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CCPC Minutes 10/11/2006 LDC October 11, 2006 TRANSCRIPT OF THE LDC MEETING OF THE COLLIER COUNTY PLANNING COMMISSION Naples, Florida October 11, 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 Lindy Adelstein Donna Reed Caron Tor Kolflat Paul Midney ( absent) Robert Murray Brad Schiffer Russell Tuff (absent) Robert Vigliotti ALSO PRESENT: Marjorie Student-Stirling, Assistant County Attorney Barbara Burgeson, Environmental Services Joe Schmitt, Community Dev. and Env. Services Page 1 October 11, 2006 CHAIRMAN STRAIN: If everybody would please rise for the Pledge of Allegiance. (Pledge of Allegiance was recited in unison.) CHAIRMAN STRAIN: Thank you. Ms. Secretary, would you please do the roll call. COMMISSIONER CARON: Mr. Kolflat. COMMISSIONER KOLFLAT: Here. COMMISSIONER CARON: Mr. Schiffer. COMMISSIONER SCHIFFER: Here. COMMISSIONER CARON: Mr. Midney is absent. Ms. Caron is here. Mr. Strain. CHAIRMAN STRAIN: Here. COMMISSIONER CARON: Mr. Adelstein. COMMISSIONER ADELSTEIN: Here. COMMISSIONER CARON: Mr. Murray. COMMISSIONER MURRAY: Here. COMMISSIONER CARON: Mr. Vigliotti. COMMISSIONER VIGLIOTTI: Here. COMMISSIONER CARON: And Mr. Tuff is absent. CHAIRMAN STRAIN: Okay. We have a -- I want to kind of walk everybody through the process we're going to go through this morning, because it's a little mixed up. Last meeting we were told that there needed to be some clarification of our vote on the stormwater and preserves issue. And we scheduled that and continued that till 8: 30 this morning. So that will be the first thing that we discuss. I have done a lot of research on that trying to help us get through it. So I'll try to walk everybody through at least what I found. After that, we're going to be moving into the EAR-based amendments for the adoption hearing. They're scheduled for two days right now. I think we're going to have a pretty intense two days with Page 2 October 11, 2006 those. But that will occur. And the first thing that will happen is the CCME. Of the elements, we're going to do the environmental element firs t. And then the other issue I'd like to bring up, last week I failed to remember that we needed to vote for officers on this board. So I'd like to get that housekeeping matter out of the way right now, if that's okay with the board. So the first thing then, if -- then we'll go right into the finish of the LDC amendments. The first thing is we need a nomination for officers for the upcoming year for the -- Mr. Murray? COMMISSIONER MURRAY: I would nominate the current officers as returning to the chair for -- or returning to their positions for the following year. That would be the chair, the secretary and the vice chair. CHAIRMAN STRAIN: Thank you, Mr. Murray. Is there a second? COMMISSIONER SCHIFFER: Second. COMMISSIONER VIGLIOTTI: Second. CHAIRMAN STRAIN: Mr. Schiffer seconded it. Any discussion? (No response.) CHAIRMAN STRAIN: All those in favor, signify by saying aye. COMMISSIONER KOLFLAT: Aye. COMMISSIONER SCHIFFER: Aye. COMMISSIONER CARON: Aye. COMMISSIONER ADELSTEIN: Aye. COMMISSIONER MURRAY: Aye. COMMISSIONER VIGLIOTTI: Aye. CHAIRMAN STRAIN: Aye. Anybody opposed? Page 3 October 11, 2006 (No response.) CHAIRMAN STRAIN: Thank you all very much. I certainly appreciate it. It's been a good challenging year, and we're going to have a challenging day and another challenging year. So with that, let's move into the first item on today's agenda, which is the LDC amendments. And I'm not sure if any of the commissioners would like to comment, but I can tell you, I spent a good almost three hours last night going back and pulling records and trying to figure out how we got here today. If you'd like, I'll share that information with you all, and then we can move into the meeting. Last week, if you recall, Mr. Klatzkow suggested that we reclarify our position on the stormwater and preserves issue that we had discussed in August -- we had actually voted on it on August 29th. And then on the 5th -- what was it, the 7th of September, there was new information presented -- or update, let's say of the EAC. And since then, Bruce Layman had sent an e-mail out, or some requests out, questioning what actually was voted on. And I've read his e-mail in detail and I've gone through the references that he cited in his e-mail to try to understand who's right or wrong or what we need to do. Well, I went back and -- the minutes from the 29th of August were pretty clear. I shouldn't say clear in the sense they were all wrapped up in a nice, neat little package, but if you read the entire 20 pages or so that pertain to this issue, the item that is in question seemed to be already voted on. And it says that the recommendation was to forward to the BCC with a recommendation that this LDC amendment was not needed to the extent that it's written, that it be limited to allowing discharges into the existing wetlands as shown by hydric soils and corresponding biology, and that those discharges would prove to be a benefit to those preserves. There was a lot of discussion by of staff. Mr. Lorenz says that Page 4 October 11, 2006 from the motion they understand they're to rewrite it to simply allow the discharge of stormwater into wetland systems if hydric soils and existing hydrology would support it. We went into quite lengthy discussions talking about falling into some of the uplands and things like that. And then the last summation, it says -- and I want to do this, says, I think you're all going to do -- 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. Well, that's actually what staff attempted to do. But apparently, the way they attempted it was to elaborate on hydric and hydrology and the manner in which some of those applied as it went to the EAC for approval. We also did in our meeting state that the motion was simply to take 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 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. So based on how that meeting was left, I think the panel could have decided to leave the vote as it was, or could have listened to the revised language and decided to update their vote or modify their vote based on the presentation of that day. I didn't get the benefit of that presentation that day. That was the one meeting I missed this year. So I don't know what was presented. I went back through and reviewed the various changes to the preserve language, and I tried to see what staff had done that may be objectionable or inconsistent to what we had asked them to do. Page 5 October 11, 2006 Well, they left the paragraph in that we asked them to leave in. But in order to define the application of waters into hydric soils based on hydrology, they went into a series of explanations for them. And honestly, their explanations from my reading don't seem to differ much from what I thought was the intent. It certainly got into much more science, but I think the science has to get into to define the issue. So with that kind of history, and I know Barbara wants to speak, and I'm sure we have some public speakers -- and I'm not trying to take a side on this for Mr. Layman and for the staff, I'm simply trying to understand what was done so we know what to do today. So that's the bulk of what I have come up with. And Barbara, do you have some comments? MS. BURGESON: Yes. For the record, Barbara Burgeson with Environmental Services. I just want to make one statement. When we went back to the office, Bill and Robert Wiley and I -- Bill Lorenz, Robert Wiley and I and some other staff sat down and really attempted desperately to get one paragraph together to facilitate the discussions of the meeting and the motion. And we just were not able to do it. That's why it was expanded a little bit longer than we had even anticipated we might be able to do it. So if you're looking at why it became lengthier than you might have expected, we just couldn't keep it to a simple paragraph. CHAIRMAN STRAIN: What I'd like to do is walk through the -- you actually added paragraphs A, B, C, D and E. And I want to get a synopsis of the reasoning for including those paragraphs. And hear me out. If you think I'm wrong in my understanding of these, let me know. Double, little I A talks about treated stormwater shall be allowed only in preserves that are comprised of jurisdictional wetlands, uplands comprised solely of hydric soils, as mapped and so forth. I think the hydric soils issue is one that we discussed at the Planning Page 6 October 11, 2006 Commission level with direction. You put it into an A paragraph to define it. B, stormwater shall not be discharged into upland preserves with listed species. In the discussion that ensued after our -- during the discussion of our motion that issue was brought up, and I find it clear we didn't want to harm listed species. Then you went into number C, where it gets into a little refinement of how the science goes. But I'm wondering, C simply says stormwater entering the preserves must be treated to meet the water quality volumetric requirements of Section 521A of the basic review. And it goes into the resource permit. Rather than restate something that's a requirement, was there a need to go that far with C, or isn't C a given, since you have to have a permit anyway? MS. BURGESON: I think that this guarantees that that's going to be accomplished. And that in some cases if there's not a stormwater permit associated with that preserve; for instance, if it's just a hydric soils and not a wetland and you aren't required to get an ERP and a stormwater permit, you wouldn't be relying on their permit review to ensure that's what happens. This is just making sure that in those cases where the agency might not be reviewing it, that it's at least in our LDC for protection. CHAIRMAN STRAIN: Doesn't the staff -- anything under 40 acres, isn't it staff review? MS. BURGESON: Yes, it is. CHAIRMAN STRAIN: Okay. Does staffhave a code currently that requires a review for under 40 acres, or are you saying that's optional for staff to review? MS. BURGESON: I think that's -- and I probably need to rely on one of the engineers to answer that, because there's a specific interlocal agreement between South Florida Water Management District and Collier County for our engineers to review those projects Page 7 October 11, 2006 under 40 acres that have no wetlands. So we're looking at projects that don't have wetlands and may not -- sorry, Stan. CHAIRMAN STRAIN: But Barbara, if you're going to be -- if this Section Hallows stormwater to go into wetland preserves, then it's got to be then acknowledged that they have wetlands. So wouldn't they then be required to trigger the permitting that's required by Collier County? So C is moot in the sense that it's going to happen if it's required anyway? MS. BURGESON: Actually not, because we're also in that paragraph -- paragraph A, we're allowing that stormwater can go into upland soils that are hydric, that are mapped as hydric soils. Those are not actually jurisdictionally wetland soils. Those are non-jurisdictional soils and would not be claimed by South Florida Water Management District. But they are hydric in nature and would CHAIRMAN STRAIN: Well, then let's back up because-- MS. BURGESON: If it's not necessary, if there's a way that staff -- and if Stan can say that staff can accomplish this without that paragraph, I have no problem striking that paragraph. CHAIRMAN STRAIN: Let me back up to something. If you have an uplands habitat, would that be -- of course, would that biology of the habitat correspond to a wetlands biology? MS. BURGESON: If we're going to allow stormwater into it, it would be hydric, then yes, it should and would have those wetland characteristics. CHAIRMAN STRAIN: Okay, so the criteria that the Planning Commission previously said to apply was existing wetlands as shown by hydric soils and corresponding biology. MS. BURGESON: Right. CHAIRMAN STRAIN: And now you're saying the paragraph that you entered could have pertained to just uplands, provided they had hydric soils. Page 8 October 11, 2006 MS. BURGESON: Well, the uplands that are -- as the language is written here, uplands comprised solely of hydric soils. We wanted to make sure that only those uplands that are solely comprised of hydric soils which have the wetland characteristics would also be allowed to have stormwater. CHAIRMAN STRAIN: Okay. But if they're uplands comprised solely of hydric soils, would they be wetlands? MS. BURGESON: Not by South Florida Water Management-- not by the jurisdictional determinations of South Florida Water Management District in all cases. They may find those to be and they may not. CHAIRMAN STRAIN: Would the county consider them existing wetlands? MS. BURGESON: We would not legally, because we defer to South Florida Water Management District's definition of wetlands. So legally Collier County's wetlands are what South Florida Water Management District maps out as jurisdictional. CHAIRMAN STRAIN: So then the language that you added, uplands comprised solely of hydric soils, is inconsistent with the direction provided by the CCPC in their August 29th meeting. MS. BURGESON: I thought it was consistent with your direction, but as you're stating right now, if you're -- CHAIRMAN STRAIN: I'm just reading from the minutes of the 29th. And the minutes say allowing discharges into existing wetlands as shown by hydric soils and corresponding biology. That was the criteria that I thought you'd expand upon. MS. BURGESON: Right, I would have to agree with you, with what you're saying right now, that I went a little further than your direction. And I didn't mean to. I thought that was your direction to do both. And if you read it really clearly, it was to do wetlands, and I expanded on that. CHAIRMAN STRAIN: I am not trying to tell you you're wrong Page 9 October 11, 2006 in that regard. If you feel it need to be protected in that manner, then that's your expertise. All I'm trying to find out is if the concerns that some members of the public have said, that our direction wasn't followed, therefore our vote was inconsistent with the final language, that's what I'm trying to find out so I can see the extent of what we need to do in regards to getting this clarified with another vote today. MS. BURGESON: I'm going to make sure that we followed your directions as you read them just now. We should probably strike uplands and then we could include wetlands and hydric soils, or wetlands with hydric soils would probably be the better way to -- CHAIRMAN STRAIN: Well, we'll go through the whole day and we'll hopefully render at least a recommendation to you when the day's over. On the other item, Item D that you added, when stormwater is allowed in preserves the associated stormwater facilities, such as berms, swales and outfall structures may be located -- and it goes on with some language. I can't see the harm in that. I think it's a practical application. So I don't think that is -- the intention of that is anything negative towards the motion we made. And E, where stormwater is allowed in a preserve, a preserve management plan is required, must address potential maintenance problems and shall also provide for a monitoring program. I think that's just a further clarification of how that area is supposed to be handled, once the water is allowed in there. So overall, from what was directed to what we ended up with in this September 1 draft, my reading right now is just the question with Item A. And we'll see how that comes out in discussion today. Okay, are there any comments from the Planning Commission? Any recollections or comments from the day I wasn't here that you might want to add to that? (N 0 response.)t Page 10 October 11, 2006 CHAIRMAN STRAIN: Barbara, did you have anything before we start asking for speakers? MS. BURGESON: No, I don't. CHAIRMAN STRAIN: Do we have any public speakers? I don't know who's -- MS. BURGESON: We have, looks like six public speakers. COMMISSIONER MURRAY: Just if I may? CHAIRMAN STRAIN: Sure. COMMISSIONER MURRAY: My recollection, and of course it's vague, it's not as good as I'd like it to be. But my recollection tells me that I know my concern and I thought that of fellow commissioners was that we didn't want non-hydric soil preserves to be infiltrated or to be impacted by waters. We were concerned for the species, et cetera. And in looking at C, I'm not sure I think it's a bad thing at all, but that's to remain for conversation. But I think we're on target pretty much with what has been said here, and the minutes seem to bear that out. So if that helps by making that statement. CHAIRMAN STRAIN: So far, Mr. Murray, I think your assessment's correct. But I mean, I'm sure there's little nuances to the scientific language that may be at question. So we'll have our speakers and try to figure it all out. Could you call the first speaker. MS. BURGESON: Yes, actually, the first speaker slip has two names on it. Jos -- and I'm not going to try the last name, and Doug Lewis. CHAIRMAN STRAIN: Now, this is the third, fourth, I don't know how many times we've heard this issue, so I've got to ask that you try to limit your comments today to five minutes, and that you try not to be redundant in what you're going to say. Thank you. MS. BURGESON: Is this -- just for clarification, is this Page 11 October 11, 2006 discussion going to be limited to what the September 1 version -- whether that was a correct write -- whether that was correctly written by your direction, or is this just going to be a broad discussion open on the entire amendment? CHAIRMAN STRAIN: I think we need to limit the discussion to a correction, change, modification or language that's in the September 1 version, because that's the version we have that we're reviewing. That is the version I believe was staffs response to our direction at the CCPC, and correctly so, as Mr. Layman pointed out in his e-mail. We didn't vote on that version, we voted on the version that we had on August 29th. So we're here today to make a decision on if we want to change our vote from August 29th, accept this September 1 st version as the version that is a response to our August 29th direction, and then vote on that yes or no. I think that would summarize today's actions. MR. DE LESTANG: Good morning. CHAIRMAN STRAIN: Identify yourself, please. MR. DE LESTANG: Yes. My name is Jos De Lestang with Gulfshore Engineering. I'm here today again, I will keep it very, very brief. I think I spoke to the board before on a number of occasions discussing various aspects of water management systems which I felt were important for them to have as a background. And what I have to offer today is something at one time very simple and maybe a little complex, if you look at it. But the simplicity of it is that concerns the fact that we should not, as engineers, as representing engineering -- the engineering community out there in general, I still have a problem with any language that's going to emerge out of this effort that basically intends to tell us that we cannot have stormwater into any part of a system, any part of a preserve, any part of -- any part of a surface water management system. We can certainly treat water, we can certainly provide more Page 12 October 11, 2006 BMPs, we can certainly do all of these things, but we should not try to codify something that's almost impossible for us to do. And I think that the language that emerges out of this should reflect that. If there needs to be more BMPs because we have -- because we have areas that are more sensitive, so be it. If there needs to be more water quality treatment, so be it. But how are we going to separate areas of preserves from the rest of the site? As I've explained before, this is -- we are trying to do some hydrology compartmentalization, and it doesn't happen. And it cannot happen unless we have pumps. It's very difficult. And pumps are not allowed. You need special systems to do that. So my view of this is that the staff ought to have very simple language. This should be very simple language from an engineering standpoint, something that we can design to and achieve the aims of everybody within what they want to have, which is protection of sensitive areas of a site. This should simply say, to me, should simply say there will be no direct discharge of stormwater in preserves. There will be none. And as warranted by circumstances, environmental staff may request additional water quality treatment or BMPs to protect sensitive areas of a site. That will take care of everything, just about everything you need to do. Because in specific cases they will request different BMPs which we can present, engineering staff of the county can vouch for and see if it's real, and we can keep this on a working basis so we can have language that -- because this language has consequences. We have to design systems as a consequence of this language. How are we going to prevent stormwater from entering preserves? We've been through that. It is impossible for us to do. That's the only issue I have, and it's rather fundamental, but I think it has to be addressed, because otherwise we're putting into law something that we as engineers are going to have a very hard time Page 13 October 11, 2006 delivering on. Thank you. CHAIRMAN STRAIN: Your comment that we shouldn't allow any discharges into preserves, is that what you said? MR. DE LESTANG: No, this is very precise. No direct discharge. And this means a lot to engineers who design. And we've had discussions, informal discussions, even with county staff about that. And other professionals cannot be asked to weigh in on that. What it means essentially is that there should not be any direct discharge on the -- for stormwater leaving your site, leaving your parking lot, leaving your roofs, leaving -- on the way to a treatment facility should not be meandering through your preserve, in other words. It should find a direct path to the stormwater treatment area, such as your lake, your detention areas, what have you. And this direct path is also the path the water from the preserve takes to your treatment. The only time you will have mixing of water is if you have high enough water levels in your system where you have a large storm, where you have water backflowing to the system. But by then hopefully it will have been either treated or protected by additional BMPs which we would have requested or would have implemented into the design. That's as much protection as we can really give these areas if they are going to be part of a water management system. Because they have to be connected. Both ends of the pipe allow water to come in and come out. The only thing we have working for us is the difference in elevation from both ends of the site. And that works for a lot, but it doesn't work for everything, and it's not an absolute. Which is what disturbs me ab~ut the language there will be no stormwater discharge. How? We can't prevent that. CHAIRMAN STRAIN: If someone creates a project with stormwater being initially discharged into a water quality lake for water quality treatment, the outfall for that lake then goes into a preserve. That is acceptable from the comments that you made? Page 14 October 11, 2006 MR. DE LESTANG: Two things: One, if we have an outfall, it means it's outside our project, you know, which is basically outside our control. But just for the record, if you've left a water management system and you're outfalling, you've already had the water quality treatment that was required by state or maybe even a higher water quality treatment which the county may require. So yes, you will have treated water in that case. CHAIRMAN STRAIN: Then how are you going to assess the hydrology of the existing wetlands that are being modified by the outfall that now goes into those from the water treatment lake? MR. DE LEST ANG: Well, the way you address the hydrology of the systems that are within an area -- a surface water management system is by correctly assessing either the hydroperiods, if it's a big enough system, or certainly correctly assessing the high water wet season, which ends up being what we call the control elevation. And this makes a determination of where your water levels are going to be on a regular basis during the season, which is when most of the hydrology really kicks in. And this is the determination that is made by environmental folks in conjunction with engineers, based on a host of reasons: Soil conditions, existing surface water tables, before the system was built. So that you can maintain on a pre versus post conditions so that you can maintain those conditions. CHAIRMAN STRAIN: So if the hydrology was not a wetlands hydrology but you had an uplands situation, you still see this water outfalling into the uplands and potentially gopher tortoise habitat or others as an acceptable solution? MR. DE LEST ANG: First of all, let's again back up. If we have upland habitat, which is what we're talking about, or here in Collier County we have those hydric habitats that may be hydric and sometimes uplands, as somebody just described. That happens. Page 15 October 11, 2006 But that area will by design, almost always by design, be higher, the surface ground, higher than the lake treatment, which is the first source of treatment. So you're going to really have water backflowing into these areas when you have stages high enough in your lake. But in the meantime, this whole system will fluctuate based on a control surface elevation, which is probably going to be below grade in those cases. So yes, you're going to have fluctuations, you're going to have water entering those preserves. Those preserves are nothing more from an engineering standpoint, for us, they're nothing more than areas of open space of particular significance, but they are open space areas. They're open space wet uplands that have been parceled out because they have either specific vegetation characteristics or specific wildlife characteristics. But from a hydrology standpoint, they have to behave in concert with the rest of the site. So it would make no difference. CHAIRMAN STRAIN: Okay, thank you. Next speaker, please. MR. LEWIS: Good morning, my name is Doug Lewis and I'm an attorney with the law firm of Roetzel and Andress. I'm representing our client, Bonita Bay Group on the proposed stormwater amendment, or should I say the proposed stormwater amendments, being the September 1 st, '06 version and September 9th, '06 version, which I understand that staff is looking to bring before the BCC. We have some very real concerns about how the stormwater amendment has been handled after the August 29th, '06 Planning Commission meeting. I'll slow down. By way of background, at the August 29th, '06 meeting, the Planning Commission meeting, in determining if the current system has, quote, proven to be not that greatly broken, end quote, the CCP rej ected the August 22nd, '06 version of the stormwater amendment presented by staff at that meeting and directed staff to, quote, take the old paragraph and put it back in and then clarify the issues we spoke about, Pages 38 and 39 of the transcripts of the meeting on August Page 16 October 11, 2006 29th. This complete rewrite of the stormwater amendment was to be heard by the EAC on September 6th, 2006 and DSAC later in the day on September 6th, 2006 and then brought back before the Planning Commission on September 7th, '06, for formal recommendation to the BCC. Members of the community in my office received the September 1 edit shortly before, a day before the EAC meeting. The legal basis for having a formal recommendation by the Planning Commission on this rewrite of the stormwater amendments was stated by Mr. Klatzkow at the August 29th meeting, quote, I'm suggesting that the public doesn't really have an opportunity to 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, end quote. Commissioner Strain agreed and said, quote, now as far as our motion goes, Mr. Klatzkow, we made a motion, it was voted and recommended, subj ect. Then you brought up this issue, the issue being the issue of the opportunity for the public to have discussion, recommendation to the Board of County Commissioners. We would definitely now want to defer to hear the revised language. Again, speaking on the need for a Planning Commission recommendation to the BCC on the rewrite, Commissioner Strain said, quote, so the motion's going to be moot by the time we review the 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 -- again, the motion that will come in the future after we hear the revised language. September 7th, the Collier County Planning Commission to my surprise did not make a formal recommendation on the revised stormwater amendment, and to date no such formal recommendation has been made by the Planning Commission. On September 21st, the agenda that was published said that the Page 1 7 October 11, 2006 Planning Commission would consider this item. We were at the September 21st meeting. There was no recommendation on the 9/1 or the 9/6 edit. On October 5th, Mr. Klatzkow of the County Attorney's office advised that this should be reconsidered and the recommendation should be made to the Board of County Commissioners and the meeting date was set for today. Pursuant to Section 10.03.05A.l of the Land Development Code, quote, notice of the public hearing, key word, on the proposed amendment has been given to the citizens of Collier County by publication of a notice of the hearing in a newspaper of general circulation in the county at least 15 days in advance of the public hearing. The decision to hold this hearing today was made on October 5th. We -- as far as I'm aware, I've made a formal request for the publication on -- to the public on the item of the stormwater amendment. I'm not aware of any public notice 15 days in advance of this hearing that's been given. Based on the record, the August 29th direction to staff by the Planning Commission was to keep the old paragraph and then add a paragraph to clarify the code to permit discharges. Now again, looking at the record, this was a very confusing motion. There were some restatements of the motion. There was a statement by Bill Lorenz, which stated that his interpretation was that we were to permit discharge where hydric soils and existing hydrology -- and I'll let the experts talk a little bit about what it means, where existing hydrology, where it was wet before, we're going to allow it to be wet again, we're not going to separate systems, which supports those in question about the scope of the motion. What we ended up with at the end of the day on the September 1 edit was really a two-page rewrite of the code. It went well beyond the direction given to staff. Page 18 October 11,2006 Given this history, primarily number one, it's our position that there were severe procedural flaws in moving this forward. To date the Collier County Planning Commission has not made a formal recommendation on either the 9/1 or the 9/6 edit. And procedurally, given the 15-day notice requirement, cannot do so today. Secondarily, as noted by our prior expert, there are a lot of unintended consequences in terms of how to design the system. And there are some very real issues. There was a big deviation that occurred on August 29th. There had been a lot of work that had gone into the August 29th edit. I don't think the development community thought that it was perfect in its form, but what we have today is a very big departure from what we had on August 29th. Given this, we think that there's a great need for a thorough exchange of ideas with environmentalists. We want to make sure that we address all of these issues on a scientific basis, which we feel, based on the 9/1 edit and the 9/6 edit has not occurred to date. Both of these points suggest moving this item out to another cycle. However, again, there may be some other considerations, but our preference would be to address this properly in an adequate form. CHAIRMAN STRAIN: Thank you. Before you finish, I've got some questions of legal staff, obviously. If there is a notice problem, we want to resolve that, Margie, so can you tell us what your thoughts are on that? MS. STUDENT-STIRLING: Unfortunately I don't have the record before me and I haven't studied the record. So it's your contention that because -- would you again -- could you just state the -- I was trying to follow, but would you state the procedural -- there were meetings on the 1 st and the 6th; is that correct? CHAIRMAN STRAIN: Last Thursday at our regular Planning Commission meeting, Mr. Klatzkow notified us that there's been some question as to the motion or where the Planning Commission stood on Page 19 October 11, 2006 the stormwater and preserves in regards to the public inquiries. So he said that the best thing we could do would be to clarify the issue, and he suggested doing it at our next meeting. I suggested our next meeting is the 11 th, and he said that would work. So that's what we scheduled it for, this morning at 8:30. We continued it -- at that meeting we continued last week's continuation of the prior continuations of the LDC amendments to this week's meeting. Last week's continuation, how we got there last week was for two items: The fire service, essential services issue, and the deviation issue. They were the last two items left. We didn't know about this item coming up until Mr. Klatzkow introduced it at the end of the LDC continuation last week before we closed the meeting. Then he said that this item existed as a -- we needed a clarification on it, and he suggested we should do that and we would schedule it for our next meeting. Well, at the time we had meetings every week. MS. STUDENT-STIRLING: Right. CHAIRMAN STRAIN: So we asked him to reschedule it for this week and he said yes, and we did. MS. STUDENT-STIRLING: And did he state at that time that there was any notice problem in so doing? CHAIRMAN STRAIN: No, he did not. I don't think -- I can't recall that. Does anybody else recall it? COMMISSIONER MURRAY: No. CHAIRMAN STRAIN: Ifhe did, I don't recall it, Margie. And I don't -- this is an important issue. It will affect thousands of acres possibly. And I certainly don't want to put something forward that's going to end up causing more confusion and more problems with the BCC. MS. STUDENT-STIRLING: This is what I would suggest. I would suggest that you take other speakers, and I'm going to endeavor to reach Mr. Klatzkow, since -- and, you know, find out his position Page 20 October 11, 2006 on this and discuss it with him, and then I will report back. But you can be taking other speakers while I attempt to do that. CHAIRMAN STRAIN: Okay. Thank you for pointing it out to us. MR. LEWIS: Sure. For the record, as soon as I learned of this meeting today, I communicated with Catherine Fabacher and also Mr. Klatzkow's office. CHAIRMAN STRAIN: Whatever we do, we want it done right, we want it done according to procedure. So we will wait to get the reading from the county attorney. Thank you. Next speaker, Barbara? MS. BURGESON: Next speaker is Bob Mulhere. And after Bob, Bruce Layman. MR. MULHERE: Good morning. For the record, Bob Mulhere, here this morning representing myself as a professional involved in the design of development projects -- CHAIRMAN STRAIN: Bob? MR. MULHERE: -- and with some concern related to this matter. CHAIRMAN STRAIN: I notice the gentleman ahead of you told us who he's representing. Is that now a requirement, just so I know? MR. MULHERE: Well, I don't know if it's formally a requirement. I did listen to the BCC meeting yesterday where they had some discussion, there was concerns about people not disclosing who they represented. Makes sense. There is a section on the form that you fill out that says representing, and there's a blank there. I assume that would need to be filled out. CHAIRMAN STRAIN: I never asked anybody, because I didn't know it was a requirement, so that's why I'm asking you if you know MR. MULHERE: I think if it isn't already, it will be. COMMISSIONER CARON: I think the direction yesterday for Page 21 October 11, 2006 the BCC was that it should be. CHAIRMAN STRAIN: Okay. Well, I didn't know that, and I'm glad someone informed me. Mr. Kolflat, and then-- COMMISSIONER KOLFLA T: That was a result of our last meeting when one of the representatives would not disclose who they represented. It had caused quite a consternation from one of the members of the public who appeared before us and that said they should do it, and as a lobbyist recorded it in the clerk's office. CHAIRMAN STRAIN: I wanted to make sure we're following proper procedure. MR. LEWIS: Mr. Strain, Doug Lewis with Roetzel and Andress for the record. The current lobbying ordinance does not require that when we appear before the Board of County Commissioners that a registered lobbyist specifically identify which client they are appearing before on a particular matter. It's not required by the lobbying ordinance. Further, pursuant to the professional rules of conduct under the Florida Bar, a member of the bar has an attorney/client privilege duty. I suspect at the BCC there was a discussion yesterday, I think the county attorney's office is looking at the case law and determining whether or not the ordinance can be amended. But my understanding, based on discussions with Mr. Klatzkow, also discussions of public record yesterday, there is no current requirement in the ordinance. There's some discussion about modifying that, although the county attorney's office is considering the implication on attorney/client privilege. CHAIRMAN STRAIN: Thank you. And when Ms. Student gets back, I have another question for her, just so we know legally if we can demand it or we could just simply ask, and if they don't -- if somebody doesn't want to, then they don't have to be pursued any further. Page 22 October 11, 2006 Go ahead. I'm sorry, Mr. Mulhere. MR. MULHERE: No, that's okay. Thank you. I just wanted to bring a couple of matters to your attention, because I think that we have some significant concerns and problems associated with the staff recommended language September 1 st, 2006. And I'm not a civil engineer and I'm not an ecologist, I'm a planner by profession, so I would disclose that first. However, I have talked to a number of civil engineers and ecologists who are involved in preparing stormwater plans, as well as submitting environmental impact statements, in the case of the ecologists, to the county. And I understand the purpose and intent primarily being to protect the native -- the naturally occurring native vegetation, as well as to provide protection for any listed species. And I think that that is not mutually exclusive with some revisions to this language. That is, that you can potentially also design a system that allows for treated stormwater into preserves, including some upland preserves, and not have a negative impact on either the naturally occurring native vegetation or the listed species. And I wanted to call your attention to the language that is in the EAR-based amendments which have not been heard by the Board of County Commissioners yet. I think that's slated for a January time frame for adoption. They have been heard at transmittal. CHAIRMAN STRAIN: And they will be heard when we finish with this today. MR. MULHERE: Correct. So it's somewhat timely. The language in 6.1.2.5B, which is -- I think it's -- I might be paraphrasing, but allowable uses in preserves, probably similar to the title of this section of the LDC -- states receipt of treated stormwater discharge where such use, including conveyance, treatment and discharge structures does not result in any adverse impact on naturally occurring native vegetation, as set forth in the LDC. Again, we might be to some degree getting the chicken before the Page 23 October 11, 2006 egg, since the board has not adopted the EAR-based amendments. And along the lines of the suggestion previously made, it certainly would be feasible to continue this amendment to another cycle, allowing for more public discourse and perhaps allowing for an amendment that does address both sides of the issue. We're talking about a relatively short period of time. Maybe six or seven months this could be brought back to you, after the EAR-based amendments have been adopted. And there are other aspects of the EAR-based amendments that might affect this, too, dealing with other issues related to stormwater and also related to the creation of comprehensive stormwater drainage basins. Having said that, you know, I recognize that may not be your pleasure to continue this item, although we think it's appropriate, I did want to mention a couple specifics. I'm a member of the Development Services Advisory Committee and the sub-committee that looks at land development regulations. I'm not speaking on behalf of the development services advisory committee, but I did attend the meetings where this issue was discussed, as well as the sub-committee meetings. And I don't know if you have before you the -- and hopefully you do, a one-sheet summary of the DSAC recommendations. The DSAC recommended that in Paragraph A, ii-a, on the second page of the amendment, which reads treated stormwater shall be allowed only in preserves that are comprised of jurisdictional wetlands, uplands comprised solely of hydric soils. And then it goes on to the source that the Collier County -- the soils survey of Collier County. The recommendation of DSAC was to strike through the word solely so that it would read comprised of hydric soils, and to add some language that would say and/or hydrophilic vegetation in association with a wetland. Page 24 October 11, 2006 This is overly restrictive and does not need to be so restrictive. Of course the staff comment is that staff evaluated the proposed change and chose not to do this because comprised of is not an exclusive phrase but just inclusive. And the intent is to limit the stormwater solely to these mapped soil tests. Well, we understand that. And our point, my point, the DSAC's point, was that it's overly restrictive and doesn't need to be. It doesn't necessarily follow that there will be a negative impact on those uplands that may not be solely comprised of hydric soils as mapped in this source. You may have hydric vegetation. And if there is a concern, I would suggest that you provide for the opportunity to seek out a consultation with state and federal jurisdictional agencies, if necessary, where it can be demonstrated to the satisfaction of staff that there are no negative impacts. But solely precluding that I think goes too far. And if I could just perhaps paint a picture. You have a fairly large preserve, 100 acres, 200 acres that is mostly wetlands, jurisdictional wetlands, and you will discharge treated stormwater into those wetlands because there is a beneficial purpose associated with that. I don't know -- and I hope everyone understands we're talking about a beneficial purpose here to rehydrate those wetlands. And within that 100 or 200 acres you have some isolated uplands that may or may not consist solely of hydric soils. And it has not been demonstrated that there will always be a negative impact associated with a temporary inundation of stormwater on those uplands, whether or not they are solely comprised of hydric soils. Probably depends on the design, probably depends on how long that inundation would occur and what the depth of it is. I don't think this has been thoroughly thought through, and I think there are some serious negative impacts associated with this. This design has occurred for years and years and years in many, many circumstances. And there are several petitions winding their way Page 25 October 11, 2006 through the process as we speak that have a design that discharges treated stormwater into wetlands that have within them isolated uplands. And how would you not impact those isolated -- again, I'm not a civil engineer so I'm not going to go too far, because I'm surely going to get myself in trouble if I try to discuss these issues. But from what I understand, there are serious difficulties with designing a system that does that. And again, no proven -- necessarily no proven negative impact. Now, what about if you've got listed species? Well, clearly the primary objective would be to protect those listed species from any unintended -- or any harm associated with the discharge of stormwater. CHAIRMAN STRAIN: Bob, you need to start wrapping it up a little bit. MR. MULHERE: And I will. So in that case, why would we say that you can't do it if there are any listed species? Okay, there are certain listed species that may -- that this may be habitat for that would have no negative impact associated with a temporary inundation associated with the stormwater design. Some other species may. Seems to me that the DSAC's recommendation of providing language that says utilized by Gopher Tortoises, Scrub Jays, Burrowing Owls and Indigo Snakes, which are the four species that have been identified that would have a negative impact, is more specific. And if the first rule is do no harm, why would you want to go further? You would want to identify the species that we know that may be negatively impacted and not simply use a broad term listed species, because I don't know that a Florida Panther is necessarily going to be negatively impacted by a temporary inundation in an upland when it's going to drain down within a couple of days. I mean, that naturally occurs in their habitat. Page 26 October 11, 2006 Second -- and I will wind up right now. Second thing is, if you design it then, you're going to impound those uplands by some sort of a berm. And then if you have a significant rainfall event, that thing is going to be inundated to a greater degree than it would otherwise be without the berm. COMMISSIONER MURRAY: Flush, yeah. MR. MULHERE: I don't think it's been thought through. I think it requires some additional thinking, and I think we can come up with something that works to address all of the issues concerned here. Thank you. CHAIRMAN STRAIN: Thank you, Bob. Barbara, in the beginning of Bob's statements he talked about the language in the EAR. Were you aware that that language was in the EAR? MS. BURGESON: Yes, we are. And we've also-- CHAIRMAN STRAIN: How does this fit together? MS. BURGESON: We also had discussions with outside counsel, I'm not sure if it was Marti Chumbler or Nancy Linan, back when the GMPs were initially written and this initially came up as an issue. And they felt that we should clarify this in an LDC amendment and also clarify this in the GMPs. She felt that staff could continue to use preserves for stormwater when we were redoing those beneficial things such as restoring the hydrology, redesigning it so that the historic hydrology of those preserves were benefited by that stormwater, and that it would not be in violation of the current GMP's language for us to allow stormwater in wetlands, for staff to continue to do that. But she did feel that if we were going to go any further in allowing stormwater in wetlands that we needed to do that GMP amendment that we're in the process of doing now for us to go any further than what we were doing with stormwater just in wetland preserves. Page 27 October 11, 2006 And so that's why we did the amendment, to allow us to expand on what staff was permitting to allow for further utilization of the preserves by -- for stormwater. So if that's a little -- CHAIRMAN STRAIN: I'm used to the opposite process, the GMP -- the LDC usually follows the GMP. In this case the GMP is being written to implement the LDC. MS. BURGESON: Well, no, actually what she said is that the GMP as it currently exists right now would allow staff to continue to accept stormwater in wetlands when that -- when it's not per se -- I mean, we're not saying stormwater is allowed in wetlands. What we're saying is that we're allowing the applicants to restore the hydrology, to restore the wetland to predevelopment or earlier, better conditions for that wetland. And if they're doing that by putting in treated stormwater, then we can do that. We don't need to do a GMP amendment to allow the applicant to continue to put stormwater in a wetland. But what outside counsel recommended to us is if staff wanted to make an interpretation that they could go further than that and put stormwater in all preserves, then we needed to do the GMP amendment. And that's why what you're getting in front of you with the GMP amendment is broader and will allow us to go further. So if you took their legal advice verbatim, this LDC amendment probably should be limited to wetlands. And-- CHAIRMAN STRAIN: Well, no, I understand. And your comment about the GMP amendment being more flexible, that was the note that I had made on my page as well. It is. And that's why -- it is more flexible than what you've got here. Mr. Lorenz and then Mr. Mulhere, you had a comment? MR. MULHERE: Just real brief. I mean, I think there's a fundamental issue here. Whether or not the code -- and don't ask me how this may have occurred because it's been occurring for years, and there are dozens and dozens and dozens of Page 28 October 11, 2006 stormwater plans out that there that discharge into preserves which have uplands in them. So whether it was allowed or wasn't allowed, it's going on and it has gone on through the Water Management District -- I don't know how, I'm not a civil engineer, I don't do those designs. Does that make it wrong? Perhaps in some circumstances it does, which is what we're discussing here. But not necessarily in all circumstances. So we have an opportunity to get this thing right, and I don't think we're there yet. CHAIRMAN STRAIN: Mr. Adelstein had a question. Yes, sir. COMMISSIONER ADELSTEIN: You heard the engineer's statement how he thought it should be done. How do you value that? MR. MULHERE: I think he's absolutely correct with the -- I don't know that he -- I think in response to Mr. Strain's comment, I don't know that he expounded fully enough upon the issue of well, how do you do it in the case where there's listed species or even vegetation that could be negatively impacted. I think that's the crux of the matter. And I don't think we've addressed that here, because there are circumstances where that will not be negative, and we're prohibiting that as well. CHAIRMAN STRAIN: Thank you. Mr. Murray, go ahead. COMMISSIONER MURRAY: Well, I have a question, but perhaps appropriate for the -- if I may. Just to satisfy -- can gopher tortoise live in uplands in hydric soils? Is that their normal -- MS. BURGESON: It's not their preferred habitat, but you do find gopher tortoises in a wide range of soil types. The concern that we have on that is if you've got gopher tortoises that are in a wetter soil type, they're already stressed a little bit being there. If you're going to be adding additional water into that system and holding that back for additional periods of time, then that's going to be harmful to the species. And I just want to clarify one really quick comment. Page 29 October 11, 2006 COMMISSIONER MURRAY: I have other questions for you, though. Go ahead. MS. BURGESON: On the listed species issue, we're not saying that you can't put stormwater in preserves with listed species, we're specifically saying that stormwater shall not be discharged into upland preserves with listed species. And there's a couple of reasons. But one of the reasons that doesn't seem to be discussed very often is that even if it's not harmful to the species directly, even if they could survive that additional stormwater, what you're doing by putting the additional stormwater in there is you're changing the saturation of the soils, you're changing the vegetation type, you're changing the species of plants that are being utilized by those animals for forage and vegetation and causing potentially additional stress on those species. And in some cases they will leave that area because you've caused the vegetation in that preserve to change by changing the hydrology. COMMISSIONER MURRAY: And as well, if inundation occurs on a repeated basis to upland areas, and I know Mr. Mulhere said -- no, Jos said there'd be a berm around it -- no, I guess it was Bob Mulhere -- but I don't know that that would be true in every preserve where you would protect an upland with a berm, but okay. But eventually wouldn't inundation of this water redistribute the soils and change uplands to a lower level to tend to bring everything down to level, as it were? And as you're thinking of that, because J os had made the statement that the upland preserves being above the lakes or ponds or the treatment -- pre-treatment -- or treatment areas, his idea was that the water, unless it was an extraordinary event, the water would never really get to the upland preserve. And I wanted to know if you felt that that was true. MS. BURGESON: Yeah, there's a couple of issues there. One of them is that when you're talking about -- and one of the first things Page 30 October 11, 2006 that J os said was that you will set the elevation in there at the -- say the high water mark in that area. Now, that high water mark identified where the stormwater or the natural rainfall would get to in a major storm event. It doesn't address, when you talk about stormwater, that for instance that event may have happened 10 times in a year or five times in a year, but would immediately drop down. With a stormwater system, they just have to make sure that that water drops back down below grade within 11 days. Now, mostly it's a much quicker return to grade than that. But even if it's just two or three days that they're holding that up at that elevation, you're talking about changing the system by either a twofold or a threefold in terms of the storage of water in that system. It's not necessarily the elevation that's going to change but how much water and how long that area is inundated. And to answer your other question about where the groundwater may not actually reach that upland preserve, it may not get to the height of the ground level, but the soils will be saturated much longer and much higher than they might naturally be. And also, in addressing Bob's concern about staff not taking time to reevaluate or evaluate all of the different conditions and circumstances for large preserves, we spent two full days with engineers and staff and environmental staff going over as many potential examples as we could possibly think of to write this language to protect it, to allow for it to work in all circumstances. We did evaluate it. We did contact other staff that have worked in South Florida Water Management District, used to be engineers for the county . We've worked with a couple of engineers for the county and environmental staff. We did put a great deal of effort and thought into different examples, as many as we could come up with, and the result is that you may have to berm off or put a berm in an area of a preserve that Page 3 1 October 11,2006 you might not normally have done that. Or you may need to phase the stormwater in a large preserve. But it can be done. It just takes a little more effort, it takes more design, it might be a little more costly, but again, this is still what we should be doing currently. It shouldn't -- remember, we're not taking this away from what should be permitted right now. We're just -- we're trying to allow it in more circumstances. COMMISSIONER MURRAY: Thank you. CHAIRMAN STRAIN: Thank you, Barbara. Now Bob-- , MR. MULHERE: I promise, I'll be real quick -- CHAIRMAN STRAIN: -- this is the third time. You've got to stop this. MR. MULHERE: There's two things. Number one, you have a resource here who has experience both with the county for many, many years and also worked in the private sector who is a civil engineer who designs projects, and his name is Stan Chrzanowski. You know, he might have an opinion on this issue as an expert from the civil engineering side. Just a suggestion. CHAIRMAN STRAIN: He's got a right to speak ifhe wants to, Bob. MR. MULHERE: Well, I thought you might have a question or two for him. CHAIRMAN STRAIN: I think we need to get through this, so-- MR. MULHERE: Okay. And the second thing I want to say was, while we worked with staff and staff worked for the engineers, all of that occurred leading up to the previous version, there really wasn't any input in this final version that I'm aware of, except the DSAC had some input, very little of which was accepted. CHAIRMAN STRAIN: I think we understand. Thank you. Margie, did you have a conclusion in response to the prior question of the notice? Page 32 October 11, 2006 MS. STUDENT -STIRLING: Yes, I do. And I spoke with Mr. Klatzkow as well. It's our position that on the clarification portion, you're fine to proceed today. On the other portion where there were some EAC changes that came back, that you would need to notice that before you acted on it. CHAIRMAN STRAIN: So if our -- if discussing this today we decide to change our vote from the prior August 29th meeting, we have to have a notice, or do -- MS. STUDENT -STIRLING: He's here for a clarification on -- CHAIRMAN STRAIN: What does that mean we can do and can't do, Margie? MS. STUDENT -STIRLING: I think it just means to clarify what your action was. That if you change anything, then I think we run into difficulty. But I think it's just to clarify what the motion and the vote was. But I also understand there's another piece that went back to the EAC, and there were some changes to that, and that would have to be noticed. CHAIRMAN STRAIN: Mr. Schiffer?' COMMISSIONER SCHIFFER: Margie, would we be able to vote to move it to the next cycle? MS. STUDENT-STIRLING: Well, I think again you're taking an action on something. You're just here to clarify. If you're going to do that, I think you need to have a noticed meeting to do it. CHAIRMAN STRAIN: So basically today we're tied to clarifying our prior vote, which is simply a rereading of the minutes that I practically have already read. MS. STUDENT-STIRLING: That's correct. CHAIRMAN STRAIN: And then the information we're gaining, we're not really going to be able to react to in the form of any motion. MS. STUDENT-STIRLING: That's -- without a noticed hearing. Page 33 October 11, 2006 CHAIRMAN STRAIN: And if the information that we've been told today changes our minds on our prior vote because we're getting a lot more detail today, in order to express that change, we can't do so until we renotice this meeting; is that what you're telling us? MS. STUDENT-STIRLING: That's correct. CHAIRMAN STRAIN: Mr. Adelstein? COMMISSIONER ADELSTEIN: It would seem to me that you could table this out and therefore end up with a situation that is more negative and more solid until the next time we come around, instead of trying to run it up and down the flagpole. CHAIRMAN STRAIN: I think that's-- MS. STUDENT-STIRLING: I think that would work. CHAIRMAN STRAIN: -- what she's saying. Okay, well, let's go through the rest of the speakers and try to come to some kind of conclusion then. This is like Scotch tape, it just won't flick off your finger. MS. STUDENT-STIRLING: Duct tape. MS. BURGESON: The next speaker is Bruce Layman. And after Bruce, Margaret Emblidge. CHAIRMAN STRAIN: Thank you. Bruce, I know you have a lot to say on this. I've got to ask you not to do as Mr. Mulhere did. MR. LAYMAN: No, I can appreciate that. CHAIRMAN STRAIN: Thank you. MR. LAYMAN: Bruce Layman, Senior Ecologist, WilsonMiller. There is a certain advantage to going semi last in the discussion, because I think Bob did a very, very good job of describing the ecological impacts of the way the code's written as it is today in the September 1 version. I also think that Mr. Lewis did a very good overview of the legal discussion of how we got to where we are today. I think the most Page 34 October 11, 2006 important of which is that the September 1 version, the input to it from the public, the experts in the public or general public as it is basically had one day to comment on it before the EAC reviewed it. And they had two days to comment on it before the Planning Commission heard it on September 7th. So there's really been very little direct input and actually no revision of it from when it was drafted by staff on September 1 st. I think that's very important, because that kind of dovetails in with what Bob Mulhere was saying in that, you know, we've been doing this for 20-some years and there's not been an observed problem in the field, yet this code suggests that there is a significant problem and that we've got to really narrow our -- narrow where we put stormwater in preserves. I guess that there's two points I'd like to make in the way the code's drafted currently on the Roman at sub-two and then sub-A and sub-B. I think the intent is, in the existing condition, in the field today, if you go into a big wetland system, as Bob suggested, you're going to have uplands islands within the wetland system. The hydrology today gets those areas wet. If you went in the field three weeks ago, the uplands had water on them. That's natural. Now, granted, some of that may not have been natural, because flood gates didn't open, et cetera. But there are a lot of natural systems out there that get wet. The upland systems with upland soils, they get wet on a relatively infrequent but still annual basis. So basically on the sub-A when we say you can put water in jurisdictional wetlands, okay, that's fine, that's understood. Uplands comprised solely of hydric soils, those are the historic wetlands that have dried out since then because of road placement or canal placement. They could probably stand to get wet again. Okay, that's fine, too. But then also, too, the uplands around here, they do get water on Page 35 October 11, 2006 them occasionally. To restrict water from going on them I think would be changing the way the ecology works out there currently. So the way that the sub- A is drafted, I think it has some significant negative consequences on the environment. And secondly, sub- B, it talks about not discharging in the upland preserves that have listed species. Those air plants that you see out in the trees, out in the woods, those are listed species. So if you had air plants -- literally as written, if you had air plants in trees in uplands, you couldn't put water on those uplands. Again, those wetlands -- uplands, excuse me, get water today probably. So I guess where I'm going is I really do strongly believe that this language needs to be either expanded upon to make it less specific, or at least to incorporate other conditions so that we don't pigeonhole ourselves and actually harm the systems we're trying to protect. Basically it needs to be better thought through, because the current code is potentially very ecologically damaging. Previously there was discussion about -- earlier about whether you could have tortoises in hydric soils, even though they're uplands, and that if you put water into those hydric soils that you might further stress the tortoises, because they don't like to be there to begin with. Well, that's very true. Historically, if it was a hydric soil, chances are the tortoises wouldn't have been found there anyway. But not only that, tortoises go into the wetlands in the dry season to forage, because that's where the good plants are. So I guess I'm missing the point of the argument that you don't want to change the habitats but you want to provide the hydrology that would support the existing habitats that benefit the species. So I really -- you know, doing a one size fits all is, I think can be very ecologically damaging. So I would strongly recommend that if you want to forward the code as it is, that it be renoticed, have public and expert input into it to refine it such that it won't have these Page 36 October 11, 2006 unintended negative consequences. CHAIRMAN STRAIN: And Mr. Layman, I want to first of all thank you for, as painful as this is today, for pointing out the discrepancy or the concern about the clarity of our motion. It needs to be clarified and it should be. My thoughts at the time the motion was made was that we're simply reinforcing something that is already being practiced today, meaning that the code doesn't specifically provide for it, but yet it's allowed. And we wanted to make sure there were clarifications in there so that it could continue as it was being done today. Because that seemed to be acceptable in most cases, with those rare exceptions where they had to go to the BCC. Do you know the criteria that you're allowed to utilize today to apply the discharges into wetlands? MR. LAYMAN: Oh, boy. I don't know if there is specific text that says you can do A, Band C but you can't do D, as far as criteria might go. But in concept, if on a project you can identify the existing hydrology on a site and you look at the habitat that that hydrology is in. If the hydrology is appropriate to the habitat, then the desire is if you're going to preserve that habitat, whether it's upland or wetland, that in the post-development condition that your stormwater system allows for maintaining that same hydrology in that system so that you don't harm it, change it or whatever. Now, if the habitat is drained because of local roadways, canals, et cetera, but there's a desire to put some more water in it to bring the hydrology that -- the existing hydrology to increase it a little bit to bring it up to more close to historic levels, that's frequently a desire on the behalf of the Water Management District to maintain those systems or bring -- kind of revive them, let's say. So I think it's more of a concept based on doing a bunch of upfront analyses of what the existing conditions are hydrologically, vegetatively, species-wise, and then in the post-development condition Page 37 October 11, 2006 try to match that as best possible. Or in some cases, if it's a disturbed system and can stand some more water, not only stand it but desire some more water -- I hate doing that, habitats don't desire it, we do -- anyway, semantics. But it might be good, not just one person's opinion, but it might be good to bring some water back into the systems to enhance them and carry them forward. CHAIRMAN STRAIN: Well, when we finish with speakers, it's going to be -- I'm going to ask staff to describe how they -- what criteria they actually use today in implementing this, because that seems to be where the basis of this whole thing is coming from. Thank you. MR. LAYMAN: Okay. Thank you. MS. BURGESON: Do you want me to respond to a couple of these things, or not? CHAIRMAN STRAIN: Let's get through the public speakers because -- MS. BURGESON: Margaret Emblidge, followed by Judith Hushon. MS. EMBLIDGE: Good morning, Commissioners. Margaret Emblidge with Collier Enterprises. I have to say that I agree with the previous speakers on the concerns that they've talked about today. And I'm not a biologist, I'm not an engineer, so I don't know, I can't speak to the specifics. But I have been involved with many proj ects that have had to design water management systems, address wildlife issues and so on. And I think I truly understand that there are some inconsistencies with current regulations or proposed regulations as with the case of the EAR proposals, and also the unintended consequences. I think that we still have not worked through all of the nuances of what's being proposed. And the other point that I would like to make, and I'm not sure if it's in the confines of what today's focus was, because it's kind of gone Page 38 October 11, 2006 back and forth. But in the current language that we're reviewing today, it does not speak to an issue that I had brought up at the September 6th EAC meeting, and that was asking that there be a clarification that the rural lands stewardship properties be exempt from this language. And primarily because that whole program, the water retention areas, the flowway stewardship areas and the habitat stewardship areas are all intended one way or another to allow storage and water management systems to be designed to allow water to go into those areas. And my concern is, is even though staff did come up with recommended language that came out of that EAC meeting, it still doesn't go far enough. And with many other Land Development Code amendments and compo plan amendments that have been proposed in the last year, we have asked that we not change anything in the rural lands stewardship area. There is going to be a rereview of the program in 2008, and we would ask that we be able to prove that's what's been adopted does work and will work and not change anything until we've had the opportunity to prove such. Thank you. CHAIRMAN STRAIN: Thank you. Any other public speakers, Barbara? MS. BURGESON: We have Judith Hushon, followed by Nicole Ryan. MS. HUSHON: I didn't come here to speak today, I came here to serve as a resource if you had a question from where EAC had come down on the same issues that you have. As you know, we heard them on the 6th and made a few changes. You're not dealing with those changes. The rural lands stewardship was one of the changes we did look at. There was also one other area. But basically what you're looking at is what we understood to be the -- is basically the same as what we had approved, with the other two exceptions of a couple of additions that came out of the Page 39 October 11, 2006 discussion. CHAIRMAN STRAIN: You said that you did discuss the rural lands stewardship area? MS. HUSHON: Yes, we did. CHAIRMAN STRAIN: What was your outcome? MS. HUSHON: We included some language. You should have a version labeled the 6th. CHAIRMAN STRAIN: We've had so many versions, it would boggle your mind. MS. HUSHON: I know. In fact, I had an e-mail conversation with Barbara trying to figure out what the difference was in all this stuff. Now, we added an F and a G. MS. BURGESON: I put it on the visualizer. I'm not sure if we can bring that up. MS. HUSHON: The visualizer is not visualizing. I can read it to you, if you want it read. CHAIRMAN STRAIN: Go ahead, please. MS. HUSHON: F says -- it says, stormwater shall be allowed in upland preserves in the RLSA - WRA areas in accordance with Section 4.08.00, rural lands stewardship area overlay district standards and procedures. So that was addressing Margaret's -- we thought was addressing Margaret's -- she doesn't apparently think so, we thought it did. And then it goes on, G says, property owner may request deviations from the above regulations. Staff shall review the plans, proposed deviations to ensure wetlands in the preserve will receive a benefit and uplands in the preserve will receive no adverse impact from the deviations being proposed. The process for granting deviations shall follow the procedures set forth in the appeals Section 8.06.10 for the EAC, and shall be heard at a public hearing of the EAC. Page 40 October 11, 2006 So that was saying that if you weren't happy with applying these rules, you could come back and state why you thought your preserve was different and could benefit from the water or whatever. MS. BURGESON: And for Mr. Strain's benefit, this version was handed out at the CCPC meeting of the 7th, and all of the changes that the EAC recommended were read into the record at that meeting. Just so you that know that the board that met that day did have the benefit of the written and the verbal changes. CHAIRMAN STRAIN: I have a question about your reference, stormwater shall be allowed in upland preserves in the RLSA and WRA. Well, that seems to be the argument that's causing this problem in the other areas. Is the upland preserves and the species that frequent them in the RLSA and WRA any less important than the ones -- MS. HUSHON: No. CHAIRMAN STRAIN: -- in the urban area? MS. HUSHON: However, the way the county code is written, they should be exempted right now. CHAIRMAN STRAIN: Why? I mean, aren't we here to rewrite the code? MS. BURGESON: The GMP has specific language. The language that we put in here cites that section of the GMP that specifically addresses those preserves. That section doesn't specifically say that they can put stormwater in uplands, but we wanted to make sure that they could put stormwater in uplands in accordance with that section of the GMP. CHAIRMAN STRAIN: And you like the language that's in the RLSA and WRA? I'm talking to Barbara now. Because if you do, why don't we just implement -- why isn't that language then countywide? Why is it singled out for just that area? MS. BURGESON: I think we can't make a change to that and so we are I think legally bound to allow them to have exceptions. MS. HUSHON: If you don't -- we didn't particularly like that Page 41 October 11, 2006 language, but they were exempted from these rules, so the -- this is just verbalizing that exemption. At the request, actually, of Margaret. CHAIRMAN STRAIN: I'm sorry, but we're here rewriting the rules. Why were they -- MS. HUSHON: We weren't dealing with the rural lands stewardship rules -- CHAIRMAN STRAIN: Ma'am, we've got to let one person speak at a time. Why were they exempted from the rules and why can't other areas then have the same application? I'm confused. MS. BURGESON: Because this was just in the GMPs that were -- they have some special exceptions or exemptions in the GMPs. And this being an LDC amendment, not altering GMPs for that issue, it was brought to our attention that we should exclude them from this amendment. If in the future the GMPs are changed to require that they also comply with this, that would be fine. CHAIRMAN STRAIN: Well, I can't see what's good for one section of the county can't be good for it all. So if it works in the RLSA, why wouldn't it work in the rest of the area? Bill? MR. LORENZ: Yes. For the record, Bill Lorenz, environmental services director. And maybe I might have Margaret touch base with what I'm about to say. The difference is within the rural lands stewardship areas, you have the water resource areas, the WRAs. Those are -- those essentially were the stormwater systems for the agricultural -- for the agricultural operations. And those systems are a combination of wetland and they may also have uplands within them. The RLSA framework was looking at flowway stewardship areas, habitat stewardship areas and WRAs, water retention areas. And those Page 42 October 11, 2006 water retention areas were incorporated into the GMP and the Land Development Code in certain ways to allow them to be continued to be utilized for stormwater purposes. I believe the language says they have to ensure that any habitats which could be upland habitats within those areas as they utilize those systems for their -- now their new stormwater treatment, that those habitats would not be adversely affected. So in that sense, that's why they're different. That's why they're carved out differently from the other types of preserve areas that we would be looking at outside the RLSA. CHAIRMAN STRAIN: Thank you, Bill. Understand that we're very confused. Go ahead, Mr. Murray. COMMISSIONER MURRAY: Thank you for -- it certainly helps to make my confusion grow greater. What science are we using to relate? And I'm not trying to put you on the spot, but over a long period of time changes will impact uplands in those areas. I mean, what are we using as a baseline? Because in order to make a judgment on this stuff when we eventually get to it, I don't think it's going to happen today, what can we -- I think criteria are the critical factor here obviously. But is it possible you can answer that question? MR. LORENZ: Are you speaking about the WRAs? COMMISSIONER MURRAY: Yes, sir. MR. LORENZ: Well, the WRAs were established in the 2002 amendments, the Growth Management Plan amendments, and they were incorporated into the system as I outlined it. So in that sense staff is not looking at trying to do something differently to the WRAs that were -- that was envisioned through the 2002 GMP amendments and ultimately the calculation (sic) of the Land Development Code. COMMISSIONER MURRAY: Okay. I guess what I was looking for is some way if you folks had evaluated that as clearly and Page 43 October 11, 2006 we intend to use if we were to use the RLSA as a baseline, but obviously we're not going to go there. Okay, thank you. CHAIRMAN STRAIN: Thank you, Bill. Is there any other questions of the -- MS. HUSHON: I didn't know whether you had any questions. That was kind of why I showed up today. CHAIRMAN STRAIN: Thank you, we appreciate it. Is there any other questions? Mr. Schiffer? COMMISSIONER SCHIFFER: And Barbara, and then again we got another copy today. I'm kind of asking you, wouldn't it be better if you withdrew this and brought it back at the next cycle? I mean, is there anything that's in jeopardy that this really needs to do in this cycle? CHAIRMAN STRAIN: Thank you, ma'am, by the way. MS. BURGESON: I think this has been very well vetted and we have had -- I didn't bring the outline with me, but we've had probably 20 meetings and versions of this amendment through the process. I would prefer to move it forward as the Planning Commission recommendation to the board, if it's for no other reason than to find out what the board's direction is to staff. And if that's any different, then in the next cycle if the board chooses to continue it we'll have better direction as to where we think that they want us to go as opposed to pulling it right now. COMMISSIONER SCHIFFER: But the question really is, is this fixing anything that's causing harm right now, or is this just clarifying the code? MS. BURGESON: I think that this allows for greater utilization of preserves with stormwater than staff currently is allowing. So this is a benefit to the developers or staff to have as additional flexibility. COMMISSIONER SCHIFFER: And, you know, when this thing started out, and you said so earlier, you gave some commentary, and Page 44 October 11, 2006 you used the word that this is a way to restore water back into wetlands that development had taken away -- I'll wait till they're finished. CHAIRMAN STRAIN: Yeah, you guys, Mr. Schiffer is addressing you, I'd appreciate it if you gave him the courtesy of paying attention. COMMISSIONER SCHIFFER: And when you described it, you described it as, you know, the ability to restore stormwater, which is what we really thought, that, you know, why not be able to do that? But even in the code you're not really saying that. So, I mean, I really think that this could come back better than it is right now. I'm done. CHAIRMAN STRAIN: Mr. Adelstein? COMMISSIONER ADELSTEIN: I'd like to make a motion. CHAIRMAN STRAIN: No, we're not done with public speakers, Mr. Adelstein. We'll finish public speakers and we'll finish discussion with staff. Mr. Lorenz, did you have a response to Mr. Schiffer? MR. LORENZ: Yes. You asked the question in terms of what are we doing differently now or how this amendment would -- COMMISSIONER SCHIFFER: Is needed. MR. LORENZ: -- support staff and is needed. The problem from my perspective, and this is why we launched into this a little bit more than a year ago was that -- and as Barbara outlined, there has been some questions as to exactly the interpretation, the application of the Growth Management Plan in stormwater and preserves. And you've heard also from the development community that they've been doing this, at least in their viewpoint, for 20 years. Not in a sense that environmental staff was looking at and approving that, but simply that in the part of the stormwater design, they -- we may have been missing that. And so they were putting stormwater into Page 45 October 11, 2006 preserves that may have had and probably likely have had upland systems. The other thing is, is when you're looking at the Growth Management Plan, it simply says that passive recreational uses are allowed. And as I understand it, even though we had some discussion with our outside attorney, the question comes up is was that simply limiting only passive recreational uses, or could there be other uses, and is stormwater technically a use? So in my mind I'm coming into a point where I need to have some more clarity. So what I tried to do was to try to put forward a set of amendments that provide clarity for staff to review proj ects and for the development community to be able to design projects. Obviously I got myself into a tornado here, and where my wishful thinking was to develop some consensus criteria to be able to accomplish those objectives, I haven't gotten there. With the exception, the Planning Commission's -- I mean, your recommendation, that's the September 1 version plus the EAC's September 6th recommendations, especially with the deviation process, would allow us to move forward with some additional degree of clarity. The deviation process would allow for that opportunity that -- to at least get to the EAC with some criteria. That would be a benefit to staff. As we would move forward, as we would see additional proj ects come through, perhaps at that particular point everybody can see the case examples. Then we could adopt in the future some additional criteria to reduce the amount of projects that would have to go to the EAC. So that can be a benefit for staff to move forward along those lines. If we withdraw the amendment, then I'm still left, in the absence of some specific interpretation or direction ultimately by the Board of County Commissioners, I still find myself a little bit of a quandary as Page 46 October 11, 2006 exactly under what circumstances would we allow stormwater in preserves. And I would just need to have that clarification. CHAIRMAN STRAIN: Thank you, Bill. And I think maybe when we finish up with public speakers, we c.an get to that point of either recommending what we already recommended or clarifying. Go ahead. MS. BURGESON: Last public speaker is Nicole Ryan. MS. RYAN: Good morning. For the record, Nicole Ryan, here on behalf of the Conservancy. And I did have one quick question for staff. Because as I understood your direction from the August 29th meeting, it was to allow the stormwater into the preserves when they were wetlands and when there was going to be a benefit. But the way that the language is written, it says treated stormwater shall be allowed only in preserves comprised of jurisdictional wetlands. Does that give staff any discretion to take a look at whether the wetlands are hydrologically wet enough or if more water needs to be placed in it, or does that mean that if there's a wetland stormwater can go in no matter what? MS. BURGESON: There isn't any criteria there that would allow staff to evaluate anything in terms of limiting or increasing wet -- the stormwater into any wetlands. It doesn't have any specific criteria but it would allow it in all cases. MS. RYAN: In all cases. So would the word may then get to the idea of if there would be a benefit or to have staff have some discretion on that? I'm just wondering how the word shall fits in. MS. BURGESON: The reason that we didn't put in the word may is we felt that if we did we would need to have to come up with some criteria as to when it was appropriate not to allow it, and we felt that we could not come up with that criteria. And falling back on just Page 47 October 11, 2006 the South Florida Water Management District permit, we would rely on them to determine when it was appropriate or what was appropriate to go into those preserves. MS. RYAN: Okay, just as long as everyone understands, that even though we talked about if there's a benefit, the language actually will allow in all cases where there are wetlands and the hydric soils that stormwater go in there. So I just wanted to point that out. The Conservancy is supportive of what staff has put forward. We believe that they took your direction and they crafted language that followed that. I know there was the concern about hydric soils versus strictly the wetlands with hydric soils. After going back and talking with our staff, we're comfortable with the term hydric soils being used, because those areas would historically have a little bit more water. So we would be comfortable with that language. But this started out many months ago, and I think it's been stated in a couple of different ways. Staffhas indicated that there really was no criteria for allowing stormwater into preserves. And so they wanted to get something down that would allow in limited circumstances where there would be a benefit, or no negative impact at least, stormwater to go into wetland preserves. There have been a lot of terms that have been used today: Unintended consequences, problems, overly restrictive. But what we have to understand is this really isn't even allowed today, because there's nothing in the GMP or the LDC that does allow it. So what is being put forward today is much more permissive than what has been in place. We've heard that it has been done for decades and that stormwater goes into the preserves. I would like to hear from environmental staff, because we've heard there have been no problems with that. Well, who has reviewed this on environmental staff? What constitutes a problem? If upland plants have been turned into more Page 48 October 11, 2006 wetlands plants, is that a problem? Have there been monitoring reports? I'm just unclear as to what a problem would or would not be. It's my understanding that there's a deviation process that even if it isn't specified is still allowed, so that if you have a circumstance where you simply cannot do everything you want to do, you can petition and go through the deviation process to modify what is required or allowed in the native vegetation preserves. If you have a very large preserve site, a couple hundred acres, and you have a small area of upland, then you would be allowed to berm it off, do some sort of phased staging of water, I think Barbara mentioned. So it really is going to be quite flexible. We believe staff has worked long and hard on this. It comes down to the basic issue of do you want the stormwater to go into uplands preserves or not. That seems to be the issue. And I'm not sure that there's going to be a lot of consensus on that if this were delayed. We would like to see it go forward. There was the issue of public input and changes from the September 1 st version. But since the September 1 st version was directed from your comments, I'm not sure that public input and changes from the public would have been appropriate. So we believe that staff did what they were directed to do, and the September 1 st version was based on your comments and your input. Didn't really want to reopen the whole issue, but it seems to have already been reopened. So just to get on the record again, Conservancy does not believe that stormwater should go into the upland portions of the county preserves. We believe that's an inappropriate use. It's our understanding that it has not been allowed by environmental staff in the past and should not be allowed in the future. And I guess since you would have to go ahead and renotice if you wanted to vote on the EAC September 6th version, Conservancy Page 49 October 11, 2006 would ask that you, if you're comfortable with how staff has drafted the comments from your August 29th meeting in the September 1 st version, to go ahead and move that forward with a recommendation of approval to the BCC. Thank you. CHAIRMAN STRAIN: Thank you, Nicole. Mr. Murray? COMMISSIONER MURRAY: Yes. Nicole, anything that you've heard here this morning added any dimension to your arguments or interests, influenced you in any way from any of the speakers? MS. RYAN: Well, we heard that on August 29th and we heard it on September 6th, and so I don't think that there has been anything new that has come out. And we still stand by our position and we believe that what the staff has drafted is much more permissive than what's in place now and I think will be a benefit to the development community. COMMISSIONER MURRAY: Thank you. CHAIRMAN STRAIN: And that is the last public speaker? MS. BURGESON: Yes, it is. CHAIRMAN STRAIN: Okay. I'd like to think we'd be over this in a few minutes but I can't guarantee that. And there are two ladies that need a break: Cherie', our court reporter, and I've learned of a new one named Kady, who's across the hall. And her fingers are moving very fast to move these cameras around that the public can't see, to make sure they're on the right people. And I learned a lot discussing all this with Kady the other day. She's a very knowledgeable lady. If you see those speakers moving back and forth like this, it means vote no. If you see them going up and down it means yes. If you see them going around it means she's confused like we are. So with that, we will take a 14-minute break, be back here at 10: 15. Page 50 October 11, 2006 (A recess was taken.) CHAIRMAN STRAIN: We are back in session. And we ended with the public hearing or public comments on the issue of stormwater preserves. And I need to know if staff has any short final comments on the issue, then I have to ask the county attorney to reaffirm to us what we can and can't do. MS. BURGESON: Just two brief comments. One of the issues that keeps coming up is people are worried that if we approve this that will be unintended consequences that are negative. Weare not starving any areas from the current rainfall or the current natural amount of water that they're getting with this amendment. We are not altering or changing that. So there could be no negative consequences as a result of this. There could be -- the only negative consequence could be that from -- on a very rare occasion, we may be able to provide benefit, and we could do that through a deviation process. But we are not causing any negative consequence by putting this amendment forward. And then the second thing I wanted to just mention briefly is that the stormwater systems, since I've been working with the county since 1989, I would say that only in the past maybe five years or so have you seen an alteration in the sites where because the price of land and the desire to utilize the site in a much more intense manner than we used to, you don't see the stormwater dry detention ponds that we used to see. We used to see that the stormwater and the preserves were physically separate from each other. So it wasn't until recently, the more recent years that you've seen the possibility of approval of these areas. So we don't have that long-term historic use of all of these areas for stormwater. I just wanted to put that in the record. CHAIRMAN STRAIN: I had one final question that I think is important. We've had numerous people, I think your staff as well, Page 51 October 11,2006 indicate that the use of these preserves is not really defined in the code but it's been accepted, it's been happening. Under what criteria now do you utilize that ability to make it happen? MS. BURGESON: What we are allowing is, I would say up until the past maybe year or so staff has allowed rehydration and additional water to go into wetland preserves that will benefit those preserves. And if the manner in doing that is to provide treated stormwater into those preserves, then that's what we've allowed. But we haven't specifically identified in a review that you should put stormwater into wetland preserves. But through that process of improving the wetlands, staff has allowed that. More recently we've had requests to allow stormwater in areas that aren't wetlands, and staffs response to the applicant initially is we're not permitted to allow you to do that or you're not allowed to do that, we can't approve that, and we reject that first submittal. Most of the time the applicant will change the design and not do the stormwater into the uplands. But from time to time we have an applicant say we need some flexibility here, and what happens is we end up meeting three or four times, we attempt to get technical advice from South Florida Water Management District and engineering experts. And then you also have to get the advice from the environmental experts, because it's not just a stormwater design, it's an environmental issue. So on a case-by-case basis we have allowed stormwater into areas that are not wetlands in the past year, but very limited. CHAIRMAN STRAIN: But on those case-by-case bases, Barbara, you have provided to us a language that has criteria. Is this the criteria you currently use today that's not in the code, that you're simply putting in the code? Meaning, are you allowing it only in preserves that are comprised of jurisdictional wetlands, only of uplands comprised of solely hydric soils, and not letting it be Page 52 October 11, 2006 discharged into areas with listed species? Is that the criteria that you use today and have been using up until today? MS. BURGESON: I would say that for the most part that is-- the result of our reviews would fall under that criteria. Once in a while we'll see a site that we think should be hydric and may not have been identified as hydric by South Florida. So I can only think of one project right now that South Florida Water Management District claimed a portion of an area as hydric and the other portion as wetland, or non-hydric. We couldn't tell the difference between the two pieces of that site. So it -- most of the projects I think that we're reviewing would fall under the review of this criteria. CHAIRMAN STRAIN: Bill? MR. LORENZ: But I think it's fair to say that there have been some proj ects where, for instance, as a Pine Flatwood that the engineer has shown though some modeling efforts that the water levels were going to be reduced according to, let's say a mesic or hydric Pine Flatwood. We have utilized that kind of information just very recently because we don't have the additional criteria, and that's why we wanted to launch out into these code amendments. That's the kind of information that would be utilized in the deviation process if you were to recommend a deviation process. But I just want to make sure that we're giving you a plain answer here. There are some situations in cases recently that we have looked at some modeling exercise that have allowed stormwater to go into pine flatwoods. CHAIRMAN STRAIN: Okay. Any other questions of staff? (N 0 response.) CHAIRMAN STRAIN: Margie, you had indicated earlier that we have to limit ourselves to a clarification of our prior motion. MS. STUDENT-STIRLING: That's correct. Page 53 October 11, 2006 CHAIRMAN STRAIN: The document that we're reviewing today is dated September 1st. There's been another one produced on September 6th. Does any of our conclusions today get to react to those documents, or are those outside the scope of what we're allowed to do without a notification? MS. STUDENT-STIRLING: Right, you can only clarify the motion that was previously made. If you do anything beyond that, I have a concern that there hasn't -- the meeting has not been properly noticed. CHAIRMAN STRAIN: Okay, does anybody know the date on which the BCC is going to hear this motion -- I mean this final LDC amendment? MR. SCHMITT: October 25th. MS. BURGESON: October 25th is the first meeting. CHAIRMAN STRAIN: No, it would be the second meeting, because they've already had one. So that means that even if we wanted to today introduce a new motion that would have to require a public notification, if we couldn't do so until such -- we couldn't even meet until after the BCC met. MS. STUDENT-STIRLING: I have a suggestion about that. CHAIRMAN STRAIN: That's where I was going. MS. STUDENT-STIRLING: That you could have a meeting and have it scheduled for another meeting, and the BCC could, you know, look at this but with the understanding it was pending a recommendation from the Planning Commission. And then they could continue one little piece of it beyond their second meeting to act on it. CHAIRMAN STRAIN: Could we also come up with clarification of our motion today but with all the additional input that we've had provide a consensus from this board to go forward, not necessarily a motion, as to our thoughts as a result of today's input and Page 54 October 11, 2006 be -- MS. STUDENT-STIRLING: Well, I get a little bit concerned because this has gone beyond five weeks and it wasn't advertised or noticed as a workshop or anything. So I have a bit of a concern about that. MR. SCHMITT: Clarification? CHAIRMAN STRAIN: Mr. Schmitt? MR. SCHMITT: Yes, for the record, Joe Schmitt, Administrator, Community Development, Environmental Services Division. For the county attorney's edification, yes, it was announced at the last Planning Commission meeting, which was a continuation of the LDC hearings. And Mr. Klatzkow did announce that we would be discussing this this morning for a reaffirmation or whatever he was looking for from this body in regards to the LDC hearing. But just for clarification and for the record, October 25th is the BCC hearing. That will be the first -- we continued it the first meeting because they had not yet even heard any of these items. So that's a continuation of the first meeting. Then there's a follow-on meeting November 6th, where these items will have the second hearing with the Board of County Commissioners. So we still have between now and November 6th to finalize this amendment. CHAIRMAN STRAIN: Okay. So we could continue this meeting again for 15 days from now, which would be the 26th, and provide the public notice? MR. SCHMITT: I've got to clarify from the standpoint when Jeff made the announcement at the last Planning Commission meeting, that was basically to receive a vote, because there was a -- I guess a challenge, I'll call it, or a question as to whether this body had deemed the amendment consistent with the compo plan. And that's really what I believe this was brought to you this morning for. But of course there's -- this thing has morphed after it's had Page 55 October 11, 2006 several folks involved. And what started out as what was a fairly simple amendment has now become very complicated as this has gone through the several different hearings. MS. STUDENT -STIRLING: Excuse me, I have spoken with Mr. Klatzkow already, and I understand that there is a piece of this that was changed at the September 6th EAC meeting, and the Planning Commission would be seeing that change for the first time. I spoke with Mr. Klatzkow and it's his opinion and mine that the board can clarify the motion that they made at the earlier September meeting, but they cannot act on the changes that came from the EAC without a duly noticed hearing. MR. SCHMITT: Fine. I have no problem with that. I'll take any comments and recommendations and we'll bring it back. CHAIRMAN STRAIN: And Margie, when you said clarify the motion they made at the earlier September meeting, you mean the August 29th meeting, do you not? Because we didn't have a motion in September. MS. STUDENT-STIRLING: Yeah, I guess it was August -- I beg your pardon, August 29th. CHAIRMAN STRAIN: I just wanted to make sure the record is clear. MS. STUDENT-STIRLING: Thank you. It's again a clarification. CHAIRMAN STRAIN: Mr. Schiffer? COMMISSIONER SCHIFFER: And Mark, you read the minutes. But if I remember this, what we did is we voted on it, allowing it to go back to the EAC and allowing them to make any changes they wanted to it. CHAIRMAN STRAIN: That's right. COMMISSIONER SCHIFFER: And so isn't that what the September 6th wording is, the EAC's making the changes that we allowed them to make? Page 56 October 11, 2006 CHAIRMAN STRAIN: I think the discrepancy is that we haven't endorsed their changes because we hadn't met and discussed it after they had made those changes. COMMISSIONER SCHIFFER: But did we send it to them with the understanding that we would meet again and vote on it again? Why would we make a vote that they could change it? CHAIRMAN STRAIN: We did send it to them with the understanding that we would meet. And in fact, I think we even said in the last closing points, 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 was 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 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. So yes, after the EAC finished I thought the intent was that we'd review their language and maybe reaffirm it or reaffirm our original vote or leave our original vote. And it appears on the September 7th meeting that we heard the language, there was no new motion, and I would then have assumed that the existing motion stood. And I think that's the point that we're trying to get to today, clarification of where that is. If I'm mistaken, someone tell me. I'm trying to get my arms around it myself. COMMISSIONER MURRAY: May I affirm your recollection of it, Mr. Chairman? CHAIRMAN STRAIN: Then Ms. Caron. COMMISSIONER MURRAY: That is my recollection as well. CHAIRMAN STRAIN: Ms. Caron? Page 57 October 11,2006 COMMISSIONER CARON: I think that what we were going to approve was what staff was bringing us back. We sent them back on the 29th and said do "X" and bring back the language and we'll take a look at it and confirm that you've done what we asked. That's the September 1 st version that we have in front of us. And that's what we should be voting on today to reconfirm that this is what we told them to do in the meeting on the 29th. CHAIRMAN STRAIN: And that's where I think the problem lies. Margie? MS. STUDENT-STIRLING: It's just a statement to clarify a motion that was already made, not to make a brand new motion. Because is it the August 29th meeting the last one that was noticed? CHAIRMAN STRAIN: That was when the motion was made. MS. STUDENT-STIRLING: If we're in five weeks from that, we're just probably a week or so shy outside of that five-week period that when you have to readvertise even on a continuance. You know, therein lies the problem. Because if you run it from the 29th, I think it runs to something like October 5th or what have you. And that is why we have to have the issue -- or where the issue arises. So based on the conversation with Mr. Klatzkow, if there's a statement as to clarification of the motion, I think that will suffice. And then the rest of it should be renoticed. I don't think you have to move again on something that was already moved upon, just a statement of clarification. CHAIRMAN STRAIN: Okay. Mr. Adelstein? COMMISSIONER ADELSTEIN: Yeah. We're talking about whether we can put this through and see if we can get it done, and yes, you can. How many of you are actually satisfied with what we have before us? I mean, this idea of making it pass today, we can do that, there's Page 58 October 11, 2006 no question about that. But the questions -- after I've seen what I've heard again today, I don't think I'm satisfied with what the results were from what we have discussed. CHAIRMAN STRAIN: But I'm not -- go ahead, I'm sorry. COMMISSIONER ADELSTEIN: That's all right. And in that situation, are we just saying okay, we've got to pass this because we've got to pass it, or is it time to say hey, wait a minute, we've heard so many different people with so many different ideas, and some of them are good and some of them overlap. And what are we trying to do, let it happen in a hodgepodge way or say wait a minute, maybe it's time we say to ourselves it's time to put this aside to the next cycle, and by that time get it right? Not much is going to happen in harm's way until then. I can't personally say I think what we are doing now and voting on it now is what I really think is proper. CHAIRMAN STRAIN: And Mrs. Caron is going to speak next. Only problem with what Mr. Adelstein says, I don't think we -- I think we have to do a public notice to get to where you want to go. Ms. Caron? COMMISSIONER CARON: Well, I would only say that on the 29th of August, we made -- had an agreement with staff, and we charged them to go back and do something. They've come back to us with the September 1 st version, which was a clarification of what we asked them to do on the 29th. So I'm perfectly comfortable, and said so the first meeting in September, that I was comfortable with what came back. Now, if all we can do is confirm that we cast a vote on the 29th, then so be it. Let's bring it back. MS. STUDENT-STIRLING: I was led to understand that there apparently was some, you know, confusion or the motion -- there was some lack of clarity in it as to why it needed to be reclarified. CHAIRMAN STRAIN: And then let's just attempt -- well, first Page 59 October 11,2006 of all, is this the opinion of this board that we want to change the motion we made on the 29th? And I believe the motion we made on the 29th, and I'll read the minutes, was that the recommendation was that this did not -- this is not needed to the extent that it's written, 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. And Mr. Lorenz further said he understands and what the recommendation is, to simply allow the discharge of stormwater into wetlands systems if hydric soils and existing hydrology would support it. Now, my participation in that and what I understood we were doing was trying to keep the system simple. We have a system that's working now, and had a couple of different deviations needed. Those people went before the BCC, they got whatever they got. And we were simply trying to say if staff needed to have something in writing that says what they have been doing all along is still okay to do, that was what I thought was going to come back to us. That was what I thought the motion was. COMMISSIONER CARON: And isn't that what Barbara just said? CHAIRMAN STRAIN: I'm not going there yet because that's-- from what I'm understanding from the county attorney, we're trying to clarify just the motion on the 29th. MS. STUDENT-STIRLING: Correct. CHAIRMAN STRAIN: So my statement, my intention on the 29th was to have you keep it simple and just state what you're doing today in the form of clarification to the existing code but by keeping it simple. And that's what I thought the motion was, because I didn't see the extent of what you had presented at the time to be necessary. It was going into way more areas and more intensity than needed. That's my thoughts. Page 60 October 11, 2006 Mr. Murray? COMMISSIONER MURRAY: I thought Mr. Klatzkow indicated that it was solely the question of whether it comported with the GMP. And if that were the case, then in this conversation this morning it seemed to have broadened beyond that. Can we be constrained, or should we be constrained to just dealing with that aspect? And then I would also ask the Chair, if we were to confirm that and send -- will that send it forward? Will that deprive us of an opportunity to reevaluate based on what Commissioner Adelstein has just indicated, which I agree with, we need to look a little deeper? What is that position -- what does that put us in? And I would like to know if you think I'm wrong about that being about the GMP, whether it comports with the GMP. MS. STUDENT -STIRLING: And I would have to call Mr. Klatzkow again, because when I spoke to him, there was no mention made, to my recollection at least, of anything about consistency with the GMP. And I -- you know, if that's all that there is on that part of it, I think that's probably not a problem. But for -- again, if the changes coming out of the EAC on the 6th, that's what presents the problem, because we're beyond the five-week thing. And I do need to advise the board, the courts look at the advertising requirements very strictly. And if somebody -- if you go forward without proper advertising, the courts will declare -- if it's challenged, it has to be challenged of course -- you know, the thing is of no effect and void. And it's very strict requirements that the courts require of local governments on a hearing to advertising requirements. CHAIRMAN STRAIN: Mr. Kolflat? COMMISSIONER KOLFLAT: I do not recall any mention of GMP or reference to during that vote -- discussion. CHAIRMAN STRAIN: Mr. Vigliotti? Page 61 October 11, 2006 COMMISSIONER VIGLIOTTI: Yeah, I agree with Mr. Adelstein, that this is very poorly put together. There's too much confusion. I think we need to somehow -- what do we need to get it to the next cycle? CHAIRMAN STRAIN: If that's the consensus of this board, then I think what we have to do is what Margie told us to do, is we need to again continue this meeting until such time that it can be readvertised properly for this one issue and have this one issue come back to us and regurgitate again what happened today. That's what it boils down to. I have no problem with that myself, because I think enough confusion has been thrown on the table today that it certainly wouldn't hurt to have it come back in a more organized manner, and maybe in a manner where staff can sit with the public who are involved, and especially the six speakers that spoke today, and try to get an understanding of how things need to be clarified to make this smoother so we're not reinventing the wheel in front of this board agaIn. Mr. Schiffer? COMMISSIONER SCHIFFER: Mark, do we have the other option to actually have staff do what we said in our motion, which was really to write that simple clause? CHAIRMAN STRAIN: That's still what the intent was. But Margie, since they've gone through the EAC and they have new language in the EAC, I think we're obligated to mostly identify and address that as well now at this point. MS. STUDENT-STIRLING: Right. And therein lies the problem. If it were just a matter of effectuating the motion that you already made, taking it forward, and you just said yeah, that's what we said so take it forward, that's one thing. But when you start changing stuff, then therein lies the problem. CHAIRMAN STRAIN: Okay. How many -- I'm just -- I'm not Page 62 October 11, 2006 asking for a motion, everybody show of hands, how many members of this panel would like to see -- not like it -- think that the best solution is to see this readvertised and come back to us as soon as it can for final discussion? COMMISSIONER KOLFLAT: (Raises hand.) COMMISSIONER SCHIFFER: (Raises hand.) COMMISSIONER CARON: (Raises hand.) COMMISSIONER ADELSTEIN: (Raises hand.) COMMISSIONER MURRAY: (Raises hand.) COMMISSIONER VIGLIOTTI: (Raises hand.) CHAIRMAN STRAIN: (Raises hand.) Okay, that's unanimous. COMMISSIONER SCHIFFER: May I ask for another straw vote, is how many of us would like to see it handled in the next cycle? CHAIRMAN STRAIN: Can we do -- yeah, this isn't a motion but I guess for a straw vote it wouldn't hurt. MS. STUDENT-STIRLING: This is like a straw vote. CHAIRMAN STRAIN: Yeah. How many people would like to see it handled in the next cycle when I guess it would be more time for the public to interact with the staff? COMMISSIONER KOLFLAT: (Raises hand.) COMMISSIONER SCHIFFER: (Raises hand.) COMMISSIONER ADELSTEIN: (Raises hand.) I'd like to see that. COMMISSIONER MURRAY: (Raises hand.) COMMISSIONER VIGLIOTTI: (Raises hand.) CHAIRMAN STRAIN: (Raises hand.) Okay. So that's a majority for that too. That may be the outcome of the next meeting if the confusion that reigned today continues then. So with that, Mr. Schmitt? COMMISSIONER MURRAY: He also voted for it. MR. SCHMITT: Just so -- Page 63 October 11, 2006 COMMISSIONER ADELSTEIN: Did you vote for that, too? MR. SCHMITT: No, just so you understand, the next cycle, we're talking probably well within late summer, early fall of '07. CHAIRMAN STRAIN: Mr. Schmitt, we don't have a system that's broken now, so what difference does it make? MR. SCHMITT: We're bringing this back based on board direction. This was an amendment that came out of direction of the board. If you see it that way, we'll forward that recommendation to the board that this amendment is not needed and will be reassessed in the next cycle. CHAIRMAN STRAIN: I think the consensus was that we'd like to see this come back after another hearing and try to finish it. And if we can't at that point, our vote may be just to bring it back to another cycle. But, I mean, I'm willing to put the time in, I think the rest of the board members indicated by their straw vote that they were willing to do that. So Ms. Student, is that enough direction? MS. STUDENT-STIRLING: I think so, yes. I think so. CHAIRMAN STRAIN: Is there a motion to continue -- well, we can't continue it to a specified date and time but we'll continue the meeting to an advertised date and time in the future. Is there a motion needed for that? MS. STUDENT-STIRLING: I think that -- well, if we could back up on the advertising right now. CHAIRMAN STRAIN: This is the 11th. We have a meeting on the 26th as it stands. MS. STUDENT-STIRLING: Why don't you allow the motion to be at the next meeting that could meet the advertising. In other words CHAIRMAN STRAIN: The next Planning Commission meeting that could meet the advertising. MS. STUDENT-STIRLING: -- meeting that could meet the Page 64 October 11, 2006 advertising the quickest. CHAIRMAN STRAIN: Okay. Does that work with everybody? Is there a motion then to continue this meeting to the next available Planning Commission meeting where it can meet the advertising criteraments (sic) for this one issue of this LDC cycle only? COMMISSIONER VIGLIOTTI: I'll make that motion. COMMISSIONER ADELSTEIN: So moved. CHAIRMAN STRAIN: Mr. Vigliotti made the motion, Mr. Adelstein seconded it. All in favor, signify by saying aye. COMMISSIONER KOLFLAT: Aye. COMMISSIONER SCHIFFER: Aye. COMMISSIONER CARON: Aye. COMMISSIONER ADELSTEIN: Aye. COMMISSIONER MURRAY: Aye. COMMISSIONER VIGLIOTTI: Aye. CHAIRMAN STRAIN: Aye. Anybody opposed? (No response.) CHAIRMAN STRAIN: Motion carries. Weare done with stormwater and preserves for today. Now, if you all thought that discussion was complicated, you haven't seen nothing yet. Weare now going to be starting on comprehensive planning staffs issue, which will be the EAR-based Growth Management Plan element amendment. This is the adoption hearing for the Collier County Planning Commission. The first item of discussion for today will be the conservation and coastal management element, as requested by staff. There is a seminar or something that's happening that environmental staff won't be available, so we're trying to accommodate them on this issue. Everybody know that about quarter to 12:00, we will take a one-hour Page 65 October 11, 2006 lunch break? Then we'll be resuming right after lunch at a quarter to 1 :00 back here. COMMISSIONER SCHIFFER: Mr. Chair? CHAIRMAN STRAIN: Yes, sir. COMMISSIONER SCHIFFER: The question, isn't the method from this point on we're going to go through the state's objection, recommendation, comment report items only, or are we going to -- I mean, obviously that may take us out of that window. But isn't it essentially our duty for the next couple of days is to really work with staff on these responses only? CHAIRMAN STRAIN: That's part of it. And maybe -- I'm sure Randy's going to have some comments. But what I had also done, Brad, is I went back and reread everything that we had processed earlier, because we had recommended language changes that we didn't see come back to us, they went to the BCC. Then the BCC had recommendations as well. So even though the ORC report came back to us and had specific comments, there is some language changes in the prior language that left us and left the BCC that I had picked up on, and I was looking at some of that as well. But if staff tells me it's out of bounds, then we won't go there. Mr. Cohen? MR. COHEN: Mr. Chairman, under normal circumstances we would be addressing what's in the ORC report. If staff has inadvertently not addressed the policy directed from the Board of County Commissioners, we would also be remiss in not addressing that as well too. Even though it wasn't transmitted to DCA, we would identify that as an item that we didn't transmit previously, transmit it with the other comments from the ORC as well, too. It's not our preference to do that, but if we have missed something, obviously we need to do that, if you give us that policy Page 66 October 11, 2006 direction. CHAIRMAN STRAIN: Well, I don't know if you missed anything, Randy, because I didn't have the ability to watch the BCC meeting and take the notes, nor see your draft afterwards. All I know is that when I read the ORC report, I also read the follow-up package that you provided with it, which is the thickest part of this document. And in looking at some of that, the language changes or the discussions that ensued brought back some concerns about other points in those other documents that now may be triggered because of the other issues that were changed. So I guess we'll just have to go into it and see where it goes. And if it's going out of bounds, let us know. MR. COHEN: And for the record, Randy Cohen, Director of Comprehensive Planning. What we'd like to do first is have David give you an overview of what was in the ORC report and also a general synopsis before we get into the elements themselves. That way we can set the general framework for where things need to go. CHAIRMAN STRAIN: And when we actually get into wanting comments from the Planning Commission, I would like to take it page by page in the 0 RC report part, and then however you want to in the balance of the book. Thank you. MR. WEEKS: For the record, David Weeks, Planning Manager in the Comprehensive Planning Department. First of all, as has already been stated, this is an adoption hearing for the Growth Management Plan amendments based upon the EAR Evaluation and Appraisal Report that was adopted in 2004 by this county and then subsequently found sufficient by the Department of Community Affairs. I've placed out on the hall table a sheet just like this, a spreadsheet. This is a sign-up sheet. This is required by state statutes. What this is, is a sheet that allows an interested party to sign up and Page 67 October 11, 2006 then subsequently receive a courtesy notification by the Department of Community Affairs, DCA -- we'll be referring to that a lot today -- to receive a courtesy notification of their notice of intent, after reviewing these adopted amendments, notice of intent to find the amendments either in compliance or not in compliance with state statutes. Again, that's a requirement that's just a formality. As I just stated, the EAR was adopted in 2004 and found sufficient by the DCA later that year. The amendments to the Growth Management Plan, to every single element of the Growth Management Plan, was reviewed at transmittal hearings earlier this year, specifically by this body in March and April, and then April and May by the Board of County Commissioners. Their final hearing was on May 16th, approving the transmittal of these amendments to DCA, the Department of Community Affairs. And on July 28th, DCA issued their obj ections, recommendations and comments report, ORC for short. The ORC report. And in it they identified 26 obj ections to the amendments that were transmitted to them. You'll note in the staff report that some elements did not receive any objections, and those are identified in the report. Objections may form the basis of a noncompliance finding by DCA if the objection is not satisfactorily addressed. Some of the objections require language changes. Some of the objections merely require additional data and analysis, additional information to justify and support the amendment as it was transmitted. And you will find that we have done both of those things, and in some cases both for the same objection; that is, we both revised language and provided additional data. In other cases we've only revised the language or only provided additional information. And in some cases we have not changed the language, even though DCA recommended we did, but we've explained why not. We Page 68 October 11, 2006 provided the information we believed to justify why we have not made their recommended changes to the language. Additionally, a noncompliance finding could be made by -- could be found by DCA if we were to make substantial amendments to the GMP elements not in response to the ORC report. That is, if we go outside of the scope of just addressing the objections. So we want to be very cautious when we contemplate making changes that are not in response to the ORC report from DCA. The reason for that is that's part of the process here is that the amendments are transmitted to DCA, they issue this ORC report. It's -- we can think of it as their preliminary review. So they're identifying the areas of concern. We should then address those areas of concern. But if we go beyond just those objection areas, then potentially the next step is a noncompliance finding by DCA. We don't get another ORC report. We don't get another preliminary response from DCA. This is our final action in adopting an amendment. So again we want to be cautious in making amendments beyond those in response to the objection. We believe we have accurately transmitted the amendments as approved by the BCC, which in some cases may mean they took a final action to transmit contrary or different to what the Planning Commission had recommended. Specifically noted in the staff report is one very minor, and I almost want to use the word petty, change that we're making to the conservation and coastal management element. And it was actually an oversight. We made a different -- a different policy was amended. This policy is a companion to that in the sense that it reads verbatim but under a different objective, but we failed to make the same change. That is noted in your staff report. There are also going to be a few changes that staff will present to you today to the language that you have. One of the things that was e-mailed to you after your packet was Page 69 October 11, 2006 sent to you, and I provided hard copies today as well, was the recommendation from the EAC, Environmental Advisory Council, that met on October the 4th. Their meeting was held after these packets were prepared. And staff does endorse the changes, the revisions that were recommended by EAC. Additionally, one specific amendment that you do not have in your packet pertains to Section 24 in the North Belle Meade overlay. You might recall that this was the area that's presently designated as neutral on the future land use map, and was transmitted with a recommendation it be changed to sending. This was based on the red-cockaded woodpecker study. The plan as it reads today designates that land as neutral but indicates that a red-cockaded woodpecker study should be performed for the North Belle Meade area and then the outcome of that study should determine whether or not the county should change the designation from neutral or leave it as it is. And again, it was transmitted as sending lands, but the County Commissioners directed staff to go back and do some further evaluation. They directed staff specifically to contact the property owners in Section 24 to seek their permission to go onto their property to do some groundtruthing, actual on-site views of their property and properties proximate to it to see if the staff could identify any Red-cockaded Woodpeckers or foraging habitat. Basically to either confirm or not confirm the findings of the study that the county's consultant had prepared. Again, that information is not in your packet, so you will not be able to take action on that today. I wanted to give you that heads up. So ultimately the future land use element and the conservation and coastal management element are both related to that Section 24 issue; therefore, we will have to either continue those two elements to a subsequent hearing or perhaps even readvertise for those to be considered later. Page 70 October 11, 2006 We need to go back and meet with stakeholders group and let the EAC review that information that study that staff has done, the additional analysis that staff has done based upon the site visits on the handful of properties that we did get permission to go onto. Secondly, you noticed in your packet the drainage sub-element is not quite finished either. We just had placeholder text in your packets. There's one objection that we have not yet addressed. Similarly, you will not be able to take your final action on that until some future hearing and hopefully we'll be able to continue to a date certain and much closer in time from today's date such that we won't have to readvertise. But it is specifically an objection pertaining to where the level of service standards are not being met for various drainage facilities. The question is that we need to identify what they are. And lastly, the staff recommendation for all of the elements that we have completed our review of, which is all of those I just mentioned, our recommendation is that you forward the amendments to the county commission with a recommendation that they adopt them as reflected in the staff report, as reflected in the attachments to it, most particularly the ORC response document, and as may be modified in today's hearing as we present you with some very limited additional information. CHAIRMAN STRAIN: Thank you. And I bet, Cherie', you really like recording David's discussions. THE COURT REPORTER: He is wonderful today. Thank you. COMMISSIONER MURRAY: Could I ask a question? CHAIRMAN STRAIN: Yes, Mr. Murray. COMMISSIONER MURRAY: Of Mr. Weeks? MR. WEEKS: Yes, sir. COMMISSIONER MURRAY: If any of these go forward and they are found out of compliance, what is the impact or the effect to the county? Page 71 October 11, 2006 MR. WEEKS: Succinctly put, additional staff time and money. Well, not just of staff, county time, period. Very briefly, the first thing that would happen is that we would try to meet with the DCA to reach a settlement agreement, what can we do to satisfactorily address the noncompliance issues. That is, reach a settlement agreement as to subsequent amendments that we will make to the comprehensive plan. And if we're successful in that endeavor, and have the settlement agreement approved by DCA and the county commission, and then we would prepare those amendments and go back through this process agaIn. But it will not be a two-step process, it would simply be straight to adoption. That is, no transmittal hearings and adoption hearings, it would strictly be adoption hearings. If we're not successful in trying to reach settlement, then we ultimate end up having administrative law hearings in front of an administrative law judge. And then that judge would make their recommendation back to the Department of Community Affairs. And depending on the outcome of his or her recommended order, we might conceivably have the amendments found in compliance or we might end up in front of the Governor and Cabinet as the Administration Commission, and they would issue that -- a final order finding the amendments in compliance or not in compliance. COMMISSIONER MURRAY: I thank you for that. CHAIRMAN STRAIN: David, it's my understanding that we're going to be moving forward with the CCME portions first. And if that's the case, will you be working the references in the ORC report in the CCME first? MR. WEEKS : We will take that first, at the Planning Commission's approval, but actually the environmental staff will take the lead. CHAIRMAN STRAIN: The only reason I'm bringing it up is it's Page 72 October 11, 2006 not going to be then in the order in which it's presented to us today. So I need someone, whoever is speaking, to be very clear to the Planning Commission what page we're on so we're all on the same page. MR. WEEKS: Sure. Thank you, Mr. Chairman. On that point, principally we will be using the document located immediately behind the staff report. That's the -- get the correct title for it -- that's the 44-page document that -- it's titled the 7/28/06 ORC report and Collier County response. That document contains each of the obj ections immediately followed by staffs response, which mayor may not include revisions to language. CHAIRMAN STRAIN: Thank you. MR. LORENZ: For the record, Bill Lorenz, Environmental Services Director. I believe David indicated that the EAC met on -- I lost the date -- on October 4th and reviewed the staff proposed response to the ORC report. And David has provided you with the EAC's recommendations. So I'll walk you through those recommendations and then cross-reference it to the page number in your staff report as well. CHAIRMAN STRAIN: You need to start -- are we going to be starting with the CCME tab in the back of the book then? MR. LORENZ: I would start on Page 29. David? MR. WEEKS: Mr. Chairman and Commissioners, the elements that are located behind the tab with this particular element name, my suggestion is generally that we ignore those. And here's why: Those elements are in single underlined, single strikethrough. That would be the version that is proposed for actual adoption. It is the ORC response document immediately behind the staff report that uses the double underlined, double strikethrough format to Page 73 October 11, 2006 show the changes that are proposed in response to the ORC report itself. That's where I would suggest that we look. COMMISSIONER VIGLIOTTI: Are you suggesting the first 44 pages is where we start? MR. WEEKS : Yes, sir. With the exception of occasional handouts where we may deviate. And in particular, as Mr. Lorenz just stated, the EAC reviewed the CCME on October 4th, and there's a separate handout. So we should follow that handout for the CCME. COMMISSIONER VIGLIOTTI: Makes it easier. CHAIRMAN STRAIN: It might. Go ahead, Mr. Lorenz. We're starting on Page 29 with your discussion? MR. LORENZ: Yes, that's correct. Middle of the page is the objection number one. There were four objections in the CCME that deal with the environmental component. I believe there was a fifth objection that deals with emergency management. I assume a comprehensive planning staff member is going to be dealing with that. The first objection dealt with the watershed management plans. And the objection essentially -- the recommendation the DCA had was to revise the policy to establish interim standards to ensure the protection of these areas. And what staff had put together, plus the EAC's recommendations, was a series of interim standards that were added to the first paragraph. And those interim standards essentially listed A through E. And then the EAC recommended a new interim standard F, along with some other changes to those standards. What I'd like to do simply is to initially walk you through the intent of those standards. Robert Wiley is here. Robert is a project engineer in the engineering services department. Essentially these watershed management plans are going to dovetail with some additional efforts that are currently going on now with regard to a floodplain ordinance. And Robert will be here to Page 74 October 11, 2006 answer any questions specifically regarding a vast majority of these interim standards. But essentially interim standard A was to provide for proj ects to meet, and this would be a new requirement, 150 percent of the water quality requirement that's currently required, and then additionally to meet the other standards that currently exist in the drainage element. So that's essentially Item A. So it provides for additional water quality treatment for new development and redevelopment projects. And I'm using new and redevelopment as being the EAC recommendation here. Item B is the fact that any loss of storage or conveyance volume resulting from any impacts to wetlands would have to be compensated for, either on-site or at least provide for that capacity within or adjacent to the impacted wetland. CHAIRMAN STRAIN: Bill, as you move forward, at what point do you want us to interrupt you for questions? Or would you rather wait until you finish your presentation and we ask them all at once? MR. LORENZ: May I at least go through this one particular, the watershed obj ection, and then -- CHAIRMAN STRAIN: That's fine. MR. LORENZ: -- I would be good for questions. CHAIRMAN STRAIN: I just wanted to know what format you preferred. Thank you. MR. LORENZ: Thank you. Item C, floodplain storage compensation needs to be evaluated for developments in particular flood zones. And that is part of one of the interim standards. Item D is to essentially look at -- within certain areas that are identified as priority, and those areas are the restoration projects that have been identified in the Southwest Florida Draft Feasibility Study, which the figures should be in your packet. That those flowways be evaluated to -- or proposed impacts to those flowways be evaluated to Page 75 October 11, 2006 ensure that flowways essentially will function as naturally as possible. So there's several -- there's a fairly large paragraph that identifies those particular standards. And again, the EAC's recommendation on this one was simply to ensure that when we specify flowways that we're talking about natural wetland flowways or sloughs. Standard E was that the county would require all development proj ects to obtain necessary state and federal environmental permits. Quite frankly, this is something that we do now. We wanted to reiterate that in terms of the interim standards. And Item F is a recommendation that the EAC has suggested or recommended. And staff is in support of the language that you see here now, which is that within one year of the effective date of the amendments to identify or adopt land development regulations requiring best management practices for projects. Best management practices are essentially either structural or non structural means to reduce water pollution from a particular project site. Initially the EAC had recommended that we actually list or adopt a series of best management practices. Staff suggested that at least let's go through a process and evaluate the practices initially, so -- first off, so this would be incorporated in the Land Development Code, eventually. And then Figure 1, they suggested that we simply title the figure. It didn't have a title. One thing I would want to make note of, and I know that -- and I would guess Judith Hushon is here from the EAC -- is when the EAC reviewed the requirements, they provided staff with general direction, and some cases some specific language, but staff -- the EAC provided staff the ability to work the language through because of the timeliness that this had to get put into your package. And I know that Judith was to be looking at the language and Page 76 October 11, 2006 maybe make some comments to ensure -- give you confidence that we met the intent of the EAC's recommendation. I think we have, but that would be something that she may want to comment on. Let me make one other point, and it dovetails a little bit with the stormwater amendments. You note as the interim standard A being the 150 percent of that water quality, that's basically the reference to a water quality requirement. If this were to move forward, and ultimately we would get this into the Land Development Code, any place that we have in the code now that would have to be amended, and possibly the stormwater preserves amendment, because we're talking about the water quality requirement, would have to match up with this requirement. So there would be a little bit of an interrelationship there. That's essentially all that I have from -- for this particular objection. I know that -- I'll try to answer any questions you have. But if most of your questions are dealing with the floodplain compensation and some other items like that, Robert Wiley would be here to answer those questions for you. CHAIRMAN STRAIN: Mr. Kolflat? COMMISSIONER KOLFLAT: I just had a few minor questions here. Under Item B, you refer to adjacent to the impacted wetland. We have had discussion in the past about adjacent and abutting. Do you mean this should be abutting, or could a road run between it? MR. LORENZ: Yes, I -- 1'11-- when we're talking about a wetland system, let's say within a project site that's being affected through loss of compensation, you could have, and -- you could have a nearby wetland, not necessarily contiguous with another wetland being impacted that would provide the appropriate compensation storage lost by that particular site. But let's say it's certainly adjacent in that particular sense. It would have to be evaluated with regard to the hydrologic effects, not necessarily the exact linear distance from the impacted wetland. Page 77 October 11, 2006 Robert may want to comment further on that. MR. WILEY: For the record, Robert Wiley with Engineering Services Department. Adjacent basically is referencing an elevation within the same drainage basin in close proximity. So if there is an impact upon the displacement of stormwater surface flow, it doesn't have a negative impact to surrounding properties but is resolved by replacement storage. It does not have to be immediately contiguous to it, though, but will be close by, and is more elevation-driven within the same drainage basin. COMMISSIONER KOLFLAT: Thank you. One other question, if I could. On the revised in the blue that they gave us this morning under Item A it references all new development and redevelopment. Is new time-related, and if so, what is the time that's going to designate new? MR. LORENZ: Typically that time -- and again, I look at David here -- is usually -- unless it's specified differently within the plan, new would typically carry the effective date of the amendment. Anything that would be in after the effective date of the amendment would be considered new. And I'm getting head nods from the compo planning folks. COMMISSIONER KOLFLAT: Thank you very much. CHAIRMAN STRAIN: Any other questions on this? COMMISSIONER SCHIFFER: I have some. CHAIRMAN STRAIN: Mr. Schiffer? COMMISSIONER SCHIFFER: And kind of maybe to follow up on Tor's question there, is that does the definition in the Land Development Code apply to the Growth Management Plan? Because it wouldn't meet what Robert said. MR. WEEKS: I'll take that. Not necessarily. That's two completely different documents. So we certainly could interpret the Growth Management Plan differently than Page 78 October 11, 2006 LDC definitions. COMMISSIONER SCHIFFER: Very good. MR. WEEKS: And just to briefly go further, sometimes there are statutory definitions that we rely on which are definitely different than the locally adopted definitions in the LDC's, and we wouldn't want to follow the same. COMMISSIONER SCHIFFER: Okay. The other question is this Figure 1. Back in the book, Figure 1 is the one that -- it has ADG, DAT project changes. Is that Figure I? MR. LORENZ: Yes. COMMISSIONER SCHIFFER: And you want to -- up above in D, you call it the Southwest Florida Draft Feasibility Study. And then down below, does it have another name, or -- the EAC wants to call it the restoration proj ect areas for interim development standard. So should we just -- it's just a matter of grabbing one name? MR. LORENZ: I understand what you're saying. In other words, we could simply say all development located -- all development located within the areas within Figure 1, and then we'll just simply have Figure 1 as the title. COMMISSIONER SCHIFFER: And then you'll call that -- Figure 1 will be the Southwest Florida Draft Feasibility Study? MR. LORENZ: No, I would want to keep that as the restoration project areas where interim development Standard 2.1.E is applicable. MR. WEEKS: If I may, that figure comes from the Southwest Florida Draft Feasibility Study. So the reference to Figure 1 is a reference from that study, as opposed to that being the title of the map or figure. COMMISSIONER SCHIFFER: Okay. So it will just be titled Figure 1 and referenced by these other clauses? MR. WEEKS: Right. We could tweak that, I think, sentence -- that phrase in Item D for clarification. I could see where you could read that as the title of Figure 1, and then it conflicts with E. I think Page 79 October 11, 2006 that was your point. MR. LORENZ: I think the point for the Growth Management Plan, the implementation part is that it's those areas where that standard will apply is -- you know, from a historical-- from a background standpoint, those areas are the restoration proj ects from the Southwest Florida Feasibility Study. COMMISSIONER SCHIFFER: And Bill, do you feel that this really does meet the recommendation that these are adequate interim standards? Because that's -- MR. LORENZ: Well, obviously we don't know 100 percent sure until we get the final designation from DCA. But from a staff perspective, I think that we have covered what we would consider some important functions of watersheds, which is water quality, flood storage, protection of wetland flowways. And I think essentially we have covered those areas in these interim standards. And I would certainly be an advocate of those as interim standards for DCA to approve. I'll let Randy speak to any other questions. MR. COHEN: David -- David and I spoke with DCA with regard to interim standards. Obviously there are no interim standards that exist, you know, that DCA would rely upon. So when it came to the watershed management plans, what they've done is they've looked at it from the standpoint that we had indicated in the previous compo plan that we would complete the watershed management plans by 2000. The language that we had in place would not effectuate their completion until 2010. So they indicated that we need to come up with those interim standards. What those would be, they're basically relying on the expertise of our staff to identify, again water quality issues, water quantity issues, volume and different things. I think we've done that and I know we've dealt with the stakeholders with respect to this issue as well. And I believe they're comfortable Page 80 October 11, 2006 with that, as well, too. Can we tell you with absolute certainty that DCA's going to be happy with it? We can never tell you with absolute certainty that DCA's going to be happy with what we've provided as interim standards, but we feel fairly comfortable with what we've drafted, that it meets the intent of their objection. COMMISSIONER SCHIFFER: They don't trust our timing. MR. COHEN: Well, obviously having not met the 2000 date, their concern was that in the interim we need to do something to address the impacts on our watersheds, because we haven't done it in the past. CHAIRMAN STRAIN: Mr. Murray? COMMISSIONER MURRAY: I'm going to appear to beat you up on the same thing that Mr. Schiffer was relating to. I certainly don't wish to beat you up. But in reading under Objective 2.1 with your revised text -- I'm sorry, with the statements here, there's an awful lot oftentativity. And what I read from the objection was that they really want you to be . . more preCIse, more conCIse. Is it a matter that it's not feasible to be -- that this can be done within a shorter time frame because of staff or because of just the totality of the subject? Because when reading it, I see there's an effort being made to go forward, but I'm not sure. If I were looking at this simplistically, comparing it to their recommendation, I would still be scratching my head. So perhaps you could make a little bit further comment. MR. LORENZ: Yes, I may want to have Joe Schmitt or Robert Wiley discuss this a little bit as well. The board did adopt in the budget for FY '07 I believe $4 million for the watershed management plans. Staff expects to do that or implement that through contractual services. And we will begin to Page 81 October 11, 2006 prioritize the basins according to the plan and begin that work. And that work is going to be done within the engineering services department. The timing of it is still difficult. Weare not completely staffed up for it. That's going to have -- staffing will be an issue. Exactly developing the scope of services for the watershed plans and going through the procurement will be an issue. There can be some savings in time with regard to consolidating staff -- consolidating reports by staff to provide for the consultants. But quite frankly, and again, some comments from some other quarters is, is launching these types of studies and projects typically just simply take longer than you initially think that they're going to take. Even I may be very conservative sometimes in my time lines and find that it still goes out very far out in the future. To the degree that these time lines work for DCA and the interim standards are appropriate, I think that we've got a good proposal. COMMISSIONER MURRAY: I thought what came out of your answer, and I thank you for that, was one thing that I thought maybe I'll make a suggestion, that you mentioned that there was -- you thought perhaps $4 million was adopted and in the budget for this purpose, among others. Perhaps that should be put into this document as well, if that would support directly what it is that you are attempting to achieve. I don't know, David, if whether or not that applies. MR. COHEN: Mr. Murray, for the record, there is an existing policy that follows the objective that it identifies that the county will fund the watershed management plans. COMMISSIONER MURRAY: Okay, thank you. MR. COHEN: You're welcome. CHAIRMAN STRAIN: Are there any other questions? (No response.) CHAIRMAN STRAIN: Ifnot, I have a couple. Page 82 October 11, 2006 What interim rules or policies do we have currently in place in lieu of the watershed management plans? Are these the same? MR. LORENZ: We have the 100 percent -- well, the 100 percent for the water quality, so the 50 percent water quality is in addition to what we currently have. The loss of storage or conveyance volume, that language is applied to the rural fringe. We are now applying this countywide. Floodplain compensation to be evaluated, I'd have to ask Robert specifically about that. Item D, regarding the flowway, evaluation offlowways, that is all new language. We do not -- we are not currently doing that in terms of having any criteria for evaluating wetland flowways. Item E essentially is -- we do require that for all projects. Item F would be -- CHAIRMAN STRAIN: Okay, then I've got a few questions based on that information. Item B, loss of storage or conveyance volume resulting from direct impacts to wetlands. So if you have a home or a project in which you're not having any direct impacts on wetlands within that proj ect, does B apply? MR. LORENZ: No, it wouldn't. CHAIRMAN STRAIN: Okay. Number C, floodplain storage compensation, it refers to designated flood zones A, AE and BE. Does that mean it would not apply to any flood zone that is not represented by those three? MR. WILEY: That's correct. The other flood zones we have in the county are flood zone D, which says no determination would be made, and then you have the X, which states you're outside the lOa-year floodplain. CHAIRMAN STRAIN: I know which are the ones we have. I just wanted to make sure I understood the reading of that sentence. MR. WILEY: This is to mainly get better compliance and with Page 83 October 11,2006 FEMA requirements. CHAIRMAN STRAIN: Item D, especially with the language added by the EAC, it only applies to wetland flowways, natural wetland flowways and sloughs; is that correct? MR. LORENZ: That's correct. CHAIRMAN STRAIN: Last month or the month before we had some severe flooding in Golden Gate Estates, as well as a lot of other places. A lot of Golden Gate Estates is flood zone X. A lot of the flooding occurred because people had built up areas that were now pushing water into flowways. Flowways that used to handle six inches of water may now be getting 12 inches of water flowing through them. It's a much more intense situation as a result of the building that we've allowed. It doesn't address sheet flow that used to flow across these lands historically. And I want to know what we're doing to address that and where in this document that is addressed. MR. WILEY: For the record, Robert Wiley again. Golden Gate Estates is not flood zone X, it's flood zone D. CHAIRMAN STRAIN: Okay, I'm sorry. My house is in the Estates, and I'm X, but -- MR. WILEY: Well, with the new maps that are out, it should be a flood zone D. CHAIRMAN STRAIN: When I looked on the website, it still shows it as X. MR. WILEY: Okay, that's fine. With the D it says no determination has been made. That's really all that's saying. As far as the application here within Golden Gate Estates, the house pads that are coming together, narrow lots, basically one pad touches the next, it effectively can create a berm. It can redirect flows. What you see here is not necessarily intended to prohibit that if that's not in a flowway already. If there is a flowway situation though Page 84 October 11, 2006 that that house pad construction would be negatively affecting it, then this would apply. But this would not be a situation you're talking about where you have the potential for natural sheet flow, which is overland, but it's not directly been a slough or a flowway itself. The potential for that to be redirected, that's not really addressed by this one. CHAIRMAN STRAIN: Why not? MR. WILEY: With Golden Gate Estates situation you have out there, with all the roadside swales, they're already bisected in so many different directions. The purpose here is to try to put in some regulations that are going to affect development more on the larger scale and not necessarily on the individual single-family homes in an existing private subdivision. Long-term goals of the watershed management plans we're working on will be to look into those issues and address those. But we have to come up with some definite direction and reasons for that direction. And we are in the interim standard right now, which we don't have that level of detail to put out a standard which can be applied in all cases. CHAIRMAN STRAIN: So the watershed management plans that have been in the works since what, maybe '93 and there were new deadlines in 2000 -- MR. WILEY: They haven't been started yet. CHAIRMAN STRAIN: -- go back a long -- I know that. That's my point. So we're looking at over a decade and they haven't started yet. And for that decade of loss of interim attention to this flood zone issue, or the sheet flow issue, which you just admitted is part of the watershed management plans but is not part of these interim guidelines, I think that the causes and the reactions what we're seeing in places like Golden Gate Estates are a direct result of the interim Page 85 October 11, 2006 guidelines not addressing that specific issue, especially when you just testified that the watershed management plans would address that Issue. MR. WILEY: That is one of the obj ectives of the watershed management plans. CHAIRMAN STRAIN: Then why shouldn't it be an objective of the interim? MR. WILEY: I'm not saying it should not be, but what we are looking at here is areas of the natural flowways, the sloughs, those are areas where if you deliberately come across with an obstruction or a restriction to them, you can have a negative impact upon upstream watersheds from it. In areas where you're not in a slough or a flowway but just because of excess rainfall that creates a broad sheet flow where normally it would be considered upland condition, that's not the same type of consideration that we are giving here for the watershed. CHAIRMAN STRAIN: I realize that. MR. WILEY: If you want, we can get into quite a lengthy discussion on the effects of the recent flooding in Golden Gate Estates. But that really is being directed towards meetings being put forth by Commissioner Coletta coming up in December. CHAIRMAN STRAIN: Well, I can't see allowing a bad situation to be made worse on something that should have been addressed over a decade ago. So if these are interim guidelines to protect the citizens of this county, and the watershed management plans that were supposed to have been put into effect over a year ago were supposed to protect the citizens of the county, then the interim guidelines in my opinion are falling short of that goal if they're not continually addressing the issues that we just spoke of, especially when we had a recent example of how damaging a lack of attention to that detail can be. So I don't know what staff intends to do, but my comments to this Page 86 October 11, 2006 would be these are incomplete interim standards, and until they're complete, I can't see them going forward myself. So if you want to vote on things as we go through this today, and if you want to vote on section by section, I'm very alarmed by this section not addressing an interim standard for the sheet flow that used to occur or should have occurred. We have projects coming up, for example next week, two of them, one of them in the Estates area, one in another part in the urban area that I think is zoned ago or nearly estates. And my question of those applicants would be how they address the sheet flow. I can tell you by the documents I've seen, I don't see how they've addressed it. But I would wonder why you, Mr. Wiley, and your department shouldn't be proactively looking at those. And if these interim guidelines give you that ability or don't give you that ability, I'd like to see something put here that gives you that ability. I would highly -- and that would be my recommendation. Mr. Schmitt? MR. SCHMITT: Commissioner Strain, I appreciate your comments. Unfortunately, I'm going to have to defer to the county attorney. We're dealing with platted lands and you certainly understand that Golden Gate are already platted subdivisions. Permits are issued individually, they're deemed de minimis, even though we know there's probably almost 1,000 a year being issued, maybe more. I don't know what the count is for this fiscal year but the past year has been I, 000. I'm not sure what you're asking. When you're looking at the Estates, we're dealing with property rights, we're dealing with individual rights to draw a single building permit to go in and actually construct a home. And are you asking that the interim standards somehow place some kind of a moratorium? Because that's kind of where I think you're going. Because otherwise there's nothing we can -- or are you looking for something from the county in regards to a Page 87 October 11, 2006 stormwater management system for the entire Estates? We know that is a significant problem. That's one of the issues that was brought up in the east of951 study. The costs for that are going to be significant. So I'm not sure from an interim standards standpoint where we can go with this. Because these are -- the interim standards are meant to deal with new development. The Estates and the issue of building permits are individual building permits issued one at a time. Unless they come in for some kind of subdivision, then we can impose the interim standards. But I'm somewhat confused as to what direction you want staff to go on this. CHAIRMAN STRAIN: I'm expressing a concern that's happening out in the Estates. And it's not the Estates that's causing it as much as it is the surrounding proj ects that are not required to address historic sheet flow across their properties and pass it through. Instead they're required only to address on-site rain water or stormwater elements that happen and retain those to a historic discharge rate. Instead of also looking at sheet flow and flow that used to come across their property, instead they're pushing that sheet flow off and it's building up in other areas. The Estates is a receiving area as well as a contributor in other cases, as Mr. Wiley so aptly put. But we certainly are a receiving area for those waters. And I think that every project coming forward in this county needs to address more than just retention of on-site stormwater and discharging at a historic rate, but also accepting the sheet flow that used to go across those properties at whatever historic rate can be determined and passing it through. That's what I'm trying to say. MR. SCHMITT: I'm questioning Robert. I mean, that's part-- that's beyond the -- I thought that was something that the district evaluates in their permitting process. CHAIRMAN STRAIN: Not that I know of. And I spoke onto Page 88 October 11,2006 Gene Chartrand (phonetic), I think, the gentleman that's in charge of the stormwater management department, and I don't -- Gene -- I'm sorry. And in his discussion, he didn't relay that to me that I can recall. So I think it needs to be addressed, and I'm wondering why in the interim -- we have an opportunity here to possibly address it, maybe we should. MR. SCHMITT: Based on what you said, if that's the case, we may have to look at language -- what you're saying is new development that impacts what are considered historic flowways. CHAIRMAN STRAIN: Historic sheet flow. MR. SCHMITT: Sheet flow. CHAIRMAN STRAIN: Take a look at Summit Lakes coming in, for example. MR. SCHMITT: Yes. CHAIRMAN STRAIN: That's a huge project. MR. SCHMITT: Yes. CHAIRMAN STRAIN: If there was sheet flow flowing across that site, once they build it up two, three, four feet with fill and dig lakes, they're going to come back to us and say we've met the stormwater management requirements. We're retaining on-site stormwater or discharging from that site at a historic rate. But what are they doing for the sheet flow that used to come across that property prior to their lifting it two or three feet up? Now that sheet flow is stopping. It can't go across the property anymore so it's building up in areas on both sides, south, north, east, west of that property. That buildup is what I believe has been part of the problem in Golden Gate Estates and other areas that have been inundated. And I want to know what interim standards -- or I would like to see the interim standards address that. That's what I'm asking. MR. WILEY: I'll try to address your question for you. As it Page 89 October 11, 2006 goes through development review for us, that's one of the things we do look at is, is there an existing flowway, direction of flow -- I know you're talking about broad sheet flow, but is there a direction of flow that historically has crossed that property. And if there is, we require them to either bring it through their system or to have conveyance around their system. Now, do we get every one of them? No. Because you are relying upon the information provided by the applicant. But that's one of the things that I personally get involved in review is the impacts regionally of that development as it comes through. CHAIRMAN STRAIN: And Mr. Wiley, I know you do. And you do a good job, you're a thorough individual. You're noted for that. MR. WILEY: Oh, dear. CHAIRMAN STRAIN: I'm just trying to make sure that these guidelines give you a stronger way to implement that function, if it's needed, and I think it is. I think it is purely by what's been proven to have happened here in the past 30 to 60 days. MR. WILEY: So you're asking us to perhaps amend this so it doesn't only say through the natural flowways and sloughs but also to specifically stipulate sheet flow? CHAIRMAN STRAIN: Yes, sir, I am. MR. WILEY: I have no objection to that. CHAIRMAN STRAIN: Okay. That's all I was trying to get to. Mr. Lorenz? MR. LORENZ: Yes, just to make a point, too, is just the note that D, when it talks about flowways, that's in those project areas within Figure I. It sounded like your discussion was a little bit broader than just those specific areas. CHAIRMAN STRAIN: Everybody likes to think flowways are the thing that needs to be addressed, and they are. But the problem with addressing just flowways is you're not addressing to the Page 90 October 11, 2006 contributors to the rise in the flowway volume. That's where my concern IS. And I believe the sheet flow issue will resolve that if we can start looking at it earnestly for all projects coming forward in the future. And for Mr. Schmitt's advice next Thursday, if the projects coming forward haven't looked at that and staff hasn't reviewed them, it would be wise to have staff review them before next Thursday's meeting. That's the only remaining issues I have on that one. Is there any others? COMMISSIONER SCHIFFER: I have some. CHAIRMAN STRAIN: Go ahead, Mr. Schiffer. COMMISSIONER SCHIFFER: And these are kind of scrivener -- you're referencing 150 percent of drainage sub-element Policy 1.6.1. There isn't, I don't think, at least there isn't in my book, policy -- I think you mean 6.1, that's all. Make it simple. MR. LORENZ: No, it's the drainage policy. COMMISSIONER SCHIFFER: In the drainage sub-element. MR. LORENZ: It essentially cross-references to the water quality requirements. COMMISSIONER SCHIFFER: It would be in the tab drainage sub-element? MR. WEEKS: Mr. Schiffer, you're correct. Bill, what's happened is we've stricken through the one. So it would just be six point. It's just a numerical change. COMMISSIONER SCHIFFER: And that's in other locations, too. And maybe I'm also confused at what 150 percent means. So in that Policy 6.1, the state regulations on discharge, we're going to do half again as much, or -- MR. LORENZ: That's correct. It may be, and let me look at this from -- and I'll work with Robert. It might be that we might want to Page 91 October 11,2006 more specifically identify that as the section of the South Florida Water Management District's basis of review that requires the water quality requirements. That may be more of a better reference. So that may be a more explicit reference. So that would make it -- because the reference right now for -- well, the old number, 1.6.1, the policy reads projects shall be designed and operated so that all site discharges shall meet state water quality standards as set forth in Chapter 17.302 Florida Administrative Code as it existed on August 31 st, 1999. That may not be as explicit as we may want it to be. COMMISSIONER SCHIFFER: I'm done. CHAIRMAN STRAIN: Okay, I think we're finished with this section. My question to staff is when we make recommendations to changes, are those going to come back to us again for information, or is staff just going to make them? How does that happen? MR. WEEKS: Commissioners, because we anticipate that you're going to have multiple hearing dates, at least two days, today and tomorrow, we could bring back to you the revisions that you've recommended for your final okay. Mr. Chairman, also we'd like to note that we do have a couple of speakers. One specific to watershed management plans that we're discussing right now, and then one just generally regarding the CCME. CHAIRMAN STRAIN: Bill, is this the last issue you have to discuss on watershed management plans? I'd rather finish all that first, then have our speaker and then we'll go on to the next issue. MR. LORENZ: Yes, I do. Unless staffhas -- the staff may have anything. I don't -- CHAIRMAN STRAIN: Okay, could we have the one speaker that wants to address watershed management plans? MR. COHEN: Mr. Chairman, we have two speakers. First up, Page 92 October 11, 2006 Nicole Ryan. CHAIRMAN STRAIN: You have two on watershed management plans? MR. COHEN: Yes, sir. CHAIRMAN STRAIN: Thank you. MS. RYAN: Good morning. For the record, Nicole Ryan here on behalf of the Conservancy of Southwest Florida. And I think that the ORC report has really shown that we cannot go on business as usual. They want something in place now. And as has been brought out, there was a 2000 deadline that was missed, which was actually a new deadline based on a 1993 deadline that was missed. So think of how much better we could have planned the county perhaps if we had watershed management plans in place. However, we have to start looking forward now. And it's tough to put in place interim standards that don't create mini-watershed management plans that might be difficult to be defensible. So we have made suggestions to staff for some ideas for incorporation into the interim standards, and EAC made some additional recommendations that we support and I believe staff supports, and do like the idea of having maybe another bullet that talks about development that will impact the historic sheet flow. I think it probably should be separate from the portion of D that ties to the feasibility study map just for clarity purposes there. But really what we want to get at with these plans and with the interim standards would be making sure appropriate wetland resources are going to be conserved. Making sure our drainage systems do not unacceptably affect wetlands and estuary systems. Making sure that the natural floodplains are protected, stream channels and native vegetative communities are protected. And looking also at nonstructural ways for stormwater management to be done, best management practices. And that was why the EAC and staff agreed to add the Page 93 October 11, 2006 supplement F, talking within a year having some sort of best management practices perhaps in the form of a stormwater ordinance to be put through. And that could deal with some of these overland sheet flow issues, too. These could be suggestions, encouragements or requirements. It's just a little too soon to tell on specifics of that. So we support what staff has put forward. We support the EAC recommendations and your recommendations . We believe that this is something good to get in place. And hopefully the watershed plans can be begun before the 2008 deadline. There's really no reason why we have to wait till 2008. And we encourage staff to take recommendations and input from all of the different stakeholders in designing the scope of study and through the watershed management planning process. Thank you. CHAIRMAN STRAIN: Just so the record's clear, they won't be done by 2008, they're simply going to -- MS. RYAN: Right, begun. CHAIRMAN STRAIN: -- they'll be lucky to even start them by 2008. Thank you. Next public speaker, please? MR. COHEN: The next speaker is Judith Hushon. MS. HUSHON: I'm here for -- Judith Hushon from the EAC. I'm just here for questions. We did feel it was important to get that best management practices section in there, things like impervious pavers, houses on stilts -- CHAIRMAN STRAIN: I like the language changes, ma'am. I think you guys did a good job. MS. HUSHON: -- things like that. So I just was here if you had any questions. CHAIRMAN STRAIN: I think we're fine. Thank you very much. Okay, let's move on to the next section. Does staff need a -- we're not going to vote on this then until we come back with the corrected Page 94 October 11, 2006 language, so that will be held for tomorrow? MR. WEEKS: Tomorrow's fine. CHAIRMAN STRAIN: Thank you. MR. COHEN: Just as a point of clarity, Mr. Lorenz won't be here tomorrow, so Comprehensive Planning Staff will provide you with that language. CHAIRMAN STRAIN: I think the rewrite is more of Mr. Wiley's issue than Bill's anyway, so that would be -- MR. LORENZ: We'll collaborate. I'll help. CHAIRMAN STRAIN: Appreciate it. You need to refer us to a page, Bill. MR. LORENZ: Yes. Page 31. This is -- second objection from the CCME. Dealt with -- essentially we had a propo -- amendment that would identify a process to identify stormwater management systems not meeting state water quality treatment standards. The recommendation is to -- is on Page 32. And I note that EAC is comfortable with the staffs proposal here. And essentially what the response does is to ensure that management systems will be inspected and certified regularly for compliance with their approved design and be required to correct the deficiencies. COMMISSIONER MURRAY: Two questions. CHAIRMAN STRAIN: Go ahead, Mr. Murray. COMMISSIONER MURRAY: In that language, the word regularly, what does that mean? Annually, semi annually, quarterly? MR. LORENZ: Again, Robert Wiley is working on the floodplain ordinance that -- well, maybe I'll take that back, I'm not sure this is in the floodplain ordinance. But he can speak to the frequency. COMMISSIONER MURRAY: Okay. MR. WILEY: Robert Wiley again, with Engineering Services Department. Page 95 October 11, 2006 What we're working on is an ordinance for the floodplains of Collier County . We took it before you folks. We also took it before the Board of County Commissioners in workshop series. And in it basically what we showed them was under FEMA's direction, they want inspections annually. However, that's not reality in the county, is the way staff looked at it. So what we are going for in -- I don't have the ordinance revisions all ready, still working on them, but we're going to be basically saying that existing developments, and again existing means those in place or approved or construction at the time the ordinance would be developed and approved. Existing would be biannually. Anything new subsequent to the adoption of that ordinance would be annually. And that would require the entity responsible for that stormwater system to have an engineer look at it to make sure that it is functioning in accordance with the original design. There will be some parameters for allowances of percentage of reduction. You can't simply look in a pipe and see one grain of sand and say oh, it's blocked. But there are certain parameters when you're doing your design that you have factored the safety. So we'll put that criteria within there so it's clearly understood what the engineer's certifying. We'll submit that certification then to the county . We will look at it and keep things on file. And this will be required of every stormwater development system that's out there. And there's a lot of people -- the reason we got this moving so much is a lot of the flooding issues that we have throughout the county occurs when systems are not maintained and you don't even have them handle the water that they're supposed to. Likewise, the water quality, because the system is not maintained, is not being complied with under the presumptive criteria that you have through water management district. So with FEMA's program that's two big issues they look at is Page 96 October 11, 2006 flooding and water quality. This is complying right with them. So everything is beginning to mesh together for all the objectives that we want to have for many years now begin to come into place. COMMISSIONER MURRAY: Likewise the question with the word deficiencies, to correct the deficiencies. What time frame do you contemplate for verification of correction? MR. WILEY: The engineer could not certify it until in the deficiencies had been corrected. So if they have to do that on a biannual basis, that inspection's going to take place much sooner than that because they would have a deadline to submit this certified response that it is in compliance. So typically, if I'm a development and I had my homeowners association, I'm going to be made aware of it, we'll put notices out through different publications that we have in the county. Everybody knows you have until such and such a time frame to submit a certification. Please be advised that you're going to need to look at this ahead of time to make sure it does not require maintenance. The maintenance, you really want to be doing that in the dry season when you can get to it. But if you have swales are overgrown, inlets plugged, things of that nature, those have to be resolved before the engineer could certify that it now meets the requirement. That is still coming. All the ordinance is coming. But we're telling through this amendment cycle here -- responding to the ORC report, excuse me, is that we will be putting that into place. COMMISSIONER MURRAY: Well, that's the background buzz that I'm interested in understanding, because if we're talking about associations, they typically change directors and they typically are not really civil engineer oriented, and oftentimes perplexed by these things. And if you're requiring upon -- depending upon a certification by they or their representative, and not inspection, how does that get us out of the deficiency problem? Page 97 October 11, 2006 MR. WILEY: What it does is the ordinance has a legal standing with it that says if you are in violation of the ordinance, it's got a penalty of up to $500 a day, and every day is considered a new offense. And we can take them through the legal process, through code, we'll be enforcing this. But there is a legal process that could be quite onerous, should someone choose to ignore it. It does not mandate we have to subj ect them to that kind of a process. Code enforcement will be the one, will be the enforcement arm as we look at it right now to go out and notify the people you did not comply here. And they'll work with them. And code generally works with people quite well to bring about correction of problems that we have. COMMISSIONER MURRAY: Sounds like a good start. Thank you. MR. WILEY: Yes, sir. CHAIRMAN STRAIN: Okay, are there any other -- we're probably going to finish up with this one and break. Is there any other comments on this one? I have one. Mr. Lorenz, Mr. Weeks, Mr. Wiley, Mr. Cohen, anybody that wants to listen, the language that you've got here, it says the design in B required to correct the deficiencies. Could you simply read and shall correct deficiencies? COMMISSIONER MURRAY: Yeah, that would be better. CHAIRMAN STRAIN: Wouldn't that be simpler? Now, Mr. Cohen, did you get that, whoever? Because I know David's busy. MR. LORENZ: And shall correct the -- CHAIRMAN STRAIN: Shall correct deficiencies, period. That just shortens it and makes it more blunt and to the point. If there's no other comments on this one? Seeing none, any public speakers on this one? Page 98 October 11, 2006 Mr. Weeks, do you have a-- MR. WEEKS: Mr. Chairman, on this very policy, I think Mr. Murray has a very good point, particularly with the word regularly, that that's too vague. And I just checked with Mr. Wiley and he believes it's acceptable if we strike regularly and replace it with no less than every three years. And we would anticipate that the actual ordinance that he's made reference to would be more frequent than that. CHAIRMAN STRAIN: Well, my comment there is Ms. Student has tried to make note to us many times, you want to lack the definitiveness in the GMP but refer to concepts. And if you leave the word regularly in and then you can define that in the LDC, is that just as good? I mean, I want to make sure -- I have no problem with what you're suggesting, I just want to make sure it's the best suggestion that we can go forward with. MR. WEEKS: Margie, my concern was that the word regularly is too vague, that DCA might find that unacceptable as too vague of a term, so I wanted to get some definitive -- MS. STUDENT-STIRLING: This is the language -- they may. But on the other hand, we walk a fine line. If you put a certain amount of time, you're constrained by that. And if you ever want to amend the ordinance you've got to amend the plan too and it's -- you know, it can be an unwieldy process. MR. WEEKS: That's the reason I asked Mr. Wiley if three years was acceptable. I first proposed biannually, as he had mentioned, but he reminded me that that ordinance has not yet been adopted by the board, so potentially -- so the three-year window he thought would be acceptable. It gives a greater time period. Again, with the expectation that the board, through that specific ordinance, will probably adopt a lesser time period. MS. STUDENT -STIRLING: Yeah, I'd put some leeway Page 99 October 11, 2006 language in there like, you know, maximum. CHAIRMAN STRAIN: He said no less than three years. MS. STUDENT-STIRLING: Yeah, something like that, right. No less than. CHAIRMAN STRAIN: Okay. With that we'll take a lunch break untiI12:45. Thank you all. (A lunch break was taken.) CHAIRMAN STRAIN: Okay, welcome back from lunch. We're continuing on the CCME portion of the ORC report. And Mr. Lorenz, I think we left off on finishing questions on Page 32. There were no public speakers. And I think we're on to Page 33, or wherever you want to go next. MR. LORENZ: Yes. Actually, on Page 32, objection number three from DCA concerning the groundwater standards of the proposed -- the proposed language that you have by the EAC just simply notes -- and that proposed language would actually be on -- the proposed language is on Page 33. The EAC simply recommended a small wordsmithing of the county shall require groundwater monitoring, instead of of land uses, by land uses. So that was the EAC's recommendation. Otherwise, Ray Smith is here from pollution control department to answer any detailed specific questions you may have on this one. CHAIRMAN STRAIN: Questions from Planning Commissioners? COMMISSIONER MURRAY: I would have one. CHAIRMAN STRAIN: Mr. Murray? COMMISSIONER MURRAY: On Page 33, which is the conclusion of that, is it not? MR. LORENZ: Correct. COMMISSIONER MURRAY: The last paragraph, Collier County presently will continue to monitor. Could you tell me time Page 100 October 11, 2006 frames on that? Is that a continuing -- continuous activity or electronic? Is that physical? How do we do that? MR. SMITH: That is continuing. That is -- for example, we had several sites my crew just finished collecting groundwater samples. Well, they'll be finishing tomorrow, so it's continuing. COMMISSIONER MURRAY: Good. MR. SMITH: And it's -- the whole focus is to establish a trend look at water quality, trend over time. COMMISSIONER MURRAY: I thought the responses were very good, because you qualified the fact that they were naturally occurring, and there were also herbicides, that those were originally approved and continue to be approved as herbicides. So I just wanted to be sure. And the time frames, that helps me. Thank you. MR. SMITH: You're welcome. CHAIRMAN STRAIN: Any others? THE COURT REPORTER: Mr. Strain? MR. SMITH: Oh, I apologize. Ray Smith, Pollution Control Department. THE COURT REPORTER: Thank you, okay. I appreciate it. CHAIRMAN STRAIN: That's what you were going to ask, huh? Ray, if you go to Objective 3.3, the first sentence, the very -- well, actually, that's the text that's transmitted. So really, we can go down below then, the proposed adoption. The third line, second sentence, groundwater quality shall be monitored in order to determine whether development activities are contributing to the degradation of Collier County's groundwater quality. How are you going to be differentiating between degradation from development activities or degradation from existing businesses or from naturally occurring events like compounds of arsenic or saline intrusion or anything like that? MR. SMITH: That's a very, very good question. The point of Page 101 October 11, 2006 degradation is going to have to be taken a look at regarding comparison with state standards, comparison with trend analysis, to see if all of a sudden you have a concentration that's sort of doing this through the seasons and all of a sudden goes like that and takes off to a -- extremely high. And then through resampling, confirming that that is that result and it wasn't an anomaly in the laboratory analysis or the QAlQC process. And then to then take a look at the site specifically. Where is that well? That's the trick. If the well's in the middle of the Everglades and there's really no development around, the question you need to ask yourself, is it naturally occurring, what might have occurred, and then trying to take a look if there were any, for example, spills or whatever that might attribute to that, take a look at the aerial views, et cetera. And I hope I'm getting to the point. If the well is located, say, in an industrial park, the analyte you're looking at that has peak, see if you can tie it to any specific type of industry or commercial, inspect those businesses, ensure that they're doing the right thing. CHAIRMAN STRAIN: Well, I think where I was-- MR. SMITH: And it depends on the location of the well, bottom line, and how you address that. CHAIRMAN STRAIN: I was thinking maybe if you took the word whether development out and so determined if any activities are contributing to the degradation of Collier County, that would give you the ability then to claim more than just development activities. You could be looking at other sources of -- like saline water intrusion from movement of your saline line that falls between the freshwater lens and the saltwater lens. MR. SMITH: The developing activities -- development activities came through a recommendation from DCA. And the -- in which they read leave the policy as is and add language that will require monitoring and tracking of activities and attainment status in order to ensure that development activities do not contribute to degradation of Page 102 October 11, 2006 quality of the underground water of Collier County. That's why that terminology was placed in there. CHAIRMAN STRAIN: Okay. Well, I guess if that's what they want, it's a little hard to argue with it. I have some more, but go ahead, Mr. Murray. COMMISSIONER MURRAY: I just have a question then. Do you think that development activities also would include, say, agricul ture? MR. SMITH: If the analysis indicates so. Any development activity could -- for example, you have a -- you'll have a well at a residential location. I'm pouring oil on my weeds because that's what I've always done, and all of a sudden we have a hydrocarbon peak in a well next to that property. Development in general. COMMISSIONER MURRAY: So you would read it as all-encompassing, as opposed to somebody who might say development as in building construction; am I correct? MR. SMITH: I would see it as all-encompassing. COMMISSIONER MURRAY: Thank you. That's what I needed to understand. Thank you. CHAIRMAN STRAIN: In the last couple of lines of the sentence it starts, upon the detection of any groundwater degradation determined through the monitoring process. The word any is pretty encompassIng. Do you mean that any groundwater degradation in response to development activities? MR. SMITH: Any groundwater quality degradation that we believe needs to be reported to any of the regulatory agencies. That would be what we're talking about. CHAIRMAN STRAIN: So it's any degradation that you believe needs to be reported, not any degradation. MR. SMITH: If we see a degradation in the analysis, for example, a parameter that may be occurring naturally, we're still going Page 103 October 11, 2006 to report it. CHAIRMAN STRAIN: Okay. That's where I was going. Ms. Caron? COMMISSIONER CARON: You said that your monitoring is continuing, is being done on a continuous basis. How long have you been doing that monitoring? MR. SMITH: The monitoring is -- we have a contract with South Florida Water Management District that we're entering into at this time, which is going to enhance or increase the number of sampling locations. To answer your question, the groundwater monitoring has been done off and on over time. And the periods in time in which there was sort of laxed groundwater monitoring was due to problems with resources associated with human resources. So we are finally on track, we have our staffing, we have a contract going through. This will be continual monitoring from this point on. COMMISSIONER CARON: And so we'll be developing history here as opposed to -- MR. SMITH: We'll be developing history, yes, ma'am. And we'll be sampling semi-annually during the peak dry and peak wet seasons. CHAIRMAN STRAIN: Thank you. COMMISSIONER MURRAY: I have a follow-up if I may in that regard. I've asked it before, but Commissioner Caron brought up something for me. Okay, you haven't done it before regularly, all right, and you're going to do it now. You have a contract with South Florida Water Management, or will have shortly. MR. SMITH: Yes, sir. COMMISSIONER MURRAY: Are they going to provide you the information directly on a weekly, monthly, daily basis? Page 104 October 11, 2006 MR. SMITH: No, we are going to provide them the data. We are going to collect -- COMMISSIONER MURRAY: You're going to collect, they're going to analyze. MR. SMITH: Or they're going to analyze and we're going to -- based on this, we, Collier County pollution control, are going to provide annual reports. COMMISSIONER MURRAY: I'm sorry, who's going to make the analysis? MR. SMITH: We are. COMMISSIONER MURRAY: You're going to make the analysis. MR. SMITH: Yes, sir. COMMISSIONER MURRAY: Then I'm -- help me if you would, why do we need a contract with South Florida? I don't object to the fact, but why would we need that then? MR. SMITH: Funding for personnel. COMMISSIONER MURRAY: Funding, okay. That qualifies that. And in that context then, you said before that as soon as you determine a spike, you're going to find out what the cause is or attempt to find out the cause. And yet the analysis is only going to be done as you indicated, what, semi -annually, or though I thought I read here annually. MR. SMITH: The analysis associated with the report analysis is going to be conducted annually. The sampling -- excuse me, the sampling will be occurring semi-annually in accordance with this contract. COMMISSIONER MURRAY: Yes, sir. How long would the lag -- just for the record, if nothing else, how long would the lag time be from the discovery of an issue to reaction, to investigation and possible, I doubt, but possible change? Page 105 October 11, 2006 MR. SMITH: We don't consider it lag time. We consider it ensuring that the data that we have to act on is accurate, has met all the quality assurance, quality control. For example, if we were to sample today for a gamut of analyses, it may take approximately two to three weeks for us to run the series. If at that particular point in time there was a peak, we would then go back out and resample to ensure that the data is accurate before we raise a red flag. And again, that may take two to three weeks. At that particular point in time we will notify the appropriate regulatory agencies. COMMISSIONER MURRAY: That's what I wanted to find out, and I thank you for that information. MR. SMITH: You're welcome. CHAIRMAN STRAIN: Thank you, sir. Bill, we're on to the next page. MR. LORENZ: Yes, this would start on Page 34. And there are two issues that DCA had with this policy of 6.1.1. And this would be objection number four. One was part of the amendments dealt with the function of a preserve area where the transmittal amendments were to define that further in the land development regulations. DCA wanted to have a little bit more specific criteria within the Growth Management Plan amendment itself. And staff had recommended that -- and I'm trying to look at where the language is -- text for proposed adoption would be on Page 35 where you can see the double underlined -- double underlined, loss of function to the preserve area includes a reduction or a change in vegetation within the preserve and harming any listed species present in the preserve. Then we go on and say more specific standards that implement this policy will be set forth in the land development regulations. So staffs response to that particular comment was to provide at Page 106 October 11, 2006 least two criteria for what we mean by functionality of preserve. First being loss of specific vegetation, and secondly, harming of listed speCIes. The second item that DCA found objection to dealt with paragraph -- well, it's new paragraph nine. And the concern was that -- let me frame paragraph nine. Paragraph nine was established to allow for some flexibility for the retention of native vegetation for various types of sites. Maybe for instance you have a very small site, whereby the calculation of vegetation may translate into a very small amount of vegetation. Ecologically speaking, that small amount of vegetation may be too small to really function ecologically. And perhaps a better off-site alternative would be one of these items that we have proposed during the transmittal amendments. The -- one alternative was the acceptance of monetary payment to some program that would actually acquire lands, environmentally sensitive lands for conservation purposes. DCA's objection essentially was framed in somewhat of a question as to how would we ensure that we were retaining native vegetation if we're simply having a monetary payment. The staffs proposal that is proposed on Page 35 in several places essentially tried to ensure tying that monetary payment to a program that's actually acquiring environmentally sensitive lands. That was what we considered was the best fit for that DCA obj ection. The EAC also weighed in on this and on -- in your supplemental handout the EAC in the blue area also had added -- proposed some additional requirements for this particular amendment. And you can see -- I can flag them for you. They wanted to ensure that the regulations allow for a process as opposed to some guarantee. So they wanted to specify a process to submit a petition. In point A, we added the amount, type and rarity, trying to Page 107 October 11, 2006 establish criteria such that if we -- for instance, we may be looking at some more rare or unique type of habitat, and we don't want the regulations to all of a sudden supplant, let's say, a lower priority habitat for that higher priority habitat. So we try to take that into account in the proposed regulations. Also, items E and F were recommended too by the EAC. E essentially is to provide some -- without providing a specific size limitation, to at least get the idea that one of the criteria for which we allow an off-site alternative is when that vegetation that would be calculated is too small to ensure that that preserve can function properly. So that was the one item that the EAC recommended. Item F was also to deal with right-of-way acquisitions and that there be a need for either mitigation off-site or using the off-site alternatives. I believe that that includes all of the recommendations by staff and the EAC on this particular item. CHAIRMAN STRAIN: Questions of the Planning Commission? Mr. Schiffer and Ms. Caron. COMMISSIONER SCHIFFER: On Page 35, 5.A, are you sure that will satisfy their concern over whether you're punting to the Land Development Code or -- MR. LORENZ: No. Obviously no guarantee. But certainly there are two functions of a preserve, and that's to make sure that the native vegetation that you're setting out to retain is not going to be lost, and listed species are not being harmed. So those are certainly two functions of a preserve that we can specify in the GMP. COMMISSIONER SCHIFFER: I mean, their concern, using the -- that you're defining the relevant terms of the plan to the Land Development Code. I mean, so you're okay with that? I mean, it's -- you're still referencing the criteria. MR. LORENZ: Yes. Actually, for me what we've done is we've Page 108 October 11, 2006 defined -- we've given at least two criteria to define loss of function. And we're saying that there could be more criteria to be defined further on in the land development regulations. COMMISSIONER SCHIFFER: I'm done, thanks. CHAIRMAN STRAIN: Ms. Caron? COMMISSIONER CARON: Yeah, I think that the DCA here was pretty specific when it said in addition it would allow the payment of money to satisfy the native vegetation preservation retention requirement which will defeat the purpose for requiring the retention of native vegetation. And I'm not sure, a couple of your A through F help in that regard, but certainly not all. So you're going to allow anybody who bumps up against conservation lands to pay their way out of any requirement for preserving native vegetation? MR. LORENZ: Actually, that would be -- the proximity or adjacency or adjoining conservation lands would be a criteria that we would evaluate in the Land Development Code. It would work just the opposite. If you have a very small patch of native vegetation that's required on your site, that small patch adjoins a large conservation area. Well, it's just added to the large conservation area. In that sense we would not -- our proposal would not be to allow that native vegetation to be done. Some other off-site alternative, because it adds to the conservation area that it adjoins. COMMISSIONER MURRAY: I have one. CHAIRMAN STRAIN: Mr. Murray? COMMISSIONER MURRAY: Following up on that very thing, because I agree with Commissioner Caron to some extent. And I recognize that there may be some small places. But I wonder if too small, how small is too small, how big is too big? And is that going to present a problem in your trying to establish, Page 109 October 11, 2006 which I think you have essentially done, that there are cases where it is improbable to try to fill in the hole, so to speak? So how did you arrive at too small, or how did the EAC arrive at it? MR. LORENZ: Let me just go back, a little bit of history. Because at one particular point we did have some specificity that went to the EAC, looking at either a half acre or one acre as being a size threshold. You may have even had that in your transmittal public hearing draft. But a final EAC meeting, and I'm talking about back in March, February, March time frame, the recommendation was we wanted to clear out a lot of the specificity within the Growth Management Plan provisions. And there were a lot of specifics that we took out. The size threshold was one specific. The benefit of that is, for instance, we may establish a half an acre at the moment. But yet a quarter acre of scrub or gofer or some other habitat that we may have a very specific listed species concern on, we may want to require. So there's going to be some very specific situations that's going to be tough to anticipate all of those conditions with specific parameters in the Growth Management Plan. And that was why a lot of those specifics were scrubbed out, to form the transmittal document. We talked a bit before about limitations in the plan and how that may constrain further or require further Growth Management Plan amendments. When we wanted to change, let's say, a number or something that's very specific, no question, it's a balancing act, how specific should we be in the plan versus how general the policies should be. This was the balance that we thought would work. The details of course will come through the county for adoption in the Land Development Code. Now, the Land Development Code can be amended. It doesn't require going through the arduous task of amending the Growth Page 110 October 11, 2006 Management Plan. But that was the philosophy, to try to keep these policies somewhat general but provide the descriptive and narrative criteria for which the Land Development Code would have to take into account. COMMISSIONER MURRAY: Okay. And I thank you for that answer. But here's where I think the possibility would come along. This is tied to some degree, perhaps a large degree, with the money issue. And I notice that one of the things that the money would go to would be affordable housing, which is a current crisis. And so what it comes down to is are we really looking to preserve preserves? And you've given a very good example of where a small, very small parcel might very well be critical to retain. So too small becomes subject to question. And when it's connectable to money in lieu of, then it becomes a real question of judgment. So I don't know what the right words are, but if I thought about questioning it, perhaps somebody else might have, so -- MR. LORENZ: Understood. CHAIRMAN STRAIN: Ms. Caron? COMMISSIONER CARON: Yeah, I need to go back to my initial question, because perhaps I'm just not reading this correctly. But according to number nine, this number nine sets up a process whereby a property owner may submit a petition to buy his way out of these preserves. And A, B, C, D through F are land development regulations that provide criteria for when this alternative will be allowed. So that tells me that if I go down to B and there's the presence of conservation lands adjoining my site, I can buy my way out. And is that really what you intended? MR. LORENZ: I see your point. COMMISSIONER CARON: Or if I -- I'm sorry, or if you go back up to A, if I have rare quality vegetation on my site, I can buy Page 111 October 11, 2006 my way out. I'm not sure that that's what you really meant to have happen. I think you want the opposite of that, right? MR. LORENZ: One suggestion that Randy just made is that sometimes the land development regulations shall provide criteria to determine when this alternative will be considered instead of allowed. I think that's what the point is. COMMISSIONER MURRAY: Good. CHAIRMAN STRAIN: The way I read A through now F is that those were going to be the basis under which criteria would be developed, and it was in that criteria which will be in the Land Development Code that you would then say yea or nay to the request. MR. LORENZ: That's correct. CHAIRMAN STRAIN: Okay. If you look at it that way, I think it works. But I don't know if that -- the point is, will everybody look at it that way? COMMISSIONER CARON: Remember, this is the Growth Management Plan so, you know, I really think we have to be precise. MR. LORENZ: I think your suggestion or your point about being allowed and the suggestion change allowed to consider it, I think works that way. COMMISSIONER MURRAY: Improves it. COMMISSIONER CARON: Will that do it, Randy? I mean, will that not allow somebody to buyout for some what I would consider would be a specious reason for just because they bumped up against a preserve, conservation area? MR. COHEN: Well, that will allow us to develop the criteria in the Land Development Code and it will also allow staff to have deference to determine whether or not the criteria actually should apply or not. COMMISSIONER CARON: All right. So we'll take out allowed and put considered in, correct? Page 112 October 11, 2006 CHAIRMAN STRAIN: Okay, Bill, I have one question for you, in 5.B. You're talking about Chapter 62-302 Florida Administrative Code. Does that reference only the discharge to preserves having wetlands, or does that reference more than that? I think where I'm going with my question is, are you only trying to regulate the water quality that discharges to preserves by this, or __ because it seems to say that the only time you're going to regulate water quality standards is if they discharge to preserves having wetlands. And I want to make sure that if you reference 62-302 FAC, it only applies to that, so we're not saying that's the only time it does apply in our code. MR. LORENZ: Chapter 62-303 would be discharge standards to basically waters of the state. So at the moment the only standards that we would be looking at for preserves would be those water quality standards. CHAIRMAN STRAIN: There are no water quality standards for non-preserve areas? MR. LORENZ: Not that I'm aware of. When you say that, water quality standards really are applying to waters of the state. And wetlands typically are considered waters of the state. So that's why we put this parameter -- this citation in here. CHAIRMAN STRAIN: Okay. Fine. Let's move on to the next section then. MR. COHEN: Mr. Chairman, you do have one speaker on this particular objection. Nicole Ryan. MS. RYAN: Good afternoon. For the record, Nicole Ryan, here on behalf of the Conservancy. And it sounds like in subsection nine we're talking about very small preserves. And I'm concerned if there isn't a maximum acreage amount tied into this that there's the possibility for it to be potentially abused. And I would suggest maybe putting in, I believe the half acre had Page 113 October 11, 2006 been used in a previous iteration of this, putting that half acre back in as a maximum. Not to say that if there are rare plants and a quarter acre preserve would be appropriate that that shouldn't be preserved. But just as a maximum, maybe replacing letter E with the maximum of a half acre, keeping in the other standards so you could still take a look at the type, the rarity, the quality of the native vegetation. But just making sure that when the LDC comes around, we're not battling could this apply to a 50-acre, lOa-acre preserve site. It just would add a little bit of clarification. CHAIRMAN STRAIN: Nicole, were you at the EAC meeting on this issue? MS. RYAN: I was. CHAIRMAN STRAIN: Did you make this recommendation to them? MS. RYAN: I recommended an acreage or something, a place holder in there. It was my understanding from the dialogue that we had at EAC that I believe Planning Commission had taken out the half acre recommendation. And I'm not sure how that happened, but it was my understanding that one of the advisory committees had taken that out, and therefore it was not appropriate to recommend that that be put back in. But now after some further dialogue, it sounds like it was -- I'm not quite sure when it was taken out, so I'm just putting that forward as a fall back position what EAC put in for letter E about the functionality is better than nothing. But I still believe, Conservancy believes that having that number in there to provide absolute clarification on that would be better. CHAIRMAN STRAIN: Bill had in the beginning indicated a reason why the acreage was taken out. Bill, could you revisit that issue? MR. LORENZ: Sure. We had -- in fact, I'm looking at the Page 114 October 11, 2006 proposal that we had initially. And we had a number of more specific types of information. And it was -- all the specific information was taken out because it was just too specific. CHAIRMAN STRAIN: By who was it taken out? MR. LORENZ: It was recommended by staff at the EAC meeting prior to the Planning Commission's transmittal meeting. CHAIRMAN STRAIN: Okay. Staffs reason for omitting it is that the specificity -- yeah, you know what I'm trying to say -- would limit the ability to move in the future without changing the GMP. MR. LORENZ: Correct. CHAIRMAN STRAIN: Thank you, Nicole. MS. RYAN: Thank you. CHAIRMAN STRAIN: Is there any comments from the Planning Commission further on that issue or any issue involving this portion of it? COMMISSIONER CARON: Only to perhaps say that it looks like the state would like us in some cases to be more specific. And maybe it's not such a bad idea to add an acreage. CHAIRMAN STRAIN: But could that acreage come out through the Land Development Code in the debate between the public and the staff that comes before us in land development language? MR. LORENZ: Oh, yes. CHAIRMAN STRAIN: Then if we find it doesn't function right, say at a half acre, and if we had to go to a three-quarter acre or a full acre we could change it through the LDC cycle instead of going back through the GMP. MR. LORENZ: That's correct. CHAIRMAN STRAIN: That actually would be a better way, because we may find that we have too much in some cases, so -- MR. LORENZ: Or different circumstances may have some sliding scale and it's hard for us to anticipate that at the moment. CHAIRMAN STRAIN: I'd just as soon we leave it as it is. Does Page 115 October 11, 2006 anybody else have any specific concern? COMMISSIONER VIGLIOTTI: I think we should keep it as general as we can right now. CHAIRMAN STRAIN: Mr. Weeks? MR. WEEKS: Just a brief comment. One thing we can do at the staff level is modify this, as opposed to placing language in the text of the element in the ORC response document, the staff, at the county analysis, we can specifically state that through the LDC process we can establish the acreage threshold. Just to make sure the DCA is aware that that's where we're heading. CHAIRMAN STRAIN: Okay. Okay, Bill. MR. LORENZ: That's all of mine. I believe the next item is -- deals with emergency management. David? MR. WEEKS: Yeah. CHAIRMAN STRAIN: Now that's -- emergency management is not -- is that the portion of hurricane protection that's under the CCME? MR. WEEKS: Yes, sir. CHAIRMAN STRAIN: So we're still in the CCME, we're just on a different one that's not yours. MR. LORENZ: Correct. CHAIRMAN STRAIN: Maybe you're lucky. Have a good time at whatever seminar you're going to, Bill. MR. LORENZ: Thank you. CHAIRMAN STRAIN: Thank you. And who's handling the rest of it? COMMISSIONER MURRAY: Mr. Zyvoloski. CHAIRMAN STRAIN: This is the one where all the trouble is. You realize that, don't you? MR. ZYVOLOSKI: Good afternoon, Mr. Chairman, Commission. Rick Zyvoloski, for the record, Emergency Management. Page 116 October 11,2006 Ours is pretty easy. It was just some wordsmithing. They just wanted us to be specific as to do away with the evacuation, that we would strive to meet their goal or that we would take the word attempt and just maintain the evacuation standard. CHAIRMAN STRAIN: We're starting on Page 36 with your discussion; is that right? MR. ZYVOLOSKI: I think I might have different numbers. MR. WEEKS: That's correct, Page 36. CHAIRMAN STRAIN: Okay, thank you. MR. ZYVOLOSKI: I think that's pretty much our issue, because we didn't have any heartache. And their other reference was the -- was the fact that we were doing our own hurricane evacuation study, and they said well, the state does their study and that's the one that we need to use. But their study was a bit old, but I went ahead and went with their terminology, that was all. CHAIRMAN STRAIN: Ms. Caron. Mr. Murray -- oh, Margie. MS. STUDENT-STIRLING: I just had a comment. I know that this was -- it was transmitted this way. And I came to realize when I was reviewing this again, there's a little bit of an ambiguity, and we've run into trouble before with our compo plan. It's gone all through DCA but then we come up with the ambiguities. And it says here efforts shall include. Does this mean efforts for protection or efforts -- just what kind of efforts? That's all. I was just curious about it. Because it seems a bit ambiguous. MR. ZYVOLOSKI: I think probably to change the wordsmithing there, after that comma after surge zone, the middle of that paragraph, I guess. MS. STUDENT-STIRLING: Efforts for protection of citizens. MR. ZYVOLOSKI: Change it to efforts to develop or either to meet -- well, let me go back to this sentence. Storm surge zone. Developers either meet 4496 wind standards by basically Page 11 7 October 11, 2006 sheltering or retrofitting. We can reword it. But that's what was intended, that it would meet the normal hurricane shelter standards. MS. STUDENT-STIRLING: Maybe it's just projects that -- MR. ZYVOLOSKI: Each mobile home development that's located outside the storm surge -- MS. STUDENT-STIRLING: Such projects shall include -- MR. ZYVOLOSKI: Further these objectives -- developers shall meet American Red Cross 4496 standards. CHAIRMAN STRAIN: Where are you reading from? MR. ZYVOLOSKI: I'm on -- MS. STUDENT-STIRLING: Yeah, I don't want to change it too much. CHAIRMAN STRAIN: Let's all get on the same page here first. MR. ZYVOLOSKI: It's on the underlying section of that paragraph, about one, two, three, fourth underline, fifth underline from the bottom. MS. STUDENT-STIRLING: The sentence reads to further these objectives for future mobile home developments located outside of the storm surge zone, efforts shall include, and then a list. CHAIRMAN STRAIN: Margie, I see that. He was reading from something else. He had different language. I'm trying to find out where he's at. I know where you're at. MR. ZYVOLOSKI: I was replying to a fax that Margie sent me. CHAIRMAN STRAIN: We have no way of knowing that. MR. ZYVOLOSKI: I'm sorry. It's right here. Okay, on that paragraph one, two, three, four, the fourth underline from the bottom of that paragraph, Objective 12 -- COMMISSIONER KOLFLA T: Could we get a page? CHAIRMAN STRAIN: Page 37, top of the page, Objective 12.1. MR. ZYVOLOSKI: The fourth underline from the bottom of Page 118 October 11, 2006 that paragraph. MR. COHEN: Mr. Chairman, if I could, I know the word effort is referring to the prior wording, which is mobile home developments. I think if you just change the word efforts to just basically say such develops shall include, I think that will satisfy the county attorney's intent. MS. STUDENT -STIRLING: I'm just trying to clarify it, that's all. Thank you. CHAIRMAN STRAIN: Okay. Now, Ms. Caron, I think you had a problem -- I mean, a question. COMMISSIONER CARON: I am a problem, but I do have a question. Since we have taken out the maximum number of hours, what are the requirements? MR. ZYVOLOSKI: The current state standard -- I would have to get back, I believe it's 18 hours. COMMISSIONER CARON: Then why are we taking 18 hours out? MR. ZYVOLOSKI: I wanted to be flexible and just comply with whatever the state comes up with when they change their laws. COMMISSIONER CARON: It says commit to the reduction or maintenance of hurricane evacuation times as required by state law. And if state law says 18 hours, then we shouldn't be taking 18 hours out. That was our whole purpose in putting 18 hours in. Our code has said 28 when it was actually 18, I think was the reason. Is that not correct? MR. COHEN: If I may interject, I think the concern that DCA had and Mr. Zyvoloski had as well is those state standards are modified from time to time. And if we do have the specificity in there, whether it be 28 or 18, then we have to modify the GMP. That's probably why the comment came from DCA with regard to the specificity, and we're changing it just to comply with state law. Page 119 October 11, 2006 COMMISSIONER CARON: The words from DCA simply said take out the word exempt. It didn't say anything about taking out the timing. MR. ZYVOLOSKI: But I think -- this has been a long process. I'm sorry, we recognize that the hurricane evacuation study, I mean, although that's what we have, it's really not valid with the amount of growth and everything else that's going on here. And I just wanted to maintain flexibility, since this is a plan and not a code. I just viewed this as the goals, you know, and our goals would reflect whatever the state says at the time that -- you know, as the state changes its rules. We stay attuned to, you know, what the state requires as they, you know, modify, you know, their procedures. There's a whole lot of studies going on right now. The state's looking at doing LIDAR studies which might change our surge zones, increase them or decrease them, which translates to the amount of population that's affected. And that, taken with the various road sizes, identifies the amount of people that, you know, can evacuate and clear the county in the required time. So I just wanted to maintain the flexibility. Because I viewed this as a plan, as a goal that we would strive to meet and exceed whatever standard the state set for us. COMMISSIONER CARON: You're telling me that the state now requires 18 hours for evacuation. Is that what you said to me? MR. ZYVOLOSKI: I said I believed they did. CHAIRMAN STRAIN: You're going to-- MR. ZYVOLOSKI: I would have to get back to you to tell you what the -- CHAIRMAN STRAIN: According to this, you would meet whatever the state law requires, whether it's 18 hours, 16 hours, 12 hours, you would have to meet that by this GMP amendment. MR. ZYVOLOSKI: Yes. CHAIRMAN STRAIN: Mr. Murray? Page 120 October 11, 2006 COMMISSIONER MURRAY: I'll add my one-half a penny to this. My recollection was is that our director of emergency management services reduced the amount of time to 18 hours from a longer period, and that the state said go back to the state's requirement, which is a longer period. But I stand to be corrected, if possible. I would bring you back to the same line you were on where you were saying shall include on-site sheltering or retrofitting of an adjacent facility. I guess you're saying by adjacent facility someplace that's been hardened or someplace that is designated as a place to welcome those in time of need. Is that your intent? Because adjacent facility could be MR. ZYVOLOSKI: Yes, they could get an agreement with a community center next to them if it's capable of being retrofitted to shelter standards and that could house the people, that would be appropriate. COMMISSIONER MURRAY: Would the word designated in there be useless or beneficial to that? Or retrofitting to a designated facility, is that unnecessary or superfluous? MR. ZYVOLOSKI: I think that would be superfluous. I think that at that time that someone was coming through with a development plan of some sort that it would be stated there as to how they intend to house or shelter their population and demonstrated it at the time that hey, we're committing this much money to -- you know, suppose it's an A and B side development of the same developer and he just increases the size of the facility next door to it or whatever to that development to include the future, you know, development size, you know. I would put maybe designated in the plan if that meets the requirement, you know, in their development plan. COMMISSIONER MURRAY: The only thing that was going through my head there was that a facility, an adjacent facility in this Page 121 October 11,2006 case, if it's a mobile home and it's out in an area, that could be a quarter of a mile away, could be further than that and still be construed as an adjacent facility in the context. And it may not even be hardened for it if someone says here, this is where you should go. Or would the county ever make such a plea or such a suggestion to people? Would it say seek the -- seek a designated location, here's the designated location or adjacent facility? Would they go to for instance a school that wasn't hardened or prepared for it? MR. ZYVOLOSKI: No. That's why I was adding that extra language to -- when Ms. Student brought it to my attention, you know, retrofitted to meet ARC-4496 standards, which is the state standards for shelter, and that captures all kinds of -- COMMISSIONER MURRAY: Okay. Retrofitting then is the intent there to -- MR. ZYVOLOSKI: Right. Yes, sir. COMMISSIONER MURRAY: Okay. I guess the state will understand that, okay. CHAIRMAN STRAIN: Any other questions? Mr. Schiffer? COMMISSIONER SCHIFFER: I mean, I'm kind of comfortable with using the state requirements for that because it is a state issue, it's not just a county issue on how to move that many people. MR. ZYVOLOSKI: Yes, sir. And our goal isn't really to try to move the people out of the county. We're trying to increase our shelter space all the time to take care of our own. CHAIRMAN STRAIN: Is that it, Brad? COMMISSIONER SCHIFFER: Yeah, thanks. CHAIRMAN STRAIN: I have one question. You say efforts shall include on-site sheltering. What's the difference between a shelter and a refuge? MR. ZYVOLOSKI: I don't use refuge anymore. That was a term de jour several years ago. I could tell you what it was years ago. It Page 122 October 11, 2006 was kind of a place of last resort that would meet standards but -- CHAIRMAN STRAIN: Before you dig too far in that direction, Policy 12.1.4 of this same section of the CCME was changed through the EAR amendments to take the word sheltering out and replace it with the word refuge. And yet in this one you're talking about on-site sheltering and it's both for mobile home parks. So now I'm trying to understand what is it you're trying to get. I do believe there's a difference between shelters and refuges, especially in the way they're built and constructed and how they can house people. Yet this has already gone through under 12.1.4. And David, if you look at that, and I see you're turning the page, you'll see the changes that were just made. This one is not consistent with those changes. So what is it we're trying to gain here? Where are we trying to go? Something's got to change. MR. ZYVOLOSKI: I would change it to -- back to shelter. MR. WEEKS: In 12.04. MR. ZYVOLOSKI: Yes, sir. COMMISSIONER CARON: Is there a definition somewhere? MR. ZYVOLOSKI: The 4496, the Red Cross guidelines, you know, basically is our standard for shelters. Refuges aren't -- you know, you just have to go to Webster's dictionary there. We don't have any emergency management definition for refuge. CHAIRMAN STRAIN: Yes, David. MR. WEEKS: I was just going to say, I see it also in Policy 12.1.5. How about if staff just checks for wherever we see refuge we change it to shelter? CHAIRMAN STRAIN: Okay. But you all had a reason to come forward with an EAR amendment process to change it in the first place. Do you know what that reason was? Because someone purposely went through and changed this code from shelter to refuge. N ow we're hearing testimony that refuge is basically Page 123 .......__.....___,..."..... .~._... '-'~ .__..."..,...".....'_.....__.,...-..'.N.. October 11, 2006 a useless term in regards to this issue and it should have been shelter. I'm just curious, and I think someone ought to check as to why we even had that reference in the first place to be sure of what we're doing here. Mr. Schiffer? COMMISSIONER SCHIFFER: And Rick, you keep trying to bring in the Red Cross definition, and Margie, you keep taking that out. Is that something you're not comfortable having in there? MS. STUDENT-STIRLING: My only concern was letting that open up to some additional DCA comment, when I was just looking for what efforts meant for clarification, which I thought was rather benign. Rather -- and that's my only concern. I don't -- we'll just put it in there and see what happens. COMMISSIONER SCHIFFER: And Rick, that's a specific set of standards for shelter. MR. ZYVOLOSKI: Yes, sir, that's the ones that stops us using a whole lot of shelter spaces, took the prerogative away from the local emergency management director, because there were specific guidelines in there. And although they were our guidelines, the state uses them as a rule. COMMISSIONER SCHIFFER: So while it's not actually in our paperwork, I wouldn't mind it being in there. If it is in there. CHAIRMAN STRAIN: You mean the reference to the Red Cross? COMMISSIONER SCHIFFER: Right. In other words, when he was reading e-mails, he was reading something we don't have. MR. ZYVOLOSKI: That was just a note where Margie asked me for clarification of efforts, what did I mean by that section there, you know. It was really the protective measures for the shelter to be -- they constructed or find an adjacent facility, you know, that meets ARC-4496 standards. MS. STUDENT-STIRLING: Yeah, and my idea was not to Page 124 October 11, 2006 change the real intent language. I just was trying to determine what kind of efforts -- I thought it meant protective efforts, and if we just put one word in there. That's all I was trying to do. I didn't mean to open a whole can of worms or anything. MR. ZYVOLOSKI: Well, you are getting pretty specific once we get there. CHAIRMAN STRAIN: Well-- and from what I understand from discussion on this particular paragraph, the word efforts is going to be replaced by such development. The reference to unsheltering here is the correct reference, and policies 12.1.4 and .5 will be modified to put the word shelter back in, instead of the word refuge. And then did we resolve the issue of the word adjacent facility as far as what that means, or was that -- the attitude is to leave it like it is. What was the situation there? Does anybody -- David, did adjacent sit well with you in regards to where it says retrofitting of an adjacent facility, or is there -- MR. WEEKS: No objection to it. And further, because DCA didn't take issue with it, we suggest we just leave it alone. CHAIRMAN STRAIN: Okay. So then we have the two issues. You're going to look into those and report back. Thank you. Or we have one more? MR. WEEKS: I'm not -- I don't quite understand what we've done with Objective 12.1, but I have a suggestion that falls back in line with what Margie was suggesting; that is, that we keep the modification as minimal as possible, and rather than providing the state reference to certain Red Cross or any other specific provision, I was suggesting that on that same line after the word efforts, we insert the phrase to provide protective measures. That keeps it very general, but I think it answers the question of what type of efforts we are speaking of. COMMISSIONER SCHIFFER: Don't we remove the word Page 125 October 11, 2006 effort? CHAIRMAN STRAIN: You took the word effort out and put such development shall include on-site sheltering. MR. WEEKS: Such development. I apologize. CHAIRMAN STRAIN: That's what I thought you or somebody said earlier. MR. ZYVOLOSKI: I'm happy with that without having the reference. But those are the standards that would meet -- and if those standards ever change, we would redefine at the time that -- so I'm content with just on-site sheltering. CHAIRMAN STRAIN: David, are you-- MR. WEEKS: Let's see, you want us to check on why was it that sheltering was changed to refuge in the first place. CHAIRMAN STRAIN: Yes. MR. WEEKS: And there was a second issue? CHAIRMAN STRAIN: The word effort was changed to such development. Mr. Schiffer has a comment. COMMISSIONER SCHIFFER: The Red Cross stuff we should probably put in the Land Development Code, right, where it belongs? CHAIRMAN STRAIN: I think you're right there. Okay, well, that was a short, easy paragraph, wasn't it? MR. ZYVOLOSKI: Glad there's only one item. CHAIRMAN STRAIN: Me, too. Thank you. I don't know what the next issue is, but -- MR. WEEKS: Mr. Chairman, that would take us back to the beginning, Page 1 of this ORC response document to the CIE. CHAIRMAN STRAIN: It's my understanding because there's been no request, otherwise we'll move through this document in order starting on Page 1. MR. WEEKS: Yes, sir. CHAIRMAN STRAIN: And Corby, as we go forward, do you Page 126 October 11, 2006 want us to respond to you on a page-by-page with any questions or do you want to get through a section first? MR. SCHMITT: I prefer that you simply bring questions to me as we move along. CHAIRMAN STRAIN: Okay. Thank you. Tell us where you're going to start. MR. SCHMITT: At the very beginning with the capital improvement element. That is -- the first objection has to do with the planning periods and the timelines, the time frame referred to in the -- excuse me. For the record, Corby Schmitt with the Comprehensive Planning Department. First objection had to do with the time frames involved and referenced in the capital improvement element. A number of changes were made. All of them are noted there regarding removing phrases from the -- or words from the title of the capital improvement schedule. So it no longer refers to just five years. CHAIRMAN STRAIN: You're on Page 2, right? MR. SCHMITT: Beginning on Page 1, but moving on to Page 2, yes. And those text entries are shown there are on pages 2 and 3 where the references to the five years for the schedule of capital improvements is simply eliminated. CHAIRMAN STRAIN: Go ahead, Mr. Murray. COMMISSIONER MURRAY: Does this help us in the matter of apportioned fair share in the Growth Management Plan in 2005? MR. SCHMITT: It does. COMMISSIONER MURRAY: That's its intent, right? Okay. MR. SCHMITT: Nothing else on 1. Then for 2, the objection there had to do with the methods used for calculating populations and population projections for the county. There's a long explanation from staff regarding that. And the entries Page 127 October 11, 2006 that were changed were to explain the weighted population peak, permanent and so forth. And you'll see those all the way up onto Page 8 where that text has been changed. CHAIRMAN STRAIN: The recommendation by the DCA was pretty simple. The county should utilize the mid-range projections made by the University of Florida. Period. Well, then it said and if that's not used, sufficient justification should be provided. Why wouldn't we just use the mid-range projections supplied by the University of Florida? MR. SCHMITT: There's a number of reasons. Long established practice in previous years. The weighted population figures have been used for some time but perhaps gone unexplained clearly to DCA. This is the first time they're seeing them mentioned clearly in the capital improvement element, and having them explained was more important than referring back to the flat medium or high range BBR numbers. Here you see the explanation that these are professionally acceptable numbers. We use them differently than just right out of the textbook, right out of the report from BBR. So the use of them is simply being explained. CHAIRMAN STRAIN: Okay. But that doesn't -- my question was, why would we not utilize the mid-range projections made by the University of Florida like DCA suggested? Why won't we just use it? Why do we have to come up and reinvent a new set of numbers for ourselves? Is there a reason for that? MR. SCHMITT: I'll let Mr. Weeks explain that. MR. WEEKS: Our experience is that medium range is too low. CHAIRMAN STRAIN: Too low, meaning it doesn't drive the ability to build larger and more facilities quick enough? MR. WEEKS: Meaning it's not accurate, that our actual growth rate exceeds the medium growth rate. CHAIRMAN STRAIN: You think that growth rate's going to be Page 128 October 11, 2006 the same this year as it was last year? MR. WEEKS: No. It changes. That's why we periodically modify the population methodology. When the plan was adopted in '89 we used the high range growth rate, and even at that time some years we exceeded that. And then several years ago we modified the methodology from the high range to use the high range for the first five years, but after that to use the average of the high and medium range. And then in 2003 we modified it to the way it reads today, and that's high range for the first five years, then 95 percent high range for all subsequent years. And again, that's based on analysis. Most particularly you'll find the response that the backup data that we provided shows the analysis that we did in 2003 to justify why we don't use medium and instead why we use the methodology that we do, that 95 percent. CHAIRMAN STRAIN: Go ahead, Mr. Schiffer. COMMISSIONER SCHIFFER: Questions. When you studied this, and essentially had fun with fractions, it comes out to be we're using ten-ninths of the regular population, correct? MR. WEEKS: Uh-huh. COMMISSIONER SCHIFFER: It comes -- that's what your thing comes out to be. The permanent population, if you go through you equation, it comes out to ten-ninths of that. Is that a safe way to size these sewer systems and stuff like that that we know are going to be used under a higher population? And with that question, they have a note that states that we use varying population figures for calculating the different needs and that this is inconsistent with state law. So what do they want us to use, the highest population number and use it for everything? MR. WEEKS: We've had ongoing discussions with DCA, and we're continuing to. We will be providing them prior to the adoption Page 129 October 11, 2006 of these amendments additional data regarding our methodology in hopes of convincing them before we actually go through the process of the board actually adopting the changes. Hope to satisfy them that this methodology is professionally acceptable. DCA, first of all, wants us to use the same methodology, whatever it is, use the same methodology. You can't pick and choose what methodology you're going to use for each individual capital facility. And we've acquiesced, we said you're right and we're going to use the consistent methodology for all public facilities. DCA has told us that what the other jurisdictions do throughout the state is that they choose a methodology, whether it's high or medium or somewhere in between; whatever they choose, that is what they use, period. They have no such thing as weighted average as we use here. Which is why they are questioning it, why it's something that they're very concerned over, because it's something new to them and they don't fully understand it and they're not sure if they will or will not ultimately agree that it is professionally acceptable. What the other jurisdictions do as well, in my understanding, is that they choose a single methodology, the growth rate, and stick with that. They adjust their level of service standards. We prefer not to do that. Our approach that we prefer is set the level of service standard, adjust the population. From our perspective, it's two -- adjust the population methodology. From our perspective, it's two ways of getting to the same place. We've been doing this since I think before this plan was even adopted, before 1989. But as Corby mentioned, I think the reason the flag has risen is that DCA apparently was unaware that we were using this weighted average for all these years. So their reaction is as if this is something new. We're very comfortable with it. We've been doing it for such a long period of time. COMMISSIONER SCHIFFER: So when they state that they don't consider it a professionally accepted methodology, what are the Page 130 October 11, 2006 acceptable methodologies? MR. WEEKS: One, of course, is to go straight with the BBR growth rate. COMMISSIONER SCHIFFER: Pick the numbers they pass us? MR. WEEKS: Yes. MR. COHEN: Mr. Schiffer, if I can add, I think what we have to do is, in their mind it doesn't appear to be a professionally accepted methodology or show us why it's a professionally accepted methodology is better way of putting it. And they wanted from us documentation, for example, what is your peak season, how long is your peak season, and we're providing that documentation to them because they haven't seen it in the past. So I think what we have to do is we have to establish for them that there is that groundwork behind methodology that actually demonstrates that it is professionally acceptable in their mind. And we've had discussions with them along those lines. And they understand the concept of what we're doing but they want to see it more specifically in writing, and also a couple of examples, how it tracks basically the same as the methodology that they're used to. The other question you were asked pertained to water and sewer with regard to whether or not we were comfortable with that methodology in, I guess, the peak season. In my discussions with Mr. DeLony, our public utilities department is okay with them using a weighted average and they have a level of comfort with that. I just wanted to clarify that for the record. CHAIRMAN STRAIN: Ms. Student, you had a comment? MS. STUDENT-STIRLING: Yes. By way of it's sort ofa historical comment. But back in 1988 when I first joined the county, I remember that the then growth management department had sent off our capital improvement element because we got a grant to do it in advance of the compo plan. And I remember talking to Ms. Fitzpatrick at the time just Page 131 October 11, 2006 generally about the population rules and so forth. So I feel that DCA at one time may have been aware of what we used, but because of the time lapse and changes in personnel up there, it might be a red flag for them now. And I just wanted to offer that as a bit of history, that's all. CHAIRMAN STRAIN: Mr. Schiffer, did you have anything else? COMMISSIONER SCHIFFER: No. I mean, I think it's a good method. I mean, in statistics textbooks it's in there as a -- they call it frequency, but it's the same concept. One concern I have, though, is that, you know, you're using taxes from gas and stuff like that to figure out how many people are here. But, you know, revenues from gas have got to be all over the place with nothing to do with the frequency of people using the gas station. So I mean, you know -- and you come up with essentially a third is the factor that you add to our permanent population. MR. WEEKS: That's correct. We look at hotel/motel occupancy, select sales, tax revenue, select -- for example, we would eliminate all household goods because your seasonal visitors aren't typically buying furniture or refrigerators. And then using the gas tax. DCA actually raised that question about gas tax as being appropriate. But we believe that it is. And certainly there is going to be the drive-through traffic that may buy gas in Collier County and keep going, they're not staying here. But our opinion is that cannot possibly explain the significant increase that we see in the revenues generated from the gas tax. We also, as you may have noticed in the data, provide census data from the 2000 census, as well as referencing back to the 1990, as to just how many vacant dwelling units we have in the county. It's about 28 percent of all the dwelling units are vacant. And then the vast majority of those that are considered vacant are held for seasonal or occasional use. One thing DCA does not have is the perspective that we have Page 132 October 11, 2006 here locally . We don't need all this documentation. We can just go try to get a seat in a restaurant or stand in line in a grocery store, et cetera. And we see it every day. But we're trying to convince them with empirical data. COMMISSIONER SCHIFFER: David, when you say vacant, is that non-homesteaded? MR. WEEKS: No, that means it's not a permanently occupied dwelling, as the census defines it. So homestead does not necessarily come into the definition. COMMISSIONER SCHIFFER: I'm done. CHAIRMAN STRAIN: Thank you. The higher the population you can show, the higher the presumed population you can show through a weighted simply means that we will have a -- generate a greater need in the A UIR process, which then generates more government buildings, more employees, more of everything. So from one perspective some people may want to build, and raising a higher population I think you get there much quicker than if you use the statistics DCA recommended. But that's just my thought. MR. WEEKS: I certainly would agree with that. That's true. The higher the number, the higher the taxes, the more money that the local government will have to spend for a variety of things. Our perspective is we're simply using methodology that we believe is sound and appropriate. CHAIRMAN STRAIN: Okay. Let's go forward, sir. MR. SCHMITT: All right. Third objection from DCA then had to do with the levels of service being listed for certain facilities. In this case there were dual levels of service being shown in the service sewer areas. If you recall, last time the AUIR was in front of you the number of sewer service areas was increased, and you saw the maps for that. The illustrations are included as part of this document now, showing those five districts, and an explanation is provided here to DCA about Page 133 October 11, 2006 that change, that transition to the five sewer areas or -- and a single level of service is used in each of those service areas. COMMISSIONER KOLFLAT: Is this -- CHAIRMAN STRAIN: What page are you on? MR. SCHMITT: I'm sorry, on 9. CHAIRMAN STRAIN: Go ahead, sir. COMMISSIONER MURRAY: I'm going to show my absolute ignorance here. On your response, you've indicated a series there, north, south, southeast, northeast, east central and you're using varying numbers. GPCD is gallons per -- MR. SCHMITT: Per capita per day. COMMISSIONER MURRAY: I always lose sight of that, that when you introduce the C in that, I always get messed up. But it still means gallons per day per person, right? MR. SCHMITT: It does. COMMISSIONER MURRAY: Then you've indicated you now have a standard level of service for both the north and south. I recognize you've answered their question, but will they -- is this going to be clear enough for them, they're going to buy into this, do you think? I know you've written it with that intent. MR. SCHMITT: We certainly have, and we believe they will. The explanation has been worked between our staff and with public utilities staff to explain as best we can that short-term shift to five service areas where the fifth is simply a transfer or a pumping station for flow transfers. There will be further transitions or changes when we go from five to four districts to explain it to them again. And this is a partial explanation to cover this period of time. COMMISSIONER MURRAY: Okay. I certainly understand where you're going. And I think if they're looking to have it explained, I think it does it. Page 134 October 11, 2006 But they said revise it to clarify the application of the dual level. Instead you've decided to have a single level of services. MR. SCHMITT: That's correct. COMMISSIONER MURRAY: How about in the out years when we start looking at -- MR. SCHMITT: The use of a dual level of service was unacceptable on our side and it could not be clearly explained. What was better understood is applying a single level of service and explaining that. COMMISSIONER MURRAY: Makes sense to me, too. Thank you. CHAIRMAN STRAIN: Corby, I have one comment back on the CIE, that -- it's why I was surprised you jumped all the way to Page 9. I was still looking at my notes from the prior pages. In the element of the CIE that's attached to our book -- David, Corby, if you turn to Page 7 to start. Well, actually it might be before then. Let's turn to page -- yeah, Page 7. I'm sorry. It's a chart. It's called Exhibit A, Collier County Scheduled Capital Improvements. Now, this chart goes on for many pages. You'll notice the last sentence is a subnote to that chart. On every page is says the same thing. Prior to the EAR-based amendments adoption public hearings before the CCPC and BCC, we're supposed to receive the blanks that aren't filled in. They weren't filled in in my document. Does that mean -- I don't know how we can adopt it without those being supplied. Are you going to be giving those to us? MR. SCHMITT: I'm sorry, Mr. Chairman, where are you referring to? CHAIRMAN STRAIN: There's some tabs attached to the back of the ORC report. MR. SCHMITT: I'm on that Page 7 -- CHAIRMAN STRAIN: Capital improvement element. And it's Page 135 October 11, 2006 the exhibit that I'm on, not the -- so you're going to have to turn to the Exhibit A. MR. SCHMITT: I'm on Page 7 of that Exhibit A. CHAIRMAN STRAIN: Look at that last footnote. If I've got a page that is outdated, someone needs to tell me. You see the asterisk where it says note. If you read the last sentence, these inventory dollar values at a project level detail will be incorporated into the capital improvement element prior to the EAR-based amendment adoption public hearings before the CCPC and BCC. Now, that's where we are today. And all I've got is asterisks. So does that mean that someone's not going to provide these numbers, the DCA is going to accept asterisks? MR. COHEN: Mr. Chairman, let me go ahead and address that because Mr. Schmitt wasn't here when the AUIR went through the process last year. As you recall, we were waiting on the water-sewer master plan to be adopted by the Board of County Commissioners. That has transpired, so we should be able to obtain those numbers and fill in those blanks, because that asterisk would not be acceptable. You are correct in pointing that out. CHAIRMAN STRAIN: If you look, Randy, that goes on for quite a few of pages. That reference appears everywhere. If I remember correctly we weren't able to get information out of the utilities department at the time. So I think it's important that we have that before we finalize this. Are we going to have it tomorrow? MR. COHEN: Mr. Chairman, you're correct, and we'll have Mr. Schmitt contact our water-sewer public utilities department and see if we can obtain that information. CHAIRMAN STRAIN: Thank you, sir. Now, we -- I guess you left off on page -- the sewer system. Page 136 October 11, 2006 MR. SCHMITT: With the objection number four. I'm on Page 10 at this time. COMMISSIONER SCHIFFER: Let me -- I have a question back on -- do you have an objection? CHAIRMAN STRAIN: Go ahead. COMMISSIONER SCHIFFER: And I'm just trying to understand. So essentially they're complaining that the north and south had dual things. If you look on -- in this sub-element on Page 5, it still has dual things. So is there -- MR. WEEKS : You're referring to the element in the back under the tab? COMMISSIONER SCHIFFER: Yes. MR. WEEKS: Yes, that's staff error. We've noted that. COMMISSIONER SCHIFFER: Okay. But when you say you explained, where do you explain that? Because -- or you're just going to eliminate it so there's nothing to explain. MR. SCHMITT: At that location there wasn't a direct objection from DCA, so I think we can clear it up without mentioning it in our explanations. COMMISSIONER SCHIFFER: Did they have any question as to why different service areas have different gallon flow, or are they okay with that? MR. WEEKS: No, they did not. COMMISSIONER SCHIFFER: Thank you. CHAIRMAN STRAIN: Okay, Corby, we can move forward. Just tell us what page you're on every time we start back up. MR. SCHMITT: Page 10 now. CHAIRMAN STRAIN: Okay, thank you. MR. SCHMITT: And here there is an objection from DCA with recommendation. Our response has to do with -- you can see it on the continuing pages behind a long list of projects provided by the transportation department staff to help explain to DCA what their Page 137 October 11, 2006 concerns were. MR. COHEN: Mr. Chairman, I may want to expand a little bit on the explanation there. In the rationale for this, just to give you an understanding of why we've done this and why I asked Mr. Scott to provide the explanation that he did, one of the concerns obviously in the capital improvements element is that we maintain our level of services. Two prongs to the test. One, that we be financially feasible, and two that we maintain our overall level of service for the entire transportation network. There are deficiencies that exist within the system itself. And DCA is not saying Collier County, go out and fix all your deficiencies. What they're asking us to do is to identify deficiencies and show what progress we're going to be making through the entire la-year capital improvements element process to show that we are actually making progress towards completion of some of these deficiencies. So what Mr. Scott has done is he's identified different areas where that progress is taking place, whether it be like design, right-of-way, acquisition, and showing how throughout the time period that the progress is being made. And maybe Don could shed a little bit more light on what he's done and why he's done what he's done. MR. SCOTT: Actually -- Don Scott, Transportation Planning. I'm going to take off a little bit from what Bob Murray said, too, about 1 a-year. If you look at Page 11, at the end of the first paragraph of that recommendation it says for deficiencies that are identified through the analysis but are not addressed in the schedule, the county should adopt a long-term system for identifying planning strategies that will address these deficiencies. We do not really want to identify a long-term financially feasible -- which is questionable, and I'll get to that in a second -- concurrency Page 138 October 11, 2006 system which is for, let's just say a long-term program, because that's going to open all that up for proportionate share. And it's questionable enough that something's five years out versus something that's 10 years out. And actually I've heard DCA use the comment 15 years out. We just got our bids in on Monday for Santa Barbara and that was 63.9 million. Only one bidder. Now, I don't know if we're going to take that or not, I don't know. But I know in the document that you're looking at right now I had 56 million in there. So I already have less money than what's needed for the project. And I started looking at it because I -- you know, one of the questions, obviously, when we were looking today versus last year, where are we at versus last year. I started looking at some of the jobs. Santa Barbara extension, I have that in here as 25 million. It was 11 and a half million last year. County Barn, the last -- and some of these I have whatever the latest, it might be a 30, 60, 90 percent design. I have the latest design cost estimate, not what it's going to be bid, if we get bidders on those jobs. County Barn was 17.3 million last year. It's 38 million this year. Collier, Immokalee to Golden Gate Boulevard, that's one that is now negotiating a contract and that will start construction soon. That was 21.7 million last year. That's 43 million is what the bid amount was. Santa Barbara is actually better than expected, I guess. The bid, it came in at 63.9. The project in there last year was 37.4. But I will note that the 37.4 originally went all the way up to Pine Ridge, and that cost was never changed in the process, because we knew costs were gOing up. We have a hard time at this point going out into the future and saying these things is exactly what it's going to cost. Now, based on board direction -- and I don't think you've seen Page 139 October 11, 2006 anything since the last time we were here -- on that day recommended that we use escalating, what do I want to call it, contingencies. So out in the five years, I have 25 percent contingencies on the construction cost. But obviously, when you're doubling in a year it doesn't cover it. Now, I can't see that we're going to keep going up at that amount. But yeah, we do have some real problems, particularly identifying, you know, even beyond two years, three years. And that's why from what we submitted to DCA before, we moved projects outside of the three years. If you don't know if you're going to accept that bid, then why accept the development to come in, not knowing whether we're going to do it or not? Which I think is a pretty good strategy. Now, unfortunately when you read these comments, I'm not sure that's the way DCA is going to take that. We'll see, I guess, after our submittal. Now, what I tried to do, and part of it's from experience, when we had done some submittals previously, they like to see that you're actually doing something on something. We are. We either have PD&E or design. I'm not ignoring the fact that 41 is failing east of 951. The PD&E study is going on. We'll have a public hearing in a couple of months. We have design out in the five years. We as the county can always advance that. But right now we don't have construction money. And until we do, people will be stopped in those areas. I'm not sure that is the overall answer that DCA is looking for, but that's what I'm trying to do as best as I can is respond to their request. Now, it's a balancing act, because I know what the board wants, I'll say the general public in some respects wants, too. But I also think that DCA wants us to identify more concrete solutions to some of these. Unfortunately they don't even have to look at me. They can look down the street and up in Tallahassee and see what's happening Page 140 October 11,2006 at FDOT. It used to be said that if it's in five years, you can count on it. Well, that was Davis Boulevard. And that was pulled out. I'm hearing this year that there's 2.4 -- and this is the state -- $2.4 billion short on SIS funding across the whole state in four years, not the five-year work, in the four-year work program. And what does that tell me? More cuts. CHAIRMAN STRAIN: Mr. Adelstein? COMMISSIONER ADELSTEIN: Don, I have asked this before, but I still can't understand why we can't put up our own people to put the driveway -- I mean the streets in. In other words, we start a company of our own to do it. First of all, we're going to save a lot of money doing it, because there doesn't need to be a profit on it. Second of all, once they get started with something, if that could be done, then they're going to have to keep their jobs going, so they're going to have to drop some of that. All I know is this, every time we've gone through this, by the time you get the chance to get it going it's gone up two, three, four million dollars more. And I don't see how it's going to cover it. MR. SCOTT: And I owe you some data, that's right. Because there are state statutes that -- I mean, some people use it as contractor relief act that we can't start our own construction companies. Now, I'll say that, but then I also say I can do a lot of the pieces. We're trying to identify fill at certain prices in certain areas. We're trying to identify concrete. We're trying to identify the pieces. So when someone comes in from outside and bids on this proj ect, we can say you will use this fill at this cost for your proj ect. But meanwhile, as we go through those processes, you know, the bids really aren't getting any better. They're -- I guess if you look at Collier's bid versus Santa Barbara, it's a little bit cheaper than Collier, but fractional. Page 141 October 11, 2006 CHAIRMAN STRAIN: Mr. Vigliotti? COMMISSIONER VIGLIOTTI: Would we be able to do a labor only contract if we supply materials and we could contact material at specific rates like you're talking about? MR. SCOTT: You know, I'm not as familiar with it. And I do owe that to Lindy, because he asked me that before, what statutes I was referring to. I will get that so we can figure out where we -- I mean, the state has the same problem, you would think that was something they would want to do too. CHAIRMAN STRAIN: We are here relating to the EAR, so I don't know if contract labor has -- and I don't -- want to stick to the subj ect. Mr. Kolflat? COMMISSIONER KOLFLAT: Do you have any good news? MR. SCOTT: We just got a grant for $5 million. CHAIRMAN STRAIN: That's good news. MR. SCOTT: Yeah. CHAIRMAN STRAIN: Don, have you ever heard this language before: Further, no impact will be de minimis if it would exceed the adopted level of service standard for any affected designated hurricane evacuation route? MR. SCOTT: I have heard that before. And I've heard that recently -- CHAIRMAN STRAIN: Florida Statute 163.3180(6). Now, the troubles we're having on routes that are owned by the state are all hurricane evacuation routes. MR. SCOTT: Particularly 1-75. If you're really inclined to entice them, what would we be doing? CHAIRMAN STRAIN: And why is it not being funded-- MR. SCOTT: We've asked this question before of outside counsel. I can't say I got a good answer to it. CHAIRMAN STRAIN: Putting it on the record again as a Page 142 October 11,2006 question. I think I've asked it every year. I'll keep asking it. I don't know why the state can get away not providing roads that are safe for our excavation (sic), yet we are obligated to by taxes within this county and by this document in front of us, so -- MR. SCOTT: You know, one of the most frustrating comments I get all of the time from FDOT, and I've heard DCA say it through FDOT, is that we don't approve development. But meanwhile, here we are trying to slow, you know, or stage it concurrent with projects and stuff. And comment-wise, it's not going as well as you would hope. CHAIRMAN STRAIN: I agree. Any other questions of Mr. Scott? COMMISSIONER MURRAY: I have. He mentioned he's not sure about the language. Do you have any specifics about the language that you have seen here that distresses you? MR. SCOTT: Just in the sense that I almost feel like by the comments that they want us to do a long-term concurrency plan. And that, yes, does make things proportionate share eligible. And I'm not so sure that raising 30 percent for road does anything good for me. It lets somebody go but -- and I only have 30 percent for the road. I mean, I've offered it up to FDOT, fine, I have a lot of people on 41 that want to make payments for us widening that road. You guys take on the proportionate -- I'll give you all the information, you take it on. They have the same issue that, so what, raising 30 percent for a project doesn't make a project. MR. COHEN: Just for the record, I know Don has voiced that concern about the long-term concurrency program and proportionate fair share applying to projects outside of the five-year window, and I asked Don, they'll be footnoted, all the proj ects in here, six through 10, because the statute in essence states that, you know, anything outside of five years is optional if you want to go to that type of long-term concurrency management system. Page 143 October 11, 2006 Not only that, but counties may enter into agreements for projects that are in that six to 1 a-year window, if they choose to do so, with respect to proportionate fair share, and this county at this point, Don obviously hasn't chosen to do, so we footnoted those charts and tables accordingly. MR. SCOTT: You know, obviously one of the other concerns is that if you are forced to do a long-term concurrency plan, you will be forced to find money to do that. And I know what's happened during the -- I mean, I was hearing during the budget conversations and everything else. I'm not sure that that's a reasonable request. CHAIRMAN STRAIN: Okay. Any other questions on this matter from Don? Ms. Caron, I'm sorry. COMMISSIONER CARON: I was just going to make a comment in that I think I would probably be a little more direct with DCA and point specifically to things like Davis Boulevard and say how do you expect us to demonstrate funding, when we'll we put it in there because you've committed to it and then you back out on us. I mean, I think you have to be direct with them. MR. SCOTT: I've had conversations with DCA. And one of the things they said was why don't you send me stuff ahead of time. And realizing that that's probably not a good career move, you go through the boards first. But I do believe that after it's all done we have something that's adopted, it gets sent, that we ought to go and talk to them. Because they're not here today. But the people that are on the other side do go up there each time we do this. They did when we did the concurrency system three years ago. They did this last time. It's reflected in the comments. It's frustrating from my standpoint that, you know, one of the things that almost sounds like when you read it is we don't do longer term planning. We have long-range plans. They're supposed to review those plans, you know. They should know as much about it as Page 144 October 11,2006 I do. But I don't get that indication. And I believe we should sit down with them and tell them these are our concerns. It's easy to say all these things, but just as FDOT is having a problem, so are we. COMMISSIONER CARON: Ifwe don't lobby for ourselves, we will not get anything. MR. SCOTT: And they're not lobbying for us. COMMISSIONER CARON: Right. COMMISSIONER MURRAY: You haven't seen any of that one-and-a-halfbillion dollars that they were going to give us for transportation, have you? MR. SCOTT: I got five million. That's part of where it came from. CHAIRMAN STRAIN: Corby, what page are you on now? MR. SCHMITT: On 14. We'll head from there. I think Mr. Scott will explain a bit further on objection number five. But here it has more to do with terminology than it does with TCAs. Mr. Weeks is handing out something to you, as a staff omission. You'll see a reference on your Page 15 to some additional language in 5.3 adding a letter G in your version of the element itself back on the tab for the CIE. CHAIRMAN STRAIN: Let's back up. The page you just sent us fits into what page on -- MR. SCHMITT: Capital improvement element, back at that tab. It would be a replacement for Page 12. All the language showing that in blue has already appeared on Page 12. The additional letter G is the only thing in black. CHAIRMAN STRAIN: This is in the back of the backup portion of the book. If you go to the tabs for the capital improvement element and you go to Page 12, you'll see that everything in blue is already there, and what they're adding is item G. MR. SCOTT: And it's trying to answer their question. They're referencing that you can use proportionate share. Our proportionate Page 145 October 11, 2006 share we set up before was based on TCMAs. We did TCMAs because we identified some areas that were going to fail and that wasn't good enough before. So that's why we did TCMAs. So I've changed the congestion mitigation to separate it from proportionate share and try to make the point that we are doing above and beyond just, you know, TDM strategies. We take that money for intersection improvements and other things like that that are out there. CHAIRMAN STRAIN: Don, do you just want questions from-- I guess we're on Page IS? MR. SCOTT: Yes. CHAIRMAN STRAIN: I don't have any. Anybody? COMMISSIONER SCHIFFER: I do. CHAIRMAN STRAIN: Brad? COMMISSIONER SCHIFFER: Don, their recommendation is we have to amend it to include guidelines for use of proportionate share consistent with Senate Bill 360, right? But all you did is semantically remove the word proportionate share. MR. SCOTT: Well, they also put in G the proportionate share agreement has been proved consistent with the adopted ordinance. Unfortunately, I'd include more -- CHAIRMAN STRAIN: That's what was just handed out. MR. SCOTT: I would include more in the GMP and the LDC subsequently, but we don't have an adopted ordinance yet. And I believe you -- next week? MR. SCHMITT: October 19th. MR. SCOTT: October 19th we'll be talking about the proportionate share ordinance. COMMISSIONER SCHIFFER: And that will expand the answer here? MR. SCOTT: Yeah. And I guess from that standpoint, if it gets adopted we're not even going to the board until January with this. MR. COHEN: The proportionate fair share ordinance in Page 146 October 11,2006 November, it will be adopted prior to December 1st, and the board will hear EAR-based amendments on the 25th and 26th of January. So subsequent to that it could be modified accordingly. COMMISSIONER SCHIFFER: So then we will be including guidelines when this goes back? Because this is like the plans submissions, problems we have with buildings. If you don't answer the questions, you get spit back out. So it's saying revise the amendment to include guidelines for the use of proportionate share. Those will be included, right? MR. COHEN: I think what we can do in response to that is once the ordinance is adopted we can specifically reference that particular ordinance. And the county attorney may not want that amount of specificity, but I think that would probably be the best route you could go in this particular instance. MS. STUDENT-STIRLING: I don't have a problem with referencing the ordinance by number and date of adoption. CHAIRMAN STRAIN: Anything else? Let's go on to Page 16. Well, before we do, that's a new objection, why don't we take a break for 15 -- well, till 2:30 for the court reporter and for Kady. Does that work? Okay, be back here at 2:30. (A recess was held.) CHAIRMAN STRAIN: We were back on Page 16, I believe, now. MR. SCHMITT: Actually it begins at the bottom of Page 15 but, yes, 16, the meat of it. CHAIRMAN STRAIN: Okay. MR. SCHMITT: And it is their first objection of recommendation having to do with the planning time frame for the long range transportation plan. Here we provided maps and information so that the future land use map coincided, or I should say, is consistent with the long range Page 147 October 11, 2006 transportation map. CHAIRMAN STRAIN: Does anybody have any questions on 15 or 16? It's pretty -- all you did was simply add the map so -- Page 17? COMMISSIONER SCHIFFER: I have 17. CHAIRMAN STRAIN: Go ahead. COMMISSIONER SCHIFFER: It says -- the text says proposed and there is none. CHAIRMAN STRAIN: It keeps it simple, don't it? COMMISSIONER ADELSTEIN: That's right. COMMISSIONER SCHIFFER: I guess -- does that mean you propose no tax? I guess that's -- MR. SCHMITT: We propose no tax, so noted. COMMISSIONER SCHIFFER: Okay. CHAIRMAN STRAIN: And we have a new court reporter. What's your name? THE COURT REPORTER: Rose Witt. CHAIRMAN STRAIN: Rose Witt. Thank you. In case we have to get your attention, Rose. Thank you. Page 18. COMMISSIONER ADELSTEIN: Oh, yes. COMMISSIONER CARON: 17. COMMISSIONER ADELSTEIN: On 18? COMMISSIONER CARON: 17. CHAIRMAN STRAIN: 17. COMMISSIONER ADELSTEIN: Go ahead. CHAIRMAN STRAIN: Do you have 17, Donna? COMMISSIONER CARON: Uh-huh. CHAIRMAN STRAIN: Go ahead. COMMISSIONER CARON: Well, I don't know. CHAIRMAN STRAIN: Oh, we went through that. We're on Page 18 now, I think. MR. SCHMITT: It's because those first set of objections have Page 148 October 11, 2006 about the same answer and explanation. CHAIRMAN STRAIN: Okay. Page 18. Mr. Murray, you have a question? COMMISSIONER MURRAY: Yeah. On 18 at the top I think it's, let me see, one, two, three, four, fifth -- fifth line up from the bottom of the first paragraph, should that be six lanes in there five-year work program? Was the word "year" dropped out or was it -- should not be there at all? MR. SCHMITT: Looks to be. COMMISSIONER MURRAY: I'm sorry? MR. SCHMITT: It should be five year, yes. COMMISSIONER MURRAY: Okay. So, I thought that was just a typo. Thank you. That was it. CHAIRMAN STRAIN: Don, in that statement, the same paragraph about in the middle it says, the county has never analyzed concurrency conditions on I - 7 5 and has not restricted development based on the operation of I - 7 5. MR. SCOTT: Think that was too clear? CHAIRMAN STRAIN: Well, but you know what? If I was them I'd say, well, why? How can the county not do that? Why don't you explain to them why you can't do it or something? I mean, I still don't understand why a Florida Statute doesn't apply to Florida, Florida government. It seemed -- or FDOT. It only seems to apply to us on very particular roads and I'm puzzled by it, but if that's the best way to answer it, I just thought it was odd. MR. SCOTT: Don Scott, Transportation and Planning. I put that in there more from an aspect of they should know that, that we don't do that on there but, you know, conversely, you've raised it before. Maybe I should be. You know, the funny thing is I think the reason why we don't is Page 149 October 11, 2006 because we don't really have any -- we can widen the state road probably pretty much anywhere. We can't widen 1-75. Now, a qualification of that is we have a toll authority that we've done with both counties to look at widening beyond what is programmed as the six lane, so I'm not sure we're not solving our own problem anyway. So, I'm not sure that's a good reason to that. But, again, I still haven't -- you know, from our outside attorney, I did not get a good -- it was almost like it would -- if you applied it, nobody would be doing anything. But that doesn't seem like a solution to me either, so -- CHAIRMAN STRAIN: It seems dangerous, but I don't have any other questions or comments on 18. Does anybody else? How about 19? MR. SCHMITT: Nineteen is simply a listing of those tables and illustrations that we've included to show SIS and trip facilities. CHAIRMAN STRAIN: And that takes care of the transportation issues, does it? MR. SCOTT: Except for the last one, which is the map that was changed, the TCA boundaries. CHAIRMAN STRAIN: What page are you on in the -- MR. SCOTT: The top of20. CHAIRMAN STRAIN: The top of20? Okay. MR. SCOTT: And -- and we're just sending it back. Yes, we did change it because the city boundaries changed. CHAIRMAN STRAIN: Anybody else have any transportation questions related to the EAR? If not, we'll move on. Don, thank you very much as usual. MR. SCOTT: Thank you. CHAIRMAN STRAIN: Sanitary sewer and more potable water, I assume. Page 150 October 11,2006 MR. SCHMITT: On Page 20, you're looking at the objection where the staffs responded by providing additional information. And, again, the new figures at the back of that element were provided to DCA for clarification. Same response, sanitary sewer and potable water. And water is on Page 21. CHAIRMAN STRAIN: Right. It continues to Page 22. Is there any questions on 20,21 or top of Page 22? Okay. I guess we're on 22 then, Corbin. MR. SCHMITT: All right. With objection two, DCA had a recommendation to look at the element and be sure that the planning time frame was demonstrated that accurate supply of services was available. You see text being proposed there or to clearly or more clearly state that the county would do so. CHAIRMAN STRAIN: Okay. Any questions on Page 22? Page 23, drainage? Is that you, too? MR. SCHMITT: I'm -- I'm afraid not. This is where I leave you for a few moments. This is not my element. CHAIRMAN STRAIN: Okay. MR. SCOTT: The sub-element for drainage, I believe Mr. Weeks will take over. CHAIRMAN STRAIN: Okay. MR. WEEKS: For the record, David Weeks of the Comprehensive Planning Department. There are two objections in the drainage sub-element, the first of which pertains to the lack of interim guidelines on this -- correlates to the CCME, Conservation and Coastal Management Element. And we have added, as you can see on Page 24, the text regarding watershed management plans and referring over to the CCME for the interim guidelines which we discussed earlier today. The second objection is on Page 25, and this pertains to deficient Page 151 October 11, 2006 drainage facilities regarding their level of service standard. This is the item I mentioned at the beginning of the hearing, that we have -- we're not ready yet for it, so we simply can't offer anything to you. We obviously know that we're going to need to continue this item hopefully to one of your regular -- regularly scheduled first and third Thursday of the month meetings. CHAIRMAN STRAIN: So, you'll be coming back with the drainage element? MR. WEEKS: That is correct. CHAIRMAN STRAIN: Drainage responses including -- I mean, we'll do the whole drainage thing at one time then. MR. WEEKS: Okay. CHAIRMAN STRAIN: I do have one question, so when you come back you can think about it. MR. WEEKS: Okay. CHAIRMAN STRAIN: On Page 23, the last part of it talks about the watershed management plans that will be undertaken. MR. WEEKS: Uh-huh. CHAIRMAN STRAIN: It says, which I didn't realize this before, after each plan is completed, the results will be made available to the property owners located within the basin's boundaries for their petitioning of the board of county commissioners to create a taxing assessment unit to fund the proposed implementation of the plan's recommendations. COMMISSIONER MURRAY: They won't have much to use. CHAIRMAN STRAIN: So, now you're -- the watershed management plans, instead of being paid for through ad valorem taxes, they're going to be separately assessed for MST use for every single district in the county? MR. WEEKS: At least potentially. That provides the opportunity to do so. It's not a mandate. Page 152 October 11,2006 COMMISSIONER MURRAY: Well, but it -- are we leaving it open so that it isn't a mandate? COMMISSIONER ADELSTEIN: Yeah, he's -- COMMISSIONER MURRAY: No. I think it says it will be. CHAIRMAN STRAIN: Yeah. For their use and planning to create a -- it doesn't -- it doesn't have it. And I don't see the other option. I mean, could you consider making that clearly when you come back with us? I don't think the public is aware that this is going to be a whole new separate tax on top of all the taxes we currently have. MR. WEEKS: I would point out to you this is existing language. CHAIRMAN STRAIN: Well-- MR. WEEKS: We tweaked it a little bit, but it's been in there for I don't know how many years. COMMISSIONER MURRAY: Wasn't it also the subject of not too long board meeting where they spoke to the issue? You're not familiar with it. MR. WEEKS: I'm not. COMMISSIONER MURRAY: Okay. MR. WEEKS: I'm not. COMMISSIONER MURRAY: I thought that had come up that where -- where I believe Mr. -- Commissioner Coletta spoke to that issue about -- CHAIRMAN STRAIN: Well, it's his district. COMMISSIONER MURRAY: -- happened. CHAIRMAN STRAIN: It's going to have to pay for most of it, so -- COMMISSIONER MURRAY: Yeah. CHAIRMAN STRAIN: -- let's hope he picks up on it. Maybe he will. I have a feeling somebody might take to him about it, but -- COMMISSIONER MURRAY: I have a question with regard to Page 153 October 11, 2006 the -- unless I missed something here -- all of the struck items here, that they're not going to be carried or they're going to be modified because I have my note to myself as time to start, time to complete. Are they going to be gone from this? To where it says, basin starting date, completion date and it does it on the next pages as well. MR. WEEKS: Right. Those are stricken because they've been completed. COMMISSIONER MURRAY: Because they're completed. MR. WEEKS: Yes, sir. COMMISSIONER MURRAY: Oh, I see. Yes. I didn't -- sorry. Thank you. CHAIRMAN STRAIN: David, if we're going to defer drainage to another date, then we're looking at the housing element at this point on Page 25? MR. WEEKS: Yes, we are. CHAIRMAN STRAIN: Okay. MS. MOSCA: Excuse me for just a moment. MR. WEEKS: Mr. Chairman, Michelle Mosca from our department is here to take the lead on this; however, Cormac Giblin from the Housing and Grants section also has some involvement in this. I'm wondering if -- he's on his way. You might want to pass over this for now. CHAIRMAN STRAIN: No sense in doing things twice. Let's head to the -- whatever the next element is then. I guess it's 28, recreation and open space? MR. WEEKS: There are no changes. There were no objections. CHAIRMAN STRAIN: Or Page 28, there looks like -- yeah. I'm sorry. MR. WEEKS: It was a matter of providing data and analysis. There are no proposed changes to the element. COMMISSIONER ADELSTEIN: Are they possibly going to Page 154 October 11, 2006 change the sport? I get tired of soccer all the time. CHAIRMAN STRAIN: I don't -- Lindy, that's a very true statement. I'm going to put you -- can we put that in the GMP, there's no soccer anymore allowed in Collier County, we got enough? COMMISSIONER CARON: We're tired and cranky. COMMISSIONER VIGLIOTTI: How about Friday night's football? Isn't that you, Friday night football? COMMISSIONER ADELSTEIN: Yeah. MR. WEEKS: Specifically -- I'm sorry for the recreational. On it's face the objective -- objection dealt with population methodology which has been covered previously. CHAIRMAN STRAIN: Okay. Conservation and, we've already covered that element, so we are -- oh, we're moving fast now. MR. WEEKS: Page 37. COMMISSIONER MURRAY: I'm sorry. I'm about 17. I'm a second behind then. Maybe -- I was just rereading where you said there was no change on the -- on the parks thing here. Please revise the policy to require the utilization of population figures from an established professionally acceptable population protection methodology, and the same figures should used consistently with the calculation. CHAIRMAN STRAIN: That was the opening. We did that. COMMISSIONER MURRAY: Wasn't that the -- the -- that's the recommendation based on their objection, right? Now, I see here the text was no change, right? CHAIRMAN STRAIN: Correct. COMMISSIONER MURRAY: Tax is proposed for adoption. No changes? CHAIRMAN STRAIN: Correct. COMMISSIONER MURRAY: Did I miss something? MR. WEEKS : Well, our response is -- is covered under the capital improvements element when we deal with population Page 155 October 11, 2006 methodology. This is one of those -- COMMISSIONER MURRAY: Oh, okay. MR. WEEKS: -- objections that applies to several different elements. COMMISSIONER MURRAY: Okay. I thank you for qualifying that for me because I thought that -- all right. Got it. CHAIRMAN STRAIN: Page 37 then, future land use element. MR. WEEKS: This objection pertains to a couple of things. One is the deferral to certain provisions. Let me back up. It pertains to affordable housing, density bonus and the allowance of density increases in certain areas, most particularly the coastal high hazard area. And as you can see in the staff response, one thing DCA has done is -- Department of Community Affairs -- DCA has misunderstood what we're doing. The existing future land use element already provides for the density bonus for affordable housing to apply in the rural land stewardship area and to apply in the urban residential fringe subdistrict on a limited basis. It's true we're adding tax that makes reference to those two areas, but that's a matter of formatting. Again, it's -- already exists that those bonuses are applicable. So, we've tried to simply explain that to them. The other issue they -- they have raised here, the other part of the objection, is that we have deferred the definition of affordable housing to the Land Development Code, and they believe that density provisions are administered through the Land Development Code, and that latter point is a misunderstanding again on DCA's part. So, it explained to them that the density consideration and determination is made through the future land use element through this density bonus provision. Page 156 October 11, 2006 What the Land Development Code does is provide some of the details of the number of bedrooms, whether it's a rental or an ownership property, the income levels, et cetera. But you can see on Page 39 we have added language to specifically reference a state statutory -- state statute definition of affordable, and that reference statute is the one that speaks to no more than 30 percent of your household income should be spent towards your housing costs. And we've specifically stated that the affordable work force housing applies up to 150 percent of the median household income that correlates with the LDC provision, that table that's in the LDC that -- that goes all the way up to the GAP housing at 150 percent of median household income. COMMISSIONER MURRAY: Could I -- CHAIRMAN STRAIN: Go ahead, Mr. Murray. COMMISSIONER MURRAY: I had -- some education for me, please. I noticed it's 140 percent that the state is now considering assistance applicable to, so that means some of our GAP housing people will be illegible, will they, for some kind of assistance? Heretofore the -- the GAP housing had no particular benefit other than what the county was going to try to apply. MR. WEEKS: That's correct. COMMISSIONER MURRAY: And what -- is there now-- when we go to the LDC, we'll see a chart that will show specifically for the dollars and that will-- I think there's already a chart been presented to us, of course, but -- so, in other words, now for the first time those folks who qualify, and there will only be ten percent out of the -- out of the process so to speak. MR. WEEKS: That level of specificity Mr. Murray, I'm not certain of. I do know that the table already goes to 150 percent because of -- Page 157 October 11, 2006 COMMISSIONER MURRAY: Yes. MR. WEEKS: -- that's our local regulation. COMMISSIONER MURRAY: Yes. MR. WEEKS: But you're correct that the -- the statute now provides for some supplements to be available all the way up to 140 percent. COMMISSIONER MURRAY: That's terrific. Thank you. CHAIRMAN STRAIN: What page are you on now, David? MR. WEEKS: We could move to Page 40. CHAIRMAN STRAIN: Forty. Okay. Questions on Page 40? COMMISSIONER SCHIFFER: I do. CHAIRMAN STRAIN: Mr. Schiffer? COMMISSIONER SCHIFFER: Dave, weren't you supposed to and actually be the carry-over to 41? Weren't you supposed to change -- I may be one -- I'm on question two. Is that what you're on? MR. WEEKS: Yes, sir. Objection Number 2 -- sorry. Page 40. COMMISSIONER SCHIFFER: You were just supposed to change some language. It didn't look like it got done. The second -- it was -- let me see what paragraph it is. The third paragraph where you used the phrase" gross leasable area", I mean the only comment they want is the change. MR. WEEKS: Uh-huh. COMMISSIONER SCHIFFER: So, it's not done yet or -- MR. WEEKS: We're not going to change it. COMMISSIONER SCHIFFER: And the reason being? MR. WEEKS: Our explanation is that the project was approved in 19 -- the plan amendment that established this subdistrict was created in 1999. I think this is another case where DCA is not realizing that, that this is not a new subdistrict that we're adopting. I mean, it's Page 158 October 11, 2006 underlined. That's only because we've deleted it from one district in the -- in the future land use element urban area and moved it to another one. So, they're looking at this, seeing all this underlying and thinking this is a brand new subdistrict. It was in fact approved in '99, the rezone occurred in '99. And the project that's under development right now, a portion of it is already completed. This is at the northeast corner of Pine Ridge and Goodlette Road. CHAIRMAN STRAIN: Okay. MR. WEEKS: So, we're trying to just explain to them why we're not going to make the change and what the development status of the project is. CHAIRMAN STRAIN: Page 41. Page 42. MR. WEEKS: See, the obj ection at the bottom of Page 41 near the bottom, Objection Number 3, pertains to land use data that we have failed to provide information to demonstrate to DCA that we have adequate land available to accommodate our population projections. So, again, we've provide that there is no text change, no change to the element, just providing data and analysis to convince them, hopefully, that we do have plenty of land available for our projected population. CHAIRMAN STRAIN: David, according to what your statements are, as of today -- this is not including what we might do next week -- there is great -- there is over 76,000 approved but unbuilt development units in PUD's. Is that a true statement? MR. WEEKS: Yes. CHAIRMAN STRAIN: In the next paragraph, the inventory of a commercial, which we always hear there's not enough of, out of 4500 Page 159 October 11, 2006 acres, 2700 acres are still not developed in this county, 60 percent. And we're looking at more. And then under industrial -- this one was a little confusing. There's 40 180 acres of which 21 acres are undeveloped leaving a balance of 27 80 vacant acres. I think there's some language mixup there. MR. WEEKS: I believe that should be 2100 are developed. CHAIRMAN STRAIN: Are developed. So, we have -- MR. WEEKS: I think that's right. CHAIRMAN STRAIN: -- 20, almost 2100 vacant acres of industrial and everybody is screaming for more industrial. And then the -- within the PUD's, there are 3292 acres of commercial development. There's 2850 acres of vacant PUD commercial lands. I just read your statistics and I'm -- just think that's astounding. We have more undeveloped in this county and approved than we have developed and approved. MR. WEEKS: We have a lot. The one thing that may be misleading -- I mean, it's accurate that we have that much. For example, industrial land, there's over 2,000 acres, whichever figures is accurate there, of undeveloped land. The majority of that, the vast majority of that is in Immokalee around the Immokalee airport. And the -- similarly with the commercial inventory. The -- the argument that we hear, and I think it's a valid one, when we have these requests particularly for comprehensive plan amendments to allow for more commercial is that it's more than just looking at what the inventory is. It is where is it located, what is the zoning intensity; that is, what uses would allow and also what are the parcel sizes and dimensions? Now, if you need to do a big box development, the fact there there's 100 acres of C5 zoning available is meaningless if it's all tiny parcels stripped out along U.S. 41. Page 160 October 11, 2006 So, the inventory itself looks big, and it is, but we have to look beyond just the numbers. CHAIRMAN STRAIN: Well, I understand your argument as it may apply to commercial and industrial, but, my God, 70 -- greater than over 76,000 improved residential units are not built. We think traffic is bad now. MR. WEEKS: Well, one comment about the PUD's. As we know here, they don't always build out to the maximum, and so it's a little bit deceptive in the sense that all of those may never be built. But they're still in the books, the potential is there for them to be developed, and we -- we don't want to try to explain that away, that, well, we may not build out to the maximum because who are we to say? But our experience shows that, particularly the larger PUD's don't build out to their -- their approved number. COMMISSIONER CARON: But aren't we sort of using a figure somewhere around 10,000 that that is represented by, those that -- MR. WEEKS: That are approved but won't likely get -- COMMISSIONER CARON: -- are approved but won't get built out? MR. WEEKS: I haven't heard that, but -- COMMISSIONER CARON: Why do I remember reading that figure somewhere just very recently? MR. WEEKS: I know that's come up in the past in the discussion several months back or longer when the county was considering if a term but -- but -- doing away with those, but from a perspective of concurrency management system, let's clean out the checkbook a little bit, let's do away with some of those and that maybe where that figure came up. I don't think that's unreasonable. CHAIRMAN STRAIN: Margie, did you have a comment? MS. STUDENT -STIRLING: Yeah. This is probably more of a planning observation and not really a legal one, but I think that a Page 161 October 11, 2006 couple of things could be happening with that figure; that, number one, you may have platted lots that are platted and subdivided, but the people haven't gone vertical yet, so that might be one thing that throws it off. And the other thing that could, would be the -- you know, the land area that makes up the PUD is completely full, but when they platted it and subdivided it, they may have made the lots larger so they didn't take as many units or they might have built less multifamily than the multifamily tracts could have accommodated it. So, when you drive through the place, there's no room to put additional units, but when you look at the figures contrasted with what the maximum approved are as contrasted with the maximum that they build out, you know, there's a discrepancy. And I just want to make that -- I don't know, Dave. You could verify whether -- maybe that that's an appropriate statement. But I -- you know, so -- so, that would mean that, yeah, we may still need to have other areas to meet our projections developed or, you know, residential, because you can't unplot (sic) those areas or rip down buildings, you know, just throw more units than there's already approved once. So, that can skew it a little bit. That's all. CHAIRMAN STRAIN: Thank you. David, I think we're about done with this until we go back to the -- Mr. Murray? COMMISSIONER MURRAY: Now, if I -- just a point. I wanted to qualify something. The formula in part has to do, does it not, with the density associated with all of the zoning, right? MR. WEEKS: True. COMMISSIONER MURRAY: That's where you get your calculation. So, urgings to modify density to increase it in some cases will-- will also change the way the calculation will ultimately come out. Page 162 October 11, 2006 So, we're looking at not -- you know, several variables at least, right? MR. WEEKS: Yes. COMMISSIONER MURRAY: And, so, I take that into consideration. I wonder if that was any part of where the DCA was probing. MR. WEEKS: I think they were simply coming from the standpoint that we -- we goofed. We failed to provide them with the data. Number one, the projections of population we provided them only did not go far enough into the future, but secondly, we -- we simply failed to provide them any information that showed that we have the land available to accommodate that future development. COMMISSIONER MURRAY: Okay. MR. WEEKS: And, so, now we're trying to do it. COMMISSIONER MURRAY: Thank you. MR. WEEKS: If I may make one more comment about the PUD inventory just for the record. The PUD list that we maintain in our department is updated monthly to indicate both a new approved PUD's or modifications to existing ones as well as to reflect the latest monitoring report submitted by the PUD developer showing how much development has occurred within the last year. That is key, the monitoring ports; number one, how accurate are they? We're taking at face value what's provided to us is accurate. Secondly, the monitoring report for each PUD is submitted on the anniversary of its approval date, so it's constantly changing. If you look at a given PUD, for example, you might see it's approved for 1,000 units and it might show that zero have been built, while their monitoring report may be coming due next month. So, there may be 11 months of development activity not yet reflected in there. Page 163 October 11, 2006 So, that -- that's a moving target. So, that figure that's listed here could change by next month. CHAIRMAN STRAIN: Mr. Vigliotii. COMMISSIONER VIGLIOTTI: Marjory, just one statement. The statement you're referring to represents phantom units? Marj ory? MS. STUDENT-STIRLING: Yes, uh-huh. COMMISSIONER VIGLIOTTI: That's what we call the phantom units? MS. STUDENT-STIRLING: Yeah. They call the unit, the differential is we refer to as phantom units. And I think I identified a couple of ways they could come about. COMMISSIONER VIGLIOTTI: Okay. Thank you. CHAIRMAN STRAIN: Okay. David, before we go into the housing, which I think is the last one we can probably do today then, let's finish up on Page 42 and 43, which are the last, and 44, the last page of this document. Does anybody have any questions on the remaining pages? COMMISSIONER SCHIFFER: I do, Dave. MR. WEEKS: Sure. COMMISSIONER SCHIFFER: Just explain the -- the consistency statements they had. Essentially, your response kind of says that if you answer the questions above, you've removed those? Is that true or -- MR. WEEKS: That's correct. And that's basically what they told us. If you address all of the above, then you will then be consistent with state. COMMISSIONER SCHIFFER: Okay. All right. CHAIRMAN STRAIN: Okay. David, are we on to the housing, and this is the last item -- MR. WEEKS: Yes, sir. CHAIRMAN STRAIN: -- for today? Page 164 October 11, 2006 MS. MOSCA: Good afternoon, Mr. Chairman, Commissioners. For the record, Michelle Mosca with the Comprehensive Planning staff. If you want to follow along, I'm on Page 25 of the off response document. There were two objections to the housing element raised by the DCA, the first dealing with the breakdown. The county failed to provide the breakdown of housing units by size and income ranges based on our population calculations. Also, as David mentioned earlier, the county did not provide the land area figure necessary to accommodate the proj ected units. What staff has done is staff has responded to the DCA's objection by providing the data requested. Tables I-A and 1-B provide the required breakdown. And Tables 1.3-1 through 1.3-2 provide the acerage count. CHAIRMAN STRAIN: Okay. Marjory. Margie, do you have something that needs to be said? MS. STUDENT-STIRLING: When Michelle is done, I do. Yes, thank you. CHAIRMAN STRAIN: Okay. MS. MOSCA: Okay. What I'd like to bring to the commission's attention, what we've done is we have made a change to both objective one and objective two as a result of our findings and projections based on the breakdown. Based on our population estimates, we believe that the number of affordable housing units needed annually is much greater than that provided by the Shimberg Center. So, as you review the documentation by the University of Florida, Shimberg Center, their population figures were much lower than ours. So, we have a higher need based on our projections for affordable housing annually. Page 165 October 11, 2006 CHAIRMAN STRAIN: Do you have a study that -- that you can provide for us to review against the Shimberg study so we can see what the discrepancies are? MS. MOSCA: What I've provided, if you look at and you-- backup documentation, if you look at the Tables I-A and 1- B, what I've done is compared Shimberg's numbers against the county's projected population numbers, and staff has applied the Shimberg percentages to the county's population estimates. And that's with both a breakdown of household size and also for household income. CHAIRMAN STRAIN: But, Michelle, there was an issue with the Shimberg study that we discussed last time, and I don't know where it went after it left us, that the 26,000 that they referenced as cost burden included millionaires who were in homes that were worth 2 million so they were cost burden. Has someone ferreted that out to see the extent of that issue? MS. MOSCA: The table that I provide again on I-A, the cost burden -- you're correct. But the figure for the 26,663, that is only for household earnings up to 119.9 percent of the median income, and I may have to defer to Cormac. MR. WEEKS: Mr. Chairman, let me jump in, if I may -- CHAIRMAN STRAIN: Sure. MR. WEEKS: -- just for the location because after the fourth response document is where we have all this data and analysis and then the upper right-hand corner of each of the pieces of information we provided, we've identified the element and the objection number. So, you -- it's roughly in the middle of that stack of data and analysis, that it's labeled Housing Element Objection Number 1, and that's what Michelle was referring to, Table I-A. CHAIRMAN STRAIN: Okay. COMMISSIONER SCHIFFER: Excuse us. Let me try to find it. CHAIRMAN STRAIN: It's in the -- if you go to the back of Page 166 October 11, 2006 your -- not the back, but in the front tab, towards the back of the front tab, you'll see some colored charts. They have a blue header on the left side. COMMISSIONER SCHIFFER: Is it after the newspaper copies? CHAIRMAN STRAIN: No. It's before it. COMMISSIONER SCHIFFER: Okay. COMMISSIONER KOLFLA T: Is it in the housing unit? COMMISSIONER ADELSTEIN: No, no, not the tab. COMMISSIONER CARON: Yes, that's the one. COMMISSIONER MURRAY: After your ORC. COMMISSIONER SCHIFFER: No, it's not in the front. CHAIRMAN STRAIN: Guys, one speaker should be -- okay. MS. MOSCA: Also behind those Tables I-A and 1-B, there's a breakdown. Sorry, I'll make sure everyone's able to follow. Table 2-A, which has both the population estimates and projections for Shimberg as well as the county's population estimates and projection, and that again is on Table 2-A. CHAIRMAN STRAIN: So, based on these tables, you're predicting that we need more affordable housing, which everybody knows we need more affordable housing, but you want to actually raise the minimum per year through the GNP why? I mean, we can still set the goal, but if you put in the GNP, you've elevated -- you may be creating a problem that we can't attain in a reasonable amount of time. MS. MOSCA: That is correct. Shimberg study reveals that there's approximately a deficit within a 14-year time line up to 2020 of approximately 960 some odd units. But when we look at our population proj ection estimate, we have somewhere around eight, 1600, almost 1700 unit deficit per year for that same 14-year period. And if we keep the 1,000 figure in there, that may be too low, so we were looking at possibly changing that to 1500 and, again, that Page 167 October 11, 2006 probably is somewhat of a -- a lofty goal to try to achieve since we've been averaging somewhere around 5,000 to 6,000 units per year total, which would equate to about 30 percent of all new units. CHAIRMAN STRAIN: Wait a minute. You got me confused because you're saying 1500 dwelling units per year. MS. MOSCA: That would be for the affordable housing. That's what -- CHAIRMAN STRAIN: Right. But now you just told you're getting five to 6,000 per year. MS. MOSCA: That is total units being developed, not total countywide total of residential units being developed annually. CHAIRMAN STRAIN: And this year how many are we going to develop? MS. MOSCA: I don't know yet. CHAIRMAN STRAIN: Right. Now, I can probably tell you it's pretty dismal. And if we have 1500 required in our GNP for affordable housing, but we didn't even probably sell that many throughout the whole county this year, we have a real major problem on our hands. And I'm just wondering, is it wise to put a goal in here that is that difficult and we can still post the goal as the policy to ourselves, but not put it in the GNP where we have other ramifications. MS. MOSCA: I agree. We were somewhat concerned with raising that from 1,000 to 1500, and I might have to let Cormac speak on that issue. CHAIRMAN STRAIN: But I know what he's going to say, he's going to say it's a good idea, so, that's fine. MS. MOSCA: Right. MR. WEEKS: Mr. Chairman, the concern we have is that DCA has raised an objection here. And if we -- and then in responding to that objection, we are providing the data that they've asked -- we believe that they've asked for. Page 168 October 11, 2006 We thought it was just going to be as simple as providing information from the Shimberg study. But, as Michelle has explained, when we looked at that, we see that their population projections are much lower than ours, and in fact lower than the medium range projection. Simply put, we think they're way too low. Our concern then was that DCA is going to see this data from the Shimberg study and see that the needed number of affordable housing units based upon one set of population, and then in another part of this packet, they're going to be looking at our response to the population methodology, and they're going to see numbers that are much higher. They're going to see an inconsistency in the information that we provide to them. We thought the flag is going to go up and we're going to be facing a noncompliance finding. CHAIRMAN STRAIN: So, now we have to provide affordable housing for those seasonal visitors who want to come down and be snowbirds, because we're now using a weighted seasonal population in our mIX. I don't see why DCA would require -- I mean, your -- your population statistics are higher than the University of Florida, because you're using this weighted program that you've come up with. MR. WEEKS: But for -- we don't use weighted for all things. We use permanent population. In this case, it's based on permanent population, not weighted average. This -- this need for -- for affordable workforce housing, that's based on permanent population. CHAIRMAN STRAIN: Why is your permanent population calculation higher than the University of Florida's? MR. WEEKS: We don't have a clue why they're using such low figures for us. CHAIRMAN STRAIN: But wouldn't DCA want to have you explain why the logistics of yours are better than the logistics of theirs, just like they wanted you to explain why you should be using your Page 169 October 11, 2006 weighted population average over their recommendation of using the medium beaver average? MR. WEEKS: Yes. And we are responding, explaining to them why we're using our -- our permanent population methodology. CHAIRMAN STRAIN: Is that some -- I mean, is that an explanation that you believe is in this document in front of us? MR. WEEKS: Yes, sir. It's -- I believe it was in the response to the CIE. There were -- there were two issues pertaining to population. Well, I guess three, but the two specifically for the methodology. One was this business of using weighted average. We've already discussed that. The other was they raised the issue of our methodology deviating from either medium range or high range or some other -- I guess you'd say published methodology. That's what I made reference to earlier using the beaver high range growth rate for the first five years and then 95 percent of that high range for all subsequent years. And we've provided the same data and analysis that we've provided to DCA in 2003 when we amended the Comprehensive Plan at that time to adopt that new methodology. So, we're not asking to change the permanent population methodology, but DCA has taken this opportunity when the plan is opened up to challenge that this time around. CHAIRMAN STRAIN: I think we're going to have a lot more to go before this one is over. Mr. Schiffer? COMMISSIONER SCHIFFER: Dave -- David, the reason the -- remember the comment back in the CIE stating that we had to use the same number? The reason that doesn't apply here is this housing is not an element of the CIE. Page 170 October 11,2006 MR. WEEKS : We're not dealing with a capital facility here. COMMISSIONER SCHIFFER: All right. Thank you. CHAIRMAN STRAIN: Margie, could you explain to us any downside for increasing the number and not hitting it in the GNP for this regard? MS. STUDENT-STIRLING: It would be -- I think it would be very hard if somebody tried to challenge a developmental order as being inconsistent with this, because I think they'd almost have to wait until the end of the year and then get information as to how many of the units were affordable and how many were not, and if we were meeting the goal. And there are some time limits to challenge development orders and there is a process in 163 to do it, but I think it would be very hard to do it. And what I want to do is double check the language of9(J)(5) to see if we have to specifically put in a certain number or just state that we are doing something to address the housing needs of the populous of the county. The other question that I -- or the other issue I was going to raise, and I've talked to Cormac about this, throughout the goals, objectives and policies, there are references in some places to affordable workforce housing, and in other places to very low, low and moderate. I just want to make sure we don't have an internal inconsistency issue and Cormac and I will work that out. CHAIRMAN STRAIN: If at the end of first year which the county, rightfully so, would assess its own success of affordable housing and came back and discovered that 12 months is over, we've got 960 units instead of 1500, what does that mean, anything? MS. STUDENT-STIRLING: I don't know that it does, because I don't see how we can force people to do it, and unless the county's in the housing business itself to provide -- you know, have a housing authority of the type that provides and owns and operates housing for, Page 171 October 11, 2006 you know, individuals that can't afford market rate housing, I don't see how we can achieve it. I don't see how we can force people to do it. CHAIRMAN STRAIN: Miss Caron? COMMISSIONER CARON: Well, then shouldn't we change the wording here in Objective One to say that it's just a goal instead of we shall increase it by? MS. STUDENT-STIRLING: That -- that may work. COMMISSIONER CARON: Could we reiterate that it's just a -- MS. STUDENT-STIRLING: What I want to make sure of is that there is no 9(J) (5) requirement. I'm speaking from recollection that it . has to do with, you know, meeting the housing needs of the populous of the county and it's that general. Maybe we could state it in terms that our goal will be to provide that number per year. COMMISSIONER CARON: I think there's no way we can do anything other than say it's a goal. And, secondly, in the following paragraph, do we have any agreements with Marco or the City of Naples? MR. GIBLIN: Commissioners, Cormac Giblin, your Housing and Grants Manager. We don't have any specific interlocal agreements with this yet. This is -- remember, this is not adopted yet. COMMISSIONER CARON: Right. I understand, but we're essentially committing to 15 and it's triggered by the next paragraph, and we haven't even begun discussions with these people. MR. GIBLIN: Right. I don't know if it's necessarily triggered by the next -- I think it's mitigated by the next. COMMISSIONER CARON: Well, it will be, but it won't be if you don't get those interlocal agreements is what I'm saying. There will be no mitigation if you don't get those. MR. GIBLIN: That's correct. COMMISSIONER CARON: And, so, I don't know why we Page 1 72 October 11, 2006 would commit -- MR. GIBLIN: We would-- COMMISSIONER CARON: -- before we've got agreements-- MR. GIBLIN: The reason for the -- COMMISSIONER CARON: -- for the people to comply. MR. GIBLIN: The reason for the increase was simply with the different population numbers we saw that the demand side had increased to roughly 15 or 1600 units a year. I was the first one to raise the red flag. I don't know if this is attainable. If-- COMMISSIONER CARON: Yeah. MR. GIBLIN: In a county where we're only -- see only 6,000 overall units a year -- COMMISSIONER CARON: Right. MR. GIBLIN: -- is it realistic that 25 percent of them are all going to be affordable workforce housing? We have -- along the same lines, we have increased the spectrum of what qualifies as affordable workforce housing by the addition of GAP, so we are adding more -- more elements to the pool, so to make it easier to get a higher number. But, again, 1500 is about 25 percent of every -- everything permitted last year. COMMISSIONER CARON: Yeah. I have one final -- go ahead, Marj ory. MS. STUDENT-STIRLING: And I was just going to say, we have one thing that isn't really a variable for us at this time, and that's the cost of land. And with the land cost being established by the market, you know, it's problematic, as I said, to force people to provide it. And-- and unless the county's in the housing business, I just wouldn't -- given those facts. MR. GIBLIN: There would be -- there would be planning tools that the county could incorporate. Page 1 73 October 11, 2006 If there was a desire to meet a certain number, we could incorporate an inclusionary zoning type ordinance that said 25 percent of everything built needs to be affordable or workforce or GAP. We could -- in an extreme we could be like the Monroe County and there could be a moratorium issued, you know, no more building permits until you reach your quota of affordable housing. COMMISSIONER CARON: But are you -- you're working an inclusionary zoning -- MR. GIBLIN: Yes, ma'am, we are. COMMISSIONER CARON: -- ordinance right now. MR. GIBLIN: Yes. COMMISSIONER CARON: But we don't have that in place either -- MR. GIBLIN: We do not. COMMISSIONER CARON: -- sort of like those interlocal agreements. We don't have those, we don't have inclusionary zoning. However, I did notice that you put back in density by right, which this board unanimously said -- well, I think it was not unanimous. I think it was an eight to -- MR. GIBLIN: One. COMMISSIONER CARON: -- one, said that we did not want density by right. MR. GIBLIN: No, ma'am. The density by right is only -- was approved in the Immokalee community, not in counting-- CHAIRMAN STRAIN: Right. MR. GIBLIN: May include, so -- COMMISSIONER CARON: Oh, okay, so -- MR. GIBLIN: Yeah. COMMISSIONER CARON: Because it says may, it's -- okay. MR. GIBLIN: Right. COMMISSIONER CARON: You're talking-- MR. GIBLIN: It is not. Page 174 October 11, 2006 COMMISSIONER CARON: -- about that here. Okay. CHAIRMAN STRAIN: Mr. Murray and then Mr. Adelstein. COMMISSIONER ADELSTEIN: I'm probably not going to add anything much, but I -- how many do we have lagging in terms of those that were approved to be built but have not yet been? I know Ave Maria was like 22, 2300, something like that. We had something in the neighborhood of 5,000 overall that had not been built, but had been improved. MR. GIBLIN: Over the past five years, about five or six -- 50 -- about 5800 affordable units have been approved. Over the past five years, about 1800 of them have actually gone through the entire development cycle time line and received a CO. So, there are none -- I wouldn't say they're lagging out there. They are all going through the -- diligently through the process to -- to be built. COMMISSIONER MURRAY: But I choice the word "lag" because there's nobody living in the space that they would have occupied, so we have to find out -- we were on the verge of success of trying to capture what we thought of what was a crisis. We now have created a headline for a new crisis in my opinion. Now, maybe it's a valid crisis. I don't know that, but I think it's unattainable and I'm wondering why we would hamstring ourselves by putting something that appears to me to be unattainable? And I'm not sure. You mentioned inclusionary zoning and you mentioned other things. We're about to go into a deflationary cycle in terms of real estate, I think, and we can't get roads built and all the rest of those things. What are we doing to ourselves? So, I mean, this is not criticism to you because I understand you're trying to do your job. I'm not criticizing you, but I'm just -- when I read that, and I said, this has got to be a mistake. We went from 500 to 1,000 and now 1500. Page 175 October 11, 2006 MR. GIBLIN: Yeah. It -- I would say it's only as unattainable as the county would like it to be. COMMISSIONER MURRAY: But the county doesn't build housing and -- and the process takes a long time to get through even with fast tracking, and then we have to find people who are willing to build housing for that market, and we haven't yet gotten an inclusionary zoning through or any of the other tools that are effective for you. Okay. I'm going to stop. I'm not trying to beat up on you, but I just think it's maybe unattainable. CHAIRMAN STRAIN: Mr. Adelstein? COMMISSIONER ADELSTEIN: No, I'm not saying -- I don't even know if you did this, but the idea of saying that Marco Island is going to work with us and we're going to have so many units from them, and then to find out you haven't even discussed it with them. Putting a number up there is really not a very logical thing and not a very good thing if it comes out in the public and it finds out that that's exactly what's happening. I know how hard you're trying to work it. I know what you're really trying to do and it's an excellent thing to try to do. The difference is, is to keep it within the numbers that we're actually using, and then when we are going to go up and, say, oh, yes, we do, we do have this many more, that way it will go up and get done. But the idea that once somebody finds out that, oh, no, they haven't even applied to do this type of job, and then you've got egg on your face and we don't know how to get rid of the bad news rather than the good news that you're trying to create. MR. GIBLIN : Yeah. Just to clear it up, I have spoken with the City of Marco and the City of Naples. It's specifically in regards to this issue. COMMISSIONER ADELSTEIN: Have they committed? MR. GIBLIN: No. We're -- we're talking. We don't have any form -- we don't -- again, this is a -- this has not been adopted yet and Page 176 October 11, 2006 we haven't gone forward to that next step yet. CHAIRMAN STRAIN: Miss Caron and then Mr. Vigliotti. COMMISSIONER CARON: I just wanted to point out that it was this commission who said that we should get either a monetary compensation and/or the units from both the city and Marco Island. So, I don't have the problem with the concept. It's just committing to the 1500 before any of that has happened I think is -- is problematic because, again, we may be backing ourselves into -- into a corner. I think we should get the compensation. I think those interlocal agreements should be worked out, but I just wanted to take you off the hook on that. It was not you who suggested that. It was us. MR. GIBLIN: Absolutely. And just to kind of bring the full circle, the reason for the increase to 1500 over 1,000, over 500 was with the revised population figures if we -- we feel if we didn't increase it to 1500, we run the opposite risk of the DCA saying that we're -- our -- our new goal is inaccurate and not enough based on their -- the data included elsewhere other than the plan. CHAIRMAN STRAIN: Mr. Vigliotti? COMMISSIONER VIGLIOTTI: And if that happened, what would happen if they came back here and said 1,000 is not enough? What would -- where would we go from there? MR. WEEKS: Presumably they would find our amendment not in compliance with state statutes. COMMISSIONER ADELSTEIN: Right. COMMISSIONER MURRAY: Which means? COMMISSIONER VIGLIOTTI: And it would end there or we can go back to them or -- MR. WEEKS: No. That means -- well, Margie; may want to jump in, but we potentially would be subject to certain sanctions. We would need to try to resolve that noncompliance finding through a Page 177 October 11, 2006 settlement agreement, which really means we're agreeing to go back and change the language in some way. CHAIRMAN STRAIN: But the suggestion that was in the beginning of this discussion may resolve the issue if we reference it as a goal instead of a shall. Is there any reason we couldn't do that and then a goal is a goal? MS. STUDENT-STIRLING: You know, maybe -- maybe a better way is to use "will" instead of "shall", because "shall" has a mandatory connotation and "will" is not necessarily mandatory. I want to -- I just want to check -- CHAIRMAN STRAIN: Margie, can I finish? MS. STUDENT-STIRLING: Certainly. CHAIRMAN STRAIN: Can someone answer my question first? Could we go to goal? Do you have an objection, David, Randy, Cormac? Would the word "goal" instead of "shall" work for you guys? MR. WEEKS: This is all part of goal number one so -- in that context. CHAIRMAN STRAIN: But it says -- let me read it to you. The number of affordable work for housing units shall increase. I'm just -- I think the reference was the goal will be 1500 units. COMMISSIONER VIGLIOTTI: To increase to 1500. COMMISSIONER ADELSTEIN: That's right. COMMISSIONER VIGLIOTTI: Yeah. CHAIRMAN STRAIN: Now, Margie? MS. STUDENT-STIRLING: Thank you. What I would want to do is just back that up with some data and analysis about the land costs in the county. The county is not in the housing business. Presently we rely on density bonuses as an incentive and we're working on an inclusionary zoning ordinance and back all that-- CHAIRMAN STRAIN: That's all in this document. Page 178 October 11, 2006 MS. STUDENT -STIRLING: -- up with that type of data. CHAIRMAN STRAIN: They've done all that in this document. Mr. Vigliotti. COMMISSIONER VIGLIOTTI: To get back to Marco and the City of Naples, I can't possibly see how Marco and especially the City of Naples could ever come up with affordable housing with land costs there. So, I don't know what kind of conversation you can get. MR. GIBLIN: I do know that the City of Naples council is exploring many different options, including a citywide inclusionary zoning mandate. So -- and Marco -- and I've had one on one discussion with Marco as well. So, the discussions have begun, but are we to the point where there's an interlocal agreement yet? No. COMMISSIONER VIGLIOTTI: Do you foresee an agreement or did -- in your opinion? MR. GIBLIN: Certainly, if the comp plan mandates that there will be some type of agreement, there will be an agreement. COMMISSIONER VIGLIOTTI: Okay. CHAIRMAN STRAIN: Mr. Adelstein. COMMISSIONER ADELSTEIN: I'm only going to say this once and I'm going to get done with it. If we're going to do it safe, do it as a goal. Don't say we've got it. Say our goal is to get that many. And that way when you do get that amount, then you say we are doing it. Until then somebody finds out, that it comes out publicly, well, they don't even have 100 or 500 or 600 of them. We have a good goal, make the goal good, but don't prove -- don't try to sell it as if that's what we have. COMMISSIONER VIGLIOTTI: I agree. CHAIRMAN STRAIN: Any other comments? Mr. Schiffer. COMMISSIONER SCHIFFER: For awhile I've been trying to us Page 1 79 October 11, 2006 to track in the AUIR process. Are we going to be doing that or-- because if we don't, this is just kind of a red herring issue if we don't have any way of guaranteeing that we can do it. We can promise them anything. I mean, it worked. I mean, if you looked at the cover letter, they're considered a bold commitment to double our housing. Now we're tripling it, so -- but we're not tracking it, so -- MR. GIBLIN: In fact, that was another comment and we've included a new obj ect -- or a new policy here to develop a -- or to implement the tracking. COMMISSIONER SCHIFFER: But what I'd like to see until we start seeing it every year and the AUIR is part of the tracking process, it's just -- it's just fun to say, you know. CHAIRMAN STRAIN: Marjory? MS. STUDENT-STIRLING: The AUIR is for capital facilities with the county. I would suggest that you may wish an annual report produced by the housing department and it certainly could be, you know, as a separate item with the AUIR, but the AUIR is for capital facilities. COMMISSIONER SCHIFFER: Maybe an annex to the AUIR to start tracking it or something. MR. GIBLIN: Yea. It's certainly something that we're not tracking now. Maybe you just want that presented as part of that. COMMISSIONER SCHIFFER: But until we track it, you can throw any number anyway and it doesn't matter. MR. GIBLIN: No, but I'm saying we are tracking it now-- COMMISSIONER SCHIFFER: Okay. MR. GIBLIN: -- currently. CHAIRMAN STRAIN: David. MR. WEEKS: Going back to your question, Mr. Chairman, about changing the -- this from a "shall" to -- to making it as a "goal", the existing language says "shall" and if we change it to be a "goal", then it goes from some -- some mandate to just we'll -- we'll try our Page 180 October 11, 2006 best. I mean, that's what the goal is. That's what we're going to try to do, but there's no firm commitment to do it. And I just am not -- I have concerns that that -- that could result in a noncompliance binding. CHAIRMAN STRAIN: Okay. Then why don't we say that we shall increase by 500, but we have a goal of 1500? MR. WEEKS: The concern is -- is the same in the sense that we're -- we're showing data and analysis that indicates 1500 or more cost burdened households, what is it, deficit? CHAIRMAN STRAIN: A year. MR. WEEKS: Annually, every year. So it's cumulative. And then we will be showing that we're only making a firm commitment to address one-third of that deficit with a goal of addressing the balance of it. CHAIRMAN STRAIN: You tell me why then in the second line on objective two you use the words municipalities in achieving a new goal of 1500 dwelling units? So, it's a goal there, but it's a mandatory requirement up in objective one? MR. WEEKS: No, I can't. CHAIRMAN STRAIN: Okay. Well, then someone used the word "goal" appropriately at least in what we're thinking and someone hasn't any other way. Margie, did you have -- MS. STUDENT-STIRLING: I think I can because we can't regulate the municipalities in what they do, but we do have to regulate ourselves. So, I think that's why it's worded that way for them because they have their own comp plan. CHAIRMAN STRAIN: Well, I don't understand. If it's the same number, 1500, in both categories, one can be a mandatory and one Page 181 October 11, 2006 does not have to be. MS. STUDENT-STIRLING: Because they're municipalities that have their own comp plan and we don't govern them because, you know, they have their own home rule. I have a suggestion, however. Perhaps we could put a lower number and then state that we have to do certain things to achieve the higher number. And the other thing I want to offer, as a matter of history, we had 500 when we first started this thing. I'm not sure that we achieved 500 a year since 1989 anyway, and nothing ever happened. And that's not to say it wouldn't now, but I could just offer that from a historical perspective. MR. GIBLIN: We have meet at least 500 each year and that was MS. STUDENT-STIRLING: You have? MR. GIBLIN: -- reported in the -- the first -- what is it, David, the year -- MR. WEEKS: The AIR-- MR. GIBLIN: Yeah. MR. WEEKS: -- in 1997. CHAIRMAN STRAIN: Mr. Vigliotti? MS. STUDENT-STIRLING: Okay. I -- I didn't think it-- especially the first couple of years that we did. CHAIRMAN STRAIN: Mr. Vigliotti. COMMISSIONER VIGLIOTTI: David, could you walk me through the process again. If we use 1,000 and they find us in noncompliance, walk me through the procedure after that again, so I can -- MR. WEEKS: Okay. The first step is we would attempt to reach a settlement agreement with DCA. And what the settlement agreement is -- is -- is agreeing to changes that we are going to make. We're going to end up right where we're at now. We're going to Page 182 October 11, 2006 end up having to change the Comprehensive Plan to whatever language we can agree to with DCA. And if we don't reach settlement agreement, if we keep proposing modified language and they keep saying, no, that's not acceptable, then we will end up in front of an Administrative Law judge at an administrative law hearing at the conclusion of which that Judge will issue a recommended order to the Department of Community Affairs to either find us not in compliance; that is, siding with DCA or siding with the county, that saying that, no, what they have adopted is adequate, and then whether it either will go to DCA or the Administration Commission, which is the Governor and Cabinet to make a final determination of consistency. And ifultimately there's a finding, for example, by the Governor and Cabinet to say, no, this is not consistent with state statutes, then presumably we'll -- we'll have another final order issued by the Administration Commission telling us what we must do and potentially imposing a moratorium or some other type of sanctions. COMMISSIONER VIGLIOTTI: Okay. But it all starts with if we submit the thousand, they mayor may not even pick it up. MR. WEEKS: That-- COMMISSIONER VIGLIOTTI: Correct? MR. WEEKS: That's true. COMMISSIONER VIGLIOTTI: And if they do pick it up, we have at least one, two or three more, okay, appeals or whatever processes you want to talk about before they can force us to do the 1500 anyway. MR. WEEKS: That's true, but -- COMMISSIONER VIGLIOTTI: So, why not just put in 1,000 and see what happens from there? MR. WEEKS: Well, two things. One is the potential of sanctions to be imposed upon the county, which might mean withholding certain funds. Page 183 October 11, 2006 Secondly, there is a cost to the county from the standpoint of the time that is spent and, of course, taxpayer money to go through that settlement process or whichever process we ultimately end up. COMMISSIONER VIGLIOTTI: Okay. Ifwe put it through the thousand, and they do pick it up, at that point do you have a -- can you at that point say, okay, fine, we'll immediately make it back to 1500 or do you have to go through the whole expensive process? MR. WEEKS: You have gone to go through the formal process. MS. STUDENT-STIRLING: Yes. Thank you. What I was going to say is, what happens is, they put us right into an administrative process with the Division of Administrative Hearings, but during that time, Motions to Stay, assuming we were trying to settle it, would be filed and then we would try to work out with DCA a settlement agreement. Then failing that, we would -- the stay would be lifted, we'd go to administrative hearing, and then as David stated, the Administrative Law Judge would issue the order and either DCA or the Governor and Cabinet would issue an in compliance determination and if found in noncompliance, then it ultimately ended up at the Governor and Cabinet. That's where they come up with what you have to do to be in compliance or they will impose sanctions. So, we would be right in an administrative hearing within 20 days or so, and we would have to file motions and all that already even to do a settlement agreement. COMMISSIONER VIGLIOTTI: Okay. Thank you. CHAIRMAN STRAIN: Mr. Murray, Mr. Adelstein and Miss Caron. COMMISSIONER MURRAY: All right. I just want to ask, do we have -- we have subsidies associated with every effective affordable housing placement; correct? MR. WEEKS: Yes. Page 184 October 11, 2006 COMMISSIONER MURRAY: Do you know if we have 1500 as a goal or as a requirement? Do you know if the state has a budget sufficient to provide those funds to us should we be successful? MR. GIBLIN: Well, not every low income, moderate income, GAP income home necessarily would need a monitory subsidy. COMMISSIONER MURRAY: I'm cognizant of that. I'm trying to understand whether on that side of it while we're trying to satisfy what we perceive is the state's requirement re-stringency (sic), are they prepared -- do you know, are they prepared to provide the required funding to enable the county to perform? MR. GIBLIN: I don't know that. COMMISSIONER MURRAY: I think that's a reasonable question. If they're requiring -- if our perception is they're requiring us to reach this level, we ought to know whether or not they're prepared to provide the sustenance. I think that's a fair question. Enough said. COMMISSIONER ADELSTEIN: What I don't seem to understand, and directly to you, your attitude being that you'd rather go along with the goal -- the amount of saying 1500 and fight the lawsuit and the fact that that would do for you and for everybody else, the fact that the county didn't do or didn't live up to what they're doing, and then what kind of mess you're in, instead of saying the goal is 1500 and then nobody gets a problem and maybe it gets worked outright. Why would you set yourself up for such a bad calamity in a situation where we know we've never gotten anything near 1500 in a year and there's no very unlikely matter that you will this year or the next year. CHAIRMAN STRAIN: Well, I don't think anybody's -- well, let me --let's back up here for a minute. We've talked about the word "goal". We've already heard opinions that it's not really going to work. It probably will put us into Page 185 October 11, 2006 a situation we don't need to be in. We talked about the word "shall" as it remains right now, and we understand that from history it doesn't really mean a lot because there's no ramifications that really could hurt us at this point. So, I'm willing to live with the county attorney's and staffs recommendation that the word "shall" be in there, and if the number is 1500 or 1 0,000, it's irrelevant. We do what we do and at the end of the year, there's nothing there that's going to happen. Nothing has happened and nothing-- what -- what could happen? So, I'm not sure why we're beating this up so much at this point. I think we've had plenty of explanation and it's going to go -- it's not going to make a difference whether it's 1500 as "shall" or whether it's 1500 as a "goal", other than the goal will definitely probably get us into a determination of inconsistency or challenge by DCA. MR. COHEN: Mr. Chairman, let me suggest something also, because obviously a lot of the board members have some uncomfortability with this particular area. Obviously we have to come back to you with some changes in the language as well as some other section. Afford us the opportunity to get together as a staff as well as with the County Attorney's office and look at some alternatives that -- that may pass muster and also look at the data and analysis as well, and then we could, you know, take a look at some various options that possibly could exist and come back with you with maybe some alternatives, that what we feel comfortable with in conjunction with the data and analysis. We may not come back with something that is, you know, no different than what we're proposing at this point in time, but give us the opportunity to take a look at it and maybe we'll get a different comfort level with some alternative language as well. CHAIRMAN STRAIN: Well, we have to come back for the Page 186 October 11,2006 drainage issue anyways -- MR. COHEN: Yes, sir. CHAIRMAN STRAIN: -- and, so, let's just put that on -- and while we're on this page, there is another issue I'd like to ask Cormac about. The second objective two, first sentence, the Collier County Board of Commissioners aid in the establishment of the Collier County Housing Development Incorporation in 2003. And it talks about its mission and its insistence in building these houses. Well, 2003 was three years ago. How much money have they be funded and how many affordable housing units do we have that they've created? MR. GIBLIN: They were created in 2003. CHAIRMAN STRAIN: Right. MR. GIBLIN: It took them about a year or so to become incorporated, fill their board. The Board of County Commissioners gave them an initial funding of $98,000. That was for mainly administrative expenses, to hire a competent executive director, pay rent, buy office furniture, that sort of things -- those sort of things. They have applied for and received one grant from the county for the purpose of building housing. They received 300 -- well, they have received a grant of $350,000 of which they have be disbursed, I believe it's been about $30,000 so far. That proj ect is the serious point condominium owner occupied low very -- low and very low income, owner occupied condominiums at the corner of Bay Shore and Thomasson, which is in site plan review right now working it's way through the development review process. CHAIRMAN STRAIN: In the last three years, how many units Page 187 October 11, 2006 have a CO that's affordable? MR. GIBLIN: They have not CO'd any units yet. CHAIRMAN STRAIN: Okay. I just wanted to understand. Another thing that was said on the record and I want to make sure the record is clean, being the affordable housing grouping that you monitor, what's the time limit that they have to be affordable for? MR. GIBLIN: Fifteen years. CHAIRMAN STRAIN: How many units in Ave Maria meet that goal? Or will meet that goal? MR. GIBLIN: About 700, I believe, is the number? CHAIRMAN STRAIN: Well, let me correct you then. 2100 units total, 1,000 units are deed restricted for, I believe, five years, and 700 for three years, or I might have that mixed up and vice versa. So, 1700 units don't meet that goal that you just stated had to be 15 years. They have 150 plus off-site and I think 100 or maybe 200 or something like that onsite deed restricted for 15 years. Part of that was the contribution they made to have it to Habitat for Humanity for Liberty Village. So, when we talk about Ave Maria meeting the affordable housing goals of this county, it's really something in the nature of less than 500 units for 11,000 units that they created, because the others don't meet their goal. MR. GIBLIN: The 15-unit restriction is part of the county's deed restriction we put on a density bonus. Obviously , Ave Maria did not go through a density bonus process to be -- to be zoned. So, those commitments were negotiated between themselves and this board and the Board of County Commissioners. CHAIRMAN STRAIN: Right. But from the affordable housing perspective, there are less than 500 units in the 1500 -- 15-year category . So, I don't know if that really needs to be brought into a context Page 188 October 11,2006 of affordable housing because it isn't. I mean, their 2200 or 2100 doesn't cut it. With that, I don't know if there are any other questions on the affordable housing issue? I have one other, Cormac, and it's one I thought we discussed when the language went forward and maybe for some reason it didn't get changed. The very first page of the introduction, Exhibit A to the tab, housing element, the third -- or second line, the goal of the housing element of the Collier County Growth Management Plan is to create an adequate supply of decent, safe, sanitary and affordable housing units for all residents of Collier County. I thought it was citizens of Collier County. MR. GIBLIN: I don't remember that discussion. CHAIRMAN STRAIN: Well, throughout the paragraph, you then do refer to citizens, but I'm wondering there's a difference between residents and citizens. And I'm just -- I'm assuming that we're promoting citizenship not just residency. MR. GIBLIN: Actually the board has been involved with some discussions on this issue recently. And it is not -- they've decided that it's not a requirement that you be a citizen, only a legal resident. CHAIRMAN STRAIN: So, any legal resident can avail itself to the government funded facility such as affordable housing and any others. MR. GIBLIN: If you're a legal resident of the United States, yes. CHAIRMAN STRAIN: Thank you. Anything else on the -- I'm looking -- anything else for the housing issue? You're going to come back to it so we'll wait until you come back, and we've got the drainage issue coming back and a couple of changes we also discussed today coming back. Page 189 October 11, 2006 Is there anything else that needs to be discussed during this EAR adoption hearing? MR. COHEN: Mr. Chairman, I think the only thing that we do need to discuss is when we do come back to you, obviously we were scheduled to meet tomorrow and -- and there's no reason to meet tomorrow. CHAIRMAN STRAIN: No, there is not. Let's try to schedule it when we have a regular meeting. Is there a notice requirement, Marj ory? MS. STUDENT-STIRLING: As long as we're within the five weeks for when we continue it, we should be fine. CHAIRMAN STRAIN: We have a short meeting next week? Nineteenth? MR. WEEKS: We were going to suggest November the 2nd. I don't know -- I don't know that we could be ready in -- by the 19th. CHAIRMAN STRAIN: It's up to you. I just -- MR. WEEKS: Most particularly to get your information to you in advance. CHAIRMAN STRAIN: Miss Caron? COMMISSIONER CARON: Oh, I was going to say didn't we already have two additional dates anyway for this later in the month? COMMISSIONER ADELSTEIN: Yeah. Two -- two PUD's. COMMISSIONER CARON: But you're saying you couldn't make was it the 25th and the 26th or something? MR. COHEN: I think we want to be sure that we're afforded the additional time to get the data analysis ready for you. COMMISSIONER CARON: Okay. MR. COHEN: And if we can have until the first meeting in November, that would -- that would work better for us. CHAIRMAN STRAIN: That's a regular meeting, so we're all going to be here anyway. MR. COHEN: That would be November 2nd. Page 190 October 11, 2006 CHAIRMAN STRAIN: So, are we continuing this then, Margie? MS. STUDENT-STIRLING: Yes. We're continuing it till November 2nd. CHAIRMAN STRAIN: Can you make sure we're all done with our agenda? Okay. Is there a Motion to continue this hearing on the EAR adoption to November 2nd? And, Margie, do we need to make it time certain? MS. STUDENT-STIRLING: You might just want to state after the regularly scheduled items are heard, so staff knows where it goes on the agenda and the public -- any public does as well. CHAIRMAN STRAIN: Okay. It would be after the regularly scheduled items on the November 2nd agenda. Is there a motion? COMMISSIONER ADELSTEIN: So moved. CHAIRMAN STRAIN: Made by Mr. Adelstein. Is there a second? COMMISSIONER SCHIFFER: Second. CHAIRMAN STRAIN: Second by Mr. Schiffer. All those in favor, signify by saying aye. COMMISSIONER KOLFLAT: Aye. COMMISSIONER SCHIFFER: Aye. COMMISSIONER CARON: Aye. COMMISSIONER ADELSTEIN: Aye. COMMISSIONER MURRAY: Aye. COMMISSIONER VIGLIOTTI: Aye. CHAIRMAN STRAIN: Aye. Thank you. The meeting is adjourned. COMMISSIONER ADELSTEIN: Okay. Wait a minute now. We're not meeting tomorrow? CHAIRMAN STRAIN: No. We're not meeting tomorrow. COMMISSIONER ADELSTEIN: We're not? Page 191 October 11, 2006 CHAIRMAN STRAIN: No. COMMISSIONER CARON: We did it. COMMISSIONER SCHIFFER: Did somebody notice the other two members here or -- MR. WEEKS: Staff will make sure we notify Mr. Tuff and Mr. Midney, and just for clarification, not meeting tomorrow, nor on the other two reserve dates. I think it's 25th and 26th. CHAIRMAN STRAIN: Yeah. We don't need them. You guys did such a good job and such a thorough job, we wrapped it up today and I think that's everybody. So, this meeting's adjourned. Thank you very much and thank all the staff, for that did help. We'll get through this today . We appreciate it and we'll look forward to a finalization. ***** (There being no further business for the good of the county, the meeting was adjourned by order of the Chair at 3:40 p.m.) COLLIER COUNTY PLANNING COMMISSION MARK STRAIN, Chairman Transcript prepared on behalf of Gregory Court Reporting Service, Inc., by Cherie' Nottingham and Rose Witt. Page 192