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BCC Minutes 06/22/2007 S (GMP Amendments) June 22, 2007 TRANSCRIPT OF THE MEETING OF THE COLLIER COUNTY BOARD OF COUNTY COMMISSIONERS Naples, Florida June 22, 2007 LET IT BE REMEMBERED, that the Collier County Board of County Commissioners in and for the County of Collier, having conducted business herein, met on this date at 9:00 a.m. in SPECIAL MEETING in Building "F" of the Government Complex, East Naples, Florida, with the following members present: CHAIRMAN: Jim Coletta Tom Henning Fred Coyle Frank Halas Donna Fiala ALSO PRESENT: Sue Filson, Executive Manager to BCC David Weigel, County Attorney David Weeks, Comprehensive Planning Manager Marjorie Student-Stirling, Assistant County Attorney Joseph Schmitt, Community Dev. & Env. Services Administrator Page 1 COLLIER COUNTY BOARD OF COUNTY COMMISSIONERS tI ., -~=~( SPECIAL AGENDA GMP AMENDMENTS (Transmittal Hearing) June 22, 2007 9:00 a.m. Jim Coletta, BCC Chairman, District 5 Tom Henning, BCC Vice-Chairman, District 3 Donna Fiala, BCC Commissioner, District 1 Frank Halas, BCC Commissioner, District 2 Fred W. Coyle, BCC Commissioner, District 4 NOTICE: ALL PERSONS WISHING TO SPEAK ON ANY AGENDA ITEM MUST REGISTER PRIOR TO SPEAKING. SPEAKERS MUST REGISTER WITH THE COUNTY MANAGER PRIOR TO THE PRESENTATION OF THE AGENDA ITEM TO BE ADDRESSED. COLLIER COUNTY ORDINANCE NO. 2003-53, AS AMENDED, REQUIRES THAT ALL LOBBYISTS SHALL, BEFORE ENGAGING IN ANY LOBBYING ACTIVITIES (INCLUDING, BUT NOT LIMITED TO, ADDRESSING THE BOARD OF COUNTY COMMISSIONERS), REGISTER WITH THE CLERK TO THE BOARD AT THE BOARD MINUTES AND RECORDS DEPARTMENT. REQUESTS TO ADDRESS THE BOARD ON SUBJECTS WHICH ARE NOT ON THIS AGENDA MUST BE SUBMITTED IN WRITING WITH EXPLANATION TO THE COUNTY MANAGER AT LEAST 13 DAYS PRIOR TO THE DATE OF THE MEETING AND WILL BE HEARD UNDER "PUBLIC PETITIONS." Page 1 June 22, 2007 ANY PERSON WHO DECIDES TO APPEAL A DECISION OF THIS BOARD WILL NEED A RECORD OF THE PROCEEDINGS PERTAINING THERETO, AND THEREFORE MAY NEED TO ENSURE THAT A VERBATIM RECORD OF THE PROCEEDINGS IS MADE, WHICH RECORD INCLUDES THE TESTIMONY AND EVIDENCE UPON WHICH THE APPEAL IS TO BE BASED. ALL REGISTERED PUBLIC SPEAKERS WILL RECEIVE UP TO FIVE (5) MINUTES UNLESS THE TIME IS ADJUSTED BY THE CHAIRMAN. IF YOU ARE A PERSON WITH A DISABILITY WHO NEEDS ANY ACCOMMODATION IN ORDER TO PARTICIPATE IN THIS PROCEEDING, YOU ARE ENTITLED, AT NO COST TO YOU, TO THE PROVISION OF CERTAIN ASSISTANCE. PLEASE CONTACT THE COLLIER COUNTY FACILITIES MANAGEMENT DEPARTMENT LOCATED AT 3301 EAST TAMIAMI TRAIL, NAPLES, FLORIDA, 34112, (239) 774-8380; ASSISTED LISTENING DEVICES FOR THE HEARING IMPAIRED ARE AVAILABLE IN THE COUNTY COMMISSIONERS' OFFICE. 1. Invocation and Pledge of Allegiance 2. Comprehensive Planning, Growth Management Plan Amendments A. CP-2005-2, Petition requesting an amendment to the Golden Gate Area Master Plan (GGAMP) and Golden Gate Area Master Plan Future Land Use Map (GGAMP/FLUM) and Map Series, to expand "Wilson Boulevard/Golden Gate Boulevard Neighborhood Center", to allow neighborhood commercial of approximately an additional 60,000 square feet, for property located at the SE comer of Golden Gate Boulevard and 1st Street SW, in Section 9, Township 49 South, Range 27 East, consisting of 7::1: acres. [Coordinator: Tom Greenwood, AICP, Principal Planner] B. CP-2005-5, Petition requesting an amendment to the Golden Gate Area Master Plan (GGAMP), to amend the Golden Gate Estates Commercial Infill Subdistrict, to expand the Subdistrict by 13 acres, allow up to 115,000 square feet of intermediate commercial, and general office uses and allow residential uses at 15 dwelling units per acre, for property located at the NW comer of Golden Gate Parkway and Santa Barbara Boulevard, in Section 29, Township 49 South, Range 26 East, consisting of 18::1: acres. [Coordinator: Michele Mosca, AICP, Principal Planner] Page 2 June 22, 2007 C. CP-2005-6, Petition requesting an amendment to the Golden Gate Area Master Plan (GGAMP) and Golden Gate Area Master Plan Future Land Use Map (GGAMP/FLUM) and Map Series. to create the "Golden Gate Parkway Institutional Subdistrict", to allow for the expansion and continued operation of the David Lawrence Center and the Church of God, and, to allow additional institutional and related uses, for property located on the north side of Golden Gate Parkway, specifically Tracts 43,50,59, and 66, Unit 30, Golden Gate Estates, Section 29, Township 49 South, Range 26 East, consisting of 16.3::1: acres. [Coordinator: Michele Mosca, AICP, Principal Planner] D. CP-2006-4, Petition requesting an amendment to the Golden Gate Area Master Plan (GGAMP). to modify the Conditional Uses Subdistrict, Transitional Conditional Uses provision, to allow a church as a Transitional Conditional Use for the subject site abutting a residential use, for property located on the south side of Immokalee Road and ::1:300' east of Oakes Boulevard, in Section 29, Township 48 South, Range 26 East, consisting of 2.6::1: acres. (Coordinator: Corby Schmidt, Principal Planner] E. CP-2005-7, Petition requesting an amendment to the Future Land Use Element (FLUE), to modify "Livingston/Pine Ridge Commercial Infill Subdistrict" to add retail uses and increase building square footage from 40,000 to 70,000 feet, for property located at the NW comer of Pine Ridge Road and Livingston Road, in Section 12, Township 49 South, Range 25 East, consisting of 10.47::1: acres. [Coordinator: Marcia Kendall, Senior Planner] F. CP-2005-9, Petition requesting an amendment to the Future Land Use Element (FLUE) and Future Land Use Map (FLUM) and Map Series, to create the "Corkscrew Island Neighborhood Commercial Subdistrict" for property designated on the Future Land Use Map as Rural Fringe Mixed Use District, Neutral Lands, to allow up to 90,000 square feet of retail, office and personal service uses, for property located at the NW comer of Immokalee Road and Platt Road, in Section 27, Township 47 South, Range 27 East, consisting of 8::1: acres. [Coordinator: Corby Schmidt, Principal Planner] G. CP-2005-10, Petition requesting an amendment to the Future Land Use Element (FLUE) and Future Land Use Map (FLUM) and Map Series. to establish the "Naples Big Cypress Commerce Center Subdistrict", to allow Page 3 June 22, 2007 up to 88, II 0 square feet of general and heavy commercial uses, consistent with the C-4 and C-5 zoning districts of the Land Development Code, for property located at the NW comer of US-41 East and Trinity Place, in Section 17, Township 51 South, Range 27 East, consisting of 9.79::1: acres. [Coordinator: Michele Mosca, AICP, Principal Planner] H. CP-2005-11, Petition requesting an amendment to the Future Land Use Map (FLUM), to change the designation of the site from Rural Fringe Mixed Use District Receiving Lands to "Rural-Industrial District", to allow for approximately 500,000 square feet of building space for warehouse and manufacturing uses, for property located on the north side ofUS-41 East and 1,000' west of Trinity Place, in Section 18, Township 51 South, Range 27 East, consisting of 42.5::1: acres. [Coordinator: Tom Greenwood, AICP, Principal Planner] I. CP-2005-12, Petition requesting an amendment to the Future Land Use Element (FLUE) and Future Land Use Map (FLUM) and Map Series, to create the "North Belle Meade Special Use Subdistrict" for property designated on the Future Land Use Map as Rural Fringe Mixed Use District, Sending Lands and North Belle Meade Overlay, to allow earth mining, oil extraction and related processing, asphalt and concrete batch-making plants and their related uses, and all Sending Lands permitted uses, conditional uses and rights as permitted uses, and requesting an amendment to the Conservation and Coastal Management Element (CCME). to reduce the Preservation and Native Vegetation Retention Standards from 80 percent to 40 percent for this Subdistrict, for property located in Sections 29, 31 and 32, Township 49 South, Range 27 East, consisting of 950::1: acres. [Coordinator: Corby Schmidt, Principal Planner] J. CP-2005-13, Petition requesting an amendment to the Future Land Use Element (FLUE) and Future Land Use Map (FLUM) and Map Series, to create the "Collier Boulevard Community Services Subdistrict" for property designated on the Future Land Use Map as Urban Mixed Use District, Urban Residential Fringe Subdistrict, to allow up to 368,000 square feet of church- sponsored institutional and residential uses, and allow non-church sponsored residential uses at 4.5 dwelling units per acre, up to 296 market rate and Essential Services Personnel Housing units, for property located on the east side of Collier Blvd. (CR-951), one-half mile north of Rattlesnake- Hammock Road (within the First Assembly of God PUD site), in Section 14, Township 50 South, Range 26 East, consisting of 69::1: acres. Page 4 June 22, 2007 [Coordinator: Corby Schmidt, Principal Planner] K. CPSP-2005-14, Petition requesting amendment to the Future Land Use Map and Map Series (FLUM) to re-designate Rural Fringe Mixed Use District Sending Lands to either Neutral Lands or Receiving Lands, for 90 properties located within Section 34, Township 47 South, Range 27 East, and in Section 3, Township 48 South, Range 27 East, and Section 11, Township 48 South Range 26 East, and Section 25, Township 49 South, Range 26 East, and Sections 13, 14,22,27,29 and 32, Township 49 South, Range 27 East, and Sections 15 and 21, Township 51 South, Range 27 East, consisting of 3,606::1: acres; Corkscrew, Rural Estates and Royal Fakapa1m Planning Communities. [Coordinator: David Weeks, AICP, Planning Manager] L. CPSP-2005-15, Petition requesting an amendment to the Transportation Element (TE), to add new Policies 3.5, 3.6, 3.7 and 3.8, introducing Thoroughfare Corridor Protection Plans (TCPP's), Transportation Corridor Preservation Maps (TCPM's), and associated tables and ordinances, to provide for the protection and acquisition of existing and future transportation corridors. [Coordinator: Don Scott, Transportation Planning Director] 3. Adjourn Page 5 Juue 22, 2007 June 22, 2007 MR. SCHMITT: You have a hot mic. CHAIRMAN COLETTA: Yes. Good morning, ladies and gentlemen. Welcome to the growth management plan amendment, the BCC hearing, which is now started on -- it's a continuation of the June 4th meeting. Please stand for the Pledge of Allegiance. Commissioner Halas. COMMISSIONER HALAS: Sure. (The Pledge of Allegiance was recited in unison.) CHAIRMAN COLETTA: Fine, Mr. Weeks, start us off wherever we're supposed to be. MR. WEEKS: First, a couple of little things we want to mention. First, Commissioner Fiala. COMMISSIONER FIALA: Yes. Thank you. Just for everybody in the audience, I need to let you know that today, by law, I must leave at 10:00 to go to the elections office, as I am representing the county on the canvassing board. I've been told by the election supervisor that I should only be gone one hour -- from 10:00 to 11 :00 -- but I just wanted to announce that right upfront. And it's not something I can avoid or put off. It is something that is mandatory. Thank you. CHAIRMAN COLETTA: Just a point that I -- might be of interest, but I doubt it. But I'm going to suggest it. Would it be totally inappropriate to take a 10:00 lunch? COMMISSIONER HENNING: Yes. CHAIRMAN COLETTA: I kind of thought we would have that consensus of opinion. I just wanted to make sure that we do the public's business as efficiently and as effectively as we can. When it comes to 10:00, we'll make some judgment calls about how we're going to proceed. Mr. Weeks. MR. WEEKS: Good morning, Commissioners. I'm David Weeks of your Comprehensive Planning Department. Page 2 June 22, 2007 Commissioner Coletta, I want to ask. I was under the impression that you also had to leave today around noon or so; is that correct? CHAIRMAN COLETTA: That's correct. I have a meeting of the transportation authority I have to attend at 1 :00, if I'm not mistaken. But it takes about an hour to travel. I assume, judging by what I've seen before, we should be able to wrap up the business within an hour, maybe an hour and a half max, if we keep moving and if we don't engage in too much needless conversation where we repeat ourselves over and over again. MR. WEEKS: If the court reporter can keep up with our fast talking, we'll give it a try. Commissioner, this is, as you've already stated, a continuation of the June 4th hearing of the 2005 cycle of comprehensive plan amendments. This is the transmittal hearing. I want to remind you of that. You will -- for those that you choose to, transmit to the Department of Community Affairs and other state agencies, they will be coming back to you for a second review -- a final review at adoption hearings later this year. So this, so to speak, could be your first bite at the apple, if you will. Item #2F CP-2005-9: CORKSCREW ISLAND NEIGHBORHOOD COMMERCIAL SUBDISTRICT We left off with petition CP-2005-9. And if you brought the two large binders of the backup materials, it is in the second binder. You have -- the smaller binder, of course, is the one with the executive summary and the staff report and so forth. And your usual protocol is that the petitioner go first. I believe we got partway through this last time. But, at any rate, Rich Page 3 June 22, 2007 Y ovanovich is the -- MR. YOV ANOVICH: Good morning. For the record, Rich Y ovanovich on behalf of the petitioner, Bobby Williams, who's here with me, as well, in the front row. We had gotten a long way through the project, so I'll briefly summarize where we were. And I know we have met with commissioners individually. So recognizing that some people need to leave, I will not take too much time. The property is located on lmmokalee Road just around the bend -- before the bend to where you actually go to Immokalee. It is an eight-acre site. Approximately half the property is already zoned C-2 for commercial. The remaining half of the property is zoned for mobile homes. We submitted a request in 2005 to basically create a district that the entire eight acre parcel would be eligible for C-2 retail uses. Early on in the process we met with the Corkscrew Island Neighborhood Association about the project. At that time we thought -- the goal was to get as much retail out there to reduce the trips for people coming into town. So we were looking at trying to get 90,000 square feet. The neighborhood association had no objections. They took a vote, 22 to 4 when we were talking the 90,000 square feet. We got to the planning commission and some of the planning commissioners thought that maybe 90,000 square feet was too intense on the eight acres. We went back and did a more detailed site plan on that. And depending upon the types of uses, if we went to a big restaurant we could get about 50,000 square feet. Ifwe had a smaller restaurant, we could probably get 70,000 square feet. So we've reduced the comp plan request down to 70,000 square feet. And, obviously, when we do a rezone, we'll get into much more specific data on that. In between the time of the continuance of this hearing, we went Page 4 June 22, 2007 again to the neighborhood association and again presented the petition to the neighborhood association. And, again, the neighborhood association did not have any objections to what we're proposing. We think it makes sense. Your staff agrees that there's a need for retail out in this area. We believe that this site makes sense because it's already half commercial already. To add four more acres, we can do a much better retail project on eight acres than we can on four acres. And that, in summary, is where we are. There was a concern raised by staff regarding the east of 951 study. And that east of951 study is an infrastructure study, not a land use study. And we believe that since we're already commercial it wouldn't make any sense to hold this petition hostage to a study that's really not getting into the fine details of land use issues. With that, that's the overall -- an overview of the project. And we would like the planning commission to transmit this petition to the DCA for their review. CHAIRMAN COLETTA: You mean the commission. You said -- you said the planning commission. MR. YOV ANOVICH: I'm sorry. The commission. Sorry about that. CHAIRMAN COLETTA: That's okay. You had a long night I know. I just had to get it in there. MR. YOV ANOVICH: I appreciate that. CHAIRMAN COLETTA: I know Donna Fiala was ready to jump in, so I figured I'd jump the gun. MR. YOV ANOVICH: I appreciate that. With that, I believe there might be one public speaker. And we will be able to answer any questions. CHAIRMAN COLETTA: I'm going to weigh in on this. This is in District Five. This is something that we've talked about now for probably about six, seven years. You remember, there used to be on this location a building many, Page 5 June 22, 2007 many years ago that burnt down. A commercial building. It has been abandoned for a number of years. The local residents around there have been looking something in the way of commercial. There's smart growth there. I can tell you that you want to have commercial in certain locations to be able to avoid unnecessary road trips. The part about this I like is the fact that the community there has for the most part -- I won't tell you it's everybody. It's not. But the community, for the most part, has endorsed this as a very big improvement to the community and it will improve their way of life. I'm going to make -- are we going to make motions on these things one at a time? I'm going to make a motion for approval. COMMISSIONER HENNING: I'll second it. CHAIRMAN COLETTA: I motioned for approval myself, Commissioner Coletta, seconded by Commissioner Henning. With that, we do have a speaker. We're going to go to the speaker and then we'll go to staff to find out why they don't think it's a good idea. MS. FILSON: Mr. Chairman, I have one speaker. Bill McDaniel. CHAIRMAN COLETTA: For the record, let it be known that Bill McDaniel is, for the most part, the Corkscrew Neighborhood Property Association President; is that correct, sir? MR. MCDANIEL: That is correct, sir. Good morning. CHAIRMAN COLETTA: Good morning. MR. MCDANIEL: I just wish to thank you all to have the opportunity to speak. I'm here this morning on three -- as a speaker for three different hats, if you will. I do serve as the chairman of the east of 951 horizon study group. And as Rich shared with you earlier on, that organization was established almost a year and a half after Bobby initially started his Page 6 June 22, 2007 comp plan amendment process. And it is an infrastructure and somewhat, just to correct Rich a little bit, a land use group. But on a global basis, making suggestions to you as to how to better facilitate land management decisions in the eastern portion of Collier County. We are in the infancy stages of that organization and far too premature to be utilizing that group to assist staff in making their recommendations now. Hat number two, president of the Corkscrew Island Neighborhood Association. Bobby has been usually cooperative with our group, sharing information with us. One of you, who we met with individually, shared a concern about the lack of specificity as private property owners are coming to you with comp plan amendment suggestions because we have a policy of not allowing for concurrent submittals of comp plan amendment and a PUD at the same time. And we -- and I have had a meeting with Mr. Schmitt that made a suggestion that maybe we revisit that thought process to allow you folks a little more specificity. Obviously, the PUD submittal can't go forward until the comp plan has been approved and sent back and ratified by DCA and such, but it would allow you some ideas as to what, in fact, is transpiring. Bobby started talking to us at the Corkscrew Island Neighborhood Association with a 90,000 square foot project. And it's come down significantly after we talked about what the particular uses were and the green space and the parking lots that were allowed and so on and so forth. So that's something that maybe can help you as you're going forward and utilizing -- better utilizing staffs efforts for review of these comp plan amendments. As a note, Bobby did come back actually Tuesday, this past week, shared with us his new site plan. And there was a general consensus to not oppose the project as it goes forward with his suggestions for the use change in the back half to commercial in lieu of the mobile home park. Page 7 June 22, 2007 Lastly, I'm a private property owner. I happen to be a private owner next door. And, for the record, I think it's a good idea. Any questions? CHAIRMAN COLETTA: Thank you. You covered it quite well. MR. SCHMIDT: Just a summary of the points found by staff regarding this petition. For the record, Corby Schmidt, Principal Planner with the Comprehensive Planning Staff. The proposal has shown us data analysis that does establish a need for commercial uses, but staff has found that the data analysis doesn't support it necessarily at this specific location. In fact, the staff report also shows that the market study shows growth happening mostly outside of the area of the market study in the planning communities further beyond its market area. This is a piece of property eight acres in size, 90,000 square feet of commercial uses. That falls at the high end of the range of what the size and magnitude would be for this type of activity. Because there are no public services to the property, it's a private well situation, a private septic system, there are no level of service impacts for the County. It's a piece of property on an unusual corner on lmmokalee Road, Platt Road. At this intersection there is a small dirt or unpaved private road that may cause some problems for access. We've had discussions at the planning commission, as well as previously with staff, that the access to the commercial activities and the businesses on the property may need to be on Platt Road. The activities for the improvements on lmmokalee Road are complete to, I believe, it's 43rd Street, but not adjacent to this property. And the improvements to make lmmokalee Road a six-lane facility from two is not on the schedule until beyond five years from now. Page 8 June 22, 2007 We have emphasized this point before, so I'll bring it up again. In neutral lands in the rural fringe mixed-used area commercial uses aren't part of the permitted uses or conditional uses. And as with most commercial rezonings where they're unplanned, it will likely lead -- if approved by the board and the DCA, it will likely lead to more commercial requests at this intersection. That may sound like speculation, but experience tells us that it has, it does and it will. This is a location that is near one -- within one mile near one of the locations of a rural village. And in each of those rural villages there's the potential for commercial activities. And certainly the demand at rural or remote locations like this one would be diminished and those rural villages will provide those commercial services. I think I'll leave it at that for now, ifthere are any questions of staff. CHAIRMAN COLETTA: Yes. A couple of questions, if I may. This was formally a commercial site at one time, wasn't it? MR. SCHMIDT: It certainly was. CHAIRMAN COLETTA: What they're trying to do is expand upon the original designation that was there, is that correct, or have I got that wrong? MR. SCHMIDT: The rezoning on the larger partial would match the portion that is already zoned commercial, that's correct. CHAIRMAN COLETTA: Commissioner Henning, then Commercial Coyle. COMMISSIONER HENNING: Mr. Schmidt, where is the rural village that you're speaking about that's a mile away? MR. SCHMIDT: It doesn't exist today, of course, but in the receiving areas of the rural fringe mixed use district that those land uses encourage rural villages. COMMISSIONER HENNING: Okay. MR. SCHMIDT: In this case it's about a mile to the south and to the west. COMMISSIONER HENNING: Is it on the map there? Page 9 June 22, 2007 MR. SCHMIDT: I'm afraid that aerial doesn't include that portion of the county. COMMISSIONER HENNING: Is that where they're doing the mining -- the earth mining? MR. WEEKS: Yes. Yes, it is. COMMISSIONER HENNING: Okay. So they came in just recently and asked to dig deeper and they said they're going to come back and expand that to make it bigger. Yes. Well, your other concerns, can't they be addressed at the zoning petition, as far as traffic and other things? MR. SCHMIDT: They certainly can be. COMMISSIONER HENNING: Okay. Would that be more appropriate or should that be done under a growth management plan? MR. SCHMIDT: Well, I think a number of the issues that are being brought to you today are zoning issues. You're being told by the petitioners what they can do with the property. COMMISSIONER HENNING: I think what they're asking -- MR. SCHMIDT: A comprehensive plan amendment is answering the question of what they should do with the property. And a lot of these things could be answered now, but they will be addressed later. COMMISSIONER HENNING: Okay. CHAIRMAN COLETTA: Commissioner Coyle. COMMISSIONER HENNING: Is there a traffic analysis with this? MR. SCHMIDT: There was. The staff report became somewhat outdated almost immediately because the staff report told you that there was not one and that there should be one. And by the time that was written, there was one that was reviewed by the transportation staff and his testimony was given to the planning commissioners. COMMISSIONER HENNING: Thank you. I'm finished. Thank you. Page 10 June 22, 2007 CHAIRMAN COLETTA: Commissioner Coyle. COMMISSIONER COYLE: What portions of this property are receiving lands? Or, I'm sorry, neutral lands? MR. SCHMIDT: Of the subject property? COMMISSIONER COYLE: Yeah. MR. SCHMIDT: The entire property. COMMISSIONER COYLE: Okay. How did it get to be neutral? MR. SCHMIDT: Well-- COMMISSIONER COYLE: Well, clearly it was at the time we created the rural lands. MR. SCHMIDT: It was at that time -- and it was a portion of that larger project. If you would like specifics, Mr. Weeks can address that. COMMISSIONER COYLE: Yes. I would like to understand what the justification was for making it neutral when it clearly had been commercial before. MR. WEEKS: Commissioners, when we established the rural fringe mixed use district you will recall we were looking at a very broad scale for these properties. We were looking at a total of about 93,000 acres. This is not unique in that there are other properties within the rural fringe that are zoned differently than what the rural fringe designation would allow. Most particularly, the next couple of petitions that will be coming forward on the East Trail being zoned -- or the next two properties zoned commercial and a property zoned industrial. Most particularly, the commercial parcel designated as receiving lands, yet it's zoned commercial. It's not an area that would allow commercial uses, unless part of a rural village. So it's not unique. There are some other properties. We did not go down to the microscale of weeding out these Page 11 June 22, 2007 properties that had different zonings, such as commercial or mobile home, as is the case with this property, and keeping it as one little dot on the map of the old agricultural rural designation. The zoning on the property does not conform to the future use land designation today, nor did it prior to the rural fringe amendments. It's a -- from a future land use map perspective, it's a nonconforming zonmg. COMMISSIONER COYLE: Okay. Now, you understand that what you just said is sufficient justification, it appears, for allowing a rather large number of changes in designation in the rural lands area. We have a number of petitions before us that allege that an adequate determination was not made concerning the status of this property and, consequently, its status should be changed from sending to neutral or sending to receiving or whatever. And what you've just told me is that that really is true. Although, we'll have to work on it on a case-by-case basis, but -- but if you're saying to me that this particular property was determined to be neutral merely because of a fairly cursory review and that there are many others that fall into that same category, then it is going to be very difficult to sort out the other petitions that are coming before us who argue that same point. MR. WEEKS: Commissioner, let me draw a distinction between those other properties, which we'll get to in another petition, that are zoned agricultural and they're designated on the future land use map in such a way that agricultural uses are allowed. This property is designated to allow agricultural uses and low density residential and a variety of conditional uses, but it is zoned commercial and mobile home. There's a clear distinction between a zoning nonconformity versus some other property where we'll have a discussion, I think, that is going to have to do with clearing on the property perhaps. The other thing is I don't want to leave you with the impression Page 12 June 22, 2007 that this was totally a cursory review. It's just that it was not down to the level of detail of each individual parcel of land. Looking broadly at these few sections of land up in the Big Corkscrew Island area, they were designated neutral because they did not warrant the sending designation and arguably did not warrant the sending designation either. They were somewhere in the middle. And, specifically, because of the Big Corkscrew Island neighborhood, their input during the rural fringe process is why we established the neutral designation. To start off with, it was just receiving and sending, but they did -- were proposed as receiving land. They said, "We don't want it. We don't want to increase density." And that's where we came up with the neutral designation. It's an in between designation. COMMISSIONER COYLE: So it would be okay if this property were used for mobile homes? MR. WEEKS: That is correct. It is allowed to be used as mobile home and commercial. COMMISSIONER COYLE: Which creates higher density and probably more trips on a wider range of roadways than would this commercial property? MR. WEEKS: I'm not sure I would agree with that, Commissioner, especially given how small this parcel is. And the portion of it which is zoned mobile home is, I think, in the neighborhood of three acres. About three and a quarter. COMMISSIONER COYLE: The entire property is not zoned mobile home then? MR. WEEKS: No, sir. The balance of it being zoned C-2. COMMISSIONER COYLE: Final question. The east of951 study is not really just an infrastructure study. It is supposed to be a land use study also. Is it not being done as a land use study? MR. SCHMITT: Commissioner, for the record, Joe Schmitt. As Page 13 June 22, 2007 Bill Poteet certainly would point out because he's here and he's the chairman. It started out mainly as looking at essential services and that was the first phase of it. We, as staff, know that it will eventually evolve into land use. We've hired a contractor to do modeling. And I just lost the name of that model. That was the interactive growth model, which will evaluate potential land uses, but for all types of land uses; for EMS stations, fire stations, all the activities, commercial nodes. So it will eventually evolve into that. But the task that was presented to the committee now was to evaluate the first phase of it, which are the -- services and type of services that the community wants. It was not meant to somehow supercede what had been done previously. That was the Golden Gate area master plan restudy. There was a feeling that one would kind of trample over the other. So I know I didn't answer specifically your question because it isn't now, but it eventually will be a land -- it will involve land use. COMMISSIONER COYLE: Okay. Thank you. CHAIRMAN COLETTA: If I may add something there, as far as land use goes. The idea that we should hold off any of these cities east of 951 until this committee runs its course and they're growing the mission to go along with -- not that I have a problem with it, it would be -- it would be a terrible disservice to the community. We have lmmokalee going forward doing some great things. If all of a sudden we were to say that this east of 951 study is going to put a damper on everything east of 951 until somebody finishes an overview again, that -- we may as well bring everything to a dead stop. MR. SCHMITT: And I would support that position, Commissioner. I know, as staff, we looked at it holistically and we wanted to point out that there were these issues out there. But, in reality, as you know, because you've been involved in the east of 951 Page 14 June 22, 2007 study, we're a ways off. Weare. And some of these issues that you're addressing now, they'd probably sit for quite awhile if we were to hold it off specifically for a final -- I guess a final and complete analysis from east of 951 study. CHAIRMAN COLETTA: When this item comes back as a PUD, we can address that. There's Platt Road and a whole bunch of other factors that are there. And they all have to meet road concurrency. There is absolutely no way around it. So it's not a case that we're damned if we go ahead and forward it now and say it's a final thing. It's not. It's something we still have to meet concurrency with everything that's out there, including the environmental needs. Commissioner Fiala? COMMISSIONER FIALA: Yes. I'm looking at this strictly from a compatibility standpoint. And today the developer could build a mobile home park there, as well as commercial. But everything else around there -- the residential are large lots. Nothing was a mobile home lot. And commercial seems to -- to fit much better with commercial, rather than a mobile home park. And I realize that -- that this might be before its time, but I think before its time is time for us to make a decision that we should go forward with a commercial -- and commercial because they fit together much better and more compatible to the area, rather than a mobile home park. CHAIRMAN COLETTA: Let's go to Commissioner Halas and then we'll take a vote. COMMISSIONER HALAS: I have some concerns reading the staff report here. First of all, we're talking about a large facility here that's commercial. It's not connected to any potable water system, nor a sewer system. And then it also goes on to say that the property basically would be -- have poor drainage, as far as perc value from a Page 15 June 22, 2007 septic system. And then it says on here on page eight -- it says: Petitioner has not provided data and analysis supporting their concluding claims stating above, particularly those referring to the opportunities and impact. Quite the opposite is more likely to be closer to the fact in these claims. Numerous commercial development opportunities are provided, including rezone commercial land yet undeveloped, mixed use activity centers, commercial subdistricts. Neighborhood centers already exist or planned in the Golden Gate Estate area and the commercial component of the rural land villages, a total of four, are allowed in the rural fringe MUD receiving lands indicating -- including one about a mile to the southeast, which was brought up by staff there. So that's where I'm going with this thing. CHAIRMAN COLETTA: You can go ahead. MR. YOV ANOVICH: Real briefly, if! may, in response to some things just recently said. First of all, our existing zoning was determined to be consistent by policy under the comprehensive plan. So I don't want people to think that we're somehow a nonconforming use from a comprehensive plan position. We're not. We were determined to be consistent by policy because we were an existing use. And you couldn't get to the little final dot. You'd have to see on the map to show all of them. If you look in your comp plan you'll see several properties that have that consistency. Second of all, we're a 70,000 square foot maximum project, not a 90,000 square foot project. Your transportation staff has reviewed this comprehensive plan request and is recommending approval. Your environmental staff has reviewed this request and has recommended adoption. So this makes sense. I mean, I agree with Commissioner Fiala's compatibility. There is a need out there and I think that we are consistent with the plan. Page 16 June 22, 2007 And the transportation nitpicky issues always get addressed at the PUD and SDP stage, not at the level that we're talking about today during the comprehensive plan. And it's interesting to me that the commission originally said this was going to be receiving lands. And because the neighbors wanted less density, it became neutral. The neighbors are also saying they're not opposed to commercial. So I think that makes sense. They're saying, "We need the services out there. We don't want a more dense project." And, thus, their opposition to receiving. So that tells you it was not environmentally sensitive land in the first place. COMMISSIONER HENNING: You got the votes. Let's vote. MR. YOV ANOVICH: I'm sorry. CHAIRMAN COLETTA: Let's vote. Commissioner Halas, did you -- COMMISSIONER HALAS: No. CHAIRMAN COLETTA: We have a motion by myself for transmittal and a second by Commissioner Fiala. Seeing no other comments, all those in favor indicate by saying aye. COMMISSIONER COYLE: Aye. CHAIRMAN COLETTA: Aye. COMMISSIONER FIALA: Aye. COMMISSIONER HENNING: Aye. CHAIRMAN COLETTA: Opposed? COMMISSIONER HALAS: Aye. CHAIRMAN COLETTA: Let the record show Commissioner Halas voted in the opposition. Thank you. MR. WEEKS: Mr. Chairman, excuse me. I realized I failed to read these in the record as we usually do. Item #2G Page 17 June 22, 2007 PETITION CP-2005-10: NAPLES BIG CYPRESS COMMERCE CENTER SUBDISTRICT This next petition is CP-2005-1 0, petition requesting amendment to the future land use element and future land use map and map series to establish the Naples Big Cypress Commerce Center Subdistrict to allow up to 88,110 square feet of general and heavy commercial uses, consistent with the C-4 and C-5 zoning districts of the land development code, for property located at the northwest corner of U.S. 41 East and Trinity Place in Section 17, Township 5 South, Range 27 East, consisting of approximately 9.79 acres. MR. WHITE: If! may, Mr. Chairman. COMMISSIONER HENNING: You may. MR. WHITE: Thank you. Good morning. Patrick White, Porter, Wright, Morris and Arthur law firm here in town representing the applicant in this matter. Thank you, Mr. Weeks, for the intro. In the interest of time, I won't repeat a lot of those details. We're here today looking for a small scale amendment on this property. And the team we have today includes both the managing member of the ownership, LLC, Mr. Keith Basik, as well Mr. Ron Nino to present our expert planning testimony and Reed Jarvi for transportation planning. I'm going to give you as brief as possible an overview in procedural history and allow the other gentlemen to answer any questions you may have following their brief presentation. I, of course, will entertain any questions you may have, as well. The stated request is one that -- as part of our procedural history, you may recall seeing this project in the last round of GMP requests. It went through and received favorable transmittal and up to the point of the BCC's consideration of adoption had favorable recommendations and approvals all the way through. Page 18 June 22, 2007 We were asked to come back and, in fact, are here before you with a modified request from that which you had heard Mr. Weeks present. The reason for us planning ourselves in this procedural position has largely to do with the comments we received from the CCPC. As you're aware, we received a recommendation to not transmit. We did have some limited support. But it's fair to say that the comments we received are ones that indicated that both the intensity at 88,000 square feet and the types of uses were ones that were considered to be too intense for the site. We're looking for a redesignation from essentially receiving to a rural activities center to complement the adjacent uses that are already zoned commercial and have the appropriate land use designation. We're looking to create essentially a slightly larger, by some ten acres, unified planned of development that will have to come back to you, of course, for consideration for adoption of this land use request change and for subsequent zoning. So we believe that what I'm to propose here next is one that procedurally we didn't have an alternative, except to come forward with at this point and to put it on the record. We've informally discussed it with staff and some number of the commissioners themselves. Suffice it to say that the uses that we're looking for are ones that would drop from C-5 and C-4 down to a maximum intensity of those in the C-3 district with one exception, that being a C-4 use for a hotel. We're, likewise, looking to drop the actual intensity of maximum development from the 88,000 plus down to the range closer to 50,000 square feet. We believe that those are responsive to the planning commission's request or -- excuse me -- comments. And although we had the opportunity to try and request to be reheard, there did not seem to be, according to the county's own rules, a mechanism to be Page 19 June 22, 2007 able to go back to the planning commission. Having had the intervening number of continuances, we might have been able to fit ourselves into that schedule. But we are where we are today and have to put on the record what we are with respect to the reduction in intensity and in uses, believing that that will allow us the opportunity to get a favorable recommendation for transmittal. In essence, if we are given that favorable consideration by this board today, when we get to the place where the DCA would consider our petition, I believe that we would, again, get favorable recommendation from them. We would effectively be asking for far less than what we had had previously approved by them. And if there were concerns about the idea of not having gotten a favorable recommendation from the planning commission, we would clearly have an opportunity as part of the adoption hearing process to have this board be able to measure the planning commission's willingness to see this project in a more favorable light. With that kind of procedural background, the overview of the request, I think, is one that's helpfully understood best by our graphics here. The lands in question are the ones that are on your screens and looking on the board, the ones that are the most southerly. In a sense, the furthest out on the East Trail. We're about some six, seven miles from the intersection of 951 and 41. At that distance, we believe we're at a place that serves to function as essentially a gateway to the Naples more urban area. And by suggesting a hotel use as the most intense use, believe that we would be creating an opportunity for the traveling public, whether going east or westbound, arriving from or going through the Everglades as may be appropriate to use that as a waypost for their travels. Additionally, the other types of uses that are anticipated are ones that would complement and serve to support those on the adjacent lands. As I mentioned earlier, they're already zoned commercial. Page 20 June 22, 2007 They also have some industrial uses allowed. And the overall plan of development is one that would look to integrate this parcel into that plan. We recognize, as some of the prior application discussion from staff indicated, that we're essentially dropping out of the receiving lands, and believe that given the proximity to the existing commercial uses and the long history and ownership and the prior recommendations of approval that it makes sense in a land use planning context to adjoin these properties and have them function essentially as a whole. I'll allow Mr. Jarvi to talk a bit about the transportation planning aspects to help assure this board that what we're doing is looking to link long range land use planning under your growth management plan in this request for a change to the future land use map with the idea of long range transportation planning. And he can give you the specifics on how we would look to create the necessary infrastructure at the point in time sometime in the future post-adoption of a land use change and hopefully post a requisite rezoning. In the time since the planning commission considered this, and due to some of the continuances we've had, we also had an opportunity, if you will, to measure some of the support that this project has. Most recently in an informal vote the East Naples Civic Association -- excuse me -- their board, seven zero, gave us their favorable review. It's unanimous approval in the sense of the reduced project that I'm talking of today. That is what was presented to them. And, in fact, I believe that it is something that, generally speaking, the neighborhood does support, as well. We have spent a long number of years getting here and we're hoping that -- in the interest of brevity, I can now answer any questions you may have. lfthere are none, I'll turn it over to Mr. Nino to address the planning issues. CHAIRMAN COLETTA: Yes, there is questions. Page 21 June 22, 2007 MR. WHITE: Yes, sir. CHAIRMAN COLETTA: We'll start with Commissioner Fiala and go to Commissioner Halas. COMMISSIONER HALAS: I'll wait until I hear all sides of the story here. Thank you. CHAIRMAN COLETTA: Okay. COMMISSIONER FIALA: Yes. I've talked with the petitioner previously. And you have mentioned the retail and you've mentioned hotel. He told me convention center for boat shows and car shows and things like that. MR. WHITE: I believe that those are ones that would take place in the adjacent marketplace structure. We would support those by having, to some limited degree, a coordination of the hotel in conjunction with those types of activities. COMMISSIONER FIALA: So this is strictly going to be a hotel? MR. WHITE: No, ma'am. There will be the additional retail. And I can let the applicant, Mr. Basik himself, give you the specifics. COMMISSIONER FIALA: I'm trying to figure out exactly what we're talking about because you're already -- you're talking about, as we go through here, a failing road. It's repeated over and over again. This does not qualify for commercial zoning. It says this is yielding an operating level of service "F". This will add trips on an already failing link of road, which is my pet problem with anything. MR. WHITE: I understand. COMMISSIONER FIALA: Ifwe approve things on an already failing road, knowing full well it's already failing and knowing full well the state is only just looking at it now -- heaven only knows when they're going to widen it. What kind of a disservice are we doing to the people in the area? That's my big concern. Again, it says with already adding trips Page 22 June 22, 2007 on an already failing link and lacks specificity. There were many things, but mostly the road and what you're going to have here and what that will do to the area. And nothing that you've said -- and I understand that this would be nice for -- for a convention center to house the people that are going to be coming in and displaying their things, but will that road accommodate it? That's my big concern. MR. WHITE: I believe we can explain and put on the record a way that demonstrates how -- when those impacts are to occur that we would have provided, in conjunction with other landowners along the corridor going back to 951, the necessary infrastructure. COMMISSIONER FIALA: Well, if it were ten years down the road -- speaking literally down the road, when the road is widened, maybe then it would work. MR. WHITE: Commissioner, I'm confident that the county's rules that are now in place are ones that would prevent us from ever being able to have those impacts occur until that time. I'm going to let Mr. Jarvi when, hopefully, he gets up here, tell you some of the details of how we are now this far in advance of those anticipated impacts actually working to address those concerns today. COMMISSIONER FIALA: Let me ask you one more question then. It says: No building shall exceed a height of 35 feet. Is that from ground level and is that to the very top? MR. WHITE: That wouldn't be actual height. I believe that's what the LDC calls zoning height. COMMISSIONER FIALA: So, in other words, they could be 50 feet tall, 55 feet tall? MR. WHITE: I don't know what the elevation for basic flood elevation is on the site. COMMISSIONER FIALA: I would like to know that answer before we finish. Thank you. MR. SCHMIDT: Page 23 June 22, 2007 MR. WHITE: I'll hopefully be able to give you that by the time we're done with the presentation. But as to your initial question about the type of uses, those are ones that, I believe, are considered as part of the final plan of development using this land in conjunction with the existing commercial. COMMISSIONER FIALA: Okay. And I'll just say, I like what they're trying to do. It's just I'm very, very concerned with a -- with a failing road, level of service "F" and piling more of anything on it. Thank you. MR. WHITE: Thank you, Commissioner. CHAIRMAN COLETTA: Commissioner Halas. COMMISSIONER HALAS: I said I'll wait until I hear staffs review. Thank you. CHAIRMAN COLETTA: That's right. You did, sir. Please continue with the presentation. MR. WHITE: Ask Mr. Nino to come forward at this time and give you his presentation on land use planning. MR. NINO: Good morning, Commissioners. Ron Nino, for the record, with Vanasse and Daylor. We've been involved with this project for a number of years. We filed our application in 2005 -- April of2005. We filed an application that had been previously recommended for approval by your staff and by the planning commission. And for that reason we have the C-4 and C-5 classification and 75,000 square feet because that came out of a recommendation. And it was quite a surprise to us when we got a negative -- a negative staff report saying the C-4 and C-5 is too intense and the planning commission felt the same way. At that point in time we consequently said, hey, you know, we do have other uses that came on board following our -- the submittal of our application. For example, when we submitted the application, we didn't Page 24 June 22, 2007 appreciate the fact that a two and a half acre lake was going to be required on the 9.7 to accommodate the water management requirements of the -- of the commerce center on the property. So, in fact, we're now down to a seven and a half acre parcel of land. And obviously it became apparent that we couldn't really, for all practicality, build a 75,000 square foot. We made the adjustment accordingly. And, again, as I said, had we known the planning commission had those perceived intensity issues, we would have asked for C-3. Because, quite frankly, C-3 does take care of all the commercial uses that normally fall within the typical shopping center kind of development, with the exception of the hotel. Your staff has indicated that it has a problem and feels our market analysis was inadequate. We disagreed with that. You know, we -- we showed -- I think we showed that there are currently by way of approved PUDs within three miles of the property -- approved PUDs that have now 6,000 approved housing units. And -- and we know that since the filing of that application one of those applicants that was previously approved for 654, that's the Naples Reserve, is now asking for nearly 1,100 acres -- another 1,100 dwelling units. Our market analysis is based on the premise that by the year 2015 there will be 10,000 households within three miles of -- within three miles of the subject property. Now, I ask you, Commissioners, in 2015 do you believe that there won't be or do you for one minute believe that there's not going to be 10,000 households in this area? There's now five. It's approved for six. It's approved for close to seven. And I can tell you that -- from the basis of my experience in doing market analyses -- and I do have some training in doing market analyses. I have taken course work at the University of Wisconsin specifically dealing with the techniques for doing market analyses. 10,000 households will support a shopping center of 150,000 square Page 25 June 22, 2007 feet. So that's a given. I don't believe that our market analysis for one minute is inadequate. In any event, a market analysis is not the total reason why you should or should not amend the comprehensive plan. The market analysis for all practical purposes -- technically, it really should be a requirement made on that at the time of zoning. Because a comprehensive plan application really is nothing more than, hey, if we had our druthers, do you think this is a good place to have commericial development? It's a very conceptual, broad perspective that says this land ought to be developed for commercial. And how it comes out of the ground is determined at the time of zoning. And you have all of the ability in your bag of regulations to ensure that the development is ready to come forward, the timing is appropriate. And the market analysis is an aspect of timing. So the appropriate time to get really upset about it or concerned about market conditions is really at the time of zoning when the project is ready to come out of the ground. Infrastructure. There's infrastructure there. We certainly have the infrastructure. We have sewer and water. And the big bug-a-boo is always compatibility. Is it compatible with its environment, with its surrounding? I suggest to you that we are compatible. We're next to agricultural zoning and we're surrounded by commercial zoning on two sides. I don't know how you can argue that we're not compatible or that commercial development would not be compatible. Staff is going to tell you, well, this property could be developed by conditional use. It could be developed by a church or a daycare center or a nursing homes. Now, I suggest to you that with an 85,000 square foot commercial development that on a Sunday is going to attract upwards of three to 4,000 vehicles that that is not the kind of use that I would want next to a nursing home, nor is it the kind of use Page 26 June 22, 2007 that a church would probably want. And there are very few churches to go around. This is not an appropriate piece of land that should be developed for residential purposes. All we ask you to do is transmit the application. And I'm sure that during the approval process we can assure the planning commission that it will be a project that is done properly. It will have the appropriate regulations in it. And, furthermore, you have all the ability to ensure that what we say, in fact, happens at the time of zoning, including the issue of concurrency, which Reed Jarvi will speak to you about more specifically. Thank you. If there are any questions I can answer, I will be more than happy. CHAIRMAN COLETTA: Commissioner Halas has some questions. COMMISSIONER HALAS: No. I'll wait until after staff gets done. Let's do this. I'll take my light off. CHAIRMAN COLETTA: That makes it a little bit easier. I won't bother you again. When you turn on your light, I will think it is a mistake. Yes. Please continue. MR. JARVI: For the record, Reed Jarvi, Civil Engineer, Professional Engineer with the firm of Vanasse Daylor. We prepared the transportation impact study for this particular project. Before I go over that, I want to talk briefly some about the comprehensive plan and about the traffic theory in general. As Mr. Nino expressed, there are several thousands of units in this -- the immediate vicinity of this project. We've talked at the board before about commercial versus residential and about attractors versus generators. The residential uses in the area are actually generators of traffic. The commercial uses and some industrial uses and those type of things Page 27 June 22, 2007 are really attractors. So the people out there are going somewhere for their commercial uses, Fiddler's Creek, Naples -- Reflection Lakes. Others in the area are going someplace for various commercial uses. So they're on the road now. Those same trips instead of going two or three or four or five miles might go one or two miles on the road. So it actually -- putting commercial in outlying areas services the people. This is very similar to discussions we've had in the past with Golden Gate, not dissimilar to the discussion you had just on the one prior. That commercial uses service the people in the surrounding area. It would be unlikely for this particular petition that somebody in Naples Park would drive all the way down to it to use the commercial facilities. So it really is a regional area or very relatively compact area that is going to take the majority of the trips here and they're already on the road system. Also, I note Commissioner Fiala had expressed a concern with traffic in general on this road. Two things to note there is, one, the reason it's not -- it's overcapacity from a concurrency standpoint is that we have vested trips out there on the land -- on the road segment. Yes, those trips may be there at some point in time, but we all know that the residential component of our county has essentially stopped at this point in time. That the trips we have projected to be out there aren't there today. It's roughly 60 percent of capacity, not 120 percent of capacity. That's reality today. Our system says we are looking at the future. And that's true. We should do that when we're doing SDPs and plats because we don't want to overburden the people that are out on our roads -- excuse me -- now and that live here. But this is something in the future. It mayor may not happen. That 40 percent happens tomorrow, it may not happen for 20 years. We don't know what the economy is going to do. We don't know if Page 28 June 22, 2007 people are going to move out there. So I think from a comprehensive plan perspective, it's a little shortsighted to use concurrency arguments on something we don't really know what's going out there. The last thing to tell you about is there is a consortium that's effectively called U.S. 41 developers consortium, which is addressing some of the issues out on U.S. 41. As was noted, the state's not looking at this in the near term. In fact, it's not in the five-year program. It's not in the ten-year program of the state. The county is not looking at it. Ifwe do seriously have a concurrency problem out there, we should be looking at that. No one at the government level is looking at funding and expansion of 41 in this area. However, there is a group of various developers in the area that are actually looking at that. They've had a year, year and a half worth of conversations with the transportation department. They've met with at least some of the commissioners to talk about the general idea of what they're doing, proposing to do. And they're proposing to do a developer's contribution agreement. The Basiks on this project, and the ones adjacent to this and this particular project, have joined the consortium to help that expansion of 41 and help the traffic problem. If they don't have a project, obviously they can't help as much as they would if they do have a project. But the developer group -- a privately-funded group is working with the county to help solve the problem that the government is not addressing. So those couple of things, I think, are important. Now I'll address briefly the staffs comments. And I know you know this, but basically capital improvement element 1.1.2 -- CHAIRMAN COLETTA: I'm going to interrupt you, sir, just a moment. Forgive me. Commissioner Fiala has to leave in a few minutes, so I'm going to allow her to ask you some questions. Page 29 June 22, 2007 MR. JARVI: Sure. COMMISSIONER FIALA: Real quickly because I only have a few minutes left. I'm so sorry. You said today -- you mentioned today that the road -- the road capacity. Yet, of course, it's been mentioned before you, 6,000 more are already vested to come in there. So today's figures, knowing that there are 6,000 more, I think should not be used, being that we know what else is coming right on the heels of this. The second thing is you said people wouldn't be coming from all over the county, like why would anybody from Naples Park be coming. But that's exactly what they're building there is a -- I don't want to sayan attraction, but I will. To have boat shows and car shows. They're hoping to get people from all over the county and outside the county to attend these major events and probably concerts and so forth. They're going to want people from all over the county, not just from that general vicinity. So they're going to be generating a lot of traffic not in that area. So I just wanted to put that on the record. MR. JARVI: Yes, ma'am. If! could address your second comment first. Actually, the flea market, the convention center, whatever we want to call it, is the portion to the northwest of this particular project that is already approved and -- COMMISSIONER FIALA: I know that. MR. JARVI: And is part of the vested traffic. So I'm saying for this particular parcel, they're looking at uses that would be attractors for that same parcel. This is support -- if those people are coming to that convention center, they may have some kind of thing that they go next door to. But this particular parcel is not attracting the regional traffi c. And to address your first comment that said those people in Fiddler's Creek, primarily 6,000 units, whatever the number is these Page 30 June 22, 2007 days, they are going shopping somewhere. There is very limited shopping available in this corridor. Wal-Mart essentially is the only one in the southeast corner. There is a Publix on the northwest corner of 951 and 41, but there are limited shopping abilities and certainly limited from a local standpoint for this area. This will provide an outlet for them. Instead of going west on 41, they may go east on 41 to go to this parcel. So this will actually service the people in the general area, not -- not the long-term trips. Because the nature of the uses aren't such that they would be a Target or a Lowe's or a more regional type basis. COMMISSIONER FIALA: Reed, I'm sorry. I don't mean to be rude. I must leave. Thank you. I'm sorry. (Commissioner Fiala left the boardroom.) MR. JARVI: To finish my presentation -- and I'm just going to say stuff you already know. But, excuse me, capital improvement element 1.1.2 talks about -- and transportation element 5.1, they basically say the same thing. It says you shall not approve unless. And they give you the unless you have specific mitigation. And I think in this particular case we have specific mitigation. We are part ofthe consortium that is helping to -- or at least hoping to improve the U.S. 41 road system. That will be coming to you in hopefully the near future. We've been talking, like I said, to the transportation group for roughly a year and a half to try to formalize or finalize the proposal. We've gone through several gyrations to get to where we are now. And we are getting close to having a formal DCA provided to the commlSSlOn. So I think this developer specifically is being part of the solution for the area and the road problem. The impacts -- although they are technically not as bad as they look because it is an attractor versus a generator. With that, I'll close my comments. And if I can answer any Page 3 1 June 22, 2007 questions specifically, I'd be glad to do so. CHAIRMAN COLETTA: Sure. Commissioner Halas. COMMISSIONER HALAS: Staff hasn't given their presentation. CHAIRMAN COLETTA: It's working. Do you know how quiet he has been? Just give him the opportunity. MR. WHITE: Just to reserve some time to address and wrap up any questions. CHAIRMAN COLETTA: Do you have any questions of Commissioner Halas? MR. WHITE: What's it going to take? MS. MOSCA: Good morning, Mr. Chairman, Commissioners. For the record, Michele Mosca with your Comprehensive Planning Staff. Commissioners, this is not a question about viability of a site and what's going on that site. It is a question of the appropriateness of the use on that particular site. The proposed subdistrict is inconsistent with the intent of the rural fringe mixed use district, specifically the locational criteria for commercial. Within the receiving lands the commercial is only allowed in the rural villages. As you can see on the map in the green area, the subject site is within a receiving area that's slated for approximately one -- well, it's one rural village with up to 2,500 acres. That potentially could yield a 250-acre village center, which equates to approximately 750,000 square feet of commercial at that location. In addition, there's neighborhood centers allowed. And the neighborhood centers could be ten acres in size, roughly 34,000 square feet. And, again, look at that green area. A half -- additionally, with the commercial surrounding the property, if you look a half mile to the southeast, the C-3 area, there's Page 32 June 22, 2007 approximately four acres of commercial. To the southwest you have approved Fiddler's Creek development with over 225,000 square feet of commercial approved there. Further up on Tamiami Trail you'll see the C-2 parcel approximately 15 acres. If you -- if you extend further up Tamiami Trail, you'll see the activity center. There's approximately 185 acres available for commercial development. Within that activity center already there is a large shopping center which contains a food store, a Publix. There's also restaurants, retail. There's banking. Also property to the south there's a Winn-Dixie plaza. So, as you can see, there's an abundance of commercial in the surrounding area, both approved now and in the future with the rural village. The proposed subdistrict is inconsistent with policy 5.1 of the transportation element. There are no scheduled or funded improvements within five years. Finally, I would like to stress that the subject site is within the agricultural rural designation. There are many uses for the property that they could develop now consistent with that designation. Again, it's not an appropriate location for the expansion of commercial on that adjacent site. What I'd like to also remind you is that the CCPC or the Collier County planning commission recommended that this petition not be transmitted to the DCA with a vote of five to one, with one abstention. And, lastly, I want to keep this quick and brief. There were two letters of opposition. One from Tabatha and Steven Stadler and one from Robert and Sally Ploski. Thank you. CHAIRMAN COLETTA: Okay. MS. MOSCA: If you have any questions. COMMISSIONER HALAS: Let Commissioner Henning go first. CHAIRMAN COLETTA: Commissioner Henning, Page 33 June 22, 2007 Commissioner Halas said you can go first. COMMISSIONER HENNING: Point out the Fiddler's Creek commercial designation. MS. MOSCA: There's also a piece of Fiddler's Creek. Fiddler's Creek actually has internal commercial, as well as on 41. You'll see that orange area and -- COMMISSIONER HENNING: Just on 41. That's the only question I have. Please show me -- okay. How many acres is that? MS. MOSCA: That's roughly, I believe, somewhere around eight. Seven or eight. I could be off. COMMISSIONER HENNING: Is that within their DRI? MS. MOSCA: That is. COMMISSIONER HENNING: Okay. Thank you. MS. MOSCA: You're welcome. CHAIRMAN COLETTA: Commissioner Halas. COMMISSIONER HALAS: Thank you. I look at what staff has presented here in the documentation and it says the average daily potable water demand for project is projected at 43,000 gallons per day. And obviously now they've changed this so that we're going to have a hotel. So obviously it's going to be even higher usage of water. And then there's -- there is no means for putting -- at this point in time bringing utilities down in that direction for wastewater. So I have some concerns on that. I think they're talking about that could reach -- what is it -- wastewater treatment, around 35,000 gallons per day with a potential to reach 122,000 gallons a day. Also, we talked that -- we all know -- most of us here sit on the MPO board. We have been after the state of Florida to address the problems on U.S. 41 and there is nothing in the plan for at least five years or beyond for U.S. 41. MS. MOSCA: That's what I'm told by the transportation department. Page 34 June 22, 2007 COMMISSIONER HALAS: And right now with the amount of -- the development that's already on this segment of road is failing. Why would we want to even look at -- at this point in time to even look at the possibility of adding additional traffic onto this area or even at this point in time? I think this is way too premature until we find out exactly what the transportation portion of this is going to be. Also, I think you stated the proposed subdistrict is inconsistent with the intent of the rural fringe mixed use district, specifically the commerciallocational criteria. Commercial development within the rural fringe mixed use development may only occur within rural villages located or designated receiving lands. The proposed subdistrict adds additional -- circumvents the established development guidelines of the rural fringe mixed use development. Then it, I believe, under -- and this is all on page 12 under what I call item eight. The proposed project is located in an area that contains sufficient -- significant vested approved development that will add trips that are already in a failing link. There are no scheduled or funded improvements within the five year planning program, as I stated earlier. So is that true? MS. MOSCA: Yes, it is. According to transportation staff and the other items supported by comprehensive plans, yes. COMMISSIONER HALAS: At that, I'm going to make a motion that we not transmit this. CHAIRMAN COLETTA: We have a motion by Commissioner Halas not to transmit. Do we have a second? (No response.) CHAIRMAN COLETTA: I'm going to make that second so we can keep this discussion going forward. I am concerned -- not concerned about the sewer and the water Page 35 June 22, 2007 because we have a requirement that they have to meet that at the time of the PUD. There is no way around it. I am concerned about the transportation element. I can't see how anybody can explain away the lack of adequate planning to be able to meet the transportation element. Any other discussion? Commissioner Coyle. COMMISSIONER COYLE: No other discussion. I'd just like to make a request that -- of you, Mr. Chairman, in could just ask a question of staff after the vote is taken. CHAIRMAN COLETTA: Of course you can. MR. WHITE: Mr. Chairman, there's a couple of, I guess, procedural concerns at this point. Obviously we don't have a full board. I certainly don't want to anticipate how individual commissioners are going to vote in this matter, but I believe that it may make some sense for us to have the opportunity to have Commissioner Fiala present. And, Commissioner Henning, if you have some thoughts on that, I'd be certainly happy to entertain them. COMMISSIONER HENNING: Yeah, I have a question. Hearing Commissioner Fiala's comments, is there anything that she said that may give you the indication she's going to support this petition? MR. WHITE: That is the $64,000 question. But what I'm attempting to do is to find an opportunity to give us the ability to explain to the commission how we believe we've met those things and potentially have her come to seeing things in the way that I believe -- we think makes not only long range transportation planning sense, but also land use sense. COMMISSIONER HENNING: Okay. But didn't you explain during your presentation? MR. WHITE: Yes, sir. Page 36 June 22, 2007 COMMISSIONER HENNING: So what would change Commissioner Fiala's stance if -- or what do you think her comments were -- where she was going to go with it? MR. WHITE: At this point I just feel that as a procedural matter COMMISSIONER HENNING: Okay. MR. WHITE: If the board wants to vote. CHAIRMAN COLETTA: Let me do this. MR. WHITE: That's fine. I don't know, based on your comments, it makes any sense to even address those that the other commISSIOners -- COMMISSIONER HENNING: I understand procedural. CHAIRMAN COLETTA: Thank you for bringing that up. I'm going to allow my fellow commissioners, if they so wish, to comment on that. COMMISSIONER HENNING: Yeah. I have a problem with the perception or the petitioner's comments about procedural matters under this petition. Because the bottom line is ifthere's not enough votes to carry it -- and even though I have a different perception of Commissioner Fiala's comments, it looks like it won't be transmitted, unless we transmit it and allow the full board to make its final recommendations at the adoption hearing. CHAIRMAN COLETTA: Ifwe do that, Commissioner Henning, then we really should be transmitting -- COMMISSIONER HENNING: Everything. CHAIRMAN COLETTA: -- everything and forward them on as long as a commissioner is not here. COMMISSIONER HENNING: Right. Well, I agree. I think the public deserves the attention of the full board, especially on these particular issues. CHAIRMAN COLETTA: And you make a good argument. I drop my second, as far as the rejection of transmittal. Page 37 June 22, 2007 So is there a second for Commissioner Halas' motion? COMMISSIONER COYLE: Well, what is it you intend to do, I guess, is the question? What is the alternative? CHAIRMAN COLETTA: Well, to transmit it and then when it comes back, have a full board sitting here to be able to weigh it out. COMMISSIONER COYLE: Well, I'm not -- if you don't mind an observation before you go there. I would -- under those circumstances, I would second Commissioner Halas' motion to deny. And then if it is a split vote, it fails -- his motion fails. And then there's no alternative vote that's likely to get sufficient support, so we're sort of stalemated and this whole thing goes away. Now, the Basiks have been working a long, long, long time on this project. But, as I have told them, I am very, very uneasy considering and approving a project that has undergone dramatic revision after the CCPC meeting. And if we're going to bring it back, then my preference would be that we remand this to the CCPC and let them consider it again and go through the process. Consider the changes that are being proposed here, since they are significant, and then to advise us as to whether or not they think that is an improvement. But to have it to come back to us at some point in time I think does not rectify the problem of circumventing the CCPC. COMMISSIONER HENNING: I believe that the process does allow the planning commission to give recommendations to the board of commissioners when it comes back from DCA. That's my understanding. We'll have to correct -- get that determination from either the legal department or planning. COMMISSIONER COYLE: If you can get the legal representative to listen to you. COMMISSIONER HENNING: Maybe David Weeks is Page 38 June 22, 2007 listening. CHAIRMAN COLETTA: David Schmitt is listening. Question. Commissioner Henning just asked a question. If this is transmitted, does it go back -- it goes back to the planning commission one more time; is that correct? MR. WEEKS: That is correct. I apologize. CHAIRMAN COLETTA: That would happen. Now, how do you feel? Based upon what I heard -- I mean, if I had to make the final decision today, I would probably be in the negative because of the transportation. However, that being -- we have four commissioners sitting here when we have five commissioners total. So there is an element of fairness, as Commissioner Henning brought up. COMMISSIONER COYLE: Well, let me ask the question I was going to ask after we take this vote. How can we legally transmit anything for approval when we do not have a financially feasible capital improvement element? It's my understanding that by Florida law we cannot do this, unless we have a financially feasible capital improvement element. And we're not likely to get one ofthose for some time. Now, this doesn't apply just to this petition, but to all of the others. The question was asked by the petitioner -- you make these determinations at the time of the PUD consideration or sometime later in the process. Well, that's what got us in this problem in the first place. Not being concurrent and not having a financially feasible capital improvement plan. So I don't know how we do that and I haven't gotten an adequate answer to that question. But for that reason and for others, I will second Commissioner Halas' motion to disapprove. COMMISSIONER HENNING: Okay. Commissioner Coyle, can I ask a question, if you don't mind? Page 39 June 22, 2007 It's my understanding that we submitted a plan, in particular a transportation plan, that was not financially feasible. We knew that when we submitted it. COMMISSIONER COYLE: I didn't know that. COMMISSIONER HENNING: Since then we corrected it. COMMISSIONER COYLE: I didn't know that. I don't think we corrected it. The DCA -- COMMISSIONER HENNING: We had a $180 million shortfall. I think that's what was submitted to DCA, Mr. Schmitt, Marjorie. But since then, during a public meeting, we have recognized that we're not going to build County Barn Road. We've recognized other things. But I don't believe -- that was submitted to DCA. I could be wrong. COMMISSIONER COYLE: The problem with the transportation plan is it depends upon a loan of about $50 million. If we don't -- if we're not able to loan that money essentially from the general fund, there are substantial revisions that have to be made to that. And, as the petitioner has pointed out, there are developer contribution agreements which can substitute for that shortfall. The problem is we don't have the agreements yet. We don't know who is going to build what and how much. There's nothing on paper that we have accepted. And the -- the DCA has not been presented with a capital improvement plan which they can consider to be financially feasible. We might be able to do that in the next two or three or four months, but I don't believe it exists right now. In any event, I just thought I would ask that question because it's a question that we've got to answer pretty soon. MR. WHITE: Mr. Chairman, in may respond to the board's discussion. CHAIRMAN COLETTA: Go ahead. MR. WHITE: That is the question of not only the day, but the Page 40 June 22, 2007 years ahead. And it begs the question of what the philosophy of the board is going to be with respect to how it sees long range transportation planning and land use planning. We're proposing in what are, I think, most equitable circumstances for land that didn't get caught up because of the scale of the land use consideration for proper consideration as receiving in a process where the adjacent lands are already participating in, because of their SDP status, the DCA discussions. That is the legitimate, lawful -- and I meant developer contribution agreement. That is the legitimate and lawful mitigation and stipulation that your comprehensive plan allows for. If you do not allow this petition to go forward, at least through transmittal, you're effectively saying that there is no opportunity to coordinate long range transportation planning on the part of the private sector with that of the public entity. And that, to me, just isn't a way that sends the proper message about how to get to the end of the road of these issues. We believe that by doing a transmittal today you give us the opportunity to participate as part of the solution, rather than to perpetuate the problem. Thank you for the opportunity to comment. CHAIRMAN COLETTA: Thank you, sir. With that, we have a motion on the floor by Commissioner Halas to not transmit, a second by Commissioner Coyle. With that, any other discussion? Yes, Marjorie. MS. STUDENT-STIRLING: Yes. I need to just clear up a procedural matter. Did you not, for purposes of discussion, second the motion -- Commissioner Halas' motion? COMMISSIONER COYLE: He withdrew his second. MS. STUDENT-STIRLING: Okay. Thank you. Ijustwanted to make sure that was done. Thank you. COMMISSIONER HENNING: You guys have got to quit talking over there and listen to what's going on up here. Page 41 June 22, 2007 MS. STUDENT-STIRLING: We were talking about procedural matters. CHAIRMAN COLETTA: Great. Thank you. With that, we'll take the vote. All those in favor of the motion not to transmit indicate by saying aye. COMMISSIONER COYLE: Aye. COMMISSIONER HALAS: Aye. CHAIRMAN COLETTA: Opposed? COMMISSIONER HENNING: Aye. CHAIRMAN COLETTA: Aye. So it's a split vote. So it's, for all intents and purposes, over. Thank you. Item #2H CP-2005-l1: RURAL-INDUSTRIAL DISTRICT MR. WEEKS: Commissioners, the next petition is CP-2005-11. Petition requesting amendment to the future land use map to change the designation of the site from rural fringe mixed use district receiving lands to rural-industrial district to allow for approximately 500,000 square feet of building space for warehouse and manufacturing uses for the property located on the north side of U.S. 41 East and 1,000 feet west of Trinity Place, Section 18, Township 51 South, Range 27 East consisting of approximately 42 and a half acres. MR. FERGUSON: Thank you, Mr. Chairman, Commissioners, thank you. For the purposes of the record, my name is Tim Ferguson. I represent the petitioner. What I'd like to request we do right now -- since we'll get our fifth commissioner back and we can continue so that we have five. And I'm sure we will make it by lunch on our petition. That we take a Page 42 June 22, 2007 break until such time as Commissioner Fiala returns. CHAIRMAN COLETTA: Okay. COMMISSIONER HENNING: I agree with that. COMMISSIONER COYLE: It's time for a break anyway. CHAIRMAN COLETTA: We can take a ten-minute break. I don't think Commissioner Fiala is going to be back until 11 :00. I, myself, feel very uncomfortable conducting this with four commissioners. Did you want to continue this item? COMMISSIONER COYLE: If you're going to continue this one, you have to continue all of them because we've got more right behind it. I would suggest we take a 30-minute recess. CHAIRMAN COLETTA: Okay. COMMISSIONER COYLE: And then at 11 :00 maybe we can phone down and contact someone on the canvassing board and find out when that canvassing board meeting is going to be over. COMMISSIONER HALAS: She said 11 :00. COMMISSIONER HENNING: And, more importantly, if they have a majority down there, why does Commissioner Fiala have to stay there? I know it's important, but so is the board's business. CHAIRMAN COLETTA: Ms. Filson -- COMMISSIONER HENNING: Go down there and drag her out of there. CHAIRMAN COLETTA: You might get arrested. You know, the constitutional officers stick together. Commissioner -- excuse me. Ms. Filson, would you be so kind as to check with them and see? MS. FILSON: I will. CHAIRMAN COLETTA: Why don't we do this. Instead of planning right to 11 :00, let's figure on being back here at ten minutes of. COMMISSIONER HALAS: The idea that maybe she'll be here Page 43 June 22, 2007 a little bit sooner. MR. FERGUSON: Thank you. CHAIRMAN COLETTA: Thank you. (A recess was held from 10:27 a.m. until 10:50 a.m.) (Commissioner Fiala returned to the boardroom.) CHAIRMAN COLETTA: Ladies and gentlemen, just so we set the record straight. We have Commissioner Fiala back. We're ready to go. I also want to note that my -- thank you for that. My time certain that I had for the meeting in Bonita Springs for the transportation authority, I served notice to them that I won't be there. So we'll be able to continue this and hopefully get it done. MR. WHITE: Mr. Chairman, I apologize. Patrick White again for the record. In regards to the last petition, because we had a two-two vote on a motion to deny -- and I apologize, Mr. Ferguson, for taking up your precious time. I hope this will be quick. My clients have asked me to -- in the interest of having the full board vote on the matter, if you would -- and before you move to the next item on the agenda, I believe the opportunity exists to have a vote by the full commission on any motion that you may consider to be appropriate based on the idea that the prior vote and motion on a two-two vote was effectively a nonaction. If the county attorney's office acquiesces to that point of view procedurally, I would like to make that request. And I apologize for it being so belated and untimely. CHAIRMAN COLETTA: I think your request is reasonable. County attorney's office, would you comment on that? MR. WEIGEL: Yes. Thank you. David Weigel. The board had not proceeded to the next item. You have taken a vote. It's a two-two vote. And the board does remain with the prerogative to take another vote, though it would have Page 44 June 22, 2007 to be a different motion. That motion has been had by this board with a sitting majority at that point in time. So, as Mr. White indicated, if the board wished to entertain a different motion, then the previous motion, which, I believe, was a motion to deny, it could exercise that prerogative, if you wish to do so. That's all. CHAIRMAN COLETTA: For Commissioner Fiala's sake, when you left there was quite a bit of discussion over whether we should proceed with only four commissioners. It was questioned by a couple of people about how the fairness of it might not be there, even though we thought we had the sentiments of your feeling on that particular item. With that now we're back to possibly reconsidering and voting on it again so we can have -- we had a split vote. And the idea being that the split vote was that -- Commissioner Henning and myself did not really disagree seriously with the other two commissioners. We just thought as a procedural matter that we should move forward to transmittal because there wasn't five commissioners here. We do have five commissioners here now. And I would like to -- we have to make a motion first to -- to reconsider; is that correct? COMMISSIONER HENNING: I don't believe so. CHAIRMAN COLETTA: No? MR. WEIGEL: No, this is not a reconsideration. The two-two vote, you don't have that option. That vote to deny is a vote on the record. But a different kind of motion could be entertained. And this you run into from time to time in normal proceedings where a motion is taken and fails for one reason or another and you take another motion and it may succeed. And that's exactly -- CHAIRMAN COLETTA: So you can have -- the first motion was to deny transmittal. So then the next motion would have to be to approve transmittal; is that correct? Page 45 June 22, 2007 MR. WEIGEL: That's correct. CHAIRMAN COLETTA: Now, this is going to be strange. COMMISSIONER HENNING: I would concur. CHAIRMAN COLETTA: We do have five commissioners here. MR. WHITE: Yes, sir. I understand. CHAIRMAN COLETTA: Okay. To make a motion for something you're probably going to vote against is really going to be strange. I'll make a motion for transmittal. COMMISSIONER HENNING: I'll second it. CHAIRMAN COLETTA: So I have a motion for transmittal by Commissioner Coletta, a second by Commissioner Henning. Discussion? (No response.) CHAIRMAN COLETTA: Hearing none, all those in favor of the motion signify by saying aye. COMMISSIONER HENNING: Aye. CHAIRMAN COLETTA: Opposed? COMMISSIONER COYLE: Aye. COMMISSIONER HALAS: Aye. CHAIRMAN COLETTA: Aye. COMMISSIONER FIALA: Aye. MR. WHITE: Thank you, commissioners. CHAIRMAN COLETTA: Let the record show that the vote was four to one with Commissioner Henning being the dissenting vote. MR. FERGUSON: Good morning. Again, for the record, Tim Ferguson, CP-2005-11. I'm going to make some brief comments. I've got stuff from Vanasse and Daylor that you've already heard from. We're going to try not to repeat some of the things that you've heard. Back in 1975 -- I wear two hats today. I have a master's degree in planning, as well as my law degree. So I know a little bit about Page 46 June 22, 2007 both sides. Plus, I've lived in Naples all my life, seen the growth patterns here and I've got some comments to make. Back in '75 we passed a comprehensive planning act. In '85 we put teeth in it. In '90 we were required to adopt it. Concurrency was placed where it was so that you could do long range planning and decide where things should be, okay, and then have the opportunity to grow the area like you want it to grow. And if infrastructure wasn't there at the time, that's where concurrency is supposed to be put in. One of the axioms that we learned is if you fail to plan, you plan to fail. Our petition is a little bit different than the last one because we're asking for light industrial. And, Commissioner Fiala, I want to address a comment that -- a concern that you had when I met with you. We want service industrial. We do not want heavy industrial. You had asked me how are we going to make sure that that's the case. And it took a lot of thought because you have to paint the map industrial. And that doesn't say light or heavy or what. It says industrial. But what I'm prepared to do after you transmit it -- and hopefully you do. When it comes back, if you approve it, we'll give you a deed restriction. We'll make a deed restriction to the property that says it can never be used for heavy industrial use. And we'll record it the day you approve it. So that there's no way somebody is going to come back that owns it later that's going to be able to do that. So I just wanted to address that concern for you. COMMISSIONER FIALA: Uh-huh. MR. FERGUSON: Basically what we're asking for is light industrial to service what is, in essence, already a rural village that's planned. Now, staff made -- staff took a lot of time to develop this rural village districts. And they decided that in a rural village district you Page 47 June 22, 2007 have to have uses, all right? You're going to have to have uses that service people. And in Collier County, as it stands, we have individuals that live way out on the East Trail that get in their cars and drive all the way to Airport Road and pick up their lawn trucks and drive all the way back out to Fiddler's Creek and cut the yard, drive back, pick up their car and drive back out to the East Trail. That's about a 50, 60-mile deal. It's all on these roads. It's a burden on these roads. It's trips. They're already cutting that grass out there. What we're asking for is light industrial warehouses that are -- if I can point to it. That are right beside the cement plant right in the middle of that bulls-eye where all those units are going to be. If you're going to have a use that services all the units that you've already permitted -- it's a rural village. The residential part has already been permitted. Why not have the guy drive one mile to pick up his truck, drive one mile to the house to cut the grass, drive one mile back, and one mile? Now you've got four miles, instead of 60 miles that you have to build roads for. That's called trip capture. So when we talk about this proposal, we're talking about helping your links. Because those guys aren't driving all around your county anymore. So we're actually improving on your -- your road there. We still will be willing to join the consortium of people that are -- want to improve that road. We feel like it's necessary to do that, but this project is -- is exactly like what you've planned and approved in the rural village districts. It makes a ton of sense. I don't -- I can't tell you how many times I've driven behind a lawn truck doing 30 miles an hour ten miles down the road. I don't think anybody wants to do that anymore. When I grew up in Naples, Naples had 6,000 people. That's got 7,000 units. That is Naples. That is what it was. We could have planned better then. We didn't. Today we need to think about how we Page 48 June 22, 2007 plan. Now, right now we want to plan to put industrial there. We need it. We need quite a bit of it and we've got studies to show that. And you have to ask yourself: Where does it go? Now, we're not entitled to build it pursuant to Florida Statutes 163 until the -- until we have the level of service right there. We're just not entitled to do it. That's the law. That's why it's there. But it is -- it really isn't solid planning, okay? It isn't good procedure to place concurrency before planning because you always have to plan where things go and then you have to decide how to build them and how to get the infrastructure there and everything. It becomes chaotic if you allow the infrastructure to control the planning because then you don't get to plan. And having said that, I'm going to -- I'm going to let my consultant speak to you. I'm going to reserve for rebuttal. Thank you. MR. NINO: Again, Ron Nino, for the record, Vanasse and Daylor. Commissioners, we -- we undertook a market analysis of the amount of acreage that would be required to accommodate growth in the area lying northeast of 951 and south of Alligator Alley using traditional methods, number of households, using the census, determining how many people -- how many -- what percentage of that population would be in certain industry sectors, such as those that Tim mentioned, and then transposing that into acreage required to house that many industrial employees. And we came up with a figure of 400 acres. Your staff and the planning commission did not rebut that. It was accepted. But more importantly -- more importantly to show that perhaps our analysis was somewhat conservative, I wanted to remind you that not too long ago you were presented with an industrial needs analysis by the economic development council that showed generally -- flip it. Page 49 June 22, 2007 I haven't been here too often. You have to excuse me on that. That in the area east of 951, but including all of the lmmokalee community -- in other words, that portion of the community lying east of 951 -- that the deficiency in industrial acreage in this county was really 3,600 acres. Do you remember that? And more will be said about that. I believe a representative of the economic development council is here today and perhaps she'd be kind enough to acknowledge that. The county hired an expert who came up with the vast deficiency in industrial lands. I'll ask you to take a look at -- take a look at the area lying east of 951, south of Alligator Alley. That area within the next 15 or 20 years can be expected to have a population of 50,000 -- approximately 50,000 people, approximately 30,000 households. And there isn't an industrial acre in that entire area. I take that back. With the exception of where the cement plant is, the basic drive area. There is about a ten-acre area industrially designated land on your comprehensive plan. Reed Jarvi will probably be more effective, in terms of assuring you that the creation of an industrial area there will really not have a negative impact on the highway system. And, in fact, as Tim indicated, may bring some benefits to that concern that you have for U.S. 41. I think that about covers the salient points I wanted to lay before you, i.e., the fact that this is an area that's going to have a tremendous amount of households within the next 15 or 20 years and that there is a huge deficiency of industrial lands. It has to go somewhere. And I ask you: Where is the most appropriate point location in that area? And if you really look at it and see what's going on around it, I suggest to you the only area remaining in the east of 951 corridor is the north side of Tamiami Trail between Trinity Place and Greenway. If you let that land get you by -- and that is really the purpose for long range planning. Quite frankly, I think your staff ought to initiate Page 50 June 22, 2007 a comp plan change to make sure that that land is banked. That you ought not wait for owners to come forward because those owners of that land that's becoming a very scarce resource may, in fact, proceed on a development of other than industrial and then you've lost that land. I'd be happy to answer any questions. In the meantime, I think that the traffic impacts that may result and their benefits, the best one -- Reed Jarvi ought to address. CHAIRMAN COLETTA: We have no questions at this time. Let's go to staffs presentation. MR. MEYER: Commissioners, for the record, Robin Meyer. I'm Director of Planning and Design for Vanasse Daylor. I've got over 32 years in planning. And 30 of that is in the municipal side. A lot of my work I've done over the years has been with future land use planning, actually starting out as a junior planner drawing the lines on the map up to supervising the actual rewrite of plans. I come from the state of Washington, but the state of Washington passed a growth management act in 1990. Verbatim, it was the Florida growth management act. So I'm very familiar with the process as it is in Florida, as well as here. One thing you always do when you draw lines or draw a new land use map is you take the easy things first. And the easy things first are to look at existing zoning. In this case, our property is right here. The existing industrial zoning -- the only industrial zoning in this whole part of the county is right next to us. So just from a land use planning perspective traditionally, it's the way to go. It's the way you should be looking at your future planning. And Ron hit on this. Future planning is critical. If you want to have other property owners understand what's happening around them, you need to put your own intensive uses on that map so they can adjust and put their uses accordingly. Page 51 June 22, 2007 What we're proposing, as Tim said, is really a light industrial. It's the type of use that can be buffered. So we can protect abutting properties from noise, fumes, odors, the other type of things that are considered nuisances from any type of industrial uses. But I think more important -- Tim talked about the landscapers. Well, think about it. It's not just in those industrial areas in the city right now or in the county, it's cabinet shops, mechanics, pool service, tiling, countertops, the building services in general. These are the type of guys that are going to locate here. This is where their work is. And so it just makes total sense from a planning perspective, a future land use perspective to locate these here. So I'll keep it short and brief, unless you have any questions. I'll turn it over to Reed to talk about transportation. CHAIRMAN COLETTA: Thank you. MR. JARVI: Reed Jarvi, Professional Engineer with Vanasse Daylor. Once again, we did prepare the traffic impact statement for this project. I'm going to cover some ground. Unfortunately, my predecessors have covered it pretty well, but I have to bring it up also. This use is a use that is necessary around any county or any community. This use is, as Robin just said, building services industry; cabinet makers, contractors, subcontractors, those type of people that will be building or working on existing and future homes in the area. Currently the closest industrial zoned land, short of the cement plant to the east, is White Lake Industrial Park at the northeast corner ofl-75 and Collier Boulevard. That area is approximately 11 miles from our area. So the people that are going from -- that live in the southeast portion of the county to go to work are traveling 11 miles, give or take, up, 11 miles back, doing their jobs at Fiddler's Creek or Naples -- excuse me -- Reflection Lakes or one of the other places in this general area, then turning back, going 11 miles north and going -- Page 52 June 22, 2007 coming back 11 miles south again. They're traveling 44 some odd miles, if you assume they are right at our site, versus people that would be used in the area would travel about four or five miles total. So they're doing 44 lane miles -- excuse me -- vehicle miles traveled a day versus four or five vehicle miles traveled a day on roads that, as noted in the staff report, are deficient. If we can reduce the lane miles -- the vehicle lane miles traveled by the uses, it would be a great improvement to our system. Unfortunately, when we -- our concurrency system as is designed does not acknowledge that type of interaction. It's a layering system and we add trips. And it's a false sense, but it is adding trips to what is a deficient road because it's a layering type system. I suggest that uses of this type when there are no other industrial uses of significant size within miles and miles that this would help the system, not hurt the system. Once again, I think that's an important issue. But, once again, this developer has agreed to join the 41 developer's consortium. And their point is, once again, to try to be a part of the solution. We think technically they are part of the solution by shortening the trip links in this part of the county, keeping them off 951 and portions of 41 as best we can, keeping them out of this intersection of 41 and 951. That's a positive thing. And then also by joining the consortium that will hopefully help to expand those road projects in this area that is not being done by state or local government. With that, I'll end my presentation. CHAIRMAN COLETTA: Commissioner Fiala. COMMISSIONER FIALA: Did we want to hear from staff? CHAIRMAN COLETTA: Okay. We'll hear from staff next, if you like. We have two speakers also. COMMISSIONER FIALA: Okay. MR. WEEKS: Commissioner, before Tom begins his. rfyou don't mind, I'd like to make some responses to the presentation. I Page 53 June 22, 2007 know Tom has some specific comments to get on the record. First of all, I'd like to just remind the commission that the county does not enforce deed restrictions. Certainly the applicant can do as Mr. Ferguson proposed, but the county does not enforce deed restrictions. Deed restrictions, as I understand it, are only as good as the entity that enforces them, whoever that might be. But I certainly agree with Mr. Ferguson as something either stated or implied. As you well know, at the time rezoning the intensity of use could be addressed there. It could also be addressed now, but certainly could be addressed at the time of rezoning. Lawn maintenance equipment can be stored on agriculturally zoned properties as an accessory use to a residential and certainly would address all the needs out there. But I would just remind you of what we have a lot of in Golden Gate Estates and that is houses where a person store lawn maintenance equipment, dump trucks, those type of things. Additionally, I want to point out that this site does not abut the cement's plant designated and zoned industrial as the arrow behind me shows. There is an intervening parcel. And that is one of the many staff concerns is compatibility, what is going to happen to that intervening parcel. Also, in 2003 the activity center at the north east quadrant of Rattlesnake-Hammock Road and County Road 951 was expanded by about 19 acres specifically for the purpose of allowing and addressing a need for additional acreage for contractor offices where they would have their associated storage of equipment and vehicles. And that was approved for a total of 185,000 square feet. That doesn't address all of what the applicant has mentioned, but I want to point out to you that there is some additional acreage that has been approved for those type of uses in his mind. And, finally, to remind you and stress to you that this property is located about 1,000 feet from the prior petition you just discussed. It has the same issue Page 54 June 22, 2007 with inconsistency with transportation element policy 5.1. Tom. MR. GREENWOOD: Thank you. Tom Greenwood, for the record, with Comprehensive Planning. And I'm not going to get into great detail. There's a lot of information in the staff report. What I would like to point out to you, however, is this property is also about six miles southeast of the intersection of Collier and 41. It obviously abuts a rural state -- actually, federal highway. And, again, there are, I guess, two main issues or concerns here. One, from a land use standpoint, the area in question under the present FLUM designation, which is receiving land, does allow research and technology park subdistrict, minimum of 40 acres. This property happens to be 42.5 acres. Up until a few minutes ago, I hadn't heard that the applicant was interested in deed restricting. But the reality is that the rural fringe mixed district receiving land allows technology -- research and technology parks. Basically what is that, there's about three pages of standards in the growth management plan. But basically it requires a minimum of 60 percent target industry, allows 20 percent nontarget industry and requires 20 percent of workforce housing. It's intended to be developed at a lower intensity, which is consistent with the intent of the rural fringe mixed district, which is really intended to act as a transition between the urban developed area, the areas that you've already got developed or invested already, and the edge of our area which is basically the rural lands to the east. As Mr. Weeks pointed out, the area in yellow is the 42.5 acres. The area to the east -- and it's not directly adjacent to the subject property. It's removed by about 300 feet. It's presently zoned industrial and it's on the FLUM map as industrial. It's the only industrial out in that area along Tamiami. The existing uses that are there in that existing industrial park include Cemex, which, I believe, is a concrete products manufacturer, Page 55 June 22, 2007 an RV -- I think it's storage for RVs, and I think it's a used car or parts -- auto parts. Sometimes people call it a junk yard. That's what's out there right now. And, again, I point this out because as Mr. Weeks pointed out is that the -- there is no necessary permanency in such a boundary as proposed. And the other -- the other point I'd like to make is that the transportation division, your staff, has recommended denial and I think you've all heard that -- that discussion. I won't get into that. I found something rather interesting though when -- I think it's the traffic consultant in the last hearing said that the actual transportation is about -- the traffic is about 60 percent of the capacity as it presently exists, but that vested rights, plus existing traffic, places that reach at "F" level. There are no funds available, as you've heard, within the next five years to upgrade that roadway. Somebody suggested that we have a lull in development right now. And, yes, that is true. Will that lull continue in the future? For awhile. I don't know when it's going to stop. I think the real question from a public standpoint -- public policy standpoint: Do we load additional nonconformance, so to speak, from a transportation standpoint on top of the existing and vested? And that's really what this would do. Bottom line is whether you have a development under the existing FLUM, which is a research and technology park or an industrial development, you're going to have several hundred thousand square feet of building space. The present FLUM requires or allows for research and technology park, which is really quite consistent with allowing many of the service industries warehousing and distribution target industries that is outlined in the research and technology portion of the subdistrict. 1 also would like to finally comment that -- as Michele Mosca pointed out -- a neighboring residential property owner, Tabatha and Steven Stadler, who live at 15009 Oak Tree Drive, sent an e-mail. It Page 56 June 22, 2007 was part of the planning commission packet that apparently did not get to you. Their concerns are somewhat like staffs; transportation, traffic, inconsistency, where does the boundary stop in the future, and that sort of thing. I also should point out that, unlike the last hearing, the planning commission actually recommended transmittal on this one. Staff, both the comprehensive planning staff and transportation, have recommended not to transmit. Thank you very much. CHAIRMAN COLETTA: Fine. MR. WEEKS: Commissioners, one point of clarification in Tom's comments about a research and technology park. That type of use would be allowed in the rural fringe receiving lands, but only as a part of a rural village. It would not be allowed as a free-standing use. MR. FERGUSON: A little rebuttal. First of all, to clarify, we -- when staff originally -- we had our pre-application meeting and staff was concerned about that 15 acres. We control that 15 acres. It isn't in front of you now because it was too late to add it. If we added it, we'd have to start over again. So we do, in fact, control all the property up and adjacent to the Cemex plant. So we can get that out of the way. When we talk about policy, we're talking about policy. And 5.1 is a policy. But when you can't -- when you can't consider trip capture in the calculations -- policy allows you to suggest that you can consider trip capture. And these trips are already on the road anyway. And unlike the commercial, nobody is going to go -- nobody is going to go from Airport Road down here to cut grass when they could just have a place there, especially with gas prices being the way they are. Who is going to drive all the way up there to get their car worked on when they can just drive over there? We're talking about your pool guy. I mean, what we need is services out there. And this reduces the Page 57 June 22, 2007 number of trips on your roads. At least the number of miles of trips, which reduces the amount of money you have to spend building roads. So I understand professional transportation, okay, but I also understand common sense. And I think that this board is entitled to use a little common sense in this case. You know, some yards -- some yard guys can park their cars. That's not where they live and they drive all the way to where they mow the yards anyway. So, I mean, as far as being able to store your trucks in your yard, I don't know about that. But the other uses -- all the rest of the uses that we're intending out there don't work that way. You're going to have a huge need. Plan for it now. We'll admit that we can't do it until concurrency, so we won't ask for rezone until it's concurrent. I mean, that's the law. So you plan now to have the service where you need it. Just because you can't build it right now doesn't mean it's not going to be needed in the future. And that's what long range planning is all about. Thank you. CHAIRMAN COLETTA: Thank you. Before we go to the speakers -- before we go to the commissioners, do you want to go first or do you want to have the speakers? MS. FILSON: Mr. Chairman, we have one speaker now. One withdrew. The speaker we have is Susi Winchell. MS. WINCHELL: Good morning, Chairman, and other members of the board. For the record, my name is Susi Winchell. And I'm an economic diversification manager with the EDC. Thank you for the opportunity to speak today. As you're aware, the EDC's mission is to retain and expand existing Collier businesses and recruit new high-skill, high-wage industries to Collier County. A vital part of our success depends on the availability of sites to locate these businesses. While we realize that the final decisions regarding growth management amendments and zoning are ultimately yours, the EDC Page 58 June 22, 2007 supports all efforts to increase capacity for business parks, research parks, and industrial parks in our county. And while the EDC will not take an official position on specific requests, we will continue to stress the need for Collier County to zone additional lands for these type of uses. As Mr. Nino stated, the land use analysis presented to the Board of County Commissioners in 2005 identified a deficiency of 3,600, plus or minus, acres of business parks, research parks and industrial lands by the year 2030. We encourage the county to continue to identify strategies and initiatives that will promote and enhance the development of well-suited employment sites for target industry, high-wage employers in Collier County. I work closely with companies who are making decisions to expand and locate to Collier County on a daily basis. And while the consultants before me alluded to uses by the service industry, the ability to provide my customers -- those who provide high-wage job opportunities -- with a choice of potential sites to locate their businesses would be a great asset. Thank you for your time and your consideration. CHAIRMAN COLETTA: Thank you. Commissioner Fiala. I'm sorry. I'm going to have you hold your rebuttals until the end. MR. FERGUSON: I'm just going to answer any questions. That's all. CHAIRMAN COLETTA: Okay. Fine. I thought you were up to make a rebuttal. Go ahead, Commissioner Fiala. COMMISSIONER FIALA: Yes. In reading this through, I had a lot of things -- a lot of flags on the field on this one. And, of course, the main one, again, is the road capacity or the lack of. And consistently throughout this entire subject, as I read through it, it continued to say, again, the problems that they're going to have on this Page 59 June 22, 2007 roadway. And there's one place in here that says that the intensity of -- heavy truck traffic and turning movements are just incompatible. It will create severe incompatibilities with the surrounding residential development. We've just heard that there are going to be six more -- 6,000 more residential units. That's 11,000 residential units. And normally what you see in an industrial area is it's surrounded by some commercial, which would then buffer from the residential. But there is no buffer here. It's going to be nestled right in the middle of all of that residential. Let me go through a couple more of these things. It's not consistent with policy 5.1, which is, of course, my big concern. Hold on just a minute. The subject application does not promote and carry out the agriculture rural land designation of the FLUE. The entire area surrounding the subject site should be developed in a low intensity fashion with or without the use of a transfer of development rights as intended by the FLUE. They say that the proposed expansion of similar industrial uses on this site may well result in the establishment of industrial uses incompatible with the immediate adjacent land to the north, east and west, and the surrounding major residential areas. And it goes on to explain what they are. And just -- by the way, they even have an eagle's nest located on the north end of their property. Plus, it's in an area where the panthers have -- have some -- where we have some concerns for the panthers. So it seems like there's nothing in here that's -- that I could vote for. CHAIRMAN COLETTA: Okay. Commissioner Halas. COMMISSIONER HALAS: Yes. Reading through this, when I look at the square footage here of 500,000, this is about half the size of what we have over there at the -- off of Naples Boulevard. And I look Page 60 June 22, 2007 at the traffic impacts there. Of course, that's commercial and we're looking at industrial. So what does industrial include here? Probably, as was brought up, people who have pool maintenance and also window glass facilities, selling glass, cabinet makers, plumbing supply places, building materials and probably towing companies, similar to what we have off of Taylor and around that general area. And as we look at the impact that's being placed on that six-lane road of Pine Ridge, I can almost see the same type of occurrence happening here on U. S. 41. And right now we don't have any major plans for expanding that road for at least probably five years or even more. We know that the state isn't even looking at this. And we're going to need a lot of funding from the state to get this taken care of. And I think that when you have businesses of this nature, they're going to travel all over down in the southeastern part of Collier County, especially when they're dealing with plumbing supplies, building materials, towing companies, et cetera. So I feel the same way that Commissioner Fiala does. I don't believe at this point in time that we need to move this project forward. CHAIRMAN COLETTA: Nick, would you come up front, please. Nick, we heard all sorts of statements that -- maybe they don't conflict. Maybe they can all stand alone on their own. But such things as the consortium that is supposedly together for U.S. 41 to be able to cover the shortfall. We heard testimony given that the -- that a lot of trips will be captured and, thus, nullifying 5.1 and 5.2 policy. Can you help to shed a little bit of light on this for us? MR. CASALANGUIDA: Sure. For the record, Nick Casalanguida, Transportation. I'll try to be brief and simple. The state quotes, "Don't approve projects on state roads and come to us for money if you can't fix the problem or expect us to fix the problems." That's a quote from the Page 61 June 22, 2007 state. Long range planning. If you put this in the future land use map, I have to include it in the model. And when I do my east of 951 horizon study and things like that, I have to put these uses in there. It just raises the bar a little bit. We are working with the consortium. I know they want to join the consortium. I encourage that and I applaud that. It hasn't come to fruition yet. We just got the first set of review plans. We have lots of comments and questions. I'm looking forward to bringing something to the board probably in the fall that maybe addresses these problems. It's the chicken or the egg concept. Do you want to approve it now hoping we can fix the problem with the DCA? 1 have nothing planned in the five years. The state has nothing planned in the five years. I hope that answers your question. I'm concerned about approving projects without having things in the short-term and long-term planning to improve the road. CHAIRMAN COLETTA: Thank you for your help. MR. FERGUSON: Can I address that? CHAIRMAN COLETTA: Very briefly. MR. FERGUSON: The law talks about proportionate share. And the law allows you to commit your proportionate share. And I think that that's what this is all about. It's called proportionate share. And if people want to develop their property, they're going to get the road built. What else are we going to put beside that cement plant? CHAIRMAN COLETTA: Commissioners, I don't see any more lights on. MR. CASALANGUIDA: The proportionate share is if you have a project in the five-year window. There's no project there. I don't know what the costs are, so what are you going to propose as the proportionate share of? Page 62 June 22, 2007 CHAIRMAN COLETTA: Thank you. Is there a motion? COMMISSIONER FIALA: Motion to deny. COMMISSIONER HALAS: Second. CHAIRMAN COLETTA: We have a motion for denial by Commissioner Fiala, seconded by Commissioner Halas. Discussion? (No response.) CHAIRMAN COLETTA: Seeing none, all those -- we did take care of all the public speakers? MS. FILSON : Yes, sir. CHAIRMAN COLETTA: Seeing none, all those in favor of the motion for denial not to transmit indicate by saying aye. COMMISSIONER COYLE: Aye. COMMISSIONER HALAS: Aye. CHAIRMAN COLETTA: Aye. COMMISSIONER FIALA: Aye. COMMISSIONER HENNING: Aye. CHAIRMAN COLETTA: Opposed? (No response.) CHAIRMAN COLETTA: And the ayes are unanimous. Thank you. Item #21 PETITION CP-2005-12: NOTH BELLE MEADE SPECIAL USE SUBDISTRICT MR. WEEKS: Commissioners, next on the agenda is petition CP-2005-12, petition requesting an amendment to the future land use element, future land use map and map series to create a North Belle Meade special use subdistrict for property designated on the future Page 63 June 22, 2007 land use map as rural fringe mixed use district sending lands and North Belle Meade overlay to allow earth mining, oil extraction and related processing, asphalt and concrete batch making plants and their related uses and all sending lands permitted uses, conditional uses and rights as permitted uses, and requesting an amendment to the conservation and coastal management element to reduce the preservation and native vegetation retention standard from 80 percent to 40 percent for the subdistrict for property located in Sections 29,31 and 32, Township 29 South, Range 27 East consisting of approximately 950 acres. We commonly refer to this as the Hussey project. MR. YOV ANOVICH: Commissioners, if you will, Rich Y ovanovich, for the record. This is the petition that at the last hearing I had mentioned that my property owner and my consultants would not be able to be here today. You said we had to continue today for me to then, again, ask for another continuance to the July 24th, I believe it is. Whatever your -- we had this issue last time. Whenever your meeting in July is, I believe there was a consensus that that request would be granted. I'm requesting today that we be continued to that date because my consultants could not be here today. COMMISSIONER COYLE: I don't remember any discussion about that whatsoever, do you? COMMISSIONER HENNING: Motion to continue the only meeting -- the board's meeting in July. COMMISSIONER COYLE: Second. CHAIRMAN COLETTA: We have a motion to continue from Commissioner Henning, seconded by Commissioner Coyle. Any discussions? (No response.) CHAIRMAN COLETTA: Seeing none, all those in favor of a Page 64 June 22, 2007 continuance indicate by saying aye. COMMISSIONER COYLE: Aye. COMMISSIONER HALAS: Aye. CHAIRMAN COLETTA: Aye. COMMISSIONER FIALA: Aye. COMMISSIONER HENNING: Aye. CHAIRMAN COLETTA: Opposed? (No response.) CHAIRMAN COLETTA: The ayes have it five-zero. Item #2K (Remaining Portion) PETITION CPSP-2005-14: RE-DESIGNATION OF SENDING LANDS TO EITHER NEUTRAL LANDS OR RECEIVING LANDS (MAPS 3-10) MR. WEEKS: Commissioners, the final item is a portion of the petition CPSP-2005-l4, petition requesting amendment to the future land use map to redesignate the rural fringe mixed use district sending lands to either neutral lands or receiving lands or -- in this case we're just dealing with two batches of properties today. I'll skip the specific location, if I may. And the two properties -- one batch consists of approximately 80 acres and another batch consists of approximately 918 acres. Commissioners, as you will recall back in 2002 with the adoption of the rural fringe mixed use district, the rural fringe growth management plan amendments, you had many speakers appear before you at that hearing and prior hearings telling you that their property did not warrant sending lands designation. That it did not have the habitat value that the county was suggesting and that it did not warrant that designation. I think it's very accurate to say that everyone knew that that was Page 65 June 22, 2007 true. Staff knew it. I believe this commission knew it and members of the public knew it that there were certain properties that were proposed for sending designation that, in fact, did not warrant that designation. We knew from looking at aerials, for example, that some properties had previously been cleared or otherwise contained development on them. We discussed the swiss cheese concept, that trying to have a sending lands designation, which is a designation of properties that we want to see protected. Of course, we had the companion TDR program to allow for the transfer of the development rights from those sending lands to receiving lands elsewhere. But some properties -- that swiss cheese concept, some properties were within the midst of the block of cheese, within the midst of the block of hundreds or thousands of acres of sending lands and it was not appropriate to give those lands the designation of receiving or neutral to allow a pocket of intense development within a larger area of lands that we wanted to see protected. We hoped, number one, that through time eventually those uses might leave and the property potentially could be restored. At the same time we understood that there's a distinction between that swiss cheese concept and the nibbling at the edges. That there were some properties along the very edge of these large sending areas that also might not warrant that sending designation. Because of that the county created a specific provision that allowed landowners of sending lands right along the edge, such that they are abutting either neutral land or receiving land, a window of opportunity to submit environmental data to the county to demonstrate that what they were saying was true. That the respective properties did not warrant that sending land designation. Pursuant to that provision in the future land use element, the staff sent out the required letters to property owners along the edges of the sending lands advising those owners of this window of opportunity to Page 66 June 22, 2007 submit environmental data to the county to try to make their case, noting that the county would take that amendment four -- this is a freebie. The property owners do not have to pay for this comprehensive plan amendment, but they do have to pay for whatever is necessary to get that data to submit to the county. The cutoff date to submit the data by the property owner was November 7th, 2004. This was not an open-ended process. It was a very specific time period as to when this data could be submitted. Secondly, and very importantly, though it is not explicitly stated in the future land use element, I believe it's fair to say that we all viewed this window of opportunity relevant to the status of the property or properties as of the date these rural fringe amendments were adopted. And that is June 19th, 2002. The landowners were not standing before you at their hearings and saying, "Five years from now or some other time period from that date my property is not going to warrant sending land designation. That's ludicrous." They were standing there telling you, "My property today, June 19th, 2002, does not warrant the sending land designation and I can prove it." In some cases they said that. And, of course, that's what this process is all about. Prove it. Submit that data to show that as of that date your property did not warrant the sending land designation. Of course, that's what this petition is all about. You disposed of a majority of the properties at the June 5th hearing. Two batches of properties were continued to today. One is commonly referred to as the Symphony Real Estate Properties or the Clark properties. Those are map parcel numbers in your packet three through ten. At the previous hearing I mentioned 3 through 11, but, in fact, parcel 11 is not included because it's already designated as neutral land. And that's about 80 acres. And then the second grouping of properties are the -- some Page 67 June 22, 2007 Hussey properties. And those comprise of approximately 918 acres. Staff does not recommend the redesignation of either of these two batches of properties. And the planning commission by a vote of four to three supported staffs position. One more point I wish to make. In reading the specific language that this provision that we're discussing today in the future land use element does not explicitly state that for properties designated sending it can only be changed to the designation that it abuts. It does not say if you're abutting neutral that you can only be changed to neutral, that you could not change to receiving. And it does not say if you're abutting receiving you cannot request a designation to neutral, that you're limited to receiving. But I believe that was emphatically the intent behind that provision. That it was never contemplated that a landowner would come to you and say, "Number one, I don't want sending designation. Number two, I'm abutting this designation, but instead I want this one over here," or vice versa. The result would be we would end up with little dots on the map of an isolated designation. An isolated pocket of receiving land or an isolated pocket of neutral lands. And with that, Commissioners, I will answer any questions or move on to the agent. CHAIRMAN COLETTA: Commissioner Henning, I believe, has a question. COMMISSIONER HENNING: Mr. Weeks, what -- in the evaluation was it -- is it assumed that you use the best available data? MR. WEEKS: Yes. COMMISSIONER HENNING: Okay. And that's true today, right? That was true in 2000? MR. WEEKS: Correct. COMMISSIONER HENNING: Okay. So it's true today. So Page 68 June 22, 2007 we're going to use the best available data today. Where is it written that submission is -- the cutoff date is November 7th, 2004? MR. WEEKS: What is written in the future land use element provision is that within three months of the effective date that the county would send out letters to the property owners advising them of this opportunity. That's what that date is based on. It is actually connecting the dots here. The first step was the staff sent out those letters. We put an incorrect date within them and then sent out a second letter advising of the correct and later date. November 7th was the longer time period. COMMISSIONER HENNING: Okay. MR. WEEKS: That's based upon the specific text in the future land use element. COMMISSIONER HENNING: I'm glad the -- remembering of your -- your remembering telling the public, you know, "We could have made a mistake. That's why we're giving you an opportunity." But it was my understanding that since the government made a designation of people's property and the government didn't do ground truthing that the people would have that opportunity to submit that data. So I don't understand if -- we don't want to create the swiss cheese effect, when the governor's order really was all about protecting, you know, habitat to support enlisted species. Am I correct, Marjorie? That's what it was all about. MS. STUDENT-STIRLING: Yes. The governor's order was about protecting habitat and protecting the species, as well. COMMISSIONER HENNING: Okay. So does the swiss cheese effect play into that? Is that what we were told to do is don't create a swiss cheese effect? MS. STUDENT -STIRLING: I think the problem with swiss cheese -- and maybe some of the environmentalists that are here could Page 69 June 22, 2007 discuss that. But if you have areas that -- where you do have that, you know, you can have some issues with adequate protection of habitat. You look for largest contiguous possible areas to direct the incompatible land uses away to protect the habitat. COMMISSIONER HENNING: And what would be the incompatible lands uses? MS. STUDENT-STIRLING: I'm not a planner. Planning staff would have to address what the incompatible land uses would be. I would think high density residential and so on. Those uses for the sending, neutral and receiving lands were approved by DCA and so forth. So that would be strong evidence of what would be compatible and what would not be compatible. MR. WEEKS: Commissioner Henning, I would agree with Marjorie's comments there. I wanted to mention that I may have done a disservice by bringing up the swiss cheese concept because that's not what we're discussing today. Today we're discussing the nibbling at the edges because that's what the specific provision in the growth management plan allows for. It allows us to look only at these border properties along the edge of the sending land. That is the very thing we're discussing today. And I apologize if my comments got us off in the wrong direction. CHAIRMAN COLETTA: Okay. Any other questions? We have one speaker, right? MS. FILSON : Yes, sir. CHAIRMAN COLETTA: Go ahead and call the speaker. MS. FILSON: John Vega. MR. WEEKS: Mr. Chairman, we have two agents. CHAIRMAN COLETTA: Sure. Let's go with the speaker first. MR. YOV ANOVICH: He's the petitioner. CHAIRMAN COLETTA: Oh. MR. YOV ANOVICH: Right, John? Page 70 June 22, 2007 MR. VEGA: Yes. CHAIRMAN COLETTA: Fine. Let's go to the petitioners. MR. YOV ANOVICH: Good morning still. For the record, Rich Y ovanovich, on behalf of Symphony Real Estate Limited. Also with me today as part of the team are Andy Woodruff from Passarella and Associates. He's an environmental consultant. And Mike Ramsey from Ramsey, Inc., also an environmental consultant. I have two co-counsels in this, Bob Diffenderfer from Lewis, Longman and Walker, as well as Georgia Hiller, who is assisting me with various legal issues. I'm glad David corrected his statement that we're not here because -- or staffs recommendation is not based upon the, quote, swiss cheese effect. It's -- we have a legitimate petition before you because we're talking about the fringe of the fringe. As David pointed out, Mr. Clark and others appeared before you claiming that their property, for various reasons -- and it wasn't limited to their property was totally cleared. But for various reasons did not meet the definition of sending lands. And the commission agreed that on the fringe of the fringe you all needed to look at specific data and analysis to those various parcels. And based upon that process, Mr. Clark filed environmental data through Passarella and Associates which has been supplemented to bring it more current to show you that the data that was in effect in 2002 was still in effect in 2006. So we provided the best available data to assure the commission that this property was improperly designated. As your staff report to the planning commission indicates is that sending lands are so designated because at the landscape macroscale, not site specific by parcel view, that contain lands of higher environmental value regarding wetlands, listed species -- and listed species habitat. So the premise was that the sending lands were supposed to be your most environmentally sensitive lands because it Page 71 June 22, 2007 contained special habitat and/or contained wetlands. What you'll hear from both Andy and Mike Ramsey is that -- that that burden wasn't met on this -- these particular 85 acres back in 2002 and still is not met today in 2006. In fact, you will hear that of the 85 acres you have one acre of wetlands and that you have no specific habitat that will serve listed species. We'll get into that in greater detail and show you how the panther is not using the property, how the bear is not using the property, how there are no RCW s near the property. We'll get into that and show you the data and the analysis to support that. That was in effect in 2002 and today. With all due respect to your staff, we believe that they got it wrong in 2002 by designating this property sending. We're following the process with specific data and analysis on this property to point out that this property should never have been designated sending. We're requesting that the property -- Symphony now owns part of the property from Mr. Clark after he started the process -- be redesignated to a more appropriate category. We're adjacent to sending --I'm sorry. We're adjacent to neutral, as I've shown you on the map. We'll get into more -- I'm giving you a global map here. We'll get into a finer detail map. But, in fact, our lands are probably more characteristic of receiving lands in the area. But with that, I'm going to turn it over to our environmental consultants to take you through the specifics of the land. I'm available and anybody else on the team is available to answer any specific questions regarding the property, regarding the process we're going through. I'm going to give Mr. Weeks another letter of authorization that adds, besides me and Andy as authorized representatives, both Mr. Diffenderfer, a couple of Ramsey employees, and Ms. Hiller as authorized representatives or agents on the property. And unless you have specific questions of me at this time, I'm going to turn it over to Page 72 June 22, 2007 Andy to do a brief presentation and Mike, as well, and we're available to answer any questions you have. CHAIRMAN COLETTA: Please continue. MR. WOODRUFF: Thank you, Commissioner. For the record, I am Andy Woodruff, Senior Ecologist and Vice President of Passarella and Associates. I've been doing ecological assessments and listed species studies in southwest Florida here since 1992. The Symphony property is located -- on a regional scale here, if we look at this map on my side, we're located in the northeast corner of the northbound -- the overlay area -- surrounded to the north and further to the east by the Golden Gate Estates developments. And if we look a little bit closer, we have receiving boundaries in the North Belle Meade overlay represented by this green line further to our west. And the neutral lands designated in the North Belle Meade just adjacent to the north of us. Miller Canal, which runs north-south, is located just off of our east boundary here. Passarella back in 2002 -- March and May of 2002 conducted the initial environmental assessment on the property . We have since gone back and reevaluated the environmental data that was available in 2002 and updated our findings. And based on that site specific environmental data that we collected in 2002, the environmental data that was available in 2002, and a review of more recent environmental data, it's our opinion that the site does not warrant a sending designation. And further, it's probably less environmentally sensitive than some of the receiving and neutral lands that surround it. Looking at some of the state wildlife databases -- and the drawing you're looking at there is out of the Florida panther habitat preservation plan identifying priority one and priority two habitat. These maps were in use back in 2002. The agencies were using these maps at that time. Page 73 June 22, 2007 The project was not located in either priority one or priority two habitat at that time, which is represented by the crosshatched areas on this map. In addition, there was no panther telemetry located on the property either back -- based on these 2002 records or if we look at more current records. This is 2006 telemetry data updated. We still have no telemetry data on the property. By comparison, if you look at some of the receiving lands there, those, in fact, did have some telemetry points occurring on their property. I f we take a look at the subteam MERIT designation, which was -- as of 2002 it was in a draft form at that time. They had designated primary and secondary panther habitat. Primary being the most essential habitat necessary for the panther survival and secondary habitat being habitat that was available for panthers to disperse into. The project at that time -- again, these were draft maps back in 2002 when we did this initial study. These maps didn't get finalized until the report to the U.S. Fish and Wildlife Service in December 2002. But the property at that time, according to those maps, was designated in a panther secondary zone. By comparison, if you look at some of the receiving lands, those were designated as some of the pnmary zones. Ifwe take a look at some of the bear telemetry that was available in 2002, it was this data that the state collected in 1983 to 1999. There were no telemetry points identified on the property. By comparison, there was telemetry on some of the receiving lands at that time. Taking a look at red-cockaded woodpecker maps, they, again, document that we have no occurrence of red-cockaded woodpecker on the property. Those occurrences were closer to the receiving lands. The only findings that we did have of listed species utilization on the property in 2002 was evidence of gopher tortoise on the property. It's important to note that we didn't observe any burrows during our surveys on the property back in 2002. And that subsequent surveys by Page 74 June 22, 2007 the county just prior to the land being cleared evidenced only a single burrow by county staff. In our opinion -- it's our opinion that the property provides minimal habitat support for gopher tortoise on the property . Ninety-nine percent of the property when we did our mapping in 2002 was not wetland. The only wetlands identified on the property were two small verbenaceous marshes located on the south side of the property represented by the hatched areas down at the bottom of the map there. The remainder of the property was upland and remains upland today. Ifwe take a look at some of the mapping data that was available -- some of the wetland mapping data and compare it to the neutral and receiving lands going back to available data in 2002. This is a hydric soils map out of the Collier County hydric soils book. And you can see that the majority of the receiving, neutral and the flood property at the time was underlaying hydric soils. So we're comparable to the receiving and neutral lands at that time. And if you take a look at some of the wetlands map -- the international wetlands map inventory, again, it's a pretty similar case. But the wetland mapping that had been done was comparable to what's being shown for the neutral and receiving lands. And similar case for also the district wetland mapping, which is a slightly more updated version of wetland mapping in south Florida here. Again, the Clark property is fairly comparable to some of the receiving and neutral lands, as well. The habitats on the property -- there are no rare or unique habitat types on the property. The habitat mapping and historic wetland data supports the conclusion that the property historically contained a majority. Over 50 percent of the habitat there was historically wetlands, but that's not the case today. That habitat has been drained. The Golden Gate canal systems have effectively drained those habitats. Page 75 June 22, 2007 COMMISSIONER FIALA: You have a thing crawling around your thing there. MR. WOODRUFF: I'm sorry? COMMISSIONER FIALA: You have an ant crawling around on there. MR. WOODRUFF: As long as it's not a panther or a bear, I think we're okay. COMMISSIONER FIALA: At first I thought you were moving something around there. I thought it was -- it was a little critter. MR. WOODRUFF: Even though much of the property was not clear in 2002, the time that we did our study, the habitat was a drain-well habitat. It no longer provided ecological support that listed species or many other non-listed species depend upon for utilization of those types of areas. And it would not have warranted a claim of being environmentally sensitive at that time. And I'd like just to explain with my other exhibits the property is less environmentally sensitive than some of the receiving and neutral lands, some of which also are not cleared at the time that the original designation was made. Thank you. CHAIRMAN COLETTA: Thank you. I estimate that we've got probably about another 20 minutes. Did you want to continue or do you want to take a lunch break and come back? COMMISSIONER COYLE: Keep going. CHAIRMAN COLETTA: Okay. Fine. Then we'll do that. I didn't want anybody to say we're starving them to death. MR. WOODRUFF: I'll turn it over to Mike now. (Commissioner Fiala left the boardroom.) MR. RAMSEY: Mr. Chairman, Commissioners, my name is Michael R. Ramsey. I'm the President of Ramsey, Inc. Environmental Consulting. Ifmy head's too shiny, let me know. I've got some extra sunglasses if it's too blinding for you. Page 76 June 22, 2007 CHAIRMAN COLETTA: You're doing pretty good. MR. RAMSEY: As I said, I'm president of Ramsey, Inc. and I'm a certified wildlife biologist. And I also have some other certifications in property assessment and all that good stuff. We can skip that. I can always sit around and tell you about credentials later. It's such a fun thing to do. As I said, I was contacted by the landowner, Symphony Real Estate Limited, to go out and look at this property again to provide some validation to the initial assessment. We did that. We went out in 2007. We went to the property. We did a wetland evaluation in 2007. Actually, May 31 st of this year. We went out there with a -- very intensively to look at the habitat, soils and determine jurisdictional wetlands. In 2007 -- you'll notice this on page C-7 of Appendix C in your reports. You want to zoom that down? MR. WEEKS: Sure. MR. RAMSEY: This graphic you see here, as soon as we get the technology working, is -- shows that the lower right-hand corner the finding of jurisdictional wetlands during 2007. At that time we found .74 acres, according to the rules of the state of Florida. It's less than one percent on the property. We then decided, just to make sure we were in the right area and to validate the accuracy of the information and to make sure that we had some repetition in this, we extrapolated from our 2007 data. We took the soils -- (Commissioner Fiala returned to the boardroom.) MR. RAMSEY: -- and hydrology we observed and we overlayed 2000 vegetation to make sure we were right and to correspond with Passarella. And in your reports on Appendix D on page D-l, this is an extrapolated map of the 2000 wetlands we come up with. We came Page 77 June 22, 2007 up with 1.77 acres of wetlands or less or about 2.1 percent of the property. And it stays consistent with Passarella and it stays consistent with our initial one in 2007. The blue arrows you see on this map are also the same wetlands that Passarella identified. So we are very consistent. What's really good about this, if you ever have the opportunity to span five years and do environmental assessments such as this, it is tremendously valuable to provide that accuracy of data. You usually don't get that opportunity to do that. This shows that this property has been evaluated consistently from two different sources, two different time periods. I consider that to be a significant piece of information describing this property and this environmental sensitivity. Overall, it would say that the jurisdictional wetlands on this property are at the most -- highest number is less than two percent or around two percent. Continuing on, if you wanted to look, this is a summary of all the data in Appendix C, D and E. I put it on one table so you don't have to read those 300 pages. I kind of summarized here the data that we kind of looked at. It's also included in your overall summary there. Of all the findings that we had and compared it to Passarella, like I have just explained to you before, we assumed that there is probably going to be, after the three surveys, less than -- around two percent or less of jurisdictional wetlands on the property. My observations on the property indicated there were no indicators of hydrology. And this is defined to be -- I couldn't find anything out there that indicated there was water flowing over the property or flooding it every year. According to the indices that I'm supposed to look for, they were absent. Number three, soils. In the determination of jurisdictional wetlands on the property, I'm supposed to do soil samples all over the property. On those soil samples all over the property, we extracted only two. And one small area indicated that there was characteristics Page 78 June 22, 2007 of hydrology or flooding. And those areas that indicated that was the .74 acres of wetlands we determined down on the southeast corner. That was the only area that indicated that the soils might have been flooded. The general indication of the vegetation on the property indicated that it was more of an upland habitat scenario that may have existed there. This is based on the criteria presented at the time of field investigation. We also looked at the panther telemetry, such as Passarella did. We looked at Passarella's 2002 maps. We compared it with data from 1980 to 2005 obtained from the Fish and Wildlife Commission. There was no change on use on this property. It was not used according to telemetry . It is included under the U.S. Fish and Wildlife Services panther zones. That has remained the same. In 2000 though I don't think panther zones existed, so this has been a new development recently. As you all are well aware of, panther zones have been a topic of interest in these chambers. RCWobservations. Passarella had none noted. We had none noted. And there's still none noted out there, as far as we know, based on available information. RCW nest cavities. Ramsey, Inc. decided that we would go one step further. We investigated every pine tree on the property. We found no indication of use by red-cockaded. We found no indication -- we found no nest cavities. We found no indication of start holes. Gopher tortoise. While Ramsey, Inc. was on the property we found no indication of gopher tortoises. However, Passarella did acknowledge and note that they did find indices or indicators out there. Any other protected species that was listed on the two lists, the U.S. Fish and Wildlife or the Florida Fish and Wildlife Conservation Commission, Ramsey, Inc. did not note any and neither did Passarella. If I was going to take a piece of property and try to determine what would be its environmental sensitivity, I would probably use six Page 79 June 22, 2007 classifications. I'm going to put this up. Zoom in on it for me. Doing this evaluation and dealing with lots of properties in these areas, I've come up with about six classifications based on the reports I read. It seems that all environmental sensitive properties in the sending area have these six components applied to them. They're in the panther focus area or the panther zones. They have primary or secondary panther zone classifications. They have panther telemetry on them. They have documented use by protected species. And many of the sending lands are in the NRP A area, which can or cannot be entered as a part of the classification. On the property I'm looking at here that we evaluated for Symphony, the only one that met this -- these six criteria would have been the first one. It is in the panther focus area. That's the only one it met. So it would be our opinion that this property does -- has very limited jurisdictional wetlands on it, very limited protected species use, and it also has no other documented species on it. It should rank very low on any kind of qualitative scale for environmental sensitivity . I will refer to you to -- in the discussion part of this, this map on the wall up here. And I'm also going to provide to you a figure of -- (Chairman Coletta left the room.) MR. RAMSEY: -- future developments obtained from all county documents about future growth, future planning of roads and transportation and schools. I found this to be a particularly interesting figure because it kind of outlines where this area is going in the future. And it involves some ecological concepts. This is not in your report, but it's a compilation of many different pieces of information from the county. You might want to zoom out on that a little bit. This document you see in front of you is a compilation of many Page 80 June 22, 2007 different pieces of information. On this it shows the Symphony property as it's located in the neutral area. It also shows its location in the sending area and its proximity in North Golden Gate Estates. You will see in the two large blue squares on the northwest and the east side of the property, those are projected school locations and construction. You will also see just south of the property the extension of what is expected to be where Green Boulevard is to be expected to build to in the future. As a part of this, and also attending the horizon 951 committee meetings and other issues about north Golden Gate Estates, it is acknowledged that in this area we don't expect growth to ever stop. Ever. It may slow down, it may speed up, but we don't expect it to ever stop, which is the consensus of opinion for most of these meetings. This map indicates the just position and the lay of the land at full build-out for some of the proposed roads and the schools there. The schools, I think, are projected to be built by 2015. The road has probably either -- about the same timeline or a little longer. It's also expected in this area that the Villages of Big Cypress on Collier Enterprise property, which is about two or three miles to the east, will also be coming online soon. Also, on Everglades Boulevard we expect the Everglades interchange to come online pretty soon. Those pieces of information I have given to you is to indicate that this area is fixing to come and will be always becoming high intensity in the future. After looking at all the information, the recommendation that we had made is that it appears ecologically that there's going to be so much high intensity use around this area there needs to be kind of a dynamic concept that there ought to be a way to -- to look at lands and classify them or move them based on the surrounding areas around them so that we can protect the vitally sensitive environmental areas or the sending areas. Page 81 June 22, 2007 The location of this road for Green Boulevard Extension and the proximity of the schools on there sort of indicates that that's fixing to go high intensity in the future. It is very much a preferred ecological concept to have these buffer zones or a dynamic zone in there so that you can put some buffer zones between the environmentally sensitive areas. It looks like that some of the lands that are trying to be reclassified north of the proposed Green Boulevard Extension might meet some of the criteria for either a modified receiving area or modified neutral plan kind of a land classification. Because if the intensity of use continues to escalate, there needs to be some way dynamically to provide a buffer area between that road and those schools and that area and the environmentally sensitive areas to the south. So it kind of appears there that it might be a good idea to consider lands voluntarily trying to do a reclassification north of the road to consider them to be either receiving or neutral so that south of that you can provide a buffer zone to that more critical environmentally sensitive area. One of the reasons I bring that up is that in the past when I have worked on properties that have an evolved preservation areas, you want an area that can be dynamic or move back and forth between the preservation area and the high intensity areas because you don't want wild animals crossing to high intensity areas. You want some kind of buffer in there to prevent that. Also, you don't want high intensity areas interfering with the natural resource ecological functions of your preserve areas. So there is a dynamics that's going on here that kind of dictates that it be considered that there could be -- consideration for these properties in these general areas could the classifications requested to be changed to allow further protection of the environmentally sensitive sending area and also protect the more intensive high use areas around schools. Page 82 June 22, 2007 That pretty much sums it up for me. Any questions? CHAIRMAN COLETTA: Yes, I do have a question about your public information meetings. MR. RAMSEY : Yes, sir. COMMISSIONER COYLE: Can you give me a little more detail about where they took place and the kind of sentiments you -- what did you hear from the public at that time? MR. YOV ANOVICH: Commissioner Coletta, I'll answer that question because it's a little unique. This was actually the county's public information meetings because it was the county's -- technically it's the county's petition. If! recall, there was no -- there was nobody in on the public who spoke against our data requesting that we become -- be redesignated at that neighborhood information meeting. Would that be a fair summarization, David? MR. WEEKS: Oh, yeah. It was mostly an attack staff meeting is what it turned out to be. It was -- for the most part, it was a rehashing of what happened in 2002 as opposed to focusing on the specific issue at hand. And that is the redesignation of these various properties. CHAIRMAN COLETTA: The people that showed up for the meeting were mainly stakeholders that own land in the sending areas? MR. WEEKS: Commissioner, I have no way of knowing. Certainly some of them, from their comments, I would say did own land designated sending, but there's really no way of knowing what percentage. CHAIRMAN COLETTA: And this land that you're looking for redesignation and the stated purpose that you want the redesignation is for earth mining? MR. YOV ANOVICH: No, sir. No, sir. We haven't asked for earth mining at all. We just believe that we are clearly not sending, as you have heard through the environmental experts who have been on the site. Page 83 June 22, 2007 We weren't sending in 2002. And if you look at the data today, we're still not sending. And, in fact, when you look at what's happened since that time, you've got two school sites and you've got a proposed road. CHAIRMAN COLETTA: I hear you. MR. YOV ANOVICH: That's, you know, making it even clearer that the designation was wrong in 2002, in our professional opinion. And that's where we are. We're asking -- we're clearly not sending lands. We think we're closer to receiving. We're adjacent to neutral, but-- CHAIRMAN COLETTA: But you want it changed to -- MR. YOV ANOVICH: We definitely don't want to be sending because we don't think that that's the correct category. But the purpose of this is not to ask for earth mining. That was not the purpose of this. CHAIRMAN COLETTA: I just wanted to make sure because there's all sorts of scuttlebutt out there about what may take place. And one of the things that we're very concerned about in that particular area is earth mining -- large earth mining operations that may try to get in and use the public roadways which are totally insufficient. MR. YOV ANOVICH: I'm sorry. I didn't mean to interrupt you. Which could not happen as a matter of right anyway. There would have to be further conditional use hearings that would occur. So if that is a concern if this becomes receiving, we still have public hearing processes to go through before. COMMISSIONER FIALA: Follow that up. Can I just jump in here? CHAIRMAN COLETTA: Yes. Go ahead. I'm not through, but go ahead. COMMISSIONER FIALA: Just on your question. He said that isn't the purpose at this time. Does that mean that there are plans to do Page 84 June 22, 2007 earth mining at some point in time or will you tell me on the record there will never be earth mining on this property? I just wanted to follow up. CHAIRMAN COLETTA: That's a good statement. MR. WEEKS: Commissioners, while Rich is discussing it, I hope you'll let me interject here. The purpose of this hearing is to discuss whether or not the designation was appropriate or not. I would certainly advise you -- CHAIRMAN COLETTA: Forgive me. I know I'm going a little bit afield on this. MR. WEEKS: I would advise you if the property is changed to either sending or neutral that there will be a drastic change in allowable land uses. Both those by right and conditionally. But I respectfully steer you back to -- the focus is: Should it be changed to neutral? Not what uses might that allow. CHAIRMAN COLETTA: You know, I think I see some positive aspects of changing it. However, with that said, you know, between now and the time it came back to us, I would like to see community meetings take place even more so. I would like you to initiate them. I'd like you to go before the Civic Association, before the Corkscrew Property Owners Association, and generally just get it talked up in that particular area. Of course, the Belle Meade Association there, Frangipani Association. I'd like to hear back from those people. Myself, I don't see this as a tremendous detriment to what we need to do. I realize that there is going to be some changes as we go forward to the rural fringe, as far as the designations. I'd make a motion to transmit. COMMISSIONER HENNING: I'll second that, but I have -- I want to -- CHAIRMAN COLETTA: Let me go down. I think you're next in order. I'm sorry, Commissioner. Page 85 June 22, 2007 We'll go with you. We'll go to Commissioner Fiala and then Commissioner Halas. Go ahead. COMMISSIONER HENNING: Well, I think this is all about the characteristics of the property that probably our environmental staff can answer the questions. Mr. Hatcher, I assume that you didn't get to review all this data; is that correct? MR. HATCHER: For the record, Mac Hatcher, Collier County Environmental Services. Most of the data that's been discussed was presented to us. Some of it yesterday morning, but most of it was presented. COMMISSIONER HENNING: Okay. Would you agree that the -- that the designation in 2002 with the data submitted doesn't fit the characteristics of sending? MR. HATCHER: I disagree with their environmental consultants' assessments. I believe that the data that was submitted supports the supposition that it was useful black bear habitat. It was useful panther habitat. There were gopher tortoises present on the Clark's property and Mr. Acunto's property, which has been absorbed into the petition. COMMISSIONER HENNING: I don't understand. I don't understand what you're saying. So let me -- so you're saying there are panther telemetry on the property? MR. HATCHER: No, sir. I'm saying that the habitat that was present could support panthers. I'm saying that the habitat that was present in 2002 likely supported bears. There were five bear telemetry points within a half mile of the property. Over 50 percent of the property was sabal palm and/or soft palmetto, both of which are the major food item for black bears. So it was very likely that bears were utilizing the property. COMMISSIONER HENNING: Okay. Let me ask you. So you found bear telemetry near this property? Page 86 June 22, 2007 MR. HATCHER: Correct. And Passarella reported it in their report, as well. COMMISSIONER HENNING: Near the property? MR. HATCHER: Correct. COMMISSIONER HENNING: But it's not on the property? MR. HATCHER: Correct. COMMISSIONER HENNING: Is -- does the school own some land near the property? MR. HATCHER: The only knowledge I have of that is what's been submitted by the client. And they've indicated that there are parcels in the neutral designated area that are owned by the school board. COMMISSIONER HENNING: Okay. Yeah. Because I talked to one of the school board members and they do have plans for schools down there. The only reason I know that is they're trying to find a -- fire districts are trying to find a site. I didn't know where it was, but obviously it's this property. Okay. Thank you. CHAIRMAN COLETTA: Mr. Weeks. MR. WEEKS: Commissioners, I just wanted to make one comment about the specific exhibit in front of you on the visualizer now. It's an interesting exhibit, but I respectfully submit it's not appropriate for consideration today because we have a very narrow focus. Does the land warrant sending designations or not based upon the environmental data? It's not based upon surrounding land uses or the other types of considerations that you would normally entertain when considering a growth management plan amendment. This type of information might be very appropriate for a privately initiated plan amendment. But, again, this is a very narrow focus today. COMMISSIONER HENNING: One more question. CHAIRMAN COLETTA: Yes. Go ahead. Page 87 June 22, 2007 COMMISSIONER HENNING: What county staff has gone onto this property? Is there any county staff here today that went on this property? MR. WEEKS: I highly doubt it. MR. HATCHER: Laura. She found -- MR. WEEKS: Oh, I'll stand corrected. MS. ROYS: Laura Roys, Environmental Services. COMMISSIONER HENNING: Ms. Roys, did you look at this property for -- for any kind of environmental sensitive to -- when you went on it? MS. ROYS: I did look for any listed species issues because I was -- had an application for an agriculture clearing permit. So I wanted to make sure that they would not be impacting any listed species that were utilizing the site. And I did actively look for gopher tortoise burrows. I did find one burrow, I believe. MR. YOV ANOVICH: No panthers? MS. ROYS: Didn't see any signs of panther or black bear or any other listed species. Not that -- that's not to say that they didn't utilize it, no. COMMISSIONER HENNING: Thank you. CHAIRMAN COLETTA: Commissioner, are you finished? COMMISSIONER HENNING: Yes. Thank you very much. CHAIRMAN COLETTA: Commissioner Halas. COMMISSIONER HALAS: Yes, I have some concerns. What was the deadline for submitting data to this -- for this amendment? Was there a deadline? MR. WEEKS: November 7th, 2004. COMMISSIONER HALAS: Okay. Did the planning commission hear the same presentation that we just heard from their environmentalists? MR. WEEKS: No, sir. Page 88 June 22, 2007 MR. YOV ANOVICH: Whoa. MR. WEEKS: Mr. Ramsey was not present at the planning commission hearing for one thing. The information that was submitted to county staff yesterday was not presented to the planning commiSSiOn. COMMISSIONER HALAS: Was this requested by the county staff or the county attorney's office? MR. WEEKS: No, sir. COMMISSIONER HALAS: County attorney, was this -- did you request this data? MS. STUDENT-STIRLING: I first became aware of this issue. And I believe that I may have asked to look at -- so I could fully understand what was going on the property because I had no background whatsoever. COMMISSIONER HALAS: But I'm asking the question: Did you ask for this data? MS. STUDENT-STIRLING: I think I may have asked for background information, yes, sir. COMMISSIONER HALAS: Can I ask why we didn't get this additional information until 24 hours before the meeting? MS. STUDENT -STIRLING: I didn't receive it until yesterday morning either. I first became aware of this issue really in more detail on very late Tuesday -- COMMISSIONER HALAS: I guess what I'm saying is we had 24 hours and there's no way we can get through this material. MS. STUDENT-STIRLING: Understood. COMMISSIONER HALAS: Okay. So that's why I asked the question. You said that you asked or requested this data. If it was, why wasn't it given to us in a timely manner? MS. STUDENT-STIRLING: Well, sir, I only became aware of this issue after five on Tuesday afternoon. And, I believe, I just -- I believe I asked for further information. Page 89 June 22, 2007 COMMISSIONER HALAS: Okay. MS. STUDENT -STIRLING: And I was -- COMMISSIONER HALAS: The other thing that I'm concerned about is I'm wondering if this data was skewed in any way because we've been in a severe drought period. MS. HILLER: No. COMMISSIONER HALAS: And when you go out there on May 31st, we were out there probably fighting wildfires and so I'm concerned about this. I'm also concerned the fact that the planning commission didn't hear this. And, again, it's like -- well, we're bringing additional information in at the last minute to make a judgment on this. And I have a real concern on this. This is the third time since we've gone through these amendments that we've ended up where people have brought additional data that no one else has looked at, such as the planning commission. And I have a problem with that. MR. YOV ANOVICH: Let me correct one thing that David said. When we were in front of the planning commission, Passarella's 2002 report was presented to them. And in that 2002 report it addressed the lack of panther telemetry, the lack of bear telemetry, the lack of wetlands on the property. All of that information was in front of the planning commission when that presentation occurred. Another consultant was hired subsequent to the planning commission to verify the information back in 2002. So this is not new information. It is just a verification of what was already presented to the planning commission. And I think Ms. Hiller has got some additional comment to make. MS. HILLER: Commissioners, Georgia Hiller, for the record. As you know, besides being an attorney I'm a citizen environmentalist, if you will. And I don't have any specific credentials in environmental, however, I feel strongly about the environment and I Page 90 June 22, 2007 believe very much in protecting it. When I began working on this case on a pro bono basis, my first concern was whether or not this petition should be brought forward. And that I knew that the -- the standard for sending was whether or not the property -- and if I may read this. And this is per the growth management plan. It was of the highest degree of environmental significant -- sensitivity, I'm sorry, and values. And generally included significant wetlands, uplands and habitat for listed species. And I emphasize the definition requires that it be of the highest degree and with a significant presence of wetlands, uplands and habitat for listed species. And I felt strongly before I could do anything on this matter, I had to assure myself that our property did not fall in that criteria. And that if it did, that my recommendation would be that the petitioner should just stop. And so it was at my recommendation that Mr. Ramsey was hired because I wanted independent, objective corroboration of what Passarella's company had done. And we did receive that from Mr. Ramsey. When we met with County Attorney Marjorie Student-Stirling, we told her that at my request a second corroborating opinion had been obtained. And she asked if she could see the data. At that point in time we didn't even have the data compiled in a book because it was not our intent to submit it to the commissioners in that fashion. It was information that we had compiled for ourselves. And then we were going to have Mr. Ramsey present as a second expert to give his opinion as to the opinion presented by Passarella as of 2002, his opinion as of 2006 and -- I'm sorry -- the present, 2007. And also to have him look at the property independently and tell us if there was anything that would suggest environmental sensitivity as of today. Mr. Ramsey corroborated for me that, in fact, Passarella was correct on every single count and inspected the property for me and Page 91 June 22, 2007 satisfied me that the property was by no means highly environmentally sensitive and there was no presence of any significant wetlands, uplands or habitat for listed species. When we spoke with Marjorie on late Tuesday evening, she asked me for the information and I told her I had to communicate with Mr. Ramsey and ask his permission to present it before I turned it over to her since it wasn't my work product. And after communicating with Mr. Ramsey, he said he needed the time to bind the information to make it available, which it then was turned over to Rich, who, in turn, delivered it on Wednesday to the county attorney's office and for distribution to you all. Because we felt that whatever staff was provided, the commissioners ought to be provided, as well, for their review. So in answer to your question, Commissioner Halas, that is how that information came to the table to you today. And it is nothing more than a corroboration of what Passarella has determined and has presented. COMMISSIONER HALAS: Has stafflooked at this information? Can they give me some guidance on this? MR. HATCHER: I can't say that I read it, you know, word for word. But I went through the environmental reports. The environmental reports are as presented. I still disagree with their assessment, but they're pretty much as presented. COMMISSIONER HALAS: Can you tell me what areas that you disagree with them? MR. HATCHER: I disagree with the assessment that they don't provide listed species habitat for the reasons that I stated earlier. The habitat that was on site in 2002 when Passarella submitted the report should support bears. There's reason to expect that bears were in the area and utilizing the area. The vegetative clearing report for Mr. Acunto's property was Page 92 June 22, 2007 added later. It had nine gopher tortoise burrows on it, which were deemed active. And it was specified that buffers be placed around those burrows when the clearing occurred. It appears that that had happened. COMMISSIONER HALAS: Okay. Can -- do you believe that the CCPC's recommendations are correct that was passed on to us? MR. HATCHER: I concur. COMMISSIONER HALAS: Okay. So what -- when the planning commission heard the evidence that was presented and what they came up with as a recommendation, you feel that that's the direction that we probably should go? MR. HATCHER: I do. I don't agree with the assessment -- COMMISSIONER HALAS: Okay. MR. HA TCHER: -- that the property didn't have listed species habitat on it. COMMISSIONER HALAS: Thank you very much. CHAIRMAN COLETTA: I have got a couple of questions. First off, if this is successful being transmitted and it goes up to Tallahassee for approval by the Department of Community Affairs, we don't know for sure if they're going to approve it or not. They may have a problem with it. Who knows. This may come back rejected. We have no idea what's going to happen there. But when we look at this -- we ought to remember this is going to be a community issue that you have to deal with throughout the whole community that's out there and exactly what the implications would be from it. That's why I would insist, if it does pass, that you do hold those community meetings. However, with that said, let's be realistic. We have got a habitat that's marginal, at best. It's far from what's known as a pristine habitat. It could be improved. I don't think anybody would disagree with that. Do you agree with that, Mr. Hatcher? MR. HATCHER: Sure. Page 93 June 22, 2007 CHAIRMAN COLETTA: I mean, this thing here could be a marvelous place. If you had the resources and the money and the will to do so, you could make it into a habitat that would be unbelievable. My feeling is that we could get to be there in both places. That we could direct the petitioner to start giving it some thought for habitat preservation, something in excess of which we'd find in neutral lands, which is what; 60 percent now? MR. HATCHER: That's, I believe, 40 percent not to exceed -- or 60 percent not to exceed 40 percent of the property. But a large portion of this property has been cleared. CHAIRMAN COLETTA: Well, it's been cleared. But the thing is more of it could be cleared if they don't have the correct designation. They're going to try to get the best use, I would assume, on the property, which may be farmland, grazing land, whatever. And they're able to do that under the -- what is it -- Freedom of Farm Act? COMMISSIONER FIALA: Yeah. CHAIRMAN COLETTA: So we're a little bit over a barrel on this one here. They have an investment in there they're going to recoup or try to recoup in some way, shape or form. So my direction on this is, one, to get the community buy in. Number two, for you to come back with a plan that preserves a vast amount of this. Not only preserves it, but restores it and makes it into the type of wilderness that would be able to support the kind of animals that are out there. And that can be done any number of ways; through clustering, through the green areas and how you cut it, how you do it. There's good land management programs to be put into place. Ifwe kill this thing at this point in time, it's not going to go away. We're not going to gain anything from this. But I think there is the best of both worlds out there if we take it to the next step. Oh, man. I'm telling you, I said something right. I got all four lights on. Let's start with Commissioner Coyle because you haven't Page 94 June 22, 2007 had a chance to speak yet. Mr. Halas just gave his time to you, Mr. Coyle. COMMISSIONER COYLE: Thank you very much. So I've got, what, 45 minutes? CHAIRMAN COLETTA: Don't outdo yourself. COMMISSIONER COYLE: These are very strange proceedings. Let me see if I have this right. This was designated without complete information and now we're going to keep it designated, not because there is any substantial presence of listed species, but because it's someplace listed species could go. That there's habitat there that might be attractive to listed species, but we're going to build some schools in the area, which will result in roads being built, which will likely discourage listed species from using the property in the future. But we're not permitted to use that knowledge for the purpose of determining the classification of the property. It's all very strange. It's very difficult. What happens five or ten years from now when this property is surrounded by roads and there's adjacent schools. Are we still going to consider this sensitive environmental land because somebody -- some bear or some panther might want to go over there and spend the afternoon? MR. YOV ANOVICH: It seems to me it's almost like a field of dreams. If you leave it alone, they'll come. They've never been there before, but we somehow decide that they may show up at some point in the future when all the evidence is to the contrary. And then you want to look at a snapshot and not take in all of the information about what's going to really be out there. As you're pointing out, there's going to be roads and schools. But we don't want to look at that. And then you could -- but we could come back in five years with a private sector comp plan amendment, pay the $16,000 fee. And I Page 95 June 22, 2007 would bet you dollars to donuts, based upon this data, you'd say this is not environmentally sensitive land. It should be redesignated to something different. And I don't know why we need to do that when you can and are actually required -- and Mr. Diffenderfer can jump in and help me. You're required to look at the best available data. And that's what we're presenting to you. And this is all data you already have. It's all in your information banks. We're not giving you anything new. We're not showing you anything you don't already know. This is your financially feasible transportation network. It's the schools master plan. This is all information that you all already know. We're just putting it together in a snapshot to show you this really isn't the location that the panther is going to go to, even though Mr. Hatcher says theoretically maybe they will. COMMISSIONER COYLE: No. Commissioner Halas can't. I was going to use his time now. CHAIRMAN COLETTA: Commissioner Coyle. COMMISSIONER COYLE: The reverse side of that is if we start trying to make those kinds of projections we are going to incrementally reduce the habitat that is necessary for the future survival of the listed species. So it's a very strange process we're going through here. What I don't understand is that if you have permits to clear this land, why don't you clear it -- MR. YOV ANOVICH: It is. COMMISSIONER COYLE: -- and get it done? MR. YOV ANOVICH: It's cleared. COMMISSIONER COYLE: So the habitat that we've been debating doesn't exist there? MR. YOV ANOVICH: No, sir. COMMISSIONER HENNING: It could grow back. Page 96 June 22,2007 MS. HILLER: In fact, that is exactly the point. COMMISSIONER COYLE: Is the cleared land shown on that map? MR. YOV ANOVICH: We're not allowed to show you. MS. HILLER: Yeah, we are. MR. YOV ANOVICH: Staff won't let me. MS. HILLER: Commissioner Coyle, you're absolutely correct. It is cleared and county staff went to inspect it before the clearing was done to validate that there was no endangered species. COMMISSIONER COYLE: Show me an aerial photograph of the cleared property. I don't think that is right either. MS. HILLER: There you go. Back out a little bit. MR. WEEKS: I'm sorry. Commissioner, the piece at the very top here -- this big chunk -- that's already designated neutral, just for your -- COMMISSIONER COYLE: Tell me which parts are designated sending. MR. WEEKS: All of those below my pen. MS. HILLER: Where my finger is. This over here. COMMISSIONER COYLE: Okay. MS. HILLER: This over here is neutral and this down here is sending. And it's all part of one contiguous ownership site. This is all owned by Symphony, but it's bifurcated. So we actually have half the property in neutral and the other half in sending. COMMISSIONER COYLE: All right. Now, point to me the parcels that have, in fact, been cleared since the 2000 -- was it 2002 or 2000 evaluations? MR. WEEKS: 2002. MS. HILLER: It's my understanding all the sites are being cleared, with the exception of these two little ones down here. COMMISSIONER COYLE: Since the 2002 evaluations? Page 97 June 22,2007 MS. HILLER: Yes. COMMISSIONER COYLE: Now, what would staff say about the viability of this cleared land with reference to supporting listed species? MR. HATCHER: If it had been cleared in 2002, I would have recommended it for transmittal as neutral. COMMISSIONER COYLE: Okay. So our problem really is-- MR. HATCHER: For the cleared parcels. COMMISSIONER COYLE: For the cleared parcels. So our problem really lies with the deadline, the cutoff time for the evaluation itself. That seems, to me, to be a procedural issue. Because if the landowner has the right to clear it after the cutoff time -- and I would suggest they probably shouldn't have had that right. But, I guess, they do have that right to clear it even after the cutoff time, then why do we try to apply the cutoff time as a criteria for determining what the property really is? MR. WEEKS: Commissioner, that goes back to the notion of when the landowners were standing before you in 2002. They didn't say, "My land in five years from now will not warrant sending designation." They said that today. Now, it's very relevant the fact that this property, or any others, can be cleared. And they all can. We still allow agricultural uses consistent with the Right to Farm Act on those sending lands. Based on legal counsel's advice back in 2002, we adopted the regulations that way. So these various landowners could go out for bona fide agricultural uses consistent with the Right to Farm Act to clear the property. And that information certainly would be relevant if someone submitted their private sector amendment to make their case. But the specific provision that you adopted into the growth management plan goes back to the status of the property in 2002. That's a narrow focus. Page 98 June 22, 2007 COMMISSIONER COYLE: I'm trying to get to the bottom of all this. Is the problem that the petitioners don't want to pay the $16,000 to do a private amendment? MS. HILLER: No, no, no. Not at all. COMMISSIONER COYLE: Okay. Then why don't you do a private amendment and get this thing taken care of? MR. DIFFENDERFER: On a separate site, which means we can't apply until April of next year. Let me address -- because you nailed it when you first started talking about it. I'm Bob Diffenderfer, Lewis, Longman and Walker for Symphony. In the 20 odd years I've been doing this, I've never quite seen a procedural posture like the one you've got here. And there's both good news and bad news on what has been done. In 2002, when this effort came forward, you did get those assertions from the property owners that the site specific information relative to their properties did not support the designations and you created a mechanism to deal with it. And under the mechanism you created to deal with, it should have been done three and a half years ago, more or less. But it wasn't, for whatever reason. So what. The law helps you out here. Chapter 163, 31776-A, which is the requirements of the growth management act related to your future land use plan, say that the future land use plans shall be based on surveys, studies and data regarding the area, right? That's what you've got. You've got surveys, studies and data from 2002. You've got surveys, studies and data recently corroborating what happened in 2002. Your fix -- the relief mechanism you created in 2002 needs to be done by a plan amendment. And that's what we're here for today. We're at a transmittal for this set of county initiated plan amendments. Those amendments -- the relief mechanism you created in 2002 doesn't say that the data has to have existed as of June 19th, 2002. Page 99 June 22, 2007 That language isn't in your comprehensive plan. The law requires you to use the best available. And if you look to the rule, 9J-5.005(2) for the data analysis requirements, it says, again, like the statute, that the plan or plan amendment shall be based upon relevant and appropriate data and the analyses applicable to each element. Local governments are encouraged to utilize any original data necessary to update or refine the plan and the data shall be the best available existing. So the sort of historical accident, if you will, that we're standing here in 2007 trying to implement the relief mechanism you put in place in 2002 gives you the opportunity that Mr. Woodruff said you don't often get, which is a time series. Instead of a one-time snapshot look at what was on the ground in 2002, you have a base period to evaluate that data. The data -- and you heard it. It's unrebutted. There's no utilization. The telemetry data shows no utilization of the site by panther or bear. And that remains true. You heard the experts tell you in 2002 they do not consider this qualified for sending. That's true today. So you have the benefit of something which you don't often get, which is a longer period of time to look at it. I think the law tells you, you have to use the best available data and analysis. And that's what has been presented. So, regardless, of whether it was intended in 2002 to get on this right away and have this resolved in a year, that didn't happen. But that, again, I think gives you the benefit of having this time series to look at. So I think it's appropriate to consider it and transmit it for redesignation as a neutral area. COMMISSIONER COYLE: Well, I'd like staff to respond to a question. This right to permit clearing of the property seems to provide an opportunity to bypass the original intent of the designation itself. Page 100 June 22, 2007 (Commissioner Henning left the boardroom.) COMMISSIONER COYLE: Ifwe don't apply time frames to this, what is the logical result? Would it be that property owners then will clear the land, demonstrate that it cannot support any endangered species or protected species and thereby use that justification to change the classification of all of the property that was designated under the rural lands mixed use district? MR. WEEKS: Commissioner, that's correct. The landowners could clear their property subject to the county's agricultural clearing requirements and any state or federal regulations that might be relevant. And then subsequently come in and say, "County, it doesn't warrant this designation, file their own private initiated plan amendment to accomplish the redesignation of the property." COMMISSIONER COYLE: And they can do that under current law at any time they wish? MR. WEEKS: That is correct. Now, there's also-- MR. SCHMITT: There's a provision now that if you clear it for ag, it stays ag for 25 years. MR. WEEKS: Right. Go ahead, Bill. MR. LORENZ: Just a second. I'm sorry. COMMISSIONER COYLE: Does ag classification include growing rocks, mining? MR. LORENZ: For the record, Bill Lorenz, Environmental Services Director. Just to clarify what Joe said. If you come back in within 25 years for a different use, other than the agricultural use, then you have to re-create the habitat that existed when you cleared it. So then the retention requirements would apply at that particular point. If you cleared it, you went through for agriculture, used it for agriculture and had for 25 years, then you would not have to re-create the habitat. COMMISSIONER COYLE: But they could do earth mining for Page 101 June 22, 2007 that period of time? MR. LORENZ: Under a neutral designation, yes, that-- COMMISSIONER COYLE: Only under a neutral designation or how about ag designation? How about ag? MR. LORENZ: Agriculture they can -- they can use -- they can do agriculture under -- is it non-NRP A sending, Laura? And they can use -- they can do agricultural under sending and neutral designations. (Commissioner Henning returned to the boardroom.) COMMISSIONER COYLE: But how about can you do earth mining under agricultural designations -- MR. WEEKS: Let me -- COMMISSIONER COYLE: -- in a sending or in a neutral? MR. LORENZ: That gets into the zoning classification. I'll let David Weeks speak to that. MR. WEEKS: Commissioner, the agricultural designation is not applicable here. It's sending, receiving or neutral. And, of course, there is agricultural zoning, which these lands have. I think your question there has specifically to do with earth mining. Under a sending lands designation, no, not allowed. Under neutral and receiving, excavation will be allowed through the conditional use process. CHAIRMAN COLETTA: If they ask for that. COMMISSIONER COYLE: So the process is this: If you've got sending lands right now, what you must do is you must get a clearing permit and clear it all. And at that point, since there's no habitat to be protected, you apply for a neutral designation. And then with the neutral designation you can do the earth mining as you wish. MR. YOV ANOVICH: No. MR. WEEKS: All subject to your approval, yes. MR. YOV ANOVICH: You have to go through the conditional Page 102 June 22, 2007 use public hearing process before you can do earth mining. It's not just -- COMMISSIONER COYLE: It is -- MR. YOV ANOVICH: Right. COMMISSIONER COYLE: Yes. Okay. But it gets you out from under the sending designation? MR. YOV ANOVICH: By clearing the land? COMMISSIONER COYLE: Yes. MR. YOV ANOVICH: Yes, sir. And that's kind of the issue you have is that by pushing someone into the sending category, you almost force them to clear the land in lieu of providing another designation. COMMISSIONER COYLE: That's exactly what I'm getting to. MR. YOV ANOVICH: Ifwe had neutral, we would have kept the native -- the 60 percent of the site -- 60 percent of the native, not to exceed 40 percent of the site. But we were almost forced -- COMMISSIONER COYLE: Would you give up the right to do earth mining? MR. YOV ANOVICH: Well, let me -- can we do this? I can tell you personally that in all the dealings I've had with the client they have never once mentioned the desire to do earth mining. If we could transmit -- because I don't have my client here today. Between now and the adoption hearing, I can find out the answer to that question as to -- right now I don't know of any desire to do it. I now get the message that you don't want any. So I know what to advise my client the answer needs to be at the adoption hearings. If we do the transmittal, we'll come back with the answer to that question. COMMISSIONER COYLE: I guess my concern is not so much to restrict you from doing a particular activity as it is to encourage the retention of habitat for protected series -- species. You've already cleared this land. I can't in good conscience say that I'm confident that that is beneficial to the listed species. It would Page 103 June 22, 2007 have been much better, I think, had you retained the original vegetation there and we had redesignated it to neutral. MS. HILLER: Commissioner-- COMMISSIONER COYLE: I think that would have been a better result for everyone involved. Because now with the land cleared, we lose the habitat and we haven't gained anything. MS. HILLER: Commissioner, if! may. I'd like to bring a couple of points that I think are important to your attention. And that is that -- first of all, the Right to Farm Act does give all the properties in the area the right to clear their land. Both the properties that were designated neutral and receiving before the June 19th date, as well as those properties that haven't been subsequently. I think it's worthy of note that in the 2002 evaluation whether or not sites were cleared was considered by staff. However, one thing I found is that staff did not consider whether those sites were cleared legally or not. As a result, I have a problem with sites that have been designated in some instances neutral and in some instances receiving where I am not certain that those sites had, in fact, been legally cleared. Notwithstanding that, you, as a board, conferred the benefit of a favorable land designation on these sites very possibly on the basis of an illegal act, which obviously opens up a Pandora's box. The second issue is that it goes back to what you stated earlier. And that is that all these properties in this entire package called the RFMUD had the right to clear. And so you can look at it one way or you can look at it another way. And the options are that you look at all the properties as if they were cleared or you look at all the properties as if they were not cleared. But you can't treat properties disparately under the same law. And that law is that they all have the right and had the right to clear. Albeit, all had to do it legally. And the proof is on the landowners to come to you and show you the permits, which is what we did. Page 104 June 22, 2007 And we did everything by the book. The permits were pulled in 2002. The county inspected the property and found no habitat that was present, any habitat related to any endangered species. COMMISSIONER COYLE: If I thought you had done this illegally, we would not be having this conversation because I would have voted against you a long time ago. MS. HILLER: Right. It was corroborated. COMMISSIONER COYLE: So that is an irrelevant issue for me right now. And there's no point in taking up any time with respect to those that did this illegally because they can't expect to get my vote of support. MS. HILLER: Right. COMMISSIONER COYLE: But you did it legally here and that is a different situation. And it's already been done. So I don't know that we've accomplished anything with this discussion, other than to get a better understanding of the risks here. But it's still a very -- we're in a box. CHAIRMAN COLETTA: And you just used up Commissioner Halas' time. He pushed his button. COMMISSIONER COYLE: Well, he's responsible for it because it was his time I was using. CHAIRMAN COLETTA: We're going to come to you next and Commissioner Henning after you. COMMISSIONER FIALA: Because Commissioner Coyle was saying almost exactly my notes here. The reason they cleared it is so that there isn't any habitat out there for -- for any listed species. So why not? Of course, now what I -- I equate this to another piece of land that Rich Y ovanovich just continued to the next meeting, also Hussey properties, also a place they want to mine, loaded with listed species -- please, let me finish. Loaded with listed species and they've threatened -- maybe the Page 105 June 22, 2007 better word is vowed -- that they'll clear that as well, listed species and all, in order to be able to mine it. So here we go. Here's a fine example of what's going to happen. You say you're sensitive to the environment, but here they go. That's going to be the next one. So they've cleared this. And I'm here to tell you if this comes back for any type of mining whatsoever, I'm not voting for it. I don't care what zoning. I don't care how they've cleared it. I'm not voting for it. Now, onto the staff recommendation, as well as CCPC recommendation. There's already a motion on the floor and it's seconded to approve it. I just wanted to make sure that that approval comes -- COMMISSIONER HENNING: We don't have a motion on the floor. COMMISSIONER FIALA: Yes, we do. Yes, we do. CHAIRMAN COLETTA: We have a motion and second to transmit. COMMISSIONER FIALA: We have a motion to transmit made by Commissioner Coletta, seconded by Commissioner Henning. And I wanted to know does that include excepting -- except parcels 43, 56, 61, 70 and 79 or is it for the whole batch? MR. SCHMITT: Can we go back. Commissioner, for the record, first of all, you mentioned that this was the Hussey property. It is not. It's the Symphony properties. So we can clarify that. COMMISSIONER FIALA: Right. But they said it's owned by partially the Husseys. MR. YOV ANOVICH: No, no, no. MS. HILLER: No. MR. YOV ANOVICH: They're totally different. These are parcels three through ten. MR. SCHMITT: These are parcels three through ten. Page 106 June 22, 2007 MR. YOV ANOVICH: The numbers you just read off have nothing to do with this presentation. COMMISSIONER FIALA: Okay. MR. YOV ANOVICH: Just to make that clear. COMMISSIONER FIALA: Okay. But it's the same format. Clear the property so we can do whatever we please and the heck with you guys. I mean, that's what it all boils down to. MR. WEEKS: Commissioners, right now we're discussing only parcels through three through ten. I believe that's what your intent is with your vote that you're taking. It's just for those parcels. Then next we'll get to the second batch of properties, then we'll be done, which is the Hussy property. CHAIRMAN COLETTA: Commissioner Fiala, anything else? COMMISSIONER FIALA: No. CHAIRMAN COLETT A: Yeah. I'm going to jump in for just a moment. I'm doing this for time sake. I don't want to get you aggravated. And you're closest to the door, too. Once again, we know there's damage done. We have got to be realists here. You know, with the Right to Farm Act -- COMMISSIONER FIALA: It's not right. CHAIRMAN COLETTA: I know. It's not right, but it happens and it will happen again. There was a flaw built into the system from day one. Now, the question is: How do we salvage what is there? And it's not by giving you cart blanc to go out there and do whatever you want. I want to see something, to restore this land, to bring it back to something for natural habitat, that the -- the habitat that was out there before not only be replaced, but enhanced. It might be quite a few years before we get to that point. There's got to be some convenient way that we come up with a way to restore the land and be able to meet the needs of the wildlife that's out there and still be able to protect your client's rights to a reasonable use of Page 107 June 22, 2007 the land. MR. YOV ANOVICH: And what I heard Mr. Lorenz say is that if we become neutral and we desire to do anything but ag, we are required to restore the habitat that we took away to the required neutral designation, which would have been 60 percent of the native vegetation that existed at the time, not to exceed 40 percent of the site. So you will get that restoration. You're never going to get restoration to what was there naturally, unless you get rid of the canals. And we know those canals aren't going away. So we will do a restoration, but you're never going to get a pristine wetland, unless the canals go away, which isn't going to happen. We would be required to restore if we decide to do anything but the ag uses. So you'll get that back. CHAIRMAN COLETTA: And I'm telling you more than restore. Bring it to something that the level will be compatible for what's needed out there. I don't know if 40 percent or 50 percent is enough. I want you to think on the level of something with a higher restoration rate and to put the homes in a such a way that they are at an advantage for the wildlife to be able to have use of this land in a meaningful way. People who live out there have to accept the fact that there's panthers and bears because you're restoring the habitat that's going to affect them. And they're going-- Commissioner Henning. COMMISSIONER HENNING: Thank you. You probably ought to just put a goat out there for the listed species. I'm sure that they would enjoy that. If you can zoom in that just a little bit more, David, please. That's the -- that's the Bonita Bay property. And I know Commissioner Halas and Commissioner Coyle Page 108 June 22, 2007 wasn't here when we did these amendments. That is receiving property, okay? That's offImmokalee Road. And if you could see part of the lands to the left or right, some of it's agricultural and some of it's Golden Gate Estates. Now, can I have the map of the Symphony property? Okay. If you look at the vegetation to the -- to the right of the screen, you could assume that's what it looked like prior -- prior to it. MS. RAMSEY: Actually, I've got it right here. Here it is. That's 2000. MS. HILLER: It always has been. Commissioner, because it's so dry, it has always been sparsely populated with vegetation. COMMISSIONER HENNING: It is uplands. MS. HILLER: You know, this is -- this is not wetlands. So when you look at the way it was before it was cleared, the site had less than -- or I would say more than 75 percent of the site was grass and maybe shrubs. And, as I understand, there were cattle there and -- COMMISSIONER HENNING: Georgia-- MS. HILLER: And less than 25 percent-- COMMISSIONER HENNING: We can see that. Now, would you take that off, please. MS. HILLER: Yeah. COMMISSIONER HENNING: Okay. Now, here's my perspective. The big landowner got a heck of a benefit from the Board of Commissioners in 2002. The little guys down in this area did not get the same benefit. Obviously, if you look at that, this is wetlands. And maybe some of the environmentalists could assist me. And further down, Mr. Brown's property was vegetated -- MS. HILLER: Absolutely. COMMISSIONER HENNING: So-- MS. HILLER: And had wetlands and telemetry points. Page 109 June 22, 2007 COMMISSIONER HENNING: And the only one that -- the Garguilio property on the south side, that's all farm lands. But, to me, the little guy got the short end of the stick here. And I feel more comfortable submitting this, at least at neutral, because this is receiving, Commissioner Fiala. We voted -- you and I voted to make that receiving. I don't know anything about -- but I'm learning about it. You know, vegetation. It's obvious that this is all vegetation. It's obvious to me that it has wetlands on it. So why are we concerning ourselves about 80 acres that is uplands and clearly was pasture lands prior to it and you took a little bit -- more vegetation off of it? You know, what are we doing questioning this? CHAIRMAN COLETTA: Let's move along. We still have another issue to take care of after this one. We have Commissioner Halas and hopefully we can take a vote on this. COMMISSIONER HALAS: I understand where we probably encourage farming, but I'm concerned about clearing land with the intent of not farming it, but to further exploit it. And I have some real concerns on it. COMMISSIONER HENNING: I do, too. I do, too. MR. YOV ANOVICH: Can I mention that Mr. Clark when he cleared it was a farmer. He was -- COMMISSIONER HALAS: Is there any crops growing on it today? MR. YOV ANOVICH: He was a tree farmer. And, frankly, what ended up happening is the school board targeted a portion of his property for acquisition because of its lack of environmental sensitivity. And they ultimately backed off on the property because they didn't want to pay him what it was worth. But that's an aside. What I'm saying is he was a farmer and eventually decided time Page 110 June 22, 2007 to move on, go somewhere else. But he didn't clear this with the intent of not doing his business. Because he was a farmer. It's not like I bought the property and cleared it pretending like I'm a gentleman farmer like on Green Acres and then all of a sudden I try to sell the property. COMMISSIONER FIALA: You silver-tongued rascal, when was it cleared? MR. YOV ANOVICH: 2002. CHAIRMAN COLETTA: You're mean. COMMISSIONER COYLE: She got the rascal part right. MS. HILLER: Commissioner Fiala's question is very clear and very important because Symphony did not clear it. We bought it in that state. It was never our intent to do anything to be invasive. CHAIRMAN COLETTA: Ifwe don't understand this by now, we never will. We're repeating ourselves. We're driving this thing to this point where it's not -- we're just repeating the same facts over and over agam. COMMISSIONER FIALA: You need to sit down. CHAIRMAN COLETTA: If you don't understand it by this point in time, they never will. Commissioner Coyle, your light's on. Is that an accident? COMMISSIONER COYLE: No, it's not an accident. I want the staff to -- to tell me that we're not going down the wrong path. It seems clear that the majority of the board is interested in -- in forwarding this to DCA for approval because we want to encourage the retention of what remaining vegetation exists on the property and we want to maintain habitat for the listed species, rather than having it all cleared. So if we do that, are we walking into a trap somewhere? MR. WEEKS: Commissioners, I think what you're dealing with -- I'll be as brief as possible. Again, this goes back to the plan amendments that were adopted in 2002. The Right to Farm Act Page 111 June 22, 2007 agricultural uses are allowed, period. We can't stop someone from going out and clearing their land subject to clearing permit requirements and state and federal requirements as they may apply, as well. The end result is any given portion or all of the sending lands could end up cleared. I mean, our objective, of course, in designating them so was to see them protected. But the bottom line is we cannot mandate that protection through these regulations. If you want to call it a loophole, then sobeit. But it is an allowed use. The Right to Farm Act agricultural uses. So I don't think there's a way we can stop, regardless of your action on this petition today. I don't think there's a way we can stop landowners from coming in and lawfully clearing their sending lands. COMMISSIONER HENNING: Unless it's sending lands, right? MR. WEEKS: I'm sorry. Even sending lands-- COMMISSIONER COYLE: Ifwe were to support the redesignation of the land to neutral, can we qualify the use of that property as a result of our vote to adopt? I'm just trying to keep the silver-tongued rascal from -- COMMISSIONER FIALA: Rascal, yeah. MR. WEEKS: Commissioners, right now this is a map amendment only and that's all that's provided for through this provision. I'm going to turn to Marjorie and see if she has any comments. MS. STUDENT-STIRLING: I do. MR. WEEKS: Because to limit uses we need to amend the text. MS. STUDENT-STIRLING: I have an idea. If you want to transmit, somehow put in there -- direct the applicant to come back with a private amendment where these other items can be addressed within a certain time period. COMMISSIONER COYLE: What other items? MS. STUDENT-STIRLING: The items-- Page 112 June 22, 2007 COMMISSIONER COYLE: Any restrictions on the use of the -- MS. STUDENT -STIRLING: Yes. Like preservation requirements and any other restrictions. CHAIRMAN COLETTA: You have to get the Chairman's permissiOn. MR. YOV ANOVICH: Mr. Chair, briefly, I promise. CHAIRMAN COLETTA: I know you'd do that, you rascal. MR. YOV ANOVICH: I know. Nothing up my sleeves from a couple of weeks ago. What David said about opening up Pandora's box because of the Right to Farm Act is not totally correct because he is assuming that we don't have to comply with wetland permitting and dealing with listed species. So we still address those issues through the Right to Farm Act. And in this particular case we didn't have any of those issues, so we didn't run afoul of any listed species permitting requirements and wetland requirements because we stayed out of listed species habitat and we stayed out of wetland areas. If somebody else in the sending area wants to go clear, they're going to have the same restrictions. So you're not going to be able to just go and clear all the sending lands. And your other issue, we well address -- we'll find a way to get there with the commission on the concerns that you have. But keep in mind it's our position in 2002 it was not a listed species habitat. And we can assure you through this process to get you to where you want to be on the habitat issues. CHAIRMAN COLETTA: Fine. With that, Commissioner Coyle, are you there? COMMISSIONER COYLE: I'm finished talking. CHAIRMAN COLETTA: Any other comments? (No response.) CHAIRMAN COLETTA: Seeing none, all -- the motion made Page 113 June 22, 2007 by myself -- wait, who made the motion? I made the motion. COMMISSIONER FIALA: Yeah. CHAIRMAN COLETTA: Made the motion, seconded by Commissioner Henning to transmit. Any other comments? (No response.) CHAIRMAN COLETTA: Seeing none, I'll -- COMMISSIONER COYLE: There was a -- CHAIRMAN COLETTA: Is that finger loaded? COMMISSIONER COYLE: Yes. Yes, it is. There was a qualification suggested by -- MS. STUDENT-STIRLING: The suggestion -- I was just going to ask you if you wanted to make that part of your motion that you direct that this applicant come back with a private amendment within a time certain, determined by the board, to do a private amendment that would address preservation and other issues for the site? CHAIRMAN COLETTA: But this would still keep this process going forward? MS. STUDENT-STIRLING: Yes, it would. CHAIRMAN COLETTA: Yeah. Any comments on that? I think it was you that suggested that, if I remember correctly, about the private amendment. MR. YOV ANOVICH: You know, at the risk of being creative, what we could do is we could transmit this right now as a private amendment with those restrictions in it. We'll pay our fee so it will be a private amendment. And at adoption time you'll have all that. You've got the restriction. You want us to restrict the uses, I'm assuming, from what I've heard, and we'll transmit that way with your restrictions. COMMISSIONER COYLE: You're going to have to pay a substantially higher fee because you're getting it expedited. Page 114 June 22, 2007 MR. YOV ANOVICH: You've done this to me. $16,501. I think I'll pay sixteen five. COMMISSIONER HENNING: You know, I've got a question. Why can't you do this at the conditional use or the -- or the rezone? Why can't you put the further restrictions on it like we always do? MS. STUDENT-STIRLING: You can. I think that there's some concern though on the part of the board about just transmitting this cart blanc. MR. WEEKS: Commissioner, there's another point. If this is changed to neutral, it depends on what type of development on the property occurs whether or not they come back before you. If they want to do a clustered multifamily development, for example, or residential development, that could be done administratively through a site development plan. They mayor may not have to come back before you. Earth mining, absolutely. COMMISSIONER HENNING: That's what the condition should be. That there will now be -- there shall not be any -- they have to come back for the rezoning, whatever you do on it. That should be the restriction. The growth management plan -- COMMISSIONER COYLE: They don't have to. MR. WEEKS: Commissioner, they would not have to come back for a rezoning. As neutral designated, they would be limited to one dwelling per five acres for residential development. The only approval they might need from you would be for a subdivision plat, which is a technical -- COMMISSIONER HENNING: Let me ask you a question. Can we condition it now? Can we put language in here that any activity would have to come back for a rezone? MS. STUDENT-STIRLING: Well, I don't know. It would have to -- I mean, it would have to be -- really be a rezone. And if you can already do it, I don't see how you would rezone it. That's why I thought if they came back with a more specific plan Page 115 June 22, 2007 like we've seen with many other private plan amendments. They're extremely specific. That that would give you the comfort level that you need because I sense, and rightly so, that there is some concern that you have about approving this cart blanc. COMMISSIONER HENNING: Thank you. CHAIRMAN COLETTA: Forgive me. But if this goes to the state and is transmitted, it has to come back to us then. MS. STUDENT -STIRLING: That's correct. CHAIRMAN COLETTA: At that point in time we can insert those particular elements, can't we? MS. STUDENT-STIRLING: Well, the only issue that I have with that -- and I think staff is going to weigh in here. The purpose of this hearing today was to only look and see if that original designation in '02 was proper from an environmental standpoint. It wasn't to deal with what you'd normally deal with on a private amendment. So it has a more limited focus. So that's why, in trying to think all this through, to me, it would submit logical sense -- because the focus is limited here -- to come back with a private amendment. I understand the issue about -- you know, it's not maybe a form over substance type argument. But maybe if staff -- if you get staffs input on that, if you can go further beyond the limited focus today from their perspective. But that's why I was -- I came up with that idea to try to -- CHAIRMAN COLETTA: It's getting confusing now. I definitely don't want to lose the advantage -- MS. STUDENT-STIRLING: I don't want to confuse you. CHAIRMAN COLETTA: -- of having them have to -- if they do come out to the end to get to where they need to be. I want to make sure that we have a restoration effort that will take place. I understand under -- if they're neutral lands, they have to restore 40 to 50 percent of the land. MS. STUDENT-STIRLING: Right. Page 116 June 22, 2007 CHAIRMAN COLETTA: I want to see something above that. I want to see the whole project put together in a way that it's friendly to the environment. I don't know if I'm comfortable trying to do it here. I don't have another opportunity you're telling me? MS. STUDENT-STIRLING: No. I understand. Yes. COMMISSIONER HALAS: There's a limited focus. MS. STUDENT-STIRLING: This is a limited focus today. It would be analogous if you were doing a conditional use petition to bring in a variance as part of the conditional use. If nobody really started the process yet, by analogy, so maybe it makes it more understandable. Because this is just to go back in time and look at the data and see if those lines in '02 were drawn correctly or not. So the reason I have a little bit of an issue about it is using this process to do what we'd normally do in a private amendment. But, you know, if staff is willing to look at it that way and so forth, you know, we could possibly entertain it. The other caveat I want to put on the record about that is when we -- if we were to do that, we don't have the benefit of the work report from DCA. We'd just be going in. And ifthere was something about that they didn't like, we'd be writing an administrative hearing. So taking all those things into account, that's why I suggested having them process a private amendment to accomplish these goals. CHAIRMAN COLETTA: Okay. Mr. Yovanovich, let's get this thing on the road. Help us with this. MR. YOV ANOVICH: I personally believe what you can do is you can adopt an amendment today that says this property should be redesignated neutral and it should be required that if we come in and develop it that we have to do -- we have to restore the property and we have to delete the use of earth mining is what I think everybody is saymg. If you can adopt that amendment, we write it up -- this isn't getting transmitted anytime soon. You can adopt that amendment Page 117 June 22, 2007 today, that language, and then have DCA comment on that. I don't think you're prohibited from doing that if you, the board, want to do that. Just because you're in this process that said you wanted us to come back as a map change, that doesn't stop you from saying, "We would like, as the board, to do a map change plus. Staff, go write the language." CHAIRMAN COLETTA: Okay. MR. WEEKS: Mr. Chairman, I need to ask legal counsel a question. This has been advertised as a map amendment only. How can we now transmit this with text? MS. STUDENT-STIRLING: That was the point -- all part of the point that I was trying to make where it's like you have a conditional use and you're trying to make a conditional use and a variance what wasn't applied for. Mr. Schmitt. MR. SCHMITT: I want to get out -- move away. Why don't we take that -- we'll take the language, we'll propose it, but then during adoption we would advertise it as a text amendment, as well, if you want to add that. We have got to identify that to DCA that you identified this as a provision. And we'll send that forward to find out what their comments would be during the report. But when we do the adoption hearing, we would have to then advertise it as a text message, if you want to add that provision. COMMISSIONER COYLE: Okay. That's the reason Marjorie suggested you divide it into two parts. We go ahead and forward today suggesting it be redesignated as neutral, but we require that the petitioner come in at some specified time with a private amendment. They pay their fee and then we will put whatever qualifications on the private amendment we need at that time. Because we'll have a chance to debate it then. We can't think of all of them now and we haven't advertised -- Page 118 June 22, 2007 CHAIRMAN COLETTA: We can't do it here. COMMISSIONER COYLE: That's right. CHAIRMAN COLETTA: Okay. I include that in my motion. Commissioner Henning. COMMISSIONER HENNING: You bet you. CHAIRMAN COLETTA: So we have -- thank you very much for working through that with us. I do appreciate it. Everybody put in their input. I think we're there now. And with that, no other comments? (No response.) CHAIRMAN COLETTA: Seeing none, no fingers up -- COMMISSIONER HALAS: Whoa, whoa. This is for items three through ten, right? CHAIRMAN COLETTA: Three through ten. Okay. With that, all those in favor indicate by saying aye. CHAIRMAN COLETTA: Are you ready, David? MR. WEEKS : Yes, sir. Item #2K PETITION CPSP-2005-14: RE-DESIGNATION OF SENDING LANDS TO EITHER NEUTRAL LANDS OR RECEIVING LANDS (MAPS 25-31) Commissioner, the final action today is to consider on the same petition CPSP-2005-14, the map parcels numbers 25 through 31. This is referred to as the Hussey property. MR. VEGA: Good afternoon, Mr. Chairman, Commissioners. My name is John Vega. I'm here on behalf of the petitioners, Francis and Mary Pat Hussey. The Husseys have owned this land, what I have shown you in the geographic scale, since -- the two bottom portions have been owned Page 119 June 22, 2007 since 1979, the area to the northern part has been owned since the early '80s. Since that time -- since the early '80s it has been used as a ranch. There has been an active cattle lease on the property. It has agricultural designation and tax status from the county tax appraiser and has for over 20 years. Going back through the official records, I have been able to determine that cypress on the land and some other trees were logged back in the 1950s. But other than that, there does not appear to have been significant logging since that date. It was designated as sending in the -- in the rural fringe amendments and is not NRP A sending. As you can see on the visualizer, the county landfill is immediately to its west. There is a section of residential properties adjacent to it between the landfill and to its west. It is that moment to its north in the green hatched area is areas that have been -- have applied for a mining permit. Those are receiving lands. The blue areas, as you can tell, are the extension ofthe AP AC mine. And all of those little yellow areas are little -- had some holes in the donut. That, in large part, the crosshatch yellow area, is a receiving area that is part of the Florida Rock Mining petition. Also, immediately to the north of the Hussey property you can see some agricultural and farming operations taking place. The second map that I would like to show -- can I zoom out a little bit? These are the initial two parcels on the southern boundary that I mentioned. This is the parcel to the north. As you can see, these are all the streets; Markley, Everly, Crawford, Washburn. In this area, that has all been subdivided into five-acre homesites. And from the property appraiser's aerial, you can see that those homesites are being constructed. The other extremely significant aspect on this and on the previous diagram is the 1-75 canal. It immediately borders the Hussey property. And as I'll get to, it has dramatically changed the hydrology Page 120 June 22, 2007 of the Hussey property. That hydrology was changing back in 2002 and it has been changing ever since the canal was dug and it continues to change. Also on this map, with the exception of my current understanding from the public meetings, is that this haul road is going to skirt this property here. You can see the proposed Florida Rock haul road, which will come down here and sever the Hussey property not only along its southern boundary, but isolate it from the NRP A areas, which are further to its east. In a -- bearing in mind Mr. Weeks' thoughts, in 2004 in submissions in October and in November, I put together a thorough set of additional data, which I have supplied to the county. The November submission is water monitoring data to document the hydrology statements that I made in my October presentation. And in October is a fair amount of detailed information as to why continuing the sending designation may have been inappropriate at its inception and remains inappropriate. My first objection, which I think is quite relevant, is that under 9J-5, the counties are allowed to consider the presence of valuable mineral rights in determining their growth management plans. And all of the criteria that were put forth by staff as to what was looked at in determining where to draw the lines, mineral rights was never considered. Mineral rights are very valuable. You need a very large parcel of land in order to extract them in a cost-effective manner. DOT road grade limestone is in short supply. It's being trucked in from the east coast and down from Lee County. Its costs have gone through the roof because of the expense of gasoline of trucking the rock. And the presence of this rock existed at the time that the rural fringe amendments were drafted. I objected both at public meetings, town meetings and at the adoption. And I have included as an exhibit to my letter of October '04 the drilling results, which demonstrate the Page 121 June 22, 2007 presence of the limestone on the property. It is from Mactec, M-a-c-t-e-c. Given the scarcity of rock and the price of roads in Collier County, I think the presence or lack of rock in some of these areas was an important factor that should have been considered and was not. And that's 9J-5.013 2(C)2 so you can tell that I'm not making that part up. The second argument that I pointed out was that there was a representation that there was significant wetlands on the receiving lands. That representation was based on a vegetation map, which was prepared by South Florida Water Management District, which was, in turn, based on infrared aerials that the U.S. Geologic Service had taken in late 1994 and early 1995. These infrared aerials are updated every five years. There were updated aerials at the time that the rural fringe amendments were adopted. Those were not reviewed. There were also very current property appraiser aerials, which are high resolution. They are not infrared. But given the resolution, they are very valuable. That is important because of the effect of the canal. When you change the hydrology of the land you can no longer look at the vegetation and determine whether or not they are functioning wetlands. And that's from the Florida uniform wetland criteria. There is a handbook. These are called -- what is known as relick wetlands. They may have been wetlands at some point in time. They still have some remaining vegetation, which from an old aerial might suggest that they're wetlands. But if you actually dig a water monitoring well, you will find out that they're not wetlands. And that is the attachment that I have given in my November letter. We engaged two sets of people. We engaged Breedlove and Dennis, which is an engineering and environmental firm out of Orlando which specializes in wetland designation. They reviewed the most up-to-date property appraiser aerials that existed at the time of Page 122 June 22, 2007 adoption, which were, I guess, 'Oland '02, as well as the more recent USGS infrared aerials, which were the 1999-2000 cycle. They concluded -- and I attached that as an exhibit to my submission -- that there were only three relatively small wetlands on the Hussey property. Rather than being 80 percent wetlands, as might have been suggested, they were only 15 percent wetlands. To further bolster that, we retained Brown Collins of Synecological Analysts to dig water monitoring wells. Under Florida law, in order to be a wetland you have to have some active water in the soil. The designation is whether or not the groundwater comes within 12 inches of the surface for a period of at least 14 days. Mr. Collins dug the wells, took -- during the dry season took monthly readings. During the wet season, he took weekly readings. Those are attached as an exhibit. Of the eight wells that he dug in 'Oland '02, and since has supplemented, in areas that were thought to be wetlands by the old aerials, but were not designated as wetlands by Reed Love and Dennis, he found not that not only was there no water for 14 straight days, the water never came within 12 inches of the surface. The canal is draining the Hussey property and it has been for decades. And you cannot rely on an aerial and vegetation and pretend that wetlands are there, which aren't there. The third point which I made, and perhaps anticipating Commissioner Fiala's concerns, was there are portions of this property that have legitimate significant environmental significance. It is 1,000 acres. I wish I had the luxury of defending an 85-acre parcel. I could probably carve 85 acres out of here that are desert. The reality is it's a big parcel of land. And in a big parcel of land there are going to be some areas that are environmentally significant and there are going to be other areas that aren't. We engaged Hoover Planning and Development, as well as Maureen Bonness, as well as Roy DeLotelle to go out and to do a Page 123 June 22, 2007 complete listed species inventory. And we supplied that to the county back in 2004. The data -- the data was not staffs. The data was ours. We found some very interesting things. Bordering the property on its eastern edge, mostly in 33, but partly on the property is a red-cockaded woodpecker colony. There are cavity trees on site and also off site in this direction. Similarly, on the southwestern border there is a colony on this side which has three colony trees that exist here. In one of the areas designated as a wetland by Reed, Love and Dennis up in here, which is just a tiny corner, there was some listed species activity, primarily wading birds. That's significant. So the question which we asked to Maureen Bonness and Roy DeLotelle was: How can we enhance -- well, first off, is this habitat good habitat for the red-cockaded woodpeckers? Their report is attached as an exhibit, Exhibit H. And I want to quote to you a couple brief portions of it. In describing the property the reports states: The property also contains areas impacted by humans, including cleared areas of cypress forest, disturbance by cattle grazing, alteration by fire suppression and damaging wildfires and wetlands drainage, particularly the 1-75 canal. The question asked is: Ifwe leave it alone, is it going to be good habitat? And the answer was: One key to RCW preservation and enhancement in the Belle Meade area is land management that includes removal of exotic species and proper fire management of the pine forest ecosystem. Even if the entire area was preserved from clearing, the survival of these endangered birds is doubtful without proper habitat management and population expansion techniques. For example, the Melaleuca invasion and encroachment of young pine trees in the midstory due to fire suppression is probably responsible for the loss of ten or more RCW groups, the majority of the South Belle Meade population. One concern that Mr. DeLotelle had came to fruition in the year Page 124 June 22, 2007 since then, which is out of wildfire. It has not been cleared. It's 20 years of dry brush out there. There is no money from cattle grazing to go out and clear it. And there was a fire and the Division of Forestry went out there in May 30th of 2006 and it was a 30-acre wildfire. I shudder to think what would happen if that would have been May of 2007. There is no question that if we want to preserve and enhance this habitat for red-cockaded woodpecker colonies -- in fact, in his report Mr. DeLotelle indicates that there is a stand of medium old pine in the center here that if it were properly maintained and preserved could potentially support a third cluster of red-cockaded woodpeckers if it's improved. It takes money. It all takes money. I have had estimates up to $8 million worth. The only way to generate that kind of income and actually enhance the habitat, get rid of -- have controlled burns, get rid of the palms that are up against cavity trees to try to counteract the effects of the drainage is to allow an economically productive use of some other portion of the property. I'm not going to suggest to you that all of the property ought to be cleared corner to corner, but I am suggesting that the portions of this property that have environmental significance should be enhanced and the money for that enhancement should come from productive use of the remaining areas of the property. I don't see how under a sending designation that any permitted uses exist that will enable the generation of that type of revenue. Prior to the adoption of the rural fringe amendments, we had an application for mining in conjunction with Winchester Lakes. That application remains open. Where mining could properly take place, obviously not where the red-cockaded woodpeckers are and not where we would like to generate a third cluster. There are areas to the north of the property which do not have nearly the same environmental significance as they do on the eastern Page 125 June 22, 2007 edge and on the southwestern edge. Again, that can't take place under a receiving designation. It could take place under a neutral designation. It could -- I'm sorry. It can't take place under sending. It could take place under neutral. It could take place under receiving. Were this property redesignated, especially were it redesignated neutral, mining comes back to a conditional use, which it has been for the Husseys for the 28 years that they have owned it. They would simply have the same rights that they had before. And then if appropriate conditions needed to be put onto mining, restrictions related to traffic, restrictions related to enlisted species, that could be done. As we stand here today, there is nothing that can be done. I also think -- and this is just somewhat backwards. I have trouble when I look at the aerials to distinguish between the areas that are designated as receiving and the areas that are designated as sending. They are pretty much identical. If anything, they are less than identical. And this is the aquifer recharge map. Because I know there is concerns that if any areas were to be mined of the impact they could have on aquifers. The dark green areas are your primary aquifer recharge zones in the North Belle Meade. The light green areas have minimal aquifer recharge. The red areas are the areas where the aquifer comes up out of the ground and the dark red have significant discharge. This is a receiving area. This is a sending area. I have yet to understand the distinction. As part of the rural fringe amendments, in order for the existing AP AC mine to continue, the Wilson Boulevard has to be extended. A haul road for the Florida Rock Mine has to be built. That will sever these lands from the remainder of the North Belle Meade, especially the NRPA areas. And we go back to the landscape scale for a moment on this one. Page 126 June 22, 2007 Mr. Weeks mentioned briefly the idea of swiss cheese. I don't know if you could particularly call the Hussey property the hole in the donut, but once all this is developed -- the single-family homes, this is agriculture, this is a mine and this is a mine, they're at least the tail of the dog. This would not involve cutting a hole in the middle of conservation. The NRP A lands are in this direction. They have and they have proven resources of DOT grade aggregate. That information has been provided to you. All ofMr. -- and I capped this at 2004. But if you're curious, I have 2005 water monitoring data, as well. In the spirit ofMr. Weeks' suggestion, if it was an '04 petition, I capped my data at '04. The wetlands that were thought to be there aren't there. What species are there can be properly handled under the native vegetation retention requirements of any of the three designations. And in order to generate the money to take care of the habitat and the listed species and to provide needed resources to Collier County, some utilization of the property needs to be adopted. Now, whether it is for the entirety of the property, whether you wish to consider them as three separate parcels and perhaps say on some of the parcels a redesignation might be merited but not on others, I leave that in your hands. But I want to make certain that it is clear that the data that the initial lines were drawn on was not the most current data. It missed when it came to wetlands because of the effect of drainage on the Hussey property and there's a valuable natural resource that was not considered in the evaluation. Thank you. I have nothing further. CHAIRMAN COLETTA: Okay. Do we have a staff presentation on this? MR. WEEKS: As short as the others, Mr. Chairman, on the specific batch of properties that compromise this petition. Short and simple, staff refute the data and our recommendation is not to make Page 127 June 22, 2007 the change. The planning commission also did not support the redesignation. CHAIRMAN COLETTA: Mr. Weeks, I have got a question that you probably don't have the answer to, but I'm very curious. An item of this magnitude, why the room isn't filled. I expected everyone -- people from Belle Meade to environmentalists. I expected a large crowd for this and there is no one in the audience. It's quite remarkable. Do you know of any reason why that is? MR. WEEKS: No, sir, I don't. I can tell you that the -- what we are not discussing today, it has been continued until July, is the nearby petition that does propose to do the earth mining. I mention that because it is in close proximity. And my understanding is that the neighborhood information meeting there were either no one or just a sprinkling of folks in attendance. I don't know why. CHAIRMAN COLETTA: Commissioner Henning. COMMISSIONER HENNING: What is the vegetation preserves in sending, neutral and receiving? MR. VEGA: I believe in non-NRP A sending is 80 percent of native vegetation. In neutral it is 60 subject to a cap of 40 percent of the land mass. And in receiving it is 40 percent subject to a cap of 25 percent of the total acreage. Is that correct? MR. WEEKS: That's right. COMMISSIONER HENNING: Mr. Vega, the maps that you showed where you have some listed species -- MR. VEGA: Yes, sir. COMMISSIONER HENNING: Would it -- would it support the 40 percent preserve areas? It looked to me like there may be more, but -- MR. VEGA: I believe that an acreage is given in the report from Page 128 June 22, 2007 Mr. DeLotelle and Ms. Bonness as to how many acres they think are necessary to not only preserve the two colonies that border the property, but also which -- to create the potential for a third property. And I have to check, but I thought they designated 162 acres as RCW management areas. If I were to add to that the wetlands in the northwest, northeast, I don't think I would get past 200 acres. So even at 40 percent or 400 acres, that's significantly more. Now, that is not said that there aren't other beneficial issues to conservation and preservation, but I don't think any of these designations by definition would threaten the listed species on the site. COMMISSIONER HENNING: What about the panther telemetry? Was that produced? MR. VEGA: I will try to make it clear my opinions as opposed to what I know to be fact. This was a significant issue at the administrative hearings and I have done significant research along the lines. The problem with using the telemetry as displayed by the prior petitioner is two-fold. First, it compacts telemetry which goes back to, I believe, 1986. So it doesn't give you any indication as to whether the panther habitat is expanding or shrinking or if it's moving one direction or the other. That I know to be a fact. I also know to be a fact that when the female Texas cougars were released to incorporate in the wildlife, they were tagged. And although if you pull up the spreadsheet that is behind all the dots on the map, they come with a TX and you can map the Texas cougar separately from the Florida panthers. That map does not make that distinction. As a result, if Texas cougars traveled through the North Belle Meade before integrating with the Florida panthers at the wildlife refuge -- and I know that they did -- then it would appear as if the North Belle Meade is active for panther habitat, at least from a Page 129 June 22, 2007 telemetry standpoint. It is also worth noting that not all panthers are tagged. So simply because there is no telemetry doesn't necessarily mean they are not there. But it's very telling if you break the panther telemetry up by year and you separate out the Texas telemetry that you'll see that the North Belle Meade, although it has been designated, I believe, as either -- in the latest panther as potential panther habitat, the telemetry -- now this is my opinion -- is not there to support that designation, at least on the Hussey property. There is some panther telemetry that was somewhat significant on the receiving lands that was pointed out by the prior petitioner. And at the administrative hearing it was clustered to a specific year. During that year they had been trapping hogs on-site. It was thought that perhaps the trapping of the hogs had caused panthers to go to an area where they don't necessarily go. That part I know to be a fact. Back to opinion, in meeting with the environmental analysts -- and this is in the habitat maintenance report. A crucial element is the reintroduction of prey species. Without prey species, nothing is good habitat. And right now, perhaps because of the fall in the water table and the loss of wetlands, there is not a lot of prey species on the Hussey property. COMMISSIONER HENNING: Marjorie, can we -- the request is to designate it from sending to receiving? MS. STUDENT-STIRLING: Yes. COMMISSIONER HENNING: Can we forward to DCA with a recommendations of neutral? MS. STUDENT-STIRLING: I think you can ifthere is the data and analysis that in your opinion you feel that would support that. COMMISSIONER HENNING: Well, considering the property to the north, which is receiving, I would imagine you consider it receiving. I'm talking about the Brown property, which is -- MS. STUDENT-STIRLING: Again, this is to look at the-- Page 130 June 22, 2007 revisit what was done in '02 and to look at it more specifically and see if the data and analysis presented by the applicant, together with your environmental staffs comments and recommendations, would support a neutral or a receiving designation. And the board must base its decision based on the available data. COMMISSIONER HENNING: Okay. Now, when you say what the action was in 2002 -- based upon the action in 2002? MS. STUDENT -STIRLING: No. I stated that this was another look at the action taken by the board in 2002 -- COMMISSIONER HENNING: Okay. MS. STUDENT-STIRLING: -- when we established the sending, receiving and neutral lands as part of the rural fringe program. COMMISSIONER HENNING: Well, Mr. Hussey, wouldn't the COMMISSIONER FIALA: Mr. Vega. COMMISSIONER HENNING: I'm sorry. Mr. Vega, couldn't you do the -- what you want to accomplish on the land if it was neutral? MR. VEGA: It would be a conditional use and I would need to return to you all and you all could place appropriate conditions on the proposed land use. So, yes, it would be permitted and it would give you all the opportunity to fine-tune the usage, which was a concern I noted at the prior petition. COMMISSIONER HENNING: Right. Well, I'm going to make a motion to forward to DCA for a designation of neutral. CHAIRMAN COLETTA: Okay. I am going to second it for the moment. I do want a little more information. So, in other words, this would -- this would give you what rights if we got through the final hearing on this with the neutral? MR. VEGA: The primary -- and I can't speak to all of them. But the primary changes that I would know would be your native Page 131 June 22, 2007 vegetation retention requirement would drop by 20 percent. The potential residential density instead of being one per 40 acres, plus TDRs, the TDRs go away and it becomes one per five acres. And earth mining is a conditional use as opposed to a prohibited use. CHAIRMAN COLETTA: Now, let me understand correctly. What you're looking for mainly is the earth mining; you're not looking for residential or you are? MR. VEGA: I'm not looking for residential. I'm solely looking for mining. CHAIRMAN COLETTA: Now, there is -- the environmental concerns are real. There are a lot of them out there. I mean, you explained why the concerns aren't justified because of the loss of the wetlands status due to the canal along 75. I'm still waiting for staff or somebody to verify that. But the issue of the environmental -- once it is determined to be -- we have very little jurisdiction once it gets to the point that you would get the neutral. In other words, the requirements for vegetation -- the requirements and all that would go out the window and completely change around. And I'm not too sure if this is the proper place to do it. But if we were to agree to go forward to allow you at least to be able to get to the point that you come for a conditional use, how can we be assured that we can preserve as much of this property as possible, rather than just have it by the rules that you're allowed to do -- what was it again under neutral; 75 or 50 percent you said? MR. VEGA: I think it is 60 percent capped at 40 percent of the area. MR. WEEKS: Capped at 45 percent. MR. VEGA: It's 45 percent. My mistake. This land has a fair amount of exotics. That was a concern that was designated in the habitat management report. That removal of those exotics is crucial to the enhancement of the habitat for listed species. Page 132 June 22, 2007 That said, I don't think the -- under the FLUCCS map, I don't think the exotics are more than 10 percent of the land. It would be -- I think the 45 percent of the land mass would be probably the trigger. CHAIRMAN COLETTA: Well, I am trying to find the incentive for you to do as much as you can to -- for the environment if we do get to that point where we move you forward. I don't think that what is -- what the urban designation is by itself gets us anywhere near where we need to be. MR. VEGA: I agree. I think a position needs to be taken that before any earth mining can be approved the habitat maintenance plan and the native vegetation restoration and enhancement have to go hand in hand. I would think that would be a condition that would have to be attached at the conditional use process. But before I can get to the conditional use process, I need a designation that allows me to get there. CHAIRMAN COLETTA: Do you agree with this? MS. STUDENT-STIRLING: Yes. It would seem that -- this is different from the other one because he would need to get the conditional use. At the conditional use time appropriate stipulations could be placed upon that use that would deal with preservation and so on. Now, that may depend upon the size of the area designated for conditional uses, as well. But it would seem that if the whole area were designated that way and -- as conditional use, but with the condition only a certain amount could be utilized for that purpose, then the rest would be in preserve or whatever, that that would be a way to get you there. CHAIRMAN COLETTA: Let's talk a little bit about what your main objective here is the use of the mining. MR. VEGA: Yes, sir. CHAIRMAN COLETTA: There is great concern that your company would be looking to break out someplace other than using Page 133 June 22, 2007 the haul road that Florida Rock would be putting in there, someplace in the estates or maybe going up through Wilson. That's not a bad idea sometime in the distant future when the road infrastructure is in place to be able to handle it at the other end, but it's not now and it wouldn't be for many, many years to come. Not even in a long-range plan. Are you willing to commit to using the Florida Rock haul road? MR. VEGA: Yes, Mr. Chairman. The Florida Rock road goes across the southern border of our property. It would be the easiest and most inexpensive route. It wouldn't make sense. It doubles the cost of rock, I think, to transport it seven miles. So there wouldn't be any sense to do a large question mark through Golden Gate Estates ifthere is a direct route out. CHAIRMAN COLETTA: One of the assurances that I will need as we get into this process is that you're not planning to take the road that is in there and building it up through -- to Wilson -- adjoining to Wilson. Not at this point in time when there is no infrastructure to handle at the other end. MR. VEGA: No. To be honest, you bringing it up is the first time it has been brought up. We have not been party to any conversations. It may be that other operators have had that thought, but we solely are looking to get out to 951 and 1-75. CHAIRMAN COLETTA: Mr. Weeks, if this goes on to -- for the approval for the Department of Community Affairs and it comes back to us, what kind of a time period is there in when the report comes back and we would act on it? MR. WEEKS: Ballpark about two and a half months. CHAIRMAN COLETTA: Okay. Would you be willing at that point in time, before we address this situation again, at your own expense and your own time to hold a community meeting to be able to -- have the public be able to come in and weigh in, rather than just depend upon this forum to be able to handle it? Page 134 June 22, 2007 MR. VEGA: Yes, sir. Given the scarcity ofthe populous from this forum, I would not have a problem with that. I would probably coordinate with Joe Vanasse and Rich Yovanovich and make it happen. MR. WEEKS: Mr. Chairman, I will correct myself. It would be closer to four months. CHAIRMAN COLETTA: Commissioner Fiala. COMMISSIONER FIALA: Way back to the beginning when you first began your presentation, you talked about this property and then David mentioned the property. And he said it is another Hussey property adjoining this property when he was talking about the other petition on here or are they one and the same? MR. VEGA: There is a number of -- I guess, I can show you on this map. There is a few five-acre parcels or ten-acre parcels that are owned by the Husseys. There is one five-acre parcel right there in the adjoining section. And I think there is a five-acre and a ten-acre parcel here. Those are probably on Mr. Weeks' list because they are a part of the contiguous land under common ownership, which abuts the receiving lands. But that is not what I'm here for today. You can't -- it is not productive to do anything with five acres, at least from a subsurface standpoint. COMMISSIONER FIALA: The other thing that Mr. Y ovanovich continued until July is also part of your property; is that correct? MR. VEGA: Yes. It is the same property. COMMISSIONER FIALA: Okay. So getting back to your property, I have been told by numerous people actually that if we don't approve this it has been -- we have been warned that they will clear it then under the Right to Farm Act and then there won't be any room for -- there won't be anything for listed species to live on. That really turned me off a lot. I just have to tell you that. I Page 135 June 22, 2007 guess, they have a right to remove all of the habitat. But let me tell you, they have got red-cockaded woodpeckers, American -- whatever kestrel is, among other birds, Big Cypress fox squirrels, Florida black bear, gopher tortoise, common wild pine, butterfly orchids, just to name a few. All of these things on this property, this very sensitive -- environmentally sensitive land, plus all of the different tree communities that are on board on this thing, as well. I also -- I walked the property and -- walked or drove through. Walked some, drove through some. It was -- it was just loaded with different species and environmentally sensitive things. That concerns me an awful lot to think that somebody would just mow them down if they can't have their way. The second thing I have to say is we talked about hauling. Someone was in my office -- I don't know if this is truthful or not. But they said to me the plan was to be hauling rock 24 hours a day. I don't know if that's the case or not, but I have to tell you this. On 951 it is -- it is almost impossible for us to approve anything else on 951 right now because the road is in such -- is going to be so confined and so full of traffic. Even with the widening of it, it is only expected to last a couple of years and then it's down again. Plus, the 951/Davis Boulevard intersection and then the 1-75 entrance/exit, they are not even going to be improved at all when the rest ofI-75 is improved. I don't know where we are going to take your trucks or how they are going to get in and out. I don't believe -- I don't even believe there is anymore for Florida Rock, much less -- that should have never been approved either. And I just feel that this is wrong for that whole -- that whole transportation corridor there. So I am just going to place that on the record. MR. VEGA: Commissioner Fiala -- and I have to somewhat apologize through a coincidence of growth management cycles. You have two petitions relating to this -- mostly the same property that are Page 136 June 22, 2007 coming up at the same time. The concerns you have, I believe, are addressed to Mr. Y ovanovich's comprehensive plan private amendment. I have not prepared that. COMMISSIONER FIALA: No. Actually, these are all the things that are going to be allowed if you're approved. MR. VEGA: If I'm approved -- and I think I want to make it clear that from day one, even back in 2004, we submitted the environment information and the environmental plan. My goal has always been to preserve and enhance the maximum number of acres. To do so, you need the most productive use from the remaining acres. I have never advocated clearing exotic plant communities and -- COMMISSIONER FIALA: I don't think you have. I think that it has been mentioned by the owners to other people. MR. VEGA: The second comment that I would have is concerns as to what is cleared and when trucks, how many, and when they are allowed and where they are allowed would all have to be addressed at time of the conditional use petition. I would be happy to tie my hands now, but from a procedural standpoint I don't know -- I think, as Mr. Weeks added, today we draw lines. If you want to consider this conditional use subject to restrictions, then the day to discuss those restrictions and put them in place is not today. COMMISSIONER FIALA: Well, let me just say with all the environmental species and environment -- environmental sensitive -- the components of the property, I have a problem with that. MR. VEGA: It is a big piece of property. COMMISSIONER FIALA: Yes, it is. It has got a lot of wonderful, wonderful listed species on there. CHAIRMAN COLETTA: All right. Commissioner Coyle. COMMISSIONER COYLE: Did I press my button? CHAIRMAN COLETTA: You pressed the button. COMMISSIONER COYLE: Well, then I'm going to have to Page 137 June 22, 2007 come up with some questions very quickly then. I don't understand how we do this in two parts on the same property. It makes no sense to me. Why can't we deal with the final determination on the private amendment? MR. VEGA: That will be coming before you in July. COMMISSIONER COYLE: Yes. Why can't we deal with this at that point in time? MR. VEGA: You could. My proposal today was -- came about from the 2002 legislation. To be honest, I thought we would have been having this hearing in 2005. I'm a little surprised to be having it now. One petition went through the cycles faster than was anticipated and my petition went through slower. But I think under either -- under the private plan amendment you will have the ability to impose restrictions that are appropriate, which gives you a great latitude. Similarly, if you were to go neutral, it becomes a conditional use and not a permitted use. And, again, you have the right of the conditional use hearings to impose conditions. COMMISSIONER COYLE: Except that they are permitted uses under the neutral designation that you don't have now. MR. VEGA: Residential density combined with the forfeiture of TDRs would be one. And I don't know -- some of the other things that were lost from the historic designation, for example, where a gated community was a historic use that was lost. The right to have a golf course as a conditional use that was lost. One of my objections -- and I had it back in 2001 and 2002 when we were here before was that when you own a large piece of property you have uses, such as subsurface rights and conditional use of golf courses that the TDR program never compensates you for. If you have a five or ten-acre parcel, you're fine. But it doesn't work on a parcel of this magnitude. I don't think any of those uses spring back into existence though Page 138 June 22, 2007 in neutral. Mr. Weeks can correct me. MR. WEEKS: IfI may, Commissioners. The sending lands is, of course, the most restrictive, as far as land uses go. And just about all you can do with your property is one single-family home for 40 acres. With the TDR program you can transfer your density still at one unit per five acres to receiving lands, but on the property one unit per 40 acres. Agricultural uses consist of Florida Right to Farm Act and the right of conservation type land uses. That is essentially -- there is also a provision for essential services that are necessary I think to ensure public safety. But for private use it's just about down to a single- family dwelling unit or the agriculture consistent with the Florida Right to Farm Act. Under the neutral designation that is the closest designation to the pre-rural fringe, pre-final order comprehensive plan allowances; one dwelling unit per five acres, golf course allowed as a conditional use, earth mining allowed as a conditional use, a variety of institutional type uses allowed by conditional use, such as nursing home, child care, church, private school, et cetera. There is a very distinct difference between the sending lands and the neutral lands. Receiving is pretty similar to the neutral designation, except you also get the benefit of using TDRs. The density could be as much as one unit per acre or large enough to have a rural village. CHAIRMAN COLETTA: Commissioner, are you through? COMMISSIONER COYLE: I am through. Thank you. CHAIRMAN COLETTA: Commissioner Henning. COMMISSIONER HENNING: David, are you saying that earth mining is a conditional use under neutral lands? MR. WEEKS: That's correct. COMMISSIONER HENNING: Okay. Well, my perspective is you have more of the bite of the apple with that designation than what Page 139 June 22, 2007 is -- what is being requested in July, which is sending with earth mining on it and they also want the right to keep their TDRs. If it has to come back as a conditional use, I would imagine on this property even the EAC would have a chance to weigh in on it. You'd get more public input than you would. Besides having a neighborhood meeting, you would have more of a public input. That's the reason I thought that was a better suggestion than what we're going to hear in July. CHAIRMAN COLETTA: Commissioner Halas. COMMISSIONER HALAS: How many TDRs can you get on this property right now? Off this property. MR. VEGA: It's 919 acres. The original TDRs is one per five acres. COMMISSIONER HALAS: Plus you have got some additional ones, too. MR. VEGA: There is some additional ones. I guess, 40 or so contiguous. Call it 950. Well, to make the math simple, let's call it 1,000. It is slightly less than that. At 20 per 100 would be at least 200 based TDRs. If they went under the early entry bonus, which is mid to late '08, there would be another 200. If they were to restore the land, they would potentially generate a third set of200. And if they were to donate it into a public trust or conservancy, they would generate the final potential 200. I think I did the math. In round numbers, 800. I think it is closer to 780 or so. COMMISSIONER HALAS: About 800 TDRs? MR. VEGA: About, yes. COMMISSIONER HALAS: At 25,000 apiece, 50,000 apiece, somewheres in that area? MR. VEGA: I'm not convinced that there's a market for that many TDRs at that price. COMMISSIONER HALAS: Well, we had to basically have a Page 140 June 22, 2007 stock split because everybody said that the TDR values were going up so rapidly. MR. VEGA: I understand that. I thought the stock split was somewhat ironic for two reasons. First, the delicate balance from the number of sending TDRs and receiving TDRs was one of the justifications for drawing lines that were drawn. That justification seems to me to no longer apply after the four to one stock split. The second problem that I pointed out at the administrative hearing to Doctor Nicholas that because of the infill areas and the urban fringe areas they were almost eight or nine receiving TDRs intentionally created for every one that existed. I was roundly criticized until the four for one split was adopted, then I think I sounded somewhat prescient. With that said, right now -- and perhaps it's simply economic conditions. There is not a market that I'm aware of for these TDRs. I would be the person they would call if there were. And I don't know if there will be a market by the time the early entry bonus disappears. CHAIRMAN COLETTA: Commissioner Coyle. COMMISSIONER COYLE: Yeah. I'm still confused about why we would want to take action now to forward to DCA a proposal to make this neutral or anything else and then in July have a private amendment submitted where we would be considering redesignating it as sending lands and permitting earth mining. I don't know why we just don't do it at one time. COMMISSIONER HENNING: Well, we can either do that or ask Mr. Hussey to remove his other petition. COMMISSIONER COYLE: Well, it would be too late now to do that -- to redissolve that issue right now. COMMISSIONER HENNING: Why is that? COMMISSIONER COYLE: Well, I don't see Mr. Hussey here. And I'm not sure Mr. Vega can get that done while we're sitting here today. Page 141 June 22, 2007 MR. VEGA: No, I cannot. Is the hearing in July -- the meeting in July the 24th? I will be in town the 24th if it makes -- I would hate to delay transmitting this to the state, but if it makes sense to roll us to the 24th and hear us in the same meeting, I will be available. MR. WEEKS: It will potentially roll over to the 25th. MR. VEGA: I don't leave until the 26th. COMMISSIONER HENNING: How about if! change my motion to hear this in the July meeting? COMMISSIONER COYLE: Just continue it. COMMISSIONER HENNING: Just to continue it into the July meeting. But if we can't move -- remove the other petition from sending -- to keep it sending, but have special rights on it, then I'm going to make a motion to continue this until the July meeting. COMMISSIONER COYLE: I'd second that. COMMISSIONER HENNING: Commissioner Coletta -- CHAIRMAN COLETTA: It was my second. If you feel like you want to -- COMMISSIONER COYLE: I don't have a burning desire. CHAIRMAN COLETTA: Okay. I will amend my second to agree with your first. With that, we have a motion and a second to continue this to the July -- what meeting -- 24th meeting. We thank you very much for being here. All those in favor, indicate by saying aye. COMMISSIONER COYLE: Aye. COMMISSIONER HALAS: Aye. CHAIRMAN COLETTA: Aye. COMMISSIONER FIALA: Aye. COMMISSIONER HENNING: Aye. CHAIRMAN COLETTA: Opposed? (No response.) Page 142 June 22, 2007 CHAIRMAN COLETTA: The ayes have it five to zero. Thank you. We know we don't have any speakers on the subject. I'm pretty confident of that. MS. FILSON: No, sir. MR. WEEKS: That should be it for today. CHAIRMAN COLETTA: Thank you. We're adjourned. COMMISSIONER HENNING: Mr. Chairman, may I say something first? CHAIRMAN COLETTA: Sure. COMMISSIONER HENNING: It was quite disturbing this morning coming in the way here and listening to one of the talk show hosts. A businessman called in -- of course, I think this was prearranged by the host -- that he is not permitted to display the American flag without getting a permit from Collier County. CHAIRMAN COLETTA: Not true. COMMISSIONER HENNING: Well, it's clearly in the sign code that government flags are exempt from the provision. And, in fact, it is 5.06 (0). Now, this restaurant owner had an open sign on an American flag and he was told to take it down. That is true. That is -- that's not allowed. I agree with code enforcement. But he wanted to just put an American flag up and he was told he could not do that because it is altering his business sign. CHAIRMAN COLETTA: I-- COMMISSIONER HENNING: The second thing -- I want to finish this. The second thing is -- the newest thing is it says he must get a permit to display the American flag. The American flag represents the biggest free speech that we have in the United States. And I don't understand why government wants to charge the people monies to display the American flag. COMMISSIONER FIALA: I don't believe that. I don't believe that that happened at all. Page 143 June 22, 2007 CHAIRMAN COLETTA: I don't think it is true either. I know that we do require a permit to have the pole put in because of the engineering that is required. COMMISSIONER HENNING: I can tell you that he has in his possession something in writing from community development that states that he must get a permit for it and -- CHAIRMAN COLETTA: We have no one from community development. COMMISSIONER HALAS: For the pole. COMMISSIONER HENNING: I wish we did, but it is what it is. And this is not the end of it. I hope it gets resolved before we go on break. CHAIRMAN COLETTA: Commissioner Henning, it would have been great, you know, if you were planning to bring this up -- maybe it was spontaneous. But maybe you could have given community development some warning so they could have been here and we could have got an answer. Right now -- COMMISSIONER HENNING: Well, they were here. There is community development here, but nobody really to respond to it. CHAIRMAN COLETTA: Right. I mean, there's -- a little bit of prewarning would have probably cleared it up and we could have got to the answer and corrected it. COMMISSIONER HENNING: You know, Commissioner, I can't understand why you are taking me to task when I'm trying to defend somebody's rights -- civil rights. CHAIRMAN COLETTA: Commissioner Henning, I believe people should have the right to display the American flag. It's just that you -- you made a statement that can't be collaborated because you didn't give anybody prewarning. That is not fair to community development to put a blast over the airwaves saying Collier County government does not allow you to place an American flag in front of your business. Page 144 June 22, 2007 I can't believe that. I want to see that. You did a disservice by doing it the way you did it. You should have notified community development that you were bringing the subject up and we could have gotten an answer. Now we're going to leave everybody in suspense until the next meeting until we get this resolved. And if you're right, if they do, I don't think there is a commissioner here that is going to say they don't want the American flag displayed. Everyone here is a patriot. COMMISSIONER HENNING: I didn't say that. CHAIRMAN COLETTA: I know you didn't. But the way you're handling it is inappropriate. COMMISSIONER HENNING: I don't think it is inappropriate at all. I think we need to address the people's civil liberties any chance that we get. CHAIRMAN COLETTA: But you didn't address it. All you did was throw a blast out over the bow. You didn't give anybody a chance from community development to respond, no prewarning. So we can't -- we can't get an answer. No one here can answer it. Can somebody in the back of the room answer the question? Of course you can't. Did you know about this beforehand? Did you listen to the radio station this morning? MS. MOSCA: No, sir. COMMISSIONER HENNING: You know, Commissioner, I can't believe that, again, you're taking me to task for defending somebody's civil rights. CHAIRMAN COLETTA: No, I'm not. I'm taking you to task for the incomplete way you're handling it. You're having a good time at the expense of people that aren't here. COMMISSIONER HENNING: You're wrong. You're wrong. You're absolutely wrong. Page 145 June 22, 2007 CHAIRMAN COLETTA: I'm not. I am absolutely right. COMMISSIONER HENNING: This is somebody's civil rights, Commissioner. CHAIRMAN COLETTA: It is, but you're not doing anything to defend it. The only thing you're doing -- COMMISSIONER HENNING: Yes, I am. COMMISSIONER FIALA: But this was just one person saying. And how many times have we found that somebody will say something -- COMMISSIONER HALAS: There is the other side of the story. COMMISSIONER FIALA: -- and they have just misinterpreted and then it takes everything out of context. CHAIRMAN COLETTA: Yes. COMMISSIONER FIALA: People run away believing it. And 10 and behold, when we actually find the proof, well, they were a little bit wrong. COMMISSIONER HENNING: He has it in writing. COMMISSIONER FIALA: Yeah. But we should see what he has in writing. COMMISSIONER COYLE: Mr. Chairman, can I make the suggestion that we, as a board, instruct the staff to give us an immediate report? They can do that independently, individually. Give us all an immediate report about whether or not we have -- have tried to prohibit this person from flying the American flag and if we are in any way making it difficult for him to fly the American flag. I have seen the flag that he originally put up on his -- in his business. It is not an American flag. It is an open flag. It says open, o-p-e-n, and it is arranged with stars and bars to spell out o-p-e-n. So now if he has -- has decided to put up an American flag instead and we're causing him difficulty, I agree with Commissioner Henning. But let's just agree to ask the staff to give us an immediate Page 146 June 22, 2007 report to investigate this. Give us an immediate report as to what is going on and -- CHAIRMAN COLETTA: May I make a suggestion? COMMISSIONER COYLE: Sure. CHAIRMAN COLETTA: One step further. The report is wonderful. Five commissioners receiving the report. Let's put it in the form of a news release so that the public realizes what happened or didn't happen. COMMISSIONER COYLE: We have -- CHAIRMAN COLETTA: And we can take immediate action if there is a short-falling on the part of our code enforcement enforcing codes that don't exist. COMMISSIONER FIALA: And send it to the radio announcer. COMMISSIONER COYLE: That's exactly right. Call the radio announcer and get on the -- have our public relations people get on the radio and discuss this issue and resolve it because it is an important Issue. There it is. It is an open sign. It just happens to be backwards. COMMISSIONER HENNING: Like I said, he did that wrong in the first place, but he was told he has to get a permit to display the American flag. CHAIRMAN COLETTA: Let's put that on the visualizer so the public knows what we are talking about. COMMISSIONER HENNING: Actually, he has something in writing. CHAIRMAN COLETTA: There is the American flag. COMMISSIONER COYLE: Well, he has it or he says he has it. COMMISSIONER HENNING: There was a news reporter that talked to community development and said he just needs to get a permit to display the American flag. CHAIRMAN COLETTA: That's not the American flag. COMMISSIONER HENNING: I know. Page 147 June 22, 2007 CHAIRMAN COLETTA: I refuse to. accept that as the American flag. COMMISSIONER HENNING: I didn't say that was. CHAIRMAN COLETTA: In any case, I do. appreciate the infarmatian and there will be an inquiry and a news release. And every ane af us will be made available af it. Anything else befare we ga? (No. respanse.) CHAIRMAN COLETTA: Nathing. We're adjaurned. Thank yau. * * * * * There being no. further business far the gaad afthe Caunty, the meeting was adjaurned by order afthe Chair at 3:25 p.m. COLLIER COUNTY BOARD OF CO~RS ~ JIM COLETTA, Chairman ATTEST: ~~1::B~~~~~<<{:~ - . These minutes appraved by the Board Qn presented ar as carrected.,;/,,' q ltii(foi- , as Page 148