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Agenda 05/01/2007 WCiO CE CiOUmy Board of County Commissioners & Nap /es City Council Joint Workshop Tuesday, May 1, 2007 9 a.m. -12 p.m. Boardroom, Third Floor W. Harmon Turner Building (Admin. Bldg. F) Collier County Government Center AGENDA Introductions Annexation Florida State Legislature/ 2007 Legislative Session • Property Tax Relief Plans (Senate and House) • Growth Management Naples Bay /Clam Bay • Vessel speeds • Equal access and cost for boat launching facilities City of Naples funding requests • Fleishmann Park • Sandpiper Street • Gordon River Greenway Charter government * Consolidation of fire departments and other government services Recycling Communications Adjourn Collier C014ftty rN IVAPLES CITYCOUIVCIL TUESDAY, MAY 1. 2007 9 A.M. TO 12 P.M. BOARDROOM COLLIER COUNTY 9 1 W4 7 3301 EAST TA MIAMI TRAIL, NAPLES, FLORIDA Collier County Government ('toio Communication & Contact: Sandra Arnold Customer Relations Department Public Information Coordinator 3301 East Tamiami Trail (239) 774 -8308 Naples, FL 34112 www.collieraov.net April 17, 2007 FOR IMMEDIATE RELEASE NOTICE OF PUBLIC WORKSHOP COLLIER COUNTY BOARD OF COUNTY COMMISSIONERS NAPLES CITY COUNCIL COLLIER COUNTY, FLORIDA TUESDAY, MAY 1, 2007 9 A.M. - NOON Notice is hereby given that the Collier County Board of'County Commissioners and the Naples City Council will hold a joint workshop on Tuesday, May I from 9 a.m. to noon, in the Board of County Commissioners chambers, located on the third floor of the W. Harmon Turner Building, Collier County Government Center, 3301 E. Tamiami Trail, Naples. In regard to the public meeting: All interested parties are invited to attend, and to register to speak and to submit their objections, if any, in writing, to the board /committee prior to the meeting if applicable. All registered public speakers will be limited to three minutes unless permission for additional time is granted 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, an advisory board or quasi - judicial board), 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 E. Tamiami Trail, Naples, FL 34112, (239) 774 -8380, at least two days prior to the meeting. Assisted listening devices for the hearing impaired are available in the Board of County Commissioners Office. For more information, call Debbie Wight, assistant to the County Manager, at 774 -8383. -End- cot, County Board of County Commissioners & Naples City Council Joint Workshop Tuesday, May 1, 2007 9 a.m. —12 p.m. Boardroom, Third Floor W. Harmon Turner Building (Admin. Bldg. F) Collier County Government Center AGENDA • Introductions • Annexation • Florida State Legislature/ 2007 Legislative Session • Property Tax Relief Plans (Senate and House) • Growth Management • Naples Bay /Clam Bay • Vessel speeds • Equal access and cost for boat launching facilities • City of Naples funding requests • Fleishmann Park • Sandpiper Street • Gordon River Greenway • Charter government * Consolidation of fire departments and other government services • Recycling • Communications _. • Adjourn Memo Office of the City Manager TO: Honorable Mayor and Members of City Council Honorable Chairman and Members of the Board of County Commissioners FROM: Dr. Robert E. Lee, City Manager DATE: April 27, 2007 SUBJECT: Annexation — Agenda Item 1 Attached is a copy of the City policy on annexation. Agenda Item 21 Meeting of 12/6/06 RESOLUTION 06 -11473 A RESOLUTION ESTABLISHING A NEW PROCEDURE FOR CONSIDERATION OF ANNEXATION PETITIONS; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the City's current policy on annexation allows for consideration of annexation petitions on a case by case basis; and WHEREAS, recent events have caused the City to re- evaluate the current policy and a decision has been made to address this issue during the visioning process; and WHEREAS, at the October 16, 2006, City Council Workshop a consensus was reached to establish a new procedure that will increase notification to the County, include the Planning Advisory Board in the annexation petition review process and expand the scope of the staff report to include financial feasibility, utility service areas and the City's level of service; and NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF NAPLES, FLORIDA: Section 1. That the following steps shall be followed when a petition is submitted to the City for annexation of property: 1. The Applicant shall meet with City staff regarding statutory compliance; 2. The County shall be notified that the City has been asked to consider an annexation petition; 3. The City Council shall consider whether the proposed annexation should be considered; 4. The Applicant shall prepare and submit a petition with all necessary consent forms and fee; 5. The City shall notify the County that a petition has been submitted; 6. The City Clerk's Office shall verify the consent forms; 7. Staff shall prepare an Urban Services Report to include a financial feasibility formula, an analysis of the effects of the proposed annexation on existing level of service to the City and adjacent areas, whether the City will provide utility services within the proposed annexed area and provide Council with recommendations; 8. The Planning Advisory Board shall review the petition and report; 9. The City Council shall discuss the petition, report and the Planning Advisory Board's recommendation at a workshop; 10. The Urban Services Report shall be forwarded to the County; and 11. The City Council shall consider an annexation ,_. ordinance and any required referendums are scheduled. Resolution 06 -11473 Page 2 Section 4. This resolution shall take effect immediately upon adoption. PASSED IN OPEN AND REGULAR SESSION OF THE CITY COUNCIL OF THE CITY OF NAPLES, FLORIDA, THIS 6TH DAY OF DECEMBER, 2006. Attest: Tara A. Norman, City CierK M: \REP \COUNCIL \RES \2006 \06 -11473 Date filed with City Clerk: Bill Barnett, Mayor Approved as to form and legality: Robert D. Pritt, City Attorney - Staff Recommended County Position on Annexation 1. In the annexed area, the municipality will provide all water and sewer. 2. The County will not provide irrigation water to the annexed property. 3. The annexed property will have no increase in zoned density. 4. No utility surcharges, surtaxes, and/or excise charges for County owned or operated facilities within the annexed property. 5. There will be decreasing unincorporated general fund payments as follows: • First year after annexation 80% • Second year after annexation 60% • Third year after annexation 40% • Forth year after annexation 20% • Fifth year after annexation 0% (No Loss of Revenue until the New Fiscal Year) 6. The municipality assumes all responsibility for building review and permitting in the annexed area. 7. The municipality assumes all responsibility for PUD monitoring and for ensuring that other related developer contributions and commitments are fulfilled. 8. The County retains all control and authority over comprehensive plan consistency issues until such time that the municipality amends and or adopts the land use elements into its comprehensive plan. 9. The municipality will assume maintenance and operation of all local roadways (other than collector or arterial), pathways, drainage, and landscaping. 10. No CRA pull -out of money; if municipality annexes CRA property, municipality offsets Fund 111 contributions. T r TO: FROM: DATE: SUBJECT: Memo Community Development Building and Zoning • Planning • Code Enforcement • GIS Dr. Robert E. Lee, City Manager Robin D. Singer, Community Development Director November 15, 2006 Annexation procedures At the October 16, 2006 City Council Workshop a consensus was reached to formally adopt procedures for consideration of petitions for annexation. The following steps were approved: t. Applicant meets with City staff regarding statutory compliance; 2. City Council considers whether proposed annexation will benefit the City and consents to consider annexation; 3. County is notified that the City has been asked to consider an annexation; 4. Applicant prepares and submits petition with all necessary consent forms and fee; 5. County is notified that a petition has been submitted; 6. Clerk's Office verifies consent forms; J 7. Staff prepares Urban Services Report to include a financial feasibility formula, an analysis of the effects of the proposed annexation on existing level of service to the City and adjacent areas and whether the City will provide utility services within the proposed annexed area; 8. Planning Advisory Board reviews petition and report; 9. City Council discusses petition, report and board's recommendation at a workshop; 10. Urban Services Report is forwarded to the County; and 11. City Council adopts annexation ordinance and any required referendums are scheduled. a The attached resolution formally accepts this procedure. to URBAN SERVICES REPORT FOR THE ANNEXATION OF COLLIER PARK OF COMMERCE CU OF r, :?4 rRE G" % Prepared by: City of Naples 735 8 Street South Naples, FL 34102 Telephone: 239 -213 -1800 October 17, 2006 04/05/2007 07:36 2392131033 CITY MANAGERS OFFICE PAGE 01/03 lft `\ , I M ]I L JE CITY OF NAPLES, FLORIDA OFFICE OF CITY MANAGER 735 ST" STREET SOUTH NAPLES, FL 34102 PHONE: 239 - 2134030 FACSUWME: 239 -213 -1033 TO: JIM MUDD FAx #: 774 -4010 FROM: BOB LEE DATE: 4/25/07 # OF PAGES: 3 (INCLUDING COVER) COMMENTS: 04/25/2007 07:36 2392131033 CITY MANAGERS OFFICE OFFICE OF THE CITY MANAGER TELEPHONE (239) 213-1030 • FAOSIMILE (239) 213 -1033 735 EIGHTH STREET SOUTH ■ NAPLES, FLORIDA 34102 -6796 April 25, 2007 Mr. James V. Mudd County Manager Collier County Government Center 3301 East Tamiami Trail Naples, Florida 34112 Dear Jim: PAGE 02/03 Enclosed is a letter from Larry G. Settle, President of the Hole -in- the -Wall Golf Club. In accordance with our City policy, I will be asking City Council at their May 2nd City Council Meeting whether they want this proposed annexation to be considered. Sin(cere�ly, V Robert E. Lee, DPA City Manager REL/acl enclosure 04/25/2007 07:36 2392131033 CITY MANAGERS OFFICE PAGE 03/03 P. O. Box 7217 - Naples, Florida • 34101 April 19, 2007 Mayor William Barrett Naples City Council Members 735 8d' Street S. Naples, FL 34102 Dear Mayor Barnett and Members of the City Council: This letter is to officially express the interest of the Hole-In-The-Wall Golf Club, Inc. member owners in exploring the possibilities and Consequences of annexation into the City of Naples. Any information you can provide will be greatly appreciated. Thank you. Sincerely, La Settle President Cc: Dr, Robert Lee City of Naples Manager APR 9 o zw OF 04/25/2007 07:32 2392131033 CITY MANAGERS OFFICE A ( �I \lI I L E CITY OF NAPLES, FLORIDA OFFICE OF CITY MANAGER 735 8"' STREET SOUTH NAPLES, FL 34102 PHONE: 239 - 213 -1.030 FACSIMILE: 239 -213 -1033 TO: JIM MUDD FAX #: 774 -4010 FROM: BOB LEE DATE: 4/25/07 # OF PAGES: 3 (INCLUDING COVER) COMMENTS: PAGE 01/03 04/25/2007 07:32 2392131033 CITY MANAGERS OFFICE PAGE 02/03 X11 PVF � der- OFFICE OF THE CITY MANAGER TELEPHONE (239) 213 -1030 • FACSIMILE (239) 213 -1033 735 EIGHTH STREET SOUTH . NAPLES, FLORIDA 34102 -6796 April 25, 2007 Mr. James V. Mudd County Manager Collier County Government Center 3301 East Tamiami Trail Naples, Florida 34112 Dear Jim: Enclosed is a letter from J.P. van Dongen, M.D., President of the Keewaydin Island Property Owners Association. In accordance with our City policy, I will be asking City Council at their May 2n° City Council Meeting whether they want this proposed annexation to be considered. Sincerely, Robert E. Lee, DPA City Manager REL/acl enclosure 04/25/2007 07:32 2392131033 J.P. van Dongen, M.D. April 9, 2007 CITY MANAGERS OFFICE PAGE 03/03 Dear Mayor Barnett and members of Naples City Council, This letter is to officially express the interest of Keewaydin Island property owners in exploring the possibility and consequences of annexation into the City of Naples. Yours sincerely J.P. van Do 5 en, M.D. President. Keewaydin Island Property Owners Association. Cc: Dr Robert Lee City ofNaples Manager. 599 Ninth Street North • TIB Financial Center, Suite 308 • Naples. Florida 34102 Phonc: 239.043.7888 • Fax: 239.643.4744 • E -mail: jpiFodrvandon¢en.wm • Web- w Aw Hndonten.Cm Page 1 of 2 naplesnews.com Naples takes step to annex Collier Park of Commerce By Aisling Swift Thursday, November 16, 2006 The possible annexation of the Collier Park of Commerce took another step forward Wednesday, when City Council voted 5 -2 to send county officials a report on the impact it would have on Naples. But sending the Urban Services Report won't provide Collier County officials with much information they don't have. They already received financial details as a result of a public records request they sent to the Naples City Clerk's Office. It will, however, elicit more information about the effects of the annexation, and more public input. The two council members who cast dissenting votes Councilwoman Penny Taylor and Councilman Bill Willkomm both ran on campaign promises in which they assured citizens Naples would formulate a policy and procedure before considering further annexations. Unlike other public hearings involving the controversial annexation, this one was over in minutes. The vote was a reconsideration requested by Councilman Bill MacIlvaine. It failed two weeks ago due to a _ tie caused by Mayor Bill Barnett having to leave for an important appointment. He returned minutes later and requested a repeat vote, but that wasn't allowed on the same day because it was a 3 -3 tie. It was the second vote this week involving the controversial annexation. During a special meeting Monday, council voted 5 -2 to reply to a Collier County Commission resolution that will begin negotiations to decide who provides what services if the city annexes the property. Willkomm and Taylor cast the dissenting votes. Council's reply to the Interlocal Services Boundary Agreement means Naples became one of two Florida communities to begin negotiations under a state annexation statute amended this summer. Barnett on Monday promised this would be the last annexation considered until the city's "visioning" policy is completed in June. That will involve input from citizens, community leaders and others, and would result in a more concrete idea of how big Naples wants to be. The interlocal agreement will allow city officials to discuss the ramifications of annexing the roughly 100 -acre business park north of Naples Municipal Airport and annexation in general with county officials. The vote came within one day of a 60 -day deadline the city had to respond to due to a Sept. 12 County Commission resolution that initiated negotiations for the interlocal agreement. If the city didn't reply, City Attorney Bob Pritt warned that Naples would have no input in negotiations between the county and East Naples Fire and Rescue District. On Dec. 6, council will discuss steps to take when areas request annexation. The city's current policy is to consider any areas that request annexation individually, respecting residents of both areas, while maintaining a "quali ty small - town" atmosphere. http: / /www.naplesnews.com/news /2006 /nov /16 /naples takes step annex collier park co... 4/26/2007 Page 2 of 2 The Collier Park of Commerce Owners' Association, Country Club of Naples and Brookside all have approached Naples for possible annexation, but only the park filed a formal application in June, a year after initiating discussions. The park is assessed at $81.8 million and has 50 properties, with 24 of those asking to annex. The county has offices there, but didn't ask to annex. However, County Manager Jim Mudd told the park's association he would not block the annexation. An analysis by Ann Marie Ricardi, the city's finance director, shows the city would immediately realize $138,343 in revenues the first year, growing to $1.86 million in year 10 and $5.22 million 20 years from now. © 2007 Naples Daily News and NDN Productions. Published in Naples, Florida, USA by the E.W. Scripps Co. http: / /www.naplesnews.com/news /2006 /nov /16 /naples takes step annex collier park _co... 4/26/2007 Page 1 of 2 _, naplesnews.com City soothes annexation friction with vow After relations soured over Collier Park of Commerce, council promises county it will discuss attempts to grow By Aisling Swift Tuesday, December 19, 2006 The Naples City Council assured Collier County commissioners Monday that they'd be kept apprised early on if Naples considered any further annexations, but Mayor Bill Barnett pointed out that may be moot because citizens may urge no future growth. The assurance came during a joint City Council- County Commission meeting, a gathering intended to iron out earlier disagreements that erupted this fall between city and county officials over park funding requests by city officials and demands that Collier County pay its fair share for its residents' increasing usage of city parks, beaches and attractions. The disagreements led to Barnett and Commissioner Fred Coyle blaming each other for the underlying problems in letters they penned this fall to council and the County Commission. Relations soured further when city officials discussed the possible annexation of Collier Park of Commerce, a 112 -acre business park just north of Naples Municipal Airport, and learned that city staff had written a detailed Urban Services Report about financial impacts without formally notifying county officials. Council has since formulated a policy that requires county officials to be alerted if any area requests annexation. Barnett pointed out that Naples has always had a "soft" policy and doesn't aggressively pursue annexation. Instead, it considers areas that approach the city to request annexation. "There may not be any more annexations," Barnett said, pointing out that citizens are being questioned about their interest in annexations as part of Naples' "visioning" process. Arrington Marlowe LLC, a consulting firm, is being paid up to $148,920 to survey residents, community groups, businesses and others to write a report that will be used as a blueprint for the city's future. Barnett has promised that if annexation of the Collier Park of Commerce moves forward, there would be no further annexations until June, when the visioning process is complete. Two weeks ago, that annexation moved forward when council agreed to provide Collier County with an Urban Services Report, which will elicit more public input and information about the effects to the city and county. Last month, council replied to a county resolution initiating an Interlocal Service Boundary Agreement, which determines who will provide services. State law requires negotiations to continue in good faith for six months. http: / /www.naplesnews.com/news /2006 /dec /19 /possible annexations will be discussed c... 4/26/2007 Page 2 of 2 The county would still be responsible for handling sewer service, while Naples would continue to provide water service and would have to pay the East Naples Fire District to provide fire service for four years until Naples could take over. That will require a $758,000 expansion of the fire station now servicing the Naples airport. "I look forward to making sure that we have a good interlocal agreement that both parties can agree on," said Commission Chairman Frank Halas. Commissioner Jim Coletta urged city officials to pursue an offer by the park's landowners, who said they'd consider allowing affordable housing there. The park's association approached Naples in June 2005, asking to be annexed and later admitting part of the impetus was Naples' building permit process, which is more streamlined and quicker — benefiting builders. Barnett has said the annexation benefits Naples because it doesn't involve an increase in residents, voters, or an immediate need for infrastructure improvements. An analysis by Ann Marie Ricardi, the city's finance director, shows Naples would immediately realize $138,343 in revenues the first year, growing to $1.86 million after a decade and $5.22 million after 20 years. The joint meeting continued smoothly until Commissioner Donna Fiala objected to a presentation showing increasing city park usage by county residents, about 80 percent compared with 20 percent for city residents. She questioned the numbers city officials based their assumptions on, contending they could easily be skewed. "What a sad thing," she said of a presentation by City Community Services Director David Lykins. "It's drawing a sharp line between city and county.... We should all work together as a team." She pointed out Naples was lucky county residents frequented Fifth Avenue South shops and the new skate park. "Without the county, the city would kind of die," she said. But her anger was allayed after Councilman John Sorey and others said she had misunderstood the presentation, and that city officials were only asking for more county funding. Councilwoman Penny Taylor also apologized, saying city officials had made a mistake by not following up further with funding requests. City and county officials agreed to meet at least twice yearly to discuss concerns and priorities. After the meeting, Barnett and Coyle agreed the discussions were constructive. © 2007 Naples Daily News and NDN Productions. Published in Naples, Florida, USA by the E.W. Scripps Co. http: / /www.naplesnews.com/news /2006 /dec /19 /possible annexations will be discussed c... 4/26/2007 FOR IMMEDIATE RELEASE APRIL 26, 2007 CONTACT: ERIN ISAAC (850) 488 -5394 GOVERNOR CRIST PROPOSES PROPERTY TAX REFORM PLAN — Would bring immediate, meaningful relief and address inequities in current system - - 12 percent in 2007, 21.5 percent in 2008 — TALLAHASSEE — Governor Charlie Crist today announced his suggestions for reducing the property tax burden by $34 billion on Florida's homeowners, businesses and renters over a five -year period. The Governor's proposal would encourage home ownership while also capping runaway spending by local governments. "This plan would provide immediate relief to both those who are barred from the American dream of owning their first home and those current homeowners who feel unable to move and trapped by skyrocketing property taxes," Governor Crist said. "By providing immediate relief now along with a plan for future reductions, we can reverse the trend of high property taxes and make living in Florida more affordable." Details of the plan include four components, including immediately rolling back local government revenue caps to 2003 levels, with an allowance for inflation and growth. Under the Governor's proposal, Florida homeowners will benefit from a 12 percent tax cut on their property taxes on their homestead in 2007 and 21.5 percent in 2008. This measure would provide the homeowner of an average - priced home of $290,000 a savings of $340 on their 2007 property taxes. Over five years, each present -day homeowner would save $1,987 in property taxes because property taxes would not continue growing at their current rate. "The revenues of local governments have ballooned over $17 billion beyond a responsible growth rate during the past five years, taking money out of the taxpayers' pockets," Governor Crist said. "We must give the people of Florida hope that relief from this tax burden is on the way." Governor Crist also proposed three additional components that require a constitutional amendment for voter consideration. The constitutional amendment would phase in three additional savings for property owners by 2008: Provide an additional homestead exemption of $25,000. This measure would provide an additional average savings of $238. In addition to the tax rollback in 2007, the homeowner's total savings would be an average of $601. If passed by voters in 2007, this property tax savings would begin in 2008. Make Save Our Homes Portable While Also Providing Assistance to First -Time Home Buyers. Governor Crist proposes making the Save Our Homes cap portable statewide so that homeowners can take their current tax savings with them when they move. In the first year alone, the homeowner who purchases an average - priced home of $290,000 is expected to save an additional $923 in property taxes. If passed by voters in 2007, this property tax savings would apply to individuals who buy homes in 2007 and would affect their 2008 taxes. Because portability of the Save Our Homes cap applies only to existing homeowners, an additional measure would ensure that first -time home buyers in Florida and new residents to the state would also benefit. Governor Crist recommends providing a 25 percent exemption for first -time home buyers, which would provide a savings of $546, or 11.9 percent. Exempt the first $25,000 of businesses' tangible personal property. Businesses would save $200 million annually on this property tax. If passed by voters in 2007, this property tax savings would also begin in 2008. By 2011, this exemption will save businesses a total of $800 million. "I applaud House Speaker Marco Rubio and Senate President Ken Pruitt and the leadership of the House and Senate for their tireless work on exploring possible ways to reform property taxes," Governor Crist said. "Now is the time to come together and find a way to relieve the financial burden on our citizens." Except for the exemption on businesses' tangible personal property, Governor Crist's property tax reform proposals do not affect funding for schools. Earlier in the week, Governor Crist visited with about 300 citizens in Palm Beach Gardens and about 100 citizens in Orlando during town hall meetings to hear their concerns about rising property taxes. Lt. Governor Jeff Kottkamp held similar town hall meetings in Punta Gorda and Pensacola. "We are hearing over and over that Floridians need hope that their property taxes will come down so that they can continue living in Florida," Lt. Governor Kottkamp said. "This issue is impacting every Floridian, and it is time for us to make changes that will _ make Florida affordable once again." cc LJ O 0 O i� O a� x M H 4 ^^� �I r�l i O low m mw L O 1.� [J i L m U) .y n L 3 0 E 0 t L WOMEN r. 0 E .m E ■E 0 IL E O t �L INEP .a 0 m mw L 3 W E s° V. 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EFFECTIVE DATE: 07/01/2007. Reports Actions Your Bill Reports Date Chamber Action Bill Comparison 04/23/07 HOUSE Filed (Formerly PCB EEIC11); Referred to Calendar; Placed House Actions on Special Order Calendar for 04/25/07 Senate Actions 04/25/07 HOUSE Read Second Time; Amendment(s) Adopted, Amendment(s) Amendments Filed Withdrawn Enrolled Bills 04/26/07 HOUSE Read Third Time; Amendment(s) Adopted; Passed (Vote: 117 Mailing Labels Yeas / 0 Nays); In Senate Messages v Session Live Compare Bills Find 2007 Bill 5B 0780 - Relating to Affordable Housing by Garcia FJ G01 04/26/07 SENATE Placed on Calendar, on second reading; Placed on Special Order Calendar for 04/30/07 SB 0800 - Relating to Comprehensive Planning by Garcia Your Folders 04/23107 SENATE Reference to Rules removed; Remaining references ,:J Administrative Governmental Operations; Transportation and Economic Development ervices Appropriations; Now in Governmental Operations fJ Budget HB 0985 - Relating to Transportation & Infrastructure by Glorioso , Communication 04/26/07 SENATE In Messages; Bill to Be Discussed During the Office of the tJCommunity EDR's Revenue Estimating Impact Conference; 04/26/07, 6:15 pm, 117 K (No evelopment Votes Will Be Taken) J Elections J Emergency Services SB 1928 - Relating to Transportation /M.P.O.'s by Transportation 04/26/07 SENATE Placed on Calendar, on second reading; Placed on Special J Eminent Domain Order Calendar for 04/30/07 Growth Management `J Impact Fees SB 2074 - Relating to Transportation Concurrency by Bennett Property Appraiser 03/14/07 SENATE Referred to Community Affairs; Transportation; ,j Transportation and Economic Development Appropriations J Public Services J Public Utilities School Board Bill Text and Filed Amendments J Sheriff H 7203 04/23/07 [TEXT] [In PDF] JTax Collector L_ Amendment 15677 Bucher 04/24/07 Adopted [TEXT] ["M PDF] ... :;J Tourism ._:,/Transportation L Amendment 284289 Kravitz 04/24/07 Withdrawn [TEXT] [M PDF] 'I Your Folder l— Amendment 290561 Bucher 04/24/07 Adopted [TEXT] [M PDF] as http: / /Iobbytools.com /tools /t.cfm ?a= bills& b = summary &sessionid= l9 &biIInum =7203 4/27/2007 LobbyTools Page 2 of 2 Add /Edit Folders Amended Settings L Amendment 529631 Kravitz 04/25/07 Withdrawn [TEXT] [M PDF] Billing Info H 7203E1 04/26/07 [TEXT] [T PDF] Manage Users L Amendment 779999 Cannon 04/26/07 Adopted Email Alerts H 7203E2 04/27/07 [TEXT] ['n PDF] - Alert Recipients No amendments to this bill text. Log Out Staff Analysis H 7203 Economic Expansion & Infrastructure Council [In PDF] Vote History HOUSE Floor vote: 0257 04/26/07 [View Vote] Related Documents No related documents. Statute Citations 163.3164 163.3177 163.318 163.3182 163.3187 163,3191 — 163.3229 163.32465 380.06 Codes and Comments [Hide Comments] Community priority /Importance /Position [ -1 Edit Development Comments] Not top priority / Importance not specified / Position not specified Analyst Comments You have no analyst comments to this bill. © Copyright 1999 -2006 LobbyTools Our Privacy Policy and Subscriber Agreement V. 3.5 http: //Iobbytools.com /tools /t.efm ?a= bills &b = summary &sessionid =l9 &billnum =7203 4/27/2007 Page 1 of 10 wight_d To: wight_d Subject: FW: Growth Management Importance: High Attachments: Collier Response DCA Revised Legislative Proposal 03.29.07 for FAC.DOC, Collier Response GMAC Summary 03.29.07 for FAC.doc From: wight_d Sent: Tuesday, April 17, 2007 5:39 PM To: EPoole @fl- counties.com; Palmer Mason; Chris Holley; Sarah Bleakley Cc: mudd_j; Schmittloseph; CohenRandall; Patterson _a; weigel_d; PettitMichael; KlatzkowJeff; Feder—N; CasalanguidaNick; Tindall_p; Brett Bacot; 'Keith Arnold'; ochs_I Subject: FW: Growth Management Importance: High Eric, Please see Collier County's position below on Growth Management as requested, as well as an overview /analysis in relation to the proposed Property Tax legislation and Impact Fee legislation, and the critical ramifications on local governments. Collier County staff emphasizes the importance of FAC monitoring the effectual inter - relationships of all this legislation on county governments. Your cooperation and consideration are appreciated. Your representation and assistance on our behalf are essential. Let us know whatever information you may need. Thanks. - Debbie Wight Assistant to the County Manager Colier County Collier County Overview /Analysis: Additional comments re growth management were provided for the prior DCA version, committee version and the first iteration of this proposed bill. Those comments are all still valid and attached for facilitation of reference. It is important to read this proposed legislation in conjunction with the Senate version of the property tax legislation and the proposed impact fee legislation. In essence, it is necessary to connect the dots when you read all 3 pieces of legislation in tandem with one another. Each bill has certain objectives which do not contemplate the overall effect of the legislation when analyzed together. The growth management legislation is promoting long -term concurrency wherein CIE's must be financially feasible. However, the growth management legislation creates a loophole by allowing DRI's to be considered financially feasible with comprehensive plan amendments in compliance as set forth in section 163.3177(3)(b)(2)(e). In Collier County most of the larger developments in eastern Collier County will be DRI's. Why would Collier County entertain approving any DRI when the net effect will be circumventing the existing concurrency management system where there is no means to facilitate future concurrency of affected facilities without allocating funding from the General Fund as the affected roadways are not in the 5 -year CIE ? This scenario is even more problematic when considering the proposed property tax legislation reduces revenues this fiscal year and in the following two fiscal years. Moreover, increases in property taxes in the future are not intertwined with corresponding cost increases for capital infrastructure projects in the CIE. Furthermore, the tax payback provision and cap provisions in the impact fee legislation virtually assure that growth will not pay for growth as growth will be subsidized by the General Fund. The question for all local governments and Collier 4/27/2007 Page 2 of 10 County is where will the money come from and what will be the net effect. At an Amnerican Planners Association conference in Philadelphia, staff has engaged in discussions of combination of factors with fellow planners while all of these municipal and county planners are responsible for CIE's and concurrency in their respective jurisdictions. The general consensus is that these three pieces of legislation will have the net effect of financially devastating local governments. Furthermore, the legislation is an effort to force local governments into long -term concurrency management systems where proportionate fair share is used to allow local governments to approve projects if they so desire. The net effect of the property tax legislation in its current form will in many cases result in the inability of local governments to meet the financial feasibility requirements for CIE's. As a result, local governments will be forced into two possible options that most likely will not be acceptable at the local level. First, reduce levels of service for all capital facilities that must meet concurrency requirements to the detriment of existing residents. The most obvious first strike would be recreation facilities. In addition, the transition from peak hour to average daily traffic would almost have to transpire in order to meet transportation concurrency requirements. The net result is phantom concurrency with gridlock during peak A.M. and P.M. peak hours. The other effect would be that capital infrastructure that does not have to be concurrent under state law will have levels of services reduced significantly if those services and infrastructure are not considered to have major health, safety and welfare considerations. The best examples would be libraries and other government buildings Regardless of the choices a local government would have to embrace if the proposed legislation is passed, the overall quality of life for Collier County and all Florida residents will degrade as capital infrastructure and services will have to be reduced as the revenue stream will be reduced where significant choices will have to be made as to what levels of service will have to be reduced and where is revenue will have to be allocated to best provide the capital facilities a local government deems most essential. Chapter 163 will no longer facilitate quality growth management wherein local government officials can make informed planning decisions based on providing quality capital infrastructure and facilities. Instead, local governments will be more concerned with meeting the statutory financial feasibility requirements for CIE's. This analysis of the proposed legislation, based on 20 years of experience in the planning profession, indicates that the single subject rule for legislation has negated the ability of bill proponents to properly evaluate the effect of all of the proposed legislation if it was the subject of a single bill. For example, why would any local government favorably consider any large DRI development when the corresponding comprehensive plan amendment could financially devastate that local government? From a professional perspective it has become apparent that the drive at the state level to pass some iteration of property tax legislation has resulted in all applicable legislation being considered in a vacuum. The Florida Association of Counties must become cognizant of the net effect of all legislation - growth management, property tax, impact fee, etc - and how local governments will be adversely affected if not to the point of financial devastation. Moreover, bill proponents should slow down as this could be the fast track to slowing down any if not all large development which could have a positive impact if considered prior what is being proposed in this legislation. The other concern is that bill proponents will attempt to modify the DRI section further by removing a local government's option to deny DRI's and vesting that authority with regional planning councils. If that were to transpire Collier County would face financial ruin. Future iterations of all three bills referenced above must be carefully analyzed with a major concern being last -hour legislative changes similar to what happened with SIB 360. If everyone recalls, none of the final proposed changes were vetted and became more problematic for local government. Growth Management Response: 163.3164 Local Government Comprehensive Planning and Land Development Regulation Act; definitions: -As used in this act: (26) "Urban redevelopment" means demolition and reconstruction or substantial renovation of existing 4/27/2007 Page 3 of 10 buildings or infrastructure within urban infill areas, er existing urban service areas, or community redevelopment areas created pursuant to Part_ III of this chapter. (32) "Financial feasibility" means that sufficient revenues are currently available or will be available from committed funding sources for the first 3 years, or will be available from committed or planned funding sources for years 4 and 5, of a 5 -year capital improvement schedule for financing capital improvements, such as ad valorem taxes, bonds, state and federal funds, tax revenues, impact fees, and developer contributions, which are adequate to fund the projected costs of the capital improvements identified in the comprehensive plan necessary to ensure that adopted level -of- service standards are achieved and maintained within the period covered by the 5 -year schedule of capital improvements. +he .. . A_ comprehensive-plan shall be deemed financially feasible for transportation facilities throughout the planning period addressed by the capital improvements schedule if it demonstrates that the level of service standards are achieved and maintained by the end of the planning period even if in _a particular year such improvements are not concurrent as provided by s. 163.3180. This provision would only require concurrency at the end of the 5 -year CIE which negates any short -term concurrency management system adopted by a local government. If a local governmen has adopted a long -term concurrency management system it would not have to be financially feasible for 10 or 15 years. The net result is capital services and infrastructure will degrade in the early years of the adopted planning period. The other obvious outcome given the proposed reduction in property taxes is that local governments with 5- year CIE's will inevitably not be able to meet the financial feasibility requirements at the end of the 5th year and will then be forced to adopt either a 10- or 15- year concurrency management system, push the financial feasibilty requirement out into the future, and as a result, levels of service for capital facilties and services will degrade for existing residents. 163.3177 Required and optional elements of comprehensive plan; studies and surveys. -- (2) Coordination of the several elements of the local comprehensive plan shall be a major objective c the planning process. The several elements of the comprehensive plan shall be consistent, and the comprehensive plan shall be financially feasible. Financial feasibility shall be determined using professionally accepted methodologies and shall apply to the 5-year planning-period except in the case of along -term transportation or school concurrency management system _when _a 10 or_15-y eareriod shall apply. This is another modification which is indicative of the support for long -term concurrency management systems. This may push the county into a 10- to 15 -year period. (3)(a) The comprehensive plan shall contain a capital improvements element designed to consider the need for and the location of public facilities in order to encourage the efficient utilization of such facilitic and set forth: 1. A component which outlines principles for construction, extension, or increase in capacity of public facilities, as well as a component which outlines principles for correcting existing public facility deficiencies, which are necessary to implement the comprehensive plan. The components shall cover at least a 5 -year period. 2. Estimated public facility costs, including a delineation of when facilities will be needed, the 4/27/2007 Page 4 of 10 general location of the facilities, and projected revenue sources to fund the facilities. 3. Standards to ensure the availability of public facilities and the adequacy of those facilities including acceptable levels of service. 4. Standards for the management of debt. 5. A schedule of capital improvements which includes publicly funded projects, and which may include privately funded projects for which the local government has no fiscal responsibility, necessary t+ ensure that adopted level -of- service standards are achieved and maintained. For capital improvements the will be funded by the developer, financial feasibility shall be demonstrated by being guaranteed in an enforceable development agreement or interlocal agreement pursuant to paragraph (10)(h), or other enforceable agreement. These development agreements and interlocal agreements shall be reflected in th( schedule of capital improvements if the capital improvement is necessary to serve development within th 5 -year schedule. If the local government uses planned revenue sources that require referenda or other actions to secure the revenue source, the plan must, in the event the referenda are not passed or actions d< not secure the planned revenue source, identify other existing revenue sources that will be used to fund the capital projects or otherwise amend the plan to ensure financial feasibility. 6. The schedule must include transportation improvements included in the applicable metropolitan planning organization's transportation improvement program adopted pursuant to s. 339.175(7) to the extent that such improvements are relied upon to ensure concurrency and financial feasibility. The schedule must also be coordinated with the applicable metropolitan planning organization's long -range transportation plan adopted pursuant to s. 339.175(6). (b) 1. The capital improvements element shall be reviewed on an annual basis and modified as necessary in accordance with s. 163.3187 or s. 163.3189 in order to maintain a financially feasible 5 -year schedule of capital improvements. Corrections and modifications concerning costs; revenue sources; or acceptance of facilities pursuant to dedications which are consistent with the plan may be accomplished by ordinance and shall not be deemed to be amendments to the local comprehensive plan. A copy of the ordinance shall be transmitted to the state land planning agency. An amendment to the comprehensive plan is required to update the schedule on an annual basis or to eliminate, defer, or delay the construction for any facility listed in the 5 -year schedule. All public facilities shall be consistent with the capital improvements element. Amendments to implement this section must be adopted and transmitted no later than December 1, 2404 2008. Thereafter, a local government may not amend its future land use map, except for plan amendments to meet new requirements under this part and emergency amendments pursuant to s. 163.3187(l)(a), after December I, 2@04 2008, and every year thereafter, unless and until th local government has adopted the annual update and it has been transmitted to the state land planning agency. If the proposed property tax legislation is enacted, another year will be necessary to determine funding for capital facilties that must meet concurrency requirements per 163.3180. It is strongly advised that inclusion of the school concurrency requirement and the public schools facilities element be subjected to this provision as well given the uncertainty associated with property tax revenue in future years. 2. Capital improvements element amendments adopted after the effective date of this act shall require only a single public hearing before the governing board which shall be an adoption hearing as described in s. 163.3184(7). Such amendments are not subject to the requirements of s. 163.3184(3) -(6). 4/27/2007 Page 5 of 10 (c) If the local government does not adopt the required annual update to the schedule of capital improvements or the tmrmal nrdftfe is fettnd not in eantriiftnee, the state land planning agency must notif the Administration Commission. A local government that has a demonstrated lack of commitment to meeting its obligations identified in the capital improvements element may be subject to sanctions by the Administration Commission pursuant to s. 163.3184(11). (d) If a local government adopts a long -term concurrency management system pursuant to s. 163.3180(9), it must also adopt a long -term capital improvements schedule covering up to a 10 -year or 15 -year period, and must update the long -term schedule annually. The long -term schedule of capital improvements must be financially feasible. (e) At the discretion of the local government, notwithstanding the requirements in this subsection a comprehensive plan as revised by an amendment to its future land use map shall be deemed to be financially feasible and to have achieved and maintained transportation level of service standards for purposes of s. 163.3177 provided that the amendment_ to the future land use_m_a is supported_by_a development -of— regional impact development order condition or binding agreement addressing Proportionate share or proportionate fair share consistent with: This provision is intended to allow local governments to amend future land use maps and circumvent the financial feasibility requirements by a binding agreement or proportionate fair share agreement. The subject DRI's would never provide capital facilities as a part of that development that would result in financial feasibility in the future. The net effect, if a local government chooses to use this provision, is long -term degradation in levels of service, transition to a long -term concurrency management system and /or diverting revenue from other essential government programs and services. 'fhe other effect of this provision is the message to local governments that it may be in a local government's best interest to deny any DRI "Application for Development Approval" and the accompanying request for a future land use plan /map amendment. 1._ S._-163.3180(12), or_ 2. S. 163.3180(16)(f�,where the amendment is located within an area designated in the comprehensive plan for urban infill, urban redevelopment, downtown revitalization. urban infill_ and redevelopment, or an urban service area. The binding agreement must be based on the maximum _amount of development identified by the future land use map amendment. 163.3180 Concurrency.— (5)(a) The Legislature finds that under limited circumstances dealing with transportation facilities, countervailing planning and public policy goals may come into conflict with the requirement that adequate public facilities and services be available concurrent with the impacts of such development. The Legislature further finds that often the unintended result of the concurrency requirement for transportation facilities is the discouragement of urban infill development and redevelopment. Such unintended results directly conflict with the goals and policies of the state comprehensive plan and the intent of this part. Therefore, exceptions from the concurrency requirement for transportation facilities may be granted as provided by this subsection. (b) A local government may grant an exception from the concurrency requirement for transportation facilities if the proposed development is otherwise consistent with the adopted local government comprehensive plan and is a project that promotes public transportation or is located within an area designated in the comprehensive plan for: 4/27/2007 Page 6 of 10 1. Urban infill development, 2. Urban redevelopment, 3. Downtown revitalization, er 4. Urban infill and redevelopment under s. 163.25177 or 5._ An urban service area secifically designated as a transportation concurrency_ exception area that includes-lands appropriate for compact contiguous urban development that does not exceed the amount of land needed to accommodate the projected population -growth at densities consistent with the adopted comprehensive-plan within the I0 -year planning trmeframe_ and_ that is_serv_ed or_is Manned to be served with public facilities and services as provided by the capital improvements element. According to the Collier County Transportation Division , the county's TCEA provisions are already designed to promote public transportation and other alternative transportation modes. Collier County's one TCEA does meet the above criteria and parameters. (c) The Legislature also finds that developments located within urban infill, urban redevelopment, existing urban service, or downtown revitalization areas or areas designated as urban infill and redevelopment areas under s. 163.2517 which pose only special part -time demands on the transportation system should be excepted from the concurrency requirement for transportation facilities. A special part- time demand is one that does not have more than 200 scheduled events during any calendar year and does not affect the 100 highest traffic volume hours. (d) A local government shall establish guidelines in the comprehensive plan for granting the exceptions authorized in paragraphs (b) and (c) and subsections (7) and (15) which must be consistent with and support a comprehensive strategy adopted in the plan to promote the purpose of the exceptions. (e) The local government shall adopt into the plan and implement long-term strategies to support and fund mobility within the designated exception area, including alternative modes of transportation. The plan amendment shall also demonstrate how strategies will support the purpose of the exception and how mobility within the designated exception area will be provided. In addition, the strategies must address urban design; appropriate land use mixes, including intensity and density; and network connectivity plans needed to promote urban infill, redevelopment, or downtown revitalization. The comprehensive plan amendment designating the concurrency exception area shall be accompanied by data and analysis justifying the size of the area. Note: This is a long -term mandate for the TCEA to fund mobility in the TCEA. The requisite data and analysis were provided in late 2003 when the GMP amendments relative to the TCEA were transmitted to DCA for final adoption. In the short term, the county should informally coordinate with DCA staff to verify that the existing TCEA provisions satisfy the above requirements. (f) Prior to the designation of a concurrency exception area, the state land planning agency and the Department of Transportation shall be consulted by the local government to assess the impact that the proposed exception area is expected to have on the adopted level -of- service standards established for Strategic Intermodal System facilities, as defined in s. 339.64, and roadway facilities funded in accordance with s. 339.2819. Further, the local government shall, in eaepetftfiott consultation with the state land planning* agency and the Department of Transportation, develop a plan to mitigate any impacts 4/27/2007 Page 7 of 10 to the Strategic Intermodal System, including, if appropriate, the development of a long -term concurrency management system pursuant to subsection (9) and s. 163.3177(3)(d). The exceptions may be available only within the specific geographic area of the jurisdiction designated in the plan. Pursuant to s. 163.3184, any affected person may challenge a plan amendment establishing these guidelines and the areas within which an exception could be granted. (g) Transportation concurrency exception areas existing prior to July 1, 2005, shall meet, at a minimum, the provisions of this section by July 1, 2006, or at the time of the comprehensive plan update pursuant to the evaluation and appraisal report, whichever occurs last. (12) , a mttitinse A development of regional impact may satisfy the transportation concurrency requirements of the local comprehensive plan, the local government's concurrency management system, and s. 380.06 by payment of a proportionate -share contribution for local and regionally significant traffic impacts, if: Note: This is the DRI provision that would either financially devastate Collier County or result in degradation of existing levels of service. Why would Collier County favorably entertain any DRI including pending DRI's such as Toll - Rattlesnake and Big Cypress? Sounds like a complete loss of local control on the issue. (a) fbj The development of regional impact that based on its or mix of land uses is designed to encourage pedestrian or other nonautomotive modes of transportation (b) fej The proportionate -share contribution for local and regionally significant traffic impacts is sufficic for one or more required mobility improvements that will benefit a regionally significant transportation f: lcj f4i The owner and developer of the development of regional impact pays or assures payment of the proportionate -share contribution; and, (d) f&j If the regionally significant transportation facility to be constructed or improved is under the maintenance authority of a governmental entity, as defined by s. 334.03(12), other than the local government with jurisdiction over the development of regional impact, the developer is required to enter into a binding and legally enforceable commitment to transfer funds to the governmental entity having maintenance authority or to otherwise assure construction or improvement of the facility. The proportionate -share contribution may be applied to any transportation facility to satisfy the provisions of this subsection and the local comprehensive plan, but, for the purposes of this subsection, the amount of the proportionate -share contribution shall be calculated based upon the cumulative number of trips from the proposed development expected to reach roadways during the peak hour from the complete buildout of a stage or phase being approved, divided by the change in the peak hour maximum service volume of roadways resulting from construction of an improvement necessary to maintain the adopted level of service multiplied by the construction cost, at the time of developer payment, of the improvement necessary to maintain the adopted level of service. For purposes of this subsection, "construction cost" includes all associated costs of the improvement. Proportionate share 4/27/2007 1111:21 11:11,: (a) fbj The development of regional impact that based on its or mix of land uses is designed to encourage pedestrian or other nonautomotive modes of transportation (b) fej The proportionate -share contribution for local and regionally significant traffic impacts is sufficic for one or more required mobility improvements that will benefit a regionally significant transportation f: lcj f4i The owner and developer of the development of regional impact pays or assures payment of the proportionate -share contribution; and, (d) f&j If the regionally significant transportation facility to be constructed or improved is under the maintenance authority of a governmental entity, as defined by s. 334.03(12), other than the local government with jurisdiction over the development of regional impact, the developer is required to enter into a binding and legally enforceable commitment to transfer funds to the governmental entity having maintenance authority or to otherwise assure construction or improvement of the facility. The proportionate -share contribution may be applied to any transportation facility to satisfy the provisions of this subsection and the local comprehensive plan, but, for the purposes of this subsection, the amount of the proportionate -share contribution shall be calculated based upon the cumulative number of trips from the proposed development expected to reach roadways during the peak hour from the complete buildout of a stage or phase being approved, divided by the change in the peak hour maximum service volume of roadways resulting from construction of an improvement necessary to maintain the adopted level of service multiplied by the construction cost, at the time of developer payment, of the improvement necessary to maintain the adopted level of service. For purposes of this subsection, "construction cost" includes all associated costs of the improvement. Proportionate share 4/27/2007 Page 8 of 10 miti ag tion shall be limited to ensure that a development -of- regional impact meeting the requirements of this subsection mitigates its-impact on the transportation system-but _is-not responsible for the additional cost of reducing or eliminating backlogs. (16) It is the intent of the Legislature to provide a method by which the impacts of development on transportation facilities can be mitigated by the cooperative efforts of the public and private sectors. The methodology used to calculate proportionate fair -share mitigation under this section shall be as provided for in subsection (12). (a) By December 1, 2006, each local government shall adopt by ordinance a methodology for assessing proportionate fair -share mitigation options. By December 1, 2005, the Department of Transportation shall develop a model transportation concurrency management ordinance with methodologies for assessing proportionate fair -share mitigation options. (b)1. In its transportation concurrency management system, a local government shall, by December 1, 2006, include methodologies that will be applied to calculate proportionate fair -share mitigation. A developer may choose to satisfy all transportation concurrency requirements by contributing or paying proportionate fair -share mitigation if transportation facilities or facility segments identified as mitigation for traffic impacts are specifically identified for funding in the 5 -year schedule of capital improvements in the capital improvements element of the local plan or the long -term concurrency management system or if such contributions or payments to such facilities or segments are reflected in the 5 -year schedule of capital improvements in the next regularly scheduled update of the capital improvements element. Updates to the 5 -year capital improvements element which reflect proportionate fair -share contributions may not be found not in compliance based on ss. 163.3164(32) and 163.3177(3) if additional -- contributions, payments or funding sources are reasonably anticipated during a period not to exceed 10 years to fully mitigate impacts on the transportation facilities. 2. Proportionate fair -share mitigation shall be applied as a credit against impact fees to the extent that all or a portion of the proportionate fair -share mitigation is used to address the same capital infrastructure improvements contemplated by the local government's impact fee ordinance. (c) Proportionate fair -share mitigation includes, without limitation, separately or collectively, private funds, contributions of land, and construction and contribution of facilities and may include public funds as determined by the local government. Proportionate fair -share mitigation may be directed toward one or more specific transportation improvements reasonably related to the mobility demands created by the development and such improvements may address one or more modes of travel. The fair market value of the proportionate fair -share mitigation shall not differ based on the form of mitigation. A local government may not require a development to pay more than its proportionate fair -share contribution regardless of the method of mitigation. Proportionate fair -share mitigation shall be limited to ensure that a development meeting the requirements of this section mitigates its impact on the transport ation system _but is not responsible for the additional_ cost of reducing or_ eliminatingbacklog_s. The intent is for large scale development to move forward when there are obvious concurrency Issues. (d) Nothing in this subsection shall require a local government to approve a development that is not otherwise qualified for approval pursuant to the applicable local comprehensive plan and land development regulations. (e) Mitigation for development impacts to facilities on the Strategic Intermodal System made 4/27/2007 Page 9 of 10 pursuant to this subsection requires the concurrence of the Department of Transportation. (f) In the event the funds in an adopted 5 -year capital improvements element are insufficient to fully fund construction of a transportation improvement required by the local government's concurrency management system, a local government and a developer may still enter into a binding proportionate- share agreement authorizing the developer to construct that amount of development on which the proportionate share is calculated if the proportionate -share amount in such agreement is sufficient to pay for one or more improvements which will, in the opinion of the governmental entity or entities maintaining the transportation facilities, significantly benefit the impacted transportation system. The improvement or improvements funded by the proportionate -share component must be adopted into the 5 -year capital improvements schedule of the comprehensive plan at the next annual capital improvements element update. The funding of such improvement or improvements_ that significantly benefit_ the impacted transportation system shall satisfy concurrency as a mitigation of the developments impact to the overall_ transportation system. Benefits the DRI developer to the detriment of existing residents. (g) Except as provided in subparagraph (b)] ., nothing in this section shall prohibit the Department of Community Affairs from finding other portions of the capital improvements element amendments not in compliance as provided in this chapter. (h) The provisions of this subsection do not apply to a mttkittse development of regional impact satisfying the requirements of subsection (12). From: Eric Poole [mailto:EPoole @fl- counties.com] Sent: Friday, April 13, 2007 5:11 PM Subject: Growth Management To: County Lobbyists From: Eric Poole, FAC Staff Re: Growth Management Language Attached please find the proposed growth management bill language from the Department of Community Affairs. This language was provided to both House and Senate staff and includes most of the issues addressed by the Growth Management Advisory Committee (GMAC). However, as drafted, this is the Department's language. It is our understanding that the language will be amended onto one of the growth management shell bills in the Senate and heard in Community Affairs next week. As for the House PCB (also attached), a subsequent — and rather informal — meeting was held on Wednesday of this week to address some of the delegation issues proposed in that bill (see Section 5). No specific recommendations were provided by those attending, other than proposing a pilot program for one or two local governments. It is still not clear what changes will be made to the PCB and when it will be taken up by the House Economic Expansion and Infrastructure Council. Again, if anyone has any comments on either proposal, please direct them to me at epoole @fl- counties.com. Eric S. Poole Senior Legislative Advocate 4/27/2007 Page 10 of 10 Florida Association of Counties 100 S. Monroe Street Tallahassee, FL 32301 P: (850) 922 -4300 / F.: (850) 488 -7192 Cell: (850) 294 -9405 epoole(ayl- counncccom All About Florida 4/27/2007 LobbyTools Page 1 of 2 e e �[ Collier County Government Lehbir• �N���ht �1oq oul' Contacts News Tracking Analyst Lobbyist Registration Help & Training Research ;-j Email To Friend Print Format User Manual - --- ___ —._. -- -- - --._� Home Tagged to: IFA,TF Bills / PCBs SB 2074 - Relating to Transportation Concurrency - 2007 [Add To Folder] Statutes Sponsor(s) Calendars by Bennett Legislators - Senate Summary - House General Transportation Concurrency; provides that developer is not required to pay Committees facility costs that are attributable to backlog in meeting concurrency requirements, - Senate provides requirements for modeling that is performed for purposes of determining effects - House - Joint of development upon roadways. Amends 163.3180. EFFECTIVE DATE: Upon becoming law. http: / /Iobbytools.com /tools /t.cfm ?a= bills &b = summary &sessionid= l9 &billnum =2074 4/27/2007 Actions Reports Your Bill Reports Date Chamber Action Bill Comparison 02/23/07 SENATE Filed House Actions 03/14/07 SENATE Referred to Community Affairs, Transportation; Transportation Senate Actions and Economic Development Appropriations Amendments Filed Enrolled Bills Compare Bills Mailing Labels HB 7203 - Relating to Growth Management by Economic Expansion & Infrastructure Session Live Council 04/26/07 HOUSE Read Third Time; Amendment(s) Adopted; Passed (Vote: 117 Yeas / 0 Nays); In Senate Messages Find 2007 Bill GO Bill Text and Filed Amendments S 2074 02/23/07 [TEXT] [In PDF] Your Folders No amendments to this bill text. J Administrative Services Staff Analysis J Budget LLJ Communication No analysis of this bill. L�JCommunflty Development Vote History J Elections No vote history for this bill. 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Policy and Subscriber Agreement V. 3.5 http: //Iobbytools.com /tools /t.cfm ?a= bills &b= summary &sessionid =l9 &billnum =2074 4/27/2007 BCC/NCC Joint Workshop May 1, 2007 Naples Bay - Discussion Points Restoration of Naples Bay — Mike Bauer 1. Improve the water quality of stormwater runoff • Create three filter marshes around Naples Bay in conjunction with the County's Gordon River Water Quality Park, Gordon River Greenway Park, and Gateway Triangle Stormwater. Broad Avenue South Linear Park Conservancy Filter Marsh Riverside Circle Filter Marsh Cost: Broad Avenue South -- $2.5 million Conservancy -- $300,000 Riverside Circle -- $300,000 Time: Each of these projects will take about one year to design, engineer and permit. Agency Cooperation and Grants: Broad Avenue South will be created in cooperation with, and with grants from, the South Florida Water Management District (District). Riverside Circle will be created with grants from the District and mitigation monies from the Florida Department of Environmental Protection. The Conservancy marsh will be created in partnership with the Conservancy. The Conservancy is seeking money from various federal agencies. • Replace stormwater pipes with swale system, where practical, that ultimately connects to filter marshes before entering Naples Bay. For the Lake Park neighborhood along, the estimate is $2 million. No partnerships or grants are being explored at the current time. • Dredge stormwater retention ponds of sediment that are contributing to poor water quality and limiting the capacity of the ponds to hold stormwater. Each pond is likely to cost $500,000 to dredge. There is a potential to receive grant money from the Big Cypress Basin Board. 2. Reduce freshwater inflows from Golden Gate Canal into Naples Bay • Divert excessive amounts of freshwater entering Naples Bay through the Golden Gate Canal to the south and into the Henderson Creek watershed. This will be an activity of the Big Cypress Basin Board. • Create an aquifer storage and recovery system that takes water from the Golden Gate Canal and stores it underground for potential use during the dry season. Costs, grants, and partnerships are unknown at this time. ■ Increase the reuse of treated wastewater to be used for irrigation in place of potable water. This is being accomplished by the City's Public Works Department. Improve the estuarine habitat of Naples Bay Create artificial oyster reefs in the bay to replace the 80% loss of historic oyster levels that has occurred, and thus improve water quality due to the filter feeding ability of oysters, protect shorelines because of the reefs' abilities to reduce wave energy, and increase habitat for the numerous estuarine organisms that live on oyster reefs. The first two reefs were created with a $50,000 grant to the City from the District. The City passed this on to Florida Gulf Coast University. The City is constructing a third reef in Moorings Bay for $2,000. Subsequent reefs will be constructed by the City for $2,000. There are many sources of grant monies for these kinds of projects at the state and federal level. Expand the extent of sea grasses in the bay (considered the tropical rain forests of the estuary) because they provide food, habitat, and nursery grounds for fish and other marine life and because the bay has lost 90% of those grass beds. Costs, grants, and partnerships are unknown at this time. Educate citizens about mangroves and plant more on the bay shoreline because mangrove detritus (leaves and plant parts) forms the base of the estuarine ecosystem food chain in Southwest Florida and because the bay has lost 70% of its historic mangrove fringe. The City has entered into a partnership with the National Oceanographic and Atmospheric Administration to begin an education program. The first presentations will be given to residents in April of this year. Other costs, grants, and partnerships are unknown at this time. BCCACC Joint Workshop May 1, 2007 Clam Bay - Discussion Points • Area of Concern /Discussion • Lower Clam Bay, sometimes called Outer Clam Bay • Southernmost of 3 -bay system with southern portion inside City of Naples • Primary communities affected are Pelican Bay, Seagate and Naples Cay Governing Permits • Primary permit governing is the FDEP - Clam Bay Restoration and Long Term Management issued to Collier County - Pelican Bay Services Division (PBSD) • Permit managed by PBSD and will expire on 7/6/2008 • Also referenced in FDEP permit is USACE permit, Bridge Permit by USCG and the Clam Bay Management Plan • Violations • Potential violations brought to attention of County in Summer 2006 • Immediate investigation found violations occurred in 3 areas: • Clam Pass tram bridge operation • Marked channel for Seagate property owners to access Gulf through Clam Pass. Clam Pass is a Navigable Waterway and under direct control of the USCG. • Sea grass die -off and management • Current Status • Clam Pass Bride Operation has been resolved with sub - aqueous crossing of phone cables, revised plan of operation and notification of pending change for public comment on federal registrar. • County has agreed to install FWC /USCG approved channel markers to direct boat traffic from Seagate to Gulf after sea grass study is complete. • Sea grass die -off has occurred in Lower Clam Bay. All parties have agreed to this however, numbers are in dispute. • To proactively manage the situation, the County has: • Established a working group to address this issue and forward recommendation to management on potential solutions. This working group is made up of members from Collier County, Seagate, City of Naples and PBSD. Approved a Sea grass Study on Lower Clam Bay identifying die - off factors, contributing relationships and outlining mitigation strategies and costs. Study will be performed by Dr. David Tomasko of PBSU and agreed to by all work group participants. Study began on 4/15/2007, will take 4 months to complete and an additional 2 months to discuss and resolve recommendations. • Study will address: • What is the extent of sea grass resources in Clam Bay? • How has sea grass coverage changed over the recent past? • What are the most likely factors associated with recent declines? • How have freshwater inflow and nutrient loads to Clam Bay changed over time? • What actions might reasonably be expected to allow for recovery of these sea grass resources? • What would be a reasonable timeline and budget for implementing such a recovery plan? • Study will perform the following tasks: • Interview stakeholders and collect existing data from various organizations. • Analyze existing data, perform additional tests, determine potential depth distribution of sea grasses and develop potential water clarity goals for Lower Clam Bay. • Identify estimated freshwater and pollutant loading levels for Lower Clam Bay. • Develop an action plan to address environmental stressors. • Develop order of magnitude cost estimates and implementation timing. • Results of the Study • Shared with all management groups when complete • Road map for future plans /activities /funding • Future Permit o PBSD has agreed to wait for the results and recommendations of the sea grass study before finalizing the new permit application for the Clam Bay system. y s • _,, .yam ` A r .r 1 0 ,M1 } P �1 M1 0 2472ft EXCERPTS FROM RECOMMENDED ORDER STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS COLLIER COUNTY BOARD OF COUNTY COMMISSIONERS, ET AL., Petitioners, VS. FLORIDA FISH AND WILDLIFE CONSERVATION COMMISSION, ET AL., Respondents, and CITIZENS TO PRESERVE NAPLES BAY, INC., AND THE CONSERVANCY OF SOUTHWEST FLORIDA, INC., Intervenors. Case Nos. 05 -2034 05 -2035 05 -2036 05 -2037 RECOMMENDED ORDER This cause came on for formal proceeding and hearing before P. Michael Ruff, duly- designated Administrative Law Judge of the Division of Administrative Hearings. The hearing was conducted in.-Naples, Florida, on February 22 through 24, and by agreement of the parties on June 26 through 27, 2006. The appearances were as follows: 23. Collier County has concurrent jurisdiction over Naples Bay and, like the other Petitioners, is concerned with recreation and enjoyment of use of the waterways of Naples Bay, including access to the Bay and adjacent waterways through traverse of the bay. 24. The Petitioner, Eric Alexander is a resident of Collier County and has been for over 18 years. He is a licensed boat captain. He owns a charter boat business which operates in the waters of Naples Bay and adjacent waters in Collier County. He has recreational, commercial, navigational, and economic interests personal to him invested in the use of Naples Bay for both recreational and commercial purposes, as well as the access it provides to additional waterways. Naples Bay provides Mr. Alexander his only access to the Gulf of Mexico, where he takes his fishing charter parties in the conduct of his business. The proposed speed zones will have a substantial effect on his business and possibly his livelihood because the long transit times involved in the enactment of all the slow speed zones will tend to make his customers use charter boat businesses in other nearby areas that do not have to transit Naples Bay to reach fishing grounds, etc. His testimony of the substantial effect on his charter boat operations posed by the more pervasive slow speed zones was not refuted in the record. He established that his business will be substantially affected by the slow speed zones. 25. The Petitioner, Douglas Finlay has resided in Collier County and Naples for over 10 years. He has been a recreational boater for that period of time. He has recreational and navigational boating interests in Naples Bay, including the access it provides to the Gulf and to additional waterways. He is particularly concerned that the proposed speed zone being moved from the protected area, out to the entrance to the Gulf at Gordon Pass, will adversely impact boating safety. The slow speed zone at that point will adversely impact safe boating operation because sufficient power and steerage provided by higher speed must be maintained to safely navigate the sometimes difficult wave, current, and wind conditions at the entrance to the Gulf. Mr. Finlay is directly affected in terms of his recreational boating and navigational interests by the imposition of the slow speed zones at issue. In terms of this concern, as well as, generally, the resultant long transit times through Naples Bay. 31. Members of MIACC have lost some business in potential sales of boats and boat slip rentals, from customers who have elected not to locate boats or operate boats in Naples Bay because of the inconvenience caused by the speed zones. These additional speed zones have had the effect of discouraging recreational boating members or potential recreational boaters from boating on Naples Bay. At least one MIACC member has experienced several previous boaters placing their vessels with him for sale, ending their Naples Bay boating activities in the belief that the slow speed zones are, or soon will be, placed into effect. 38. The interest of MIACC and its members in both commercial and recreational boating pursuits will be substantially affected if the relevant slow speed zones are enacted which would pose a significant restriction beyond the limitation already prescribed by state and local law. This is because access to fishing and recreational areas will require longer travel time, with more areas of interest to the boating public eliminated from reasonable use. This will have a negative effect on the manufacture, sale, chartering, docketing, equipping, servicing, maintenance, and operation of boats on the bay and adjacent waterways. 124. The preponderant, persuasive evidence culminating in the above findings of facts established that Naples Bay is not subject to unsafe levels of vessel traffic congestion. This was shown both by subjective testimony of witnesses as well as through the objective standard elicited through the testimony and evidence brought forth through the Petitioner's expert, Dr. Baker. The LOS methodology is an objective method by which to analyze vessel traffic congestion. 128. One accident for every 67,500 boat trips on Naples Bay, however, does not present a "significant risk of collision." 120. The Respondent FWC and the City's position that it merely reviews the waterways marker application at issue to determine whether all the necessary information has been provided in the application would render the FWC's duty only a ministerial one. It would not thereby independently make a determination or confirmation that any of the factual scenarios or criteria of the FWC's own rule has been met. Such an interpretation is, however, contrary to the plain meaning of both Section 327.40, Florida Statutes, and Florida Administrative Code Rule 68D23.105(1)(b). It would render those sections and criteria meaningless. It cannot be concluded that the Legislature, in enacting Section 327.40, Florida Statutes, and the commission, in 2001, when it enacted the subject rule, did so, without a reason. There would be no purpose for the statute or the Rule, in having specific factual criteria for the grant of a permit, if the agency (and the Division of Administrative Hearings by referral of the formal proceeding challenging the agency permitting action) could not judge whether the criteria in the Rule have been met. 121. The Respondent City, has maintained throughout the proceeding that FWC and the Division of Administrative Hearings have no jurisdiction to consider the wisdom or validity or purpose behind the ordinance adopted by the Naples City Council. That position, however, confuses a review of the permit application at issue with a review of the validity of the ordinance. From the Florida Fish and Wildlife Conservation Commission Final Order THE ISSUE Does the FWC have the authority and, if so, the duty to prevent an ordinance adopted pursuant to Section 327.60, Florida Statutes, from taking effect by denying the issuance of a waterway marker permit until it has reviewed the available accident, citation, and vessel traffic information, as well as other available, relevant, and reliable information, and has made its own independent determination that the data supports the imposition of the ordinance's restrictions ?" Statutes & Constitution :View Statutes :- >2006- >Ch0327- >Section 22 : tlsenate.gov Select Year: 2006 ;'; The 2oo6 Florida Statutes Title XXIV chaoter_M VESSELS VESSEL SAFETY 327.22 Regulation of vessels by municipalities or counties. -- F View Entire_Chapter Page 1 of 1 (1) Nothing in this chapter shall be construed to prohibit any municipality or county that expends money for the patrol, regulation, and maintenance of any takes, rivers, or waters, and for other boating- related activities in such municipality or county, from regulating vessels resident in such municipality or county. Any county or municipality may adopt ordinances which provide for enforcement of noncriminal violations of restricted areas which result in the endangering or damaging of property, by citation mailed to the registered owner of the vessel. Any such ordinance shall apply only in legally established restricted areas which are property marked as permitted pursuant to ss. 327.44 and 32Z9L�tY roan and the mynali ies In a ed wi hin h o mtv may Jointly Legulate vessels. (2) Citations issued to liveried vessels pursuant to this subsection shall be the responsibility of the Lessee of the vessel. It shall be the responsibility of the lessor upon request of the agency issuing the citation, to provide the name and address of the lessee. It shall be the responsibility of the livery to provide such information as a part of the rental agreement. The livery is not responsible for the payment of citations if the livery provides the required information. History. - -s. 1, ch. 65 -361; s. 8, ch. 74 -327; s. 112, ch. 77.104; s. 24, ch. 79 -334; s. 2, ch. 82 -17; s. 7, ch. 84 -184; s. 1, ch. 85 -108; s. 1, ch. 85.287; s. 4, ch. 89.168; s. 1, ch. 90 -219; s. 1, ch. 92.188; s. 21, ch. 99.289; s. 4, ch. 2000.362. Note. -- Former s. 371.63. Disclaimer: The information on this system Is unverified. The journals or printed bilts of the respective chambers should be consulted for official purposes. Copyright O 2000.20D6 State of Florida. http: / /www.tlsenate.gov /Statutes /index.cf n ?p=2& App_ mode= Display_Statute &Search_St... 4/27/2007 STATE OF FLORIDA FISH AND WILDLIFE CONSERVATION COMMISSION COLLIER COUNTY BOARD OF COUNTY a COMMISSIONERS, ET. AL., Petitioners, Case Nos. 05 -2034 VS. 05-2035 FLORIDA FISH AND WILDLIFE 05 -2036 CONSERVATION COMMISSION, ET OS -2037 AL., Respondents, CITIZENS TO PRESERVE NAPLES BAY INC., AND THE CONSERVANCY OF SOUTHWEST FLORIDA, INC., Intervenors. FINAL ORDER This case involves an application by the City of Naples for a permit to place regulatory markers on waters in and around Naples Bay. On December 22, 2006, The Honorable P. Michael Ruff, an Administrative Law Judge with the Division of Administrative Hearings (hereinafter "DOAH ") submitted his Recommended Order to the Florida Fish and Wildlife Conservation Commission, (hereinafter "FWC "). Copies of the Recommended Order were also served upon the Petitioners, the Intervenors, and upon the Co- Respondent City of Naples (hereinafter "the City "). A copy of the Recommended Order is attached as Exhibit A. On January 8, 2007, Exceptions to Recommended Order were filed with FWC on behalf of Co- Respondent. On January 17, 2007, a Response to the Co- Respondent's Exceptions to Recommended Order was filed on behalf of the Petitioners. The matter is now before the agency for final action. THE ISSUE Does FWC have the authority and, if so, the duty to prevent an ordinance adopted pursuant to Section 327.60, Florida statutes, from taking effect by denying the issuance of a waterway marker permit until it has reviewed the available accident, citation, and vessel traffic information, as well as other available, relevant, and reliable information, and has made its own independent determination that the data supports the imposition of the ordinance's restrictions? BACKGROUND On November 17, 2004, the City of Naples adopted Ordinance Number 04- 10664, regulating the operation of vessels upon certain waters within the city's jurisdiction. On December 22, 2004, the City submitted its application for a permit to place the regulatory markers necessary for the ordinance to take effect. On May 5, 2005, following four months of review of the application and investigation into the proposed appearance, construction, and locations for the markers, FWC issued its Notice of Intent to issue the requested permit. FWC verified that the City had considered accident reports, uniform boating citations, vessel traffic studies, or other creditable data in adopting the ordinance, but did not independently reevaluate that information to form its own conclusions as to the wisdom of or necessity for the ordinance. Petitioners ask FWC to prevent the ordinance from taking effect by denying the permit necessary for the placement of regulatory markers. They assert that FWC has the authority to look behind the four comers of the ordinance to independently ascertain the necessity for additional speed restrictions and, if it disagrees with the applicant, a duty to substitute its -- judgment for that of the duly elected legislative body that enacted the ordinance and deny the requested permit. Petitioners also assert that FWC has both the authority and the duty to look behind the four corners of the application to independently ascertain the applicant's true "purpose for placing the proposed markers" and to deny the permit if FWC does not believe that the purpose is truly for safety or navigation. FWC'S AUTHORITY TO ADOPT, MODIFY OR REJECT AN ALJ'S RECOMMENDED ORDER Pursuant to Section 120.57(2)(0, Florida Statutes, FWC has the authority to reject or modify the conclusions of law over which it has substantive jurisdiction and interpretation of administrative rules over which it has substantive jurisdiction. The agency in its final order may reject or modify the conclusions of law over which it has substantive jurisdiction and interpretation of administrative rules over which it has substantive jurisdiction. When rejecting or modifying such conclusion of law or interpretation of administrative rule, the agency must state with particularity its reasons for rejecting or modifying such conclusion of law or interpretation of administrative rule and must make a finding that its substituted conclusion of law or interpretation of administrative rule is as or more reasonable than that which was rejected or modified. Section 120.57(2)(0, Florida Statutes. In Barfield v Dep't of Health Bd. of Dentistry, 805 So. 2d 1008 (Fla. 1 st DCA 2001), the First District Court examined in detail the legislative history of the provisions of Section 120.57(1)(0, Florida Statutes and substantive jurisdiction. In that case, an applicant for dental licensure appealed the final order of the Department of Health, Board of Dentistry (the Board), 3 for its rejection of the ALJ's Recommended Order, denying his application on the ground that he had failed the clinical portion of the Florida Dental License Examination. The ALJ had ruled that certain grading sheets, which the Board had relied on in deciding that Barfield had failed the examination, were inadmissible hearsay and could not be used as evidence to show that Barfield failed the licensure examination. The Board issued its final order rejecting the ALJ's conclusion of law. The applicant argued, and the First District Court agreed, that the Board, as the reviewing agency of the ALJ's recommended order, had no substantive jurisdiction under Section 120.57(1)0, Florida Statutes, to displace the ALJ's conclusion of law. However, here, FWC has substantive jurisdiction over waterway markers. The First District Court does not dispute an agency's authority to reject an ALJ's recommended order the agency has substantive jurisdiction over the subject. Furthermore, the First District Court found that an administrative agency would only violate its authority regarding judicial review if an ALJ's conclusions of law are beyond an agency's substantive jurisdiction. (Id• at 1013). In Q.E.L.—Corp. v Deo't of Envtl. Prot., 875 So. 2d 1257, 1265 (Fla. 5th DCA 2004), the Fifth District Court concluded the Legislature clearly intended to restrict agency review of legal conclusions in a recommended order to those that concern matters within the agency's field of expertise. (Id. at 1264). Here, even Petitioners make ample arguments that permitting markers is within FWC's field of expertise. Pursuant to Barfield, G.E.L. and the plain language of Section 120.57(2)(n, Florida Statutes, FWC has the authority to reject the ALJ's conclusions of law as to FWC's authority over the permitting of waterway markers because this subject is within FWC's substantive jurisdiction. FWC does reject the ALJ's conclusions of law other than the issue of standing and it states with particularity the reasons for rejection below. -- RULINGS ON ALJ'S RECOMMENDED ORDER ALJ's Recommended Findings of Fact FWC adopts all of the ALJ's findings of fact found in Paragraphs 1 through 83, to the extent that they are relevant and material. ALJ's Recommended Conclusions of Law The FWC adopts the recommended conclusions of law found in Paragraphs 84 through 90 that the parties have standing to challenge the issuance of a permit for regulatory markers. This standing however, is limited to issues pertaining to whether the regulatory markers' appearance, construction and proposed placement would conform to the requirement of the rule. Walburn v Department of Natural Resources, 14 FALR 3038, 3039 -3040, app. dism., 589 So. 2d 1332 (Fla.2d DCA 1991). See, Fla. Admin. Code R. 68D- 23.104(3). Petitioners also have standing to contest whether or not there exists one of the conflicts enumerated in Florida Administrative Code Rule 68D- 23.101(4). Finally, Petitioners have standing to contest whether the City has stated a valid vessel traffic safety or public safety purpose for placing the markers. Sew Fla. Admin. Code R. 68D- 23.105(1). FWC rejects the recommended conclusions of law found in Paragraphs 84 through 90 to the extent that these paragraphs conclude that the parties have standing to contest in this proceeding the necessity of the ordinance underlying the waterway marker application. Sae Walburn v Department of Natural Resources, su ra. FWC rejects all of the ALJ's remaining recommended conclusions of law as irrelevant. FWC is not obligated nor authorized to make actual determinations as to whether it can independently determine whether a municipal ordinance speed zone is needed. FWC may only review and approve ordinances that have been adopted for purposes of manatee protection. Section 370.12(2)(p), Florida Statutes. The goal of Section 327.41, Florida Statutes, is uniformity of the waterway regulatory markers. Pursuant to Section 327.41 (1), Florida Statutes, "the Commission shall adopt rules pursuant to Chapter 120 establishing a uniform system of regulatory markers for the waters of the state, compatible with the system of regulatory markers prescribed by the United States Coast Guard in the United States Aids to Navigation System, 33 C.F.R." FWC is not authorized by Section 327.40, Florida Statutes, to preempt local government authority to regulate or establish restrictions for the operation of vessels. FWC's authority is to regulate the marking of waterways for safety or navigational purposes upon application of persons or entities as provided by law. FWC is required to "make such investigations as needed, and issue a permit" Section 327.40(2)(a), Florida Statutes. This sentence means that FWC must investigate to make sure the placement of markers are not a hazard to navigation. Pursuant to Section 327.40, Florida Statutes, the regulatory marker applicant was required to submit a statement describing the purpose of marking. This requirement was satisfied. Nowhere in the statute is FWC authorized to second guess a local government's authority as to whether a boating safety ordinance is needed. Contrast Section 327.40, Florida Statutes with Section 370.12(2)(p), Florida Statutes, which requires that FWC review and approve the language or ordinances of local governments regulating operation of motorboats addressing the protection of manatees. If Legislature had intended to impose a mandatory review and approval of local ordinances by FWC as to whether boating safety restrictions are needed or not, then it would have provided similar language to that found in Section 370.12(2)(p), Florida Statutes. While FWC does not believe it has authority to override the City's ordinance as to whether boating safety restrictions are needed in Naples Bay, the issuance of a waterway marker permit in this case does not mean FWC agrees with the City's decision. FWC promotes safe boating and boating safety education. Boating restrictions should be imposed only when necessary and warranted without undue burdens on boaters. FWC'S SUBSTITUTED CONCLUSION OF LAW AND INTERPRETATION OF THE ADMINISTRATIVE RULES IS AS OR MORE REASONABLE THAN THAT WHICH WAS REJECTED OR MODIFIED FWC finds that its substituted conclusion of law or interpretation of administrative rule is as or more reasonable than that which was rejected or modified. This analysis reflects FWC's interpretation and is entitled to great deference. AmeriSteel Corn. v. Clark, 691 So. 2d 473, 477 (Fla. 1997). FWC's view is not contrary to the statute's plain and ordinary meaning. See PAC for Equality v Department of State Florida Elections Com., 542 So. 2d 459, 460 (Fla. 2d DCA 1989). See also Florida Department of Education v. Cooper, Case No. 1D -4040, 2003 WL 22508245 (Fla. 1st DCA No. 6, 2003). FWC's interpretation should not be overturned unless clearly erroneous. See e.g., Falk v. Beard, 614 So.2d 1086, 1089 (Fla. 1993); Florida Department of Environmental Regulation v. Goldring, 477 So.2d 532. 534 (Fla. 1985); Harloff v. City of Sarasota, 575 So.2d 1324, 1327 (Fla. 2d DCA 1991); Reedy Creek Improvement Dist. V Department of Environmental Regulation, 486 So.2d 642, 648 (Fla. I" DCA 1986). In Lee County v. Lippi, 662 So.2d 1304 (Fla.2d DCA1995), the District Court of Appeal, Second District agrees with FWC's interpretation of its authority under Section 327.40, Florida Statutes. The court in LiDDi expressly ruled that there is no language in Chapter 327, evidencing a legislative intent for state preemption of local government authority over waterways. The court in Lippi also correctly noted that the sphere of authority for both state and local governments in regulating the operation of most vessels on state waters is embodied in the statutory language of Sections, 327.22, 327.60 and 327.73(1)(i)2, Florida Statutes. Id. at 1306. Likewise, in Ventura v Department of Environmental Protection, DOAH Case No. 93- 5964, the Division of Administrative Hearings held that if the Legislature had intended that mandatory state review and approval of local ordinances relating to boating safety then presumably, it would have inserted similar language to the provisions of Section 370.12(2)(p), Florida Statutes, There have been no material changes in Chapter 327 since the Li d and Ventura decisions which alters the validity of these case decisions to the case at hand. FWC's interpretation of rule 68D- 23.105(1)(b) is as reasonable as or more reasonable than that expressed in the recommended order because the interpretation in the recommended order would result in the rule enlarging or modifying the specific provisions of law implemented. See Section 120.52(8)(c), Florida Statutes. (defining "Invalid exercise of delegated legislative authority "). An applicant must provide with its application "a statement of the purpose of marking" the area. Section 327.40(2)(a), Florida Statutes. FWC interprets its own rule 6813- 23.105(1)(b)6 to require that a municipality rely on "accident reports, uniform boating citations, vessel traffic studies, or other creditable data" in determining that purpose and that the municipality find, based on these factors, that there is "a significant risk of collision or a significant threat to public safety." These factors are material to the municipality's purpose for regulating the area. They do not, however, give rise to any authority for FWC to substitute its judgment for that of the elected legislative body of the municipality in determining whether or not there is a need for the ordinance itself. Any interpretation of the rule that would require FWC to assume such authority would be unreasonable because it would cause the rule to be invalid. See State Bd. of Trustees v. Day Cruise Ass'n, Inc., 794 So.2d 696, 701 (Fla. 1 st DCS 2001). FWC'S CONCLUSIONS OF LAW 1. FWC concludes as a matter of law that no allegations have been made nor any evidence entered that the proposed markers do not conform to the United States Aids to Navigation System and Chapter 68D -23, Florida Administrative Code, as required for determination by FWC pursuant to Rule 68D- 23.104 (3)(a)l. 2. FWC concludes as a matter of law that no allegations have been made nor any evidence entered that the proposed markers and any support structures or moorings do not conform to the United States Coast Guard Aids to Navigation — Technical Manual (Comdtinst MI 6500.3A) as required for determination by FWC pursuant to Florida Administrative Code Rule 68D- 23.104 (3)(a)2. 3. FWC concludes as a matter of law that no allegations have been made nor any evidence entered that any conflicts exist with the provisions of Chapter 327, or any amendments thereto or regulations thereunder, for ordinances adopted pursuant to Section 327.60, Florida Statutes, as required for determination by FWC pursuant to Florida Administrative Code Rule 6813- 23.104 (3)(a)1. 4. FWC concludes as a matter of law that the City of Naples has stated a valid purpose for marking this area in that it considered and relied on accident reports, uniform boating citations, vessel traffic studies, or other creditable data in determining its purpose for marking and has found, based on these factors, that there is a significant risk of collision or a significant threat to public safety. See Fla. Admin. Code R. 68D- 23.105(1)(b)6. M RULING ON RESPONDENT CITY OF NAPLES'AND INTERVENORS' EXCEPTIONS FWC adopts exceptions 2 and 3. FWC rejects exceptions 1 and 4 through 12 as moot. WHEREFORE, IT IS HEREBY ORDERED: 1. FWC adopts all of the ALJ's findings of fact found in Paragraphs 1 through 83 to the extent that they are relevant and material. 2. FWC adopts the ALJ's recommended conclusions of law found in Paragraphs 83 through 90 to the extent that the parties have standing to challenge the issuance of a permit for regulatory markers but cannot challenge in this proceeding the need for the ordinance noticed on the markers. 3. Exceptions 2 and 3 are adopted and incorporated herein as Exhibit B. 4. Exceptions 1 and 4 through 12 are rejected as moot. 5. The waterway marker permit relating to the City of Naples Application and City of Naples Ordinance 04 -10664 is granted. The permit is effective 30 days from the date of this order unless a notice of appeal of this order is timely filed. Any party to this order has the right to seek judicial review of the order under section 120.68 of the Florida Statutes by the filing of a notice of appeal under Florida Rules of Appellate Procedure 9.110 with the Clerk of the Commission in the Office of General Counsel, 620 South Meridian Street, Farris Bryant Building, Tallahassee, Florida 32399 -1600, and by filing a copy of the notice of appeal accompanied by the applicable filing fees with the appropriate District Court of Appeal. The notice of appeal must be filed within 30 days from the date this order is filed with the Clerk of the Commission. 10 Any party to this order has the right to seek judicial review of the order under section 120.68 of the Florida Statutes by the filing of a notice of appeal under Rule 9.110 of the Florida Rules of Appellate Procedure with the Clerk of the Commission in the Office of General Counsel, 620 South Meridian Street, Farris Bryant Building, Tallahassee, Florida 32399 -1600, and by filing a copy of the notice of appeal accompanied by the applicable filing fees with the appropriate District Court of Appeal. The notice of appeal must be filed within 30 days from the date this order is filed with the Clerk of the Commission. DONE AND ORDERED in Tallahassee, Leon County, Florida, this .2 /$rday of March, 2007. Filed with the Agency Clerk This a I " day of March, 2007 ATTEST: Kenneth Haddad Executive Director Florida Fish and Wildlife Conservation Commission CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the above FINAL ORDER and foregoing has been furnished by United States mail to the parties listed below, this .21 day of March, 2007. FLORIDA FISH AND WILDLIFE CONSERVATION COMMISSION s,v-, Stan M. Warden Assistant General Counsel 620 South Meridian Street Tallahassee, Florida 32399 -1600 Florida Bar No. 144932 Telephone: (850) 487 -1764 Fax: (850) 487 -1790 12 Captain Allen Walborn 678 14`h Avenue Naples, Florida 34102 Captain Jack Hail 2675 Bayview Dr. Naples, Florida 34112 Mr. James Pergola 1830 Kingfish Rd. Naples, Florida 34102 Captain Eric Alexander 654 Squire Circle Naples, Florida 34104 Mr. Frank Matthews D. Kent Safriet Hopping Green & Sams P.O. Box 6526 Tallahassee, FL 32314 Mr. Robert Pritt, Esq. 850 Park Shore Drive Trianon Centre, Third Floor Naples, Florida 34103 -3587 Ms. Mimi S. Wolock, Esq. 1112 Trial Terrace Drive Naples, FL 34103 -2306 Mr. Andrew Dickman, Esq. Conservancy of Southwest Florida, Inc. 1450 Merrihue Drive Naples, Florida 34102 -3449 13 Mr. Dave Sirkos 5`h Avenue South Naples, Florida 34102 Mr. Jeffrey A. Klatzkow Assistant County Attorney Collier County 3301 East Tamiami Trail Naples, Florida 34112 -4902 Mr. Douglas Finlay 3430 Gulf Shore Blvd. N., 5H Naples, Florida 34103 EXHIBIT A -- _A STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS COLLIER COUNTY BOARD OF COUNTY COMMISSIONERS, ET AL., Petitioners, VS. FLORIDA FISH AND WILDLIFE CONSERVATION COMMISSION, ET AL., Respondents, and CITIZENS TO PRESERVE NAPLES BAY, INC., AND THE CONSERVANCY OF SOUTHWEST FLORIDA, INC., Intervenors. Case Nos. 05 -2034 05 -2035 05 -2036 05 -2037 RECOMMENDED ORDER This cause came on for formal proceeding and hearing before P. Michael Ruff, duly- designated Administrative Law Judge of the Division of Administrative Hearings. The hearing was conducted in Naples, Florida, on February 22 through 24, and by agreement of the parties on June 26 through 27, 2006. The appearances were as follows: APPEARANCES For Petitioner: Frank E. Matthews, Esquire D. Kent Safriet, Esquire Hopping Green & Sams, P.A. Post Office Box 6526 Tallahassee, Florida 32314 Colleen M. Greene, Esquire Jeffrey A. Klatzkow, Esquire Office of the County Attorney Collier County Government Center 3301 Tamiami Trail, East Harmon Turner Building, 8th Floor Naples, Florida 34112 For Petitioners pro se: Captain Allen Walburn 678 14th Avenue South Naples, Florida 34102 Captain Eric Alexander 654 Squire Circle Naples, Florida 34102 James Pergola 1830 Kingfish Road Naples, Florida 34102 Douglas Finlay 3430 Gulf Shore Boulevard, North, 5H Naples, Florida 34103 For Respondents: Elise M. Matthes, Esquire Captain Allen Richards, Esquire Florida Fish and Wildlife Conservation Commission 620 South Meridian Street Tallahassee, Florida 32399 Robert G. Menzies, Esquire James D. Fox, Esquire Roetzel & Andress, LPA 850 Park Shore Drive Trianon Centre, 3rd Floor Naples, Florida 34103 2 For Intervenors: Mimi S. Wolok, Esquire 1112 Trial Terrace Drive Naples, Florida 34103 Ralf Brooks, Esquire 1217 East Cape Coral Parkway, Suite 107 Cape Coral, Florida 33112 Michael R.N. McDonnell, Esquire McDonnell Trial Lawyers 5150 Tamiami Trial North, Suite 501 Naples, Florida 34103 STATEMENT OF THE ISSUES The issues to be resolved in this proceeding concern whether the City of Naples's (City) Waterway Marker Permit Application should be granted, given the requirements of Section 327.40, Florida Statutes (2005) and Florida Administrative Code Rule 68- 23.105(1)(b)(3) through (6). PRELIMINARY STATEMENT The City of Naples applied for a Waterway Marker Permit (permit) in accordance with the requirements of Florida Administrative Code Section 68D- 23.105(1)(b), in furtherance of its ordinance enacted in order to impose slow speed zones in relevant portions of Naples Bay. On May 5, 2005, the Florida Fish and wildlife Conservation Commission (FWC), issued a Notice of Intent to issue that permit. Thereafter this cause arose when the various Petitioners named above filed timely Petitions for Administrative Hearing to contest that Notice of Intent to Issue and to dispute that the 3 requirements of the above -cited rule had been met by the applicant city. The dispute was referred to the Division of Administrative Hearings on June 3, 2005, and was consolidated by Order of June 14, 2005. Thereafter a Motion to Relinquish Jurisdiction was filed by the City which was denied by Order of August 31, 2005. The formal hearing was originally scheduled for September 28 and 29, 2005, but had to be postponed due to the advent of Hurricane Wilma and its aftermath on the environs of the venue site, parties, counsel, and witnesses. Thereafter, by agreement of the parties the hearing was re- scheduled for February 22 through 24, 2006. The hearing was convened on February 22, 2006, and was conducted through February 24, 2006, but was not concluded. Thereafter, the parties advised the undersigned of their conclusion that five continuous days would be needed to finish the formal hearing. It developed that the only five continuous days by which the multiple parties, counsel, and the Administrative Law Judge could convene together was the week of June 26, 2006. Accordingly, the parties stipulated that the hearing be held commencing on June 26, 2006, to be conducted through June 30, 2006. The hearing was convened on June 26, 2006, and concluded on June 27, 2006. When the cause came on for hearing, as noticed, the Petitioner, Collier County (County), presented the testimony of 4 Allen Walburn, a Naples resident and charter boat business owner, by deposition. It also presented the testimony of Captain Eric Alexander, also a Naples resident and charter boat business owner; Jim Pergola, a Naples resident and recreational boat user of Naples Bay, and a homeowner living adjacent to Naples Bay; Douglas Finlay, also a Naples resident and recreational boater who uses Naples Bay; and Murdo Smith, a representative of the Collier County Parks and Recreation Department. No separate exhibits were introduced into evidence by the County. The Petitioner Marine Industries Association of Collier County, Inc. ( MIACC), adduced the testimony of Edward K. Baker, Ph.D., accepted as an expert witness in the area of boat traffic studies, boat congestion simulation and modeling; Major Paul Ouellette of the FWC, who was accepted as an expert witness in the area of vessel traffic safety, vessel operation, vessel accident causes and waterways management; and City of Naples Police Chief Stephen Moore, and Lt. Ed Traszyk, accepted as experts in law enforcement procedures and identification of safety issues on roadways and waterways. MIACC also presented the testimony of John Staiger, Ph.D., a former City of Naples Natural Resources Director; Russ R. Ayres, City of Naples Marine Unit Officer; Phil Osborne, a representative for MIACC and Naples Boat Mart Owner; Phil Jentgen, a representative of MIACC 67 and a Naples Marina Co- owner, and the testimony of Rocco Marion and Joe Scalaro, both Collier County Sheriff's Deputies, by deposition. The pro se Petitioners testified on their own behalf. They did not introduce any separate exhibits into evidence. The City presented the testimony of David Lykins, the City of Naples Director of Community Services and Andrew Anderson, who was accepted as an expert witness in the areas of boat handling, boat traffic safety, vessel accident causes and prevention, and vessel operations. The FWC presented the testimony of Major Paul Ouellette, an FWC representative and section leader for the Boating and Waterway Section within the Division of Law Enforcement of FWC. The FWC introduced one exhibit which was admitted into evidence. The City introduced Exhibits 1 through 35, 38 through 41, which were admitted into evidence, albeit with restrictive rulings as to hearsay as to Exhibits 4, 5, 6, 10, 15 through 17, 20, 21, 23, and 24. The MIACC introduced 18 exhibits which were admitted into evidence. Thus, Exhibits 1, 2, 3, 4, 5, 6, 8, 10, 12, 13, 21, 25, 26, 30, 31, 32, 33, and 34 have been admitted into evidence. All parties adopted the testimony and exhibits of those parties with which they have commonality of interest and are similarly aligned. 11 The Intervenor, the Citizens to Preserve Naples Bay, Inc. (Citizens), presented the testimony of Walter Timmins, a Naples resident and president of Citizens. Citizens also introduced Exhibits 1, 2, and 4 which were admitted into evidence. The Intervenor Conservancy of Southwest Florida Inc. (Conservancy), presented the testimony of Kathleen Adams, its administrative assistant; Robert Schmidt, an Environmental Research Manager at the Conservancy; and Gary Davis, who is an attorney and consultant with the Conservancy. Additionally, the Conservancy introduced Exhibits 1 through 8, 10, 11, 12, 13, 14, and 15 into evidence. Upon conclusion of the proceeding, the parties elected to have the matter transcribed and agreed to an extended briefing schedule. It was thus stipulated and ordered that proposed recommended orders were to be filed 30 days after the transcript was filed. The Proposed Recommended Orders have been timely filed and have been considered in the rendition of this Recommended Order. FINDINGS OF FACT 1. The Petitioner, Eric Alexander, is a resident of Collier County and a licensed boat captain. He is the owner of a charter boat business operating in Naples Bay, in Collier County waters. 7 2. The Petitioner, Douglas Finlay is also a resident of the City of Naples and a recreational boater. He operates power boats and a kayak on the waters of Naples Bay involved in this proceeding. 3. The Petitioner, James Pergola is also a resident of Naples and resident of Collier County. He is a recreational boater and uses the waters of Naples Bay for recreational boating purposes. He is also a homeowner, owning a home adjacent to Naples Bay. 4. The Petitioner, Allen Walburn is a resident of Collier County and a licensed boat captain. He owns a charter boat business which operates in the waters of Naples Bay and Collier County. 5. The Petitioner, Collier County, is a political subdivision of the government of the State of Florida. It operates a boat ramp and county park area on the waters of Naples Bay for use by its citizens and other members of the public. Its Sheriff Department employees patrol the waters of Naples Bay seeking to enforce relevant boating safety and other laws and ordinances. 6. The Petitioner, Marine Industries Association of Collier County, Inc. (MIACC), is a non - profit association of businesses which are directly or indirectly involved in the marine industry on, or near the waters of Naples Bay. The E members of the association and /or its customers use the waters of Naples Bay in the conduct of their businesses, employment, and for recreational boating and recreational and commercial fishing purposes. 7. The City of Naples (City) is a unit of local government. It has authority to adopt the ordinance which triggered the dispute involved in this proceeding, based upon Section 327.60, Florida Statutes (2005). The City thus has authority to adopt ordinances regulating the operation of vessels on waterways within the jurisdiction of the City, so long as such ordinances or local laws do not conflict with the provisions of Chapter 327, Florida Statutes, and any regulations promulgated thereunder, or with other state or federal law. The City thus adopted the relevant slow speed, minimum wake boating restricted areas (slow speed zones) at issue in this proceeding. 8. The Respondent, FWC, is an administrative agency of the State of Florida charged in pertinent part with managing the navigable waters of the state and with the consideration of waterway marker permit applications filed and arising under Chapter 327, Florida Statutes, and the related rules promulgated in Florida Administrative Code Chapter 68. 9. The Intervenor, Conservancy of Southwest Florida (Conservancy), is a Florida non - profit corporation. Its purpose 9 is the protection of the natural environment of Southwest Florida, including advocacy, education and research. 10. The Intervenor, Citizens to Preserve Naples Bay (Citizens), is also a Florida non - profit corporation. Its organizational purpose is to preserve and protect the bay by actively supporting efforts it believes will further that mission. In arriving at its positions on issues affecting Naples Bay, Citizens considers questions of physical, chemical, biological, and navigational safety. The Waterway Marker Permit Application 11. Naples Bay is a water body located within the boundaries of Collier County and the City of Naples. It is an inland water body connected to the Gulf of Mexico at "Gordon Pass." Near the seaward end'of Naples Bay on its southerly margin is a connection with Dollar Bay, which extends southward of Naples Bay in the direction of Marco Island. Naples Bay contains a federally- maintained channel used for navigation and commerce. 12. Naples Bay is both a destination and a transit waterway used by local businesses, citizens, and tourists for recreational, business, and commercial purposes. It is used for a wide variety of boating purposes and interests, including commercial fishing, commercial charter boat operations, 10 recreational boating, and recreational fishing purposes, as well as by institutional /scientific users. 13. There are already vessel speed zones established on portions of Naples Bay. The City of Naples, however, adopted ordinance number 04 -10664 (the ordinance) creating the additional slow speed zones at issue in this proceeding. The ordinance, adopted on November 17, 2004, establishes new slow speed zones or minimum wake zones in portions of Naples Bay, Dollar Bay, and Gordon Pass. The ordinance was adopted under the authority of Section 327.60, Florida Statutes (2004), which allows a city to adopt ordinances regarding vessel operations on waterways so long as such ordinances or local laws do not conflict with the provisions of Chapter 327, Florida Statutes, or rules promulgated under that chapter. 14. In order to implement the newly adopted slow speed zones the city applied for a Uniform Waterway Marker Permit (Permit) from the FWC on December 23, 2004, in accordance with Sections 327.40 and 327.41, Florida Statutes (2004), and Florida Administrative Code Rule 68D -23. 15. Section 327.40, Florida Statutes, provides that: Waterways in Florida which need marking for safety or navigational purposes shall be marked [uniformly] . . . . (2)(a) application for marking . . . navigable water under concurrent jurisdiction of the Coast Guard and the 11 division shall be made to the division. . . ." (Emphasis supplied). 16. Section 327.40, Florida Statutes, was amended in 2000 to provide FWC with the authority to adopt regulations to implement that statutory section. 17. Florida Administrative Code Rule 68D- 23.105 was amended by the FWC in 2001, pursuant to the statutory purpose of determining which waterways need marking for safety or navigational purposes. Since the time of that amendment the Rule (Florida Administrative Code Rule 68D- 23.105(1)(b)), concerning the criteria for approval of regulatory markers, now provides that a valid vessel traffic safety or public safety purpose exists for "slow speed minimum wake" speed zones under the following facts and circumstances: (1) The Division shall find a valid vessel traffic safety or public safety purpose is presented for ordinances adopted pursuant to Section 327.60, Florida Statutes, under the following facts and circumstances: (b) For a slow speed minimum wake boating restricted area if the area is: (4) Subject to unsafe levels of vessel traffic congestion. (5) Subject to hazardous water levels or currents, or containing other navigational hazards. 12 (6) An area that accident reports, uniform boating citations, vessel traffic studies, or other creditable data demonstrate to present a significant risk of collision or a significant threat to public safety. * + r Fla. Admin. Code R. 68D- 23.105(1)(b). 18. The previous rules, prior to 2001, contained no similar factual criteria to those now found in the above - quoted rule. There are actually six factual criteria in the Rule, but only criteria four, five, and six, quoted above, are at issue in this proceeding, as stipulated by the parties. 19. The FWC issued a Notice of Intent to grant the permit stating that the FWC's Boating and Waterways Section found that the criteria in their referenced rule had been met. See City Exhibit 26 in evidence. 20. In arriving at this Notice of Intent to grant the permit application the FWC did not, however, independently make a determination or confirm that any of the factual circumstances referenced in the above Rule, and, specifically, subsections four through six of the Rule, actually existed. Rather, FWC assumed that all the statements in the application were true and issued the Notice of Intent to grant the permit. Standing 21. Collier County is a political subdivision of the State of Florida. It expends county funds to provide for the patrol 13 and regulation of safety on the waters of Naples Bay. It regulates Naples Bay through the patrolling of the Collier County Sheriff's Office. Section 125.01(j), Florida Statutes, grants the powers and duties to counties to "establish and administer programs of . . . navigation . . . and to cooperate with governmental agencies and private enterprises in the development and operation of such programs." 22. Collier County also owns and operates the only county- owned boat launching facility on Naples Bay. Collier County citizens have the right to access and enjoy Naples Bay and the waters beyond Naples Bay through that access, including the Gulf of Mexico. 23. Collier County has concurrent jurisdiction over Naples Bay and, like the other Petitioners, is concerned with recreation and enjoyment of use of the waterways of Naples Bay, including access to the Bay and adjacent waterways through traverse of the bay. 24. The Petitioner, Eric Alexander is a resident of Collier County and has been for over 18 years. He is a licensed boat captain. He owns a charter boat business which operates in the waters of Naples Bay and adjacent waters in Collier County. He has recreational, commercial, navigational, and economic interests personal to him invested in the use of Naples Bay for both recreational and commercial purposes, as well as the access 14 it provides to additional waterways. Naples Bay provides Mr. Alexander his only access to the Gulf of Mexico, where he takes his fishing charter parties in the conduct of his business. The proposed speed zones will have a substantial effect on his business and possibly his livelihood because the long transit times involved in the enactment of all the slow speed zones will tend to make his customers use charter boat businesses in other nearby areas that do not have to transit Naples Bay to reach fishing grounds, etc. His testimony of the substantial effect on his charter boat operations posed by the more pervasive slow speed zones was not refuted in the record. He established that his business will be substantially affected by the slow speed zones. 25. The Petitioner, Douglas Finlay has resided in Collier County and Naples for over 10 years. He has been a recreational boater for that period of time. He has recreational and navigational boating interests in Naples Bay, including the access it provides to the Gulf and to additional waterways. He is particularly concerned that the proposed speed zone being moved from the protected area, out to the entrance to the Gulf at Gordon Pass, will adversely impact boating safety. The slow speed zone at that point will adversely impact safe boating operation because sufficient power and steerage provided by higher speed must be maintained to safely navigate the sometimes 15 difficult wave, current, and wind conditions at the entrance to the Gulf. Mr. Finlay is directly affected in terms of his recreational boating and navigational interests by the imposition of the slow speed zones at issue. In terms of this concern, as well as, generally, the resultant long transit times through Naples Bay. 26. The Petitioner, James Pergola resides on the waters of Naples Bay by owning a home on a canal that communicates with the bay. He has been a resident of Collier County for more than 29 years and is a recreational boater. He uses the waters of Naples Bay for all purposes related to recreational boating, including simply operating his boat on and traversing the bay when bound to other locations, as well as for fishing. The proposed speed zones will adversely affect the recreational boating use and trips Mr. Pergola takes on the waters of Naples Bay by substantially increasing transit times through the waters of the bay, a restriction he deems unnecessary from a safety standpoint. 27. The Petitioner, Allen Walburn is a licensed boat captain and owns and operates a charter boat business. He conducts his charter boat operation in Naples Bay and adjacent waters of Collier County and the Gulf of Mexico. He has been a resident of Collier County since 1977. Mr. Walburn has commercial and economic interests which are intertwined with his 16 navigational interests in operating his vessels in the waters of the bay. The restrictions at issue would adversely affect his access and the time of access through the waters of the bay, to additional water ways and to the Gulf. The proposed speed zones, and their adverse effect on transit times through the bay will adversely affect Mr. Walburn's charter boat business. Some days he will not be able to operate two charters in one day, which will substantially reduce his revenue. Additionally, his charter boat customers over time will tend to migrate to charter boat businesses that operate in areas other than Naples Bay and which don't have the attendant long transit times in reaching fishing grounds caused by the proposed speed zones. Thus, the Petitioner Walburn is substantially affected by the proposed permit regarding the slow speed zones, in terms of both his recreational and commercial navigational interests and economic interests related to vessel operations in the waters of Naples 9M 28. The MIACC is a non - profit trade association. Its members are made up of businesses which directly or indirectly operate in or are related to the marine industry in the vicinity of Naples Bay. Membership in the MIACC includes 60 or more businesses or persons located in Collier County. The members consist of recreational boaters, marina operators, yacht 17 brokers, boat dealers, boat yards, marine construction contractors, marine professionals and charter boat businesses. 29. The association members rely upon reasonable access and reasonable transit times to and through Florida waters and, in particular, Naples Bay. This is important to their engagement in commerce, including the selling, servicing, and maintenance of boats, marine contracting, charter fishing and general recreational boating. 30. The members' market for their products and services, their revenues and the costs of their doing business depends substantially on reasonable public access, transit and safe use of the navigable waters in Naples Bay and the use of adjacent waters, which requires Naples Bay transit. 31. Members of MIACC have lost some business in potential sales of boats and boat slip rentals, from customers who have elected not to locate boats or operate boats in Naples Bay because of the inconvenience caused by the speed zones. These additional speed zones have had the effect of discouraging recreational boating members or potential recreational boaters from boating on Naples Bay. At least one MIACC member has experienced several previous boaters placing their vessels with him for sale, ending their Naples Bay boating activities in the belief that the slow speed zones are, or soon will be, placed into effect. it -] 32. The members of MIACC will incur additional time and costs in conducting sea trials of boats they are placing into service or repairing. The proposed slow speed zones leave only a small area of Naples Bay where boats are allowed to exceed slow speed. Consequently, the proposed slow speed zone will force all boat testing to occur in one small area of Naples Bay. That fact alone will create more congestion and possibly a safety issue in that more confined small area of the bay will render more difficult the operation of the members' businesses, which are involved in testing boats and boat It engines, and other operational systems of boats, when placed into service as part of a new vessel or when performing repair work on vessels. 33. MIACC and its members' ability to navigate and conduct commerce in Naples Bay will be impeded by the proposed slow speed zones. They will substantially increase the time for fishing charter members to navigate to, from, and between fishing locations and will increase the time for recreational fishermen members of the association to navigate to and between their fishing grounds as well. 34. The proposed slow speed zones will affect MIACC members by causing additional vessel congestion caused by excessively slow speeds over a longer distance, thereby potentially creating a safety issue. An additional and somewhat 19 different safety issue will occur because the slow speed zones will reduce the maneuverability of the vessels moving at slow speeds, a different kind of safety issue than caused by vessels moving at excessive speeds, in terms of steerageway on slow moving vessels and the vessels ability to avoid collisions. 35. The proposed speed zones will affect the members traversing Naples Bay by slow speeds increasing the risk of dangerous weather conditions. 36. The corporate purpose of MIACC is to: represent and educate recreational boating citizens and members of the marine industry and its workforce in the promotion and protection of recreational boating as a traditional family and business past - time and element of commerce. It seeks to promote boating both commercially and recreationally as a source of business activity and tourism. It seeks to protect and enhance the environmental circumstances of Florida waterways. See MIACC Exhibit 26 in evidence. 37. Its purposes are further to promote improved conditions on the waterways of Collier County generally, and improved operating conditions for recreational boating and the commercial boating industries as well. 38. The interest of MIACC and its members in both commercial and recreational boating pursuits will be _. substantially affected if the relevant slow speed zones are 20 enacted which would pose a significant restriction beyond the limitation already prescribed by state and local law. This is because access to fishing and recreational areas will require longer travel time, with more areas of interest to the boating public eliminated from reasonable use. This will have a negative effect on the manufacture, sale, chartering, docketing, equipping, servicing, maintenance, and operation of boats on the bay and adjacent waterways. 39. The Intervenor, the Conservancy, is a Florida non- profit corporation organized in 1966 headquartered in Naples, Florida. Its purpose is the protection of the natural environment of Southwest Florida, including through environmental advocacy, education, and research. The Conservancy has approximately 4,100 members in Collier County. 40. The Conservancy has conducted scientific research in Naples Bay for more than 20 years in support of its mission. It published the Naples Bay study in 1979, which was one of the first comprehensive studies of that estuary system. That study, and the research conducted by the Conservancy since, involves sampling of water in Naples Bay, primarily to monitor the water quality. Those samples are taken throughout the bay by the Conservancy staff, as well as volunteers. They usually employ a 14 -foot Carolina Skiff type fishing boat to perform this work. During the course of its boating experience, conducting its 21 sampling efforts in the bay, the Conservancy staff has encountered boat wake conditions which it believes threaten the safety of the small boat and its occupants which it uses for water sampling. It attributes those threatening boat wakes to the currently permitted boat speeds on Naples Bay and believes that slower boat speeds on the bay would make its research on the bay safer. 91. The Intervenor, Citizens, was incorporated in 1988 as a Florida non - profit corporation. Its primary mission is to preserve and protect Naples Bay by actively opposing any projects or efforts which it believes will adversely affect the bay and by actively supporting projects or efforts it believes will help to preserve or improve the bay. Citizens considers the physical, chemical, biological, and navigational safety questions involved, in matters concerning the bay, upon which it decides to take a position. Citizens has been involved in issues regarding Naples Bay over many years, including the Naples Bay Project Committee upon which its president, Harry Timmons, sat by appointment. That committee investigated Naples Bay safety and made recommendations to the Naples City Council regarding vessel traffic congestion and vessel speed zones. 92. Some 352 citizens members own homes on Naples Bay or on channels or canals connected to the bay. Both Mr. Timmins and Kirk Materne, members of Citizens, have taken positions 22 before the Naples City Council on a number of occasions concerning issues regarding vessel speeds on Naples Bay. Affidavits, introduced into evidence as corroborative hearsay, support the testimony adduced by Citizens to the effect that there are members in addition to Mr. Timmins who own and operate boats on Naples Bay and are affected in some way by the issues concerning boating safety and boating speeds on Naples Bay. Both Mr. Timmins and Mr. Materne are boaters and have operated their boats on Naples Bay for many years. Levels of Vessel Traffic Congestion (Florida Administrative Code Rule 68D- 23.105(1)(b)(4)) 43. The applicant City presented the testimony of expert - -- witness Andrew Anderson. Mr. Anderson is a Marine Consultant. Mr. Anderson is a graduate of the Coast Guard Academy and retired from the Coast Guard with the rank of Commander. He served as a boating and safety officer while in the Coast Guard and was certified as a 1,600 ton vessel master. He has captained vessels of varying sizes during his Coast Guard tenure. He has published articles and lectured on boating safety and has been recognized as an expert in boating safety, seamanship, and boating accidents in state and federal courts. He reviewed the City's exhibits, the depositions in this case, boating citations, accident reports, and Coast Guard commission records in preparing for his testimony. 23 44. Mr. Anderson believes congestion is any situation with a sufficient number of vessels within a certain geographic area and, given the speeds at which they are operating, that there will be a risk of collision if any operator makes a mistake. He described an example he believed constituted congestion around marker 18, where four boats were coming into close proximity of each other, creating an "unsafe condition." 45. Naples Bay's configuration more resembles a wide river than a bay. It is approximately 4.4 miles from marker seven, at the Gulf entrance to the bay, east and northeast to U.S. 41, the most inland extent of the bay. The bay is approximately one - quarter mile wide at its widest point. When Mr. Anderson observed conditions in Naples Bay by traversing it or a portion of it, he observed only approximately 20 to 30 boats. This was on a Tuesday afternoon for approximately two hours, some two weeks prior to the hearing; not as active a day for boating as would be a weekend day or a holiday. Mr. Anderson opined that he felt, "there is a problem with vessel traffic congestion, particularly at speed of 30 miles per hour." He believes that "the higher the speed, the fewer the vessels it takes to have a congested situation." 46. Thus Mr. Anderson expressed the view that Naples Bay was subject to unsafe levels of vessel traffic congestion. The basis for his opinion, however, was a mere two hours he spent on 24 Naples Bay on that Tuesday afternoon shortly prior to the hearing. Although he has a great deal of boat safety and operation expertise, as described above, he had not previously navigated Naples Bay for over 30 years until retained as an expert witness by the City. 47. During his two -hour tour of the bay, he found the bay to be congested and yet only saw 20 or 30 boats. Mr. Anderson conceded that the limited question that he was hired by the City to answer for this proceeding was "would the ordinance improve the safety of the boating public on Naples Bay ?" He stated that it was his opinion that the ordinance would improve public boating safety. He also conceded that an idle speed zone on the entire Naples Bay (not proposed by the City in the ordinance or the permit application) would also improve safety, implicitly even more. He did not concede, however, that such an idle speed zone restriction for the entire bay would be appropriate. 48. other subjective testimony, offered by the Petitioners, concerning assessment of vessel traffic congestion was provided by a number of witnesses who collectively have spent thousands of hours in navigation of Naples Bay at various times of the day, week, and year. Those witnesses, such as Captain Alexander, with more than 1000 hours per year navigation of Naples Bay; Captain Walburn, with more than 30 years operating on Naples Bay; Police officer Ayers, who patrolled the 25 bay five days a week for the last three years; and the Petitioners Pergola and Finlay, collectively testified that it was their opinion that the bay was not subject to unsafe levels of vessel traffic congestion. 49. Objective evidence concerning vessel traffic congestion and representing an objective standard therefor, was presented by Petitioner MIACC's expert witness, Dr. Ed Baker. Dr. Baker has extensive site - specific knowledge of Naples Bay as he has previously conducted two vessel traffic surveys of the bay. These surveys analyze traffic patterns, numbers of vessels navigating the bay, and the inventory of vessels with access to the bay. 50. His previous two studies were based on the level of service methodology (LOS) similar to that used with studies of automobile traffic. The LOS methodology was first employed and used in Naples Bay in a study by Heniger and Ray, Inc., a consulting firm commissioned by the City of Naples to measure boat capacity on Naples Bay. The LOS methodology is used to measure the capacity of a system, in this case Naples Bay, and the demand for its use of that system. The LOS for any particular system is an "indicator of the extent or degree of service provided by a system," and it indicates the capacity per unit of demand for the facilities. 26 51. This methodology showed the carrying capacity of Naples Bay to be 528 vessels per hour (this is aside from the question of what level of congestion that represents). 52. In a roadway transportation system, the relationship between road capacity and the number of vehicles on the road is described by letters A to F. Each letter represents a range of vehicles using the road in comparison to the road capacity. 53. The A through F LOS categories are based on several operating conditions, such as traffic flow, number of vehicles, speed, and maneuverability. See MIACC Exhibit two in evidence. 54. The Heniger and Ray study applied the same LOS methodology to boat traffic on Naples Bay. The Heniger and Ray study, as well as Dr. Baker's studies, defined A to F LOS categories as follows: Level A - represents a free flow condition in which there is little to no restriction on speed or maneuverability; Level B - a zone of stable flow but the presence of other boats begins to be noticeable. Freedom to select speed is relatively unaffected; Level C - a zone of stable flow; speed and maneuverability becomes affected at this level as a result of other boats; Level D - usually a stable flow of traffic, but a high density of boats cause significant restriction on speed and maneuverability; 27 Level E - traffic in an unstable flow representing conditions at or near capacity of the system with speeds and maneuverability severely reduced because of congestion; Level F - traffic in an unstable flow with speed and maneuverability extremely limited by severe congestion; frequent occasions of no forward progress. 55. Each level of service category is defined by increasing values of the volume to capacity ratio, such that LOS A described the situation where up to 15 percent of Naples Bay's carrying capacity is using Naples Bay. Therefore, under LOS A, up to 79 boats per hour would be using Naples Bay. 56. LOS B would describe a situation where up to 27 percent of Naples Bay's carrying capacity LOS is using Naples Bay or 143 boats per hour. LOS C would describe a situation where up to 43 percent of Naples Bay's carrying capacity LOS is using Naples Bay or 228 boats per hour. LOS D would describe up to 64 percent of the carrying capacity, or 338 boats per hour using Naples Bay. LOS E would then equate up to 100 percent of the carrying capacity or up to 528 boats per hour using the bay, and LOS F would describe a situation where boats would exceed the carrying capacity or more than 528 boats per hour resulting in gridlock. W 57. The LOS methodology is an objective method by which to analyze vessel traffic on the bay established by the testimony and evidence elicited through Dr. Baker, as well as Dr. Staiger. 58. Dr. Baker's initial Boat Traffic Studies and Models conducted in 1999 and 2002 concluded that at peak times Naples Bay is at an LOS A or B level on 10 out of 13 segments of the bay. Of the remaining three segments, at those times, the LOS level was C. Prior to the hearing in this case, Dr. Baker again conducted a study and survey of the bay to assess the current boat traffic situation. He described that his recent 2005 -2006 analysis showed that the LOS for the bay during a weekend in September 2005, and a holiday weekend in January 2006, was at an LOS A or B level. It is noteworthy that the Collier County Manatee Protection Plan adopts LOS C as the acceptable level of service for Naples Bay. The Naples Bay boat traffic studies and Dr. Baker's testimony indicate that there is no unsafe level of vessel traffic congestion on Naples Bay. 59. Major Paul Ouellette of the FWC, testified as to his finding that the permit application with its supporting documentation, and additional data, was insufficient to allow him to conclude that the new speed zones were warranted based upon an unsafe level of vessel traffic congestion. 60. The City of Naples Marine Unit Officer who testified, Russ Ayers, has over three years of daily patrolling experience 29 on Naples Bay. He found that Naples Bay is not subject to unsafe levels of vessel traffic congestion. 61. The Naples Bay traffic studies, including those of Dr. Baker and Dr. Baker's testimony, are more objective in terms of applying an objective standard and methodology. The methodology is deemed to be acceptable for practioners and by practioners in Dr. Baker's field of expertise. Because of the more extensive opportunity for observation of Naples Bay and its boat traffic and boat numbers, this testimony and evidence and that of Major Ouellette, officer Ayers and the Petitioners Alexander and Walburn, is deemed more compelling, credible, and persuasive, than that offered by Mr. Anderson, Mr. Timmins and other evidence offered by the City or Intervenors. Safety concerns caused by boat wakes, boat speeds, and careless, discourteous or illegal operation by boat operators, which cause safety hazards, or fears of safety hazards, do not equate to unsafe levels of vessel traffic congestion. The preponderance of the persuasive evidence establishes that Naples Bay is not subject to "unsafe levels of vessel traffic congestion." Hazardous Water Levels Currents or Other Navigational Hazards (Florida Administrative Code Rule 68D- 23.105(1)(b)(5)) 62. The Respondents and Intervenors contend that the proposed slow speed zones are needed in the Naples Bay area 30 because of hazardous water levels, currents or that the area contains other navigational hazards. 63. The City seems to contend that boats which are accelerating or decelerating upon leaving or entering the existing slow speed zones themselves constitute "navigational hazards." While the term "navigational hazard" is not defined in the statutes or rules at issue, it has been defined by the U.S. Coast Guard in terms of "hazard to navigation" as "an obstruction, usually sunken, that presents sufficient danger to navigation so as to require expeditious, affirmative action such as marking, removal, or re- definition of a designated waterway to provide for navigational safety." 33 C.F.R. § 64.06 (2005). A "navigational hazard" within the meaning of Florida Administrative Code Rule 68D- 23.105(1)(b)(5) equates in meaning to be the same as a "hazard to navigation" treated in the above federal rule related to the Coast Guard's jurisdiction. While boats operating under power might, under certain circumstances, (chiefly improper, careless, discourteous, or illegal operation,) be dangerous to the safety of other boaters or users of a waterway, they do not comport with the generally accepted sense of what "navigational hazard" means. It means a fixed object which poses a hazard to navigation of any or all boats operating under power or sail or human propulsion; examples being a sunken vessel, an oyster bar, a shoal, a stump or any 31 other object which might pose a danger if struck by a moving vessel. 64. Some witnesses, such as Captain Walburn, Dr. Staiger, witness Davis, and witness Timmins described such factors as a dock in the channel (encroaching somewhat apparently) between marker 21 and marker 23, narrow or serpentine portions of the Naples Bay Channel, and strong tidal currents in several areas, There is no persuasive evidence, however, to show these are anything other than normal physical complications to be contended with by a reasonably prudent mariner, operating a vessel in the areas in question. They do not pose hazardous conditions, in terms of water levels, currents, or navigational hazards. 65. Thus, there is no preponderant, persuasive evidence that the area of the proposed slow speed zones includes any areas that are subject to hazardous water levels, currents, or contains other navigational hazards. This is established by the testimony of officer Ayers, among others. Major Ouellette established with his testimony that the permit application with supporting documentation and additional data he reviewed was not sufficient for him to be able to conclude that the new speed zones were warranted because of the area being subject to hazardous water levels, currents, or because it contains other navigational hazards Thus the preponderant evidence 32 demonstrates that the proposed slow speed zones are not for areas that are subject to these hazardous factors. Whether there is a Significant Risk of Collision or a Significant Threat to Public Safety as Demonstrated by Acc Rannrts. Boating Citations, vessel Traffic Studies, or 0th ti 68D -23.1 66. The City adduced testimony from its expert witness, Mr. Anderson, as well as its other witnesses, as did the Intervenors, to the general effect that slowing of boat speeds on Naples Bay would render the bay safer for boat operation and traffic. Such testimony from Mr. Timmins and others, recounted anecdotal incidents where boating accidents occurred. Several of these caused injuries, boat damages, threw boating passengers out of their seats, on one occasion swamped a small boat, and caused another boat to take on water, due to excessive boat wakes of passing vessels. Mr. Timmins has boated on the bay for many years and does not feel safe or comfortable at certain times and in several areas in the bay. He described two places where the channel is significantly narrow and where he described what he felt were unsafe conditions caused by converging boat traffic, such as at the convergence of the Naples Bay channel with the channel entering into Dollar Bay. 67. It is logical to assume that if boat speeds could effectively be substantially reduced or possibly the horsepower of boats or the size of boats using Naples Bay could be 33 drastically reduced, or the numbers of boats using the bay substantially decreased, that Naples Bay could be rendered "safer." However, rendering Naples Bay simply "safer" is not the factual showing required by the above - referenced rule (or the legal standard imposed by it in order for the FWC to issue the waterway marker permit) Rather, the above - referenced sources of information, described in the rule, must demonstrate a significant risk of collision or a significant threat to public safety in order to demonstrate a need for the imposition of the slow speed zones. Accident Reports 68. The MIACC entered its Exhibit 31 into evidence. Exhibit 31 is a summary chart analyzing vessel accidents occurring in Naples Bay between the years 2000 -2009. It was prepared by the FWC. 69. Major Ouellette of the FWC, in his expert opinion, concluded that while a total of 17 vessel accidents occurred over that approximate five year period, only four of them could be relevantly linked in their cause and effect to the boat speeds involved, such that new slow speed zones might have prevented those four accidents (assuming the operators involved were complying with the regulation). Indeed, most accidents occurred with vessels already operating in existing slow or idle speed zones or attempting to dock. 34 70. The evidence adduced by the City and the Intervenors referenced individual reports of some eight accidents occurring over the five -year period, which they maintain are relevant, such that new slow speed zones might have prevented the accidents. 71. Dr. Baker performed an analysis correlating the number of accidents to the number of vessel trips taken in Naples Bay, however. Dr. Baker's analysis using the eight accidents contended to be relevant by the City and the Intervenors, rather than Major Ouelette's finding of four relevant accidents, determined that there was one boat accident for every 67,500 boat trips in Naples Bay during that period of time. One accident per 67,500 boat trips does not establish a significant risk of collision or significant threat to public safety in Naples Bay predicated on the accident reports. Eight accidents over a five -year period is not a "significant risk of collision or significant risk to public safety." 72. The City of Naples Police Department's Marine Unit is charged with enforcing regulations on Naples Bay. It monitors and compiles reports of boating accidents and makes yearly summaries thereof. If the Marine Unit identifies or experiences a significant risk of collision or threat to public safety due to accidents, then additional enforcement action will be taken such as dispatching additional officers to patrol the bay, 35 changes in their schedules or other efforts to reduce the risk or threat concerning collision or public safety. No such action has been taken by the Marine Unit in terms of additional enforcement efforts because, as established by Lt. Traczyk, it experienced no significant risk of collisions or treats to public safety. 73. If such additional enforcement actions were taken and they did not successfully reduce the risk of collision or threats to public safety, the police department's Marine Unit would inform its superiors, such as the chief of police or other officials, that additional measures, such as more stringent regulations, were needed. The City police department, through Chief Moore, however, has not informed or notified the City manager, City counsel or other City officials that additional regulations were needed to address any safety issues on Naples Bay. It did not deem such issues to be significant enough. 74. No Marine Unit Officers have informed their commanders that safety issues existed on the bay because of accidents or congestion of boats. The police department therefore has never suggested or recommended additional speed zones because of accidents or vessel traffic congestion or significant risk of collision or threats to public safety. 75. Major Ouellette established, with his expert testimony, that the accident data did not demonstrate "a 36 significant risk of collision or significant threat to public safety." Thus, the preponderance of persuasive evidence regarding accident data and experience on Naples Bay does not demonstrate that a significant risk of collision or significant threat to public safety exists on the bay. Boating Citations 76. An analysis of the boating citations found approximately 180 citations issued per calendar year for the bay. The vast majority of these citations were issued for vessels violating existing slow speed or idle speed zones. Since the vast majority of citations are issued for violators operating their vessels in existing slow speed, minimal wake or idle speed zones it cannot logically be concluded that the addition of speed zones would reduce boat operators' violations of boating speed limits, whether of the present ones or those proposed. Thus, it has not been established how the fact of the boating citations, in evidence, served to demonstrate a significant risk of collision or a significant threat to public safety, implicating a need for additional speed zones. The fact of the boating citations may demonstrate an enforcement issue or a boat operator education issue, but they do not demonstrate a need for additional speed zones. In fact, to the contrary, Major Ouelette, in his expert opinion, which is accepted, 37 established that boating citations were insufficient to support a conclusion that new slow speed zones were needed. Vessel Traffic Studies 77. As found above, Dr. Baker's testimony and his vessel traffic studies and analysis demonstrate that Naples Bay is operating below its capacity and essentially at LOS A and B. Thus the vessel traffic studies in evidence do not demonstrate "a significant risk of collision or significant treat to public safety" on Naples Bay. Represents a "Significant Risk of Collisio 78. The City's expert witness, Andrew Anderson, opined, based upon his review of the permit application and its supporting data, coupled with only a two -hour observation and experience of conditions on Naples Bay, that the areas proposed for the pertinent speed zones did present a significant risk of collision or significant threat to public safety. 79. The City's own Marine Unit police officer, Russ Ayers, has had more than three years' experience of daily patrols on the water on Naples Bay. He found no significant safety issues on Naples Bay, nor any significant risk of collision or threat to public safety on the bay. 80. Additionally, the Petitioner's witnesses, Police Chief Moore and Lt. Traczyck, determined that there were no W. significant safety issues on Naples Bay and that a significant risk of collision or of a threat to public safety did not exist. These witnesses established that if the Police Department Marine Unit personnel identify or observe a significant risk of collision or threat to public safety then additional enforcement action or additional regulation would be taken, as found above, in order to alleviate the risk. The Marine Unit has not seen fit, due to its observances, to embark on such additional enforcement actions. 81. Additionally, two Collier County sheriff's Department Marine Unit Deputies, Rocco Marion and Joe Scalora have extensive experience operating and observing boat traffic and Marine conditions on Naples Bay. They have found no significant risk of collision or significant threat to public safety on Naples Bay. 82. Because it was based upon thousands of hours operating vessels on Naples Bay, at all times of the day, week and year, the testimony of Capt. Alexander established that the bay does not experience a significant risk of collision or threat to public safety. His testimony is corroborated by that of Major Ouelette, as found above. 83. In summary, the testimony and evidence adduced by the Petitioners is more credible, persuasive, and compelling than that of the Respondents and Intervenors. It is accepted as the 39 most "creditable data" in establishing that the proposed slow speed zones are not in areas where accident reports, uniform boating citations, vessel traffic studies, or other creditable data demonstrate a significant risk of collision or significant risk to public safety. CONCLUSIONS OF 84. The Division of Administrative Hearings has jurisdiction of the subject matter of and the parties to this proceeding. §§ 120.569 and 120.57(1), Fla. Stat. (2005). 85. The issue of the applicant's entitlement to a permit is governed by Chapter 327, and specifically Sections 327.40 and 327.41, Florida Statutes (2004), as implemented by Florida Administrative Code Chapter 68D -23. 86. If an agency notices its intent to grant a permit application, the applicant for the permit has the initial burden to establish a rp ima facie case at the administrative hearing as to entitlement to the permit. Florida Department of Transportation v. J.W.C. Inc., 396 So. 2d 778, 788 (Fla. 1st DCA 1981). Once the applicant has established its prima facie case, the burden to go forward with evidence contrary thereto shifts to the Petitioners to present contrary evidence of equivalent quality. J.W.C. Company, Inc., supra at 789, 790. 87. The issuance of the permit must be based solely on compliance with the applicable permit criteria contained in 40 statute or rule. Counsel of the Lower Keys v. Toppino, 429 So. 2d 67 (Fla. 3rd DCA 1983). Standing 88. The burden is on the Petitioners to establish their standing. See Department of Health and Rehabilitative Services v. Alice P., 367 So. 2d 1045, 1052 (Fla. 1st DCA 1979). 89. Section 120.569(1), Florida Statutes, provides for proceedings to determine the "substantial interests of a party." In order for an association to have standing as a substantially affected party, it must demonstrate that: (1) A substantial number of its members, although not necessarily a majority, are 'substantially affected' by the challenged rule; [2] the subject matter of the rule [is) within the association's general scope of interest and activity; [3) the relief requested [is) of the type appropriate for a trade association to receive on behalf of its members. Florida Home Builders Association v. Department of Labor and Employment Security, 412 So. 2d 351, 353 -54 (Fla. 1982); Farm Workers Riahts Oro., Inc., v. Department _o_f_Health and Rehabilitative Services, 417 So. 2d 753, 754 (Fla 1st DCA 1982) (which extended the three part associational standing test to proceedings in which substantial interests are determined under (now) Section 120.569, Florida Statutes). 90. In order for an individual to have standing as a substantially affected party, he or she must establish; "(1) a 41 real and sufficient immediate injury in fact; and (2) that the alleged interest is arguably within the zone of interest to be protected or regulated." See, e.g., Ward v. Board of Trustees of the Internal Improvement Trust Fund, 651 So. 2d 1236, 1237 (Fla. 4th DCA 1995). MIACC 91. Representatives of the MIACC, who regularly navigate the waters of Naples Bay, testified that they and their members will be injured by the slow speed zones' interference with their rights to navigate, boat, and conduct commerce. The proposed slow speed zones will have an adverse effect on commerce in Naples Bay. 92. Members of MIACC showed that the speed zones will impede their ability to conduct comterce and traverse the bay by markedly increasing travel time. In addition, the proposed slow speed zones themselves will create safety issues with regard to boating traffic. Among the interests regulated and protected by Chapter 327 and Sections 327.40 and 327.41, Florida Statutes, as implemented by Florida Administrative Code Chapter 68D -23, are navigation safety and commerce. These statutes and rules, in effect, provide a zone of interest protection that can be asserted against needless and unwarranted waterway regulation. 93. The MIACC's interests and its activites include the promotion and protection of recreational boating as a Elm traditional past -time and source of tourism commerce, the promotion of improved conditions and general well -being of the commerce and navigation of waterways in Collier County. These interests and activities occur within the zone of interest protected by Chapter 327, Florida Statutes, and Florida Administrative Code Chapter 68D -23. Therefore, it has been demonstrated that MIACC and its members are "substantially affected" by the issuance of the permit and any resulting additional slow speed zones. 94. The preponderant, persuasive evidence has established that the above - referenced, three -part associational standing test has been met. Concerning the first factor of that test, regarding a substantial number of the association's members being "substantially affected," it has been stipulated that two members of MIACC would constitute a substantial number. It has thus been established that a substantial number of the members will be adversely affected, in view of this stipulation, as well as the preponderant, persuasive evidence adduced by MIACC and the other Petitioners. 95. It has also been established by preponderant, persuasive evidence that the use and regulation of the waterways in Naples Bay, including the regulation imposed by the permit application at issue, occurs within MIACC's general scope of interest, activity and purpose. The relief requested by MIACC 43 is the appropriate type of relief to seek and receive on behalf of its members. Accordingly, it has been established that MIACC has standing. Collier County 96. Collier County is a political subdivision of the State of Florida. Section 327.22(1), Florida Statutes, provides: "nothing in this chapter shall be construed to prohibit any municipality or county that expends money for the patrol, regulation, and maintenance of any lakes, rivers, or waters, and for other boating - related activities in such municipality or county, from regulating vessels resident in such municipality or county." This statute also provides, "any county and the municipalities within the county may jointly regulate vessels." See § 327.22(1), Fla. Stat. 97. Collier County thus has concurrent jurisdiction over the waters in question, along with the municipality of Naples (and the FWC for that matter). Thus it has an interest in regulating vessels and expends funds for patrol and regulation of the waters in question. The regulation of those waters posed by the permit application, and rule at issue, implicate issues that arise within the "zone of interest," in which the county's substantial interests have the opportunity for protection. 98. Collier County's standing is also borne out by the language in Section 125.01(j), Florida Statutes, which grants 44 powers and duties to counties to "establish and administer programs of . . . navigation . . . and cooperate with governmental agencies and private enterprises in the development and operation of such programs." 99. Moreover, Collier County has standing to challenge the agency action in this proceeding based on its particular substantial interests. Collier County owns and operates the only county -owned boat launch facility on Naples Bay. Collier County's standing is also supported by the language of Florida Administrative Code Rule 68D- 23.104, concerning the placement of markers, wherein it provides: "the division must consult, coordinate, or cooperate with any other governmental entity having concurrent jurisdiction over the waters for which the permit is required." While the use of the word "may" indicates that such coordination or cooperation is not a mandatory burden on the FWC, this rule language also contemplates a "zone of interest" or opportunity within which the county may advance or protect its substantial interests. 100. Section 120.52(12)(b), Florida Statutes, defines party as one "whose substantial interest will be affected by proposed agency action, and who makes an appearance as a party." The relief requested by Collier County in this proceeding is an appropriate type of relief and occurs among its substantial interests which it is authorized to seek to protect in a 45 proceeding such as this. Accordingly, the preponderant, persuasive evidence establishes the standing of Collier County to participate in this proceeding in opposition to the permit sought. Pro Se Petitioners 101. Individuals seeking to establish standing as a substantially affected party must show, "(1) a real and sufficiently immediate injury in fact; and (2) that the alleged interest is arguably within the zone of interest to be protected or regulated." See Ward v. Board of Trustees of the Internal Improvement Trust Fund, 651 So. 2d 1236, 1237 (Fla. 4th DCA 1995). The Petitioners' feared injury is real and immediate since the proposed slow speed zones will have a substantial effect on each of them. 102. Among the interests regulated and protected by Chapter 327, including Sections 327.40 and 327.41, Florida Statutes, as implemented by Florida Administrative Code Chapter 68D -23, are navigation, safety, and commerce. These statutes and rules protect against needless and unwarranted regulation of waterways. The pro se Petitioners' interests are thus within the zone of interest protected by Chapter 327, Florida Statutes, and Florida Administrative Code Chapter 68D -23. 103. The proposed speed zone changes will have a substantial effect on Captain Walburn and his charter boat 46 business. Captain Walburn is an affected party as an individual because he navigates vessels on Naples Bay for both recreational and commercial boating purposes. He runs a business of taking charter fishing party clients fishing in the waters in and around Naples Bay, especially in the Gulf of Mexico. He has to be able to navigate Naples Bay in a timely fashion in order to conduct this aspect of commerce on Naples Bay. His ability to navigate and conduct commerce on Naples Bay will be significantly impeded if the slow speed zones are enacted. 104. The same is true of the interests of Captain Alexander. His livelihood, like Walburn's, is dependent on being able to reasonably navigate Naples Bay to conduct commerce in the form of charter fishing parties through his charter boat business. He, like Walburn, navigates vessels on Naples Bay for this commercial boating purpose, as well as for recreational purposes. His ability to navigate and conduct commerce on Naples Bay will be significantly impeded if the permit, with its speed zones, is issued. Both Captain Walburn's and Captain Alexander's interests will be adversely affected. One reason they will be is that, in the conduct of the charter fishing operations, half -day trips are important. If the 4.4 mile stretch of Naples Bay is essentially rendered a slow speed zone, the long transit times involved, coupled with the already operative time period spent preparing for each charter boat Sri trip, and in winding it up after return to the docks, may have the significant, adverse effect of largely eliminating the ability to do a second half -day trip per day for Captain Alexander and Captain Walburn and their businesses. Their rights and ability to access and reasonably use Naples Bay for navigation and commerce would be substantially limited and unreasonably restricted based upon the preponderant, persuasive evidence adduced in this proceeding. Thus both Captain Walburn and Captain Alexander have standing. 105. James Pergola is an affected party. He is an individual who navigates vessels on Naples Bay for recreational purposes. His navigation will be substantially impeded if the City's permit is issued because of the long transit times engendered in traversing Naples Bay to the Gulf. The proposed restrictions will limit Pergola's access to the Gulf and to other destinations beyond Naples Bay, including south through Dollar Bay to Marco Island. 106. The same sort of considerations apply to Douglas Finlay, who also uses the bay to navigate vessels for recreational purposes. The same sort of impediments will affect the Petitioner Finlay. These Petitioners, particularly the Petitioner Finlay established that if the slow speed zones involve the area where Naples Bay, through the pass, communicates with the Gulf, then slow speed zones can pose an m actual danger to vessels and passengers navigating that area. This is particularly so when outgoing tides collide with landward bound winds and waves. This can cause very rough seas and dangerous currents. Under these conditions vessels moving slowly may be endangered versus those moving at a reasonable speed and thus more able to safely steer and quickly navigate through the dangerous area referenced. It has thus been established by preponderant, persuasive evidence, given the above findings of fact, that the Petitioners Pergola and Finlay also have standing. 107. The Conservancy has standing in accordance with Sections 120.57 and 120.52(12)(b), Florida Statutes, because of its asserted substantial interests, with regard to the general category of scientific research on Naples Bay, through the use of a small boat for its staff, it fears it may be affected by the outcome of this proceeding. It is concerned with the safety of its researchers during their boating experience on Naples Bay. The boating safety question or concern by the Conservancy is properly within the zone of interests protected by the statutes involved in this case, as well as the above -cited rule. The Conservancy is a non - profit Florida Corporation incorporated for more than one year prior to its intervention in this case and has more than 25 members in Collier County. It was formed for the purpose of protecting the environment, fish and wildlife 49 resources and water quality. It thus also has standing for purpose of Section 403.412(6), Florida Statutes. 108. Citizens also has standing under Sections 120.57 and 120.52(12)(b), Florida Statutes, because of its fears that its substantial interest, referenced in the above findings of fact, with regard to Naples Bay will be affected by the outcome of this proceeding. It has a concern for the safety of its members operating their vessels on Naples Bay, and public boating safety is clearly within the zone of interests protected by the statutes involved in this proceeding, as well as the referenced rule regarding permit approval. Citizens has standing for purposes of Section 403.412(6), Florida Statutes, because it is a Florida non - profit corporation which has been incorporated for more than a year prior to its intervention in this proceeding. It has more than 25 members in Collier County and was formed for the purpose of protecting the environment and water quality in Naples Bay. Waterway Marker Permit Application Approval Criteria: Florida Administrative Code Rule 68D- 23.105(1)(b) 109. The Respondent FWC contends that it is not required to make an independent factual determination concerning whether the application and supporting documentation meet one of the six enumerated factual circumstances or criteria contained in Florida Administrative Code Rule 68D- 23.105(1)(b). Rather, it 50 maintains that it has a duty to simply determine, when it receives a waterway marker permit application, whether the necessary items or documents are included in the application. The commission in essence contends that it accepts all factual statements as true because in its view, it cannot question the findings of the local legislative body, here the Naples City Council in enacting a local ordinance, on authority of Lee County v. Lippi, 662 So. 2d 1309 (Fla. 2nd DCA 1995) and Ventura v. Lee County, 18 FALR 3076 (Final Order entered June 17, 1996). 110. The Lee County and Ventura decisions are inapplicable to this case. Both of those cases involved direct challenges to a local government's ordinance. In those cases attacks were made on the ordinances themselves. In the instant case the Petitioners are not challenging any aspect of the ordinance, but rather are challenging the permit application and the factual statements made in the application. The Lee County and Ventura decisions are thus inapplicable. Even if they were applicable, they have since been statutorily over - ruled. 111. In 1996, when the Lee County and Ventura cases were decided, Florida Administrative Code Rule 68D- 23.105(1)(b), did not exist. A predecessor, Florida Administrative Code Rule 63N- 23, contained no fact -based criteria such as those now found in Florida Administrative Code Rule 68D- 23.105(1)(b). 51 112. Section 327.40(1), Florida Statutes, provides that: Waterways in Florida which need marking for safety or navigational purposes shall be [uniformly] marked . . . (emphasis supplied) Section 327.40(2)(a), Florida Statutes, further requires, after the submission of an application that the "division will assist the applicant to secure the proper permission from the Coast Guard, make such investigations as needed, and issue the permit." (emphasis supplied) 113. After the Lee County and Ventura decisions, the Legislature amended Section 321.40(2)(c), Florida Statutes, in 2000, specifically authorizing FWC to "adopt rules pursuant to Chapter 120 to implement this section." 114. Thereafter in December 2001, the FWC amended Florida Administrative Code Rule 68D- 23.105(1)(b), implementing the statutory mandate to adopt rules. This rule set forth the circumstances when waterways need marking for safety or navigational purposes. The rule sets forth six fact -based circumstances in which waterways need marking for safety or navigational purposes. (1) The division shall find a valid vessel traffic safety or public safety purposes is presented for ordinances adopted pursuant to Section 327.60, Florida Statutes, under the following facts and circumstances: (b) For a slow speed minimum wake boating 52 restricted area if the area is: + r � (4) Subject to unsafe levels of vessel traffic congestion. (5) Subject to hazardous water levels or currents, or containing other navigational hazards. (6) An area that accident reports, uniform boating citations, vessel traffic studies, or other credible data demonstrate to present a significant risk or a significant threat to public safety. (Emphasis supplied). 116. The plain language of Florida Administrative Code Rule 68D- 23.105(1) requires the Respondent FWC to make factual findings. Florida Administrative Code Rule 68D - 23.105(1) provides, "the division shall find ." 117. When a statute or rule is clear and unambiguous, the court will look at the plain language and give each word its full effect and meaning, irrespective of the agency's interpretation of the statute or rule. See Atlantis Perdido Association, Inc., v. Bobby L. Warner, 932 So.2d 1206 (Fla. 1st DCA 2006), quoting from State Department of Revenue v. Lockheed Martin Corp., 905 So. 2d 1017, 1022 (Fla. 1st DCA 2005) (holding that a court "need not consider the department's interpretation of the statute's legislative history" when the statute or rule is "clear and unambiguous "). 53 118. The Respondents' and Intervenors' position that the FWC may accept the City's statement in the permit application to the effect that the application meets any one of the six criteria of Florida Administrative Code Rule 68D- 23.105, under the theory that the Ventura and Lee County decisions preclude the FWC from addressing the validity of the local government ordinance, ignores the plain meaning of that rule and is clearly erroneous. See Atlantis Perdido Association, Inc., v. Bobby L. Warner, supra. ( "DEP's expertise requires us to consider its construction of the statute carefully, but 'nothing requires that we defer to an implausible and unreasonable statutory interpretation adopted by an administrative agency"') (quoting from Sullivan v. Florida Department of Environmental Protection, 890 So. 2d 417, 420 (Fla. 1st DCA 2004)). 119. The Respondent FWC has the authority and obligation to consider the City's permit application and make its own independent analysis and determination as to whether the permit application meets one of the six factual circumstances or criteria of the FWC's own rule, Florida Administrative Code Rule 68D- 23.105(1)(b). While an agency's interpretation of its own rules should be afforded deference, "judicial adherence to the agency's view is not demanded when it is contrary to the statutes [or rules] plain meaning." Sullivan v. Florida Department of Environmental Protection, 890 So. 2d 417, 420 54 (Fla. 1st DCA 2004) quoting Warner v. Department of Insurance and Treasury, 689 So. 2d 1211, 1214 (Fla. 1st DCA 1997). "The agency is obligated to follow its own rules." Vantage Healthcare Corp. v. Agency for Health Care Administration, 687 So. 2d 306, 308 (Fla. 1st DCA 1997). 120. The Respondent FWC and the City's position that it merely reviews the waterways marker application at issue to determine whether all the necessary information has been provided in the application would render the FWC's duty only a ministerial one. It would not thereby independently make a determination or confirmation that any of the factual scenarios or criteria of the FWC's own rule has been met. Such an interpretation is, however, contrary to the plain meaning of both Section 327.40, Florida Statutes, and Florida Administrative Code Rule 68D- 23.105(1)(b). It would render those sections and criteria meaningless. It cannot be concluded that the Legislature, in enacting Section 327.40, Florida Statutes, and the commission, in 2001, when it enacted the subject rule, did so, without a reason. There would be no purpose for the statute or the Rule, in having specific factual criteria for the grant of a permit, if the agency (and the Division of Administrative Hearings by referral of the formal proceeding challenging the agency permitting action) could not judge whether the criteria in the Rule have been met. 55 121. The Respondent City, has maintained throughout the proceeding that FWC and the Division of Administrative Hearings have no jurisdiction to consider the wisdom or validity or purpose behind the ordinance adopted by the Naples City Council. That position, however, confuses a review of the permit application at issue with a review of the validity of the ordinance. 122. As concluded above, Florida Administrative Code Rule 68D- 23.105(1)(b) contains six specific fact -based circumstances concerning when issuance of the waterway marker permit would be authorized. Such a fact -based determination as to whether the permit application meets those criteria is properly the subject of an FWC determination and, by referral of the related formal proceeding, of a determination by the Division of Administrative Hearings. 123. The Respondent, City elicited testimony from its expert witness as well as another number of witnesses to the general effect that slower speeds on Naples Bay would make the bay "safer." However, making the bay safer is not the factual or legal standard that the Rule requires in order for a determination that the waterway marker permit should be issued. Rather, a determination must be made whether the three factual circumstances remaining at issue exist in order to determine whether the permit should be issued. 56 e Slow Speed Zone is in an Area Sub Vessel Traffic Congestion" ministrative Code Rule 68D- 23.105(1 124. The preponderant, persuasive evidence culminating in the above findings of facts established that Naples Bay is not subject to unsafe levels of vessel traffic congestion. This was shown both by subjective testimony of witnesses as well as through the objective standard elicited through the testimony and evidence brought forth through the Petitioner's expert, Dr. Baker. The LOS methodology is an objective method by which to analyze vessel traffic congestion. 125. The preponderant, persuasive evidence shows that the bay currently experiences a LOS A or B at peak times and that a small portion of the bay, or three segments thereof, from Dr. Baker's study, operates at LOS C at peak times. LOS C was shown by preponderant evidence to be an acceptable LOS for safe operation of vessels on Naples Bay. Even if it did demonstrate some congestion, it does not demonstrate "unsafe levels" of vessel traffic congestion. The City and Intervenors did not adduce preponderant, persuasive evidence that any alleged congestion level was "unsafe." The testimony and evidence adduced by the Petitioners is found to be of a more persuasive and creditable quality than that adduced by the City or Intervenors in this regard and the proposed slow speed zones are 57 not found to be in areas that are "subject to unsafe levels of vessel traffic congestion." d Zones is in an Area "Subject to Hazardous Water Levels or Currents, or Containing Other Navigational Hazards" Florida Administrative Code Rule 68D- 23.105(1)(b)(5) 126. The preponderant, persuasive evidence does not demonstrate that new speed zones are warranted because it does not demonstrate that the area in question is subject to hazardous water levels or currents or contains other navigational hazards. This is so even if other navigational hazards included vessels moving under power or sail, because of the findings and conclusions herein regarding the lack of unsafe levels of vessel traffic congestion and the lack of a significant risk of collision or significant threat to public safety posed by vessel traffic. Moreover, the testimony concerning strong currents and water levels did not rise to a level of proof establishing that there are hazardous water levels or currents which cannot be safely negotiated by reasonably prudent boat operators, operating under extant legal restrictions such as existing speed zones and the regulations emanating from the United States Coast Guard regulations, and /or state requirements, commonly referred to as "the rules of the road." The preponderant, persuasive evidence demonstrates that the area where the speed zones are proposed is not subject to hazardous water levels or currents and does not contain other navigational hazards. Whether the Slow Speed zone is in an Area "That Accident Reports, Uniform Boating Citations, Vessel Traffic Studies, or Other Credible Data Demonstrate to Present a Significant Risk of Collision or Significant Threat to Public Safety" Florida Administrative Code Rule 68D- 23.105(1)(b)(6) 127. The preponderant, persuasive evidence, culminating in the above findings of fact, shows that over the last five years a minimum of four accidents or a maximum of eight vessel accidents might have been prevented by the proposed speed zones, assuming that boater compliance with the slow speed zones proposed could be maintained. 128. One accident for every 67,500 boat trips on Naples Bay, however, does not present a "significant risk of collision." 129. The vast majority of vessel accidents occurring in the bay take place in already existing slow speed or idle speed zones. The preponderant evidence shows that accidents and the uniform boating citations issued by law enforcement occur the vast majority of the time in the already existing slow or idle speed zone areas because boating operators have failed to abide by existing law, including, even where proposed slow speed zones do not exist, the mandatory "rules of the road" requirements. Thus, the preponderant evidence relating to accident data on Naples Bay, as well as to the records concerning boating M citations issued on Naples Bay, demonstrates that the proposed slow speed zones are not in an area of "a significant risk of collision or significant threat to public safety." For the same reasons, relating to vessel traffic congestion, the vessel traffic studies do no demonstrate that the proposed slow speed zones are in an area that presents "a significant risk of collision or significant threat to public safety." 130. In summary, the expert opinion and evidence adduced from Dr. Baker, as well as the testimony of Major Ouellette and the five law enforcement officers who are responsible for daily patrols on Naples Bay, is more credible and persuasive evidence and data. This evidence, along with the other evidence adduced by the Petitioners, shows that the areas proposed for the slow speed zones in Naples Bay do not present a "significant risk of collision or significant threat to public safety." (Emphasis supplied). Thus, the evidence adduced by the Petitioners is deemed more credible, persuasive, and preponderant in quality, resulting in the conclusion that the permit should not be issued as proposed. Having considered the foregoing findings of fact, conclusions of law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore, :-7 RECOMMENDED: that a final order be entered by the Florida Fish and Wildlife Conservation Commission denying the subject waterway marker permit. DONE AND ENTERED this 22nd day of December, 2006 Tallahassee, Leon County, Florida. P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399 -3060 (850) 488 -9675 SUNCOM 278 -9675 Fax Filing (850) 921 -6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of December, 2006. COPIES FURNISHED: Elise M. Matthes, Esquire Captain Allen Richards, Esquire Florida Fish and Wildlife Conservation Commission 620 South Meridian Street Tallahassee, Florida 32399 -1600 Frank E. Matthews, Esquire Kent Safriet, Esquire Hopping, Green 6 Sams, P.A. 123 South Calhoun Street Post Office Box 6526 Tallahassee, Florida 32314 -6526 61 Douglas Finlay 3430 Gulf Shore Boulevard North, No. 5H Naples, Florida 34103 -3681 Jeffrey A. Klatzkow, Esquire Colleen M. Greene, Esquire Collier County Attorney's Office 3301 East Tamiami Trail Naples, Florida 34112 -4902 Allen Walburn 678 14th Avenue South Naples, Florida 34102 -7116 Eric Alexander 654 Squire Circle Naples, Florida 34101 -8352 Jack Hall 2675 Bayview Drive Naples, Florida 34112 -5825 James Pergola 1830 Kingfish Road Naples, Florida 34102 -1533 Dave Sirkos 750 River Point Drive Naples, Florida 34102 -1400 Mimi S. Wolok, Esquire 1112 Trial Terrace Drive Naples, Florida 34103 -2306 Robert G. Menzies, Esquire James D. Fox, Esquire Roetzel 6 Andress 850 Park Shore Drive, Suite 300 Naples, Florida 34103 Ralf G. Brookes, Esquire 1217 East Cape Coral Parkway, Suite 107 Cape Coral, Florida 33904 62 Michael R.N. McDonnell, Esquire McDonnell Trial Lawyers 5150 Tamiami Trial North, Suite 501 Naples, Florida 34103 Ken Haddad, Executive Director Florida Fish and Wildlife Conservation Commission Bryant Building 620 South Meridian Street Tallahassee, Florida 32399 -1600 James V. Antista, General Counsel Florida Fish and Wildlife Conservation Commission Bryant Building 620 South Meridian Street Tallahassee, Florida 32399 -1600 NOTICE OF RIGHT TO SUBMIT EXCEPTIONS All parties have the right to submit written exceptions within 15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case. 63 ,. STATE OF FLORIDA FISH AND WILDLIFE CONSERVATION COMMISSION COLLIER COUNTY BOARD OF COUNTY COMMISSIONERS, Petitioner V. FLORIDA FISH AND WILDLIFE CONSERVATION COMMISSION Respondent. Case No.: 05 -2034 NOTICE OF APPEAL NOTICE IS GIVEN that the Appellant, Collier County Board of County Commissioners, appeals to the District Court of Appeal for the Second District, the Final Order of the Florida Fish and Wildlife Conservation Commission dated March 21, 2007— The nature of the order appealed is a Final Order granting the City of Naples a Uniform Waterway Marker Permit pursuant to Section 68D- 23.105(1)(b), Florida Administrative Code. A conformed copy of the Final Order is attached. Un Jeffre A. Klat2AOw Flori Bar N31444625 Man 'ng Ant County Attorney 3301 Tamiami Trail, East Harmon Turner Building, 8th Floor Naples, FL 34112 (239) 774 -8400 - Telephone (239} 774 -0225 - Facsimile Attorney for Appellant DATE: STYLE: 2DCA #: DISTRICT COURT OF APPEAL SECOND DISTRICT 1005 E. MEMORIAL BOULEVARD LAKELAND, FLORIDA 33801 -0327 (863) - 499 -2290 ACKNOWLEDGMENT OF NEW CASE April 18, 2007 COLLIER COUNTY BOARD OF COUNTY COMMISSIONERS 2D07 -1744 v. FLORIDA FISH AND WILDLIFE CONSERVATION COMMISSION The Second District Court of Appeal has received the Notice of Appeal reflecting a filing date of 4/17/07 from theDepartment of Game & Freshwater Fish Commission. The county of origin is Collier. The lower tribunal case number provided is 05 -2034 The filing fee is Paid In Full - $300. Case Type: Administrative Other a —.x ri The Second District Court of Appeal's case number must be utilized on all pleadings and correspondence filed in this cause. Moreover, ALL PLEADINGS SIGNED BY AN ATTORNEY MUST INCLUDE THE ATTORNEY'S FLORIDA BAR NUMBER. Please review and comply with any handouts enclosed with this acknowledgment RECEIPT COLLIER COUNTY BOARD OF v. FLORIDA FISH AND WILDLIFE COUNTY COMMISSIONERS CONSERVATION COMMISSION 2DCA#: 2D07 -1744 Receipt # R2007- 1002851 Method of Payment: CK Check # 752996 PAYER: Jeffrey A. Klatzkow, Esq. Filing Fee: $300.00 Total: $300.00 cc: Ralf G. Brookes, Esq. D. Kent Safriet, Esq. Mimi S. Wolok, Esq. Eric Alexander Jeffrey A. Klatzkow, Esq. Dave Sirkos Frank E. Matthews, Esq. Jody Fain, Commission Clerk James Pergola Alan Richards, Esq. Allen Walburn Robert G Menzies, Esq. Douglas Finley Captain Jack Hall Memo Office of the City Manager TO: Honorable Mayor and Members of City Council Honorable Chairman and Members of the Board of County Commissioners FROM: Dr. Robert E. Lee, City Manager DATE: April 27, 2007 SUBJECT: City Funding Requests — Agenda Item 4 Attached is a copy of an April 2, 2007 letter sent by the City Manager to the County Manager wherein funding is requested for Fleischmann Park, Sandpiper Street, and the Gordon River Greenway Projects. All projects are included in the City's current capital improvement budget. I have also attached a June 15, 2006 letter requesting County funding for these same projects. Finally, attached is an April 25, 2007 memo from City Construction Management Director Ron Wallace updating cost estimates for the Sandpiper Street Project and the Gordon River Greenway Project. Please note that the current estimate for Sandpiper will reduce the City's original request for County funding from $1 million to $750,000. At the May 1, 2007 Workshop, City staff will be prepared to make a brief presentation on each item and address questions regarding these requests. Y ��'�iP•PL `... ox txe Fi�l �rl xu= 3p OFFICE OF THE CITY MANAGER TELEPHONE (239) 213 -1030 • FACSIMILE (239) 213 -1033 735 EIGHTH STREET SOUTH • NAPLES, FLORIDA 34102 -6796 April 2, 2007 Mr. James V. Mudd County Manager Collier County Government Center 3301 East Tamiami Trail Naples, FL 34112 Dear Jim: Per our meeting last Friday, please consider this memo a formal request for County funds for Fiscal Year 2007 -2008. As you recall, I sent you a letter regarding the County's process to consider funding requests for next year's budget (see attached letter dated January 19, 2007) and you responded (see attached letter dated February 9, 2007). In your response, you indicated that you were working on a budget instructions manual and that a copy would be forwarded to my attention. The manual was to include required paperwork to be used for our funding request. To date, I have not received either the budget manual or the required paperwork. When this is forwarded I will be glad to complete the required documentation. In the meantime, please consider this letter a formal request to fund the following projects: Fleischman Park — Funds requested $2 million This is an active regional recreation park with indoor and outdoor construction elements that are estimated to cost approximately $12 million. The City has already expended $ 5,719,892.00 for public improvements over the last 2 years and intends to continue to renovate this park. The County's Recreation Advisory Board received a City staff presentation at their last meeting and agreed to recommend a $2 million dollar request for County funds toward these improvements. Sandpiper Street— Funds requested $1 million This project is a continuation of the public improvements currently being implemented at the entry way (east and west sides) of Sandpiper Street south of U. S. 41. More specifically this project involves roadway enhancement and beautification of Sandpiper Street from Curlew Avenue to Marlin Drive. As you know, a large portion of the roadway is under County jurisdiction and the improvements will enhance property in the unincorporated section of the County as well as the incorporated (City) section of the County. The City James V. Mudd April, 2007 Page 2 will be contracting with an engineering firm within the next two months to develop elements for this project. It is estimated that this design and specifications work will cost approximately $200,000. Last year, the County Commission agreed to fund $100,000 towards this project. This year's request is for the County to provide a 50% match of the funds for construction of this project estimated to be up to $2 million. Therefore, the request is for the County to fund 50% of the cost. Gordon River Greenway — Funds requested $500,000 The proposed project involves constructing a link of the Gordon River Greenway from the Airport to the proposed Pulling Park. This project is part of a large scale pathway system along the river that will be available to all County residents, as well as visitors. It is requested that the County provide a 50% match of the estimated $1 million dollar construction budget. Operational Costs In addition to the capital budget requests herein, I will also be asking the County to consider providing some funds to help cover some operating costs at Fleischman Park. Although that has not been included in previous requests, the programming at the Park supports such a request. Joint Meeting Discussions As we discussed on Friday, the May joint workshop (between the City Council and County Commission) will include a City presentation on the budget items requested in this letter. In the meantime, please notify me of any public meetings (i.e. Advisory Boards, County Commissions, etc.) that you feel I should plan to attend to present the City's funding requests. Thank you in advance for your assistance in this matter. Please be assured that we will promptly supply additional information to support these requests if needed, including completing the aforementioned capital budget request forms you referred to in your February letter. Sincerely, Oc4e_ Robert E. Lee, DPA City Manager cc: City Council Members Construction Management Director Community Services Director Finance Director PLp - R: �( ON THE � tr ccrF g�,;. OFFICE OF THE CITY MANAGER TELEPHONE (239) 213 -1030 • FACSIMILE (239) 213 -1033 735 EIGHTH STREET SOUTH • NAPLES, FLORIDA 34102 -6796 June 15, 2006 Mr. James V. Mudd, County Manager Collier County Government Complex 3301 East Tamiami Trail Naples, Florida 34112 Dear Jim: Per our discussion at our last monthly meeting, I am forwarding a list of capital projects that I am requesting Collier County partner with the City to fund. As you know, we have an extensive capital improvement program every year. The growth throughout the County has an annual impact on the City's infrastructure requiring increased cost for the City to sustain basic services (i.e., street resurfacing, bridge repairs, etc.) I have limited the request for County participation to just a few projects that will largely benefit County residents. They include the following: Sandpiper Street The proposed project involves roadway enhancement and beautification of Sandpiper Street from Curlew Avenue to Marlin Drive. A large portion of the roadway is under the jurisdiction of the County and the improvements will enhance County property owners. It is requested that the County provide a 50% match of the budgeted funds for design and construction. The City will be willing to assume project management. Design budget: $200,000 (FY 06 -07), construction estimate: $2,000,000 (FY 07 -08). Gordon River Greenwav The proposed project involves constructing a link of the Gordon River Greenway from the Airport to the proposed Pulling Park. The project is part of a large scale pathway system along the river that will be available to all City and County residents, as well as visitors. It is requested that the County provide a 50% match of the budgeted funds for construction. The City will be willing to assume project management. Construction budget: $1,000,000 (FY 06 -07). Mr. James V. Mudd June 15, 2006 Page Two Fleischmann Park This is an active recreation park with indoor and outdoor elements that are now estimated to total approximately $12 million. As we discussed, most of the users of this park reside within Collier County. During the April 19, 2006 Collier County Parks and Recreation Advisory Board (PARAB) meeting, this County board agreed to forward a $500,000 request to the Board of County Commissioners for the Fleischmann Project as a 2006 -07 County Budget request consideration. We are requesting another $1 million from Collier County for this project. On a comparative note, the City received a $300,000 contribution from the County for the Norris Center for a project that totaled approximately $2 million. Thank you for your cooperation in this matter. Sincerely, 0. Robert E. Lee, DPA City Manager REL /acl cc: City Council Community Services Director Construction Management Director TO: FROM: DATE: SUBJECT: Memo Construction Management Dr. Robert E Lee, City Manager Ron Wallace, P.E., Construction Management Director April 25, 2007 Sandpiper Street & Gordon River Greenway Status As requested, the following is the status of the two above referenced projects: Sandpiper Street: An RFQ for design services was advertised and opened on 2/9/07. A selection committee ranked the proposals and City Council authorized entering into negotiations with the top ranked firm, Kin-ley Horn & Assoc., on 3/ 7/ 07. Staff held a meeting with the consultant on 4/ 23/ 07 to develop a scope of work and fee. The consultant will be submitting their proposal in the next few weeks which we will forward to council for consideration. Currently $200,000 is budgeted in this fiscal year for design services and a C.I.P. request of $750,000 has been submitted for each of the next two years to fund construction. At this time, I believe we can reduce the request for County funding to $750,000 (50% of the estimated construction cost). Gordon River Greenway: American Engineering Consultants were hired through the CCNA process to prepare a Plan Development & Environmental Study for the proposed river crossing. That includes environmental assessment, agency coordination and plan development. The consultant has recently prepared an alternatives analysis with associated costs for staff's review and comment. The process requires analysis of the least disruptive route. A C.I.P. request of $1,000,000 has been submitted for FY 08/09 to fund construction. Therefore, the previous $500,000 funding request (50% of the cost) to Collier County is still a reasonable figure. If you have any questions or need any additional information, please let me know. �E.. cur i! 7 � �o 4y 2-17 o OFFICE OF THE CITY MANAGER • _ LQ.O W5 TELEPHONE (239) 213 -1030 • FACSIMILE (239) 213 -1033 rn� Ke �n+YKeygKl 735 EIGHTH STREET SOUTH • NAPLES, FLORIDA 34102 -6796 April 2, 2007 Mr. James V. Mudd County Manager Collier County Government Center 3301 East Tamiami Trail Naples, FL 34112 Dear Jim: Per our meeting last Friday, please consider this memo a formal request for County funds for Fiscal Year 2007 -2008. As you recall, I sent you a letter regarding the County's process to consider funding requests for next year's budget (see attached letter dated January 19, 2007) and you responded (see attached letter dated February 9, 2007). In your response, you indicated that you were working on a budget instructions manual and that a copy would be forwarded to my attention. The manual was to include required paperwork to be used for our funding request. To date, I have not received either the budget manual or the required paperwork. When this is forwarded I will be glad to complete the required documentation. In the meantime, please consider this letter a formal request to fund the following projects: Fleischman Park — Funds requested $2 million This is an active regional recreation park with indoor and outdoor construction elements that are estimated to cost approximately $12 million. The City has already expended $ 5,719,892.00 for public improvements over the last 2 years and intends to continue to renovate this park. The County's Recreation Advisory Board received a City staff presentation at their last meeting and agreed to recommend a $2 million dollar request for County funds toward these improvements. Sandpiper Street — Funds requested $1 million This project is a continuation of the public improvements currently being implemented at the entry way (east and west sides) of Sandpiper Street south of U. S. 41. More specifically this project involves roadway enhancement and beautification of Sandpiper Street from Curlew Avenue to Marlin Drive. As you know, a large portion of the roadway is under County jurisdiction and the improvements will enhance property in the unincorporated section of the County as well as the incorporated (City) section of the County. The City James V. Mudd April, 2007 Page 2 will be contracting with an engineering firm within the next two months to develop elements for this project. It is estimated that this design and specifications work will cost approximately $200,000. Last year, the County Commission agreed to fund $100,000 towards this project. This year's request is for the County to provide a 50% match of the funds for construction of this project estimated to be up to $2 million. Therefore, the request is for the County to fund 50% of the cost. Gordon River Greenwav — Funds requested $500.00 The proposed project involves constructing a link of the Gordon River Greenway from the Airport to the proposed Pulling Park. This project is part of a large scale pathway system along the river that will be available to all County residents, as well as visitors. It is requested that the County provide a 50% match of the estimated $1 million dollar construction budget. Operational Costs In addition to the capital budget requests herein, I will also be asking the County to consider providing some funds to help cover some operating costs at Fleischman Park. Although that has not been included in previous requests, the programming at the Park supports such a request. Joint Meeting Discussions As we discussed on Friday, the May joint workshop (between the City Council and County Commission) will include a City presentation on the budget items requested in this letter. In the meantime, please notify me of any public meetings (i.e. Advisory Boards, County Commissions, etc.) that you feel I should plan to attend to present the City's funding requests. Thank you in advance for your assistance in this matter. Please be assured that we will promptly supply additional information to support these requests if needed, including completing the aforementioned capital budget request forms you referred to in your February letter. Sincerely, �y Robert E. Lee, DPA City Manager cc: City Council Members Construction Management Director Community Services Director Finance Director "In, PPLF `'it. '�`i0 wtHE Oil a ��Y cum tiny OFFICE OF THE CITY MANAGER TELEPHONE (239) 213 -1030. FACSIMILE (239) 213 -1033 735 EIGHTH STREET SOUTH • NAPLES, FLORIDA 34102 -6796 January 19, 2007 Mr. James V. Mudd County Manager Collier County Government Center 3301 East Tamiami Trail Naples, Florida 34112 Dear Jim: As a follow -up to our conversation last week regarding the upcoming FY 07 -08 budget process, I am requesting a written response on the County's process to consider funding requests from the County Manager. More specifically, I am asking for a deadline for submittals, supporting documents you would like to have included, and any meetings (staff, advisory boards, County Commission) that the City should attend. I appreciate your past assistance and support of the City's requests last year. Sincerely, Robert E. Lee, DPA City Manager REL/acl cc: City Council ,92 rto cf zo i. ( c yioz mI G Gaw COLLIER COUNTY MANAGER'S OFFICE 3301 East Tamiami Trail a Naples, Florida 34112 • 239- 774 -8383 • FAX 239 - 774 -4010 February 9, 2007 RECENM Dr. Robert E. Lee, DPA City Manager City of Naples 735 Eighth Street South Naples, FL Dear Dr. Lee: FEB 13 2007 CITYAMNAGERS OFFICE Thank you for your recent correspondence regarding the submittal of capital project requests for funding consideration by the Board of County Commissioners. Collier County is in the process of finalizing budget instructions for FY 08. As soon as the budget instructions manual is completed, a copy will be forward to your attention. This will include the required paperwork associated with any capital budget requests. Capital project request forms are changing from prior years as Collier County is implementing a new capital budget process in FY 08. Supporting documentation should include, but is not limited to, a description of the capital project, total cost of the project, funding provided by the City of Naples, amount requested from the Board of County Commissioners, and an explanation of why the Board should fund the request (i.e., documented county use of city facilities). It is appropriate that city staff makes all presentations associated with City of Naples capital project funding requests. City representatives should attend the following meetings to present the City of Naples funding requests and respond directly to any questions that arise. Meeting Date Capital Project Budget Submissions TBD Parks and recreation Advisory Board (PARAB) Prior to June Budget Workshops Board Budget Workshops TBD (typically mid to late June) September Budget Hearings Sept. 6, 2007 and Sept. 20, 2007 If you have any additional questions regarding capital budget requests, please contact Susan Usher, Senior Budget/Management Analyst, at 774 -8810. Thank you very much. James V. Mudd, County Manager cc: Susan Usher Marla Ramsey Memo Office of the City Manager TO: Honorable Mayor and Members of City Council Honorable Chairman and Members of the Board of County Commissioners FROM: Dr. Robert E. Lee, City Manager DATE: April 27, 2007 SUBJECT: Charter Government — Agenda Item 5 City Council requested that this item be added to the Workshop agenda for the purpose of having an open discussion on Charter Government for Collier County. Collie► County Public Utilities Division Solid Waste Management Department Collier County Waste Reduction & Recycling Program Collier County has a comprehensive recycling program in place that provides excellent waste reduction and recycling services to our residential and commercial customers. Source reduction, materials reuse and recycling are key components of the Integrated Solid Waste Management Strategy adopted by the Board of County Commissioners on December 5, 2006. Various elements of that strategy, including the waste reduction and recycling program are jointly administered by the Solid Waste Management and Utility Billing and Customer Service Departments. Additional support is provided from other departments within the Public Utilities Division, including Pollution Control and Prevention and Code Enforcement. Our programs enjoy outstanding support from our Board of County Commissioners. Recycling diverts many items and materials from being buried at the Collier County Landfill, thereby preserving valuable landfill disposal (air space) capacity. Recycling conserves energy since it takes less energy to produce new products from recycled materials than from raw or virgin materials, saves natural resources, reduces air and water pollution and greenhouse emissions. By promoting the basic principles of source reduction, reuse and recycling, we are providing environmental leadership and education to promote waste reduction and recycling throughout the County. The Waste Reduction and Recycling Program contributes to carrying out the mission of the Solid Waste Management Department, which is to provide effective and efficient waste management services that plan for future demands, reduce solid waste stream flow to the landfill, increase public awareness of the environment and the importance of recycling, and strive to exceed customer expectations. Our primary Waste Reduction & Recycling Services are described below. Residential Recycling Program In October 2005, the use of single stream 64- gallon roll -out recycling carts for single- and multi- family residential customers was initiated in District I of Collier County. The carts allow collection of a greater range of materials in a single stream, including: clean newspaper and inserts; classroom and office paper; unwanted mail; catalogs; magazines; phone books; cardboard and packaging; flattened, clean and dry cardboard boxes no larger than 3' x 3'; egg cartons; food trays; aluminum, steel, and tin food and beverage cans; grocery plastic bags; glass; and plastics # 1 through # 7. The program has been highly successful with increased participation and material recovery. The first year of the single stream Residential Recycling Program resulted in a 49% increase in recycled tonnage. Businesses Recycling Program On July 27, 2004, the Collier County Board of County Commissioners adopted the mandatory Non - Residential Recycling Ordinance No. 2004 -50, which requires businesses and institutions in unincorporated areas of Collier County to recycle as many designated recyclable materials as practicable. Of the approximate 270,000 tons of trash that is buried in the Collier County Landfill annually, more than 60% is generated by businesses. Approximately 95 inspections and /or audits of businesses are conducted monthly. The main focus of the inspections is to audit Coen County PUBLIC UTILITIES DIVISION SOLID WASTE MANAGEMENT DEPARTMENT RESIDENTIAL RECYCLING PROGRAM cc 11., county GOAL To successfully evaluate the status of the residential recycling program facilitated through Franchise Solid Waste Collections Agreements (Agreement) between Collier County and Waste Management Inc. of Florida (WMIF) and Immokalee Disposal Inc. (IDC). BACKGROUND The Board of County Commissioners adopted a Mandatory Trash Collection Ordinance in 1990, establishing residential solid waste collection services in the unincorporated areas of the County. Since that time, the County has implemented various recycling programs. Significantly, the County recently negotiated a new collection agreement with WMIF that included single stream recyclables collection using 64- gallon recycling carts for all single and multi - family residential customers that receive curbside residential service in Service District I. The County plans to evaluate the feasibility of implementing 64- gallon recycling carts in District 11, which is serviced by IDC. The new 64- gallon recycling carts allow recycling of a greater range of materials in a single stream. Materials that can be collected in the 64- gallon recycling carts include: • clean newspaper and inserts • classroom and office paper • unwanted mail • catalogs • magazines • phone books • cardboard and packaging • flattened boxes no larger than 3' x 3' • egg cartons • food trays • aluminum, steel, and tin food and beverage cans • plastic bags • plastics # 1 through # 7 • glass (clear, green and brown). Public Education Developing and implementing an effective public education campaign was a critical success factor. Staff developed and implemented a public education campaign to raise awareness and acceptance of the recycling carts. The campaign consisted of a series of post card mailings and print and television advertisements between August and October 2005. For example, staff participated in the production of a commercial on Collier County Television and on commercial /cable stations that played off a Jaguar car commercial. Subsequently, staff participated in the production of a commercial that aired on Collier County Television that played off the pop- culture `Sex in the City" theme. Additionally, the County developed the "Recycling Rose" TV and radio commercials, which were popular among citizens. The recycling cart commercials were a vast departure from anything the County had produced before, and had a look and feel that was very "non- governmental." In addition, County - produced informational Page I of 4 Residential Recycling brochures and magnets were included in a package attached to the lid of every recycling cart delivered. Delivery of Carts WMIF delivered approximately 94,000 recycling carts to Collier County residents in Service District I since August 2005. Of that total, approximately 4,000 are 35- gallon recycling carts that were delivered by WMIF to residents who requested a smaller cart. In addition, about 20 customers requested and received a second 64- gallon recycling cart. EVALUATION Preserving disposal (airspace) capacity at the Collier County Landfill was an important consideration when staff evaluated the potential benefits of implementing the 64- gallon recycling carts. Based on pilot test data and regional and national trends, staff believed that the positive impact on preserved disposal (airspace) capacity would be immediate. To measure the positive impacts during the first year, staff has analyzed FY2006 solid waste and recycling data to better understand the impact of the 64- gallon recycling carts on preserving valuable airspace in the Collier County Landfill. Chart I below breaks down the total residential solid waste stream in Service District I into tons of Residential Trash, Residential Bulk, Residential Yard Waste, and Residential Recycling. The first year of the Residential Recycling Cart Program has resulted in a 56% increase in recycled tonnage compared to a 4% increase in residential solid waste requiring disposal. In FY 2005, only 17% of the residential solid waste generated was recycled. In FY 2006, 25% of the residential solid waste generated was recycled, a recycling rate increase of 499/0! Page 2 of 4 Residential RecrychpnQ t Chart 1: Residential Waste Components - FY 2005 vs. FY 2006 1,000 v 12,000 m d c 10,000 m N ' 8,000 R V C 6,000 d L •N d Q' 4,000 w O h p 2000 F 0 5 e e e e o e e e e e e e e e o e e e e o e e o d` d' ■ Residential Trash ■Residential Bulk ■ Residential Yard Waste ❑ Residential Recyclables The first year of the Residential Recycling Cart Program has resulted in a 56% increase in recycled tonnage compared to a 4% increase in residential solid waste requiring disposal. In FY 2005, only 17% of the residential solid waste generated was recycled. In FY 2006, 25% of the residential solid waste generated was recycled, a recycling rate increase of 499/0! Page 2 of 4 Residential RecrychpnQ t The November 2005 trash and recycling values are unique in that they show a simultaneous increase in residential trash and recycling. The volume of trash increased because residents discarded a high volume of debris after Hurricane Wilma. Simultaneously, "seasonal" residents returned earlier in the year than usual to check on the status of their property after Hurricane _. Wilma, and contributed to the increase in recycling volume. August 2006 showed the largest increase in residential recycling of 100 percent over August 2005. Chart 2 compares the monthly Residential Recycling Tonnages of FY 2005 to those of FY 2006. The graph compares the Residential Recycling volumes from October through September of FY 2005 with the same months in FY 2006. This comparison illustrates an increase in recycling rates for each month in FY 2006 after the Residential Recycling Cart Program began in October 2005. LOOKING FORWARD To continually reinforce the message of extending the `life" of the Collier County Landfill by reducing the solid waste stream requiring disposal through increased source reduction, reuse, and recycling, the Solid Waste Management Department is working with the Division's Public Information Coordinator, the Utility Billing & Customer Service Department, the Communications & Customer Relations Department, and other outside contractors and consultants to map out a financially sustainable, long -term advertising and marketing campaign. The new marketing campaign will include efforts to brand the Department's recycling centers and to create instantly recognizable and memorable slogans and visuals to connect the messages of reduce, reuse and recycle and blend in messages related to household hazardous waste disposal and the use of alternative earth- and user - friendly, non- hazardous products. Examples of current initiatives as well as those under development include: Page 3 of 4 Residential Recveling • Continued periodic visits to elementary and middle schools to present educational programs to give pragmatic examples of how children (and in turn, their families) can reduce the solid waste stream by reusing, reducing and recycling materials. The School District itself has been exemplary in its recycling efforts and is the first award recipient in the County's Waste Reduction Award Program. • Press releases covering topics relevant to recycling and solid waste reduction pitched to local media outlets by collaborating with the Division's Public Information Coordinator. • Developing new recycling commercials with the County's Communication & Customer Relations Department and outside contractors and consultants. • Surveying the customers who received the 64- gallon recycling carts to assess their satisfaction with the residential recycling program and obtain their input on improving the program. • Applying applicable information to improve the residential recycling program that was obtained from the Project Management Plan: All. Together. Now., which is a cooperative customer service excellence effort by Collier County's Public Utilities Division and Waste Management, Inc. of Florida. SUMMARY The Solid Waste Management Department will continue to coordinate with WMIF, and the Utility Billing and Customer Service Department to monitor successes and work to optimize the residential recycling program. Residential Recycling I Page 4 o 4 ORDINANCE NO. 2004 - -S9_ INANCE OF THE BOARD OF COUNTY COMMISSIONERS OF Co ER COUNTY, FLORIDA ESTABLISHING A RECYCLING RAM FOR NON - RESIDENTIAL PROPERTY IN THE rritz INCO RPORATED RATED AREAS OF COLLIER COUNTY; PROVIDING FOR INTENT AND PURPOSE; PROVIDING FOR TITLE AND CITATION; PROVIDING FOR APPLICABILITY; PROVIDING FOR CONSTRUCTION AND INTERPRETATION; PROVIDING DEFINITIONS; PROVIDING FOR THE DESIGNATION OF RECYCLABLE MATERIALS; PROVIDING MINIMUM STANDARDS FOR RECYCLING ON NON - RESIDENTIAL PROPERTY; PROVIDING EXEMPTIONS FROM RECYCLING STANDARDS; PROVIDING FOR VOLUNTARY RECYCLING ON NON- RESIDENTIAL PROPERTY; PROVIDING FOR AN AWARDS PROGRAM FOR RECYCLING ON NON - RESIDENTIAL PROPERTY; PROVIDING FOR A RECYCLING EDUCATION AND PROMOTION PROGRAM; PROVIDING FOR EVALUATIONS OF THE NON - RESIDENTIAL RECYCLING PROGRAM; PROVIDING FOR RECYCLING SERVICE AGREEMENTS; PROVIDING STANDARDS FOR RECYCLING CONTRACTORS; PROVIDING FOR SELF - HAULING; PROVIDING FOR COUNTY RECYCLING CENTERS; PROVIDING FOR VARIANCES; PROVIDING FOR INSPECTIONS, ENFORCEMENT, AND PENALTIES; PROVIDING FOR APPEALS; PROVIDING FOR SEVERABILITY; PROVIDING FOR REPEAL OF CONFLICTING ORDINANCES; PROVIDING F& - INCLUSION IN THE COUNTY'S CODE OF LAWS AND ORDINANCES; AND PROVIDING AN EFFECTIVE DATE. ZZ -` •j WHEREAS, Section 403.706(21), Florida Statutes, authorizes local governmkiA towinc( -1 ordinances that require the separation and collection of Recyclable Materials; and v WHEREAS, the Board of County Commissioners wishes to increase Recycling in Collier County because Recycling will save energy and natural resources, provide useful products, and prove economically beneficial; and WHEREAS, the Board also wishes to increase Recycling in Collier County because Recycling will help ensure that the valuable and limited capacity of the County's Naples Landfill is conserved; and WHEREAS, the Board finds it is necessary for the protection of the public health, safety and welfare of the residents of Collier County to require the Recycling of Recyclable Materials generated on Non - Residential Property. NOW, THEREFORE, BE IT ORDAINED BY THE BOARD OF COUNTY OF COLLIER COUNTY, FLORIDA, as follows: SECTION ONE: Intent and Purpose. It is the intent and purpose of this Ordinance to promote Recycling by: (a) requiring businesses and institutions in unincorporated Collier County to segregate and recycle as many designated Recyclable Materials as practicable; (b) establishing educational programs concerning Recycling; (c) providing incentives and awards programs that will make Recycling more attractive to the businesses and institutions in unincorporated Collier County; (d) limiting the regulatory impact of this Ordinance on business; and (e) eliminating potential conflicts between the requirements of this Ordinance and the requirements of the County's Land Development Code. By utilizing a balanced combination of incentives and regulations, the Board intends to accomplish its Recycling goals while minimizing the regulatory requirements in this Ordinance. The Board also intends to provide sufficient time for the businesses and institutions in Collier County to comply with the County's new programs. SECTION TWO: Title and Citation. This Ordinance shall be known and may be cited as the "Collier County Non - Residential Recycling Ordinance ". SECTION THREE: Anolicability. This Ordinance shall be applicable only within the unincorporated areas of Collier County. SECTION FOUR: Construction and Interpretation. This Ordinance shall be liberally construed in order to effectively carry out the intent and purpose of the Ordinance. Where any provision of this Ordinance refers to or incorporates another provision, statute, rule, regulation or other authority, this Ordinance refers to the most current version, including and incorporating any amendments thereto or renumbering thereof. SECTION FIVE: Definitions. For the purposes of this Ordinance, the definitions contained in this Section 5 shall apply unless otherwise specifically stated. When not inconsistent with the context, words used in the present tense include the future tense, words in the plural number include the singular, and words in the singular number include the plural. The word "shall" is always mandatory and not merely discretionary. Pursuant to Section 403.7031, Florida Statutes, all definitions in this Section 5 shall be construed in a manner that is consistent with the definitions contained in Section 403.703, Florida Statutes. In the case of any apparent conflict or inconsistency with the definitions contained in Section 403.703, Florida Statutes, the statutory definition shall apply. 2 I A. Board means the Board of County Commissioners of Collier County, Florida. B. Certificate of Ooemtion means the license that a Contractor must obtain from the County before it can Collect Recyclable Materials in the County. C. Code Enforcement Board means the entity that is responsible for enforcing the County's ordinances pursuant to Chapter 2, Division 11, of the Code of Laws and Ordinances of Collier County, Florida. D. Collect means to gather or pick up Recyclable Materials for transport and delivery to a Recycling Facility. E. Contractor means a Person who Collects or transports Recyclable Materials from Non - Residential Property for profit. F. County means Collier County, Florida. G. County Manager means the County Manager of Collier County or the County Manager's designee. H. Customer means an Owner or Generator that enters into a Service Agreement with a Contractor for Recycling services. 1. De Minimis Amount means the amount of Solid Waste which lawfully may be included in separated Recyclable Materials. A De Minimis Amount of Solid Waste is 10 percent, by volume or weight, whichever is more restrictive, as determined by a measurement or a visual inspection by the County Manager. J. Dwelling means any building, or part thereof, intended, designed, used, or occupied in whole or in part as the residence or living quarters of one or more persons, permanently or transiently, with cooking and sanitary facilities. Such term shall not mean a room in a motel or hotel. K. Garbage means all kitchen and table food waste, and animal or vegetative waste that is attendant with or results from the storage, preparation, cooking, or handling of food materials. L. Generator means each business, not - for - profit organization and institution (i.e., all Persons except individuals) that generates one or more Recyclable Materials as a result of its activities on Non - Residential Property. M. Materials Recovery Facility means a Solid Waste management facility that provides for the extraction from Solid Waste of Recyclable Materials, materials suitable for use as a fuel or soil amendment, or any combination of such materials. r? N. Multi - Family Residence means a group of three or more dwelling units within a single conventional building, attached side by side, or one above another, and wherein each dwelling unit may be individually owned or leased initially on land which is under common or single ownership. O. Non - Residential Property means real property that is located in an unincorporated area of Collier County and used primarily for: (1) commerce, including but not limited to offices, stores, Restaurants, motels, hotels, recreational vehicle parks, theaters, and service stations; (2) not - for -profit organizations; and (3) institutional uses, including but not limited to governmental facilities, churches, hospitals and schools. The term Non - Residential Property shall not include any Residential Units or undeveloped land. P. Ordinance means this County Ordinance No. 2004 -_ Q. Organic Waste means Garbage and other similar putrescible Solid Waste, including source separated food waste and food- soiled paper. Organic Waste does not include yard trash. R. Owner means a Person who owns Non - Residential Property. An Owner also may be a Generator. S. Person means any and all persons, natural or artificial, including any individual, firm, partnership, joint venture, public or private corporation, or other association, or any combination thereof, however organized; any county; and any local, state or federal govemmental agency. T. Primary Recyclable Material means a Recyclable Material that a Person generates on Non - Residential Property in amounts greater than 96 gallons per month. U. Recovered Materials means metal, paper, glass, plastic, textile, or rubber materials that have known Recycling potential, can be feasibly recycled, and have been diverted and source separated or have been removed from the Solid Waste stream for sale, use, or reuse as raw materials, whether or not the materials require subsequent processing or separation from each other, but does not include materials destined for any use that constitutes disposal. Recovered Materials as described above are not Solid Waste. V. Recovered Materials Processing Facility means a facility engaged solely in the storage, processing, resale, or reuse of Recovered Materials. W. Recyclable Materials means those materials that are capable of being Recycled, which would otherwise be processed as Solid Waste, and are designated by the Board pursuant to Section 6 of this Ordinance. 4 I X. Recyclable Materials Container means any box, tub, or other container that is made of metal, hard plastic or other similar material and is suitable for the collection of Recyclable Materials. Y. Recycling means any process by which Solid Waste, or materials which would otherwise become Solid Waste, are collected, separated, processed and reused or returned to use in the form of raw materials or products. Z. Recycling Facility means any facility that recycles Recyclable Materials, including but not limited to buy back centers, drop -off centers (both permanent and mobile), designated County Recycling centers, Materials Recovery Facilities and Recovered Materials Processing Facilities. AA. Residential Unit means a single - family residence, duplex residence and a Multi- Family Residence. BB. Restaurant means any bar, tavern or other eating or drinking establishment where food or beverages are prepared, served, or sold for profit, either for immediate consumption on or in the vicinity of the premises, or called for or taken out by customers, or prepared prior to being delivered to another location for consumption. CC. Self - Hauling Certificate means a written certification by an Owner or Generator confirming that the Owner or Generator is collecting and transporting Recyclable Materials to a Recycling Facility. DD. Service Agreement means a written agreement between a Contractor and an Owner or Generator concerning the collection of Recyclable Materials. EE. Solid Waste means sludge unregulated under the federal Clean Water Act or Clean Air Act, sludge from a waste treatment works, water supply treatment plant, or air pollution control facility, or Garbage, rubbish, refuse, special waste, or other discarded materials, including solid, liquid, semisolid, or contained gaseous material resulting from domestic, industrial, commercial, mining, agricultural, or governmental operations. FF. Substantial Hardshio means a demonstrated economic, technological, legal, or other type of hardship. SECTION SIX: Designation of Recyclable Materials. For the purposes of this Ordinance, Recyclable Materials means paper, cardboard, glass, plastic (Nos. 1 through 7), aluminum, and ferrous metal. The Board may designate other materials (e.g., Organic Waste) as Recyclable Materials if the Board determines that a market 5 exists for such materials and a cost - effective system is in place for Recycling such materials. Materials shall be deleted from this list of Recyclable Materials if the Board determines that a market no longer exists or a cost - effective system is no longer in place for Recycling such materials. SECTION SEVEN: Minimum Standards for Recycling on Non - Residential Property A. Each Owner shall: (1) provide Recyclable Materials Containers on the Owner's Non - Residential Property so the Generators located on the Owner's Non - Residential Property may recycle all of the Recyclable Materials that the Generators have designated pursuant to Subsection 7.B., below; and (2) Collect the materials placed in the Recyclable Materials Containers and transport those materials to a Recycling Facility. B. Each Generator shall diligently attempt to recycle all of the Primary Recyclable Materials that it produces. At least once each year, each Generator shall: (1) consider the list of Recyclable Materials designated by the County pursuant to Section 6 of this Ordinance; (2) consider the types of Recyclable Materials generated by its activities on Non - Residential Property; (3) identify the Primary Recyclable Materials that the Generator produces; and (4) identify (i.e., designate) the Primary Recyclable Materials that the Generator will recycle. Thereafter, each Generator shall separate the designated Primary Recyclable Materials from the Generator's Solid Waste, and the Generator shall place the designated Primary Recyclable Materials in Recyclable Materials Containers for collection. C. If a Generator's activities do not produce any Primary Recyclable Materials, the Generator shall designate and recycle one or more Recyclable Materials in the manner described in Subsection 73, above, unless the Generator is exempt pursuant to Subsection &A, below. D. Each Generator shall coordinate with the Owner of the Non - Residential Property where the Generator's activities occur, and each Owner shall coordinate with the Generators on its Non - Residential Property, to ensure that the Generator's Recyclable Materials are taken to a Recycling Facility. E. No Person shall dispose of Recyclable Materials that have been separated from Solid Waste pursuant to the provisions of Subsections TB or TC, above. F. No Person shall place Solid Waste in a Recyclable Materials Container. G. No Person shall cause litter or a nuisance. Each Person shall take all necessary steps to ensure that their own Recycling activities do not cause litter or a nuisance. Each Person shall immediately pick up any litter and eliminate any nuisance caused by their own activities. 6 I H. Each Owner shall, upon request, provide the County Manager with a copy of a Service Agreement, Self - Hauling Certificate, or other document (e.g., receipt from a Recycling Facility) demonstrating that the Primary Recyclable Materials generated on the Owners Non - Residential Property are being taken to a Recycling Facility. The Service Agreement, Self - Hauling Certificate, or other document shall be available for inspection by the County Manager at the Owner's Non - Residential Property during normal business hours. The Owner also shall mail or deliver these documents to any Generator located on the Owner's Non - Residential Property, within fourteen (14) days, if the Generator requests the documents. 1. Each Generator shall, upon request, provide the County Manager with a copy of a Service Agreement, Self- Hauling Certificate, or other document (e.g., receipt from a Recycling Facility) demonstrating that the Generator's Primary Recyclable Materials are being taken to a Recycling Facility. The Service Agreement, Self - Hauling Certificate, or other document shall be available for inspection by the County Manager at the Generators Non - Residential Property during the Generators normal business hours. J. An Owner may satisfy its obligations under this Ordinance by performing the required activities itself or by using the services of a Contractor or other Person who complies with the requirements of this Ordinance. However, notwithstanding anything else contained herein, the Owner shall be responsible for ensuring and demonstrating its compliance with the requirements of this Ordinance. K. A Generator may satisfy its obligations under this Ordinance by performing the required activities itself or by using the services of a Contractor or other Person who complies with the requirements of this Ordinance. However, notwithstanding anything else contained herein, each Generator shall be responsible for ensuring and demonstrating its compliance with the requirements of this Ordinance. Exemptions from Recycling Standards. A. Notwithstanding any other provision herein, a Generator shall be exempt from the requirements in Section 7 of this Ordinance if the Generator uses no more than one container for the disposal of its Solid Waste, the container's capacity is no greater than ninety -six (96) gallons, and the contents of the container are collected no more than two (2) times per week. B. Notwithstanding any other provision herein, a Generator shall not be required to recycle a Recyclable Material if the Generator demonstrates to the County Manager that there is .... no collection service or other cost- effective system available for Recycling such material. 7 C. Notwithstanding any other provision herein, an Owner shall be exempt from the requirements in Section 7 of this Ordinance if: (1) all of the Generators on the Owner's Non - Residential Property are exempt from or not required to comply with the provisions of Section 7; or (2) Primary Recyclable Materials are not being generated by any activities occurring on the Owner's Non - Residential Property. NO NINE: Extraordinary and Innovative Recvchne. A. All Owners and Generators, including those who are exempt from some or all of the requirements in this Ordinance, are encouraged to recycle all of their Recyclable Materials, especially aluminum cans, paper, and cardboard. B. Owners and Generators are encouraged to work with the County to develop new and innovative methods to recycle other Recyclable Materials, such as Organic Waste. C. All municipalities in Collier County are encouraged to adopt and implement Recycling programs for the businesses and institutions located in the incorporated areas of the County. If requested, the County Manager shall provide advice and technical assistance with the development of the Recycling programs for these municipalities. SECTION TEN: Awards Proeram for Recycling on Non - Residential Properly. The County Manager is hereby authorized to establish and implement an awards program to recognize Owners and Generators in the County who implement exceptional or innovative Recycling programs for Non - Residential Property. SECTION ELEVEN: Recycline Education and Promotion Program. The County Manager is hereby authorized to establish and implement a Recycling education and promotion program for Owners and Generators in the County. The education and promotion program may include, but is not limited to, public workshops, public service announcements, multi -media advertising, and direct mailings concerning the methods and benefits of Recycling on Non - Residential Property. SECTION TWELVE: Evaluation of Non - Residential Recycline Proeram. As needed, the County Manager shall provide a report to the Board concerning the County's Recycling program for Non - Residential Property. The report shall address the effectiveness of the County's Recycling program for Non - Residential Property, the general costs and benefits associated with this program, and any changes that should be implemented to 8 improve the effectiveness of the program. SECTION THIRTEEN: Recycling Service Agreements. A Contractor shall provide a written Service Agreement to a Customer before the Contractor begins to collect that Customer's Recyclable Materials. The Service Agreement shall describe the services to be provided by the Contractor, the fees to be paid by the Customer, and the other terms of the parties' agreement. SECTION FOURTEEN: Standards for Recvcline Contractors. A. No Person may Collect or transport Recyclable Materials in the County for profit unless such Person has obtained a Certificate of Operation from the County. However, a certified Recovered Materials dealer, as defined in Section 403.7046, Florida Statutes, is not required to obtain a Certificate of Operation before engaging in business in the County. B. A not - for -profit Person is not required to obtain a Certificate of Operation before collecting or transporting Recyclable Materials in the County. C. Any Person may file an application with the County Manager for a Certificate of Operation. The application shall be submitted on a forth prepared by the County Manager. The applicant shall provide the information and documentation that is requested by the County Manager, including but not limited to the following: 1. The name, address and telephone number of the applicant; 2. A description of the vehicles that the applicant will use to Collect Recyclable Materials, including the make, model, and serial number of each vehicle; and 3. Certificates of insurance demonstrating that the applicant has the following minimum insurance coverage: commercial general liability insurance of at least $1,000,000; business automobile liability insurance of at least $1,000,000; workers' compensation insurance of at least the statutory limits, unless otherwise provided by state law; and umbrella liability insurance of at least $2,000,000. The certificates of insurance shall state that the County will receive at least 30 days' written notice before cancellation or reduction of coverage. The certificates of insurance shall indicate that the Board is a named insured in all of the insurance policies required by this Ordinance, with the exception of workers compensation. 4. A written statement certifying that the applicant has reviewed and will comply with all of the requirements in the Certificate of Operation and this Ordinance. 9 D. If the County Manager determines that the applicant complies with the terms of this Ordinance and all applicable laws, the County Manager shall grant a Certificate of Operation. The County Manager shall deny an application for a Certificate of Operation if the County Manager determines that the applicant does not comply with the terms of this Ordinance or other applicable law. The County Manager may revoke a Certificate of Operation if the County Manager determines, after providing notice and an opportunity for a hearing, that a Contractor has violated the provisions in a Certificate of Operation or any applicable law. E. The County Manager shall approve a standard form that will be used as the County's Certificate of Operation. The Certificate of Operation shall contain the conditions and limitations that are deemed appropriate by the Board. The Certificate of Operation shall remain in effect for a period of one (1) year, unless the Board approves a longer duration by resolution. F. A Contractor shall provide each of its Customers with Recyclable Materials Containers that are sufficient to accommodate the quantity and types of Recyclable Materials that will be recycled by the Customer. G. A Contractor shall conduct all of its activities in accordance with all applicable laws and best management practices. A Contractor's vehicles, equipment and containers shall be kept in a clean and well - maintained condition. H. A Contractor shall not take a Customer's Recyclable Materials to a landfill or other site for disposal, unless the Contractor has received a variance pursuant to Section 16 of this Ordinance. 1. Unless exempt from this requirement pursuant to Chapter 62 -722, Florida Administrative Code, a Contractor shall provide quarterly reports to the County identifying, at a minimum, the types and amounts of Recyclable Material it collected, and each Recycling Facility to which the Recyclable Material was taken. The County Manager may require the Contractor to provide such other information as the County Manager reasonably determines is necessary, provided such request is consistent with the provisions of Chapter 62 -722, Florida Administrative Code. SECTION FIFTEEN: Self - Hauling. A. If an Owner Collects the Recyclable Materials generated on its Non- Residential Property and transports those materials to a Recycling Facility, without using a Contractor, the Owner shall, upon request, prepare a Self - Hauling Certificate for the County Manager, to I B. If a Generator Collects and transports its Recyclable Materials to a Recycling Facility, without using a Contractor, the Generator shall, upon request, prepare a Self - Hauling Certificate for the County Manager. C. The County Manager shall approve a standard form that shall be used as a Self - Hauling Certificate. At a minimum, the Owner or Generator shall provide the following information in the Self - Hauling Certificate: 1. The name, address and telephone number of the Owner or Generator that is signing the Self- Hauling Certificate; 2. The address of the Non - Residential Property where the Recyclable Materials are generated; 3. The names of the Generators that are transporting Recyclable Materials pursuant to the Self- Hauling Certificate; 4. A brief description of the activities or businesses that are generating the Recyclable Materials; 5. A list of the types of Recyclable Materials that are being transported; 6. For each type of Recyclable Material, the amount that is being taken from the Non - Residential Property to a Recycling Facility each month; 7. The name and address of the Recycling Facility; and 8. The Occupational License number(s) for the Non - Residential Property. D. The Self - Hauling Certificate shall contain a written statement, signed by the Owner or Generator, certifying that the Owner or Generator is in compliance with the requirements of this Ordinance. E. The County Manager may restrict or prohibit self - hauling by a Person if the County Manager determines, after providing notice and an opportunity for a hearing, that the Person's self - hauling activities violate the provisions of this Ordinance or any other applicable law. SECTION SIXTEEN: County Recycling Centers. A. The County has established recycling centers for the benefit of the community. The County may impose conditions and limitations upon any Person that wishes to use the County's recycling centers, including limitations on the types and amounts of Recyclable Materials that will be accepted at the recycling centers. The County also may charge fees for the use of its recycling centers. The conditions, limitations, and fees applicable to the recycling centers shall be established by resolution of the Board. B. A Contractor shall not deliver Recyclable Materials or Solid Waste to the County's recycling centers, unless the deliveries are approved in advance by the County Manager. Variances. A. The County Manager shall grant an administrative variance from the requirements in this Ordinance when an Owner, Generator or other Person demonstrates that the application of the Ordinance would create a Substantial Hardship. B. Any Owner or Generator who demonstrates that, due to site specific conditions, the Owner or Generator cannot simultaneously comply with this Ordinance and the provision of any section of the Collier County Land Development Code or the provision of a duly adopted planned unit development, may seek a variance pursuant to Section 9.04.00 of the Land Development Code. In the alternative, the County Manager may grant an administrative variance from the requirements of this Ordinance. C. An application for an administrative variance pursuant to Subsections ITA or 17.13, above, shall be submitted to the County Manager on a form prescribed by the County Manager. An application for a variance from the County's Land Development Code pursuant to Subsection 17.13, above, shall be governed by Section 9.04.00 of the Collier County Land Development Code. The fee for a variance shall be established by resolution of the Board. D. Pursuant to Section Five of the 2004 Land Development Code adopting Ordinance (Ordinance No. 2004 -41), the requirements of Section 4.05.04 (minimum requirements for parking spaces) and Section 4.06.00 (minimum requirements for visual screening) of the Land Development Code do not apply to a Person that filed an application for a site plan approval before the effective enforcement date of this Ordinance, but only if and only to the extent that the Person's compliance with this Ordinance precludes the Person from complying with the requirements in Sections 4.05.04 and 4.06.00 of the Land Development Code. SECTION EIGHTEEN: Inspections. Enforcement and Penalties. A. The County Manager is authorized to conduct inspections on Non - Residential Property for the purpose of determining whether a Person is in compliance with the requirements of this Ordinance. The County Manager also is authorized to inspect any vehicle, equipment or 12 container used to Collect or transport Recyclable Materials in the County for the purpose of ensuring that the vehicle, equipment or container is not producing litter or leaking liquids or other residuals during transport. B.. It shall be prima facie evidence of a violation of this Ordinance if an Owner or Generator fails to have a Recyclable Materials Container in use on their Non - Residential Property. C. To provide the public with a reasonable opportunity to comply with this Ordinance, the County shall not seek any penalties for violations of this Ordinance that occur within twelve months of the effective date of this Ordinance. The deadline for compliance with this Ordinance may be postponed by resolution of the Board. D. The County Manager shall have the power to enforce the provisions of this Ordinance through the County's Code Enforcement Board. The County Manager also may enforce this Ordinance by using any other enforcement procedure that is approved by the Board in the future pursuant to a County ordinance. SECTION NINETEEN: Appeals. A. The County Manager is hereby granted the authority to resolve any questions -- concerning the proper interpretation and application of this Ordinance. B. Any decision of the County Manager under this Ordinance may be appealed to the Board. Any appeal shall be initiated by filing a written petition with the County Manager within ten (10) days after the County Manager issues a written decision concerning the matter in dispute. The petition shall describe the facts and issues in dispute and shall explain why the petitioner is entitled to relief. The petition shall be presented to the Board for its consideration as expeditiously as possible, but the petitioner shall be given at least ten (10) days advance notice of the Board's meeting concerning the petition. At the Board's meeting, the petitioner shall have the burden of proving that it is entitled to the relief requested. SECTION TWENTY: Severabllity. If any clause, section or provision of this Ordinance shall be declared to be unconstitutional or invalid for any cause or reason, the same shall be eliminated from this Ordinance and the remaining portion of this Ordinance shall be in full force and effect and be as valid as if such invalid portion thereof had not been incorporated therein. 13 SECTION TWENTY ONE: Conflict. The provisions of any other Collier County Ordinance that are inconsistent or in conflict with the provisions of this Ordinance are superseded to the extent of such inconsistency or conflict, or waived when the subject of a variance granted pursuant to Section 16 of this Ordinance. SECTION TWENTY TWO: Inclusion in the County's Code of Laws and Ordinances. The provisions of this Ordinance shall become and be made a part of the Code of laws and Ordinances of Collier County, Florida. The sections of the Ordinance may be renumbered or relettered to accomplish this goal, and the word 'ordinance" may be changed to "section ", "article', or any other appropriate word. SECTION TWENTY THREE: Effective Date. This Ordinance shall become effective upon receipt of notice of its filing from the office of the Secretary of State of the State of Florida. PASSED AND DULY ADOPTED by the Board of County Commissioners of Collier County, Florida, thiday of A A CA 2004. DATED: '1129 10y ATTEST: DWIGHT E. BROCK, Clerk ,De,uty Clerk tW�� App-yd asap farm and legal suffieiewy: Robert N. Zachdry Assistant County Attorney I BOARD OF COUNTY COMMISSIONERS COLLIER COUNTY, FLORIDA By: DONNA FIALA, Chairman 14 This ordinance filed with the !r Secretary of tote's Office this day of , .360-1 and acknowl dge ent of that fit ,9� received this V _ day of f/Jl9SICL_... 001V wn a STATE OF FLORIDA) COUNTY OF COLLIER) I, DWIGHT E. BROCK, Clerk of Courts in and for the Twentieth Judicial Circuit, Collier County, Florida, do hereby certify that the foregoing is a true copy of: ORDINANCE NO. 2004 -50 Which was adopted by the Board of County Commissioners on the 27th day of July, 2004, during Regular Session. WITNESS my hand and the official seal of the Board of County Commissioners of Collier County, Florida, this 29th day of July, 2004. DWIGHT E. BROCKL',jV(0 • ✓7 Clerk of CougG§.an&-dkrk Ex- officio t,O. #garo of'.. County Comnassioners", ,{ J By: Heidi 'k ..'Rockholii;.L Deputy''C,,el;t�, 3 • e''v