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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 Page 1 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. Page 2 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 Page 3 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 Page 4 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 Page 5 August 29, 2006 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 ? Page 6 August 29, 2006 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? Page 7 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? Page 8 August 29, 2006 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. Page 9 August 29, 2006 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. Page 10 August 29, 2006 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. Page 11 August 29, 2006 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. Page 12 August 29, 2006 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. Page 13 August 29, 2006 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 Page 14 August 29, 2006 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. Page 15 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 Page 16 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 Page 1 7 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 Page 18 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. Page 19 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 Page 20 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 -- Page 21 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 Page 22 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 Page 23 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 Page 24 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 Page 25 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 -- Page 26 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 Page 28 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. Page 30 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. Page 32 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 Page 33 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 Page 34 August 29, 2006 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 Page 35 August 29, 2006 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 Page 36 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 Page 37 August 29, 2006 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. Page 38 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 Page 39 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 Page 40 August 29, 2006 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. Page 41 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 Page 42 August 29, 2006 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. Page 43 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 Page 44 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 Page 45 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 Page 46 August 29, 2006 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 Page 47 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 Page 48 August 29, 2006 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. Page 49 August 29, 2006 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, Page 50 August 29, 2006 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 Page 51 August 29, 2006 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 Page 52 August 29, 2006 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 Page 53 August 29, 2006 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 Page 54 August 29, 2006 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, Page 55 August 29, 2006 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, Page 56 August 29, 2006 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 Page 57 August 29, 2006 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 Page 58 August 29, 2006 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 Page 59 August 29, 2006 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. Page 60 August 29, 2006 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 Page 61 August 29, 2006 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 Page 62 August 29, 2006 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 Page 63 August 29, 2006 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 Page 64 August 29, 2006 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 Page 65 August 29, 2006 -- 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 Page 66 August 29, 2006 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 Page 67 August 29, 2006 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 Page 68 August 29, 2006 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. Page 69 August 29, 2006 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 Page 70 August 29, 2006 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 Page 71 August 29, 2006 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 Page 72 August 29, 2006 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 Page 73 August 29, 2006 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 Page 74 August 29, 2006 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? Page 75 August 29, 2006 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? Page 76 August 29, 2006 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 Page 77 August 29, 2006 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 Page 78 August 29, 2006 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 Page 79 August 29, 2006 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 Page 80 August 29, 2006 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 Page 81 August 29,2006 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, Page 82 August 29, 2006 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? Page 83 August 29, 2006 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 Page 84 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. Page 85 August 29, 2006 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 Page 86 August 29, 2006 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 Page 87 August 29, 2006 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. Page 88 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. Page 89 August 29, 2006 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. Page 90 August 29, 2006 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 Page 91 August 29, 2006 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. Page 92 August 29, 2006 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 Page 93 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? Page 94 August 29, 2006 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. Page 95 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. Page 96 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. Page 97 August 29, 2006 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.) Page 98 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. Page 99 August 29, 2006 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 Page 100 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-- Page 101 August 29, 2006 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 Page 102 August 29, 2006 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 Page 103 August 29, 2006 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. Page 104 August 29, 2006 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 Page 105 August 29, 2006 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 Page 106 August 29, 2006 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 Page 107 August 29, 2006 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. Page 108 August 29, 2006 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 Page 109 August 29, 2006 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? Page 110 August 29, 2006 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 Page 111 August 29, 2006 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-- Page 112 August 29, 2006 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 Page 113 August 29, 2006 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. Page 114 August 29, 2006 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 Page 115 August 29, 2006 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. Page 116 August 29, 2006 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 Page 11 7 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. Page 118 August 29, 2006 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 Page 119 August 29, 2006 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 Page 120 August 29, 2006 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 Page 121 August 29, 2006 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 Page 122 August 29, 2006 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 Page 123 August 29,2006 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 Page 124 August 29,2006 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 Page 125 August 29, 2006 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. Page 126 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 -- Page 127 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 Page 128 August 29, 2006 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 Page 129 August 29, 2006 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. Page 130 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 Page 131 August 29, 2006 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. Page 132 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. Page 133 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 Page 134 August 29, 2006 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? Page 135 August 29, 2006 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 -- Page 136 August 29, 2006 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 Page 137 August 29, 2006 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, Page 138 August 29, 2006 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? Page 139 August 29, 2006 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 Page 140 August 29, 2006 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 Page 141 August 29, 2006 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 Page 142 August 29,2006 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 Page 143 August 29, 2006 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. Page 144 August 29, 2006 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 Page 145 August 29, 2006 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 Page 146 August 29, 2006 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 Page 147 August 29, 2006 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 Page 148 August 29, 2006 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. Page 149 August 29, 2006 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 Page 150 August 29, 2006 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. Page 151 August 29, 2006 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 Page 152 August 29, 2006 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 Page 153 August 29, 2006 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 Page 154 August 29, 2006 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 Page 155 August 29, 2006 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 -- Page 156 August 29, 2006 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? Page 157 August 29, 2006 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? Page 158 August 29,2006 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 Page 159 August 29, 2006 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 -- Page 160 August 29, 2006 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 -- Page 161 August 29, 2006 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 Page 162 August 29, 2006 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 Page 163 August 29, 2006 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. Page 164 August 29, 2006 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 Page 165 August 29, 2006 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 Page 166 August 29, 2006 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 Page 167 August 29, 2006 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. Page 168 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 Page 169 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 Page 170 August 29, 2006 -- 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 Page 171 August 29, 2006 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. Page 1 72 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 Page 1 73 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.) Page 174 August 29, 2006 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 Page 175 August 29, 2006 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. Page 176 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 Page 178 August 29, 2006 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 Page 1 79 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? Page 180 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 Page 181 August 29, 2006 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. Page 182 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. Page 183 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. Page 184 August 29, 2006 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 -- Page 185 August 29, 2006 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 Page 186 August 29, 2006 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. Page 187 August 29, 2006 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. Page 188 August 29, 2006 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 Page 189 August 29, 2006 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 Page 190 August 29, 2006 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. Page 191 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 Page 192 August 29, 2006 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 Page 193 August 29, 2006 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. Page 194 August 29, 2006 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 Page 195 August 29, 2006 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 Page 196 August 29, 2006 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. Page 197 August 29, 2006 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 Page 198 August 29, 2006 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 Page 199 August 29, 2006 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 Page 200 August 29, 2006 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 Page 201 August 29, 2006 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. Page 202 August 29, 2006 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-- Page 203 August 29, 2006 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 -- Page 204 August 29, 2006 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. Page 205 August 29, 2006 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? Page 206 August 29, 2006 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 -- Page 207 August 29, 2006 -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 Page 208 August 29, 2006 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 Page 209 August 29, 2006 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. Page 210 August 29, 2006 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 Page 211 August 29, 2006 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. Page 212 August 29, 2006 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 Page 213