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BCC Minutes 01/25/2007 S (EAR) January 25, 2007 TRANSCRIPT OF THE MEETING OF THE BOARD OF COUNTY COMMISSIONERS Naples, Florida, January 25, 2007 LET IT BE REMEMBERED, that the Board of County Commissioners, in and for the County of Collier, and also acting as the Board of Zoning Appeals and as the governing board( s) of such special district as has been created according to law and having conducted business herein, met on this date at 9:00 a.m., in SPECIAL SESSION, EAR Amendments, in Building "F" of the Government Complex, East Naples, Florida, with the following members present: CHAIRMAN: Jim Coletta Fred W. Coyle Donna Fiala Frank Halas Tom Henning ALSO PRESENT: David Weeks, Planning Manager, Comprehensive Planning Randy Cohen, Comprehensive Planning Director Marjorie Student-Stirling, Assistant County Attorney Page 1 at", "'~ , ,-""""":';".:,';<:,,,,'.~~', AGENDA January 25, 2007 9:00 a.m. BCC/EAR-Based GMP Amendments Special Meeting 3'd Floor Boardroom W. Harmon Turner Building Jim Coletta, Chairman, District 5 Tom Henning, Commissioner, Vice-Chairman District 3 Donna Fiala, Commissioner, District 1 Frank Halas, District 2 Fred W. Coyle, Commissioner, District 4 NOTICE: ALL PERSONS WISHING TO SPEAK ON ANY AGENDA ITEM MUST REGISTER PRIOR TO SPEAKING. SPEAKERS MUST REGISTER WITH THE COUNTY MANAGER PRIOR TO THE PRESENTATION OF THE AGENDA ITEM TO BE ADDRESSED. ALL REGISTERED PUBLIC SPEAKERS WILL RECEIVE UP TO THREE (3) MINUTES UNLESS THE TIME IS ADJUSTED BY THE CHAIRMAN. COLLIER COUNTY ORDINANCE NO. 2004-05, AS AMENDED, REQUIRES THAT ALL LOBBYISTS SHALL, BEFORE ENGAGING IN ANY LOBBYING ACTIVITIES (INCLUDING, BUT NOT LIMITED TO, ADDRESSING THE BOARD OF COUNTY COMMISSIONERS), REGISTER WITH THE CLERK TO THE BOARD AT THE BOARD MINUTES AND RECORDS DEPARTMENT. IF YOU ARE A PERSON WITH A DISABILITY WHO NEEDS ANY ACCOMMODATION IN ORDER TO PARTICIPATE IN THIS PROCEEDING, YOU ARE ENTITLED, AT NO COST TO YOU, TO THE PROVISION OF CERTAIN ASSISTANCE. PLEASE CONTACT THE COLLIER COUNTY FACILITIES MANAGEMENT DEPARTMENT LOCATED AT 3301 EAST TAMIAMI TRAIL, NAPLES, FLORIDA, 34112, (239) 774-8380; ASSISTED LISTENING DEVICES FOR THE HEARING IMPAIRED ARE AVAILABLE IN THE COUNTY COMMISSIONERS' OFFICE. 1. Pledge of Allegiance 2. Public Hearing to Review and Adopt Proposed Amendments to the Collier County Growth Management Plan, Ordinance 89-05, as Amended, based upon the Evaluation and Appraisal Report (EAR) Adopted in 2004, and to Transmit these Amendments to the Florida Department of Community Affairs. 3. Adjourn INQUIRIES CONCERNING CHANGES TO THE BOARD'S AGENDA SHOULD BE MADE TO THE COUNTY MANAGER'S OFFICE AT 774-8383. January 25, 2007 MR. MUDD: Commissioners, you have a hot mike at this time. CHAIRMAN COLETTA: Good morning. MR. MUDD: I would say ladies and gentlemen take your seats, but -- CHAIRMAN COLETTA: We have. Good morning. Welcome to the Board of County Commissioners EAR-based GMP amendments, special meeting. Please stand and we'll say the Pledge of Allegiance. (The Pledge of Allegiance was recited in unison.) CHAIRMAN COLETTA: You're on, Mr. Mudd. MR. MUDD: Commissioners, this is your -- this is your Evaluation and Appraisal Report, and this is your -- is the time where you're actually going to approve the EAR. You've done a transmittal last year to DCA. DCA has come back with their ORC Report, Observations, Recommendations and Comment Report. We've taken their particular comments into -- into the document, the new document that you see in front of you. This particular document has gone, and it's been vetted in detail in front of your Planning Commission, and now it's time to -- for the board to basically see what has transpired since the time you transmitted this particular document. This is a very important document. You do this on a seven-year cycle. It just so happens that this is your second time we've done it since we were basically required to do so from the state. And without further ado, I'm going to turn you over to the two experts that are sitting here. And it's good to see David Weeks back and feeling good, and he's got some color in his cheeks. So David and Mr. Randy Cohen will take you through this particular report. MR. WEEKS: Thank you. For the record, David Weeks, planning manager in the comprehensive planning department. And my new motto is better health through better drugs. I'm sure the pharmaceutical industry's happy to hear that. Page 2 January 25, 2007 Commissioners, at the risk of stepping on Mr. Mudd's toes, I'd just like to make two very minor corrections to what he stated. This is not the EAR itself, the Evaluation and Appraisal Report, but this is the set of amendments based upon that report, which was approved by you back in 2004 and found to be sufficient by the Department of Community Affairs also in 2004. And the report from that state agency, DCA, is the Objections, Recommendations and Comments Report. You know, I don't want to be too picky, but on the other hand, it's important because objections that DCA has raised to some of these amendments as they were transmitted to them in May of this -- of 2006, those objections may form the basis of a finding of noncompliance in these adopted amendments if we do not adequately address those objections that DCA has raised. And our way of addressing those may be one or a combination of three things. One is to revise the proposed amendments from what they saw at transmittal hearing to what we actually adopt. Secondly would be to provide some additional data and analysis, some additional documentation to support the amendments that we adopt, whether they remain as transmitted or whether we revise them today. And the third thing may be to simply provide further explanation to them. Maybe they didn't understand what an amendment was all about, and so we simply explain to them further, here's why we did it, here's our rationale, and try to convince them that our amendment is, in fact, something that could be found in compliance with state statutes. One housecleaning matter, Commissioners. There is sign-up sheet out in the hallway for any members of the public that may wish to receive a copy of the Notice of Intent from the Florida Department of Community Affairs once they have received and reviewed these adopted amendments issued at Notice of Intent to find the Page 3 January 25, 2007 amendments in compliance or not in compliance with state statutes. And there's a specific provision by law that we are to allow people to sign up to receive that courtesy notice. Commissioners, now moving right into your executive summary. CHAIRMAN COLETTA: Before you do-- MR. WEEKS: Yes, sir. CHAIRMAN COLETTA: Commissioner Coyle, did you have a question? COMMISSIONER COYLE: No, no. That was left on from last night. CHAIRMAN COLETTA: Please continue, please. MR. WEEKS: Certainly. Part of the background we've already touched on. We adopted our EAR in 2004. These amendments are based on that EAR. You transmitted amendments back in May of 2006. The state agency has, in fact, Department of Affairs and other state and regional agencies, have reviewed those transmitted amendments, and in July of '06 they issued their ORC Report, that Objections, Recommendations and Comments Report. And there were several of them, 20 something, I think 26 different objections. Though some of them were repeats in the sense that, for example, they took issue with our population methodology. That particular issue with our population methodology affected several different elements. So a single issue, in fact, resulted in several objections. So in that sense, the magnitude is not as great as it might first appear. I also would like to point out to you that we, of course, have made revisions, staff and through the Planning Commission, have made numerous changes to the elements as they were transmitted in response to that ORC Report, as you would expect, and that that ORC Report, as I note in the executive summary, is really the focus, or what we'd like to be the focus of this hearing, that is focusing on the Page 4 January 25, 2007 changes that we've made since transmittal. Transmittal is -- you could think of as your preliminary approval of the amendments, and now we're here to take the final action. Certainly, Commissioners, you have the prerogative to discuss any part of these amendments, but generally speaking, what we do is just focus on the changes since transmittal, which -- almost all of which are directly related to that ORC Report. The way it works, the Department of Community Affairs has reviewed those amendments that we transmitted. If we make changes not related to that ORC Report, that is not responding to issues that they have raised, then there's a certain risk involved. If we're making changes that they have not commented on, have no issues with, if you make changes to those, there's the potential that now that they're seeing something new, that they will have some issue with those amendments, and there is no second ORC Report. It's all or nothing. The department will either find the amendments in compliance or not. That's just a cautionary note, that we need to be careful with the types of changes we should contemplate making that are not related to that ORC Report. There are a handful, on that note, of amendments -- CHAIRMAN COLETTA: Yes, one second, please. MR. WEEKS: Yes, sir. MS. STUDENT-STIRLING: I just wanted to comment further on what Mr. Weeks said -- Marjorie Student-Stirling, assistant county attorney -- that what David means we'd go right into an administrative hearing, instead of having a second ORC Report or way to work it out with DCA. And, of course, whenever you go into an administrative hearing, you never really know what you're going to come out with, and it could involve, again, procedures before the governor and cabinet and so forth. Of course, that's the worst case, and there's opportunity to settle with the department in between time. But I just wanted to put Page 5 January 25, 2007 that on the record so you would know what the procedures were. CHAIRMAN COLETTA: Thank you. Please continue. MR. WEEKS: Commissioners, the short of it is, whether we like it or not, Big Brother's looking over our shoulder, and we need to try to adopt amendments that they will find in compliance with state statutes. On that note about changes not related to the ORC Report, beginning on page 3 and going over to page 4 of your executive summary, there are two proposed amendments that are not related to the ORC Report. And I'll just touch on those briefly. I would suggest that we not get into the discussion at this point about those, that we wait until we get to the respective element to go into any particular discussion. But just to put it on the record and draw your attention briefly to them, the first one on page 3 is to the Conservation and Coastal Management Element. This is a very minor revision. We adopted two -- excuse me. We transmitted changes to two different policies in the Conservation and Coastal Management Element. COMMISSIONER COYLE: What page 3 are you talking about? We have about four or five page 3s in the introduction. MR. WEEKS: I'm sorry, Commissioners, of your executive summary. That should be the first document behind the agenda. COMMISSIONER COYLE: All right. COMMISSIONER HALAS: Thank you. MR. WEEKS: Certainly . We adopted revisions to two policies, but in one case we changed a word; in the other case we failed to. It's just a correlating change. Again, a very simple omission on staffs part. Secondly is something of more substance. And, again, I would recommend that we not discuss this at this point, that we wait until we get to that, but in the Conservation and Coastal Management Element where there's provisions included that provides for certain Page 6 January 25, 2007 circumstances where off-site mitigation is allowed where the required retention of native vegetation does not occur on site, that there's some allowance to do so off site. The transportation division is asking that we include a provision that would account for right-of-way acquisition. As you're well aware, the county is constructing new roads and widening roads that necessitates right-of-way acquisitions. And in some cases, the area that -- environmentally sensitive area that may need to be set aside is going to be lost due to that right-of-way acquisition and eventual road construction, and this is a proposal that would allow for off-site mitigation to occur under those certain circumstances. And, Commissioners, I also have two additional changes that are not related to the ORC Report that you've not seen. And I apologize for this last minute. Again, I won't go into the detail now. We'll get to it with the particular element. But one pertains also to the Conservation and Coastal Management Element, and staff is going to recommend deletion of a policy, and it pertains to the coastal high hazard area. There are requirements in our comprehensive plan as you know, that we must provide public infrastructure, such as water and sewer, within our service area at the adopted level of service standards in our Growth Management Plan. Without regard for whether those -- some of those properties might be within the coastal high hazard area or not, we still have to provide water, sewer, ambulance service, et cetera. Well, we have a policy in the Conservation and Coastal Management Element, 12.2.8, that is in conflict with several other elements as well as with certain policies within that element itself. That policy says, the county shall not spend public funds within the coastal high hazard area unless it is for a facility that provides public access or that is for resource protection. What that means is, no water treatment plants, no wastewater Page 7 January 25, 2007 treatment plants, no ambulance stations, et cetera, et cetera, et cetera, et cetera. It is in direct conflict, again, with many other portions of the Growth Management Plan. And, unfortunately, it was discovered late in the process. There's actually a rezoning petition that's going to be coming before you next month initiated by the county for a water treatment plant in the coastal high hazard area, and that's when this issue first arose. I'll, again, in a few moments, when we get to that element, have the language to show you and maybe explain it a bit more. But that's the short of it. We have a conflict, and we need to resolve it, and we're suggesting that we do so at this time because the objective under which that policy falls is also being amended, and it does address the concern for construction of facilities in the coastal high hazard area, ways to try to mitigate the impacts of that hurricane zone from the standpoint of loss of life and property. It's not a matter of we're saying, you know, we don't care that you're in the coastal high hazard area, that we're just going to go ahead, full steam ahead, and as we so choose, develop these facilities. There are some criteria identified under that particular objective, 12 -- CHAIRMAN COLETTA: I realize you asked not to be interrupted when you were going through the executive summary. Now, what you're talking about now, are we going to be handling that in more detail? MR. WEEKS: Yes, sir. CHAIRMAN COLETTA: Okay. We-- MR. WEEKS: When we get -- CHAIRMAN COLETTA: Yeah. Commissioner Halas has got his light on, and I wanted to see if he wanted to wait or -- COMMISSIONER HALAS: I just -- one question. MR. WEEKS: Certainly. COMMISSIONER HALAS: A quick one. Was this reviewed by the Planning Commission? Page 8 January 25, 2007 MR. WEEKS: No, sir, it was not. COMMISSIONER HALAS: Okay. MR. WEEKS: This came up about a week or so ago. COMMISSIONER HALAS: Okay. COMMISSIONER COYLE: The whole thing was reviewed by the Planning Commission; this particular element was not? MR. WEEKS: What has not been is the issue I just raised and the one I'm about to. COMMISSIONER COYLE: Okay. CHAIRMAN COLETTA: Please continue. MR. WEEKS: The second one is not -- I would say is not -- I would view as anywhere near as substantive as you view that first one. Commissioners, you may recall in the density rating system of the Future Land Use Element you made several changes at transmittal. You eliminated certain density bonuses. And in particular, the conversion of commercial zoning bonus you've modified. Presently it allows for a 16-unit-per-acre bonus. That's our maximum density. So if you're rezoning from certain commercial property, you could have up to, up to your discretion, 16 units per acres. At transmittal you changed that to an eight-unit-per-acre bonus, and you specifically linked it to affordable/workforce housing as opposed to market rate. Well, we already have a density bonus provision for eight units per acres maximum subj ect to the affordable housing provisions in the LDC. The two are redundant. There's simply no need for that conversion of commercial any longer because you have linked it to affordable housing, so staff would recommend that that particular bonus be eliminated to eliminate the redundancy. It will have no impact on development potential in the county by eliminating that redundancy. CHAIRMAN COLETTA: I'm sorry. We do have a question Page 9 January 25, 2007 from Commissioner Coyle. MR. WEEKS: Sure. COMMISSIONER COYLE: It doesn't have to be asked right now, David. If you want to finish up your presentation, I'd be happy to wait. CHAIRMAN COLETTA: Okay. I will ask you to hold it till we reach that point for questions. Write them down on paper, and then we'll bring them all forward at one time so we don't continue to interrupt. Thank you. Go ahead, David. MR. WEEKS: Okay. Moving over to page 5 of your executive summary, we get to the recommendations of the EAC, Environmental Advisory Council and the Collier County Planning Commission. In most cases, the Planning Commission did endorse the recommendations of the EAC, but I do point out on page 5 one area where, first, there was some disagreement between staff and the EAC, and then secondly, Planning Commission disagreed with both of us, and that pertains to section 24 in the North Belle Meade overlay of the rural fringe area. That is the area where the county was required to do a Red-cockaded woodpecker foraging and nesting habitat surveyor study. That study was done by a county consultant. And at the transmittal hearings, you endorsed at that time the same recommendation of staff and Planning Commission, which was to change that section 24 from a neutral designation to a sending lands designation, but you also gave staff a directive. Contact the property owners within section 24, try to get their permission to go on their property and to do an on-site survey for the woodpeckers, as well as looking at the habitats. Staff did do that exercise. We only had a handful of property owners that gave us permission, but where we were granted, staff did go onto those individual properties. Page 10 January 25, 2007 Based upon that on-site survey that staff made, as well as some additional review of aerial photographs and other data available to us, staff recommended that a -- only -- that a portion of section 24 be changed to neutral, but still the majority changed to sending lands. The change in position was because we realize that there's a certain amount of development activity already that has occurred within that section 24, most particularly parcels, in many cases, only a half acre or so in size that are developed with homes. The habitat value was lost. It tends to be concentrated in a given area as opposed to a bunch of dots all over the maps. All of these homes tend to be along the fringes of that section, so staff had recommended that those areas stay neutral. The EAC generally agreed with staff; however, they thought a larger portion of section 24 should stay as sending and a lesser amount -- excuse me -- be changed to sending and a lesser amount remain as neutral. The Planning Commission after their discussion said, let's just leave everything as it is. Leave it designated neutral and leave the policies pertaining to vegetation and retention the same as they are. Just don't make any changes at all to that section. And some of their concerns are expressed in the executive summary. They included the fact that there are off-road vehicles or ATV trails within that section 24. Their concern was that the noise generated, they did not believe would be compatible with the Red-cockaded woodpeckers. They also believe that with the existing native vegetation retention standards adopted for that section, that that would be adequate to protect enough habitat there for those woodpeckers, and also, at the same time, allow for a reasonable amount of development to occur for the property owners within that section. And as referenced in the executive summary within your backup, there is some information that some maps and so forth -- and, again, Page 11 January 25, 2007 we can get to that when we get to the Future Land Use Element and the Conservation and Coastal Management Element to talk about that briefly a bit more and certainly allow you to ask any questions. And finally, Commissioners, as noted in your executive summary on page 2 about the middle, you might recall going back to the density rating system in the Future Land Use Element, that this body had a split vote on several of those bonus changes, including elimination of certain bonuses and also imposing a cap on density within the coastal high hazard area of four units per acre with no exceptions. Your votes on several of those, as identified, was 3-2, a simple majority. Now here we are at the adoption hearing. The requirement is for a supermajority vote. Four or more of you must vote in favor for each of these respective amendments. The result of failure to achieve that supermajority means status quo, that means no amendment to the comprehensive plan. It would remain as is for that particular element or provision that we're discussing. Finally, Commissioners, we do need you to take separate votes on each of the elements and subelements as we walk through the Growth Management Plan. CHAIRMAN COLETTA: And I'm going to interrupt you-- MR. WEEKS: Certainly. CHAIRMAN COLETTA: -- because I want to repeat what you just said. For us -- each item as it comes up, it only takes three votes to move it forward; is that correct? Four votes at the end when we have to approve everything? MR. WEEKS: Correct. If you wish to take, so to speak, a straw vote to start with. Your formal vote on each of these elements requires a supermajority. CHAIRMAN COLETTA: Well, excuse me. This is purely a suggestion. Maybe this -- the group would agree that if we can't get Page 12 January 25, 2007 that four majority, that we just leave it as is rather than get to the end and have to go through the whole dialogue all over again. How do you feel about that, Commissioners? MR. WEEKS: I understand that, Commissioners. Mr. Chairman, I believe what you're saying is, for example, if we walk through the future land use elements, before we get to the end and say, let's vote on the whole element, we're going to take each issue or policy or provision separately. Your discussion will result in, I think what you're saying is, the result then, yes, there's going to be four of us through straw vote, that's the correct term. CHAIRMAN COLETTA: Yeah, but the problem being is that when we get to the end, and if we have to throw the whole -- the baby out with the bath water, that -- does it have to be done that way? In other words, we have to approve it in it's entirety? MR. WEEKS: No, sir. I believe we're on the same page. That is, for example, let's go with one of those density rating system bonuses. The commission's not in agreement. There's not going to be a 4-1 vote. That will be understood from your discussion, and then when you take your final vote on the -- in that case, the Future Land Use Element, it will be a vote of whatever it is, 4-1,5-0, whatever it may be, that reflects the individual -- CHAIRMAN COLETTA: Oh, I see. MR. WEEKS: -- discussion you've already had, which means if there's a disagreement on one particular point, then your 4-1 vote is not changing your earlier discussion where you said, no, we're in split -- we're split on this issue. CHAIRMAN COLETTA: So that final vote reconfirms everything that took place up to that point in time? MR. WEEKS : Yes, sir, yes, sir. CHAIRMAN COLETTA: And we don't necessarily, because of -- one thing was voted against where we didn't have the four votes or Page 13 January 25, 2007 MR. WEEKS: That's correct. CHAIRMAN COLETTA: -- whatever, at that point in time, it does not automatically roll that over to the original suggestion? MR. WEEKS: That's correct. CHAIRMAN COLETTA: Oh, I gotcha. I understand. Any questions, Commissioner Coyle? COMMISSIONER COYLE: Yes. Mr. Chairman, I think you hit upon a good idea. I wonder if it would be worthwhile for us just to take a look at those six simple majority votes and decide if there are commissioners here who would refuse to support a supermajority vote on those items. CHAIRMAN COLETTA: True. COMMISSIONER COYLE: Identify which ones we've got a real hang-up on, and we can do that in five minutes. CHAIRMAN COLETTA: Before we do, I think Ms. Student's got something she wants to add for the record. MS. STUDENT-STIRLING: Yeah. I was a little unclear. Typically we've taken a vote on each element when we've completed it, but not on each little objective or policy, and then on the element -- and we haven't broken it down in that detail, but I think what Commissioner Coyle suggested would take care of the problem, and we would have an element-by-element vote, and then -- but beforehand, isolate those areas where there was some contention. CHAIRMAN COLETTA: Okay. Commissioner Henning? COMMISSIONER HENNING: Thank you. Well, to get to Commissioner Coyle's comments, it was Commissioner Coletta and myself who were opposed to those items. COMMISSIONER COYLE: All of them? COMMISSIONER HENNING: I believe so. COMMISSIONER COYLE: How do we convert one of you? COMMISSIONER HENNING: Well, we do, and that's by a dialogue. Page 14 January 25, 2007 And Mr. Weeks, are these density bonus when -- if a petitioner comes before the board and asks for those, are those discretionary? MR. WEEKS: Absolutely. COMMISSIONER HENNING: Okay. CHAIRMAN COLETTA: Commissioner Henning, what I'm going to ask, just so we can get a clear direction of this commission, is that either you or Commissioner Coyle make a motion for the procedure that we're going to follow for going through those six items, and then we'll be able to follow that one procedure, be able to get the will of the commission. COMMISSIONER COYLE: Okay. I'll be happy to make the motion that we go through the process we're going through. COMMISSIONER HENNING: Right. COMMISSIONER COYLE: Ifwe'll-- you know, I would like to set a time limit, maybe 10 minutes on this thing. COMMISSIONER HENNING: Oh, I think we'd do it real quick. COMMISSIONER COYLE: I think we can probably do that faster. So I make that motion. COMMISSIONER HALAS: I'll second it. CHAIRMAN COLETTA: Okay. We have a motion by Commissioner Coyle that we set a time limit of 10 minutes for each one of the items. COMMISSIONER COYLE: No, not each one, the whole thing. CHAIRMAN COLETTA: Oh. COMMISSIONER COYLE: All six of these. CHAIRMAN COLETTA: All six items, okay. All six items, I stand corrected. And this was seconded by Commissioner Halas. Commissioner Henning? COMMISSIONER HENNING: Okay. Here's my 10 minutes. COMMISSIONER COYLE: Okay. MS. FILSON: Did they call the motion? COMMISSIONER HENNING: If the density bonuses is Page 15 January 25, 2007 discretionary, why would we want to eliminate (sic) ourselves on discretionary items? And what I mean is, if somebody comes in and has a good project that the majority of the board can accept, it will pass, but without the provisions in the Growth Management Plan, we wouldn't know whether it is something that the majority of the commissioners would support or not. So if we can provide those provisions to allow the public or the landowner to bring something forward, if it doesn't make sense, it's not going to pass by a simple majority anyways. And ifit does pass by a supermajority, I think we found a good thing. CHAIRMAN COLETTA: So you're saying you're not going to vote for the motion? COMMISSIONER HENNING: Well, what I'm saying is, let's not limit ourselves to what's the controversial things in here about density bonus, and let's allow it. CHAIRMAN COLETTA: And I agree with you for the simple reason the discussion may lead to some alternatives that we have never thought of before. COMMISSIONER HENNING: Yeah. You always want to leave options, but the options about the density bonuses, it is discretionary. It is not given to the landowner. We get to decide that. It doesn't -- it's not tied to traffic. It's not tied to anything. CHAIRMAN COLETTA: But it's a good point. Let's go to Commissioner Fiala, and then we'll-- COMMISSIONER FIALA: Yeah, just a question. Ifwe don't do anything and the Land Development Code stays the same, could they then sue us for whatever -- I mean -- COMMISSIONER HENNING: Right. COMMISSIONER FIALA: -- we seem to be getting sued every time we turn around, so -- COMMISSIONER HENNING: And Mr. Weeks will correct me if I'm wrong. It's the Growth Management Plan. Anybody can sue, Page 16 January 25, 2007 but the thing is, is we've tested it in the past and asked several times. Well, this is a discretionary decision about these extra bonuses. It's not tied to any other concurrency item. MR. COHEN: Commissioners, if I could, the six items that are there were proposed for elimination. If you were to rescind the action that you were taking on the 3 - 2 vote -- and correct me if I'm wrong, David or Margie -- that the compo plan would remain the same, so there really wouldn't be any grounds for litigation as the document wouldn't be changed; is that correct? MS. STUDENT-STIRLING: Yeah. I think that, yes, it would be the same, and I don't know that DCA could do anything about it if they had an issue with us not going forward. MR. WEEKS: If I may, I think Commissioner Henning's point might have been the rezone petitioner. COMMISSIONER HENNING: Right. MR. WEEKS: Not-- COMMISSIONER HENNING: Exactly. CHAIRMAN COLETTA: Okay. Well, is there any other-- Commissioner Coyle, do you have any final comment? COMMISSIONER COYLE: Yeah. It's not a bad idea. The-- but I'm troubled by that last clarifying statement. A rezone petitioner. What is the significance of that clarification? MR. WEEKS: Both Ms. Student and Mr. Cohen's response had to do with whether or not we changed the Growth Management Plan, what action the Department of Community Affairs might take. I believe Commissioner Henning's point was, if we leave the Growth Management Plan regulation the same and if a rezone petitioner comes in and you use your discretion and either deny the petition or grant a lesser density than they've asked for, might the county be sued by that petitioner, most particularly in the case of a denial? MS. STUDENT-STIRLING: Could I -- I've handled the cert. cases where that's happened, and I can't remember anywhere there was Page 1 7 January 25, 2007 a lesser density that was granted than was asked for, but the ones that I recall was where there was a motion to approve that didn't carry so it was -- in effect, was a denial. In the recent past -- or we also have had some issues with site plans and things like that that didn't involve rezones, but it usually has been when there is an out and out denial of the petition. I would also offer that when we have that array of number of units that we can select from and the petitioner comes in, yes, it is discretionary, but it's also based on the criteria and our land code, and one that really comes to mind is compatibility or the suitability of the area for that type of development at that density or intensity. So -- but I don't know of any lawsuits that have come forward where they've gotten an approval and gotten, you know, some amount of units. COMMISSIONER COYLE: Tell me what conditions would result in a supermajority vote with respect to any of these provisions that would be coming before us in the future. MR. WEEKS: If I understand the question, we're -- first of all, we're talking about the vote today? COMMISSIONER COYLE: No, no. MR. WEEKS: A rezone? COMMISSIONER COYLE: A rezone petition will require a supermajority vote. MR. WEEKS: Yes, sir, it does. COMMISSIONER COYLE: If the rezone petition envisions density bonuses, are you suggesting that that will be a decision made at rezone, or will it be made at some other time? MR. WEEKS: That density determination will be at the time of rezone. COMMISSIONER COYLE: At the time of rezone? MR. WEEKS: Yes, sir. This-- COMMISSIONER COYLE: So a supermajority will still be Page 18 January 25, 2007 required to approve the density being requested by the petitioner? MR. WEEKS: That is correct. COMMISSIONER COYLE: Is that not true? MR. WEEKS: That is correct. COMMISSIONER COYLE: So that has essentially the same impact as the actions we're considering here? COMMISSIONER HENNING: Uh-huh. CHAIRMAN COLETTA: Not quite. COMMISSIONER COYLE: It does because right now we have to have a supermajority vote approve these things. Ifwe eliminate these requirements, we're going to still have a supermajority vote necessary to approve the density being requested anyway. CHAIRMAN COLETTA: But, if I may add to that, there's been times when we have overridden everyone else and we've gone with the densities in different areas just as a pure judgment that we could make at that point in time because of extenuating circumstances. So you have that option open. COMMISSIONER COYLE: But it still requires a supermajority vote because it's a rezone. CHAIRMAN COLETTA: It still does. COMMISSIONER COYLE: Yes, because it's a rezone. CHAIRMAN COLETTA: Yes, but we're arguing the issue rather than the motion. COMMISSIONER COYLE: No I don't think so -- COMMISSIONER HENNING: No. COMMISSIONER COYLE: -- because I think we're coming to the same place. COMMISSIONER HENNING: We need to argue the issue. COMMISSIONER COYLE: Yeah. And I find there's merit to Commissioner Henning's suggestion here. Certainly it makes those of us who wanted to put these in more comfortable if we've got it in the Growth Management Plan, but it doesn't necessarily mean that we Page 19 January 25,2007 cannot refuse to approve a lesser density. CHAIRMAN COLETTA: That's correct. COMMISSIONER COYLE: Okay. So we have control over it even if none of this is changed. CHAIRMAN COLETTA: That's absolutely correct. COMMISSIONER COYLE: And so -- in order to expedite it and get this done -- otherwise we'll debate it all day if we're not going to get you or Commissioner Henning to change your minds. But that still means that there will have to be a supermajority vote to get whatever density is necessary at time of rezone. And if there's a supermajority on the board that will approve it, then that's no different than approving it right now -- CHAIRMAN COLETTA: And if I -- COMMISSIONER COYLE: -- in principle. CHAIRMAN COLETTA: -- may add, and that is fair, because at that point in time we can make an argument to what we need, and you can take it on a case-by-case basis. You couldn't ask for anything that's fairer. COMMISSIONER COYLE: That's why I think Commissioner Henning's proposal has considerable merit, because otherwise we're going to be at an impasse on these things, they won't be changed at all. My -- I'd just like to communicate to the board that I am -- I am likely to vote in accordance with the principles that are established here, a cap of four dwellings per unit density in the coastal high hazard area and all of the other things, I'm likely to vote to uphold these principles even if they're not part of the Growth Management Plan because we have the flexibility to do so. And so I don't want any of my fellow commissioners to think that I'm going to be voting for higher densities just because I would agree to a compromise on how we handle these. COMMISSIONER FIALA: What is the density right now in the coastal high hazard area? Page 20 January 25, 2007 MR. WEEKS: It depends on where it's located. There is no blanket provision that if you're in the coastal high hazard area, here's your density limitation. Instead, just a portion of the coastal high hazard area, which lies south of 41 and east of the City of Naples, that's the urban coastal fringe subdistrict, that portion is limited to a maximum of four units for acre with the one exception that the affordable housing density bonus is applicable. The other -- the other remaining portions of the coastal high hazard area that then lie essentially north of the City of Naples, they don't have that limitation, that is -- 16 units per acre is the maximum allowed in that portion of the coastal high hazard area. So the net effect of imposing a density cap of four units per acre in the coastal high hazard area is going to be -- it's actually going to lessen the area encompassed, because presently there's a traffic -- excuse me. Let me stop there. I'm starting to confuse things. As I stated, south of 41, four units per acre cap with the exception of affordable housing. Other parts of the coastal high hazard area, potentially 16 units per acre. CHAIRMAN COLETTA: Commissioner Halas? COMMISSIONER HALAS: Isn't this -- doesn't the state -- hasn't the state required us to not increase density in the coastal high hazard area, that they want us to take means to control the density that's being put in the coastal high hazard area? MR. WEEKS: There's not a specific requirement in the state, but you phrase, would they want us to, that's more on the mark. State regulations -- state law discourages increased density within the coastal high hazard area, they encourage counties to look at ways to limit that density. COMMISSIONER HALAS: Okay. MR. WEEKS: But there's no absolute. CHAIRMAN COLETTA: Before we go to you, Sue, do we have Page 21 January 25, 2007 anyone to speak on these issues? MS. FILSON: No, sir. CHAIRMAN COLETTA: I just want to know before we go too far and maybe bring it to an end. MS. FILSON: You have speakers on the CCME and the FLUE. CHAIRMAN COLETTA: Let me put it this way, is there anyone out there that wanted to address us on these issues when we get to that point that are before us now? This is page 2 of the executive summary, six items under simple majority vote at transmittal hearing, it lists those items, having to do with the coastal high hazard area density. If there isn't, that's no problem. Just wanted to make sure I wasn't missing anything. I'm sorry . You go, then I've got a comment. MS. STUDENT-STIRLING: It's very short, so I was going to quote directly from rule 9J-5 on what it says about this, and it says, direct population concentrations away from known or predicted coastal high hazard area. CHAIRMAN COLETTA: Yeah, a very vague statement that leaves it up to the eyes of the beholder to interpret. Once again, the only thing that I want -- and I can go along with anything if we had this in there, with the exception of affordable housing. For the little bit that's going to happen, it would get you a long ways to where you want to be. COMMISSIONER HALAS: We don't have an affordable housing problem. CHAIRMAN COLETTA: Well, at any case, forgive me. Let's-- how are we going to move this ahead? Henning and then Coyle. COMMISSIONER HENNING: Yep. I don't see myself moving off allowing flexibility. I don't think Commissioner Coletta is. So we are where we are. I just wanted to state of why I thought it was a good idea, and the main reason is, allow yourself flexibility because you never know what comes up -- that comes before us that, in the eyes of Page 22 January 25, 2007 the majority, supermajority, it might be a good thing. If you don't have that provision that's in there, you don't have that opportunity to make that judgement call, so -- CHAIRMAN COLETTA: And I don't think anything's changed COMMISSIONER HENNING: No, nothing's really changed. CHAIRMAN COLETTA: -- with the five commissioners here. Commissioner Coyle, and then please, I'd appreciate if somebody could move this forward so we can get a motion and on the record. COMMISSIONER COYLE: Yeah. I tend to agree. We don't lose anything here as long as those of us who believe we want to control density remain firm in our voting patterns when the time comes to bring these before us, because it will only take two votes against the density -- COMMISSIONER HENNING: Right. COMMISSIONER COYLE: -- to keep it from happening. CHAIRMAN COLETTA: That's correct. COMMISSIONER COYLE: So we will have control over it. It is good to have some flexibility and evaluate the situation. But if we want to cap density in the coastal high hazard area at four density units per acre, all we have to do is vote when an item comes before us to deny any density above that. CHAIRMAN COLETTA: Could I get you to make a motion so we can move forward? COMMISSIONER COYLE: Well, I would make a motion that we resolve this impasse by eliminating these items from the changes -- CHAIRMAN COLETTA: Second. COMMISSIONER HENNING: Second. COMMISSIONER COYLE: -- from the EAR. CHAIRMAN COLETTA: Okay. We have a motion by Commissioner Coyle to remove these from consideration, a second by Commissioner Henning. Did I use the right word, remove these things Page 23 January 25, 2007 from consideration? COMMISSIONER COYLE: Yes, I think that's appropriate. CHAIRMAN COLETTA: And any other comments? (No response.) CHAIRMAN COLETTA: Hearing none. COMMISSIONER COYLE: It would be good if David were just to give us a brief statement of the impact on our -- the remaining hearing as a result of these changes. MR. WEEKS: Well, when we get to the future land uses element specifically, we won't be discussing these because you have already acted on them. There will be some ancillary housecleaning changes. For example, the future land use map reflects these items being deleted. We'll simply need to reinstate those. That's all housecleaning other than that. CHAIRMAN COLETTA: We didn't vote yet. COMMISSIONER FIALA: Could I ask one more question? CHAIRMAN COLETTA: Yes, please, Commissioner Fiala. COMMISSIONER FIALA: With the 16 units per acre conversion from commercial to residential, by removing this from consideration, that's then still allowed? MR. WEEKS: That's correct. CHAIRMAN COLETTA: If you can get four votes. COMMISSIONER FIALA: If you can get four votes. And if we don't, could we get sued? MR. WEEKS: Back to the question. COMMISSIONER COYLE: It's all discretionary. COMMISSIONER FIALA: Okay, okay. MR. WEEKS: I'll say it this way. It absolutely is discretionary. We specifically state in the plan, it's there already, that these density bonuses are not an entitlement. I mean, it's very clear. We state it right in the plan. I think what Marjorie was suggesting, that there's a certain -- Page 24 January 25, 2007 there may be a certain expectation on the rezone petitioner's part when they see, well, here's a density bonus. I believe I've complied with the criteria, I think I'm eligible for this, and, you know, they believe that their proj ect meets all the requirements to have that bonus approved. But, absolutely, it is your discretion. And as long as you have a good reason -- I think she would say, as long as you have a sound reason for your action, then you're good to go. CHAIRMAN COLETTA: Okay. MR. WEEKS: Never know what a judge will say, but-- CHAIRMAN COLETTA: Okay. Any other comments? (No response.) CHAIRMAN COLETTA: Hearing none, I'm going to call the motion and -- all those in favor of Commissioner Coyle's motion and seconded by Commissioner Halas -- COMMISSIONER FIALA: No, Henning. CHAIRMAN COLETTA: Excuse me, Commissioner Henning. COMMISSIONER FIALA: They both start with H. CHAIRMAN COLETTA: -- to remove these from consideration, indicate by saying aye at this time. COMMISSIONER COYLE: Aye. CHAIRMAN COLETTA: Aye. COMMISSIONER FIALA: Aye. COMMISSIONER HENNING: Aye. CHAIRMAN COLETTA: Okay. The ayes have it, 5-0. COMMISSIONER HALAS: Oh, no, no, no. I-- CHAIRMAN COLETTA: I'm sorry. Forgive me, okay. COMMISSIONER HALAS: Opposed. CHAIRMAN COLETTA: Forgive me. Those that are not in favor, indicate by saying aye. COMMISSIONER HALAS: Aye. CHAIRMAN COLETTA: Let the record show that the vote was 4-1 with Commissioner Halas on the -- in the negative. Page 25 January 25, 2007 Commissioner Coyle, I just want to compliment you for doing such a wonderful job getting us there in a reasonable period of time. COMMISSIONER COYLE: Well, I just want you to know it's not going to change my voting pattern. I'm still going to vote opposing CHAIRMAN COLETTA: You're getting older. You're going to start getting soft. COMMISSIONER COYLE: But -- has David finished his introduction? MR. WEEKS: One more item, please. COMMISSIONER COYLE: Okay. I have a question after he finishes his. MR. WEEKS: Something else that's not been presented to you yet but it goes back to the format we're dealing with here where this, what we call the ORC Response Document, and that's the tab -- you have executive summary tab, staff report, and then ORC Response. That ORC Response Document, again, is the focus; it is the meat of our discussion today, unless you choose otherwise. That's where we identify each and every objection raised by DCA, and then we provide the staff response, which includes in some cases revisions to proposed elements. And we would like to walk through that with you at your discretion. If you choose to say, well, let's just wait and ask questions, so be it. But our -- the staff is prepared to walk through each of these. But we have also prepared -- here's the other new item -- an errata sheet. These are housecleaning items only. This is where, in this ORC Response Document, we show a text change, but over in the actual elements that are later -- the later tabs in your binder, the two don't quite match. That ORC Response Document is the controlling document. That's the one that reflects our intent. Staff needs to go through the housecleaning exercise of modifying the element itself to reflect what is in that ORC Response Document. Page 26 January 25, 2007 Some case it's a matter of a word is missing, we underlined something that should be struck through, vice versa. But I can't stress enough that it's housecleaning only. We do have a copy of that list that's a little over a page that we could present to you either on your visualizer, to yourselves personally, as well as extra copies for the public. But I would like to get the board's endorsement to make these minor housecleaning changes that are necessary. And also just a general understanding that, just as we went through a moment ago with those density bonuses, anytime you take an action that is different than what is being presented to you by the Planning Commission, then we, of course, are going to have to make various revisions to those elements. If you say change the map, then we'll need to change the map. And if there's ancillary changes elsewhere within the text or another map, you know, please understand that we will have to do that. For internal consistency. We can't have this map showing one thing and another one showing something in conflict. With that, Commissioners, at your pleasure we can walk through the ORC Response Document. COMMISSIONER COYLE: Mr. Chairman? CHAIRMAN COLETTA: Commissioner. COMMISSIONER COYLE: I just have one quick question, a request of David. As we go through these, would you please emphasize to us any elements that you're proposing as a change to the Growth Management Plan that, perhaps, do not have to be in the Growth Management Plan and, instead, could be placed in the Land Development Code. COMMISSIONER HENNING: Amen. COMMISSIONER COYLE: There are -- there are too many items that DCA has to approve already, and I find that we are limiting Page 27 January 25, 2007 our flexibility by, perhaps, having too much in our Growth Management Plan. So if you could tell us if this is an absolute ironclad requirement to have it in the Growth Management Plan as opposed to the LDC, that would be very helpful to us. COMMISSIONER FIALA: Oh, boy, is that the truth. It's like changing the Constitution. COMMISSIONER COYLE: Yeah, yeah. MR. WEEKS: I hear you loud and clear, and I'm going to let Randy provide a response. MR. COHEN: Commissioners, Randy Cohen, for the record. Your point is well taken. There are quite a few areas where there's a lot of specificity in the comprehensive plan where it could be handled in the GMP. I don't know-- COMMISSIONER FIALA: LDC. COMMISSIONER COYLE: LDC. MR. COHEN: It's LDC, excuse me. I don't know if there is exactly the right time to do it. It would be appropriate maybe to point those out, but it may be more appropriate to do a whole wide-scale analysis of the GMP and maybe come back in the form of a special cycle and do more of a wide scale amendment to the GMP. But right now we do one -- you know, one cycle a year, and -- COMMISSIONER COYLE: Well, that's okay, but the problem is that it's going to take us a long time to do it. And once we voluntarily place it in the GMP now, it's going to be more difficult, perhaps, for us to take it out later. So if there is something we can do with an LDC change with the provisions we're talking about here today, please identify that for us and we might elect to do that through an LDC change rather than a Growth Management Plan change. I think that would make it a lot easier for us. MS. STUDENT-STIRLING: Point of clarification. Commissioner Coyle, I think -- and correct me if I'm wrong -- you're talking about items that we'd be discussing today that are like that, as Page 28 January 25, 2007 opposed to the -- COMMISSIONER COYLE: That is correct. MS. STUDENT-STIRLING: Okay. COMMISSIONER COYLE: That is correct, just the items we're discussing today that are capable of being accomplished by including them in the LCD (sic) rather than the Growth Management Plan. CHAIRMAN COLETTA: Commissioner Halas? COMMISSIONER HALAS: How complicated is this going to be when we transfer this up to Tallahassee to have it looked at? MR. WEEKS: The more changes -- excuse me. The more changes that we make that are either not in response to the ORC Report or the more changes that we don't make in response to the ORC Report, the greater the level of risk that we're taking of a non-compliance finding. And that general statement is the best I can give you, Commissioners. But if they have raised an objection, that can form the basis of a finding of noncompliance, so we need to address that objection in some way. I mean, certainly if your pleasure is not to -- to make a revision to the actual text that's being proposed in response to the ORC Report, we certainly need to make sure that we provide adequate explanation and/or data and analysis to support why we're not making that change. Commissioners, finally, in the ORC Response Document, to help identify where those changes are occurring, you'll see text -- and the very first place begins on page 2 of that ORC Response Document-- where you see double underline or double strike through, that is reflecting a change since transmittal. So we start with the element as it exists today. The single underline, single strike through reflects what you voted to transmit back in May of last year. Where we're now proposing to further revise that particular policy or provision, the double underline means we're adding it, a double strike through means we're deleting it. Page 29 January 25, 2007 And where it occasionally can get confusing is if you see some of -- you see a single underline, but then a double strike through. The double prevails. That means back at transmittal, the proposal was to add some language, but then today the recommendation is take it back out. Conversely, if you see a single strike through, that means at transmittal the recommendation was to eliminate that language, but a double underline means, no, instead, let's leave that language in there. And with that, I'll turn it over to Corby. COMMISSIONER COYLE: And this is under ORC Response tab; the staff report, we're not going to go through? MR. WEEKS: That is correct. COMMISSIONER COYLE: Okay. Will we have a chance to -- will we have a chance to address some of the items in the staff report? MR. WEEKS: Certainly, Commissioners, at your pleasure. I want to -- the ORC Response Document reflects the recommendations of the Planning Commission after their, I believe it was five public hearings. As Mr. Mudd said at the beginning, they rather thoroughly vetted this batch of amendments. But this reflects the Planning Commission's recommendations. I mentioned that one area where there was a disagreement between staff and EAC both with the Planning Commission, that is not reflected in here because the official recommendation coming to you is the Planning Commission as the local planning agency under state law. And, again, with that I'll turn to Corby. MR. SCHMIDT: Good morning. Good morning. For the record, Corby Schmidt, principal planner with the comprehensive department. It is on page two where I show the first revisions to text as proposed for adoption. Therein transportation element policy 1.2 as a result of recommendation from the DCA to the CIE. The cross-reference to another element. COMMISSIONER FIALA: I'm sorry. You say page 2. Is that Page 30 January 25, 2007 page 2 of the ORC Report? MR. SCHMIDT: Yes. COMMISSIONER FIALA: And you say transportation? MR. SCHMIDT: Yes. Toward the top of the page, text as proposed for adoption. That policy 1.2 actually refers to transportation element. It simply removes the references to the five-year schedule of capital improvements as the schedule itselfhas been extended to an entire 10-year period. Policy 3.2, the same kind of change. COMMISSIONER COYLE: I have a problem. I have a question. How did it get expanded to 10 years, and why? MR. SCHMIDT: It is a requirement from the DCA and state law to have a capital improvements planning program which has both short-term and long-range periods. COMMISSIONER COYLE: And how do you project out to 10 years accurately with respect to committed funds and schedules? MR. SCOTT: Don Scott, transportation planning. You're hitting on our concern, too. Trying to respond to DCA, actually the version that's in there right now, we ended up changing after that. Obviously yesterday's discussion changes it some more. What I had done previously was pull out all the money portion of it and kind of projected what I thought we could do based on your impact fees, gas taxes, and ad valorem level that's in there. But, yes, that was a big concern from two different angles. One is, can I realistically say that seven years from now what a certain project costs or, conversely, that revenue's there? No. And then the second part of that is, is this a way to get me into a 10-year concurrency system. COMMISSIONER COYLE: Yeah. Now, as I understand the legislation, it does not require a 10-year cycle. It requires only a five-year cycle, and it's my understanding that the 1 O-year was purely voluntarily at the election of local government. Am I wrong? Page 3 1 January 25, 2007 MR. SCOTT: I'm not -- MR. COHEN: Commissioner, I think we're dealing with two different items here. And counsel can correct me if I'm wrong. Under the requirements of 9J-5 with regard to the EAR-based amendments, we're required to provide them with a schedule going out 10 years. Senate Bill 360 requires us to be financially feasible for the first five years of that CIE. What you see in this particular EAR-based amendment is a five-year schedule of capital improvements that is financially feasible as dictated by Senate Bill 360 in accordance with the direction of this board. Beyond that in years six through 10 represents what would be what Don would envision as proj ects that he feels that they would be able to do within years six through 10. But if you recall the language from the proportionate fair share legislation, in essence, the projects that are in years six to 10, you do not have to agree to enter into any proportionate fair share agreements unless it's your discretion to do so if you feel it's in the best interest of this county. Don's concern is well founded. His concern is that if I put those proj ects in there, you know, am I going to be forced into a concurrency management system or forced into a proportionate fair share? From what we can see from Senate Bill 360, that's not the case, but obviously we do have some trepidation when it comes to that. But if you look at the legislation, that does not appear to be the intent. And counsel can correct me if I'm wrong. COMMISSIONER COYLE: That's exactly what I'm thinking. And I don't understand the conflict between what DCA is telling us we have to do and what the legislation says is permissible. MR. SCOTT: We did this back in October. The first of it was really trying to respond to DCA's comments, but obviously we have concerns with that. COMMISSIONER COYLE: You see, the problem here is that Page 32 January 25, 2007 this refers to the capital improvement element of the Growth Management Plan. Now, it doesn't say the five-year portion of the capital improvement element. If it is required to be a 10-year proj ection, you would presume that their reference to a capital improvement element would be for the entire 10 years, and that's very disturbing. Is there any way to get around that? MR. SCOTT: From my standpoint, we're having a hard enough time with the five years. COMMISSIONER COYLE: Yeah. MR. SCOTT: Do I think the rest of what we submitted is going to get through? I'm not too sure at this point. I was going to make later a recommendation that, every year we go through this, we've made changes for several years on our concurrency system, and every year the development community flies up there and talks to DCA. I think this year we probably ought to show up -- COMMISSIONER COYLE: Yeah. MR. SCOTT: -- and show them our -- you know, a lot of our Issues. COMMISSIONER COYLE: Yeah. MR. SCOTT: And it's not just our issues. I mean, what we discussed yesterday with the state also. I am -- you know, in one respect I'm trying to answer their questions, but I do have concerns with that. And I can -- I think from the standpoint of what we want to do, we can either submit a five-year or I can do 10-year that doesn't show a whole lot from a funding aspect in the second five years. Obviously some of the things we talked about yesterday, if certain proj ects are coming out of the five years, those are -- make the most sense to be in that second five years, but -- COMMISSIONER COYLE: Is there any way to submit a five-year plan? I mean, does this obligate you to a 10-year plan, this statement? Page 33 January 25, 2007 MR. COHEN: I think counsel can clarify the statutory obligation for planning purposes of having two five-year periods -- or two five-year plans, the first five years and the second five years. MS. STUDENT-STIRLING: I am going to quote from the statute, and I'm going to explain my understanding of it, and then I'm going to allow staff to elaborate. The statute says, each local government compo plan must include at least two planning periods -- and then I want to emphasize planning periods -- one covering at least the first five-year period occurring after the plan's adoption and one covering at least a 10-year period. Now, my understanding has been that for the concurrency, you know, we had to do our five-year, and then as we drop a year, we pull another one -- we'll pull the -- as we drop year one, we pull year six out of that second planning horizon. So the second one is really more for long-term planning purposes, and we're not issuing development orders or anything against anything in years six through 10. But as we drop a year off, we pull a year in from six and that continues to roll. COMMISSIONER COYLE: Well, just one follow-up, then I'm going to get off this. But it's very, very troublesome. You see, this statement just says, capital improvement element. It doesn't say the five-year capital improvement element or the 10-year capital improvement element. They have substantially different implications. Now, what happens if DCA tries to hold our feet to the fire with -- to a 10-year capital improvement element as required apparently here? MR. SCHMIDT: Well, if you go back a page, Commissioner, and look at DCA's objections, number one, to the capital improvement element, that specifically is what they're asking us to do. It did not in the past establish a 10-year program. The EAR-based amendment does not establish a long-term planning period for the comprehensive plan. That was their objection. Their recommendation was to revise the amendment to establish the Page 34 January 25, 2007 long-term planning time frame for the compo plan. Without reference to the number of years, the capital improvements element and the schedule of capital improvements are covering the full 10-year period in five-year pieces. MR. SCOTT: One of the things I added in an attachment to give them for data is the long-range plan, because when you start looking at the way their comments are set up, you think, geez, did they not know we have a long-range? Well, they're supposed to review it, but say, hey, these things are addressing the 10, actually 25, and even -- if you talked about east of 951, even further planning period. So it's not like we're not planning for that, but-- MR. COHEN: Commissioners-- COMMISSIONER COYLE: Would it not be better just to take the information right out of SB 360 and say, we have a five-year capital improvement plan and then we have a 10-year plan for planning purposes -- MR. COHEN: Commissioner-- COMMISSIONER COYLE: -- in accordance with the legislation. MR. COHEN: Let me go ahead and tell you how we address this, Commissioner, because the concern was well taken, and I had Don add a note to the fiscal year 2011 to 2015 plan, and it's in your packet. It's in one of the tables. And I'll read the note. And what it says is Collier County -- and this is attached to the 2011 to 2015 plan. Collier County has adopted the two-year concurrency management system. Figures provided for years three, four and five of this capital improvements element are not part of the concurrency management system but are subject to proportionate share. Figures provided for years six through 10 of this said schedule of capital improvements are estimates of revenues versus proj ect costs but do not constitute a long-term concurrency system. Page 35 January 25, 2007 CHAIRMAN COLETTA: And forgive me for jumping in front of you, but possibly that language should be also included. I'm not too sure, but go -- Ms. Student? MS. STUDENT-STIRLING: Yeah. I was just going to build on what Randy said, that the legislation, or the statute, does provide, if the local government has a long-term concurrency management system, then we have to do a 10-year capital improvement schedule. But that's at our election, and we haven't elected to do that. So I think that -- you know, that distinguishes it in my mind from the other section that I read where we have these planning periods but we do not have the long-term concurrency management system. COMMISSIONER COYLE: Well, I hope you're right because I just think that they're trying to move us in the direction of doing -- putting in a long-term concurrency management system, and we've got to watch them like a hawk. CHAIRMAN COLETTA: We sure do, but let's go to Commissioner Henning, then Commissioner Halas. COMMISSIONER HENNING: No. I totally agree with Commissioner Coyle. You know, we want to always be flexible, and home rule applies to everything. So I'm kind of satisfied with Mr. Cohen's explanation. But Commissioner Coyle, if you have a heartburn with it, let's fix it. COMMISSIONER COYLE: Well, I don't know how to fix it and still reply to the ORC Report. If staff feels comfortable that they have responded to the ORC Report adequately in a way that does not tie our hands in the future, I'm okay with that, but you're going to have to give me some assurance that there's nothing here that can be interpreted as forcing us into a long-term concurrency transportation management system. CHAIRMAN COLETTA: Keep the answer as simple as possible. Page 36 January 25, 2007 COMMISSIONER COYLE: Yeah. MS. STUDENT -STIRLING: I just wanted to point out one other thing for you. In the ORC Report it does cite the statutory section that I read from concerning the planning time frame as opposed to the long-term concurrency management system. So that gives me some comfort that DCA was not expecting a long-term concurrency management system here. COMMISSIONER COYLE: Yes, but it's not included in our response. MS. STUDENT-STIRLING: Understood. COMMISSIONER COYLE: Okay? And maybe it should be included in our response. CHAIRMAN COLETTA: Did you wish to see the language that we cited earlier? COMMISSIONER COYLE: No, I know what the language says. What I'm suggesting then is we should reference that language in our response. CHAIRMAN COLETTA: That's what I was going to suggest. MR. COHEN: The commissioner's point's well-- is well taken. The note that's in the table, if you would like us to incorporate that note into the response itself so it's right up front and center, I think that would be an appropriate thing to do. CHAIRMAN COLETTA: Does that satisfy-- COMMISSIONER COYLE: That would help me. CHAIRMAN COLETTA: -- what you're looking for? COMMISSIONER COYLE: Yeah, that would help me. CHAIRMAN COLETTA: I'm going to move to Commissioner Halas, then we're going to try to move on. MR. SCOTT: I have -- yeah, I have one other suggestion too, is in the future years pull off the project cost, even though I'll show revenue over the years, because obviously something three years out is pretty questionable right now -- Page 37 January 25, 2007 COMMISSIONER COYLE: Yes. MR. SCOTT: -- putting a project cost that some developer's going to hold me to from seven years out is not that -- CHAIRMAN COLETTA: Good suggestion for future years. COMMISSIONER COYLE: Good. CHAIRMAN COLETTA: Commissioner Halas? COMMISSIONER HALAS: My concerns pretty much parallel with Commissioner Coyle. I believe that once we put something on paper, they're going to come back and try to hold us to it, and I'm not sure how we're going to raise the revenue if we have to address those concerns and they said, well, you've put this in your 1 O-year plan. How are you planning on addressing this as far as the funds that you're going to use, or how are you going to get the funds in order to accomplish your goals here? CHAIRMAN COLETTA: We're going to have to start moving on. For this particular item, do you need a particular vote on it or just a nod of the heads to go forward? How we doing this? MR. WEEKS: An indication of your consensus, Commissioners. CHAIRMAN COLETTA: I'm nodding my head. You're nodding your head. COMMISSIONER FIALA: I just want to make sure -- MS. FILSON: You have a speaker, too. COMMISSIONER FIALA: I just wanted to see Don Scott nod his head that this is okay, if Don feels that -- you know, because we don't want to in any way -- CHAIRMAN COLETTA: He's nodding his head. COMMISSIONER FIALA: -- hamper what you're doing. This helps you or this at least -- MR. SCOTT: I think if I -- what I said, too, pull out the project costs and do a projection of it. I mean, they know we're going to have revenue coming in over those years. But kind of identify those ones that we want to move towards, and then also that -- the last part of it Page 38 January 25, 2007 is, have a discussion directly with them, too, regarding their comments. CHAIRMAN COLETTA: I think we're there. COMMISSIONER COYLE: Okay. CHAIRMAN COLETTA: We got enough movement forward, right? COMMISSIONER COYLE: We're concerned. CHAIRMAN COLETTA: We've got -- oh, forgive me. We have a speaker. Please call the speaker. And I apologize for not calling you sooner. MS. FILSON: The speaker is Reed Jarvi. MR. JARVI: Good morning, Commissioners. Reed Jarvi, for the record, professional engineer with the firm Vanasse Daylor, and I'm here representing the CBIA today. Just a quick thing on this aspect, sort of. It's really the capital improvement element in general. But on the bottom of page 2 of the ORC Report Response, it talks -- the second paragraph talks about the month -- second sentence of the second paragraph in that bottom section says, the month and year of actual commencement of construction, and month and year of each project will be completed as indicated. At least on the copy of the CIE I had, it did not have that, Don. I don't know if you've updated that since last week. MR. SCOTT: As the -- I noticed in some of the ones I reviewed, it had the year. It might have been design, and then completion four years out. MR. JARVI: Yeah. MR. SCOTT: I'm not sure that's really the way we want to be going with it. MR. JARVI: Yeah. I'm not sure it's -- your table exactly says what this does. You know, you need to reply to that. The second part, there are several instances or references in the capital improvement element -- and I know we're not talking about the Page 39 January 25, 2007 transportation element at this time, but it's there, too, that basically say that the programming -- excuse me -- the programming of the capital improvement element are what is necessary to maintain the adopted level of service. And that's somewhat true, but I believe it is not really exactly true because of the way the concurrency management system has been. And I'll note that with the dropping of the projects under construction into only ones in the first two years that have construction contracts signed, there are several instances that you do not make your concurrency -- or excuse me -- you are not maintaining level of service in accordance with that, and I think that there is situations -- many situations -- I counted eight segments -- that were not scheduled for construction. I know they kind of are, but they aren't in accordance with the capital improvement element, and that those -- you will not be maintaining the level of service as you are required to do in your own comprehensive plan. I know what your intention is, but I'm saying that you have a conflict in your own plan that says one place you are maintaining. The next place you are not maintaining because you're not doing it in accordance with your plan. And then the last thing I'll say, it's actually a later portion after the BEBR, all the stuff with the growth projections. But just quickly, I'll just say, I know we've gone -- we say in later sections of this page 8 we talk about level of significance from 3 percent to 2 percent and 3 -- so it's -- instead of a 3/3/5, it's a 2/2/3 situation. I would suggest to you that as we're going -- we're becoming what is more precise or at least the appearance of more precision, when in actuality, the level of data that is inputted is not as precise as you were thinking, and I would suggest that you don't go to 2/2/3, but I know that's your direction. I suggest you don't. That's all I have. CHAIRMAN COLETTA: Thank you very much, sir. Page 40 January 25, 2007 MR. JARVI: Thank you. CHAIRMAN COLETTA: Please continue. COMMISSIONER FIALA: Don, did you want to make a comment on that? Yes, you do. MR. SCOTT: I think we know what will be raised this year with the visit. MR. SCHMIDT: Perhaps to address the gentleman's concerns, the bottom of page two where the reference is made to the month and year for actual commencement of construction, perhaps the removal of "month and" from that statement would help clarify or adjust that concern. CHAIRMAN COLETTA: Comments, anyone? COMMISSIONER HALAS: I'm not in favor of it. MR. SCHMIDT: It seems to work for Don. CHAIRMAN COLETTA: You're not in favor of removing it? COMMISSIONER HALAS: Nope. CHAIRMAN COLETTA: Okay. Any other comments? COMMISSIONER FIALA: I agree with Commissioner Halas. CHAIRMAN COLETTA: Okay. We agree -- we've got two people. Commissioner Coyle? COMMISSIONER COYLE: Removing what? CHAIRMAN COLETTA: We wanted to -- he was suggesting remove the month, or "month and," and just say, "the year for actual commencement. " COMMISSIONER COYLE: I think it should stay the way it is. COMMISSIONER HALAS: Yep. CHAIRMAN COLETTA: Okay. I agree, too. MR. SCHMIDT: All right. Please continue. MR. COHEN: Commissioners, just for clarification purposes. The reason I think that that point was raised is because your CIE tables only specify a year, they don't specify a month, and that's where that inconsistency exists so I just wanted to point that out that there is Page 41 January 25, 2007 no other place in the CIE tables where we show a month, and that's why it might be appropriate to remove it, to eliminate the inconsistency. CHAIRMAN COLETTA: Tell me -- Commissioner Halas, you're the one that suggested it in the beginning. I don't want to go along without understanding. Why don't we want to remove it? COMMISSIONER HALAS: Well, obviously this has been scrutinized by the Productivity Committee and it's also been scrutinized, I believe, by the Planning Commissioner. And since it hasn't come up before until today, obviously, I feel that since it's been highly scrutinized, that we should leave it the way it is. CHAIRMAN COLETTA: Commissioner Henning's got a comment. COMMISSIONER HENNING: Well, we don't -- we don't want inconsistencies in our plan, and it should go from document to document to document. And I'm wondering, you know, would it be a problem if we put the month in and we can't deliver, does it create a problem? CHAIRMAN COLETTA: Yeah. COMMISSIONER HENNING: So just for consistencies -- on a consistencies basis, like Mr. Cohen said, well, I think it's very reasonable to remove the month. MR. SCHMITT: Yes. COMMISSIONER HENNING: And I'm going to make a motion to do so. CHAIRMAN COLETTA: And I'll second it because I think, if anything, it strengthens our position, rather than be nailed down to a specific time in the year. It gives us a little bit of leeway. So we've got a motion by Commissioner Henning, a second by Commissioner Coletta -- we're going to come right to you -- to remove the word "month and," and it will read, "the year for actual commencement. " Page 42 January 25, 2007 Commissioner Fiala? COMMISSIONER FIALA: Yeah. I'm just concerned with, if we're talking about January of2007 or December of2007, it's almost a whole year difference, and that's what concerns me, so -- CHAIRMAN COLETTA: That's interesting. MR. SCHMIDT: I may be able to address a portion of that concern. For transportation, for a number of the other public utilities, we're working from their master plans adopted at another level, not just part of this capital improvements program, but referred to in it. And in those documents themselves, there's the correct month given or the projected month for commencement and completion of projects. In the CIP itself, it is not necessary to show them if you do have them at a second location. COMMISSIONER FIALA: I want to make sure that we support our transportation department and not, in any way, tie their hands. So let me hear from Don. Does he prefer that that month is in there? MR. SCOTT: (Shakes head.) COMMISSIONER FIALA: No? You prefer that it's eliminated. MR. SCOTT: Yeah. CHAIRMAN COLETTA: Okay. So if I may suggest, it's going to take four votes to really keep this going on track, so I don't want to have to rehash it later. Any other discussion? I see Coyle's light's on and Commissioner Henning. I don't know if yours are on from before. COMMISSIONER HENNING: It was before. COMMISSIONER FIALA: Mine too, off. CHAIRMAN COLETTA: Off, okay. Let's take -- no other discussion. All those in favor, indicate by saying aye. COMMISSIONER COYLE: Aye. COMMISSIONER HALAS: Aye. CHAIRMAN COLETTA: Aye. Page 43 January 25, 2007 COMMISSIONER FIALA: Aye. COMMISSIONER HENNING: Aye. CHAIRMAN COLETTA: Opposed? (N 0 response.) CHAIRMAN COLETTA: The ayes have it, 5-0. COMMISSIONER FIALA: Leaving it the way it is? CHAIRMAN COLETTA: No, no. COMMISSIONER HALAS: Taking the month out. COMMISSIONER FIALA: Oh, taking the month out. CHAIRMAN COLETTA: Taking the month out, just as was suggested. COMMISSIONER HENNING: You want to change your vote? COMMISSIONER FIALA: No, no, no. I was just making sure of what we were voting on. CHAIRMAN COLETTA: No, that's good that you asked. MR. SCHMIDT: All right, Commissioners, then the next portion of the document is the lengthy explanation I believe you heard part of yesterday regarding the change to the population methodology, and it moves us through page 6, and up on to page 7 is the next time you see text that's proposed for adoption. It is not until page 8 where you see some deletions or additions since transmittal, but it does have to do with references to the population methodology, use the correct terms, and we also see here in letter C on page 8 where that percentage is changing from 3 to 2 percent. That was a speaker's concern. It goes on through page 9 in that entry, again, all having to do with population and definitions, references to methodology and so forth. CHAIRMAN COLETTA: May I ask a question, please? What we see here, had the -- it came from -- the suggestions from who, the Productivity Committee or the Planning Commission, these particular changes? Page 44 January 25, 2007 MR. SCHMIDT: I did, and I'll allow Randy Cohen to address that as well. CHAIRMAN COLETTA: I know there was a lot of discussion over the methodology. MR. COHEN: Good morning, Commissioners. Again, for the record, Randy Cohen, comprehensive planning department director. If you recall, we received a comment from DCA pertaining to our existing population methodology in the comprehensive plan, which was based on high BEBR numbers. And the comment that came back -- and I'll go ahead and I'll put it on the visualizer and summarize that -- in essence, asked us to go to using medium BEBR numbers with the seasonal adjustment to be determined by Collier County. In addition to that, the language also says that we would be revisiting our population methodology on an annual basis to take a look at it to see, from our own perspective, if that's working. You directed our staff to go ahead and take a look at the existing methodology and whether or not what DCA was asking was reasonable. And in speaking with you the last time, we indicated that the medium BEBR numbers as a starting point was correct. We received direction from this body to go forward with an analysis, and two main points were made. Commissioner Coyle indicated, and the board concurred with this, that you didn't want DCA dictating to us what that population methodology is. You wanted us to go forward with something that, one, that our staff felt comfortable with and as well, the CCPC felt comfortable with. Commissioner Halas, you also made the point that you wanted to make sure that we were a little conservative from the perspective of making sure we didn't run into any situations like we did in the past with public facilities where we didn't address a water or sewer plant. We undertook an analysis from that perspective, and I want to kind of point out to you what we did. And the Planning Commission Page 45 January 25, 2007 did review this and took no issue with the methodology and actually concurred with it in our presentation to them. I just wanted to briefly touch on this so you can get an idea of what we did and where the numbers come from. The first thing that we did is we took a look at the existing census data for Collier County in the year of 2000 and we looked at seasonal population countywide. And what that showed -- and I'll put this on the visualizer -- is that in the year 2000, countywide we had a seasonal population rate of 23.8 percent. This body and also the Planning Commission felt that was a little distorted from the standpoint that we have high concentration to the seasonal population in both Marco Island and Naples. So it was incumbent upon us to go ahead and take a look at, if we took out those areas and just looked at the county itself, what would those figures actually be in terms of seasonal population by accepting those areas? Not from the standpoint that we were ignoring them, but just from the standpoint of, what is that overall impact? And when we did that, it reduced the seasonal population rate to 19.4 percent. And one of the reasons for that is, if you look at the seasonal population in the City of Marco Island, it's extremely high. That in itself is not really an absolute figure. We needed to take a look at some other things to ensure that our water and sewer plants were being built to adequate capacity. So what I had my staff do was take the census data for both the water and sewer district and come up with a very large sample, and these were census tracks that were entirely comprised within both the water and sewer district, to see what the seasonal population was in both the water district and the sewer district because they are -- they are different in terms of their geographic boundaries. And this is the water district right here in terms of what the seasonal population is in the water district, and it's a very large representative sample. And if you look at that, I believe it was 23 -- Page 46 January 25, 2007 COMMISSIONER HENNING: Blow it up. MR. COHEN: Excuse me? COMMISSIONER HENNING: Let's blow it up. We can't read that. At least I can't. CHAIRMAN COLETTA: You want to borrow my glasses? COMMISSIONER HENNING: You can see that? COMMISSIONER COLETTA: I can see it with my glasses on. Now I can see it without my glasses on. MR. COHEN: If you go all the way to the right side of that, you'll see that the seasonal population itself in the water district was 23.9 percent, and that's a very large representative sample. I can't recall the exact one. One of the districts was over 70 percent and the other one was over 50 percent sample. COMMISSIONER FIALA: Could you define water district? MR. COHEN: Sure. COMMISSIONER FIALA: Is this Collier County water district? MR. COHEN: Yes, ma'am, and we'll go ahead and we'll put a map of both the water and sewer district on the visualizer to show you the amount of the area that we did the sample size for to show that it is quite extensive and actually doing a representative sample, because we wanted to make sure that we were adequately addressing a significant amount of the population within those particular districts. CHAIRMAN COLETTA: But once again, you have to work on -- instead of an average, you have to work on a peak to be able to meet the need for water and sewer. MR. CO HEN: And I'll touch on that, and that's kind of where I'm going with some of this. CHAIRMAN COLETTA: I think we understand it pretty good. Can you get right directly to the point? MR. COHEN: Yes, sir, okay. What we did then was, is we took into consideration, okay, the permanent population of the county and we also took into consideration those percentages that were out there, Page 47 January 25, 2007 and what we had to look at is, on any given day, what is the maximum occupancy of all those seasonal units? And when you -- when we talk to BEBR, if you talk to anybody out there, coming up with an exact number on an exact day is virtually impossible to do. There's no way you're going to survey that many people. So we looked at, well, what's our hotel/motel occupancy -- maximum occupancy rate for any given month? And in February, it was 90 percent. So we decided, well, you know, we have to come up with a figure that's reasonable, you know, in terms of what that maximum occupancy is at any given time, and we chose the figure 85 percent. Is that an exact number? No. I couldn't come on out and do a survey of every unit in this county on any given day, and I don't think anybody could. But in trying to be conservative to make sure that we addressed the concerns related to water and sewer, we chose that number. And I think it's a valid number in terms of maximum occupancy on any given day. CHAIRMAN COLETTA: And I don't mean to interrupt you, but wouldn't the final test be to be able to just check with the sewer plant? I mean, if anything, the proofs going to be in the pudding. What their capacity has been against the relationship of your, you know, guess of 85 percent or whatever. MR. COHEN: I think what's going to transpire over time, when we analyze these numbers on an annual basis, and in looking at numbers, we ended up recommending a -- using permanent population with a 20 percent adjustment factor. And if you look at the chart that's on the visualizer right there, what we found is that, relating back to water and sewer, pretty much we've been kind of on target, you know, with the new methodology that was adopted in 2003. If you look at the visualizer itself -- and maybe David can point Page 48 January 25, 2007 to the two lines themselves -- there's a merging point actually right in around 2011 where the old methodology and the new methodology almost come together. So, in essence, when we come to proj ecting out the need for water and sewer plants -- and Mr. DeLony will tell you, it takes him eight years to plan for one of those, so basically you're right on target. CHAIRMAN COLETTA: I'm going to interrupt you. What I want to do is I want the commissioners to focus their questions on this situation. We'll start with Commissioner Halas, Commissioner Fiala, Commissioner Henning, Commissioner Coyle. COMMISSIONER HALAS: Well, I think my question's been answered -- thank you very much -- as I was looking at the proj ections here. COMMISSIONER FIALA: Henning was before me. CHAIRMAN COLETTA: Okay. Commissioner Henning? COMMISSIONER HENNING: Ladies before gentlemen. COMMISSIONER FIALA: Oh, I just wanted to ask, we're just focusing in on Collier County water system, not population; is that correct? MR. COHEN: This is -- this is entirely dealing with population, but it was very important to look at water and sewer because those are integral components of what is being served by our seasonal population. COMMISSIONER FIALA: But what I'm getting at then is, Marco Island has a lot of hotels on there, and you were talking about hotels. They're not in our water system. And the City of Naples has their own water system, a lot of hotels, a lot of tourism, but how does that help -- or discourage the count when you come to seasonal population? You were talking about hotels, but we in the county don't have all the hotels on our water system. MR. COHEN: And we did not include hotel and motel units in the count, so they're not factored in there, and that should address your Page 49 January 25, 2007 concern. I think the main thing is, when we started with that census data, that 23.8 percent, and then adjusted downward to the 20 percent, that gives a degree of comfort knowing where our seasonal population actually lies. CHAIRMAN COLETTA: Commissioner Henning? COMMISSIONER HENNING: The -- we're still going to have capacity for those seasonal residents on the water and sewer. MR. COHEN: Yes, sir. COMMISSIONER HENNING: And this board realizes that, but -- and other elements of it. But this new language, how does it tie us on how we adjust services to libraries, parks and recs and all those other elements? MR. COHEN: When you -- when you look at the -- and this is a better way of explaining it. First of all, those category B facilities, okay -- COMMISSIONER HENNING: Category A is parks. MR. COHEN: Parks, correct. When you look at the category A facilities, which are your water, your sewer, your solid waste, your parks and recreation and your transportation, okay, the seasonal -- the population methodology obviously ties in to the CIE and everything that's transmitted to DCA. The category B facilities are affected by the population methodology from the perspective of your capital improvements plan that you do as part of the Annual Update and Inventory Report. When you ask the question, well, how does the new methodology affect capital improvements plan in general, one of the things you would look at is, from the short-term perspective, there's really a very minor increase in population in the first five years, and when you go up to the five-year point, they converge. When we go out from a long-term planning perspective, the population actually decreases, and quite significantly, if you look at Page 50 January 25, 2007 that one line there that -- if David could point out one line is -- the difference between -- COMMISSIONER HENNING: Black and white one. MR. CO HEN: Yeah. If you could point to the green line at the end of the cycle and the line at the bottom there, and then the other line, then you go to the difference right there, that could show you how significant the population decreases in the long-term perspective when we go to the median BEBR numbers. Because the way high BEBR numbers do is they incrementally go on up, and they don't take into consideration exponentially any decrease in our building trends, and that's one of the reasons that DCA pointed out to us that we needed to go to the medium numbers because we were overestimating our permanent population growth, so that's how it works. COMMISSIONER HENNING: Okay. Let me -- well, I want flexibility. Can we adjust what we deliver to the public up or down, not going by population? Is there a way to do that? MR. COHEN: Your question tied into our discussion yesterday, which dealt with looking at the various levels of service and whether or not population was the appropriate mechanism to use, and that's the report that you've asked us to come back to you with as part of next year's AUIR. COMMISSIONER HENNING: So we can still -- I think the answer to my question is, we can still use other means by tying it to this revised language? MR. COHEN: What will transpire as part of the response to your inquiry yesterday, and direction, will be two things -- and I don't want to -- I don't want to mislead you. In some instances it may come back that population is the best method to use. And in some instances, it may come back and note an alternative. Maybe that's -- MR. MUDD: I'm going to help you a little bit. Commissioner, you're right. You can change -- there's two ways to adjust, okay? One Page 51 January 25, 2007 is the population methodology, and that's a -- that's a big issue you're talking about, but the other one is, you can adjust the level of service. COMMISSIONER HENNING: Except for category A items. MR. MUDD: You can adjust the level of service. You can always, as a board, adjust the level of service. COMMISSIONER HENNING: On anything? MR. MUDD: On anything. MR. SCHMITT: That is correct. COMMISSIONER HENNING: Thank you. CHAIRMAN COLETTA: We're going to go to Commissioner Coyle, and then we're going to take a 10-minute break. COMMISSIONER COYLE: I have no questions about this. I understand it. CHAIRMAN COLETTA: We're at a 10-minute break. (A brief recess was had.) COMMISSIONER HENNING: Okay. We're back in session. Everybody take their seats, please. CHAIRMAN COLETTA: Commissioner Halas, you're next. COMMISSIONER HALAS: Yes. In the past the methodology that we were using for population, I believe we found that that was tracking very, very close to what our real population figures were; am I right or wrong? MR. WEEKS: Commissioner, that's correct, it had been historically. More recently we've -- based on the most recent projections from the University of Florida's Bureau of Economic and Business Research, they're showing our growth going at the high range, which is what we historically have used for the first five years COMMISSIONER HALAS: Yes. MR. WEEKS: -- way, way faster. It's something like maybe 20,000 or so persons per year growth, and our present experience is more in the neighborhood of around 11 or 12. Page 52 January 25, 2007 So historically it had been pretty close. And, of course, we go through cycles of speeding up and slowing down in growth, but at this point it's just way too high, and then it's further compounded by what we believe is an artificially high peak season adjustment as well. But you're absolutely correct historically, but more recently, we're saying no, we just can't justify using that methodology. COMMISSIONER HALAS: I just want to make sure that-- because I remember looking at some of the projections and that we fell right in line with those proj ections even though they were on the high side. And I just want to make sure that we keep a close watch on this so that we don't run into a glitch where we had some problems back in the late '90s -- MR. WEEKS: Yes, sir. COMMISSIONER HALAS: -- and around 2000 with glitches whereby, at the peak season, we didn't have the capacity and we had days that we exceeded the capacity of all our plants. So I just want to make sure that we keep a close watch on it so that we can make adjustments accordingly, and we want to make sure we don't get ourselves in a bind because, like water plants and sewer plants, it takes at least eight years to get these online, the permit and everything. MR. WEEKS: Yes, sir. Understood. COMMISSIONER HALAS: Okay. CHAIRMAN COLETTA: Thank you. Now, I think we've probably beat this item to death enough. Is there anything you want to see changed in it, or are we fine to go ahead? COMMISSIONER COYLE: I'm okay. CHAIRMAN COLETTA: You're okay. How about down here? Yes, move on, please. MR. SCHMIDT: All right. That takes us to page -- through page 9 and to the top of page 10. Page 53 January 25, 2007 COMMISSIONER HALAS: Whoa, whoa, whoa. MR. SCHMIDT: Just point to -- just to point out -- CHAIRMAN COLETTA: Who said whoa, whoa, whoa? MR. SCHMIDT: Well, that entry was long, and those were the population methodology explanations. COMMISSIONER COYLE: Wait a minute. How about policy 1.2 on page 7? MR. SCHMIDT: Yes. COMMISSIONER COYLE: That wasn't included in the population proj ections, was it? CHAIRMAN COLETTA: Go ahead, Commissioner Coyle. MR. SCHMIDT: I'm sorry. Portions of it are, yes. COMMISSIONER COYLE: Okay. Here's my concern. Under paragraph B on page 7, middle of the paragraph, it says, the board shall not approve any such petition or application which significantly impacts either, open parentheses, one, closed parentheses, a deficient roadway segment. Now, I want to know what -- how we measure a significant impact on a deficient roadway segment. My contention is that any impact on a deficient roadway segment is significant. CHAIRMAN COLETTA: We're going to be challenged on that if we -- COMMISSIONER COYLE: I don't know that we will. CHAIRMAN COLETTA: Why don't we have Don Scott address that. MR. SCHMIDT: Certainly. Just to point out, that although it's underlined here, it's a movement of -- or relocation of the entry. It read this way before and would continue to read that way. COMMISSIONER COYLE: Well, it won't continue if we want to change it. MR. SCOTT: The significant -- oh, go ahead, Marjorie. COMMISSIONER COYLE: Let him answer my question. Page 54 January 25, 2007 MS. STUDENT-STIRLING: I'll comment after your question is answered. MR. SCOTT: The significance level is based on what we've talked about before that, either the 3/3/5 or the 2/2/3 that we went to. First you look at, from a development, how far out are you going from that standpoint. Is it above that percentage on that link? Now, what you're hitting on is you think if it's a 1 percent, I believe, a 1 percent on that thing, even though it's not a "significant" that has been identified in there, then you want that to be identified, but that's not the way the significant test works. COMMISSIONER COYLE: Well, who decides how the significant test works? MR. SCOTT: That's why we're lowering it to 2/2/3. COMMISSIONER COYLE: Okay. That means that every development that has no more than 2 percent impact on that road segment can be approved even though the road segment is already deficient, and the cumulative effects of those can grow to 10 percent or 15 percent or 20 percent. MR. SCOTT: Just as our conversations over time about de mInImIs. COMMISSIONER COYLE: Yes. So that's my concern. How do we solve that problem? MR. SCOTT: I'm not sure you can, I mean, because at some point -- you know, we've had the discussion about de minimis, too. You might be pulling 7 percent less than what's considered de minimis, but over time, you add those up, those .7 s add up to a lot. COMMISSIONER COYLE: Well, my position is that once it becomes deficient, there is no impact that is considered insignificant. CHAIRMAN COLETTA: I'd like to go to Ms. Student for just a moment. We want to make sure we stay with the guidance that the state established. COMMISSIONER COYLE: I don't know that I like the Page 55 January 25, 2007 guidelines of the state. MS. STUDENT-STIRLING: What I wanted to say, so we don't go run into any trouble with this strike through and underline, since that's the identical language that exists in the compo plan now, is not do that strike through and underline on that first section, one, since we're not changing anything, and just leave it up there as it is, and then underline the population. That avoids us getting into any problem, and it's just kind of a housekeeping thing. But it has larger ramifications in that, because if it's perceived as a change, it could get us into a problem; whereas, if we leave it as written, it says the same thing. Your point's well taken about what's behind those words, and I think that gets into another aspect and another part of this. But my point is, if we leave it as written, it says the identical thing, they're just moving the language around in here, and we can take care of that where we don't get a challenge on this if somebody looks at it or we have to explain, well, it's really the same thing. That's my only point, trying to protect us a little bit. COMMISSIONER COYLE: Yeah, I understand and agree with that, but my question still is, how can we keep things from constantly being built in areas where there's a deficient roadway segment if we're going to use these definitions of insignificance? MR. SCOTT: Well, you know, there's a --there's another side of that. You could have something that's pretty far away that you're saying can't go. Now, maybe that's what you're trying to get to. COMMISSIONER COYLE: Yeah. MR. SCOTT: But that's why the significance level is set the way it is. COMMISSIONER COYLE: Now, wait a minute. If you've got some capacity remaining, I understand, you use it. But once the capacity is gone, why do we permit any use until we solve the capacity problem? Page 56 January 25,2007 MR. SCOTT: You're essentially talking about a moratorium in an area. And I mean, we've had this -- we had this discussion when we did the moratorium on Davis before versus the circles versus the impact of the roads and what trips are on that roadway. On the road itself, the moratorium kept people from going forward in that section, but obviously it determined how far down the road some things still impacted that but were allowed to go forward. COMMISSIONER COYLE: Well, I understand that, and that-- that would be closer to being acceptable to me than just considering anything 2 percent or less as being insignificant. The greatest impact is going to occur on the road segment that is most immediate to whatever the development is. MR. SCOTT: Just as that development in that area gives a lot bigger impact there versus the one that's three segments down. COMMISSIONER COYLE: That's correct. So a 2 percent impact on that road segment could, in my mind, be considered unacceptable, but five miles away at another intersection somewhere that impact has decreased to the point where it really is insignificant, and I would be less concerned about that. But on the impacted road segment that is already deficient, I don't understand why we permit additional development and call it insignificant, because it's not insignificant. Cumulatively it can be 10, 15, 20 percent or more. So how do we solve that problem? MR. SCOTT: And it can be around the corner but still impact it and you can do it, yes. COMMISSIONER COYLE: Yes. So how do we deal with that? MR. SCOTT: I don't see a way around it besides a moratorium in some of the areas. Unless I'm missing something. I mean, I'm not sure at the moment, when we submit even the lower percentage, that is accepted. COMMISSIONER COYLE: Well, I understand that there are two problems here, one is what will be accepted by DCA -- so one Page 57 January 25, 2007 will be accepted by DCA. What will be accepted by DCA is questionable. MR. SCOTT: Yeah, if we lowered it. COMMISSIONER COYLE: But what do we think is appropriate and how can we write it in a way that will at least logically defend our position on this issue? CHAIRMAN COLETTA: If you don't know, say that too. COMMISSIONER COYLE: Yeah. MR. SCOTT: See, I mean, you know, could you lower it to 1 percent, a half percent, something like that? I mean, you can submit that, but I don't believe that makes it. I think Reed's kind of touched on the argument from the other side. They're going to say -- and you're talking about trips that could be three miles away. There's a lot of assumptions in that -- in that analysis. CHAIRMAN COLETTA: This is a discussion we've had many times. MR. SCOTT: I know. You talk about Golden Gate Estates and everything's less than 1 percent -- COMMISSIONER COYLE: I'm not going to buy that. MR. SCOTT: -- but you add it up over time, it's huge. CHAIRMAN COLETTA: Then make some suggested language changes, we'll run it by the attorney, and if we don't think we're going to be unduly challenged by it, let's go for it. MS. STUDENT-STIRLING: Well, all I can say is, it's very hard to predict whether DCA -- you know, it's like getting out the crystal ball on whether or not they're going to challenge it. And if what we've got to support it and everything -- we need to have the data and analysis to back up the amendment. And Mr. Feder's coming up. Maybe he has some -- COMMISSIONER COYLE: You know, a simple statement-- for me a simple statement is that no impact on a deficient roadway segment will be considered insignificant. Page 58 January 25, 2007 MR. FEDER: Commissioner, for the record, Norman Feder, transportation administrator. I don't know whether or not DCA would accept, but if it's the board's desires, I understand it. I'd recommend consideration of wording where the word significantly is in that, and I agree with Marjorie, why strike it out and then underline it later? So assuming you're making that change, where it says significantly, strike that word, add in language that says, directly accesses or is on adjacent roadway segment with impacts, and then go on to the rest of the reading. In other words -- COMMISSIONER COYLE: But you still got the impact upon the BEBR thing, so -- and that has to be significant there, of course. MR. FEDER: Yes. COMMISSIONER COYLE: I would suggest a revision which says, which impacts a deficient roadway segment or, two, significantly impacts the seasonal population based upon the BEBR, okay? MR. FEDER: And, again, the only thing I was trying to do -- but that wording is fine -- was to acknowledge that you can be a number of links away and argue some level of impact on a deficient segment, be it -- I don't want to use insignificant, but be far less. What I was trying to say is, if you're directly accessing the deficient segment, that's very clear, or if you're on an adjacent segment that impacts a deficient segment, is what you're trying to get at. If I'm two more removed -- COMMISSIONER COYLE: Yeah, I wouldn't be too concerned with that. MR. FEDER: -- then the test comes in, and we use the rest of the test. COMMISSIONER COYLE: That's right. Then I wouldn't be too concerned. I don't have a problem with that either. That's more specific than what I had proposed, and I think it probably -- Page 59 January 25, 2007 MR. FEDER: Then added significantly, the work, back in for the BEBR. COMMISSIONER COYLE: For the BEBR, yes. CHAIRMAN COLETTA: But while we're doing all this, the reason they usually challenge these things is because they have members of the builders' association show up who raise objections, and then these things get challenged. MR. FEDER: I expect a challenge in many respects anyway. What I will tell you is you went from 5/3/3 to 2/2/3. COMMISSIONER COYLE: Yeah. MR. FEDER: That is already one that's probably going to be a question in some circles and, therefore, probably raised to them. This obviously increases that statement even more significantly. But does it change whether or not you're going to be challenged in this area or not, I'm not sure it does. COMMISSIONER COYLE: I think that it is good that we try to get whatever we can get. And if the DCA at the request of the development community petitions to tie our hands further on growth management in Collier County, they do so at their own risk. And I think the public should know what is happening there. And we should make every attempt to keep the public informed about the fact that we are trying to do our job of managing public facilities in Collier County, and the state, with the input from the development community, is trying to undermine our ability to do that. I'm perfectly happy to try to send that message to the people of Collier County, and we can't do it if we just roll over and play dead and say, well, somebody's going to challenge us on it. I think we try to do what we can do. If DCA accepts the input from the development community and further removes our local authority, then let them do that. CHAIRMAN COLETTA: Okay. Well, let's concentrate on where we are. We've got some word changes now. We're way ahead Page 60 January 25, 2007 of the game than we were about 15 minutes ago. You want to read it back the way it is so that we have a full understanding of it and we get the agreement of this commission, we'll move on. Meanwhile, while we're doing that, Ms. Student, I see you're going through your book with the greatest of speed. Does anything that we're doing here raise a red flag for you? MS. STUDENT-STIRLING: The only thing that raises a bit of a flag is that the legislature made a finding that a de minimis impact is consistent with growth management law, that's only -- and they go on to say what they define it as. That's the only thing that gives me a little concern. I understand your point, Commissioner Coyle. That's the only thing that gives me -- CHAIRMAN COLETTA: I don't want to get going in another lengthy discussion. We have the wording here. We can work on the wording, we can get a final determination to keep moving forward. You ready to read it back? MR. FEDER: Yeah. Everything we have is a hurricane evacuation route, so we could use that statement because then you don't consider de minimis, so -- but beyond that. CHAIRMAN COLETTA: Commissioner Coyle? COMMISSIONER COYLE: I didn't understand what you said, Norm. MR. FEDER: The legislation back to Marjorie Student's side about de minimis, that is in the interpretation, but it also says, hurricane evacuation routes, you don't allow de minimis -- MS. STUDENT-STIRLING: Right, that's true. MR. FEDER: -- and most of our system is a hurricane evacuation route, if we have to corne to that argument. CHAIRMAN COLETTA: So you're going to reference that. MR. FEDER: Just throwing something out. MS. STUDENT-STIRLING: Okay. MR. FEDER: So if you wanted the wording -- and again, you Page 61 January 25, 2007 can change this, because it was on the fly. But nonetheless, corning up where it says, which, and the word significantly, the first time would be deleted, which, and you'd add in "directly accesses" or is on the adjacent roadway segment with impacts, and then it goes on to -- the next page, A -- one, a deficient roadway segment or, two, significant -- significantly impacts the seasonal population based on reVIew. COMMISSIONER COYLE: I would accept that. CHAIRMAN COLETTA: Okay, great. Is there any other comments on that particular wording? (No response.) CHAIRMAN COLETTA: And I'll take that as a motion, Commissioner Coyle. COMMISSIONER COYLE: Yes. COMMISSIONER FIALA: Second. CHAIRMAN COLETTA: I've got a second from Commissioner Fiala. Any discussion? COMMISSIONER HENNING: Yes. CHAIRMAN COLETTA: Commissioner Henning? COMMISSIONER HENNING: When we say seasonal basis, in our transportation concurrency, we say that we're taking -- oh, boy. The -- it's not off season, but it's not summertime it's based upon. COMMISSIONER HALAS: The two highest months we don't count in our transportation. COMMISSIONER HENNING: Correct. Is that a conflict of our transportation currency? Thank you, Commissioner. COMMISSIONER HALAS: We're only picking up 10 months instead of 12 months, I think, as far as the traffic count. COMMISSIONER HENNING: Would that be a conflict in what we just amended? Page 62 January 25, 2007 MR. SCOTT: It's the 250th highest hour, but you're still essentially within the season time of the year. It might be January or April, but not February and March. COMMISSIONER HENNING: Thank you. CHAIRMAN COLETTA: No other comments? (N 0 response.) CHAIRMAN COLETTA: With that, I'm going to call the question. All those in favor, indicate by saying aye. COMMISSIONER COYLE: Aye. COMMISSIONER HALAS: Aye. CHAIRMAN COLETTA: Aye. COMMISSIONER FIALA: Aye. COMMISSIONER HENNING: Aye. CHAIRMAN COLETTA: Opposed? (No response.) CHAIRMAN COLETTA: The ayes have it, 5-0. Please move on. Thank you very much again, Commissioner Coyle. MR. SCHMIDT: All right. I believe that takes us through the section regarding population, and it also addresses those percentages, and then takes us through to the top of page 10. MR. COHEN: As a point of clarification, obviously we still have the definition of significant impact in there. I see the county attorney's on the phone. We've eliminated the reference to significant impact in that other section now, so my question lies, if we've eliminated that reference to significant impact, what's the impact on that section C right there where we define it and how we would address that particular section. CHAIRMAN COLETTA: Shouldn't we be using similar language like we just used? MR. COHEN: Marjorie, on page 8 with the modifications that were just made by board motion, my question came to paragraph C on Page 63 January 25, 2007 page 8. We took away the word significant impact, but now we have a definition of significant impact that doesn't really refer to anything. MS. STUDENT-STIRLING: Right. MR. COHEN: And what I'm asking there is, do we need to modify that section or remove that section because we no longer define significant impact? MS. STUDENT-STIRLING: Well, don't we need to define impact then? MR. COHEN: That would be my-- MS. STUDENT-STIRLING: My thought would be we need to define -- MR. COHEN: My thought process would be to define impact and tie it back into the language that was just passed on the part of the board. MS. STUDENT-STIRLING: Yeah. That's my feeling. CHAIRMAN COLETTA: Agree? COMMISSIONER COYLE: Well, in this particular situation, we're not talking about a failing system. There is a difference between an impact on a failing system and a determination as to whether or not there is a significant impact. My only distinction was that when something is failing, any impact is significant. When it's not failing, it's not necessary to apply that same guideline. MR. COHEN: The way that section C does is it modifies -- it modifies section B before that, and that's why I raised that concern. COMMISSIONER COYLE: Okay. Well, whatever you need to do to make it consistent would be good, I guess. MR. COHEN: Mr. Weeks will make the appropriate changes. MR. WEEKS: Commissioners, I think we simply need to eliminate any reference to transportation so it's clear that, C, where it defines significant impact, it's only applicable to other public facilities, but not transportation. Page 64 January 25, 2007 COMMISSIONER HALAS: How about water and -- CHAIRMAN COLETTA: Okay. I see Ms. Student nodding her head. COMMISSIONER COYLE: Now, just one request. It seems to me that we have a good reason for doing this, changing from 3 percent to 2 percent, particularly in transportation. Are we explaining to DCA why we're doing -- want to make that change so they don't just reject it out of hand? We're doing it in transportation because our previous standard of 3 percent was okay if it applied to a two-lane road. A 3 percent of the traffic handled by a two-lane road is a relatively small amount compared with a 3 percent of the traffic handled by a six -lane road. So we're trying to keep some control over the growth on those roads before considering it insignificant. So are we explaining that to DCA? MR. SCOTT: We haven't, but we will. And by way of an example is a perfect way of doing that. COMMISSIONER COYLE: Okay. That's -- I just don't want them to get the impression that we're being unreasonable and just trying to choke down everything. We're just trying to make it conform to our current road network system now. CHAIRMAN COLETTA: I'm sorry. Ms. Filson, do we have a speaker on this item? MS. FILSON: No, sir. CHAIRMAN COLETTA: Is there any other comments on this item? (No response.) CHAIRMAN COLETTA: We agree that we can move on? COMMISSIONER COYLE: Yep. CHAIRMAN COLETTA: Agree, okay. Yes. Please move on. We're going to be breaking at noon, by the way. COMMISSIONER HALAS: Getting hungry already? CHAIRMAN COLETTA: No, I just figured you need a break. Page 65 January 25, 2007 Worried about you. MR. SCHMIDT: All right then. Beginning at the bottom of page 10, if you will, and going right on to the top of 11. The next CIE policy also is a change regarding the title of schedule of capital improvements. You've touched on that. And the large letter E, county sanitary sewer systems listing there, also is a result of the restructuring of the sewer system districts. And you've seen that in the past. MR. WEEKS: Commissioners, I'd like to take this opportunity to just give one example. Where I mentioned earlier in the hearing that we have an errata sheet, some housecleaning changes, I just want to give you one example of what that would be. You see at the top of page 11 double underlined text that says, and figure PW -1.1 and later figure PW -2.1, that's an example of where we would need to remove that language as a housecleaning matter to correlate with the Planning Commission's recommendations back into section 24 not to make any changes, to leave that section as neutral. Again, so that's where there's a linkage. So ultimately, if you decide to make a change to section 24, then these map references would stay. If you concur with Planning Commission, they need to be removed. Again, I just wanted to give you an example of a housecleaning type change on those errata sheets. Thank you. CHAIRMAN COLETTA: Keep moving. MR. SCHMIDT: All right then. Thank you. I do not have text proposed for adoption again until the bottom of page 15. It simply is title for a CIE policy 5.1, which actually begins on the top of page 16 of your ORC Response Document. There a previous addition of the letter G regarding proportionate share agreements was added, and then a terminology change for transportation element policy 5.8 regarding, again, a change in terminology from proportionate share to congestion mitigation. Any questions on that? Page 66 January 25, 2007 CHAIRMAN COLETTA: We do have a speaker. MS. FILSON: Mr. Jarvi, is this an issue you want to speak on? CHAIRMAN COLETTA: Waive? Thank you. Please continue. MR. SCHMIDT: All right. Thank you. Then not another change proposed until page 19. So we're, again, back in the transportation element, policy 1.3. This is statements being made to levels of service on roadways and making a statement there with correct references to maps. The next page ends with -- CHAIRMAN COLETTA: I'm sorry. On that one there, we're also identifying the state roads that are deficient or referencing to that? MR. SCHMIDT: There are certain -- I'm sorry, go ahead. MR. SCOTT: Oh, yeah. This is -- the grants that we get through the trip program, I have to adopt their level of service on it. So even though I would go to level service E, for instance, on Collier, accepting that money, I have to go to level of service D standard on that link. There's always a catch. CHAIRMAN COLETTA: Thank you. MR. SCHMIDT: Then again on page 20 those are simple references to new figures. Then on 21, we have moved out of the CIE and the transportation element if you'd like to act on those; otherwise, I'll move on to the sanitary sewer subelement. CHAIRMAN COLETTA: Okay. We're -- no problems with where we are on this, anyone? (No response.) CHAIRMAN COLETTA: Yes, please move on. I'm sorry. You wish to speak? MR. JARVI: Yes, sir. CHAIRMAN COLETTA: Forgive me. I didn't mean to miss you. MR. JARVI: Commissioner, Reed Jarvi, for the record. Just on Page 67 January 25, 2007 the -- towards the bottom of page 19 is where Don was talking about, the double underline, it talks about the six lanes. And in the actual transportation element after this, it gives you a listing of the roads that are six-laned, and I might suggest and, kind of along with Commissioner Coyle's idea before, that that listing is -- rather than being in the Growth Management Plan, because it says this road is six lanes today -- but there are other roads that, three weeks from now, might be six lanes, and really, the way it reads, you would have to have a growth management or comprehensive plan change to bring that in to make it level of service E. I might suggest that if you say something to the fact that all six-lane roads shall be level of service E, so that gives you flexibility when it becomes a six-lane road, it's level of service E, that you don't have to change and add roads each time you do a growth management change. It seems just like -- easier to me, and then take out the listing of the roads, with the -- I think there's one or two exceptions like Vanderbilt Beach Road west of 41 and Golden Gate Parkway, the constrained roads. MR. SCOTT: Constrained roads. MR. JARVI: But that would seem to me a lot more flexibility from the staffs perspective, but I might suggest you look at doing that. Thank you. CHAIRMAN COLETTA: Thank you. MR. SCOTT: Yeah. We're okay with that. We wanted to do that previously, but I don't remember one of the changes -- well, that might be a substantial change to go and do it, but -- COMMISSIONER COYLE: Take it out. COMMISSIONER FIALA: That sounds good. Makes sense. CHAIRMAN COLETTA: Okay. Then we're all in agreement. MR. SCHMIDT: Then moving on to page 21, policy 1.2, you have some changes since transmittal with removal of figures, the 1.1 and 2.1. And, again, depending upon your decision later, that may Page 68 January 25, 2007 again change. And policy 1.4 is new, having to do with connections. 2.1 -- CHAIRMAN COLETTA: Commissioner Henning? COMMISSIONER HENNING: That was from before, Commissioner. CHAIRMAN COLETTA: Okay. Please continue. MR. SCHMIDT: All right. And the following page, top of 22, again, a repeat of that table regarding levels of service. On to 23 is the next time you see text proposed for adoption. Potable water subelement. Again, references to those figures is the only changes since last time you saw this. On 24, policy 1.3. Some language has been taken out from that policy and replaced with specific references to aquifers for water supply. COMMISSIONER COYLE: I do -- do have a question here. CHAIRMAN COLETTA: Please continue, Commissioner Coyle. COMMISSIONER COYLE: Does this limit our flexibility with respect to our sources for raw water, or is that pretty much governed by the permitting process anyway? We're specifying very clearly where we are drawing our raw water from. Is that necessary? MR. GRAMATGES: Commissioner, Phil Gramatges, public utilities engineering. Weare currently negotiating, in fact, with the South Florida Water Management District for additional wells in the surficial aquifer with freshwater. I don't believe that this limits us in our ability to negotiate with them and try to obtain sources other than these. COMMISSIONER COYLE: But it -- these are going to be identified in the Growth Management Plan. If you want to make a change to it, you've got to go through a Growth Management Plan amendment. Now, the question is, do we really want to go through that, and is it necessary to specify the exact location of the sources of Page 69 January 25, 2007 the raw water supply? I don't understand why we have to do that. MR. GRAMATGES: It was not necessary in the past to do that. I don't believe it should be necessary in the future to do that, unless CD -- MR. WEEKS: Commissioner, first of all, this level of specificity is in response to an objection from DCA where we're saying we're going to provide water but we're not saying where it's going to come from, and they were telling us we need to identify the source. But to address your concern, I think if we simply inserted the phrase after the word include, but not limited to. That makes it clear this is not the only source of water. COMMISSIONER COYLE: And could we go one step further, if it's appropriate. Tell me if this is appropriate. Just say, to any other sources of water permitted by the South Florida Water Management District or other permitting agencies. MR. WEEKS: I believe that's acceptable, yes, sir. COMMISSIONER COYLE: So that gives us lots of flexibility if we do it that way. I'm just trying to keep from going through a Growth Management Plan every time you want to drill a new well somewhere. MR. GRAMATGES: I understand, sir, yeah. COMMISSIONER COYLE: Okay. MR. WEEKS: Commissioner Coyle, I believe your last point is already addressed by the last sentence where it does refer to alternative sources. Alternative sources could certainly include other wellfields such as the surficial aquifer -- other sources such as surficial aquifers. I don't believe it will be necessary to add your second suggestion, but I would still -- COMMISSIONER COYLE: Alternative sources as they were defined in SB 360 implied sea water or other sources such as that alternative to freshwater, and so I don't want to get that too complicated here. Page 70 January 25, 2007 MR. WEEKS: Commissioner, we'll agree with your suggestion. COMMISSIONER COYLE: Okay, okay. MR. WEEKS: As permitted by the state. COMMISSIONER COYLE: All right. MR. WEEKS: Thank you. CHAIRMAN COLETTA: Commissioner Halas? COMMISSIONER HALAS: That was one of my concerns, because one of the areas that we are working with South Florida Water Management isn't even mentioned in here, and that's the Tamiami aquifer. It wasn't even mentioned in this. So I think that if you got the Hawthorne zone in here and any other upper and lower Hawthorne, then I think we need to put the Tamiami aquifer in there, too, because that's the freshwater area. MR. WEEKS: Commissioner, the specific source of these aquifers that are listed here is from the water master plan which this commission has approved. Certainly, you typically review these annually for an update, and, therefore, there may be a change in the aquifers, the sources that are identified within that separate document. I respectfully submit that by adding the language, not limited to and as permitted by a state agency, that gives broad latitude to cover additional sources. COMMISSIONER HALAS: And the language also that Commissioner Coy Ie has already suggested, okay? MR. WEEKS: Yes, sir. COMMISSIONER HALAS: But we want to make sure that we have access to all waters other than saltwater from the sea, which is going to be very, very expensive. MR. WEEKS : Yes, sir. COMMISSIONER HALAS: And I think we need to address the sweet water, which is the Tamiami aquifer. MR. WEEKS: And, again, I believe Commissioner Coyle's suggested changes will give us that broad latitude. Page 71 January 25, 2007 COMMISSIONER HALAS: Okay. MR. WEEKS: And, again, if there's a specificity in identifying these particular aquifers in that water master plan because the master plan does not presently include the Tamiami, then I would suggest it's not appropriate to place it in here. But, again, I believe Commissioner Coyle's language covers this. CHAIRMAN COLETTA: Okay. COMMISSIONER HALAS: Just so long as we've got the flexibility. MR. WEEKS: Yes, sir. COMMISSIONER HALAS: That's the biggest thing, without changing the Growth Management Plan all the time. CHAIRMAN COLETTA: Everyone agreed? MR. GRAMATGES: Understood, Commissioners. COMMISSIONER FIALA: Yes, absolutely. CHAIRMAN COLETTA: Okay. Please move on. MR. SCHMIDT: All right. Then on to page 25. Under the policy 1.5, there has been an added sentence at the end of that policy regarding watershed management plans. And I move next on to page 29, the next time you see text as proposed per adoption. Now we're into the hosing element. COMMISSIONER COYLE: I have some questions, Mr. Chairman, if you don't mind. CHAIRMAN COLETTA: Yes, could you please, Commissioner Coyle. COMMISSIONER COYLE: Let's go to 29, objective 1 relating to affordable housing. I'm troubled by the wording that says, the number of new affordable/workforce housing units shall increase by 1,000 units each year. We don't build these. Can we -- so we can't guarantee they're going to increase no matter how many we approve, so why can't we change this statement to say, the number of new affordable/workforce housing units approved by the Board of County Page 72 January 25, 2007 Commissioners shall increase by 1,000 units each year? Now, even then we're at the mercy of the people who build them because if they don't come in for 1,000 permits every year, we're not going to be able to approve 1,000 permits each year. So I don't know how we meet this goal. But certainly we at least should have it related to those we approve not that are built, because we can't guarantee that they'll be built even when we approve them. CHAIRMAN COLETTA: And if I may add, I absolutely love that, I'll tell you why. It puts the responsibility on us not to be refusing them when they come forward. COMMISSIONER COYLE: Well, and it also puts the responsibility on the people who get them approved to go ahead and build them, at least I hope it would be. CHAIRMAN COLETTA: Well, it doesn't spell that out. I'm sorry. Ms. Student -- hang on. Ms. Student, before we get into trouble talking. We might be talking -- MS. STUDENT-STIRLING: No. All I wanted to say -- and as to kind of just put something out there, and it's an observation really. But people can come in and build affordable units and get building permits that don't -- for units that may not ever be approved by the Board of County Commissioners. You all would approve plats and rezones and things like that. So I just want to make sure that the number was okay, taking that background information into account so that we don't get ourselves in a -- CHAIRMAN COLETTA: How about -- MS. STUDENT-STIRLING: -- problem with-- CHAIRMAN COLETTA: -- the word permitted? MS. STUDENT-STIRLING: -- the size of the number. COMMISSIONER COYLE: How about the word built and approved? The number of new affordable/workforce housing units built or approved. MS. STUDENT-STIRLING: I think you're still-- Page 73 January 25, 2007 COMMISSIONER COYLE: And/or approved. MS. STUDENT-STIRLING: I think and/or, even though it's vague and we don't -- I think and/or is better because it links it still back to board approval. COMMISSIONER COYLE: That's right. MS. STUDENT-STIRLING: So I think that that may be more helpful. COMMISSIONER COYLE: So ifit read, the number of new affordable/workforce housing units built and/or approved shall increase by 1,000 units each year, okay. CHAIRMAN COLETTA: Well, one problem with that. Now you can count it in two different years. You can count the year you approved it and then you count the year it's built. COMMISSIONER COYLE: That sounds good to me. CHAIRMAN COLETTA: Well, no. That's not going to work. Commissioner Halas, then Commissioner Henning. COMMISSIONER HALAS: Question I have on this, this workforce housing, this is going to be housing that's going to be put into the inventory for 15 years? MR. GIBLIN: Commissioners, Cormac Giblin, your housing and grants manager. I think I can answer that. To qualify as affordable/workforce housing, it would need to have the deed restrictions as you currently have in your LDC, meaning restricted for 15 years. COMMISSIONER HALAS: I have a question that's been bothering me, and maybe you can help me on this. Say this is a single-family unit, okay, it's in the workforce housing inventory. After two years the person that owns that house decides to sell it and he says that he bought it at, let's say, at $150,000. He turns around and he sells it for $350,000. That automatically takes it out of the workforce housing inventory. MR. GIBLIN: It would. The deed restriction is in effect 15 Page 74 January 25, 2007 years, and what it actually does is it caps the appreciation or the profit that that buyer is allowed to reap from that sale, so -- COMMISSIONER HALAS: And what is that current percentage? MR. GIBLIN: You're allowed to appreciate 5 percent per year. COMMISSIONER HALAS: Okay. MR. GIBLIN: And then anything above that that you may receive is split 50/50 with the county as a penalty for that unit no longer being affordable. COMMISSIONER HALAS: And then what's that money do? Does that -- since it's -- then the price of the home still remains at 400,000. MR. GIBLIN: The home then sells at 300,000, or whatever the market would bear for it. COMMISSIONER HALAS: So then it's taken out of the inventory . MR. GIBLIN: Fifty percent of the profit then comes to the county, and then it's our job to redistribute that money to try to replace it. COMMISSIONER HALAS: Okay. That's the question I couldn't figure out the whole puzzle, how that worked. Okay, thank you. CHAIRMAN COLETTA: Commissioner Henning. COMMISSIONER HENNING: Well, knowing that prices are dropping and there's plenty of affordable or gap houses on the market today, and I'm -- I don't know anything about anything below that, why should we even put a number in that, because we don't know what the market's going to do? To me, I'd just rather take out the number if we could. COMMISSIONER COYLE: I would, too. CHAIRMAN COLETTA: Oh, well, okay. We're going to probably have a difference of opinion here because I think that the Page 75 January 25, 2007 number is very important, that it helps to guide us as to what the objective is. To take it out just leaves us wide open and go back to the idea that there is no need for affordable housing in Collier County. The needs are being met. COMMISSIONER HENNING: Well, what about if the market provides it without the board, or government, I should say, getting involved in it? Do we still need to provide those? CHAIRMAN COLETTA: Well, what it is, we don't really provide anything. It's the outside sources. COMMISSIONER HENNING: No, I know that, but it's -- CHAIRMAN COLETTA: What it does-- COMMISSIONER HENNING: We don't. I'm not saying -- I'm saying if the market creates it without interference of government, why should government interfere of creating more when there's not a need? CHAIRMAN COLETTA: Well, if you don't think there's the need for affordable housing, then we should do just what you suggested. COMMISSIONER HENNING: I didn't say that. What I said is, I know that prices of housing is dropping. If the market provides it without the board or government interjection, do we really need to have anything in there? CHAIRMAN COLETTA: If I may, I'd like to call Cormac Giblin up. He'll explain, I'm sure, why the need for a specific number in there to be able to guide us. COMMISSIONER HENNING: Great. CHAIRMAN COLETTA: Mr. Giblin? MR. GIBLIN: Well, Marjorie, did you have your hand up? MS. STUDENT-STIRLING: I was just going to quote from rule 9J-5 which governs this document and says that the element, meaning the housing element, shall contain one or more specific objectives that -- for each goal statement which address and -- the creation and/or Page 76 January 25, 2007 preservation of affordable housing for all current and anticipated future residents of the jurisdiction, and then it goes on with some other language. So I guess I have a little bit of concern that if we had a specific number in there -- and the language does talk about specific -- and if we take it out, is DCA going to have a problem that we once were specific and we're less specific by taking it out than we -- than we were; whereas, if we never had a number in there to begin with, it might be in a little better spot, but that's all. COMMISSIONER HENNING: Well, it explained that we can't do that. But you also said if the market. If the market provides it? MS. STUDENT-STIRLING: No. The element -- the language of the regulation just says, the element shall contain one or more specific objectives -- COMMISSIONER HENNING: Right. MS. STUDENT -STIRLING: -- that address the creation and/or preservation of affordable housing for all current and anticipated future residents. And my concern is, we had a number in there, so we met "specific" once. So we take the number out, and as DCA -- and I don't know what they might say. But is DCA going to say you're not being specific now, whereas, if we never had a number to begin with -- you see what I'm saying? If we just had -- COMMISSIONER HENNING: I totally -- MS. STUDENT -STIRLING: -- some language that wasn't a number, they're not saying you're becoming less specific than you were. That's my concern. COMMISSIONER HENNING: I totally agree. We're beyond that. I just was trying to figure out what -- what it's saying is, you've got to monitor what's available. MS. STUDENT-STIRLING: Well, you have to have a -- you have to have a specific objective that addresses, and this is an objective, so --i Page 77 January 25, 2007 COMMISSIONER HENNING: Okay. MS. STUDENT-STIRLING: I don't know. Mr. Weeks might have some suggestions. MR. WEEKS: We share the same concern, that if we remove a numerical figure of some sort, whether it be an actual number of units, whether it be a percentage of the units approved or constructed in a given year, that DCA's response is going to be, this is no longer measurable. You just have some general -- COMMISSIONER HENNING: I'm beyond that. CHAIRMAN COLETTA: Okay. So you're not raising objections to the wording the way it is? COMMISSIONER HENNING: No. CHAIRMAN COLETTA: Okay, fine. Is there anything else about this? I don't agree with that language you tried to place in earlier, Commissioner Coyle. I think just the way it's written it meets the needs. COMMISSIONER COYLE: Well, look at it this way. This is our document. It places obligations on us. It says that the number of affordable housing units is going to increase by a 1,000 units each year. Let's suppose it doesn't. What are we going to do about it? Are we going to go out and contribute the funds to build 1,000 units? So that's the problem. It is a goal, but if we don't achieve the goal, we're subject to criticism, and we don't have -- we don't have the authority to build the houses. It depends upon the people who are approved to build them to build them. CHAIRMAN COLETTA: And I don't mean to counter your every point along the way, but this commission was the one that put the thousand into this not too long ago, but I want to hear from -- COMMISSIONER COYLE: It doesn't make any difference who put it in. CHAIRMAN COLETTA: -- from Cormac -- wait. Hold on now. I want to hear from Cormac some of the logic that's behind all this Page 78 January 25, 2007 and exactly where we were and where we're going. MR. GIBLIN: Thank you, Commissioner. CHAIRMAN COLETTA: You heard all the arguments. MR. GIBLIN : Yeah. Again, Cormac Giblin, your housing and grants manager. Again, I agree with the attorney's office and with comprehensive planning. A number is needed in there for specificity as required by the DCA. To answer Commissioner Henning's comment about, well, if the market itself is creating units that are affordable, why does government need to -- or can we count those, essentially, toward that thousand. And the answer is, yes, we could if the restrictions were placed on them, the appreciation caps, the deed restrictions, because I think otherwise, if we're counting those as serving an affordable housing need, the next time the market goes up, then we find ourselves in the same situation we were last year where there was -- they were affordable at one time, but now two years later they're not. They've double or tripled in value. So without those deed restrictions to ensure continued affordability, it's hard to really count them as being affordable. MS. STUDENT-STIRLING: And I think there's the next question to that, and that is, how do you get those deed restrictions put on the house, and is that by approval of the board or some other means or both? MR. GIBLIN: Well, that's a good question. I mean, if we get into trying to count every market rate sale -- or free market sale, that's the problem there. And trying to count every free market sale is that those are sold at -- they may be affordable today, but as we've seen from our recent history, they won't be affordable tomorrow or next year, would be a good bet. CHAIRMAN COLETTA: I'm going to stop you just a moment. Page 79 January 25, 2007 Commissioner Fiala has been more than patient. We skipped over her three or four different times, and I don't want to get her mad because she sits too close to me, so could you go next. COMMISSIONER FIALA: Oh, yeah, and I have a mean elbow. CHAIRMAN COLETTA: You do, you do. COMMISSIONER FIALA: When you were talking about how we count them and they have to stay affordable, now we have in here Ave Maria, and they -- I guess in order to meet their D RI commitments, they had to have affordable housing, and yet we later learned that many of those units were only going to be affordable for two years or three years, so that means they're not in the count anymore, or are they in the count now, or does though that allow them to still meet their DRI requirements? MR. GIBLIN: What you have on the screen right now is a listing of every unit approved by the Board of County Commissioners over the past five years that has some affordability restrictions. Ave Maria is probably the only one that is outside the norm of all the ones on that list in the fact that they were a DRI and they had the opportunity to individually negotiate the terms of their affordability with the board through their approval process. And they have a two-year restriction on moderate income for sale homes, a five-year restriction on low income for sale homes, and a 15-year restriction on very low income rentals and owner-occupied units. So they essentially wrote their own rules through negotiation with the county. COMMISSIONER FIALA: So now with those units that are good for two years, now, say they remain moderate income after that but their two-year restriction is now finished, are they then taken out of the market, and even though they're moderate income, they're still considered market rate or something? MR. GIBLIN: No, they would be -- after the expiration of the deed restriction, they would no longer be on the list, yes. Page 80 January 25, 2007 CHAIRMAN COLETTA: Okay. Commissioner Coyle? COMMISSIONER COYLE: Okay. This chart illustrates exactly what I'm saying. We have approved over the last five years almost 1,000 units per year, but look at what has been built. Barely 250 units per year. So if we include this standard -- and I don't mind including this standard of 1,000 per year, but we can't guarantee that they're going to be built. So we have to put some qualifier in here. If we've done -- made our best effort to get these things approved and the permits sit there and sit there and sit there and nobody builds them, we cannot meet the goal. So we have to have this statement phrased in a way that includes the amount approved, not necessarily built. Now, the other point is, it really doesn't make any difference whether the market satisfies the need outside of our affordable housing department. When the market creates an affordable home for somebody, somebody buys it, and they have a place to live. We might not be able to control the fact that it stays in the inventory but it is, in fact, providing someone an affordable place to live, and that serves a very useful purpose. It addresses the affordable housing requirement because we've got somebody in a house that they can afford. The only difference is, we don't get part of the appreciation price when it's sold. Even our own homes that we do control move out of the affordable category . We just get part of the appreciation price. That's the only difference. So we must take into consideration what the market is doing to adjust to this situation. It is, after all, a situation created by fair market -- free market practices. And if free market begins to adjust and wages go up, home prices come down, things get more affordable, why would we ignore that? We can't afford to ignore that. Okay? CHAIRMAN COLETTA: Okay. I see that. I'm going to -- I'm sorry. I'm going to ignore both of you for just a moment. Page 81 January 25, 2007 Mr. Giblin? MR. GIBLIN: Yes. CHAIRMAN COLETTA: The chart that's in front of us, obviously they have not built 1,000 units a year for quite some time. What's the explanation? Is it something where there's a catch-up time or -- MR. GIBLIN: I think that's exactly the explanation. I mean, none of the proj ects on the list have decided through their own decision not to move forward. They're all moving forward diligently moving through site plan review, water management review, Army Corps of Engineers. So they are in the land development process, it's just that they were approved by the board on a certain date, and it does take time for those rooftops and COs to appear. CHAIRMAN COLETTA: Yeah. Now, wouldn't it be more difficult to try to reach it if we said, 1,000 units had to be built a year? Now, that would dramatically increase the amount of activity we'd see. Of course, it takes some things out of our control. Anything we approve is not going to happen for a couple of years. Now we have a backlog that's probably going to start coming on in probably the next couple of years, is that what it is, this coming year? I have no idea. What can we expect? MR. GIBLIN: I think that you can always expect there to be a lag between your approval date and your CO date. But as -- this board has been very active in those approvals over the past five years, and so, we can expect those rooftops to start coming up shortly. CHAIRMAN COLETTA: I mean, I'd love to see 100 -- 1,000 built a year, but I think that's an impossibility. I mean, like you said, we can't build them. The only thing we can do is give approvals. We're limited to that particular mechanism. MR. GIBLIN: And Commissioners, if I may, the goal-- whatever the number is in this objective -- CHAIRMAN COLETTA: So you're right on your language, Page 82 January 25, 2007 approved by the BCC, okay. MR. GIBLIN: The number -- the reason for the number being in the objective is to tie the county and other planning principals that will help us meet that goal. Perhaps at this -- perhaps an absolute number is not what's needed in this paragraph, but maybe a percentage of everything that you do approve. If you want to use it as a guiding principle for moving forward, that may be another alternative. CHAIRMAN COLETTA: Well, I mean, this is kind of new. We're shooting in the dark. Do you have a percentage? MR. GIBLIN: Well, I'm just thinking, you have directed us to move forward on an inclusionary zoning ordinance. I think the DCA would agree that a percentage of everything approved would satisfy a specific need. CHAIRMAN COLETTA: Here's the problem. I'm supportive of the inclusionary zoning. There's no guarantee it's going to pass, and if it doesn't pass, then we're kind of binded if we start to refer to an ordinance that's in the future. I don't think we can get there this year. MR. COHEN: Commissioners? CHAIRMAN COLETTA: I think that Commissioner Coyle's suggestion of, approved the BCC, thousand units, gets us close -- I'm sorry . You either have to leave the room or you want to say something. Go ahead, Ms. Student. MS. STUDENT-STIRLING: I beg your pardon. I left the room because there was an ordinance that had to be -- MS. FILSON: Because you held your hand up. MS. STUDENT-STIRLING: Oh, I'm sorry. But I don't want to bootstrap you all into a specific number where we decide how many units of these things we're going to approve at a duly advertised public hearing taking into account the criteria for rezones as a general rule. So my concern is, if there's something, for some reason, that Page 83 January 25, 2007 shouldn't be approved and we get into litigation and someone said, oh, you didn't meet the essential requirements of law, because right here in your compo plan it says, the board shall approve 1,000 units, and on December 22nd you had a hearing and we had 899 units approved and we brought in a petition for 115 and you turned it down because of a transportation concurrency issue, so you violated your comprehensive plan. That's the only thing I'm trying to protect you all from. COMMISSIONER COYLE: Can I try to solve this problem? CHAIRMAN COLETTA: You can. I don't know if I'm going to like it. COMMISSIONER COYLE: Okay. This is an objective. This should not be interpreted as an absolute ironclad goal, but why don't we just say that the Board of County Commissioners will approve at least 15 percent of all of the permits, the residential permits in Collier County, 15 percent of those will be affordable housing. CHAIRMAN COLETTA: Done. COMMISSIONER HENNING: What's your rational nexus? CHAIRMAN COLETTA: Don't need one. COMMISSIONER COYLE: Don't need one. We've pretty much established that that is the guideline to be used in Ave Maria and the rural villages. COMMISSIONER HENNING: Okay. CHAIRMAN COLETTA: I love this guy. COMMISSIONER COYLE: And so we say okay -- I mean, we can do that because we can say, it's our obligation under the Growth Management Plan to have at least 15 percent of all new residential housing -- CHAIRMAN COLETTA: Yes, yes, yes. COMMISSIONER COYLE: -- to be affordable housing, and so every development that comes in here is going to have to recognize that Growth Management Plan objective, and so we're going to have to make our decisions accordingly. Page 84 January 25, 2007 CHAIRMAN COLETTA: Commissioner Fiala. COMMISSIONER FIALA: Will, they have to stay affordable housing for 15 years, or do we -- would they be considered affordable if we lose them? COMMISSIONER COYLE: I think we should have them controlled under the guidelines of our affordable housing department, yeah. CHAIRMAN COLETTA: Commissioner Henning? COMMISSIONER HENNING: Yeah. I have a problem with government saying that it needs to be affordable. We don't control the market in the slide, the up or the down. Why should we -- why should we do this for anybody else? But-- CHAIRMAN COLETTA: Before you go, before you go. COMMISSIONER HENNING: But at applications it might change, I don't know. But just saying that it needs to be affordable housing for a period of time, or forever, is just really bothersome to me. CHAIRMAN COLETTA: I don't think that was part of it yet. I think we're at 15 percent. COMMISSIONER HENNING: Well, yeah. And maybe I don't understand it, because Mr. Giblin says we can't count what's on the free market. COMMISSIONER COYLE: Well, I think we could and should COMMISSIONER HENNING: Yeah. COMMISSIONER COYLE: -- but you see -- I agree with you, I don't think the government should be in the process of rent or sale price control of housing. That's not our job. But you see, if every year 15 percent of the housing is being put into the affordable housing category, even if some of it is going out of the affordable housing category from the previous couple of years, we're bringing more in. And what's happening probably is the people Page 85 January 25, 2007 who bought an affordable house under this program two or three or four years ago are selling now because they want to upgrade, or maybe they're just leaving the county. So we are creating a supply. So I think that we're doing a good thing whether it's in our affordable housing inventory or not. COMMISSIONER HENNING: Okay. COMMISSIONER COYLE: And if we could have the flexibility to deal with that at the time of the petition, that would be good, but at least having the 15 percent requirement on approvals would get us started in that. CHAIRMAN COLETTA: And here's -- COMMISSIONER FIALA: The private sector is building it. COMMISSIONER COYLE: Yes. CHAIRMAN COLETTA: Oh, we don't build it. But the 15 percent -- here's the beauty of the whole thing. We're going to have off years where they're not going to build next to anything. If we've got a number in there of 1,000, and suppose it's a dead year and they only build 1,000 houses out there, we're in big trouble. If we've got 15 percent, if they build 1,000, we see 150 affordable houses, and proportionate to the market. It's almost foolproof. But Mr. Weeks has something to tell us that's going to probably dash us to the rocks. MR. WEEKS: Thank you, Commissioner. I was on the verge of standing and screaming. CHAIRMAN COLETTA: It works. Stand on the table, you'll get our attention. MR. WEEKS: But I don't want to be rude. Commissioners, a few comments, and then some specific suggested language. First of all, in raising their objection, DCA has told us that we should look at the Shimberg study or some other recognized authority regarding affordable housing needs. We have prepared information based upon the Shimberg study Page 86 January 25, 2007 that shows the demand for Collier County based upon our population projections, and that's where those things combined come up with that rough figure of 1,000 dwelling units per year. The staff had, amongst ourselves, discussed using a percentage, but we shied away from that in part because we were concerned about the direct connection between the number of units to be built by percentage versus the population projections. Because the population projections are adjusted every year, but they are fixed. Here's what we expect the population in the future to be, here's what the number of dwelling units, based on that population, would be, as opposed to the number of permits that we're actually approving, or number of units we're actually approving in Collier County. So there's -- staff has a concern about going to a percentage. We had discussed that, but we respectfully think that that's not a way to go. Finally, you would not want to constrain yourselves to just those units that have been approved by this board, because you do have some units that don't require your approval. Habitat for Humanity may already have a property. They just need building permits. So if we keep the language broad in that approval, we think we'll cover it. I would respectfully suggest we insert the phrase, approved to be built. That's every unit approved, whether it's a building permit, whether it's a rezone action by this board or, if there is such as thing, anything in between. CHAIRMAN COLETTA: So percentage. I think Marjorie just got through telling us that we could use percentage. Didn't you, Ms. Student? MS. STUDENT-STIRLING: Yeah. I think that's okay to use a percentage. it's -- you know, on the fly like this, trying to think of all the ramifications -- CHAIRMAN COLETTA: Okay. I'll tell you what, let's do this. We're going to break for lunch. You go figure it out, come back here Page 87 January 25, 2007 and give us a definition. I like the 15 percent. Commissioner Coyle's got a wonderful idea, and I think it's got enough flow to it. I really don't care for the number being solid. I think the thousand is misleading as anything. And I do agree with you about, that have been approved to be built, and then that covers everything. But if you don't have the real answers, go talk to all the experts, and when we come back, we'll talk about it. MS. STUDENT-STIRLING: Ifwe use a percentage and use that same language, 15 percent, rather than make -- I'll have to talk to David about the ramifications at lunch, but -- CHAIRMAN COLETTA: That's okay. That's why we're going to adjourn for lunch right now. MS. STUDENT-STIRLING: -- I think I'm okay with that. CHAIRMAN COLETTA: We're going to be gone for one hour, one hour and 10 minutes. COMMISSIONER COYLE: Just one final comment. CHAIRMAN COLETTA: I take it back. It's only going to be one hour, and I'm going to keep taking five minutes off every time you COMMISSIONER COYLE: This will just be quick. When you're doing your deliberating, keep in mind what could happen if you use a specific number, is we could get into our last meeting in December, we haven't met our goal, somebody comes in with an affordable housing unit in Riviera Golf Estates and says, we want 1,000 units in here, what are we going to do? CHAIRMAN COLETTA: You'll refuse them. COMMISSIONER COYLE: Well, if you did, you're in violation of your Growth Management Plan, so that's why you don't use numbers. CHAIRMAN COLETTA: We've been many times. MS. STUDENT -STIRLING: I just want to make sure that those Page 88 January 25, 2007 numbers are supported by data and analysis, because under the law they have to be, and what the ramifications are. CHAIRMAN COLETTA: One o'clock. (A luncheon recess was had.) CHAIRMAN COLETTA: Please take your seats. You're two minutes late. I'm going to take it off your break. MR. COHEN: Commissioners, you've got a live mike. COMMISSIONER FIALA: We were here and working. CHAIRMAN COLETTA: Okay. When we broke for lunch there, we were in deep discussion about the percentage versus the number. The commission seems to be leaning towards a percentage, meanwhile Ms. Student was going to do in-depth research, and she's referring to someone else. Who? Okay. Go ahead, Mr. Weeks. MR. WEEKS: Commissioners, our number one recommendation to you is simply to insert the phrase, approved to be built. We understand you don't like that, but that's our primary recommendation. CHAIRMAN COLETTA: No, I don't have any problem with approved to be built, but we're looking for the percentage. COMMISSIONER HALAS: Or the number. MR. WEEKS: A secondary recommendation, in addition to that phrase -- well, the sentence will be structured differently. It would read as follows. And by the way, this is objective one in the housing element. Number of new affordable/workforce housing units shall increase by at least 15 percent of those units approved to be built each year but not less than 1,000 units, and then the sentence goes on, and -- oh, and excuse me, and including a phrase, that that would be an average over a five-year period so that we would not be locked into a single year matching those numbers. Any concern? CHAIRMAN COLETTA: Okay. I need some feedback from Page 89 January 25, 2007 my commISSIoners. Commissioner Coyle? COMMISSIONER COYLE: That latter change is certainly preferable to just having 1,000 units. I'm afraid we're going to get locked in one year and we'll have to approve it in order to meet the provisions of our Growth Management Plan. MR. WEEKS: Commissioners, we don't share that concern. We certainly understand that if we're locked into a figure, the potential is there that at the end of that calendar year, we find that no, we have not approved the number, whether it's a percent or a flat number. I think the real question comes in to, what's the downside? What's the result? Does somebody file a lawsuit against the county? Does somebody come and threaten you that you must approve my rezone or must approve a rezone that includes an additional number of units to reach -- to make up for the shortfall? And unless Margie tells you differently, I think there's not that legal challenge type of a concern. MS. STUDENT -STIRLING: It does state the -- it does not state the consequence. My only concern was the language that Commissioner Coyle had suggested about approved by the board, that somebody might try to use that in a certiorari case and the scenario that I envision, but I feel more comfortable with Dave Weeks' language. CHAIRMAN COLETTA: Okay. COMMISSIONER COYLE: Which one, the first language or the second language? CHAIRMAN COLETTA: Well, it's all one. COMMISSIONER COYLE: His first -- no, his first language was -- MS. STUDENT-STIRLING: I feel comfortable with either alternative that the board would select. CHAIRMAN COLETTA: Could you read them again? MR. WEEKS: Certainly. The first would only be -- well, the Page 90 January 25, 2007 number of new affordable housing units approved to be built shall increase by 1,000 units each year, continues on, unchanged after that. Merely inserting the phrase, approved to be built, which is all encompassing. That's not just rezone actions. That's building permits, it's the whole gamut of county approvals. Second option, the number of new affordable/workforce housing units shall increase by at least 15 percent of those units approved to be built each year on average over a five-year period, but not less than 1,000 units, continues on thereafter -- CHAIRMAN COLETTA: Well, I think Commissioner -- I'm sorry . COMMISSIONER FIALA: But not less than 1,000? MR. WEEKS: That's correct. Still maintaining that linkage to a minimum of 1,000. And again our concern is this, based on our population proj ections, as linked with the Shimberg study, a recognized authority on affordable housing, we are showing that the county needs, not actually 1,000, but it could be as low as 945 units, but no less than 945 units are going to be needed. That is what the data shows. That's what we'll be sending up to DCA. If we approve something less than that, we have a very strong concern that we're going to get a non-compliance finding. CHAIRMAN COLETTA: Question. On the -- how many houses were built last year? Just get an idea of what 15 percent would have been. MR. GIBLIN: Six thousand. MR. WEEKS: Well, less than that actually built, and that's the difference been approved versus CO. CHAIRMAN COLETTA: Approved, I'm sorry. Let's approach it right. How many houses -- not affordable. How many houses were approved to be built in Collier County last year, approximately? MR. GIBLIN: Cormac Giblin, your housing and grants manager, for the record. I believe it's around 6,000. Page 91 January 25, 2007 CHAIRMAN COLETTA: Okay. Then we'd be looking at -- 15 percent of that would be what, 700? MR. WEEKS: Nine hundred. CHAIRMAN COLETTA: Nine hundred. Okay. I see what you're doing. I can live with it. I'm not too sure if my other commISSIoners can. Commissioner Coyle? COMMISSIONER COYLE: I would -- I would be willing to go with the simpler one, which is to say 1,000, as long as it includes the phrase, approved to be built. CHAIRMAN COLETTA: Commissioner Fiala? COMMISSIONER FIALA: Yeah. But you said, based on the Shimberg, and that's why we need this. Now, the Shimberg is going to change all the time because, as we've determined this morning, every time something is sold or doesn't qualify because there was a two-year limitation, it drops off of that. So Shimberg, even though we have them here in our stock, Shimberg does not recognize it anymore; is that correct? MR. GIBLIN: The Shimberg Center primarily uses census data. It's updated -- well, it is updated once a year, but it uses as a base the last 10-year census. COMMISSIONER FIALA: But the figures we send them are only those that qualify according to the requirements, 15 years? MR. GIBLIN: No, ma'am. The Shimberg Center and the numbers that we're sending the state DCA are need numbers, they're demand numbers. The units that only qualify for a deed restriction of a certain number of years are supply numbers. So although the two are related, what -- the concern about leaving a number in here, or at least a minimum number in here, is that we have data supporting or approving that there is at least 945 units needed per year, and if we simply adopt just a percentage, 15 -- of 15 percentage (sic), it could end up that in a year we could end up maybe Page 92 January 25, 2007 only building 800 or 700 or 500, and thus not meeting the need that we have established. So the percentage followed by the floor number, or the at-least number, would satisfy both elements of the request. CHAIRMAN COLETTA: Go ahead, Commissioner. COMMISSIONER FIALA: Yeah. So with Ave Maria, for instance, and their units -- I don't know how many -- say 1,000 drop off now, so they're not submitted as affordable housing anymore even though the people are living in affordable housing, and so that makes the necessity to replace those 1,000 units; is that what I'm hearing you say? MR. GIBLIN: No, ma'am. Again, the demand numbers are not directly related to the supply numbers. The demand is adjusted annually by Shimberg. COMMISSIONER FIALA: How do they -- do they get our figures in order to adjust theirs? MR. GIBLIN: No, ma'am. COMMISSIONER FIALA: They don't use our figures at all? MR. GIBLIN: They use raw building permit data, they use raw income data, and they use the census as a -- as income and wage data. CHAIRMAN COLETTA: Cormac, my own personal preference -- and I'll tell you why -- is to have the 15 percent and the thousand in there, the reason being simple, is even though the 15 percent is less, it gives some sort of guidelines to all the PUDs that are coming forward to be able to look and see if, well, I guess they're expecting us to do 15 percent, you know. We're going to have to do it or somebody -- they're going to have to offset it. So if we get to that point and our inclusionary zoning effort does not work, at least we've got this to fall back on as some guidance to the developers that are out there. MR. GIBLIN: It would provide you with some built-in assurances right in your compo plan that that is the county's goal. And Page 93 January 25, 2007 of course, any -- any programs, be it density bonuses or inclusionary zoning or land trust, that the county adopts, it would be in support of that goal, that 15 percent of everything built qualify. CHAIRMAN COLETTA: And I'm going to try to move this along. I'm going to make a motion to approve that end of the recommendation where we include the 15 percent and the thousand in the same language. COMMISSIONER HALAS: Second. CHAIRMAN COLETTA: Okay. I got a motion by myself, Commissioner Coletta, a second by Commissioner Halas. Any other discussion on that, just on the motion? COMMISSIONER FIALA: Yeah. I want to hear what Commissioner Coyle was thinking about the number. COMMISSIONER COYLE: I'm okay with it, as long as you're going to average it over five years. It doesn't back us into a corner, so I'm okay with it. CHAIRMAN COLETTA: Thank you. Okay. All those -- any other discussion? (No response.) CHAIRMAN COLETTA: All those in favor, indicate by saying aye. COMMISSIONER COYLE: Aye. COMMISSIONER HALAS: Aye. CHAIRMAN COLETTA: Aye. COMMISSIONER FIALA: Aye. COMMISSIONER HENNING: Aye. CHAIRMAN COLETTA: Opposed? (No response.) CHAIRMAN COLETTA: The ayes have it, 5-0, and I thank you very much for that. MR. GIBLIN: Ms. Mosca will walk you through the rest of the elements, or is that it? Page 94 January 25, 2007 MS. MOSCA: That's it. MR. SCHMIDT: Or not. Once again, Corby Schmidt. Unless you've got other questions regarding obj ective one on page 29 -- COMMISSIONER FIALA: Yeah. MR. SCHMIDT: -- which leads into page 30. CHAIRMAN COLETTA: Yes, we do. Commissioner Fiala? COMMISSIONER FIALA: I just had one other. I notice that you added density by right to this. Does that -- my concern is, all of the extra density that is approved on all of the acreage aside from affordable housing. They're still getting -- like, for instance, we had the one that we talked about yesterday. There were, I don't know, 350 houses. The guy only had two units left, but now after the 350, he's going to get 600 extra units, which would then possibly make the road fail, which would then obliterate the whole thing. What I'm saying is, that density by right, it doesn't define how much there is. MS. MOSCA: Commissioners, for the record, Michelle Mosca with your comprehensive planning staff. The density by right provision is applicable only to the Immokalee urban area, and that's why the language has been changed to state, as applicable. COMMISSIONER FIALA: It doesn't say that here. It says Collier County. COMMISSIONER HALAS: Collier County. COMMISSIONER FIALA: And not only that, but if it was just added, does our commissioner for Immokalee agree with that? CHAIRMAN COLETTA: Well, at the time I did argue it. Remember we had it before the commission when we were talking about it. But we had people from Immokalee come and want it to be included. At the time I was opposed to it, but they were for it. I support the efforts of the community, so they do want it. COMMISSIONER HALAS: Okay. Then I'd put it in there, this Page 95 January 25, 2007 pertains to Immokalee area only. MR. GIBLIN: It was. And the density by right provisions are actually included in the Immokalee Area Master Plan, so that is where -- only where it is applicable at your direction at a previous meeting. COMMISSIONER FIALA: Shouldn't it state that in here? MR. WEEKS: Well, the phrase, "where applicable" is -- the second line from the bottom on page 29. CHAIRMAN COLETTA: I think the comfort level would be a lot stronger if we either refer to the Immokalee Master Plan or Immokalee just to be able to remove any doubts on the behalf of my commissioners. Can you do that? MR. WEEKS: We can insert a reference to the Immokalee Area Master Plan behind density by right, and then the density bonus provisions where applicable has a broader applicability, so we would leave -- yes, yes. CHAIRMAN COLETTA: I've got a feeling in about five years you're going to have a bunch of people before us wanting to change that. But for now, that's where it is. COMMISSIONER FIALA: Yeah, that's right. CHAIRMAN COLETTA: Okay. So we're all in agreement on that. Do we need to take a formal vote? COMMISSIONER COYLE: I'm okay. MR. SCHMIDT: Moving on then to policy 1.5. Completely restated, and you see how it reads. COMMISSIONER FIALA: I have another question. CHAIRMAN COLETTA: Yes. Go ahead, Commissioner Fiala. COMMISSIONER FIALA: Is there ever a way -- I see that you keep an inventory of all the approved affordable/workforce housing units, but as we've been discussing today, there are probably more. Is there ever a way for us to at least somehow have some kind of an inventory of those that have dropped off the approved list but yet are still considered, you know, that private developers build that, like Page 96 January 25, 2007 Ave Maria and so forth, so that we have a better accountability for all of these things? MR. GIBLIN: Commissioners, we can maintain the list of all those that are approved, and then they are taken off the list after they're affordability restrictions expire. If I understand your question, it's can they -- even though their affordability restrictions have expired, can they remain on the list if the occupant still qualifies income-wise or is the same occupant? COMMISSIONER FIALA: Well, you know, we just approved something recently where they didn't even ask for anything from us. They're building all affordable housing units. They didn't ask for anything from us. They didn't qualify. Can't remember the name of the place. We thought it was a wonderful thing. We approved it, but, now, that doesn't go on the list, and yet that's a nice affordable housing stock right there that is not counted. Do we have something so that we can refer to the fact that there are other things out there? MR. GIBLIN: Again, if-- COMMISSIONER FIALA: Do I make any sense? CHAIRMAN COLETTA: Well, you do, but I mean, it would be a very difficult process unless you had a way to license them and manage them. I don't know how you'd be able to do it. You can control new ones coming aboard. You know what they are and when they're being built. They've got to get permits, they've got to get their COs, so you know where you are. But something that's been around for 10 years, and if there's -- COMMISSIONER FIALA: Oh, I mean brand new ones, brand new ones like something we just approved. MR. GIBLIN: Commissioners, we do -- I think you may be referring to Summit Lakes that was recently approved by the board. COMMISSIONER FIALA: Yes, that's it, that's it. MR. GIBLIN: They had some that were officially recognized Page 97 January 25, 2007 through the density bonus and deed restrictions, and they had others that were volunteered. COMMISSIONER FIALA: Yes, that's what I'm talking about. MR. GIBLIN: They got no additional density for those. But nonetheless, those will have the restrictions. Now, if they don't have the restrictions on them, we can't count them. They could be affordable today and not affordable tomorrow, and that doesn't meet our definition of affordable housing. COMMISSIONER FIALA: Okay, okay. CHAIRMAN COLETTA: Okay. Any other questions on what's here? (No response.) CHAIRMAN COLETTA: Okay. Please continue. MR. SCHMIDT: Thank you. Objective 2 then, that follows on page 30. MR. WEEKS: Commissioners, I apologize for the interruption. I think we need to make a revision there at the top of page 30 to policy 1.5. As we've just modified objective 1 a few moments ago, we've made it clear that we were referring to the number of units approved, not developed; approved. CHAIRMAN COLETTA: I think we all agree with that. COMMISSIONER HALAS: Yes. MR. WEEKS: And policy 1.5 in the second line after the phrase "within the county," I believe we need to strike the words, to ensure the targeted number of units is developed annually, because our target is not to develop them. Back to the approval. So I would recommend that phrase be stricken. CHAIRMAN COLETTA: Agree? COMMISSIONER COYLE: Agree. CHAIRMAN COLETTA: Agreed. MR. WEEKS: Thank you. MR. SCHMIDT: By talking about another policy, objective 2 Page 98 January 25, 2007 has been addressed. That's where a number has changed from -- or have stayed the same, at 1,000. Policy 2.1 is a new policy. Unless there are questions -- and below that, a renumbering to allow for the insertion of that policy in the document. CHAIRMAN COLETTA: I'm sorry. I didn't mean to jump in front of you. But objective 2, wouldn't we need to include the same language we did before where it says, 1,000 dwelling units per year, to achieve a goal of 1,000 dwelling units per year. Does that -- that doesn't conflict with our earlier statement? MR. WEEKS: Thank you, Commissioner. We'll need to make some similar revision. CHAIRMAN COLETTA: Okay. MR. WEEKS: To make sure it's clear we're talking about approved units and the average and so forth. Thank you. CHAIRMAN COLETTA: Go ahead. MR. SCHMIDT: The next place you'll find text proposed for adoption is on page 32, and now we're at the recreation and open space element, and these are simply corrections where you see in provision C, 17 -- 179 and 270. There was an error in the print and that's simply been corrected, as well as the double struck through portions where, with new population methodologies, we no longer have reference to weighted average population figures. On the next page then, 33, moving now to the CCME. Objective 2.1, more than one pages (sic) worth of changes here, unless there are questions. CHAIRMAN COLETTA: Okay. Now we do have three speakers on this. MR. SCHMIDT: All right. MS. FILSON: Do you want me to call the speakers up now? I may be getting more. CHAIRMAN COLETTA: I guess we've got more than three. Page 99 January 25,2007 How many -- go ahead and -- COMMISSIONER FIALA: We must be getting into some good -- the big guns are stepping in now. CHAIRMAN COLETTA: We're getting into the good ones, yeah. Good stuff now. MS. FILSON: Okay. The first speaker is Bruce Anderson. Mr. Anderson will be followed by John Cowan. MR. ANDERSON: Good afternoon, Mr. Chairman, Commissioners. For the record, my name is Bruce Anderson from the law firm of Roetzel & Andress. I'm speaking on behalf of the Bonita Bay Group as well as myself. I've discussed some of these matters with Mr. Lorenz and have maybe reached some agreements with staff on wording changes. Perhaps you might want to call him up as I reference each one to see what he proposes is a -- to meet the concerns. The first one I wanted to point out was policy 1.1.4, to leave in the phrase that one of the goals of the county is to avoid unnecessary duplication of effort. That language was proposed to be removed, and I simply was urging that it be kept in because I think we all do want to avoid duplication of effort. COMMISSIONER HENNING: It's got to be in the CCME. You're talking about the CCME? MR. ANDERSON: Yes, I am, sir. COMMISSIONER HENNING: We'll have to go to that section. COMMISSIONER HENNING: One point what? MR. ANDERSON: 1.1.4. MR. WEEKS: Commissioners, that's on the visualizer, or if you choose, you need to go to the document behind the tab CCME. It appears on page 4. MR. ANDERSON: And I have -- I do want to submit a copy of -- a written copy of some of the comments that I made to the court Page 100 January 25, 2007 reporter to make those part of the record, please. COMMISSIONER HENNING: Mr. Chairman? CHAIRMAN COLETTA: Yes. COMMISSIONER HENNING: I don't want to duplicate government. I mean, if we -- if we choose to take over some of the duties of other government, that's great to have government do the same thing -- or for us to do the same thing the government does only means more government. CHAIRMAN COLETTA: It's a very good argument. I'll tell you what, can we hold that thought until we go through all the speakers? I think -- COMMISSIONER HENNING: Oh, I'm sorry. CHAIRMAN COLETTA: -- they're going to be in agreement with you, too. MR. ANDERSON: Okay. My next item, again, one that I discussed with Mr. Lorenz that I think that at least staff and I have reached an agreement on language on, is to keep in policy 6.1.1, paragraph 5, to continue specifically referencing nature trails and boardwalks as uses that are allowed in preserve areas and that would not be subj ect to the vague phrase, cause a loss of function to the preserve area, which is defined in the ORC Report as a reduction or change in vegetation, and almost by definition, by putting a boardwalk in or a nature trail, you're going to affect some vegetation. And we want to keep access available to preserve areas either for the public or the residents of a particular development and also for the public access to the Conservation Collier properties. Next item is policy 6.1.1, paragraph 7. That is proposed to be deleted, I guess because you have some other Growth Management Plan amendments that provide for off-site mitigation if you can't meet native vegetation preserve requirements, but those won't be implemented for another year, and in the meantime, you don't have anything that allows any kind of mitigation, whether it be landscaping Page 101 January 25, 2007 or anything else, for vegetation that you can't keep and still be able to do the development activity. And this simply keeps in the comprehensive plan what has been there until and unless you adopt implementing land development regulations for the new stuff. CHAIRMAN COLETTA: I'm going to have to ask you to stay there for a little while because we've definitely got a lot to cover. I thought you were going to be concentrating on one issue, but you're concentrating on quite a few. MR. ANDERSON: Well, I'll do it any way you want. CHAIRMAN COLETTA: I think Commissioner Henning may have been right to go ahead and interrupt you when you were going forward with the first issue. MR. ANDERSON: Okay. CHAIRMAN COLETTA: Possibly we should go back to that and see if there's any questions from the commission, and then go through these things piece by piece. And I made the assumption you just had one. So why don't you take us back to that one. MR. ANDERSON: Okay. Back -- avoid unnecessary duplication of effort. You might ask staff on each one if they -- what their response is because some of these -- CHAIRMAN COLETTA: Well, before I ask staff, I'm going to let Commissioner Henning finish his thoughts that he had earlier. MR. ANDERSON: Okay. COMMISSIONER HENNING: I did. CHAIRMAN COLETTA: Fine. COMMISSIONER HENNING: I just brought out a-- CHAIRMAN COLETTA: Well, you made a generalized statement, and I thought you were going to come up with a suggestion what not to do. COMMISSIONER HENNING: Yeah, not to duplicate government and grow local government. CHAIRMAN COLETTA: That's the statement you'd like to Page 102 January 25, 2007 have appear in there? COMMISSIONER HENNING: No. CHAIRMAN COLETTA: Okay. COMMISSIONER HENNING: I want that statement that was removed put back in. CHAIRMAN COLETTA: Would staff please comment on that, and then we'll get the -- we'll tally the other commissioners. MR. WEEKS: Commissioners, what we were trying to do to this particular policy is clean up the language. I know as you -- as Mr. Anderson's reading it, it seems to suggest that -- his reading of it, not mine, but his reading of it seems to suggest the county is open to duplication of efforts. I'd respectfully point out to you, on the visualizer is the existing goal 13 and subsequent objective and policies in the Conservation and Coastal Management Element, this very same element, which is devoted specifically to this topic of duplication of efforts. So I would submit to you, by removing it from the policy that Mr. Anderson has raised in no way is encouraging, suggesting or otherwise allowing for the duplication of effort. I believe this goal 13 and policy -- subsequent policies adequately addresses the concern for duplication of effort. Specifically I would refer you to policy 13.1.3, the last one, and what it states there. Prior to adopting any new regulations and implementing this element, the following guidelines shall be met. it fulfills an important need not presently adequately met by existing regional, state or federal regulations; B, the regulation can be effectively and efficiently administered by authorized increases to county staff and C, the cost to the county of implementing the regulation shall have been identified and considered. Again, I respectfully submit that that adequately covers this Issue. MR. ANDERSON: I believe it does, too. Page 103 January 25, 2007 CHAIRMAN COLETTA: Then that gives us the option to be able to play into it to whatever degree we want to. MR. ANDERSON: As long as there remains a statement about avoiding unnecessary duplication. That was just my main certain. MR. WEEKS: Certainly. CHAIRMAN COLETTA: Okay. Do you think this answers your concern? MR. ANDERSON: Yes, sir. MR. WEEKS: And for -- to make sure we're clear, Commissioners, there are no proposed changes to this goal 13 and policies. That will remain as is. CHAIRMAN COLETTA: Then if there's no other comment on that, we'll move to the next one of Mr. Bruce Anderson's concerns. MR. ANDERSON: About the allowance, continued allowance, specifically of nature trails and boardwalks in preserve areas. That language was proposed to be taken out and I'd like it left in so that there's explicit recognition that nature trails and boardwalks are allowed for access and that they not be required to prove that there's no reduction or change in vegetation as a result of the boardwalk. That's a new test, and almost certainly there will be a change in vegetation when you put a boardwalk in. CHAIRMAN COLETTA: Well, I understand that. And I'll tell you -- one of the things, you know, I'm very pro-access, and that's one of the things when it comes to Collier Conservation lands. I expect that there'll be a reasonable measure of public access. Staff -- or let's go to the staff and see what your response is to this. MR. LORENZ: Yes. We can certainly -- the point of the exercise initially was to try to take out some of the details, and the details would have been accommodated in the Land Development Code regulations. And certainly we would have -- we would have -- definitely have proposed boardwalks and nature trails in the Land Page 104 January 25, 2007 Development Code regulations. But in order to make sure that this is a priority for the count -- for the board if you so desire it, the suggestion would be -- and I guess I'm working off of page 39 of the ORC Report. The very top of the page, the last -- at the end of the last response of 5A, if we -- if we added the sentence that I have up on the screen there, I think that that would --that would cover it provide for that -- that emphasis. CHAIRMAN COLETTA: Mr. Anderson? MR. ANDERSON: Yes, sir. CHAIRMAN COLETTA: Does that-- MR. ANDERSON: Yes, sir, that addresses-- CHAIRMAN COLETTA: That protects the public's interest? MR. ANDERSON: Yes, sir. CHAIRMAN COLETTA: Fine. Your next item that you have? MR. ANDERSON: My next item is policy 6.1.1, paragraph 7. It's language that's proposed to be deleted about allowing mitigation in the form of increased landscape requirements, and I don't think the language should be struck. It should be left in there. CHAIRMAN COLETTA: Because? MR. ANDERSON: Well, because otherwise then there will be nothing left for the next year, that if someone does have a problem with accommodating native vegetation preservation and the development activity, there's no mitigation available to them whether on site or off site, and that needs to be left in there at least for the next year until implementing land development regulations are adopted for the new language that staff has proposed. CHAIRMAN COLETTA: Commissioner Henning? COMMISSIONER HENNING: No, that's okay. CHAIRMAN COLETTA: Okay. Staff? MR. LORENZ: Yes. That would be appropriate. We could put in some language that would say until the -- until such and such a policy has been implemented, the existing policy would remain in Page 105 January 25, 2007 effect. MR. ANDERSON: Next item is policy 2.2. -- CHAIRMAN COLETTA: I'm sorry. Everybody's in agreement with that? COMMISSIONER HALAS: Yes. CHAIRMAN COLETTA: Okay. I didn't hear any moans or groans. Go ahead, Mr. Anderson. MR. ANDERSON: 2.2.5, that would require that every three years all stormwater management systems need to be inspected and certified by a licensed engineer. My question is simply, has there been any determination or consideration of how much this added cost will be to property owners' associations who will bear the brunt of this? CHAIRMAN COLETTA: We'll refer right back to staff on that. MR. WILEY: For the record, Robert Wiley with your engineering services department. What he's asking is, we have looked at it from the standpoint of, overall, we cannot tell anyone what the cost will be. The older the development, the various sizes, the state of lack of maintenance, all those will be factored in for when a development goes to contract with an engineer to have the facility inspected. That inspection may, in turn, result in a mandatory massive maintenance effort to restore it back to the design condition. There's no way we can put a price on it. We have told you in a workshop that we presented to you earlier last year that this is a very serious need we have because there is no verification that the systems are ever being maintained right now. So in your workshop you gave the nod of approval you wanted us to come to you in ordinance. Well, this is ahead of our ordinance, but it's along the same track. We don't have a price for it. The first year will likely be expensive for those that are in very bad states of maintenance. Subsequent years will be much, much cheaper. Page 106 January 25, 2007 CHAIRMAN COLETTA: Okay. MR. WILEY: But the need is there, and we do not want to have any citizen from a homeowners' association stand up and say, I looked at it, I think it's okay. We want the certification of an engineer who's qualified to evaluate it, and his license is on the line should he choose to be inaccurate. CHAIRMAN COLETTA: And this would be health, safety and welfare? MR. WILEY: You bet. CHAIRMAN COLETTA: Okay. Does anyone want to challenge that? (No response.) CHAIRMAN COLETTA: Mr. Anderson, what else you got? MR. ANDERSON: My last one on the conservation and coastal management element is policy 6.1.1(9)(f). CHAIRMAN COLETTA: Right-of-way acquisition? MR. ANDERSON: Yes, sir. That is new language that is proposed that would require a monetary payment, land donation or other compensation for loss of required native vegetation for right-of-way acquisitions. This policy is going to discourage private property owners from cooperating with the county and giving or selling right-of-way, and it was -- it will increase the cost to the county for road building, as if the cost of materials and land isn't high enough already. CHAIRMAN COLETTA: So if I read this right, what it's saying is that if we're going to acquire the right-of-way, if it doesn't have vegetation on it, we can basically deduct that from the value of the right-of-way or something of that nature? MR. ANDERSON: Well, if you are buying right-of-way that has required native vegetation on it, then -- from a property owner, besides the cost of the land, there's going to be a kicker in there for them to have to set aside some other area in their development and maybe Page 107 January 25, 2007 revegetate it in order to meet this requirement. CHAIRMAN COLETTA: So is there any requirement in here for us to pay for that mitigation that they have to do? MR. ANDERSON: I think it's implied. CHAIRMAN COLETTA: I mean the county would have to pay? MR. ANDERSON: Yes, sir, yes, sir. CHAIRMAN COLETTA: So where's the shortfall, if the county has to pick up the cost of doing it? MR. ANDERSON: Well, my point is, do you want to drive up cost of road building any more with this policy, that's all. That's just a policy question. I didn't want it to -- CHAIRMAN COLETTA: No, and I appreciate it. MR. ANDERSON: -- to slip through unnoticed. CHAIRMAN COLETTA: Your comments are most welcome. Commissioner Henning? COMMISSIONER HENNING: Well, this policy might have got in here because the Florida Department of Transportation acquired a piece of land adjacent to 1-75 that was a preserve that was sold by the developer but just prior to turning over the property, and the Board of Commissioners in the PUD, IUO, or whatever you call it, said hey, you know, that's it. We need to give it up. I would imagine it's tied to that. I think that's -- when we talk about public benefit, having to acquire right-of-way, it's an overall general public benefit, and we shouldn't burden the taxpayers because of that public benefit. So I don't like that language in there myself, and I can't support it. CHAIRMAN COLETTA: Okay. I need some more comments. Staff? MR. LORENZ: Yeah. Let's me provide some context and some additional information, and then I'll have Don Scott present to you. On page 39, if you go back up, the intent of this policy -- currently in the -- in the Growth Management Plan within the urban Page 108 January 25, 2007 area, we do not have the ability to compensate or provide for preserves off site. So the intent of this policy, paren 9, was to provide for that degree of flexibility. And the third line down in there would allow us to process whereby a property owner may submit a petition requesting that all or a portion of the native vegetation preservation retention be -- requirement be satisfied by, then it lists monetary payment or other mechanisms. Then the policy goes on and says that these criteria would be based upon the following provisions. And of course, item F is right-of-way acquisition because there are circumstances when -- if there is a preserve requirement that has that -- has been met by the developer, we go in for a right-of-way acquisition. The policy decision ultimately for the board, of course, is to determine as to whether or not that preserve needs to be made up either on site someplace or off site through some mechanism, so that's the intent of this policy. Now, the -- working with transportation -- and Don Scott is here, we -- there is a recommendation, and we concur, that from -- this particular point, F be limited to simply say right-of-way acquisitions, period, but that still doesn't get at your -- the overall policy as to whether or not you want that preserve area that's being acquired in the right-of-way to have to be made up somehow. That's still the policy decision for the board. CHAIRMAN COLETTA: Commissions Henning? COMMISSIONER HENNING: If government is acquiring it, I mean, it could be Mr. DeLony or anybody that needs that right-of-way for whatever public good it is. Boy, we sure are driving up costs more and more in Collier County, and some things you just got to give up. CHAIRMAN COLETTA: Did you want to make a motion of some type? COMMISSIONER HENNING: Well, I'm going to make a Page 109 January 25, 2007 motion to remove that language, that government needs to -- CHAIRMAN COLETTA: The entirety? COMMISSIONER HENNING: Yeah. Unless there's any other recommendations by our staff. MR. SCOTT: What we're trying -- Don Scott, transportation planning. What we're trying to get to -- and you're touching on FDOT's problem of what they're doing, but also we've had some problems in the past, where we're trying to work with the development community to donate certain right-of-way. Some of it might be preserve, some of it might be the other, and mitigate off site if we can. Some -- give us some option to do it instead of no, versus having -- which pushes us in the box of condemning the whole site and paying a lot more money. COMMISSIONER HENNING: What's wrong with just saying-- MR. ANDERSON: Exempt. COMMISSIONER HENNING: Yeah, exempt. MR. SCHMITT: For the record, Joe Schmitt. We could do that. Ifwe change this to say, if there's a right-of-way acquisition, for health, safety, welfare, or transportation needs, that basically there is no need to even make up the loss in vegetation. What we were trying to do here was to at least give Don the tool to say, well, if I have to take it, I'll make it up elsewhere, because right now there is no tool. We basically say, we're stuck. So this was written to at least allow for an option to say make it up off site. But if -- Commissioner, I have no problem, if you want to write this and basically say, if it's right-of-way acquisition, for health, safety, welfare, which certainly would be in the case of widening a highway, that through the take action, that it certainly doesn't have to be made up, and we can write it that way. COMMISSIONER HENNING: Because of government action. And it's getting so costly here in Collier County, and we need to do whatever we can within reason to be reasonable. Page 110 January 25,2007 MR. SCHMITT: Yeah. COMMISSIONER HENNING: I would say, you know, government action is exempt for having to make up for the requirements. MR. SCHMITT: I just wanted to leave something in there to give Don the tools. And we'll come up with the language to basically say, because of -- if there's a take, similar to what happened with that one PUD -- which we are coming back for you all to approve a resolution to basically legitimize that, and you'll probably see that in the next few weeks. COMMISSIONER HENNING: Thank you. MR. SCHMITT: But this -- we would do the same thing. We would have to take -- if you have to take the preserve -- MR. ANDERSON: Or if it's a voluntary conveyance, not just a MR. SCHMITT: Yeah, yeah. So that way we could just say that you met -- you met the requirement now that the state or the county has to take that preserve or that -- what was once deemed preserve and now would not have to be made up, and we'll rewrite it that way. CHAIRMAN COLETTA: Are you there, Commissioner Henning? MR. SCHMITT: If you all direct us to. COMMISSIONER HENNING: Yeah. I mean, that's what I would like to see. CHAIRMAN COLETTA: Fine. Does anyone challenge that? COMMISSIONER FIALA: Just -- and that's okay with you, Don? MR. SCOTT: Yes. CHAIRMAN COLETTA: Thank you for that help, Commissioner Henning. MR. ANDERSON: Thank you. I have nothing further. CHAIRMAN COLETTA: And you were so helpful. We really Page 111 January 25, 2007 appreciate it. MS. FILSON: Next speaker is John Cowan. COMMISSIONER HENNING: I think Mr. Cowan's here on another issue. MR. SCHMITT: Section 24. CHAIRMAN COLETTA: Go ahead and call another speaker. MS. FILSON: Wayne Arnold. MR. ARNOLD: I'll waive. MS. FILSON: Rich Yovanovich. He'll be followed by Judy Hushon. MR. YOV ANOVICH: Good afternoon. Rich Y ovanovich on behalf of Collier Enterprises. Bruce covered most of it and you made the revisions we requested. But in policy 6.1.1 (5)(b) it talks about the receipt of treated stormwater into preserves, and the language as it currently reads, it says, as long as it does not result in any adverse impact to the naturally occurring native vegetation; and we think that is overly broad, and we would like that language to be replaced with language that says, does not result in the loss of the minimum required vegetation or cause harm in violation of state statutes to any listed species. So we'd like it to be tied to the regulatory bodies at the state level that deal with these issues and not have broad language that talks about -- does not result in any adverse impact, because what exactly does that mean? We know that state statutes make sure that listed species and wetlands are properly taken care of, and we'd like it to be tied to the state statutes versus something, you know, ambiguous and broad, such as that language. CHAIRMAN COLETTA: Staff? MR. LORENZ: Rich, could you go through that language again. MR. YOV ANOVICH: Sure. MR. LORENZ: I didn't catch it all. Page 112 January 25, 2007 MR. YOV ANOVICH: Your language, Mr. Lorenz, is -- it says that it does not result in any adverse impact to the naturally occurring native vegetation. MR. LORENZ: Right. MR. YOV ANOVICH: And we'd rather it say, does not result in loss to the minimum required vegetation or cause harm in violation of state statutes to any listed species present in the preserve. MR. LORENZ: I think that's -- at first blush, I think that covers what we're looking for. In other words, I mean, the way we would interpret that or apply it would be that we'd need to have some analysis to indicate -- MR. YOV ANOVICH: Correct. MR. LORENZ: -- that the vegetation is not being lost. CHAIRMAN COLETTA: What -- should we include the word federal in it, too, state and federal? Because, I mean, doesn't federal -- MR. LORENZ: I'm not sure that the federal agencies too much are involved in actual stormwater systems. But if we were to add that, I think that would -- it wouldn't hurt. MR. YOV ANOVICH: Okay. CHAIRMAN COLETTA: Comments? Commissioner Halas? COMMISSIONER HALAS: I'm not -- I'm not comfortable with that because I don't think there's any guidelines by the federal in regards to destruction of preserves of that nature, is there? MR. YOV ANOVICH: Sure. MR. LORENZ: Well, there would be -- if it would be a-- certainly -- well, if it's a wetland system, correct. If it's a wetland system and it's a wetland that the -- that's being permitted by the federal agencies, that system certainly would be governed by the federal rules. COMMISSIONER HALAS: But what happens if it's not permitted by any federal agencies? MR. LORENZ: At that point they would -- I wouldn't imagine Page 113 January 25, 2007 there would be any federal jurisdiction. COMMISSIONER HALAS: Okay. So then what rules that particular wetlands if it's owned by the state and not by the -- under the jurisdiction of the federal government? MR. LORENZ: Well, the state has its own definition of wetlands and the Feds have their own definition of wetlands, so there -- sometimes there's overlapping jurisdiction. COMMISSIONER HALAS: Okay. Does the -- what we have today, is it more stringent than what the requirements for the state and federal government are? MR. LORENZ: Well, what we have today is, I'm going to say, it's different. When we were proposing -- what we're proposing in our preserve -- preservation of native vegetation, we are not -- that is not a wetland protection objective. We defer to the federal and state agencies for identifying and determining what the appropriate protection and mitigative measures are for wetland systems. COMMISSIONER HALAS: Okay. MR. LORENZ: When we -- what we apply within our regulations here is the preservation of native vegetation according to the priorities that are outlined in the GMP in the code. And sometimes our preserve -- our preserve will match up with federal and state wetlands. Sometimes they -- sometimes they don't. So that's why I'm saying, it's different. It's not the same as. COMMISSIONER HALAS: Does staff -- I see there's some talking going on. MR. COHEN: Commissioner, I think we haven't seen-- COMMISSIONER HALAS: Clarification. MR. COHEN: -- this language yet in preliminary discussion with our staff. We'd like to take a look at it maybe during a break and then come back with you and tell you whether or not we concur with it or not. CHAIRMAN COLETTA: Okay. That sounds fair. Page 114 January 25, 2007 What else you got? MR. YOV ANOVICH: Jumping back to objective 2.1, which I think is page 33 in the staff response to the ORC. Actually it's page 24. And it's subparagraph C. We've had Dominick Amico from Agnoli, Barber & Brundage look at this provision, and his comments were, he doesn't -- he doesn't see -- I won't read you straight what he said, but he says it doesn't make any engineering sense to include this provision because essentially these are -- these are stormwaters that are coming as a result of high winds related to storms, and there's really no need -- these are periodic events. And to require that we evaluate and compensate for floodplain storage on these periodic events really makes no sense. I think staff said that all we're really doing is evaluating. We're not going to do any storage for it. So we're just evaluating and we're not going to store for it, then why do we have the provision in there? So our concern is, if you are -- if this really is another way to require that we provide storage for these periodic storms, I think there could be quite an impact on, you know, proposed projects and unnecessary impacts of proposed projects. CHAIRMAN COLETTA: Staff, I guess? I don't see any light on here. MR. WILEY: For the record, Robert Wiley, with your engineering services department. What we're talking about is the FEMA definition of a floodplain. And under the current flood maps that we have, they are strictly surge related. So they're all along the coastline when you look at AE and VE. We looked at an A flood zone. Those are the ones that are currently located up north of, west of, and east of Immokalee and particularly along State Route 29. So we have areas of floodplain identified on the flood maps for which there is no base flood elevation. Those are approximate A Page 115 January 25, 2007 zones. Within your coastal floodplain, where your AE and VE zones are currently identified, what the speaker's referencing -- and I've talked to Dominic is the one. I've talked to him about it too -- there is the thought that, well, it's saltwater, it's coming in, so what do we care if we fill it and we block it off? Well, that is one way to look at it if you consider at the peak of the 1 percent annual chance storm event. But you could look at that same, which is our current flood zone along the coastline, those are also areas that when we have, not the surge come in from a storm, but the rain that accompanies such a storm, it likewise gets flooded. And if you begin to inundate all of that area, you've got a place for a temporary storage while it works its way out into the tidal regions. But if you don't provide compensating storage for it, you let it fill up, what you've done is you've displaced that volume of water to be held further inland. It cannot even get out in a reasonable manner at the same rate of which it would if it had the current storage area. So we've put this in as an interim until we can come up with a good resolution through the development of the watershed management plans, and also at the same time we're trying to wrap up our effort on the FEMA flood maps which involve tidal surge as well as rainfall induced flooding. We put this language in here. And if you'll look at it, it says that it's -- that it shall be evaluated for developments within these. And then what it goes on to say is, that it shall also be evaluated for areas known to appear to be inundated by intense rainfall or sheet flow conditions. Nowhere in that statement does it mandate that they will have to provide compensation. It will be evaluated, and that is an evaluation to be reviewed by staff for areas that we know need to have the storage remaining so you don't create an adverse condition adjacent to properties. Page 116 January 25,2007 We didn't put a statement here that says, if you're in an AE, VE or an A zone you absolutely have to have compensation, but it wants the evaluation. It gives us the leeway to work with the developer for where we need to. It also let's us back off and let them put the fill in without encompassing storage if we agree that there's no need for it because of a typical location. Right. This was -- as Mr. Schmitt was referencing there, we went through it with the Planning Commission. This was a very serious concern that we also had when we were addressing the sheet flow conditions as you approach into those flood zone areas. Now, just to tie it in further through the community rating system with the flood insurance program, of which we are a participant, we have a condition in there that says we're supposed to protect our floodplain. This is one way to do it. I'm not saying it's the only way, but it's one way to protect it, to require an evaluation. And so combining all that together, that's why we put this in as your interim regulation. CHAIRMAN COLETTA: Any challenges to that? MR. YOV ANOVICH: Just in a sense. COMMISSIONER HALAS: It clears up a lot of -- MR. YOV ANOVICH: Well -- but in a sense, this is already being addressed by the Water Management District. And, again, why are we put something in our comprehensive plan that's already being dealt with by other agencies? And that's our -- you know, our concern, and I certainly can't argue technicalities with Mr. Wiley, you know. CHAIRMAN COLETTA: Let's go on to your next item. MR. YOV ANOVICH: I think that's it in this, other than when we get to the Future Land Use Element, and I'm assuming section 24's not being revised in the Future Land Use Element, but there are -- there's some provisions within these two elements that need to make Page 11 7 January 25, 2007 sure that they properly jive with each other depending on how you treat section 24 in the Future Land Use Element. CHAIRMAN COLETTA: Thank you, Mr. Y ovanovich. MS. FILSON: The next speaker is Judy Hushon. MR. WEEKS: Mr. Chairman, if I may interject. CHAIRMAN COLETTA: Oh, I'm sorry. Commissioner Henning, I'm just seeing your light now. COMMISSIONER HENNING: Yeah. We -- this is a part of our insurance rating for Collier County, the flood protection, to give us extra points. MR. WILEY: Through the community rating system, this is one of the efforts that we show how we are affecting our floodplain, that's correct. COMMISSIONER HENNING: Yeah. MR. WILEY: Which does affect our community rating. COMMISSIONER HENNING: Right. So it needs to be in there. MR. WILEY: Yes. COMMISSIONER HALAS: Thank you very much for your time on that. Appreciate that. COMMISSIONER FIALA: Boy, am I glad you brought that up. MS. HUSHON: Hi. I'm Judy Hushon, and I'm a member of the EAC. And I was just here because the EAC -- one of the things that the EAC felt totally strongly about -- and I just want to make sure that you're aware of how strongly we feel, are watershed managements plans. Like you, we review projects, and they end up on a piecemeal basis. We can review this one, then this one. And it's a big county, and we jump all over the place. Our problem is that it makes it difficult to take a far-away long-term view without having something like these plans. And the county's management of stormwater is becoming an area of Page 118 January 25, 2007 contention, especially in localized flooding areas. And the only way to directly address this is to have something like these stormwater management plans, which are going to evaluate flows, water quality, water quantity by source, drainage patterns, man-made structures, their capacities, this type of thing on a watershed by watershed basis. And we also think that they ought to do the watersheds in an order of priority based on where the most development is occurring because those are the areas where we could make the biggest difference. On areas that are pretty well built out, we can't have a huge impact, you know, you just -- but at other areas you could have just a major impact if you had something like these plans. We think this is a good management tool and we endorse having all of these plans completed as soon as possible by 2010. We think that's really important that the money gets put against this and that these plans get incorporated in our county planning structure. We propose that you would do this in conjunction with the South Florida Water Management District. Obviously this is a hand-in-hand operation, but we just -- and some of these will be completed sooner, which is good. As soon as they're completed, we all want to use them. So I just want to put in a little plug for watershed management plans from the EAC. MS. FILSON: Mr. Chairman, that's your final speaker. CHAIRMAN COLETTA: Thank you. MR. SCHMIDT: All right, thank you. Unless there are other questions, that should finish page 34. CHAIRMAN COLETTA: I see no lights on at this time. MR. SCHMIDT: All right. On page 35 then is CCME policy 2.2.5. You already had a speaker addressing that. Unless there are questions, I'll move from there. CHAIRMAN COLETTA: I see none. Go ahead. MR. SCHMIDT: Then on to page 37, again, CCME objective 3.1. Here the language changes were required since transmittal to Page 119 January 25, 2007 show you the specific chapters in statutory Florida Administrative Code, and those have simply been added. Off to page 38 then. Here we're returning to policy 6.6.1. You've heard speakers addressing this. That goes through 39, then on to 40. Page 40. COMMISSIONER HENNING: You're done. CHAIRMAN COLETTA: Yes, Commissioner Henning? COMMISSIONER HENNING: No, his beeper just went off. MR. SCHMIDT: There objective 12.1. Unless there are questions, there's nothing to mention there. CHAIRMAN COLETTA: No, I don't see any questions. MR. SCHMIDT: 12.1.4. CHAIRMAN COLETTA: Please stop for just a second. Commissioner Halas? COMMISSIONER HALAS: What is the -- it says the evacuation clearance time shall be defined as having the residents and visitors and appropriate refuge away from the storm. Are you going to -- is there going to be a thing in here in regards to the time allowed to get people out of an area? MR. SCHMIDT: There are reference -- references in here into the meaning of that; however, there is nothing that specific. It does not give a -- COMMISSIONER HALAS: Is there -- is there anything that's defined by FEMA or by the state in regards to these? MR. SCHMIDT: Just a moment. COMMISSIONER HALAS: Maybe we ought to put this on the back burner until somebody from -- MR. SCHMITT: Again, for the record, Joe Schmitt. Commissioner, again, we're trying to avoid not being specific in the GMP by putting numbers, but-- COMMISSIONER HALAS: Okay. MR. SCHMITT: -- there are plans. You know Dan Summers Page 120 January 25, 2007 briefed you on the evacuation plan and all the responsibility, of course, that he has. This just is a policy. If you want us to put the specific number in there, I'll have to get -- COMMISSIONER HALAS: Well, I didn't know if there was any requirement from the state or anything of this nature in the guidelines as far as what the requirements are. MR. COHEN: Commissioner, the language actually was provided by Dan Summers, and the reasons that he asked for the change -- COMMISSIONER HALAS: Okay. MR. COHEN: -- in the language as required by state law is, the law does change from time to time and he didn't want to be tied down to that -- COMMISSIONER HALAS: Okay. Thank-- MR. COHEN: -- specific hour. COMMISSIONER HALAS: That explains it. Thank you. MR. COHEN: You're welcome. MR. SCHMIDT: We move on to page 41. There are term changes there from refuge to shelter, talking more about shelter space for the county. Moving on to policy 12.1.5. Again, some terminology changes regarding the shelters. That takes us through to the CCME. MR. WEEKS: Mr. Chairman, if I could at this time interj ect. This is -- since we're at the end of the CCME, as far as changes go pertaining to the ORC Response, this is the change I'm putting on the visualizer that I introduced to you early in the hearing as I was walking through the executive summary. This is a change that is not anywhere within your documents. It is being brought to you new. This is -- the specific proposal is to delete policy 12.2.8. And, again, you do not have that in your packet. It's there on the visualizer. This is a policy that precludes the expenditure of public funds for infrastructure unless it is for resource protection or provides public Page 121 January 25, 2007 access. And, again, that's in conflict with the plan's requirements that we provide necessary infrastructure to the coastal high hazard area. EMS facilities, water and sewer, et cetera, et cetera. As you can see, what I've pasted there, again, on the visualizer, objective 12.2 is already in your packet proposed to be revised. You've already seen this. You transmitted the language as it is shown here. And as you can see, we're already modifying the language to address the concern for protection of life and property within the coastal high hazard area, identifying certain things that could be done, such as, building above the floodplain is one of those, providing emergency generators, et cetera. But short and simple, there's a big conflict here in this one policy to other policies and the obj ective within this element as well as other elements of the plan, and we'd like to try to address it now and have it removed. CHAIRMAN COLETTA: Okay. MR. WEEKS: And with that, if there's no questions on that particular point, I think we're ready now to get your vote on this entire element. CHAIRMAN COLETTA: Okay. You know, we have four commissioners here and we need four to pass it. Possibly we should wait -- go ahead, Commissioner Henning. COMMISSIONER HENNING: Which elements do we have left? MR. WEEKS: If I may, I apologize. We're not done with that. There was the one issue that we were going to discuss during a break with Rich Y ovanovich so we're not ready yet to vote on this anyway. CHAIRMAN COLETTA: Okay. Do you want us to take a break now so you can get that done so we can keep this thing -- MR. WEEKS: That would be fine by us. CHAIRMAN COLETTA: -- in some sort of order. It's a little early, but we'll do that; 15-minute break. Page 122 January 25, 2007 (A brief recess was had.) CHAIRMAN COLETTA: Please take your seats. MR. COHEN: Mr. Chairman, you've got a live mike. CHAIRMAN COLETTA: Yes, proceed. MR. SCHMIDT: We're going to return to the section 6.1.1, and I believe that was (5)(b) where, during break, staff was working on language that was talked about during discussion. As presented then, I think Mr. Weeks has language as proposed. MR. WEEKS: Yep. COMMISSIONER HENNING: That's of the CCME, right? MR. WEEKS: Mr. Lorenz has that language. We did meet with Mr. Yovanovich. Thank you. CHAIRMAN COLETTA: 6.1.6, right? Mr. Schmitt, while they're doing that, what page are we on? MR. SCHMITT: We're on page 38, top of the page. It will be -- it's a correction to that paragraph 5 on the top of the page, and add language. That was the language that -- Mr. Y ovanovich introduced some language. I think Bill's trying to shoot it up here so it can show up on the visualizer. CHAIRMAN COLETTA: Mr. Yovanovich? MR. YOVANOVICH: Yes, sir. CHAIRMAN COLETTA: Could you come up here for a moment. MR. LORENZ: Yes. Just to get you -- point of reference, this would be on page 39 of your -- of the ORC Response. And what I've done there, is if you read up on the top of page (b) where it currently says, receipt of treated stormwater discharge where such use, including conveyance, treatment and discharge structures, does not result, and instead of having "in any adverse impact," you'd see what you have on the screen there, does not result in the loss of minimum required vegetation or cause to harm -- or cause harm to any listed species according to the policies associated with objective 7.1. Page 123 January 25, 2007 COMMISSIONER HALAS: What's 7.1? MR. LORENZ: Objective 7.1 deals with listed species -- listed species protected measures. It will also deal with the federal and state utilization of technical assistance from the federal and state agencies for evaluating the harm to listed species. Just to point out now, this is one thing I had the discussion with Rich just before we came up here, the wording that you have there does not result in the loss of the minimum required vegetation. Sometimes when you go from, let's say, a system where you have a dryer environment and you move it into a wetter environment, the vegetation -- COMMISSIONER HALAS: Changes. MR. LORENZ: -- potentially changes. This is -- right here, this particular phrase, unless you want to specify it differently, this phrase, as I would take it, is taking the total amount of vegetation. So as long as the total amount of vegetation, whether it changes or not, is maintained, the quantity is maintained. That's what this policy -- we would apply the policy that way unless you have a different direction. COMMISSIONER HALAS: Okay. CHAIRMAN COLETTA: Sounds like we're there. You there? MR. YOVANOVICH: Yes, sir. CHAIRMAN COLETTA: Thank you. MR. YOV ANOVICH: Thank you. CHAIRMAN COLETTA: Okay. No problem. Everybody's aboard. Good, move on. MR. SCHMIDT: All right. Now, Commissioners, that does complete the CCME if you -- COMMISSIONER HENNING: Move to approve the amended CCME final report. COMMISSIONER HALAS: We've got one commissioner mIssIng. COMMISSIONER FIALA: Second that motion though. Page 124 January 25, 2007 CHAIRMAN COLETTA: Well, if we're in agreement, we're going to be fine. If we're not, we're in a lot of trouble. I don't know if I dare go. COMMISSIONER HENNING: Let's try it. CHAIRMAN COLETTA: Huh? COMMISSIONER HENNING: Let's try it. CHAIRMAN COLETTA: Yeah. It could be a long time coming back again. I feel like it's a -- COMMISSIONER FIALA: Well, maybe you could look around and see -- CHAIRMAN COLETTA: There he is. Thank God you're here. COMMISSIONER COYLE: You've got a quorum. CHAIRMAN COLETTA: No, we had a quorum. We were just worried what might happen with the vote to approve the CCP (sic). COMMISSIONER COYLE: All you need is four votes. CHAIRMAN COLETTA: That's correct. There was just four here, and we don't trust each other. COMMISSIONER COYLE: Vote, vote. CHAIRMAN COLETTA: Okay. We just -- we had a motion by Commissioner Henning, a second by Commissioner Fiala, to approve it as amended. All those in favor, indicate by saying aye. COMMISSIONER COYLE: Aye. CHAIRMAN COLETTA: Aye. COMMISSIONER FIALA: Aye. COMMISSIONER HENNING: Aye. CHAIRMAN COLETTA: Opposed. COMMISSIONER HALAS: Aye. CHAIRMAN COLETTA: Okay. Geez, talk about intuition, huh? COMMISSIONER FIALA: Yeah, I guess so. CHAIRMAN COLETTA: That would have been-- Page 125 January 25, 2007 COMMISSIONER HALAS: That's why I said -- CHAIRMAN COLETTA: -- 4-1. COMMISSIONER HALAS: That's why I said we better make sure the other commissioner's here. CHAIRMAN COLETTA: Yeah. I don't know why I got that feeling, but I -- COMMISSIONER FIALA: He must have had -- he must have had a little earring or something on to make you think -- CHAIRMAN COLETTA: No, I've been sitting to him -- next to this guy long enough. Okay, go ahead. Where we going now? MR. SCHMIDT: All right. Thank you, Commissioners. On to page 43, we're now in the Future Land Use Element. Here are some -- CHAIRMAN COLETTA: I'm sorry. We're going to have some speakers on this. I just want to remind everybody so we don't get to that point where we go past it. MR. SCHMIDT: All right. If you'd like to stop right there at the affordable/workforce housing bonus, we can if you've got speakers. CHAIRMAN COLETTA: Okay. Go ahead and call the speakers. MS. FILSON: The first speaker is Bruce Anderson. He will be followed by Brad Cornell. Then I'm going to have one last speaker, Mr. Chairman, for section 24, and I believe will be the last thing on the ORC. CHAIRMAN COLETTA: Okay. MS. FILSON: Do you want me to time these speakers? COMMISSIONER COYLE: Yeah, two minutes each. MS. FILSON: Because they're all going way over. COMMISSIONER COYLE: It's okay. Commissioner Henning will support it, two minutes. COMMISSIONER HENNING: I don't know about that. CHAIRMAN COLETTA: While we're waiting to get ready, it's Page 126 January 25, 2007 a little disturbing to find we just got through striking the language as far as the coastal high hazard area, and here it is again. I mean, this darn thing, it happens -- it's got a life of its own. I mean, eventually you keep putting it in there, it's going to get by me. MR. WEEKS: Mr. Chairman, this is -- as you recall earlier in the meeting, we were in the executive summary and we jumped right into those density rating system changes. We never got into the Future Land Use Element. You were correct, there are numerous places in the Future Land Use Element that are going to have to be modified. I think there's a policy and there's several places within the density rating system that we'll need to modify to reflect your action earlier in this meeting, including right here. COMMISSIONER HALAS: Because you already approved it by a 4-1 vote, the changes. MR. WEEKS: Yes. COMMISSIONER HALAS: Earlier. MR. WEEKS: Yes, sir. COMMISSIONER HALAS: That was the 4-1 vote. MR. SCHMITT: This will be stricken. COMMISSIONER HENNING: Okay. Where we at? CHAIRMAN COLETTA: I don't know. COMMISSIONER HENNING: We -- Commissioner, just before we adopt this Future Land Use Element, we want to make sure staff said -- states on the record that the language that we previously adopted will be stricken and corrected from this. CHAIRMAN COLETTA: And they agreed -- and we agreed to do that, and they just haven't had a chance to do it because it's in print already. COMMISSIONER HENNING: Right. CHAIRMAN COLETTA: But there is no danger here because this is all going to be amended. Page 127 January 25, 2007 COMMISSIONER HALAS: We just approved that by the last vote. CHAIRMAN COLETTA: I know that. Okay, good. You just -- you get -- you see these things all of a sudden and your blood rushes to your head. Go ahead, Mr. Anderson. Didn't mean to take away your time. You got 30 seconds left. MR. ANDERSON: Thank you. You know, a lawyer can't even introduce himself in 30 seconds. For the record, my name's Bruce Anderson. I'm here speaking on the issue of rural village inclusionary zoning on behalf of the Bonita Bay Group. I will be addressing a new future land use mineral extraction map on behalf of Florida Rock Industries, and on behalf of myself, addressing the issue of the definition of usable open space in the rural fringe area. First let me address myself to rural village inclusionary zoning. CHAIRMAN COLETTA: Before you do that, could you give us a reference where we should be? MR. ANDERSON: Well, unfortunately the Future Land Use Element is not very well laid out with regard to policy numbers and things like that that you can follow logically. Corby -- Mr. Schmidt tells me that he believes it's page 44 of the Future Land Use Element. The language in question I have on the overhead. As you may -- as you may recall, mandatory inclusionary zoning, the only -- the only zoning district that you presently require that in is a rural village, and there's a Land Development Code requirement that imposes that obligation. At your transmittal hearing, there's some debate as to what your intention was. Some of us understood that it was simply to take the formula and language that was already in the Land Development Code Page 128 January 25, 2007 and add to it. And what you wound up with is some entirely new language in a different formula. In addition to that point, I don't think this belongs in the Growth Management Plan. This is one of those items that Commissioner Coyle asked about at the beginning of the meeting; is there something in here that we've got that isn't required by the state statutes that we can simply deal with in the Land Development Code? And you've already done that. And if you want to amend the Land Development Code to increase the requirements on a rural village to provide affordable housing, then do it there, not in the comprehensive plan so that you don't -- if you want to tinker with the formula, you don't have to go back to Big Brother and ask for permission. The -- CHAIRMAN COLETTA: Can I interrupt you just for a second. MR. ANDERSON: Yes, sir. CHAIRMAN COLETTA: Commissioner Henning's got a question. COMMISSIONER HENNING: Well, in the fringe LDC amendments, or it could have been the previous Growth Management Plan amendments, we provided a bonus for affordable housing if you do certain things; am I correct? MR. ANDERSON: Not really for a rural village. You -- you have to use -- you have to use up one of your TDRs for affordable housing. COMMISSIONER HENNING: It was something we have -- MR. ANDERSON: Then they get a bonus. COMMISSIONER HENNING: -- extra densities if you do something. Do you remember that? MR. WEEKS: I think you're talking about additional density bonuses that were added to the TDR program. COMMISSIONER HENNING: Correct. MR. WEEKS: Yes. Page 129 January 25, 2007 COMMISSIONER HENNING: Now, was that for affordable housing? MR. WEEKS: No, sir. COMMISSIONER HENNING: Oh, it was not. MR. WEEKS : Neither of those was, no, sir. COMMISSIONER HENNING: Okay. Now, the -- anybody aware of the inclusionary zoning ordinance, would that cover all of Collier County? Maybe the legal staff could tell us. I haven't seen it. MS. STUDENT-STIRLING: The inclusionary zoning ordinance? COMMISSIONER HENNING: Yes. MS. STUDENT-STIRLING: Okay. I -- I am assuming -- I have not worked with it nor -- I am assuming that it is applicable to the entire incorporated -- unincorporated area of the county. MR. SCHMITT: It will be -- it will be written to apply to the county overall. COMMISSIONER HENNING: Okay. MR. SCHMITT: And it will be adopted based on some of the rulings for either the rural fringe or for the rural stewardship area, but it will apply overall. COMMISSIONER HENNING: Okay. MR. SCHMITT: That's the intent. COMMISSIONER HENNING: Well, that seems to be fair to me. There's no need for this language. It will be addressed. MR. SCHMITT: There is language that exists already in the LDC that clearly lays this out. There was a conflict between the LDC and the GMP. This language came about from your transmittal hearing, and there is an inherent conflict. Bruce is, in fact, correct. I think we -- and Cormac, I'll get a nod from him. I think we're okay if we apply the LDC in this application. COMMISSIONER HENNING: Okay. MR. WEEKS: If I may, Mr. Chairman. Page 130 January 25, 2007 COMMISSIONER COYLE: Take out of this, take out of this. MR. SCHMITT: Take the specificity out of this because -- and Bruce is right, to use his quote, we have to ask Big Brother to change this. And if we want to change the LDC, we do that ourselves. So I think it's best to take it out. Go ahead, David. MR. WEEKS: Mr. Chairman, what we could do is, if you're so inclined, is to delete all of the underlying language on page 44, item 2, that Bruce is discussing, that takes away all the specificity of percentages and whatnot. And instead, that last phrase that's underlined would remain, it would read as follows: Projects providing affordable/workforce housing as required in the rural fringe mixed-use overlay in the Land Development Code shall receive the credit of a half unit per acre, et cetera. That's just -- CHAIRMAN COLETTA: And you don't think this will set off any red flags? MR. WEEKS: No, sir, we don't. MR. SCHMITT: No. CHAIRMAN COLETTA: Okay, great. Any comments on this? COMMISSIONER HENNING: No, that sounds good to me. CHAIRMAN COLETTA: Okay, fine. Then do it. I think we're in agreement on it. What else have you got, Mr. Anderson? MR. ANDERSON: The next item that I wanted to discuss is a new future land use map that is supposed to identify all the sites where mineral extraction either is occurring or can occur. And my point was that there is an omission on that map of the Florida Rock mine that is permitted by your comprehensive plan as a matter of right. Their excavation permit application is presently under review, but your comprehensive plan recognizes this area as a place where mining can occur as a matter of right. And if you're busy defending other lawsuits that say you don't Page 131 January 25, 2007 have enough places to mine for rock, it would be helpful to have that site shown on your map. It is called a future land use map, and this is a future land use that is allowed as a matter of right by the plan. And I'm just asking that that site be added to the list. CHAIRMAN COLETTA: Commissioner Henning, and then we'll go to staff. COMMISSIONER HENNING: Well, if we could just take a look at dot eight. Does that cover the existing mining and Florida Rock? MR. ANDERSON: Ifwe say on the record today, maybe we could recognize that. COMMISSIONER HENNING: Okay. MR. ANDERSON: I don't know if we need two dots. CHAIRMAN COLETTA: Yes? MR. WEEKS: Mr. Chairman, Mr. Anderson and I spoke briefly about this previously. Staffs view is that the site that's adjacent to the south of dot number eight, we view it as an expansion of that mining operation, and that's why we've not proposed a -- or did not show a second dot, a second site on there. So we are satisfied that that is representative of the existing excavation that is occurring to the south of the pit that is now completed, which is known as the Warren Brothers PUD, completed with the exception of the road between the two lakes, which is still being used for access. As to a second point of identifying a site that's been approved, if you will, recognized in the Future Land Use Element, specifically the North Belle Meade Overlay, our opinion is that that does not belong on here because these are existing sites. And if need be, staffhas no objection to adding the word existing to the map title. This map or a version of it has existed since the plan was adopted in 1989. Either within the adopted portion or the support document, it has always referred to existing sites, not any approved, Page 132 January 25, 2007 but not yet begun. COMMISSIONER HENNING: Okay. MR. WEEKS: So the short of it, staff is satisfied that dot eight covers the property that Mr. Anderson has inquired about, and then for the future site, address that by adding the word existing. CHAIRMAN COLETTA: Okay. Commissioner Halas? COMMISSIONER HALAS: How about just put another dot below the eight and call it 8A? Clears up the problem. COMMISSIONER HENNING: It doesn't matter. MR. WEEKS: Well, we'll put a second dot if that's your direction. COMMISSIONER HENNING: Make it all dots. I don't care. MR. ANDERSON: And the last item that I have, Mr. Arnold will expand on, but it's a matter that recently cropped up in discussions with Mr. Schmitt, and that is the definition of open space, usable open space, in the rural fringe. Some folks on your planning staff have taken the position that open space does not include the yard around your home, the lawn. And so we're proposing to add lawn and yard to that definition of usable open space so it's perfectly clear that those things do, in fact, count. I mean, they're not covered with asphalt or a building. CHAIRMAN COLETTA: But on the open space, I would assume it would be public areas where the public could congregate, and they can't go to people's yards. MR. ANDERSON : Well, there's a separate definition in the Land Development Code for that, and it's common open space as opposed to usable open space. CHAIRMAN COLETTA: Okay. MR. ANDERSON: And I'd like Mr. Arnold to explain the practical problems with it, and I don't know that staff has an objection. MR. SCHMITT: Commissioners, this issue came up to rejections for compo plan amendments that came in, and it is the Page 133 January 25, 2007 application of the three definitions. To apply it literally, it does create a problem. I would defer to Mr. Mulhere. He was our consultant during this time when we came in and created the rural fringe mixed-use district, what the intent was. The intent was to create 70 percent open space. The way it was written, it puts us in a box of even asking for more open space. Let me ask Bob -- I'll blame Bob for making this, and he can-- he can ask for forgiveness. MR. MULHERE: Fortuitous that I stop by just at this point in time. For the record, Bob Mulhere with RW A representing really myself in this matter, as Joe asked me to speak on this issue. I was -- actually I worked for the county for the first part of the process as planning director, and then was the consultant for the county for the balance of the rural fringe process and attended, oh, in excess of 30 public meetings that the committee had relative to this. And the intent, my recollection of the intent, was to increase the amount of open space that was required in the rural fringe, and they did so by requiring 70 percent open space out there as opposed to 60 percent, you know, for similar projects in the urban area. There was never any discussion about excluding yards from that calculation; however, we have met with staff a couple times, and staff doesn't feel that the language is clear the way that it was -- the way that it was written. I don't think -- they're not obj ecting to our argument as much as saying, you know, it's not clear in the language. I'll take responsibility for that. There wasn't any intent to exclude the private yards, which, you know, are calculated towards open space in the urban area. The only intent was to increase the amount, which we did by increasing it to 70 percent. So I think Bruce's recommendation would clarify that issue. Page 134 January 25, 2007 CHAIRMAN COLETTA: Is this -- there's not going to be a sudden wealth for the people that own the raw land now that will be able to build more on it if the yards are now -- no? MR. MULHERE: No. What happens is, if you exclude the yards -- and Wayne can speak to this issue because he's done some calculations on it. But if you exclude -- these developments are a mixture of multifamily and single-family. You can count multifamily common yards under the staffs reading but not single-family yards. And really the way it reads is that -- it talks about open space being able to be enjoyed by the residents of the community or, you know, the general public. And so what happens is, if you exclude the single-family yards from the calculation, it reduces the flexibility of design. It basically forces less of a mixture, it forces more multifamily so that you can meet your open space requirement because you can't count your single- family yards. And the intent was to maintain that flexibility in design, so that's really the issue. It doesn't -- it doesn't really change a single thing. I mean, we all -- if you look in the single-home, use your yard as open space. CHAIRMAN COLETTA: So you're agreeing with Mr. Anderson -- MR. MULHERE: Yes. CHAIRMAN COLETTA: -- that it should read native vegetation and lawn yards and landscape areas? MR. MULHERE: Well, that makes it clear because that was the intent, that's correct. Unfortunately we didn't think of it at the time. CHAIRMAN COLETTA: Is there any disagreement with this -- any commissioners here? COMMISSIONER FIALA: I just want to -- CHAIRMAN COLETTA: Commissioner Fiala? COMMISSIONER FIALA: Just want to ask what would happen if we don't add that? Page 135 , \ January 25, ~,9D7 , , 'MR. MULHERE: You're going to -- what would happen is, if you can't include single-family yards, you're forcing anyone who wants to develop out there to develop in a different way, probably less single-family, probably more multifamily, and it's going to make it more expen~ive as well because you don't have a mixture of product type, and you're .g9ing to have -- you're going to consume more land ; to meet that open space than was intended when you can't count yards towards it. . COMMISSIONER FIALA: See, I was -- I thought it would be just the opposite, if we didn't make sure that there was lawn and yard, that then there would be more multistory rather than single-family. MR. SCHMITT: The intent -- there's three definitions. There's usable open space, open space and common open space. MR. MULHERE: Right. MR. SCHMITT: And the way the language was written, it was putting the applicant in a very restrictive position. And as Bob said, it was forcing them into a form of development that they may not -- or the consumer may not want. Some people want an individual lot. In the urban area, it's 60 percent. And quite frankly, we don't get down to counting the square foot to ensure they meet the 60 percent. In most cases, that is controlled through density or other measures. It most always will exceed that. In this case, when you all went through the rural fringe mixed-use district public hearings, and as Bob said, it was proposed to increase from 60 to 70 percent, this will have no impact and will not increase in anyway the density. The density is still controlled. MR. MULHERE: That's right, that's right. MR. SCHMITT: It is just merely giving both the staff and the applicant the latitude to accept -- and I'll use it all as green space. Think in your mind that 70 percent of the development has to be green space. The language will allow us to get there, and we'll turn around with this and then make the appropriate changes to the LDC. And I Page 136 January 25, 2007 think that meets the requirements. Wayne, I don't know if you had anything to discuss on that, because Wayne -- CHAIRMAN COLETTA: Well, let's put it this way. There's still questions that might be reason to go farther. Anything else you want to cover? We can carry this right to the end if you still feel uncomfortable with it. You're not comfortable? COMMISSIONER FIALA: I just -- all I'm hearing -- no. All I'm hearing is that it's okay. I just hope that it is. CHAIRMAN COLETTA: No, I know that -- what do you need to make you a little more comfortable? COMMISSIONER FIALA: Well, I haven't heard anything-- any contrary views, so I guess I'm going to just have to go along with it, because it must be okay unless somebody else -- CHAIRMAN COLETTA: If you have any reservations, we can bring up more people. COMMISSIONER FIALA: No, that's all right. CHAIRMAN COLETTA: Okay, no problem. Is there anybody that has any reservations on this? COMMISSIONER HENNING: No. CHAIRMAN COLETTA: Then let's move on. Thank you very much. MR. ARNOLD: Then I'll waive, thank you. MS. FILSON: Next -- are you ready for the next speaker? Yes. Brad Cornell. He'll be followed by Rich Y ovanovich. MR. CORNELL: Good afternoon, Commissioners. I'm Brad Cornell, and I'm here on behalf of Collier County Audubon Society. And I wanted to raise an issue that happened at the last minute on the Conservation Coastal Management Element that I think is problematic, and I didn't know it was coming up because it wasn't there until the last minute, and that's the policy 6.1.1 paren 5, sub b, that had to do with that native vegetation issue, that language that-- Page 137 January 25, 2007 about putting stormwater into preserves and the condition of the vegetation. And I got a chance just quickly to look at the language of that whole policy. And the language that you have just suggested be put in there looks to me to be allowing for degradation of the preserve. And so in my mind, if you're going to allow that to occur, it would be better not to call that a preserve and have to go off site if necessary to accomplish your preserve objectives. But to allow stormwater that would degrade a -- the native vegetation of preserve seems to be counter to the term preserve. So I think there's a problem with that language now, the way the policy is written. COMMISSIONER HENNING: Yeah, Mr. Cornell, it's not there to put extra stormwater on vegetation that won't accept it. That was the whole purpose. If it is acceptable and won't degrade it, that's the whole purpose of it. MR. CORNELL: I agree that we don't want to degrade. The way the language is written now it doesn't seem to prohibit that or prevent that. COMMISSIONER HENNING: Well, we're going to -- we could clarify that in the Land Development Code, but Mr. Lorenz is still here, if that's -- ifhe has any concern about that. CHAIRMAN COLETTA: You know, I really need for you to stay here with the process so that when we're discussing these items we can keep it together rather than go through an item and then have to go back to it again. MR. CORNELL: Oh, Commissioner, I was right here. The thing of it was, that wasn't written in any of the documents. It was something that one of your speakers brought forward at the last second. CHAIRMAN COLETTA: But we were here and we were open for discussion on it. But that's okay. You're here now. MR. CORNELL: Did you want me to raise my -- I could have Page 138 January 25, 2007 raised my hand. Do you want me to do that? CHAIRMAN COLETTA: It would have helped. COMMISSIONER HENNING: Mr. Lorenz? MR. CORNELL: Okay. Sorry. I didn't know how to address that. COMMISSIONER HENNING: This policy is to enhance vegetation? MR. LORENZ: Well, that's what I -- that's -- when I clarified it with you before, my point was that it will change the vegetation from potentially a -- more of an upland vegetation to a wetland vegetation as you put stormwater into the system. So there will be -- there will be a change of vegetation. The policy that's currently crafted speaks to the amount of vegetation. The amount would have to be the same. I mean, we can't lose vegetation through the process. Now, the shifting of vegetation from more of an upland species to a wetland species is going to occur -- it could be gradually or it could -- it could occur fairly quickly, because you're putting the stormwater, again, into a -- into some systems that necessarily are not used to that much water, that's why we had the adverse impact statement in there originally. The -- we still have to go through Land Development Code regulations. We have the opportunity to provide certain constraints and address some of that in the Land Development Code regulations, but we just have to make sure that the Land Development Code regulations are consistent with the policy, whatever policy you want to adopt. COMMISSIONER HENNING: Right. What -- what we did here today, let's say that you had an upland vegetation cover. Would you allow stormwater, extra stormwater on that property? MR. LORENZ: If it was so much -- if it was so much -- if it was very specific upland vegetation -- let's just -- and as we were going through -- this was a very contentious issue as we were working Page 139 January 25, 2007 through Land Development Code regulations this past year. If you're talking about a true upland system, not a transitional wetland system, never was a wetland system, to put water into that particular upland system would probably be pretty devastating to the vegetation, and you'd lose the vegetation. COMMISSIONER HENNING: Well, I understand that. But that isn't what we adopted here today, is it? MR. LORENZ: You simply -- the language simply states that the amount of vegetation would not be decreased. Of course, there's a time -- there's a timing problem. It would take a -- perhaps a large periods of time before you get any acclimating vegetation in that type of a system. COMMISSIONER HENNING: Well, I'm more inclined to clarify it in the Land Development Code and name the upland species that we're not going to allow that to happen, but if you're trying to make the landowner grow upland species, I'd have a problem with that. But if we're trying to -- if we de gradate existing upland species, that wasn't the objective -- MR. LORENZ: Right. COMMISSIONER HENNING: -- objection. MR. LORENZ: There is -- then you slide into -- let's say if you're putting it into a very true type of wetland system, well, that additional water, again, may change the characteristics of the types of wetland plants a little bit, but you would be in a wetland system that's used to receiving water. There is this transitional system of let's -- I'm going to call them pine flatwoods that sometimes have some wetland characteristics, sometimes don't. That's where we run into a little bit of difficulty trying to define the criteria which would be appropriate to determine under what circumstances we should be able to put stormwater into those systems. That's what we were trying to work through in the Land Development Code regulations. Page 140 January 25, 2007 If the direction from the board is to look -- is to be sensitive to those types of issues through this policy, we would be coming back to you with a -- Land Development Code regulations that would try to parse those issues out. COMMISSIONER HENNING: Right. Is that okay? MR. CORNELL: I guess what -- I'm a little bit puzzled about is why we took out the word adverse to begin with. If what we're all intending, which I'm hearing from the dais, is that we don't want to degrade our preserves by adding stormwater, we just -- you know, then why not just say we don't want to have any adverse impacts to that preserve? I mean, that's what we mean, isn't it? I thought that's what we meant. CHAIRMAN COLETTA: Once again, we can deal with this in the Land Development Code. COMMISSIONER HENNING: Right. CHAIRMAN COLETTA: So let's do this. We're going to -- we're going to wear everybody out on this. First we're going to go to Commissioner Halas, and then we have a young lady behind you that's begging to speak on this subj ect. We're going to do that, so I'm going to ask you to step back from the podium. MR. CORNELL: Okay. Can I come back again? CHAIRMAN COLETTA: Some day on some other issues, please. We'd love to hear from you. MR. CORNELL: Thank you. COMMISSIONER HALAS: This does kind of raise a flag in my regards to putting stormwater into preserves. So this is going to be retention area for stormwater, is that what you're telling me? That the possibility could be the retention area, so we'll add nutrients and phosphor, items that run off of lawns or parking lots and stuff of this nature, into one of these preserves? MR. LORENZ: That's possible. The last sentence of that policy says that when you discharge into a wetland system, that you have to Page 141 January 25, 2007 meet the water quality standards. In some of the -- in some of the standards -- in some of the drafts of the Land Development Code regulations that we were working through to try to address this policy, we did provide for some varying degrees of water quality treatment before going into a preserve. Again, those are the types of details that could be worked through the Land Development Code regulations if that's -- if that's what you would want to see us do. COMMISSIONER HALAS: Well, I think what we're -- I think what the intent is here is to have stormwater retention ponds that are used in a manner whereby the water is filtered out before it's released into a preserve. What it sounds to me like we've got here is that we're going to use this as a retention pond and not a place to discharge the water after it meets the water quality purification of nutrients and phosphates. COMMISSIONER HENNING: That's not true. MR. LORENZ: Well, I wouldn't say -- I wouldn't say that, that the preserves will be serving as a water -- COMMISSIONER HALAS: Retention. MR. LORENZ: -- stormwater retention pond. That wouldn't be the case. What we're trying to do is, sometimes is -- COMMISSIONER HALAS: Okay. MR. LORENZ: The discharge -- the discharge of the water typically goes into your water treatment systems for a vast majority of your stormwater events. A lot of times this -- these systems will be -- will function for -- receiving stormwater when you get a higher return of that, like a 10-year or a larger storm event, and then the preserves are available to receive that higher event. Again, those are the details that can be worked out through the Land Development Code regulations. The policy for the Growth Management Plan, I just want to make sure that we're clear that when Page 142 January 25,2007 we come back with you with Land Development Code regulations, that we can say that we're consistent with your GMP policy. CHAIRMAN COLETTA: I think you're there on that. But we do have a young lady -- MS. HUSHON: Yeah. I think I -- Bill went too, but I think I was In-- CHAIRMAN COLETTA: Please state your name again. MS. HUSHON: Judy Hushon, from the EAC. CHAIRMAN COLETTA: Thank you. MS. HUSHON: I was in like 10 to 15 meetings over the last nine months which looked at just this paragraph. And after all those meetings with all the parties that participated in the group discussions to craft the language, to have it come in at the last minute with a change like this, it seems very inappropriate, and it also seems like a slap in the face to all the people that worked in all those meetings to get the language down to where we thought it ought to be so that preserves would not be adversely affected. Adversely affected means trees die. That's what -- or vegetation dies or animals that live there can no longer live there because it's wet. Gopher tortoise can't live there because his burrow fills with water, whatever. We're telling you, those are the adverse effects. When you have -- when you have other adverse effects, some of them can be very fleeting and it can handle those. But we were trying to work on -- as soon as vegetation starts dying and things, you know you've done it, but it's too late. You can replace that -- what Rich would like to do is replace it with wetland vegetation. That wasn't what we're trying to do. We have a huge amount of wetlands in this county. We have precious little upland preserves. In case you haven't looked at what's coming across your desk, it's hard to get an upland preserve, and we need those as well. So we're trying not to destroy those, and that was what the Page 143 January 25, 2007 original language was trying to preserve. Am I right, Bill? Okay. There's where -- I mean, we worked so hard on this language. You just can't imagine how many hours -- CHAIRMAN COLETTA: Well, yeah. MS. HUSHON: -- went into this. CHAIRMAN COLETTA: We always appreciate all the advice we get. MS. HUSHON: And then to have something come in at the last minute that diverts those hours of -- CHAIRMAN COLETTA: No, it didn't do away with anything. MS. HUSHON: -- presentation. CHAIRMAN COLETTA: What it is is we appreciate the advise we get. We weigh everything. We come from vast backgrounds. We want to listen to every interest out there, the environmental interests, the business interests. And from there we have to come up with a way that's going to meet the needs of the whole community. So it's not a case of everything that you worked for is totally out the window. It's not. You might have to go back to the drawing board, but we're there. We're going to be fine. The Land Development Code will pick up where this leaves off, but meanwhile, I'm going to ask you to sit down. We'll continue the discussion up here, and we do appreciate your input and we hope you stay around for the rest of the meeting. Okay, gang. Where are we? COMMISSIONER HENNING: Well-- COMMISSIONER COYLE: I don't see the problem -- CHAIRMAN COLETTA: I don't either. COMMISSIONER COYLE: -- putting adverse in there. CHAIRMAN COLETTA: But we have a whole bunch of lights lit up here. COMMISSIONER COYLE: Just put adverse in. CHAIRMAN COLETTA: Halas, you just spoke. Page 144 January 25, 2007 COMMISSIONER HALAS: Yes. CHAIRMAN COLETTA: Okay. Commissioner Fiala? COMMISSIONER FIALA: Yeah, I agree. I think that she's right, and I don't see any reason why we should take adverse out. CHAIRMAN COLETTA: Okay. That's good. We got a difference of opinion. So in this case what we -- COMMISSIONER HALAS: Put adverse back in. CHAIRMAN COLETTA: Okay. We need to have a motion because there seems -- there's just too much discussion going back and forth. Just a motion. We'll have discussion on the motion. COMMISSIONER HALAS: I motion that we put the word adverse back into the language. CHAIRMAN COLETTA: Okay. COMMISSIONER FIALA: Second. CHAIRMAN COLETTA: We have a motion by Commissioner Halas to put adverse right back into the statement, and it's been seconded by Commissioner Coyle (sic). Now, discussion? Commissioner Henning? COMMISSIONER FIALA: No. I think it was seconded by me. CHAIRMAN COLETTA: That's what I said-- COMMISSIONER HENNING: No, she -- you did say that. CHAIRMAN COLETTA: And I did say Commissioner Fiala. COMMISSIONER FIALA: Coyle. CHAIRMAN COLETTA: I was just calling on Henning to speak. COMMISSIONER COYLE: We look so much alike. COMMISSIONER FIALA: Huh? COMMISSIONER COYLE: We look so much alike. CHAIRMAN COLETTA: Oh, I'm sorry. It was -- the motions was made by Commissioner Fiala. COMMISSIONER FIALA: No. COMMISSIONER HALAS: Commissioner Halas. Page 145 January 25, 2007 CHAIRMAN COLETTA: Halas, and second by Commissioner Fiala? COMMISSIONER FIALA: Yes. COMMISSIONER HALAS: It's been a long four days. CHAIRMAN COLETTA: Now it's Commissioner Henning's turn to speak. COMMISSIONER FIALA: Yes. CHAIRMAN COLETTA: Okay. We're there. COMMISSIONER HENNING: Great. Well, I don't think it was the intent of anybody. It's a matter of mistrust. If -- I'm okay with putting that back in there, but it's something that we can put in the Land Development Code. And anybody is welcome to come to our meeting and address the board, because we're the final decision making (sic), but we appreciate the input of all of our advisory boards. CHAIRMAN COLETTA: And meanwhile, the insertion of this one word will never do what the Land Development Code will be doing for us on this. COMMISSIONER HENNING: Well-- CHAIRMAN COLETTA: Let's go ahead and call the motion. COMMISSIONER HENNING: Well, it doesn't harm anything. CHAIRMAN COLETTA: Anyone else -- no more comments? Okay. Is there any more comments, let me put it that way. (No response.) CHAIRMAN COLETTA: Hearing none, all those in favor of the motion, indicate by saying aye. COMMISSIONER COYLE: Aye. COMMISSIONER HALAS: Aye. CHAIRMAN COLETTA: Aye. COMMISSIONER FIALA: Aye. COMMISSIONER HENNING: Aye. CHAIRMAN COLETTA: Opposed? (N 0 response.) Page 146 January 25, 2007 CHAIRMAN COLETTA: The ayes have it, 5-0. Okay. Let's move on. MS. FILSON : You want the rest of your speakers? CHAIRMAN COLETTA: Oh. MS. FILSON: I have a stack of speakers. CHAIRMAN COLETTA: Please, go ahead and call the speakers. Brad, did you change your name to another name and register again? MS. FILSON: Brad Cornell's the next speaker. He'll be followed CHAIRMAN COLETTA: This is on the next item, right? MS. FILSON: -- by Rich Yovanovich. MR. CORNELL: This is -- yes, Brad Cornell with Collier County Audubon Society, and now we're moving to the Future Land Use Element, correct? CHAIRMAN COLETTA: Go ahead. MR. CORNELL: Okay. Here we are. And we're in section 24, which is what I would -- I wanted to address today. Collier County Audubon Society supports re-designating the existing Red-cockaded woodpecker foraging and nesting habitat in section 24 of the North Belle Meade overlay from neutral to sending. You saw that recommendation in the staff report, as well as in the EAC recommendations to you. You and your staff have studied this section more than anywhere else in the county. Your studies, both the most current agency and consultant data and significant ground truthing have clearly substantiated the appropriateness of redesignating RCW habitat to sending status. There has been confirmation that section 24 RCW habitat is occupied. Also, any presence of A TV s, which was an issue raised by the Collier County Planning Commission, does not eliminate the importance of section 24's RCW habitat. There are no studies and no Page 147 January 25, 2007 evidence that substantiate that claim by the Planning Commission. It's a bogus claim. It's very important to remember that sending status is based in part on the existence of habitat, not necessarily whether it's occupied or not. The fact that you have Red-cockaded woodpecker habitat in section 24 is all that you need to designate that as sending. That was the -- those were the criteria for the original mapping of the rural fringe, and that's what we should continue with section 24. Collier County Audubon Society supports the staff and EAC recommendations on redesignating RCW habitat from neutral to sending. We urge you to accept the proposed sending lands in section 24 for adoption in the EAR amendment cycle, and that's what you see in the staff report and the EAC recommendations. Thank you very much. CHAIRMAN COLETTA: Thank you. MS. FILSON: Next speaker is Rich Yovanovich. CHAIRMAN COLETTA: Are you going to agree with Mr. Cornell ? MR. YOV ANOVICH: Probably not. For the record, Rich Y ovanovich on behalf of Beaucamp (phonetic) and the Hideout Golf Club, who are landowners in section 24. CHAIRMAN COLETTA: And I've just got to make a comment. I absolutely love the fact that you tell us who your clients are. Makes a big difference. Thank you. MR. YOV ANOVICH: Thank you, thank you. Anyway, with all due respect to Brad, your Planning Commission disagreed with both your staff and the EAC's recommendation, and we disagree as well. One thing that wasn't mentioned was, this area has already -- already does have additional protections above normal neutral lands. It's designated neutral with a 70 percent native vegetation requirement versus normal neutral lands that have a 60 percent native vegetation Page 148 January 25, 2007 requirement. So there are already additional protections to address some of the issues that Mr. Cornell is discussing. We do not agree that there has been an exhaustive ground truthing of section 24, and we do not agree that the provision of 70 percent native vegetation will, in any way, harm the ability to address and deal with RCW s, because do not forget, we still have to go through whatever the required permitting process is, and with -- that permitting process will include an analysis of the RCW issue and will address the RCWs. So we're requesting that you do follow your Planning Commission recommendation to leave section 24 as neutral with the additional native vegetation requirement of 70 percent native vegetation versus 60 percent. And I'm available to answer any questions you may have regarding that. CHAIRMAN COLETTA: We'll call you back if we do. MR. YOV ANOVICH: Okay. MS. FILSON: Next speaker is Nancy Payton. She'll be followed by Bob Mulhere. MS. PAYTON: Good afternoon. Nancy Payton, representing the Florida Wildlife Federation, and I'm speaking to section 24 and supporting the modified boundaries for redesignating neutral lands to sending lands. There are modifying boundaries that have been proposed by staff and by the EAC, and we like best the EAC boundaries. The data and analysis clearly supports the sending land designation. I remind you that twice section 24 has been transmitted to the DCA as sending status, as sending lands, and twice it's been asked by you commissioners to have it studied in greater detail to ensure that it does meet the level of protection that's -- that meets the sending -- the sending lands designation. Clearly the information does. And if this additional review or study doesn't support action to Page 149 January 25, 2007 designate portions of section 24 as sending, then what precedent does it set for the 3,600 acres petitioned for redesignating from neutral to receiving? And you have upcoming over 3,600 acres that would like to be redesignated out of sending. And if we start having different standards for different sections, I think it does not bode well for the integrity of our TDR program, both for these 3,600 acres and the overall program. Sending land designations are habitat driven, and I want to drive that home again. You don't have to have witnessed wildlife, a listed species. If it's habitat, it's habitat, and that's what our Growth Management Plan requires for sending land designation. That's what the final order was all about. It wasn't about individual listed species. It was about protecting habitat so we can recover listed species, such as the Red-cockaded woodpecker. I will also remind you that the Red-cockaded woodpecker lives in upland habitats. The federal permitting system, which would have endangered species review, would only be triggered if there were impacts to wetlands. So there is -- we may be the last line of defense for Red-cockaded woodpeckers. And I'll remind you that the Hideout Golf Course dug a pond in this area and didn't have to go through federal permitting, and that's what's triggered a lot of this discussion about the county taking an active role in protecting listed species because there are holes in the federal program. The sending land designation will protect RCW habitat and help them recover. So I'm urging you to please redesignate or excuse -- to redesignate section 24 from neutral to sending. Thank you very much. MS. FILSON: The next speaker is Bob Mulhere. COMMISSIONER FIALA: David, what page are we on? MS. FILSON: He must have left. John Cowan. MR. WEEKS: At this point, I'd say we're on page 5 in the Page 150 January 25, 2007 executive summary, the reason is, because the last couple speakers, the last three, have been discussing section 24. This change is not related to the ORC Report so it's not found within the response document. MS. FILSON: Mr. Cowan will be followed by Judy Hushon. MR. COWAN: My name is John Cowan, and I'm here on behalf of the Red-cockaded woodpecker and also speaking on behalf of my own economic self-preservation. In the first place, there's 12,500 Red-cockaded woodpeckers in the United States. They are protected under federal regulations, as they should be, and I believe that's a very good idea to have them protected and the population expanded. I'm in favor of that on a sensible basis. Mr. Weeks has given the major portion of my talk by explaining to you that there is a lot of frenetic activity very dense around the edges of section 24, and in the middle is a very high, dry oasis of very heavily forested slash pines, which is over 100 acres. Basically I am the owner of that middle portion. It does front all the way down to Brantley. But I own it on an unincumbered basis, not for speculation. I'm not a speculator. I have owned that land ever since the year 2000, but I bought it starting in 1992 tract by tract until I had the entire 102-acre parcel. The original plan has not changed one iota. It's five-acre zoning, has always been five-acre zoning, and until this afternoon, there's not been any really driven concerted effort to change it. Five-acre zoning with 102 acres is going to yield homesites of 20 homes, each home in a five-acre wooded section. A five-acre, high dry wooded section that close to Coastland Center and the Naples Airport is very, very rare, very, very hard to come by and demands a premium, obviously. Plan in writing with Don Pickworth on the contract is to preserve 90 percent of the slash pines; 90 percent of those trees would be kept Page 151 January 25, 2007 intact. There's no question about that. That's well above the 90 percent that Bocant and Company are after. Why haven't I worked on the development? Because of the specter of this changing at the sending lands. Nobody's going to put money in with that hanging over because it would reduce the number of homesites from 20 to six, and it wouldn't -- it absolutely destroys the economic value of the project. I wouldn't develop it myself, but I would find other people to develop it. CHAIRMAN COLETTA: Sir, I don't mean to interrupt you. But your time is up, but I'll allow you another minute to wrap everything up. MR. COWAN: Okay. The trees are perfect for habitat for Red-cockaded woodpeckers, but these woodpeckers travel in groups of five- family groups, and you need at least 1,800 acres for a -- such a group. Each family group needs 200 to 300 acres according to the survey. And no Red-cockaded woodpecker or nest or egg has ever been found on my property. There have been six separate studies, four of which I bought. One of the problems that woodpeckers are not there is because of the ATVs. The land is totally crisscrossed by ATV trails which wind in and out of the heavily trashed property. There's all kinds of furniture, bed springs, mattresses, washers, dryers, everything almost up to your knees. And with the A TV s creating this din day and night, there's just no chance for Red-cockaded woodpeckers, and that's the reason why they haven't been found. I would wonder why the EAC hadn't gone in and asked themselves, if there were such a perfect place for Red-cockaded woodpecker, why aren't there any there? And the reason is, it's an oasis. There's no linkage. Going clockwise, there's Don Buckley's nurseries, no trees. There's the Della Street (sic) and Birdsong Lane on the east side -- on Page 152 January 25, 2007 the west side. There's the golf course and the school land. There's no possibility for any linkage. And these birds, shy as they are, need that linkage. They're not about to come out there. If you decide that you want to change and go against the Planning Commission, you're going to have ATVs and dumping and mattresses and bed springs -- lawn more furniture than Rooms to Go does. Mine hasn't been lying out in the rain for 25 years, but that's the only difference. If you decide this is what you want to do, then you're condemning that land to 50 more years of A TV s' incessant noise and the dumping rather than having 90 percent of the trees preserved, inside a chain-link fence, get rid of the ATVs -- CHAIRMAN COLETTA: Sir, I've got to ask you-- MR. COWAN: -- get rid of the dump. CHAIRMAN COLETTA: -- to wrap it up. MR. COWAN: Okay. Thanks very much. CHAIRMAN COLETTA: Thank you, sir. MS. FILSON: Your final speaker is Judy Hushon. CHAIRMAN COLETTA: Commissioner Henning? COMMISSIONER HENNING: I'll wait till after. CHAIRMAN COLETTA: Wait till after the speaker. Hi, again. MS. HUSHON: You need to take your woodpecker. COMMISSIONER COYLE: That's why we don't have any. He killed the only one that was living there. CHAIRMAN COLETTA: It takes a lot of them to make a meal. MS. HUSHON: I wanted to -- Judy Hushon, EAC. And I'm also sitting on the HCP AC, so we've been looking at RCW s in depth. We were concerned about the RCWs. I wanted to point out that the survey that was done -- there were letters sent out, the staff did a survey. They only got access to a small percentage of the property, so they did not get access to his properties. Page 153 January 25, 2007 So one of the things -- you know, you say, if they weren't sighted at a given time, there were holes found, there were cavity trees. That's a good indicator. But you don't -- if you don't get access to enough of the land, you might not find the bird today. We don't have that many of them, that's why we're trying to preserve them. Also, it is a federally endangered species, and we're obligated to preserve them and to preserve their habitat. That's an obligation, not to do harm to them and to preserve that habitat. Hideout Golf Course has a preserved area because they have them on their property. Other areas in that area -- the school down there, the Nancy Payton School, I might point out, has a preserved area for this purpose. So I think the pointing that -- you know, all the areas don't have to necessarily be absolutely contiguous. They will move to a nearby area for foraging. That's just fine. But I just wanted to say, this is part of our reasoning. We also looked at the rest of section 24, and the only areas that we were really -- felt did not deserve the sending land designation were some of the very small lots that are on -- because of the size of the lots and the need to -- they have houses on them, they're already developed -- are on the east and the south, and you can look at this -- you can see that area right there on the east and the south. Those are very small lots, small houses, and those were the areas that the EAC felt should be excluded for that reason. Most of the other areas have not been developed. You certainly can put houses on them. Houses cans go in there. You can sell your TDC credits. You'll have TDC credits from this land, you know. So you can get income off your land that maybe you wouldn't have gotten selling the land. It's not -- some people think it's a premium to live on an RCW land and will sell at a premium for the land. So I just wanted to point out that the EAC did do this. We've thought about it. We acted on it. And we were kind of discouraged Page 154 January 25, 2007 when the Planning Commission said that it hadn't had enough study. Well, we think it maybe didn't have enough study either, but we felt that the amount of study it had was significant. We have found some significant things -- enough significant findings that maybe more -- we would like to see more study in the future to map those cavity trees and things. And we will be back talking to you with the AP -- with our RCW management plan, because that's another whole part of this, and it will actually help the landowners and protect them as well as the birds. CHAIRMAN COLETTA: Thank you. MS. FILSON: That was your final speaker, Mr. Chairman. CHAIRMAN COLETTA: Okay. Commissioner Henning? COMMISSIONER HENNING: It was stated that there's an RCW colony on the golf course? Do we know exactly where it is? Or the Hideout property, I should say. MR. HATCHER: For the record, Mac Hatcher with environmental services. There was a colony on a parcel that Hideout had as a preserve. There has been a fire and those trees are dead. When we did initial observations on the school board property the Conservation Collier bought, we observed birds there. We observed birds again when we went back in June to look at the Conservation Collier property for management. I did not observe any RCW s when I did the property surveys for the other parcels. So the school board property is the only one that we've seen live birds on. COMMISSIONER HENNING: Okay. Some people said in the past that I have ADHD, so I need to keep on track. I just asked you a question about the Hideout property . Was there RCW s on that property? MR. HATCHER: In the past. COMMISSIONER HENNING: Okay. I think you answered my Page 155 January 25, 2007 question. The -- I watched the Planning Commission meeting, and it was quite obvious to me, A TV sand RCW s commingling is just not a possibility . And the reason that we had this property studied is because the board had an objection to putting this in -- into sending lands because of the proximity of the lands, and the activity in this section, so that's why it remained in neutral lands. But you're not going to have any RCW s if you're going to have activities on there. You're going to scare them away. Hearing Commissioner Coletta, having seen RCW s in Golden Gate Estates or around his house, and Sue Filson's, the manager of the commission, I think they can cohabitate depending on the land use on there. Personally I don't see the area needs to be controlled. If it's controlled by people who live in that area, you have a better chance of controlling and bringing back RCW s. But you have a better factor if you have language in there that says 70 percent ofRCW habitat shall be retained instead of native vegetation. Because their vegetation is all flatwood; is that correct? Flatwood pine? MR. HATCHER: Yes. COMMISSIONER HENNING: So I think you'd hit the objective of what we want in this area if there's -- used to be RCW s there, we want to protect that habitat. That's my input. Just leave it alone neutral and change the word from native -- from native habitat, or native vegetation to RCW vegetation. CHAIRMAN COLETTA: Suggestion? COMMISSIONER HENNING: Yes. CHAIRMAN COLETTA: I think you're probably going in a very good direction, that 70 percent retaining the vegetation does not have much of a plus, if that vegetation is pepper bushes, if the forest floor has grown over. From what I understand, it requires a mixture of pines, relatively clear areas for the birds to be able to fly through. Page 156 January 25, 2007 And it's an effort to keep that land maintained like that. Possibly we might be able -- purely off the cuff -- to designate that as a residential area preserve combination where the landowners are required to maintain the land if they accept responsibility for it, and maintain it for that particular -- for the RCW preservation. And now, instead of us taking the land someday and having to spend thousands of dollars every year per acre trying to renovate it, we could put it onto the landowner, and them accepting it. I know, myself, if I had a choice, if money wasn't an object, I'd absolutely love to live in a preserve where everything is absolutely perfect and going to be one with nature. The thing I don't know is would the landowner be agreeable to something like this? Mr. Yovanovich? MR. YOV ANOVICH: If I may, the landowner already has the obligation to take care of the -- get rid of exotics and do all that stuff. So the requirement to retain 70 percent of the native vegetation -- and I guess you want us to understory or whatever it is you need to for -- CHAIRMAN COLETTA: To maximize the environment. MR. YOV ANOVICH: -- RCWs habitat -- for RCWs, we could do that, but we already have the obligation to maintain that. CHAIRMAN COLETTA: But you'd be willing to accept it in perpetuity? MR. YOV ANOVICH: Yes. I mean, when you own the land, you're going to have to do that anyway. CHAIRMAN COLETTA: Well, no, they don't. I mean, they can let it go in time. They can clear the whole darn thing, plant Floratam on it, and call it quits. I'm talking about in perpetuity, that keep it wooded, that they keep it an environment that would be conducive to the RCW. MR. YOV ANOVICH: If -- are you talking about -- and again, I only represent one property owner out there. If he were to do a development, are you saying to put the preserve area into a Page 157 January 25,2007 homeowners' association with the homeowners' association maintaining that area? Absolutely. That's an issue. Now, I can't speak for Mr. Cowan and his five-acre lot concept. I don't know -- I don't know what the owner of an individual five-acre lot owns. CHAIRMAN COLETTA: And I'm not too sure if it's Fiala or Coyle next. COMMISSIONER COYLE: Me. COMMISSIONER FIALA: Pardon me? COMMISSIONER COYLE: But, you can go first if you want to. COMMISSIONER FIALA: Okay. CHAIRMAN COLETTA: He's just trying to be nice to you, watch it. COMMISSIONER FIALA: Yeah. COMMISSIONER COYLE: I always defer to my elders. COMMISSIONER FIALA: Oh, it's tough working with these guys. Mac, have we -- it was stated that -- Mr. Cowan said there have been studies on his property and yet we've heard from others that there hasn't been. Do you know of any studies on Mr. Cowan's property to look for Red-cockaded woodpeckers? MR. HATCHER: No, I'm not -- I'm not aware of anything going on on his property. COMMISSIONER FIALA: So we actually don't know what's on that property; is that correct? MR. HATCHER: Correct. COMMISSIONER FIALA: Although, like Rich stated, the property owners are supposed to maintain their property, but then he said, they're knee deep in discards and furniture and mattresses, so apparently he hasn't been maintaining his property either. I'll tell you, I couldn't vote on this until our people got out there to see what the property actually contained. MR. WEEKS: If I may, Commissioner? Page 158 January 25, 2007 CHAIRMAN COLETTA: Yes, go ahead. MR. WEEKS: Your directive last May, when you transmitted this section to be changed as sending, was for staff to contact -- notify all the property owners and request permission to go onto their property. We did so. We only got a handful of affirmative responses. We can't trespass, so we -- COMMISSIONER FIALA: Yes, I understand that. MR. WEEKS: Staff did go out -- so I just wanted to make sure you're aware, we did go out onto the sites that we got permission for, and I think the conclusion was -- COMMISSIONER FIALA: This gentleman wants it to be receiving land and yet he wouldn't let us on his land to see it. And so, you know, without being able to see the property, as far as I'm concerned, it has to stay sending. MR. WEEKS: We're limited then to our evaluation based on the same data we used back in 2002, and that's aerial maps and other types of in-the-office type information and observations standing on one property, of course, and looking across the other properties within that area. CHAIRMAN COLETTA: We're going to go to Commissioner Coyle and come right back to you. COMMISSIONER COYLE: This is news to me. Are you saying that Mr. Cowan refused to give you permission to go into that property to do a survey? MR. HATCHER: We -- yeah. We only got positive response from six property owners. COMMISSIONER COYLE: And it didn't include Mr. Cowan? MR. HATCHER: Correct. MR. COWAN: Not true. COMMISSIONER COYLE: Well, that's disturbing. But the point is that from the very beginning what we have said is that there must be scientific evidence to make any changes in these properties, Page 159 January 25, 2007 and it seems to me that if we had somebody who was sending and they wanted to go to receiving, we would expect them to conduct a really exhaustive study to convince us that that was an appropriate thing to do. In this case, we want to change someone's property and we do it by just looking at some of them. Now, I understand the problem and if Mr. Cowan kept you from coming onto that property to do a proper survey, that doesn't make me particularly favorable to a ruling in his favor, okay? Because Mr. Cowan told me that he doesn't have an objection to you going on his property to do a survey. So there must be some kind of failure of communication somewhere, either between me and Mr. Cowan or you and Mr. Cowan. But I'm concerned about the survey problem. Because we made it very clear at the beginning we wanted some scientific evidence to help us substantiate any decision we wish to make. If there was an impediment to getting that done why didn't you let us know so that, perhaps, we could have helped you get it resolved? But to come before us with a survey that really hasn't been done, I think, is -- well, it doesn't provide us with the tools we need to make a decision. Now, here are my other concerns. Mr. Cowan said in his presentation that he will assure that 90 percent of all the slash pines will be retained on his property. How many will you have retained if we change it to receiving? All of them? MR. LORENZ: Receiving or sending? COMMISSIONER COYLE: I'm sorry. Sending, sending. MR. LORENZ: Sending. It would be 80 percent. COMMISSIONER COYLE: Okay. He's going to keep 90 percent. That's what he said. MR. LORENZ: The current neutral designation is 70 percent. COMMISSIONER COYLE: I know. He said he would keep 90 Page 160 January 25, 2007 percent of them ifhe were to develop that property. That's more than you would get if you had it as a sending category, I think; isn't that right? MR. LORENZ: Correct. COMMISSIONER COYLE: Now, I don't know what the golf course looked like before, but I have to presume there were trees on it before they built the golf course, but yet there's a colony of Red-cockaded woodpeckers living there. I don't see any area of trees larger than five acres there which is -- well, I guess it's smaller than five acres. But I would -- I would anticipate that that parcel of trees on the golf course is smaller than the parcels that Mr. Cowan is going to create ifhe were to develop it. So if Red-cockaded woodpeckers can live on a relatively small parcel on this golf course, why couldn't they live on relatively small parcels that are contiguous within Mr. Cowan's property? MR. LORENZ: Commissioner, I think -- just to make sure we clarify it, when we said that there's a previous colony associated with the golf course, it's on their mitigation site, not the active golf course. COMMISSIONER COYLE: Well, where is their mitigation site? MR. HATCHER: It's north of the golf course, adjacent to the Conservation Collier property. COMMISSIONER COYLE: Is it that -- is it that five acres -- roughly five-acre strip that goes right along the side of the Conservation Collier north. MR. HATCHER: It's-- COMMISSIONER COYLE: That part right there. MR. HATCHER: That part right there. COMMISSIONER COYLE: Okay. Now, let me ask you a question. If Mr. Cowan were to have a house built on the five-acre portion -- it's roughly five acres, I think, directly to the east of that, do Page 161 January 25,2007 you think that would make those Red-cockaded woodpeckers go away? MR. HATCHER: If he preserved 90 percent of the slash pines on the property, I don't think so. COMMISSIONER COYLE: Okay, that's where I'm going. What I'm looking for is a way to be fair about this and, at the same time preserve, a habitat that is critical to the Red-cockaded woodpeckers, whether they're there now or not. Maybe we'll get them there. And it would seem to me that if we could designate this as a preserve and permit it to be developed under those kinds of guidelines, then we could achieve the best of both worlds without trampling on somebody's right with what I believe is an incomplete study. Now, I would like to hear either from the commissioners or from somebody out there, Brad or Mr. Cowan, somebody, what you think of this potential compromise. MR. COWAN: 10:30 a.m., October 19,2006, I called Bill Lorenz and I said, help yourself, bring all the people you want on my property. I don't care. There's a hundred of them as we speak, and there's probably 30, even though today, on a rain (sic), running over all the property with A TV s. I told you, under no circumstances will I accept liability for anybody that gets run over by an A TV, and I'm sure you remember that conversation. CHAIRMAN COLETTA: All right. Listen, this is immaterial right now. I think we're going to get this resolved. The issue was about the preservation, that's what Mr. Coyle -- Commissioner Coyle was addressing to you. MR. COWAN: Well, I'm going to live there, and I'm going to agree to preserve my part. CHAIRMAN COLETTA: No. You own one heck of a lot of land. And what you do with the rest of it is your business now. It's how you sell it in the future that would be our business. That's what Page 162 January 25,2007 (sic) we're here today. We're trying to see if we could combine the best of best worlds -- both worlds, where you keep your property rights, be able to develop it to a point. You said you'd do 90 percent of the slash pines that would remain, and I'm not talking just on the five-acre parcel you build on. I'm talking about all the five-acre parcels you own throughout the thing and bringing them together to one continuous type of environment that would be conducive to RCW habitat. You're not agreeable to that though? MR. COWAN: Totally agreeable. CHAIRMAN COLETTA: Okay. MR. COWAN: I want to make it into private property, put a chain-link fence around it, keep those people from coming onto my property and make it a pristine forest, 90 percent. CHAIRMAN COLETTA: I understand that, and I'm going to ask you to step back and I'm going to ask Brad Cornell to step up here. Brad, we're trying to craft something here that's going to meet a lot more needs. Be honest with me now, if you got this turned into preservation, into a preserve, or what do you want to call it, sending lands? COMMISSIONER COYLE: Let's call it Cowan preserve. CHAIRMAN COLETTA: If this was sending lands, it would cost an absolute fortune to ever bring it up to par to where it would become our -- the habitat for the RCW. You'd also have to fence it in, you'd have to stop people from using the A TV s. The resources that would have to go into this to do that would be unbelievable. Can't we find a way to be able to marry these needs together so we can get there? MR. CORNELL: A couple of things. Brad Cornell with Collier County Audubon Society. A couple of things. You have the resources in policies in your -- in your -- if you designate this sending land, you have incentives to do Page 163 January 25, 2007 management, to actually fund actual management, that's one issue. So that would be an advantage to putting it in the sending land that you don't have now as neutral or -- CHAIRMAN COLETTA: But one out of 40 acres you can build on? MR. CORNELL: Well, no, but -- yes, that's correct, one out of 40 or per a nonconforming lot. Another issue is that for RCW habitat to be viable, to be -- for them to be able to use it, you have to manage it, you've got to burn it, and you can't burn it if there are houses strewn throughout it. That's just -- they're not -- that's incompatible, absolutely incompatibility. So if you don't have contiguous habitat without human uses within that habitat -- like for instance, the Picayune Strand-- CHAIRMAN COLETTA: I'm sorry, Brad. I'm going to interrupt you. I can tell you right now in order for this thing to be turned in from neutral to receiving, it's going to take four votes in the end to make it happen. You don't have four votes up here. How can you work this compromise out so we can still make this an RCW habitat without saying I'm going to -- I'd rather do it with nothing? MR. CORNELL: I'm just pointing out that if you can't manage it, it's not any good for RCW. If you've got-- CHAIRMAN COLETTA: That's-- MR. CORNELL: -- every single tree out there, if it grows up with cabbage palms and Brazilian pepper, it's absolutely useless. CHAIRMAN COLETTA: And I agree with you, I agree with you. MR. CORNELL: So what I'm suggesting to you is, that if you can somehow consolidate -- perhaps, if you're -- if you're looking for a private way, a leverage for this, then you require clustering so that you can amass 200 acres of preserve basically off away from those houses, then you can manage it. But if you can't manage it, it's not going to work. Page 164 January 25, 2007 CHAIRMAN COLETTA: I'm going to take it away from you just for a moment. Don't go away. Staff, you hear where we're going with this. You know the direction the commissioners are going. I can tell you right now, they're not going to take it from neutral into sending lands. It's not going to happen. We still would like to be able to save this thing and make it work. What suggestions have you got? MR. WEEKS: I'm going to make one comment and then let Bill make one -- CHAIRMAN COLETTA: And then I'll turn it over to my commissioners that are waiting. MR. WEEKS: Because what I'm hearing is that the sense is, we want to leave it neutral but impose a 90 percent native vegetation retention requirement? CHAIRMAN COLETTA: A little more than that. MR. WEEKS: More than that. CHAIRMAN COLETTA: Yes. To the point where we can be assured that the landowner will keep the land maintained in a way that would be conducive to the RCW habitat. MR. LORENZ: Yes, and I'll jump in. And I was conferring with Mac. What we would do is, the 90 percent requirement, and then we would require -- we could -- we could draft some guidelines ourselves to require that the understory and certain -- be maintained in a certain fashion mechanically. It couldn't be by fire, but it would be done mechanically. Obviously that would then place a burden on the homeowner for doing that in the future. CHAIRMAN COLETTA: Yeah. I want the homeowner to do it. I don't want to do it. I'm sorry, and I've got two commissioners waiting here. Who was first? COMMISSIONER HENNING: Commissioner Halas. CHAIRMAN COLETTA: Commissioner Henning? COMMISSIONER HENNING: Halas. Page 165 January 25, 2007 CHAIRMAN COLETTA: Halas, you're first. Take it. COMMISSIONER HALAS: Okay. Mr. Cowan, did I understand you correctly that you weren't just looking to put one house on here, that you were possibly looking at one house per five lots; is that -- CHAIRMAN COLETTA: No, five acres. COMMISSIONER HALAS: Five acres, I mean. MR. COWAN: One house per five acres; 20 houses, 102 acres. COMMISSIONER HALAS: Please come to the mike, sir. Yes, sir? MR. COWAN: That goes back 20 years. It was five-acre zoning. One homestead for every five acres. COMMISSIONER HALAS: And do you think that with that type of impact of one house per five acres, that you would still be able to retain 90 percent of that land as RCW habitat? MR. COWAN: Yes, sir. COMMISSIONER HALAS: So the lots -- there wouldn't be much front yard or back yard or side yard then, right? MR. COWAN: They want woods. CHAIRMAN COLETTA: Five acres is monstrous. COMMISSIONER HALAS: Yeah, I know. MR. COWAN: Monstrous. COMMISSIONER HALAS: Okay. Thank you very much. I just wanted to get clarification on that. CHAIRMAN COLETTA: Okay. Did you want to address somebody else? MR. COWAN: I brought the studies. CHAIRMAN COLETTA: That's okay, sir. We don't need them now. Commissioner Henning? COMMISSIONER HENNING: Well, I think a study by an expert is just as good as our expert from the staff going on there, but I Page 166 January 25, 2007 think we're beyond that. Commissioner, in sending lands, you have to maintain 80 percent, and what neutral lands, it is now, you've got to retain 70 percent. I don't think I could -- even though this gentleman wants it for his land, that's a small piece within section 24. And the reason I suggested to maintain it to RCW habitat is to reach the goal, is to maintain the species, the bird species, and let those come back into section 24. But in order -- if we -- if we require to do 90 percent, you'll never get that maintaining, the underlying maintaining of it. I'd say, leave it alone neutral, keep it at 70 percent vegetation requirement, and make them require to retain 70 percent of the RCW habitat. CHAIRMAN COLETTA: Commissioner Coyle? COMMISSIONER COYLE: One of the problems, Commissioner Henning, with that is that the 70 percent requirement is for native vegetation, not the slash pines, and the slash pine is what is important for the Red-cockaded woodpecker habitat. So I'm afraid if we only required 70 percent native vegetation, then we could have cabbage palms in there and that would count. COMMISSIONER HENNING: Oh, no. I apologize if that's the way it came across. What I would like to have is 70 percent RCW habitat retained. COMMISSIONER COYLE: Well, I certainly would too, but I'd rather have 90 percent retained, and I believe that that would be consistent with Mr. Cowan's interest. I can't imagine anybody who would go in there and buy one of those lots and want to cut down all those trees. You know, I think that with some judicious design -- I know roads can be designed around trees. You don't have to cut the trees down in order to build a road to access the property, and you'll need to cut down some trees, perhaps, in some of these areas to clear a place to build a home but that Page 167 January 25, 2007 certainly wouldn't -- that could be done without destroying more than 10 percent of the trees. So if Mr. Cowan believes that he can do that -- and I believe he can, I believe it's a fairly easy task -- I would rather go for as much as we can get out of this, if we can. But I believe the primary objective should be to preserve as much of the habitat as we possibly can without trampling on someone's private property rights, particularly without a fully completed study. And without a fully completed study -- and I'm very disturbed that there apparently is a communication problem, that we didn't get this resolved before we got to this point. We made it very clear that we needed a complete study last time, and I can't vote for a change in designation because of that reason, but I'm as interested in preserving the habitat as anybody else. So if we could do both, let's do both. CHAIRMAN COLETTA: I agree. Commissioner Halas? COMMISSIONER HALAS: Yeah. Would that suffice if we had some type of an agreement by the owner of this land that he retain 90 percent of that into cockaded woodpecker habitat? MR. COWAN: Yes. COMMISSIONER HALAS: Brad? MR. CORNELL: My opinion is, that if you're asking individual lot owners on a five-acre basis to maintain Red-cockaded woodpecker habitat -- we have a model for that. It's Golden Gate Estates, and I don't think that's a good example of stewardship habitat reasons. They're all homesites. People have other agendas. And you know, every year there'll be a swimming pool, there'll be a tool shed, there'll be a parking lot, they'll be working on the cars. I don't think you're going to get it. I don't think you have the enforcement staff to make sure you get it, even if you would want to. And I would support that if I thought you could. Page 168 January 25, 2007 I think if you had clustering where you knew you had a preserve and you put all -- and you gave the same density but put the clustering somewhere. If you're not going to go sending, want to still allow for the one per five, then cluster it in section 24, and then you've got a maintenance area that is contiguous. To me that's the way to look at it. CHAIRMAN COLETTA: Mr. Yovanovich, please. I want to bring this thing to a conclusion. MR. YOV ANOVICH: I'm just confused. Are we talking about just to Mr. Cowan's land with this 90 percent requirement? COMMISSIONER HENNING: No, no. COMMISSIONER COYLE: Yeah. MR. YOV ANOVICH: Well, just Mr. Cowan's? Because there are other property owners out there that -- CHAIRMAN COLETTA: Well, wait, wait-- MR. YOV ANOVICH: -- that don't -- CHAIRMAN COLETTA: -- this doesn't make any sense. If we're just talking his land -- he only owns a small piece of that, right? COMMISSIONER COYLE: Well, most of it he owns. MR. YOV ANOVICH: He owns 100 acres. COMMISSIONER FIALA: He owns this part all in here. CHAIRMAN COLETTA: Oh, the whole big center part? COMMISSIONER FIALA: Yeah. COMMISSIONER COYLE: Yeah. MR. YOVANOVICH: Yeah. CHAIRMAN COLETTA: Could we impose the same regulations on the other people on the unimproved lots? COMMISSIONER COYLE: Well, you've got Conservation Collier there. What're you going to do with them? CHAIRMAN COLETTA: Well, no. They're fine. COMMISSIONER COYLE: Okay. Page 169 January 25, 2007 MR. YOV ANOVICH: Well, there's others that honestly evidently -- you know, it's odd. I mean, this is -- you're making up new stuff as we go along here that other property owners, frankly, can't live with a 90 percent preservation requirement on their lands. COMMISSIONER FIALA: Rich must have -- you have one of these other five-acre parcels? MR. YOV ANOVICH: I have, I think, about, you know, 60 to 80 acres that Mr. Kent owns and Hideout Golf Course owns in combination. COMMISSIONER COYLE: Tell us where that is. MR. YOV ANOVICH: It's over towards the east side of the section and some scattered up north. So they're not -- they're -- that's a standard that we're not comfortable with, and, frankly, devalues the property more than it's already been devalued, because now you're saying you're neutral at a 90 percent preservation requirement. Right now we're neutral at a 70 percent preservation requirement. And as you know when you're neutral, you have no sending or receiving rights, so you're really harming some other properties. We're comfortable -- right now -- and let's not forget, under neutral designation right now, you can cluster. So if you have the ability to cluster, more than likely, as a developer, you're going to do that. Now, Mr. Cowan may want to do five-acre parcels, but someone else probably is going to want to put the homes together in a compact area and have that nice preserve amenity, and under neutral you can do that. Or if you go to a 90 -- the worst-case scenario is you now say you're going to have a 90 percent preservation requirement, you're neutral with a 90 percent preservation requirement. You're now encouraging somebody to become a farm. CHAIRMAN COLETTA: Okay, Richard. COMMISSIONER COYLE: I've had it. Page 170 January 25, 2007 CHAIRMAN COLETTA: I have to break this. Hold it a minute. Staff, if you haven't got any recommendations, I'm going to ask for a motion. What recommendations do you have? MR. WEEKS: Could you give me just a moment, Commissioner. CHAIRMAN COLETTA: Okay. We'll hum so we don't have to listen to you. COMMISSIONER FIALA: Don't hum loud, please. MR. WEEKS: Commissioner? CHAIRMAN COLETTA: Yes. MR. WEEKS: Before Bill mentions the staff position, I'd like to make one observation because we've been focusing on residential land use and assuming that these properties are going to develop with residential. I want to point out to you that if it remains neutral as opposed to sending, there are a variety of other land uses allowed. Now, granted, most of those would be conditional uses which means they will have to come to you for approval, but neutral lands allows for the variety of institutional uses like private school, day care, church, nursing home, excavation -- COMMISSIONER HALAS: Gas stations. MR. WEEKS: -- zoo, several other types of land uses. And I mention that because of the context there and the potential noise and other impacts to property and the surrounding properties is much different than residential development. Also, with whatever type of density -- excuse me. Whatever type of vegetation retention requirement that you might impose on these properties, if there's not some clustering requirement, then that means that section, assuming all of it develops that is privately owned, potentially is going to be covered with infrastructure, roads, like veins going all through that property, and that, of course, further fragments those properties. Page 171 January 25, 2007 MR. LORENZ: One thing you could potentially look at is -- and the clustering certainly makes sense, and that's where -- where if you could cluster a creative preserve area, that preserve area would function very well, and you could, if you -- if you are willing to do clustering, then you need only to preserve 70 percent. If you're not willing to do clustering, then you're at the 90 percent retention requirement. That would be -- that would be one way to look at it. A second recommendation would be, is that we do know that there have been old cavity trees. Mac has found old inactive cavity trees out there. Any development would be -- we'd want to have a requirement that you do a cavity tree survey prior to construction. So I think that would be another standard that we could apply. Another -- another recommendation would be -- again, is for management purposes, that we would want to have the area to be managed for RCW, which means that periodically you'd need to go in and remove or thin out that understory, and that could be done by mechanical means. Staff can create some criteria, some guidelines, over which we would evaluate that. CHAIRMAN COLETTA: Okay. So if we made a motion to accept your recommendations as part of our motion, you would have to bring something back to us later, I would take it. Because we really haven't covered it. You couldn't possibly cover the depth of the details standing there, I don't think. How does this work? MR. LORENZ: Well, as a policy, I would -- I would simply-- and for the Growth Management Plan, specify that the area remain as neutral, that the vegetation retention requirement would be 90 percent with no clustering, 70 percent with clustering, that any -- for any -- before any development occurs, a nesting survey would be performed and that the lands within what we're proposing as -- what staff is proposing as the sending lands, that lands within that area be -- the area that's being retained be managed for RCW s through mechanical means. Page 1 72 January 25,2007 CHAIRMAN COLETTA: That's-- MR. LORENZ: And if you had simply those bullet points within this policy, I think that we could work the details out where we could administer that component. Now, I know that -- and I'm not sure if Joe wants to speak. We would have to -- those would be the standards that would be put in place. Programmatically, of course, the question for staff is, how do we administer some of that? Do we attach some type of requirement to the building permit, do we do -- do we do proactive inspection by staff -- CHAIRMAN COLETTA: That's after the fact, right. MR. LORENZ: But that's all after the fact. That's not the standards that are to be -- CHAIRMAN COLETTA: But I'm-- MR. LORENZ: -- addressed in the GMP. CHAIRMAN COLETTA: -- taking those suggestions you just made and incorporating them into a motion. Do I have a second? COMMISSIONER COYLE: Second. CHAIRMAN COLETTA: Okay. I have a motion by myself, Commissioner Coletta, and a second by Commissioner Coyle. Any discussion? Commissioner Henning? COMMISSIONER HENNING: Well, if you want to develop this section to encourage RCW s to go there, you need to remove those egregious type land uses, like Mr. Weeks stated, and I don't think we've done that. Is that correct, David? MR. WEEKS: That's correct. If you leave it as neutral, those other uses are still available. CHAIRMAN COLETTA: Okay. So we need to remove them. COMMISSIONER HENNING: May I finish? Is that through the Growth Management Plan or Land Development Code? MR. WEEKS: Actually the Growth Management Plan because it Page 173 January 25, 2007 identifies the allowing uses as well. COMMISSIONER HENNING: Okay. I, myself, I would like to leave it as is, direct staff to bring something back in order -- in the lines of, you know, what can we do to encourage the habitat to forage there and remove all those different land uses that are not compatible with it, and be ready for some specifics in the Land Development Code. That would be my preference. CHAIRMAN COLETTA: That would be in addition to the motion? COMMISSIONER HENNING: Nope. CHAIRMAN COLETTA: Separate motion? COMMISSIONER HENNING: No. I mean, it's not a clean amendment to the Growth Management Plan because you haven't removed earth mining, Hooters -- COMMISSIONER COYLE: Pawn shops. COMMISSIONER HENNING: -- pawn shops, gas stations. CHAIRMAN COLETTA: Well, how about limiting it just to residential use, and rather than allow what isn't allowed, tell them what is allowed and we could put that into the motion? We need to get there, because if we don't, we're not going to have it going to sending, obviously, from this discussion taking place here. So how can we protect this resource? MR. WEEKS: Mr. Chairman, if I may, for clarity, and working on the fly here, but taking off what was just said, I suppose we could say, limit the uses to agricultural because we are constrained by the Florida Right to Farm Act, so uses consistent with the Florida Right to Farm Act, residential uses and essential service? CHAIRMAN COLETTA: No. Essential services, I don't think, would be compatible with an RCW habitat. MR. WEEKS: Okay. COMMISSIONER HENNING: Well, we set aside -- Commissioner, if you don't mind me interjecting -- the possibility of Page 174 January 25, 2007 the school board property for right-of-way for Mr. Feder, and I think that's where it comes from, Mr. Weeks, when you say essential services? CHAIRMAN COLETTA: No. MR. WEEKS: I was actually thinking more of building -- CHAIRMAN COLETTA: Environment. MR. WEEKS: -- buildings, but that's true, roads and utility lines are also essential services that would be -- CHAIRMAN COLETTA: Well, we already made provisions to be able to have the right-of-way for the 16th -- conceptual 16th some day, and I don't think there's anything else that's planned to go through there, and I'm not too sure. But all I can tell you is we need to get there now. This has been discussed for a long time. COMMISSIONER HENNING: Look at the map. CHAIRMAN COLETTA: I'm looking at it. I've got it right in front of me. COMMISSIONER HENNING: Okay. The school board property's marked. You're going from left to right where a potential road right-of-way is, so it's more than the school property. You see what I mean? So you want to leave essential services in it. CHAIRMAN COLETTA: Essential services limited to roads. MR. WEEKS: Mr. Chairman, may I offer -- excuse me. CHAIRMAN COLETTA: Yes. MR. WEEKS: May I offer -- in the conservation designation there's a provision for essential services that is narrow in scope. CHAIRMAN COLETTA: Where is that? MR. WEEKS: If I may read this into the record. Essential services necessary to serve permitted uses identified above, which in this case, as I understand it, you're contemplating residential uses only. CHAIRMAN COLETTA: Correct. MR. WEEKS: That would be things such as a private well and septic tank, utility lines, septic sewer lines, sewer lines and lift stations Page 175 January 25, 2007 only -- skip that part. That's it. Essentially it would be those things, for example, like in Golden Gate Estates where you have a single-family home that's not on a central utility, then you can have a well and septic tank. But the distinction here, because this is designated as neutral lands, it is -- it is within the water/sewer service area. So I need to ask you, is your intent that this area would still be served by central water and sewer? I would think you may want it to, especially if we're going to mandate clustering. CHAIRMAN COLETTA: We could leave that option open. MR. WEEKS: Okay. CHAIRMAN COLETTA: But I wouldn't want to make it mandatory at this time, because I don't know, clustering might not work unless you can put it in. I don't see how it's possible with the distance you've got to travel, but who knows. I'm not about to make that judgment call. Some help from Commissioner Halas? COMMISSIONER HALAS: How do we control where somebody wants to come in later on after they build a house and say now I want to permit -- I want to get a permit for a garage so I can work on my dump trucks? MR. WEEKS: That would be an allowable accessory use. CHAIRMAN COLETTA: As long as they didn't exceed the 90 percent of habitat that they're supposed to maintain. COMMISSIONER HALAS: But how are we going to control whether it's 90 percent or not? That's my question. As a good example would be -- CHAIRMAN COLETTA: We can forget the whole thing right now. I see some people shaking their head. We can just write it off and stay neutral, but that's not going to work either. COMMISSIONER HALAS: Well, what I'm concerned about-- as was brought up whereby these five-acre lots that are out in Golden Page 176 January 25, 2007 Gate Estates, there's some areas where -- they completely deforest it, they put large garages in there, maybe house a couple of 18 wheelers because the guys probably work on their own trucks and stuff. So I've got some concern. I'm not sure how we can mandate something and yet have control over it. CHAIRMAN COLETTA: Well, you're going to have less control if this particular motion fails because it would just go back to being what it is now, neutral land, build one per -- one per five acres, 70 percent retention, and we're all done. Okay. What else have we got to add to this? Because if this motion fails, it fails, and we're going to get on with the rest of the agenda. Coyle? COMMISSIONER COYLE: Yeah, no. I was just saying to you, I'm tired of working this thing to death. We've complicated it to the point where it's not even worth considering anymore, and I'd just as soon leave it the way it is and get away from it. Let's go. Everybody wants what everybody wants and nobody wants to compromise. So when you get into a situation like that, you don't get CHAIRMAN COLETTA: I've still got a motion on the floor. I might not have your second, but maybe I'll get a second -- COMMISSIONER COYLE: No, I'll leave my second on it. CHAIRMAN COLETTA: Okay. The motion is, as is, stated, you heard it, and I don't think we need to repeat the whole thing, and it gives direction to staff to be able to come back, it leaves all sorts of options, it tells you it's residential. I think we're there, I mean, as much as we can do in this period of time. Okay. With that, any other discussion? (No response.) CHAIRMAN COLETTA: All those in favor -- remind you, if the motion fails, it just remains as is. Page 1 77 January 25,2007 All those in favor of the motion as so stated -- COMMISSIONER FIALA: But remains as is neutral and now anything can happen on it? CHAIRMAN COLETTA: That's correct -- as is, remains as. Okay. Now those in favor of the motion, indicate by saying aye. COMMISSIONER COYLE: Aye. COMMISSIONER HALAS: Aye. CHAIRMAN COLETTA: Aye. COMMISSIONER FIALA: Aye. COMMISSIONER HENNING: Aye. CHAIRMAN COLETTA: Opposed? The ayes have it, 5-1 (sic). Thank you. 5-0, geez. I'm telling you. Boy, that was a little too long. 5-0. MR. WEEKS: Mr. Chairman? CHAIRMAN COLETTA: Break. We're going to take a break. (A brief recess was had.) MR. COHEN: Commissioner, you have a live mike. MR. WEEKS: Mr. Chairman, if you permit me, we'd like to go over that motion you made to make sure that staff is clear. Obviously we need to know the language changes to make. If you'll permit me, I'd like to walk through staffs understanding. Number one, section 24 is to remain neutral and, number two, if the property is not -- if a property is not developed using clustering, then 90 percent of the vegetation must be retained, and this is a question. Was your motion for native vegetation or was it specific to the slash pines? Because there was discussion at different times about CHAIRMAN COLETTA: What was staffs suggestions? Because we incorporated them as it was. MR. SCHMIDT: Okay. Staffs suggestion is 70 percent either way and for the not clustered, 90 percent of the slash pines. CHAIRMAN COLETTA: Yeah, that's what my understanding Page 178 January 25, 2007 was, too. MR. WEEKS: Slash pines, okay. COMMISSIONER COYLE: Wait a minute. Seventy percent native vegetation and 90 percent slash pines if it's not clustered, that's what he said, right? MR. SCHMIDT: That's correct, yes. MR. COHEN: Yes. MR. WEEKS: A nesting survey for the RCW would be required prior to development. The lands would have to be managed for the RCW by mechanical means only, and finally, the uses would be limited to, number one, residential, number two, agricultural uses consistent with the Florida Right to Farm Act and, number three, the essential services as are allowed in the conservation designation, except we will need to modify that to clearly denote that central water and sewer is allowed. And that's it. CHAIRMAN COLETTA: I think that covers everything. Did we miss anything? Commissioner Halas? COMMISSIONER HALAS: I have a question. If you leave farming in there, then somebody could come in and remove all the trees, correct? CHAIRMAN COLETTA: You could do it anyway. MR. WEEKS: That is correct. But as we went through the rural fringe amendments back in 2002, our legal counsel told us that you cannot restrict all ago uses. That's why it's narrowed down to those consistent with the Florida Right to Farm Act. COMMISSIONER HALAS: Does this have any ripple effect through the rural land stewardship area as far as TDRs? MR. WEEKS: No, sir. It's only applicable to this one section within the rural fringe mixed-use district. COMMISSIONER HALAS: Okay. CHAIRMAN COLETTA: And being the fact that it was neutral to start with, it's neutral remaining. There's no loss or gain. Page 1 79 January 25, 2007 MR. COHEN: Mr. Schmidt, I think we're ready to move to the next item. CHAIRMAN COLETTA: Please do. MR. SCHMIDT: All right, thank you. Commissioners, that was the first of the non-ORC based changes. We have another also in the FLUE regarding a small change, and Don Scott will speak to that. CHAIRMAN COLETTA: Okay. Could you give us a page reference, or isn't there one? MR. SCOTT: Page 78 in the North Belle Meade overlay. MR. WEEKS: Commissioners, you do not have this in your packet. It's on the visualizer. CHAIRMAN COLETTA: Okay. MR. SCOTT: Previously this had come forward as part of Florida Rock and Mining operations, and they did a private study, identified a route. In there it has a date where the haul route should be built by this June. Weare working with them with some of the issues that are to move forward, but we would like to revise that date to 2010, if possible. And I don't believe it's going to take that much time, but obviously we're not going to have it done by June at the rate we're going either. CHAIRMAN COLETTA: Commissioner Fiala? COMMISSIONER FIALA: Yes. Not till 2010, to the year 2010. That means a lot of homes could be built up around there by that time before a road will ever be built. MR. SCOTT: Well, the issue we're dealing with right now is that we have an alignment that was identified, we also have, in the long-range plan, but some of the land that it crosses is not -- it not owned by either of us, the county or Florida Rock. Obviously it depends how hard it is to get a right-of-way acquisition, some other issues. At the moment I can't answer all the questions. We are working on those issues. If you would like, we Page 180 January 25, 2007 could move it out a little bit and then obviously update later on. But as to moving forward, we're trying to move forward, but we do have some problems. CHAIRMAN COLETTA: Okay. COMMISSIONER FIALA: Well, for the moment, yeah. CHAIRMAN COLETTA: Yeah. Let's get a review of it, take some notes down. And when we get to the point where either Scott (sic) finishes or takes a deep breath, we'll start taking questions. MR. SCOTT: Taking any questions. COMMISSIONER FIALA: And this is what it's going to read, but we don't have that in here? MR. SCOTT: No. This is what it is before, and we'd like to change that to June 2010. CHAIRMAN COLETTA: That's the only change on there? MR. SCOTT: Yes. CHAIRMAN COLETTA: Okay. I mean, I wished I could make it happen sooner. I realize what we're up against. You know, there are restraints in what can be done. And I know that the biggest motivating factor out there is by the petitioner to get this darn thing in, and I'm sure they're not going to delay it. MR. SCOTT: That's correct. CHAIRMAN COLETTA: Questions. Commissioner Fiala? COMMISSIONER FIALA: Yes. Is there any way that we can notify future buyers somehow that they're buying into an area that will then be mined for -- how many years is it; 40 years or 20 years? It's a real long time, right? MR. SCOTT: It's -- what's in there is to excavate at a certain level, yes. It's at least 20 or 30 years' worth of excavation. COMMISSIONER FIALA: Yeah. Some way that -- MR. SCOTT: Obviously we'll be having a lot of contact with property owners up and down the area as we move forward through this process, so I'm assuming that will meet what your intent is. Page 181 January 25, 2007 COMMISSIONER FIALA: But then those who possibly don't care to mention to the people they sell it to that this is happening, and then -- you know, then in the end we're going to be stuck answering to these people because their owner didn't tell them, right? CHAIRMAN COLETTA: One of the good things is the fact that this is where the former AP AC mine was. It's going to be to the -- let me see if I can get my directions. The south of it? MR. SCOTT: Yeah, directly south. CHAIRMAN COLETTA: Yeah. It's going to be to the south of it. It would be almost a continuation of AP AC. It's going to be farther away from the residential neighborhoods. But with that said, you are going to have truck traffic that's going to be a negative, and there's already anticipation all the way from Wilson Boulevard down 951 over this particular amount of truck traffic, and that's going to have to be dealt with. MR. SCOTT: Well, this is a piece of -- we have a corridor study to look at the whole piece, all the way from Wilson all the way down to 41. This is a piece of that, and we'll be starting that fairly soon with a lot of public involvement, and I think we'll meet some of what you're talking about, too. COMMISSIONER COYLE: Motion to approve. CHAIRMAN COLETTA: Second. Any other discussion? Commissioner Fiala, anything else? COMMISSIONER FIALA: No. CHAIRMAN COLETTA: Okay. And with that, seeing no other lights on, I assume there's no other comments. So all those in favor, indicate by saying aye. COMMISSIONER COYLE: Aye. COMMISSIONER HALAS: Aye. CHAIRMAN COLETTA: Aye. COMMISSIONER FIALA: Aye. Page 182 January 25, 2007 COMMISSIONER HENNING: Aye. CHAIRMAN COLETTA: Opposed? (No response.) CHAIRMAN COLETTA: The ayes have it, 5-0, MR. SCHMIDT: All right then, Commissioners. If we quickly return to the idea of amending the mining extraction site map. There was not a consensus of nodding of the heads whether to leave it as is or to add an 8A, add a second dot or what. CHAIRMAN COLETTA: I don't care. Do you? COMMISSIONER HALAS: Doesn't matter. CHAIRMAN COLETTA: Somebody make a decision here. COMMISSIONER HALAS: Put an 8A. on there. CHAIRMAN COLETTA: There we go. We've got an 8A. MR. WEEKS: And would you like existing added as well? COMMISSIONER HALAS: Existing, yes. MR. WEEKS: Thank you. CHAIRMAN COLETTA: Thank you. MR. SCHMIDT: Moving right along, next item. In the Immokalee Area Master Plan there are some changes to note that match changes you made earlier in the FLUE regarding density bonuses. You did not remove certain bonus densities and they were proposed for removal in the Immokalee Area Master Plan. Just for internal consistency, the suggestion is you leave them in as well. CHAIRMAN COLETTA: Okay. MR. SCHMIDT: And if that's an all-around nod, thank you. COMMISSIONER FIALA: You want to leave it then? CHAIRMAN COLETTA: I'm okay. MR. SCHMIDT: That brings us to the end of business unless there's question, we have answers. Then after that, we will go through each element of the GMP with an individual vote. CHAIRMAN COLETTA: Okay. Now, do you need some sort Page 183 January 25, 2007 of motion to cover what we already did, or are we covered? MR. SCHMIDT: I believe you're covered at this point. MR. COHEN: What needs to transpire next, Commissioner, and legal counsel can correct me if I'm wrong, there will be individual votes on each individual element and ordinance, and we'll run you through those one by one. MS. STUDENT-STIRLING: And that would mean just to say, I think if we just state what element or subelement it is, that that would suffice. I mean, you're not going to do a summary of the elements, I trust. CHAIRMAN COLETTA: Yes. MR. WEEKS: Mr. Chairman, I apologize. Back to that Future Land Use Map series of the commercial mining operation, there's a misunderstanding on my part. We need to do one or the other. Adding 8A is adding a site that's approved but not developed. And I would respectfully ask that you make a new motion only to add the term existing so that -- CHAIRMAN COLETTA: Right. MR. WEEKS: -- and then not identify. COMMISSIONER HALAS: Okay. CHAIRMAN COLETTA: Make it quick. COMMISSIONER HALAS: I make a motion that we have the terminology of existing. CHAIRMAN COLETTA: Okay. I second it. COMMISSIONER HALAS: Okay. CHAIRMAN COLETTA: And discussion? Commissioner Henning? COMMISSIONER HENNING: Well, Brad Cornell's gone now. Can we go ahead and change everything back like we discussed? COMMISSIONER COYLE: And Rich Yovanovich, too. Item #2A Page 184 January 25, 2007 ORDINANCE 2007-07: APPROVING THE CAPITAL IMPROVEMENT ELEMENT-ADOPTED CHAIRMAN COLETTA: Okay. We have a motion. All those in favor of the motion, indicate by saying aye. COMMISSIONER COYLE: Aye. COMMISSIONER HALAS: Aye. CHAIRMAN COLETTA: Aye. COMMISSIONER FIALA: Aye. COMMISSIONER HENNING: Aye. CHAIRMAN COLETTA: Opposed? (N 0 response.) CHAIRMAN COLETTA: The ayes have it, 5-0. COMMISSIONER COYLE: Motion to approve the capital improvement element. COMMISSIONER HENNING: Second. COMMISSIONER COYLE: All in favor, please signify by saYIng aye. COMMISSIONER COYLE: Aye. COMMISSIONER HALAS: Aye. CHAIRMAN COLETTA: Aye. COMMISSIONER FIALA: Aye. COMMISSIONER HENNING: Aye. COMMISSIONER COYLE: Any opposed, by like sign? (No response.) COMMISSIONER COYLE: It passes unanimously. MR. COHEN: Commissioners -- and this is something going back to yesterday with the CIE, and I hate to interj ect at this point in time after your motion. As part of the AUIR yesterday, you discussed financial feasibility aspects of it and removing certain monies and taking out certain projects. And I believe Mr. Scott needs to amend the plan as is in there to remove certain proj ects before you make that Page 185 January 25, 2007 motion. MR. SCOTT: What we discussed yesterday was to make sure that we had actual funding sources and to take out the money that was in the DCAs and others. COMMISSIONER COYLE: My motion -- maybe you missed the clarification. My motion was to approve it contingent upon the clarifications that were made yesterday during the AUIR hearings. COMMISSIONER HENNING: And that's part of my second. COMMISSIONER COYLE: Okay. COMMISSIONER FIALA: We heard that. COMMISSIONER COYLE: That's what I thought. CHAIRMAN COLETTA: Okay. So we have a motion by Commissioner Coyle and a second by? COMMISSIONER HENNING: Commissioner Henning. CHAIRMAN COLETTA: Henning, okay. And a second by Commissioner Henning. Discussion? I see your light's on, Commissioner Henning. Something you want to add to this? COMMISSIONER HENNING: You can turn it off. CHAIRMAN COLETTA: Okay. Any other discussion? (No response.) CHAIRMAN COLETTA: No discussion. All those in favor, indicate by saying aye. COMMISSIONER COYLE: Aye. COMMISSIONER HALAS: Aye. CHAIRMAN COLETTA: Aye. COMMISSIONER FIALA: Aye. COMMISSIONER HENNING: Aye. CHAIRMAN COLETTA: Opposed? (No response.) CHAIRMAN COLETTA: The ayes have it, 5-0. COMMISSIONER HENNING: Motion to approve the sanitary Page 186 January 25, 2007 sewer sub-element. COMMISSIONER FIALA: Second. COMMISSIONER COYLE: Which one? COMMISSIONER HENNING: Sanitary sewer. COMMISSIONER COYLE: Sanitary sewer, okay. MR. SCHMIDT: Excuse me? COMMISSIONER COYLE: Did we list transportation element? COMMISSIONER HENNING: We did that. That was in your motion. COMMISSIONER COYLE: Capital improvement element. MR. SCHMIDT: Your primary amendment to the last motion was to the CIE. COMMISSIONER COYLE: Yes. MR. SCHMIDT: In order -- your transportation element is now COMMISSIONER HENNING: I'll remove my motion. Item #2B ORDINANCE 2007-08: APPROVING THE TRANSPORTATION ELEMENT - ADOPTED COMMISSIONER COYLE: Okay. Motion to approve the transportation element. COMMISSIONER HENNING: Second. CHAIRMAN COLETTA: We have a motion from Commissioner Coyle, a second by Commissioner Henning. Any discussion? (No response.) CHAIRMAN COLETTA: Seeing none, all those in favor, indicate by saying aye. COMMISSIONER COYLE: Aye. Page 187 January 25, 2007 COMMISSIONER HALAS: Aye. CHAIRMAN COLETTA: Aye. COMMISSIONER FIALA: Aye. COMMISSIONER HENNING: Aye. CHAIRMAN COLETTA: Opposed? (No response.) CHAIRMAN COLETTA: The ayes have it, 5-0. Item #2C ORDINANCE 2007-09: APPROVING THE SANITARY SEWER SUB-ELEMENT - ADOPTED COMMISSIONER HENNING: Motion to approve the sanitary sewer subelement. COMMISSIONER COYLE: Second. CHAIRMAN COLETTA: Okay. We have a motion by Commissioner Henning, a second by Commissioner Coyle. Any discussion? (N 0 response.) CHAIRMAN COLETTA: Seeing none, all those in favor, indicate by saying aye. COMMISSIONER COYLE: Aye. COMMISSIONER HALAS: Aye. CHAIRMAN COLETTA: Aye. COMMISSIONER FIALA: Aye. COMMISSIONER HENNING: Aye. CHAIRMAN COLETTA: Opposed? COMMISSIONER HENNING: Motion to approve the -- CHAIRMAN COLETTA: I'm sorry- Item #2D Page 188 January 25,2007 ORDINANCE 2007-10: APPROVING THE POTABLE WATER SUB-ELEMENT - ADOPTED COMMISSIONER HENNING: -- potable water subelement. CHAIRMAN COLETTA: -- 5-0. COMMISSIONER HALAS: Second. CHAIRMAN COLETTA: Okay. We have a motion by Commissioner Henning and a second by Commissioner Halas. All those in favor of that motion, indicate by saying aye. COMMISSIONER COYLE: Aye. COMMISSIONER HALAS: Aye. CHAIRMAN COLETTA: Aye. COMMISSIONER FIALA: Aye. COMMISSIONER HENNING: Aye. CHAIRMAN COLETTA: Opposed? (No response.) CHAIRMAN COLETTA: The ayes have it, 5-0. Item #2E ORDINANCE 2007-11: APPROVING DRAINAGE SUB- ELEMENT - ADOPTED COMMISSIONER HENNING: Motion to approve the drainage sub-element. COMMISSIONER COYLE: Second. CHAIRMAN COLETTA: We have a motion by Commissioner Henning, a second by Commissioner Coyle. Any discussion? (No response.) CHAIRMAN COLETTA: Seeing none, all those in favor, Page 189 January 25, 2007 indicate by saying aye. COMMISSIONER COYLE: Aye. COMMISSIONER HALAS: Aye. CHAIRMAN COLETTA: Aye. COMMISSIONER FIALA: Aye. COMMISSIONER HENNING: Aye. COMMISSIONER COYLE: Now, could I just clarify something? When you're -- CHAIRMAN COLETTA: Opposed? COMMISSIONER COYLE: No, I'm okay with it. CHAIRMAN COLETTA: No opposed, 5-0. COMMISSIONER COYLE: When we're approving these, you are, of course -- you understand that we're approving them based upon any discussions we had that might have changed these earlier in the day? MR. COHEN: Yes, sir. COMMISSIONER COYLE: That's true of all these. MR. SCHMIDT: Yes. COMMISSIONER COYLE: Okay, good. Item #2F ORDINANCE 2007-12: APPROVING THE SOLID WASTE SUB- ELEMENT - ADOPTED COMMISSIONER HENNING: Motion to approve the solid waste subelement. COMMISSIONER HALAS: Second. COMMISSIONER COYLE: Second. CHAIRMAN COLETTA: So we have a motion by Commissioner Henning, second by Commissioner Halas, for approval. All those in favor, indicate by saying aye. Page 190 January 25, 2007 COMMISSIONER COYLE: Aye. COMMISSIONER HALAS: Aye. CHAIRMAN COLETTA: Aye. COMMISSIONER FIALA: Aye. COMMISSIONER HENNING: Aye. CHAIRMAN COLETTA: Opposed? (No response.) CHAIRMAN COLETTA: The ayes have it, 5-0. Item #2G ORDINANCE 2007-13: APPROVING THE NATURAL GROUNDWATER AQUIFER RECHARGE SUB-ELEMENT - ADOPTED COMMISSIONER HENNING: Motion to approve the elements to the groundwater aquifer recharge subelement. COMMISSIONER COYLE: Second. CHAIRMAN COLETTA: Okay. We have a motion by Commissioner Henning, a second by Commissioner Coyle. Any discussion? (N 0 response.) CHAIRMAN COLETTA: Seeing none, all those in favor, indicate by saying aye. COMMISSIONER COYLE: Aye. COMMISSIONER HALAS: Aye. CHAIRMAN COLETTA: Aye. COMMISSIONER FIALA: Aye. COMMISSIONER HENNING: Aye. CHAIRMAN COLETTA: Opposed? (No response.) CHAIRMAN COLETTA: The ayes have it, 5-0. Page 191 January 25, 2007 Item #2H ORDINANCE 2007-14: APPROVING THE HOUSING ELEMENT- ADOPTED COMMISSIONER HENNING: Motion to approve the housing element. COMMISSIONER HALAS: Second. COMMISSIONER COYLE: Second. CHAIRMAN COLETTA: Okay. We have a motion by Commissioner Henning, and a second by Commissioner Halas? COMMISSIONER COYLE: Halas, uh-huh. CHAIRMAN COLETTA: Any discussion? (No response.) CHAIRMAN COLETTA: Seeing none, all those in favor, indicate by saying aye. COMMISSIONER COYLE: Aye. COMMISSIONER HALAS: Aye. CHAIRMAN COLETTA: Aye. COMMISSIONER FIALA: Aye. COMMISSIONER HENNING: Aye. CHAIRMAN COLETTA: Opposed? (No response.) CHAIRMAN COLETTA: The ayes have it, 5-0. Item #21 ORDINANCE 2007-15: APPROVING THE RECREATION AND OPEN SPACE ELEMENT - ADOPTED COMMISSIONER HENNING: Motion to approve the Page 192 January 25, 2007 recreational and open space subelement. COMMISSIONER COYLE: Second. CHAIRMAN COLETTA: Motion by Commissioner Henning, second by Commissioner Coyle. Any discussion? (No response.) CHAIRMAN COLETTA: Seeing none, all those in favor, indicate by saying aye. COMMISSIONER COYLE: Aye. COMMISSIONER HALAS: Aye. CHAIRMAN COLETTA: Aye. COMMISSIONER FIALA: Aye. COMMISSIONER HENNING: Aye. CHAIRMAN COLETTA: Opposed? (No response.) CHAIRMAN COLETTA: The ayes have it, 5-0. Item #2J ORDINANCE 2007-16: APPROVING THE CONSERVATION AND COASTAL MANAGEMENT ELEMENT - ADOPTED COMMISSIONER HENNING: Motion to approve the Conservation Coastal Management Element. COMMISSIONER FIALA: I second. COMMISSIONER COYLE: Second. CHAIRMAN COLETTA: Okay. We have a motion by Commissioner Henning, very original, a second by Commissioner Fiala. Any discussion? (No response.) CHAIRMAN COLETTA: Seeing none, all those in favor, Page 193 January 25, 2007 indicate by saying aye. COMMISSIONER COYLE: Aye. COMMISSIONER HALAS: Aye. CHAIRMAN COLETTA: Aye. COMMISSIONER FIALA: Aye. COMMISSIONER HENNING: Aye. Item #2K ORDINANCE 2007-17: APPROVING THE INTERGOVERNMENTAL COORDINATION ELEMENT - ADOPTED COMMISSINER HENNING: Motion to approve the intergovernmental coordination element. COMMISSIONER FIALA: Second. CHAIRMAN COLETTA: We have a motion by Commissioner Henning and second by Commissioner Fiala. Any discussion? (N 0 response.) CHAIRMAN COLETTA: Seeing none, all those in favor, indicate by saying aye. COMMISSIONER COYLE: Aye. COMMISSIONER HALAS: Aye. CHAIRMAN COLETTA: Aye. COMMISSIONER FIALA: Aye. COMMISSIONER HENNING: Aye. CHAIRMAN COLETTA: Opposed? (No response.) CHAIRMAN COLETTA: The ayes have it, 5-0. Item #2L Page 194 January 25, 2007 ORDINANCE 2007-18: APPROVING THE FUTURE LAND USE ELEMENT (MAP AND MAP SERIES) - ADOPTED COMMISSIONER HENNING: Motion to approve the Future Land Use Element and Future Land Use Map and map series. CHAIRMAN COLETTA: Second. We have a motion by Commissioner Henning and a second by Commissioner Coletta. Any discussion? (No response.) CHAIRMAN COLETTA: Seeing none, all those in favor, indicate by saying aye. COMMISSIONER COYLE: Aye. COMMISSIONER HALAS: Aye. CHAIRMAN COLETTA: Aye. COMMISSIONER FIALA: Aye. COMMISSIONER HENNING: Aye. CHAIRMAN COLETTA: Opposed? (No response.) CHAIRMAN COLETTA: The ayes have it, 5-0. Item #2M ORDINANCE 2007-19: APPROVING THE GOLDEN GATE AREA MASTER PLAN AND FUTURE PLAN (MAP AND MAP SERIES) - ADOPTED COMMISSIONER HENNING: Motion to approve the Golden Gate Area Master Plan and Golden Gate Area Master Plan Future Land Use Map and map series. COMMISSIONER HALAS: Second. Page 195 January 25, 2007 CHAIRMAN COLETTA: We have a motion from Commissioner Henning and a second by Commissioner Halas. Any discussion? (N 0 response.) CHAIRMAN COLETTA: Seeing none, all those in favor, indicate by saying aye. COMMISSIONER COYLE: Aye. COMMISSIONER HALAS: Aye. CHAIRMAN COLETTA: Aye. COMMISSIONER FIALA: Aye. COMMISSIONER HENNING: Aye. CHAIRMAN COLETTA: Opposed? (No response.) CHAIRMAN COLETTA: The ayes have it, 5-0. Item #2N ORDINANCE 2007-20: APPROVING THE IMMOALEE AREA MASTER PLAN AND FUTURE PLAN (MAP AND MAP SERIES) - ADOPTED COMMISSIONER HENNING: Motion to approve the Immokalee Area Master Plan and the Immokalee Area Master Plan Future Land Use Map and map series. COMMISSIONER HALAS: Second. COMMISSIONER COYLE: Second. COMMISSIONER FIALA: Second. COMMISSIONER HALAS: Coyle. CHAIRMAN COLETTA: This is going to be difficult. First by -- I've got a motion by Commissioner Henning, second by Commissioner Coyle. All those in favor, indicate by saying aye. Page 196 January 25,2007 COMMISSIONER COYLE: Aye. COMMISSIONER HALAS: Aye. CHAIRMAN COLETTA: Aye. COMMISSIONER FIALA: Aye. COMMISSIONER HENNING: Aye. CHAIRMAN COLETTA: Opposed? (No response.) CHAIRMAN COLETTA: The ayes have it, 5-0. Item #20 ORDINANCE 2007-21: APPROVING THE DELETION OF THE MARCO ISLAND MASTER PLAN ELEMENT AND MARCO ISLAND MASTER PLAN (MAP AND MAP SERIES) - ADOPTED COMMISSIONER HENNING: Motion to approve -- actually, is it the deletion of the Marco Island Master Plan Element and Marco Island Master Plan? MR. WEEKS: Correct. COMMISSIONER HENNING: Yes. COMMISSIONER HALAS: Second. CHAIRMAN COLETTA: We have a motion by Commissioner Henning and a second by Commissioner Halas. Any discussion? (No response.) CHAIRMAN COLETTA: Seeing none, all those in favor, indicate by saying aye. COMMISSIONER COYLE: Aye. COMMISSIONER HALAS: Aye. CHAIRMAN COLETTA: Aye. COMMISSIONER FIALA: Aye. COMMISSIONER HENNING: Aye. Page 197 January 25, 2007 CHAIRMAN COLETTA: Opposed? (No response.) CHAIRMAN COLETTA: The ayes have it, 5-0. Item #2P ORDINANCE 2007-22 APPROVING THE ECONOMIC ELEMENT - ADOPTED COMMISSIONER HENNING: Motion to approve the economic element. COMMISSIONER FIALA: Second. COMMISSIONER COYLE: Second. CHAIRMAN COLETTA: We have a motion by Commissioner Henning and a second by Commissioner Coyle. Any discussion? (No response.) CHAIRMAN COLETTA: Seeing none, all those in favor, indicate by saying aye. COMMISSIONER COYLE: Aye. COMMISSIONER HALAS: Aye. CHAIRMAN COLETTA: Aye. COMMISSIONER FIALA: Aye. COMMISSIONER HENNING: Aye. CHAIRMAN COLETTA: Opposed. (No response.) CHAIRMAN COLETTA: The ayes have it, 5-0. COMMISSIONER HENNING: Motion to adjourn. CHAIRMAN COLETTA: And that's -- why, you want to be excused? MR. WEEKS: Almost. Mr. Chairman, as I put on the record earlier, we have this errata sheet of housecleaning items, would like Page 198 January 25, 2007 your -- to take a motion to incorporate that as it affects various elements as modified by your actions today, because in some cases these changes are no longer applicable. Item #2Q MOTION TO APPROVE THE ERRATA SHEET BY CHANGES MADE - APPROVED COMMISSIONER HENNING: Motion to approve the errata sheet by the changes today and staffs changes. COMMISSIONER COYLE: Second. CHAIRMAN COLETTA: We have a motion by Commissioner Henning, a second by Commissioner Coyle. Any discussion? No? Discussion? Okay. (No response.) CHAIRMAN COLETTA: Seeing none, all those in favor, indicate by saying aye. COMMISSIONER COYLE: Aye. COMMISSIONER HALAS: Aye. CHAIRMAN COLETTA: Aye. COMMISSIONER FIALA: Aye. COMMISSIONER HENNING: Aye. CHAIRMAN COLETTA: Opposed? (No response.) CHAIRMAN COLETTA: The ayes have it, 5-0. Yes. MR. COHEN: I just wanted to add one other thing for the record. There was an extensive amount of work done by the Planning Commission and the EAC with regard to the EAR-based amendments. We'd like to really thank them for their extensive knowledge, their work product, and their due diligence in undertaking a tremendous Page 199 January 25, 2007 amount of work with respect to this product. They did a really, really Cracker Jack job. COMMISSIONER FIALA: All on a volunteer basis. MR. COHEN: Yes, ma'am. CHAIRMAN COLETTA: I might add that this would probably be a good time to direct me to write an additional letter recognizing both of those groups. COMMISSIONER COYLE: Sure. COMMISSIONER HALAS: Yes, do, please. CHAIRMAN COLETTA: Okay, fine. You got that, Ms. Filson? Okay. Thank you. What have we got left? COMMISSIONER COYLE: An item of correspondence that is sort of urgent, if you wouldn't mind. CHAIRMAN COLETTA: Go ahead. COMMISSIONER COYLE: I'd like to ask the county manager to come down. As some of you might already know, we have received word of another legislative initiative in Tallahassee by -- CHAIRMAN COLETTA: Bennett. COMMISSIONER COYLE: Senator Bennett who is trying -- wants to prohibit us from collecting impact fees earlier than the certificate of occupancy. As you expect, that will have a major impact upon our revenues and our ability to plan for and deliver improvements to our road structure, and so I've prepared a draft that I ask you to consider for the chairman's signature. COMMISSIONER HALAS: I think it was deliberately slated for us. COMMISSIONER COYLE: I'm sure it was, yeah. It's -- COMMISSIONER HALAS: I think that's some repercussions. COMMISSIONER COYLE: Well, I think it's going to continue. You know, they are constantly trying to erode home rule powers. They do not want the counties making decisions about anything. And so we're going to have to fight it every step of the way. And I would Page 200 January 25, 2007 certainly hope that, particularly with Representative Davis being in a very powerful position there, that he can stop this. And we need to communicate to them our wishes that this kind of -- COMMISSIONER HALAS: Would you also put on here Representative Judy Williams, because she represents part of Collier County. COMMISSIONER COYLE: We can -- oh, sure, by all means. Put anybody on here that you can -- CHAIRMAN COLETTA: Senator Saunders. COMMISSIONER COYLE: Oh, absolutely. CHAIRMAN COLETTA: Yeah. We'll make sure we get the whole array of them. And I'll tell you what, I'll even make some personal phone calls. COMMISSIONER COYLE: Good, good. CHAIRMAN COLETTA: And there's nothing to prohibit any of you from making personal phone calls also. COMMISSIONER FIALA: Good. Do you think we ought to ask the city -- both the cities of -- COMMISSIONER COYLE: Both cities would be perfect. COMMISSIONER FIALA: Marco, Naples, Everglades City to write letters also? This is their county. COMMISSIONER COYLE: City of Naples has said they will join us in legislative initiatives. COMMISSIONER FIALA: Yes. COMMISSIONER COYLE: So we should inform them. I will inform them, if you wish. COMMISSIONER FIALA: Yes. And Marco has said the same thing. COMMISSIONER COYLE: Okay. And I'll work with the City of Naples and try to get them to produce a similar letter, and hopefully we can get some attention to this quickly. We don't need to get a majority vote in the legislature. All we Page 201 January 25, 2007 need to do is to stop it at certain key committee levels, and I would hope that we have enough power to do that among our legislative -- COMMISSIONER FIALA: Let's get Mr. Thaxton in on this, too. CHAIRMAN COLETTA: Well, we -- I'll copy him, rather than put him on as one of the addressees on it. COMMISSIONER COYLE: And maybe the county manager has some comments, hopefully supportive. MR. MUDD: It's not a -- it's not a measure of support. I mean, if you only get impact fees at CO, at occupancy, and an impact fee is supposed to be a payment for their impacts, future impacts, and they're giving you the money for the future impacts the day that they need to have the road built and there's no way you can build that road so that you can satisfy their future impacts, I think they've got it a little bit backwards. It's hard enough to do it when they give you an impact fee at permit. And we got an agreement with the development community in Collier County whereby they delivered transportation fees at SDP which was even earlier, and they gave you 50 percent for a guarantee of vesting for a certain percentage of their project. This would basically nullify all of those gains as far as the county is concerned and would basically put us back -- we would be two years away. If you think you have a problem now with $180 million for transportation, this would put you another $100 million in the hole as far as your CIE is concerned. CHAIRMAN COLETT A: You know what's happening here -- COMMISSIONER FIALA: It said that in here. CHAIRMAN COLETTA: We have a listening audience out there that's picking up bits and pieces of this, and they really don't know what we're talking about. MR. MUDD: There was a -- there was a bill that was put in the floor to be heard during this legislative session by Senator Bennett who is -- who is the senator from -- Page 202 January 25, 2007 CHAIRMAN COLETTA: Sarasota. MR. MUDD: -- Sarasota, Manatee, in that area, that basically stipulates that impact fees can only be collected at Co. COMMISSIONER COYLE: Certificate of occupancy. MR. MUDD: Certificate of occupancy. That's when the building is done, and that's the day that people move in. And at that juncture getting it, it basically puts you at least two more years behind as far as having the dollars that a county would need in order to build the infrastructure for that future growth, and so that's what this is all about, sir. COMMISSIONER COYLE: And carry it a bit further. What it means is, if we're to try to achieve concurrency under those circumstances, the taxpayers have to front all of the money, and that puts an additional burden on taxpayers, and 85 percent of the taxpayer -- or the voters in Collier County have already said in the last election that they want our concurrency system to stay in place and they want us to be able to effectively manage growth. And we've got people in the state legislature who are trying to undermine that ability. CHAIRMAN COLETTA: We're going to go to Commissioner Halas, then we're going to go to Ms. Student. MS. STUDENT-STIRLING: I just had an observation. COMMISSIONER HALAS: I just wanted to emphasize, if you would, County Manager Jim Mudd, what the senate bill number is, so if there is anybody out there that wants to write in regards to this, they have the number. MR. MUDD: I think the senate bill is on that letter. COMMISSIONER HALAS: It's on there, but I mean -- CHAIRMAN COLETTA: 576. COMMISSIONER HALAS: Senate Bill 576, for the listening audience. COMMISSIONER COYLE: Senate bill 576. CHAIRMAN COLETTA: Is there -- did you have some Page 203 January 25, 2007 business? MS. STUDENT -STIRLING: I just had an observation about this change. For those people that are getting mortgages or construction loans -- and I haven't yet been through that, but to my way of thinking, if you don't pay your impact fees at the time of building permit and you wait till CO, which could be quite a while down the road, the impact fees might go up and it could put your financing on its head, so that's for, you know, all the people out there that might be getting mortgages. COMMISSIONER COYLE: Not only that, they might not be tax deductible. MS. STUDENT-STIRLING: Good point. COMMISSIONER COYLE: Okay. So it is a very, very important issue. MR. SCHMITT: That bill does not address which date you apply the code or the impact fee. CHAIRMAN COLETTA: Okay. Any other business before this commission? COMMISSIONER FIALA: Yeah. Just a little comment also. Mr. Mudd, the words that you had to say here, which explained it so thoroughly, and yes, we understand that, but I thought maybe there could be something written that explains it that thoroughly as well. This is -- this letter is nice and everything, but it doesn't go into -- into the detrimental effects we will be suffering in Collier County if this goes through. And rather than leave it to anybody's imagination, I would think that maybe it should -- COMMISSIONER COYLE: That's a good idea. Just expand upon it using some of County Manager Mudd's data -- COMMISSIONER FIALA: Yeah. COMMISSIONER COYLE: -- to indicate it's financial effect on Collier County -- COMMISSIONER FIALA: Right. Page 204 January 25, 2007 COMMISSIONER COYLE: -- taxpayers. I think that would be good just to expand on it. MR. MUDD: Yes, sir. COMMISSIONER HALAS: That will drive the point home. COMMISSIONER COYLE: Yeah. CHAIRMAN COLETTA: Okay. MR. MUDD: Am I okay to leave now, off the podium? CHAIRMAN COLETTA: Yeah. You're excused, sir. COMMISSIONER HENNING: Don't go too far. CHAIRMAN COLETTA: Yeah, we might need you. MR. MUDD: I won't. CHAIRMAN COLETTA: Any other business before this commissioner? (N 0 response.) CHAIRMAN COLETTA: Wonderful job, men. You did a tremendous job and my compliments to your staff, and we'll be sure to get a letter out of appreciation to the Collier County Planning Council and the Environmental Protection Committee. COMMISSIONER HENNING: And hopefully things will get back to normal in the comprehensive planning, something of order. COMMISSIONER COYLE: And I hope we don't see you again for another full year. MR. WEEKS: We'll try to accommodate you. COMMISSIONER FIALA: You'll probably be happy to accommodate us, right? Page 205 E EI\/muary 25,2007 2007 ***** J;C1nrrCi SSJon~?rs There being no further business for the good of the County, the meeting was adjourned by order of the Chair at 4:38 p.m. BOARD OF COUNTY COMMISSIONERS BOARD OF ZONING APPEALS/EX OFFICIO GOVERNING BOARD(S) OF SPECIAL DISTRICTS UNDER ITS CONTROL U-~~ JIM C~TT A, Chairman ATTEST: DWIGHT E.>BROCK, CLERK Q-y: ..~ l1J. ~ J Attest .,'to_~~ s .t"'lt'"Oftl~ These minutes. approved by the Board on d - d 1- 0 l , as presented ----- or as corrected TRANSCRIPT PREPARED ON BEHALF OF GREGORY COURT REPORTING SERVICES, INC., BY TERRI LEWIS. Page 206