAIRMAN STRAIN: Well, wait a minute. I don't know if
you're getting that language back to us to review. You're sending it to
us --
MS. FABACHER: That's what I meant.
CHAIRMAN STRAIN: -- for a -- for our information, but we're
not going to debate this.
MS. FABACHER: FYI. No, no. You're not -- no. You've
finished with your recommendation. I'm sorry. I misspoke.
CHAIRMAN STRAIN: So now we're on page 155, dock
facilities. What were you saying about that?
MS. FABACHER: We haven't done that one yet.
CHAIRMAN STRAIN: Okay.
MS. F ABACHER: And then we haven't heard the one on page
159, a second hearing on sea grass beds. That's the one about the --
making the site visit under discretion.
And then, of course, we have the color on page 161. We need to
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do that a second time.
Fences and walls, we haven't even looked at that the first time so
-- on page 163 . Well, you've looked at it, but we've provided new
language.
CHAIRMAN STRAIN: Right.
MS. FABACHER: You did have questions, I'm sorry. We did
look at it once and staff has re-revised it so -- you received that in your
packet.
Page 167 is the signage. We haven't heard that. That's another
staff member, Diana Compagnone. I think we had almost no
questions for her.
CHAIRMAN STRAIN: I agree.
MS. FABACHER: Okay. Next page is xxvii, 27. And on page
174, that's signs.
Next one, 176, signs. We haven't heard those, but they're pretty
easy.
Turn to the next page. On page 179, more signage. 181, more
sIgnage.
Turning the page to 29. And on page 182, we have more
signage. That's all fairly simple stuff, I believe.
Okay. And then we have on page 30, we've al-- we just
approved that one today for transportation. Same thing on the next
page, on I -- page 187 . We approved that one today.
Let's see. Yes, and we approved the one of the -- for the EAC on
page 193 . We've approved that one.
We have not heard -- had a second hearing on the stop work
orders for code. I'm -- I think Ms. Santini needs to be here for that
one, I believe, probably.
We have not heard, on page 197, the second time, after-the-fact
encroachments.
And then I think the last one on that, page 20 I, that one where
Mrs. Burgeson wasn't feeling well, so we're going to have to hear that
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one later.
CHAIRMAN STRAIN: Right.
MS. FABACHER: Okay. On page 35, we've withdrawn that
one.
On the next page, 36, section 10.02.03 on page 209, that's been
withdrawn.
On the next one, on page 215, we recommended approval today.
I'm on the next page, which is 37, which is page -- the
amendment on page 219. We've heard that explained. Tom Kuck
came to explain it. I think he answered all your letters but -- your
questions, but we haven't heard that yet.
TIS we've heard or finished with.
Then on the next page, on page 223, the COA, we heard that.
I'm on the next page, which is 39. And on page 225, Mr.
Tindall's amendment, we heard that.
Then there's Ms. Devanes' we haven't heard, but we might hear.
And then we haven't heard Mr. Bellows on the next page, xl. I
don't even know what that is. It's on 232, and those are the new -- to
replace the new PUD document with the matrix. We have not heard
that one.
And then the last one for transportation we did hear.
CHAIRMAN STRAIN: Thank you. Mr. Schiffer?
COMMISSIONER SCHIFFER: Just a quick point is, in the
revised -- Patrick's revision, he refers to that one landscape plan that's
been withdrawn as a method of deviation for landscape, all right.
MS. F ABACHER: The new one that hasn't even been passed
yet?
COMMISSIONER SCHIFFER: Correct. In other words, he's
referencing something that you've already withdrawn --
MS. FABACHER: Thank you.
COMMISSIONER SCHIFFER: -- just keep an eye out.
MS. FABACHER: Thank you, Mr. Schiffer.
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CHAIRMAN STRAIN: As far as tomorrow at one o'clock goes,
I think it's probably hard to expect the public to be here on too many
of these issues. We have a lot of issues that the staff can handle that
really didn't generate a lot of interest. Could we just start scheduling
those? Could you see that those get done --
MS. FABACHER: Yes, I will.
CHAIRMAN STRAIN: -- or lined up for tomorrow. Maybe
we'll just blow through all those so that will leave whatever public --
MS. F ABACHER: That would be great.
CHAIRMAN STRAIN: -- we have for our regular public
meeting next Thursday.
MS. FABACHER: That would be great.
CHAIRMAN STRAIN: Okay. And I'm willing to sit here
longer and listen to Ms. Devanes. How's about the rest of you?
COMMISSIONER VIGLIOTTI: She's here.
CHAIRMAN STRAIN: Good. Thank you for your patience. If
you could tell us what page you're on, we'll try to get there as well.
MS. DEV ANES: Thank you, Commissioners, I'm on page 229.
It's LDC amendment to section 10.02.13.F.
CHAIRMAN STRAIN: Okay.
MS. DEV ANES: I believe that the first hearing before the
Planning Commission you were not aware of the changes that had
been made after our DSAC hearing, and they were distributed to you
at that time. It's a change in the language. And I assume you have
reviewed it since, and it appears here.
CHAIRMAN STRAIN: Okay. Anybody have any questions?
(N 0 response.)
CHAIRMAN STRAIN: Much improved language. Thank you.
MS. DEV ANES: Thank you.
CHAIRMAN STRAIN: Hearing no questions -- any there any
questions from the massive audience that's there? Richard?
MR. YOV ANOVICH: I don't think so, but I can if you want me
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to.
CHAIRMAN STRAIN: No. It's okay. Your silence is golden.
Okay. With hearing no questions, then I'm assuming everybody's
satisfied with this?
COMMISSIONER SCHIFFER: Yes.
CHAIRMAN STRAIN: With that, is there a recommendation for
approval for section 10.02.13?
COMMISSIONER MURRAY: So moved.
COMMISSIONER VIGLIOTTI: (Raises hand.)
CHAIRMAN STRAIN: Motion made by Mr. Murray, seconded
by Mr. Vigliotti.
Any further discussion?
(No response.)
CHAIRMAN STRAIN: All those in favor, signify by saying
aye.
COMMISSIONER KOLFLAT: Aye.
COMMISSIONER SCHIFFER: Aye.
COMMISSIONER CARON: Aye.
CHAIRMAN STRAIN: Aye.
COMMISSIONER ADELSTEIN: Aye.
COMMISSIONER MURRAY: Aye.
COMMISSIONER VIGLIOTTI: Aye.
CHAIRMAN STRAIN: Motion carries, seven to nothing.
MS. DEV ANES: Thank you, Commissioners.
CHAIRMAN STRAIN: Thank you.
MS. DEV ANES: Thank you for staying longer. Appreciate it.
CHAIRMAN STRAIN: No problem. I just wanted to make sure
we got it all done. Appreciate it.
Okay. With that, this meeting -- do we need a motion to
continue?
We need a motion to continue to August 30th at one o'clock in
the afternoon in these chambers.
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COMMISSIONER ADELSTEIN: So moved.
COMMISSIONER MURRAY: Second.
CHAIRMAN STRAIN: Motion made by Commissioner
Adelstein, seconded by Commissioner Murray.
All in favor?
COMMISSIONER KOLFLAT: Aye.
COMMISSIONER SCHIFFER: Aye.
COMMISSIONER CARON: Aye.
CHAIRMAN STRAIN: Aye.
COMMISSIONER ADELSTEIN: Aye.
COMMISSIONER MURRAY: Aye.
COMMISSIONER VIGLIOTTI: Aye.
CHAIRMAN STRAIN: Anybody opposed?
(No response.)
CHAIRMAN STRAIN: Motion carries. Thank you.
* * * *
There being no further business for the good of the County, the
meeting was adjourned by order of the Chair at 4:08 p.m.
COLLIER COUNTY
PLANNING COMMISSION
MARK STRAIN, CHAIRMAN
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